Howard v R [2019] NSWCCA 109

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Howard v R [2019] NSWCCA 109 Hearing dates: 13 March 2019 Date of orders: 07 June 2019 Decision date: 07 June 2019 Before: Macfarlan JA at [1] Fullerton J at [2] Bellew J at [34] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed in the District Court is quashed. (4) In lieu thereof, the applicant is sentenced to a term of imprisonment of 6 years and 9 months commencing on 12 April 2016 and expiring on 11 January 2023, with a non-parole period of 4 years commencing on 12 April 2016 and a balance of term of 2 years and 9 months. The applicant will be eligible to be released to parole on 11 April 2020. Catchwords: CRIMINAL LAW – Sentence – Appeal – Sending an explosive substance with intent to burn – Whether offending premeditated – Whether immaturity played a part in the offending – Consideration of sentencing principles relating to youthful offenders – Whether sentence manifestly excessive Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Attorney-General's Application under s 37 Crime (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Browning v R [2015] NSWCCA 147 Clarke-Jeffries v R [2019] NSWCCA 56 Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 HJ v R [2014] NSWCCA 21 Hughes v R [2018] NSWCCA 2 JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 R v AA [2017] NSWCCA 84 R v Dinh [2010] NSWCCA 74; (2010) 199 A Crim R 573 R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 R v Mastronardi [2000] NSWCCA 12; (2000) 111 A TM v R [2008] NSWCCA 158 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: Joseph Howard – Applicant Regina – Respondent Representation: Counsel: D Barrow – Applicant M England – Respondent Solicitors: Legal Aid NSW – Applicant C Hyland, Solicitor for Public Prosecutions – Respondent File Number(s): 2016/111399 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 10 February 2017 Before: Her Honour Judge Culver Judgment 1. MACFARLAN JA: I agree with Fullerton J. 2. FULLERTON J: I have read the judgment of Bellew J which was circulated in draft. Save only for some additional aspects of the evidence to which I will presently refer, I gratefully adopt his Honour's rendition of the agreed facts, including his summary of the CCTV evidence, [1] the extracts of the applicant's evidence [2] and his Honour's summary of the material tendered in support of the applicant's subjective case. [3] 3. The sentencing judge's various factual findings underpinning her assessment of the objective seriousness of the offending are set out at length in his Honour's judgment. [4] I note, as did his Honour, that none were challenged by the applicant on the appeal. 4. While I agree with his Honour that the first ground of appeal is not made out, for the reasons which follow I am satisfied that the applicant has demonstrated that the sentence imposed was manifestly excessive and that the appeal should be allowed on that basis. The first ground of appeal 1. I agree with his Honour [5] that the applicant's admissions to the investigating police on his arrest that he was the person in the CCTV footage throwing the Molotov cocktail, and that he did so with the intention of "trying to get one of the other gang members", constituted assistance of a kind which fell within s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Were the sentencing judge to have been invited to consider reducing the sentence to be imposed on the applicant because of that assistance she would have been obliged to assess its value referable to the various matters specified in s 23(2), relevantly its timeliness and utility and whether the admissions were truthful, complete and reliable (ss 23(2)(b), (c) and (e)). She would also have been obliged, in accordance with s 23(3), to ensure that any reduction in the sentence was not productive of a sentence that was unreasonably disproportionate to the nature and circumstances of the offence. [6] Since the sentencing judge was not invited to take that approach and where the failure to do so has not been demonstrated to be productive of a miscarriage of justice, I agree with Bellew J that the first ground of appeal is not made out. 2. That said, I do not share his Honour's view [7] that were the sentencing judge to have been invited to treat the applicant's assistance referable to s 23 of the Crimes (Sentencing Procedure) Act, it would not have warranted the significance contended for by the applicant on the appeal. 3. Bellew J regarded the CCTV footage [8] as establishing, unequivocally, that the applicant had the intention requisite for the offence created by s 47 of the Crimes Act 1900 (NSW), namely an intention when "sending" the Molotov cocktail to a person by "throwing" it, to "burn, maim, disfigure disable or do grievous bodily harm to any person". 4. When the sentencing judge indicated she intended to take into account the applicant's willingness to be frank with police (albeit in the first instance at his mother's urging) as a "favourable circumstance" to be added "into the balance" for sentencing purposes, [9] she went further and observed that, having regard to the CCTV footage, the evidence against the applicant was "overwhelming". This is hardly surprising since that evidence positively identified the applicant as the person who was handed the Molotov cocktail in exchange for the knife he had found on the ground, after which he lit the wick and threw it. The sentencing judge did not, however, make any specific finding as to whether that same body of evidence allowed for the drawing of an overwhelming inference that the applicant's intention at the time he threw it was to hit a rival gang member (or any particular person). 5. For my part, I accept that the throw was targeted in the direction of the station platform at a time when the fight between the gangs had waned and the participants were apparently scattering in various directions (as distinct from it being a random throw which succeeded in hitting the platform because of the force of the throw). I also accept that the device was thrown from the height of the stairs and with momentum. However, in my view, were the applicant not to have volunteered to police that he intended to hit a member of the rival gang who he believed was on the station platform, it would have been difficult for the prosecution to establish the intention specific to the offence created by s 47 of the Crimes Act beyond reasonable doubt, if for no other reason than the CCTV footage was of limited utility in identifying the men running on the platform amongst the large number of young men of "islander appearance" engaged in the confrontation. In those circumstances, I regard the applicant's admission to police that he intended to hit a rival gang member as significant. I do not understand the sentencing judge to have treated the applicant's admissions to police on any other basis. The second ground of appeal 1. Counsel for the applicant accepted that the objective seriousness of the offending warranted the imposition of a sentence of imprisonment. He submitted, however, that because the sentencing judge acknowledged [10] that the applicant's chronological age would have attracted the operation of the Children (Criminal Proceedings) Act 1987 (NSW) were he to have committed the offence 27 days earlier and, for that reason, that it was appropriate to take into account the operation of s 6 of that Act on sentence [11] and, in addition, where she accepted that the applicant's youth necessitated that there be an emphasis on his rehabilitation, an undiscounted sentence of 9 years imprisonment was so severe that this Court would find the sentence to be "unreasonable or plainly unjust". I accept that submission. 2. I accept counsel's further submission that an undiscounted head sentence of 12 years and 8 months for a very young person whose offending conduct, although extremely serious, was nonetheless eloquent of his limited emotional maturity and a less than fully developed capacity to control impulsive behaviour, is so severe as to amount to a sentence that is "unreasonable or plainly unjust". 3. In concluding as I have that the applicant's youth and immaturity and the other favourable subjective circumstances (including a finding of genuine remorse and gathering insight) were not sufficiently reflected in the sentence imposed, I respectfully disagree with Bellew J that the second ground of appeal has not been made out, as I do the conclusion his Honour reached at [92] of his judgment that the applicant's immaturity played no part in his offending, and his Honour's reasons [12] in coming to that conclusion. 4. It is not necessary to restate the principles articulated in a succession of authorities governing the sentencing of youthful offenders referred to by Bellew J, save to emphasise that the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20's. [13] 5. In light of those settled principles, if Bellew J is to be taken to mean [14] that there must be an evidentiary basis for a finding that the applicant's immaturity contributed to the commission of the offence beyond the facts of the offending itself and the circumstances in which the offence was committed, I respectfully disagree. While I accept that in some cases it may be necessary to adduce expert evidence to establish that an offender's emotional, sexual or physical immaturity was causally related to particular offending (as was the case in Clarke-Jefferies, to which his Honour referred, [15] where a young offender of 18 years of age sought to procure a young girl to engage in sexual activity and to solicit pornographic photos of her), I would venture to suggest that in most cases it is the offending conduct itself, coupled with the age of a youthful offender that allows for the inference to be drawn that the commission of an unpremeditated or unplanned criminal act was likely to be responsive to the interplay of a young person's immaturity and a compromised capacity for mature decision-making. 6. In this case, not only were the facts both inherent in and contextual to the applicant's offending redolent of a combination of his immaturity, his susceptibility to the influence of peer pressure and a lack of insight into the potentially extremely harmful consequences of his actions, the sentencing judge appeared to accept the account the applicant gave to the author of the pre-sentence report that his decision to throw the Molotov cocktail was "impulsive", being motivated by his close relationship with a co-offender. [16] 7. In addition, and further to the evidence extracted in Bellew J's judgment, [17] in response to the sentencing judge's further questions, [18] the applicant gave unchallenged evidence that at the time he threw the Molotov cocktail he "wasn't thinking" and that he was drunk. 8. In the result, I am compelled to the conclusion that in the brief time that elapsed between the applicant exchanging the knife he had found on the ground for the Molotov cocktail before lighting it and throwing it towards the station platform in the direction of a person he believed to be a rival gang member, it is unrealistic to attribute to him the mature decision-making of an adult. It might have been otherwise were he a gang member who had a designated role in the planned confrontation and who came armed with the Molotov cocktail, as distinct from him agreeing to attend as support for a friend in one of the gangs and, it would seem, drinking a significant quantity of alcohol beforehand which it seems he believed would fuel his ability to provide that support. That is conduct which of itself is suggestive of immaturity. 9. I also respectfully disagree with Bellew J's further finding [19] that the applicant's conscious decision some days in advance of the planned confrontation to accompany his friend as a support person deprives his act in receiving and throwing the Molotov cocktail whilst he was there of the impulsivity that is often one of the hallmarks of criminal offending by young people, as I do his Honour's assessment of the applicant's mature and trustworthy behaviour as the eldest of seven children in his family home, and the self-discipline he displayed in the course of his employment, as being at odds with a finding of immaturity and impulsivity in the circumstances in which he committed the s 47 offence in the company of his peers. 10. Finally, while it is appropriate to emphasise, as Bellew J did, [20] that the applicant made the decision to be present at the confrontation to support his friends, and to consume alcohol with that intention in mind, as part of the evidence contextual to his offending, I do not consider it relevant in considering whether the sentence was manifestly excessive to attribute to him knowledge that the confrontation in which he chose to be involved carried with it a high risk of injury being inflicted upon innocent members of the community. That was not an element of the offence against s 47 to which he pleaded guilty and, while the offence of rioting contrary to s 93B of the Crimes Act was the subject of the Form 1, the sentencing judge (appropriately in my view) treated the circumstances of the riot as so inextricably linked to the circumstances of the s 47 offence that the Form 1 offence did not warrant an increase in sentence, either by affording weight to personal deterrence or retribution. Re-sentence 1. The applicant read an affidavit affirmed by him on 7 February 2019. At the time of the hearing of the appeal the applicant was 20 years of age, having entered maximum security custody after he was sentenced on 10 February 2017 a few days before he turned 19. He was bail refused following his arrest on 12 April 2016. 2. The applicant describes his experience of custody in the following way: 4. I had never been to gaol before my arrest. I had never been in juvey. I was told that I was put here not because of anything I had done but only because there was a bed available. 5. I am so scared in here. I have never seen anything like what happens here. I go to sleep every night hoping I wake up in the morning and every day praying I make it through the day without being stretchered out. 6. There is so much violence here. Almost every day someone gets badly hurt. I have seen horrible things. 7. I am the youngest one here by a lot. Most of the others are proper men. They are at least ten years older than me. Everyone else I know in here has been in and out of gaol six or seven times at least. I am the only one in here that has never been in any sort of custody before. 8. I kept asking to be moved but was knocked back. I have been asking to move since I came in. 1. The applicant describes the work he engaged in upon entering custody. He said he stopped working in a workshop making beds after witnessing another inmate be hit with a hammer. He said he was fearful of tools in the workshop being used as weapons and started staying in his room pretending to sleep so he would not have to go to work. I accept that he remained in his cell for that reason, despite that conduct attracting a misconduct report dated 18 September 2018 for a failure to follow instructions. 2. The applicant also detailed the circumstances in which he was the subject of two other incidents of misconduct, each of which occurred within a short time of being admitted into custody. One involved his refusal to submit to urinalysis. He admitted that he was using drugs at that time in an attempt to cope with his custodial circumstances. He said he used the drugs "to get a break from it all" but later decided it was "not worth it". Notably, there is no further report of drug use or suspected drug use. 3. Another incident of misconduct concerned his possession of a gaol-made weapon as to which he gave the following account in his affidavit: 17. … on 4 June 2018 … officers searched my room. I had a cellmate at the time who was older than me and was known to be in there for murder. I am too scared to give any more details than that. There was a mobile phone and a handmade shiv found in our room. I took the rap for it. I knew something really bad would happen to me if I didn't. I knew that because I have seen it happen here all the time. Once they get you they go all the way. They are animals, they don't stop. 1. On re-sentence, the Crown read an affidavit of Michael Jones, a solicitor with the Director of Public Prosecutions, which attached a letter forwarded to the Correctional Centre where the applicant was detained requesting material relating not only to the applicant's employment but in respect of what was described as a further incident of misconduct allegedly committed on 19 May 2017. That incident was the subject of a detailed incident report. It involved Corrections staff responding to a large number of Islander inmates involved in the assault of another inmate. The applicant was not named or identified as involved in the assault although there is a suggestion that he was in possession of what was described as a "? Secreted weapon in A Pod yard". No further information was provided. A police investigation was initiated and, although the applicant was spoken to by police, no charges were laid. 2. More recently, on 27 January 2019, the applicant was punished for an assault which attracted a period of seven days confinement to his cell. He gave the following explanation for that conduct in his affidavit: 19. On 27 January 2019 I was on the phone. There is only one phone in the pod. A group of inmates stood over me trying to take the phone. They pounced on me and I fought back. I was put in segro for four days. The other group are still in segro. 20. I know it doesn't look good on my paperwork but I am just doing what I need to survive here. 1. The sentencing judge made a finding of good character in accordance with s 21A(3)(e) of the Crimes (Sentencing Procedure) Act despite the entry on the applicant's criminal record in the Children's Court. I do not regard the incidents of misconduct described above as derogating from that finding in any material aspect. I am also satisfied that the applicant's evidence before the sentencing judge, coupled with his evidence on re-sentence, demonstrates genuine remorse and a developed insight into his offending such that I am satisfied that he is unlikely to reoffend. 2. The applicant has completed two EQUIPS programs since entering custody (one focused on addiction and one focused on aggression), both comprising courses extending over ten weeks. He is also on a waitlist for the Violent Offender Therapeutic Program after discussing with his welfare officer the utility of that program as he progresses through his sentence. He has commenced a numeracy and literacy course, also a ten-week course, requiring his attendance for three hours a day, three times a week. He says, "I want to learn to read and write properly". 3. So far as his cultural and religious activities are concerned, he says he attends chapel each morning and is proud of his Islander heritage. He confirms a continuing close relationship with his parents and his six younger siblings. He said that before he was sentenced and housed in a maximum security gaol he was receiving weekly family visits but he has only seen his family twice since he was sentenced due to the distance his family would need to travel to visit him. He says: Being away from my family has really hurt and has made me realise what is important. I miss them so much and find it really hard not being able to see them. I have a very close family and speak to someone from my family almost every day. 1. He speaks of his attitude to the offence and his plans for the future in the following terms: I have had a lot of time to think here. I think back to what I did and I feel really sorry. I had no idea how dangerous it was at the time. I wish I had not gone with my friend that night. I would do anything to take it back but know I can't. I now understand how lucky I am that no-one got hurt. All I want is to get out of here alive. I do not want to end up in a coma or being stretchered out of here not being able to move. I don't want my family to get a call that something really bad has happened to me. If I get released, I want to live a normal life with good people like my family. I just want to be home and feel safe. I want to finish my apprenticeship in construction and show my younger siblings that even if you have made a stupid decision, you can always choose to try harder and get your life back to good. 1. I have taken the time to set out the evidence from the applicant in detail. In my view, it adds very significant weight to the evidence before the sentencing judge which, in her Honour's assessment, demonstrated favourable prospects of rehabilitation in circumstances where the applicant had employment available to him as an apprentice plumber and "a pro social network", including the support of his church. 2. I confirm that the applicant is entitled to have his sentence discounted by 25 per cent to account for the plea of guilty. I also confirm a finding of special circumstances allowing for a more lengthy period of supervision upon the applicant's ultimate release to parole. 3. The orders I propose are as follows: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed in the District Court is quashed. 4. In lieu thereof, the applicant is sentenced to a term of imprisonment of 6 years and 9 months commencing on 12 April 2016 and expiring on 11 January 2023, with a non-parole period of 4 years commencing on 12 April 2016 and a balance of term of 2 years and 9 months. The applicant will be eligible to be released to parole on 11 April 2020. 1. BELLEW J: On 9 September 2016 Joseph Howard ("the applicant") pleaded guilty in the Local Court to a charge that on 7 April 2016, at Mount Druitt, he did send, by throwing, an explosive substance, namely a flammable liquid that was set alight ("the Molotov Cocktail") with intent to burn an unidentified male. That offence is contrary to s 47 of the Crimes Act 1900 (NSW) ("the Act") and carries a maximum penalty of 25 years imprisonment. The applicant adhered to his plea when he subsequently appeared before the District Court for sentence. He also asked the sentencing judge to take into account an offence of riot contrary to s 93B(1) of the Act which he had committed on the same day. 2. On 10 February 2017 the applicant was sentenced to imprisonment for 9 years and 6 months, with a non-parole period of 6 years. He now seeks leave to appeal against that sentence on the grounds more fully set out below. THE FACTS 1. An agreed statement of facts was tendered before the sentencing judge, on the basis of which her Honour found the facts of the offending to be as follows: [21] About 7.18pm on 7 April 2016, thirty to fifty males of islander appearance, Group 1, travelled to Mount Druitt railway station for a planned confrontation with islanders from the Mount Druitt area. Around thirty to fifty people of islander descent, including the offender, in Group 2, were waiting at the Dawson Mall next to the Mount Druitt railway station for Group 1 to arrive. Group 1 exited the train at Mount Druitt and moved up the stairs from the platform to the railway concourse overpass. As soon as Group 2 were aware Group 1 had arrived, they ran up the stairwell and escalators from Dawson Mall to the railway station. The two groups met on the railway overpass. Railway closed-circuit television shows several members of Group 2 armed with weapons. Amongst these weapons were a baseball bat, golf clubs, various poles, knives, a hammer as well as a seat from a bicycle. At least two persons had dustpans on poles and a litter picker and they brandished these as weapons. At least two males of Group 2 brandished Molotov Cocktails, namely bottles containing flammable liquid with a cloth wick. One person ran ahead of Group 2 and jumped to kick at the members of Group 1. The two groups then came together on the overpass at the top of the railway station and clashed immediately. One male with a Molotov Cocktail lit the wick of the weapon as he was running up the stairs. He threw it over the heads of his group towards the opposition. It smashed on the ground in the middle of everyone and sent fire along the floor. The males from Group 2 armed with hammer, poles, and a knife and a bike seat lashed out at Group 1 with these weapons in an aggressive manner. Group 1 started to become overwhelmed and fled. One member stumbled and was struck to the ground and was assaulted by several Group 2 members. Group 1 ran down the walkway to station platform 2 and retreated to the far western end of the platform. Group 2 followed and cornered Group at the end of the platform. As this was occurring, the offender was recorded on closed-circuit television wearing a black hooded jumper with Adidas lettering over the hood, light brown cargo trousers, white sneakers and a red cap. The offender was holding a very large hunting-style knife which he exchanged with a male for an unlit Molotov Cocktail. The offender used a lighter to light the Molotov Cocktail. Once the item was lit he approached the stairwell and threw it down from the upper concourse onto platform 2 where it exploded and started a fire of a radius of a few metres. A male was standing near where the fire started and he ran away. Dozens of the members of Group 1 fled onto the railway tracks and ran down the rail corridor. Over 20 calls were made to triple-0 by persons at the railway requesting police. The police arrived a few minutes after the confrontation between the two groups began. Many people were still in and around the railway station. Both groups chanted and goaded each other. Police issued move along directions and ushered group 1 back on the trains to return home. At about 9.30am on 12 April 2016, the offender was arrested outside his home address. He was wearing the Adidas jumper and white shoes that he wore at the railway station. He participated in an electronically recorded interview with police. The offender admitted that the clothing items that police seized were the items that he wore at the Mount Druitt railway station on the night in question and that he attended there, willing to participate in a brawl with islander males of the 3T Gang from Guildford. He said that he had been drinking at Lidcombe for about an hour in the afternoon of 7 April 2016 before he was driven by friends to Mount Druitt at about 6.00pm. He had been aware two to three days beforehand that the conflict with another group was going to take place that evening. He said he borrowed a hat to wear so that his face would not be recorded on closed-circuit television. He admitted to rushing up the railway stairs with the intention to fight the gang. He said he picked up a knife he found on the ground which he thought had been dropped by a member of Group 1. He said that when the opposing group fled, another male supplied him with a Molotov Cocktail made from a beer bottle containing petrol with a wick in the top. He said this male wanted the knife and they swapped the items. He further stated his friends had prepared Molotov Cocktails in preparation for the brawl. He said he lit the Molotov Cocktail and looked down from the concourse to the platform where the other gang had fled. He then said he spotted a male he believed was the leader of the gang and threw the cocktail at him intending to burn him, knowing that the item would smash and spread burning liquid. No serious physical injuries were caused during the incident. As the two groups came together and fought there were dozens of members of the public using the railway station, the overpass and the platforms. Many of these people are seen on CCTV to flee the violence, have their exit way blocked and be pushed aside. One woman was knocked to the ground and sustained minor injuries. … Furthermore, in the statement of Detective Sparham, he refers to the accused saying during the process of arrest, "The boys looked up how to make the Molotov on YouTube". Detective Sparham said, "So what's it all about?" and the offender said, 'Postcodes, about areas you know". Detective Sparham said, "Between who?" and the offender said, "It's like an inner west and outer west thing". 1. Also tendered before the sentencing judge was a map of Mt Druitt Railway Station, along with two statements of Detective Senior Constable Sparham, annexed to which were a number of still photographs which had been taken from the CCTV footage of the incident. 2. The photographs are particularly informative in assessing the circumstances of the applicant's offending. Those annexed to the first of Detective Sparham's statements establish that having entered the railway station as part of a large group, [22] and having exchanged the knife for the Molotov Cocktail, [23] the applicant ignited the Molotov Cocktail [24] before carrying it through the crowd [25] and making his way to a flight of stairs. Below the stairs was a railway platform and adjacent railway tracks. [26] On the other side of the railway tracks was a second platform [27] ("the far platform"). Whilst he was standing at a point towards the top of the stairs, the applicant threw the Molotov Cocktail [28] in a trajectory which passed over the platform immediately below the stairs and over the railway tracks. [29] It then exploded on the far platform, causing the eruption of two separate fireballs. [30] Although the evidence does not establish the precise distance over which the Molotov Cocktail travelled once the applicant had thrown it, it is evident that it was considerable. It is also evident that there were only two people in the immediate vicinity of the position on the far platform where it landed and exploded, both of whom immediately fled the scene. [31] This is of some significance in light of the applicant's first ground of appeal, to which I will come. 3. In evidence before the sentencing judge, the applicant said [32] that he became involved in the incident as a result of having friends who were members of the "Notorious Family Gang". He said that he was not a member of that gang himself and had never applied to be a member, [33] but had gone to the Mount Druitt Railway Station on this particular evening because he had "friends involved". [34] He told the sentencing judge that having finished work on that day, he had gone to a hotel where he had consumed five or six schooners of beer before catching the train to Mount Druitt "with a few mates" who were members of the gang. [35] When asked what his purpose was in going there, the applicant replied: [36] I was there to, to have their back. 1. When asked why was this was necessary, the applicant said that he did not know. [37] He was then asked: [38] Q. Did you understand there was going to be a confrontation at the railway station? A. Yep. Q. Who was that with? A. With another gang. Q. Do you know the name of the other gang? A. 3T. Q. Sorry? A. 3T. Q. 3T gang. So you left Westfields and went with these three mates to the railway station? A. Yep. Q. What did you do when you got to the railway station? A. By the time we got there, the, the fight started. A lot of people was there and that's where the fight started. Q. When you went to the railway station, did you have any weapon on you? A. Not at that time. Q. Whereabouts did the fight start with the other gang? A. On the concourse. Q. The footage, or the photographs, indicate that at a point in time you're seen with a knife. A. Yep. Q. How did you come into – have that knife? A. I picked it off, off the floor. Q. After you picked it the knife off the floor, what happened then? A. I swapped the knife for the, the Molotov cocktail. Q. You've seen the photographs in the police brief. What did you do once you got the Molotov cocktail? A. I lit it up. Q. This is on the concourse area of the railway station; is that right? A. Yes. Q. Why did you light it up? A. Because I was going to throw it. Q. Where were you going to throw it? A. On the, on the platform. Q. Why were you going to throw it on the platform? A. I was trying to get one of the other gang members. 1. The applicant admitted [39] that when he threw the Molotov Cocktail he was "trying to get one of the other gang members". In the course of further cross-examination, the applicant said the following: [40] Q. You know that with previous matters, you have some problem with alcohol? A. Yes. Q. So at the time you took the alcohol, you knew then that you are going to help your friends? A. Yes. Q. So you deliberately took alcohol, am I right? You deliberately went to the pub and consumed alcohol because you know that you are going to help some friends. A. Yes. Q. You know from your friends that there's going to be trouble? A. Yep. Q. Why didn't you contact the police? Lidcombe Station is very close to the pub. Why didn't you go to the police and say 'there's going to be trouble can you help?' A. I don't know. Q. Why? You said you wanted to help your friend, am I right? A. Yeah. Q. And you knew then, before you started drinking, there's going to be trouble, why didn't you go to the police saying 'my friends advised me there's going to be trouble, can you help us?' A. No comment to that. Q. Sorry? A. I don't want to – no comment to that. Q. You know that you wanted to take it in your own hands am I right? A. Yes. 1. Her Honour then intervened: [41] Q. That's why you were going there, wasn't it, to back up your mates. You knew there was going to be a confrontation. You got the Molotov cocktail. Wasn't that precisely what you wanted to do? A. No, I made a wrong choice. I was – yeah – I made wrong choice, your Honour. Q. It wasn't a spur of the moment thing, though, was it? A. (No verbal reply). Q. Was it? A. No your Honour. Q. It says in the material you knew for some three days about this confrontation being planned. Is that correct? A. Yes. The objective seriousness of the offending – findings of the sentencing judge 1. In assessing the objective seriousness of the offending [42] the sentencing judge made the following findings, none of which were challenged before this Court: 1. the seriousness of the offending was informed by the maximum penalty of 25 years which rendered it "very serious" because it necessarily involved an intention to burn, maim, disfigure, disable, or do grievous bodily harm; [43] 2. the Form 1 offence was itself a serious offence, as indicated by the maximum penalty of 15 years imprisonment; [44] 3. the applicant lit the Molotov Cocktail and then threw it, knowing it to be alight, across a considerable distance and over the heads of other people; [45] 4. the applicant threw the Molotov Cocktail in a way which allowed it to gather momentum, resulting in an enhancement of its explosive effect; [46] 5. once the Molotov Cocktail was thrown it was not possible to control it, rendering its ultimate effect indiscriminate; [47] 6. the position from which the applicant threw the Molotov Cocktail was such that his view of the crowd below was partially obscured, giving rise to the risk that although his intention was to burn a particular person whom he thought was a leader of the other gang, his actions could well have burned and injured other people; [48] 7. the applicant intended to burn a person whom he thought was the leader of the opposing gang, which left that person open to a risk of sustaining a range of injuries; [49] 8. the applicant had attempted to disguise his face after throwing the Molotov Cocktail, an indication that he was fully aware of the seriousness of his offending; [50] 9. the applicant's actions were committed in the presence of numerous people and gave rise to a set of circumstances which were highly dangerous, which involved considerable risk, and which resulted in people having to flee so that they would not be injured; [51] 10. the offending occurred at 7:18pm on a Thursday night when it was expected that there would be many members of the public using the Railway Station who were not in any way involved in the riot, and who were entitled to be free to use the public transport system with a measure of safety [52] ; 11. the offending had occurred in the context of a gang confrontation, about which the applicant had become aware some days in advance; [53] 12. the applicant clearly had an opportunity to think about what he was doing because he had known about the confrontation for some days previously; [54] 13. the applicant had consumed a considerable amount of alcohol before attending the railway station, and in circumstances where he had previously been dealt with in the Children's Court in respect of charges which were alcohol related, he should have realised that drinking alcohol and engaging in public or group violence was a dangerous matter; [55] 14. although there was no plan to use the Molotov Cocktail, the applicant knew that members of the gang that he was there to support had such items; [56] 15. the offending was considerably above the mid-range level; [57] 16. there was a need to send a general message to the community that offending of this kind would not be tolerated. [58] The applicant's subjective case 1. A pre-sentence report was before the court which noted: [59] Mr Howard identified alcohol as a contributing factor to his offending behaviour and whilst he acknowledged the negative impact his decision had on his family, he failed to express any remorse for the victims or witnesses. Instead he placed emphasis on the importance of his relationship with his peers. Mr Howard has not addressed his pro-criminal attitudes whilst in custody. This is displayed through continued violent and anti-social behaviour, with three recorded misconducts for fighting. This is contrary to his identified willingness to comply with supervision and engage in intervention to address his behaviour. 1. The author of the report assessed the applicant as being at a medium risk of re-offending, [60] and concluded [61] that he had expressed "a superficial willingness" to comply with supervision and intervention in the event that he were to be supervised in the community. 2. In the course of his evidence, the applicant said [62] that he was the eldest of seven children ranging in ages from 18 to 11 months. He left school part way through Year 11 and commenced an apprenticeship as a bricklayer which he did not complete. He then worked as a scaffolding labourer and a warehouse attendant. [63] 3. The applicant agreed that his offending had placed innocent people in danger [64] . He acknowledged that he had "a problem with alcohol" [65] and that he had consumed alcohol before going to the Railway Station with his friends He expressed a willingness to accept a referral to drug and alcohol counselling, as well as a referral to programs designed to address violent and aggressive behaviour. [66] When asked how he felt about his offending, the applicant said: [67] I just, I just want to say sorry to whoever was there. So I could've hurt some innocent people and – yeah. 1. Also tendered on sentence was a letter from the applicant's parents. They described him as "responsible, trustworthy and loving" in his home environment, and as a person who played a significant and positive role in assisting with the care of his younger siblings. It is evident from the contents of that letter that the applicant continues to enjoy the support of his family. Also before the Court was a letter from the applicant's former employer who said that he was in a position to offer the applicant full-time employment in his business upon his release. A testimonial from Samuelu Brunt was also tendered which made reference to the applicant having the benefit of positive influences within a strong support network of family, friends and community and church leaders who would be able to assist him upon his release. 2. The applicant's reference in his evidence to having a "problem with alcohol" [68] was (at least in part) a reference to an incident on 6 June 2015 which saw him charged with offences of assault occasioning actual bodily harm in company, and affray. The facts in relation to that offending were before the sentencing judge. In summary, the victim of that offending was at the Mount Druitt Railway Station with a friend late one evening. The applicant and a number of youths approached the victim as he was leaving the station and walking to an adjoining bus terminal. One of them demanded a cigarette from the victim. When the victim did not comply with that demand, the applicant and his co-offenders surrounded the victim and his friend. Fearful for his safety, the victim attempted to walk to a nearby shop but was chased by the applicant and his co-offenders who surrounded him again. At that stage the victim yelled "I have kids, leave me alone". 3. The applicant and his co-offenders then chased the victim and punched him a number of times to the head. One of those present then pulled the victim to the ground, at which time the applicant and one of the co-offenders kicked him several times to the body. As a consequence of the assault, the victim sustained injuries to his nose, eyebrow, right and left eye sockets and elbow. 4. These charges were dealt with in the Children's Court on 7 August 2015. The applicant was given the benefit of a probation order pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 ("the CCPA") for a period of 12 months. The present offending was thus committed within the applicant's probation period. The sentencing judge regarded that as an aggravating factor which was relevant to his moral culpability. [69] The applicant's subjective case – findings of the sentencing judge 1. Her Honour found that there were "strong subjective features" [70] in the applicant's case. She noted that the applicant was 27 days into his adulthood when he committed this offence and concluded that although he was not a child, it was necessary to acknowledge that had the offending occurred a short time earlier, the provisions of s 6 of the CCPA would have applied. [71] However, her Honour found that there was a need for personal deterrence in light of the matters for which the applicant had been sentenced in the Children's Court. [72] 2. Her Honour acknowledged [73] that the applicant's youth rendered issues of rehabilitation important, and she took into account that there was employment available to him upon his release. [74] Her Honour found [75] that the applicant's family supported him and would continue to do so upon his release from custody, all of which, she concluded, enhanced his prospects of rehabilitation. [76] Her Honour reiterated [77] that the applicant's youth was a factor which placed an emphasis on rehabilitation, and accepted the submission that the pro-social networks available to him, together with the availability of paid employment on release, enhanced his prospects in that regard. [78] She specifically referred to the applicant's expressed remorse, which she obviously accepted as genuine. [79] She also took into account his plea of guilty and concluded that it entitled him to a discount of 25%. [80] 3. Her Honour concluded that the offending was mitigated by the absence of any significant record of previous convictions. [81] She concluded that the applicant's youth and his favourable prospects of rehabilitation supported a finding of special circumstances. [82] THE GROUNDS OF APPEAL GROUND 1 – The sentencing judge erred in failing to have regard to the applicant's assistance to the authorities. The applicant's admissions 1. When arrested, the applicant admitted that: [83] 1. the clothing he was wearing at the time of his arrest and his interview with police was the same clothing as he had worn on the night of the offending; 2. he had attended the Mount Druitt Railway Station willing to participate in a confrontation with a number of islander members of the "3T gang"; 3. he knew two to three days prior to the confrontation taking place that it had been arranged; 4. he had consumed alcohol prior to going to the Railway Station; 5. he had borrowed a hat so that his face would not be recorded on CCTV; 6. he picked up a knife that he had he found on the ground in the vicinity of the railway station; 7. another male had supplied with him the Molotov Cocktail, made from a beer bottle containing petrol with a wick in the top, which he had accepted because the other male wanted the knife; and 8. he saw the male that he believed was the leader of the opposing gang and threw the cocktail at him, intending to burn him. The sentence proceedings 1. In the course of making submissions to the sentencing judge, the applicant's solicitor emphasised the importance of the applicant's admissions to police. This prompted the following exchange with the sentencing judge: [84] Solicitor: Can I say this, this is coupled with, when he is arrested and interviewed, he does make full and frank admissions in the interview to the police about his role. It's correctly recorded in the facts about his admissions, in terms of getting there, exchanging the knife for cocktail, lighting the cocktail, throwing the cocktail, and why he threw it. That's contained in the – Her Honour: But the police already had the CCTV didn't they? Solicitor: They did. Her Honour: It's pretty overwhelming. Solicitor: They did. I suppose – Her Honour: He still gets the benefit for those admissions. The reasons of the sentencing judge 1. In the course of her sentencing remarks, the sentencing judge said: [85] …It was his mother who appropriately seems to have persuaded her son to be frank about the matters and I will take that into account as a favourable circumstance in these sentencing proceedings. The offender made admissions upon being arrested. His mother did him a favour because that will add into the balance, the fact that he was prepared to make admissions. To be clear, the CCTV footage is such that the offender in my view was faced with an overwhelming case against him. The fact that he was prepared to be frank with the police at the start, as persuaded by his mother, assists him, even although the police were going the catch up with him in any case. Submissions of the applicant 1. Counsel for the applicant took no issue with the sentencing judge's conclusion that in light of the CCTV footage of the incident, police would have apprehended the applicant in time. Counsel also accepted that the police were well placed, on the basis that footage, to establish that the applicant was the person who threw the Molotov Cocktail. However, counsel submitted that the applicant's admission that he threw it in the direction of a particular person whom he believed to be the leader of the rival gang, and that he did so with intention of burning him, was significant in light of the specific intention required by s 47 of the Act. 2. Counsel submitted that of themselves, the CCTV footage and the photographs taken from it said little about the applicant's intention in terms of the specific requirements of s 47. He submitted, in particular, that had the applicant remained silent when spoken to by police, his intention when he threw the cocktail would have been difficult to establish beyond reasonable doubt. Counsel submitted that it was the applicant's admissions which had made the case against him overwhelming, and that such admissions fell within s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"). He submitted that the sentencing judge had erred in failing to take those admissions into account by reference to that provision. Submissions of the Crown 1. The Crown emphasised that at no stage of the sentence proceedings was it submitted to the sentencing judge that the applicant's admissions fell within s 23 of the Sentencing Act, such that her Honour should deal with them in that way. The Crown further submitted that in any event, the evidentiary basis of the applicant's submissions in support of this ground was misconceived, and that even absent his admissions, there was an overwhelming inference available from the entirety of the evidence that the applicant intended to burn one of the two persons in whose immediate vicinity the Molotov Cocktail had exploded. 2. The Crown emphasised that the photographs taken from the CCTV footage clearly showed the applicant approaching the platform stairs with the lit Molotov Cocktail in his hand, in circumstances where the two men were clearly visible to him on the far platform. The Crown submitted that those photographs showed the applicant leaning over the side of the stairs, before throwing the lit Molotov Cocktail towards the two men, causing them to flee when it landed and exploded. The Crown also pointed to the fact that immediately after throwing the Molotov Cocktail, the applicant had taken steps to disguise himself by pulling the hood of the top that he was wearing over his cap, before running out of the station through the ticket barrier. It was submitted that those actions, coming as they did immediately after throwing the cocktail, were evidence of the applicant's consciousness of guilt. 3. Finally, the Crown submitted that even if it were accepted that the applicant's admissions fell within s 23 of the Sentencing Act, a reduction in sentence was not automatic, and that it remained within her Honour's discretion to decline to allow any specific discount. The Crown submitted that there was no evidence from the authorities which evaluated the significance of the applicant's admissions, [86] and that the applicant had made those admissions only after he was arrested. [87] The Crown also submitted that there was no evidence that the applicant would suffer harsher custodial conditions in light of his admissions [88] or that any injury had been occasioned to the applicant or his family as a consequence of his admissions. [89] Consideration 1. Section 23 of the Sentencing Act is in the following terms: Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons--state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence. 1. In Zreika v R [90] Johnson J observed that when hearing an appeal against sentence, this Court is reviewing the exercise of a discretionary judgment, not re-hearing a plea in mitigation. An appeal against sentence is therefore not the occasion for the revision and reformulation of the case which was presented below. This Court will not lightly entertain arguments that could have been advanced on the plea at first instance, but were not. [91] 2. While the applicant's admissions clearly fell within s 23, it was never put to the sentencing judge that they should be dealt with by reference to that provision. There is, necessarily, a difficulty in coming before this Court and taking issue with the fact that a sentencing judge did not take a particular course, in circumstances where it was not submitted that such a course should be taken. That difficulty is rendered even greater in the present case by virtue of the fact that on two separate occasions during the course of delivering the sentencing remarks, the sentencing judge gave the parties an opportunity to make further submissions about any issue. [92] Significantly, both of those opportunities came after the sentencing judge had made it clear that she proposed to take the applicant's admissions into account as part of his overall subjective case [93] . The failure of the applicant's solicitor to make submissions when given the opportunity to do so simply highlights the fact that the applicant is now seeking to conduct his case before this Court in a manner which is materially different to that in which it was conducted before the sentencing judge. 3. Johnson J also pointed out in Zreika [94] that a criminal appellate Court will remain able to correct a miscarriage of justice in the clear and rare cases where a relevant matter has not been relied upon at first instance. It is apparent from the submissions made to the sentencing judge in the present case that the applicant's admissions were relied upon as part of his overall subjective case. That is how her Honour took them into account. In these circumstances, there is no miscarriage of justice. 4. Moreover, and in any event, I am not satisfied that the applicant's admissions carried the significance which has been suggested. Absent such admissions, the Crown case on intention was a circumstantial one, necessitating the evidence being viewed as a whole. Adopting that approach, the evidence was, in my view, sufficient to sustain an inference that the applicant had the requisite intention. 5. The photographs taken from the CCTV footage established the applicant's conduct which I have previously set out. [95] Those photographs were, in my view, compelling. They established (inter alia) that the only people who were in the immediate vicinity of the Molotov Cocktail when it landed and exploded into fireballs were the two people who were pictured fleeing. [96] That circumstance tends wholly against the proposition that the applicant threw the Molotov Cocktail in some random fashion, without aiming it at a particular person or persons. Rather, when considered with all of the other evidence, it points, in my view unequivocally, to the applicant throwing the Molotov Cocktail in a specifically targeted fashion, and with the requisite intention set out in s 47. 6. For these reasons this ground is not made out. GROUND 2 – The sentence imposed upon the applicant is manifestly excessive Submissions of the applicant 1. Counsel for the applicant emphasised the applicant's youth, particularly the fact that he had turned 18 years of age less than one month prior to the commission of the offence. Counsel submitted that it was necessary to bear firmly in mind the principles applicable to the sentencing of youthful offenders. He submitted, in particular, that there was little or no need for any sentence to incorporate an element of personal deterrence. 2. In oral argument before this Court, counsel for the applicant submitted that the applicant's immaturity "must have" contributed to his offending. [97] When asked to articulate the evidence relied upon to support that proposition, counsel cited: 1. what he described as the "situation as it pertained on the railway platform"; 2. the applicant's intoxication; and 3. what he described as the impulsivity and "madness" of the applicant's conduct which, he submitted, indicated that the applicant had given his conduct "no thought". [98] 1. In advancing these submissions, counsel expressly acknowledged that the applicant went to the scene knowing that there would be a confrontation. However, he emphasised that there was no evidence that the applicant had gone to the scene planning to be equipped with a Molotov Cocktail, and submitted that the evidence clearly established that the applicant had only come into possession of the Molotov Cocktail shortly before throwing it. 2. Further, in circumstances where the sentencing judge had made extensive reference to sentences imposed in other cases of offending against s 47, counsel submitted that it was notable that in each of those cases substantial physical violence had been inflicted on the victims, and significant planning had been entered into beforehand. Counsel submitted that none of these matters were characteristics of the applicant's offending. 3. All of these factors, it was submitted, pointed to a sentence which was manifestly excessive. Submissions of the Crown 1. The Crown firstly pointed to the maximum penalty for the offending, namely 25 years imprisonment. It was submitted that in circumstances where the sentencing judge had reached the unchallenged finding that the offending fell above the mid-range level, the sentence imposed was wholly consistent with that finding, and was within the proper range of sentencing discretion. The Crown also pointed to the unchallenged findings of the sentencing judge regarding the applicant's conduct, and emphasised that his offending was aggravated by the fact that he was, at the time, on conditional liberty for the previous offences of affray and assault occasioning actual bodily harm. The Crown emphasised that those offences had also involved a display of public violence, committed as part of a group, in circumstances where the applicant had consumed a considerable amount of alcohol beforehand. 2. The Crown also relied upon the exchange between the applicant and the sentencing judge, in the course of which her Honour had put questions to the applicant concerning the impulsivity or otherwise of his conduct. [99] The Crown submitted that properly construed, the applicant's answers to those questions amounted to an admission that his act of throwing the Molotov Cocktail was planned. 3. The Crown took particular issue with the proposition that personal deterrence was of little significance in sentencing the applicant. The Crown submitted that the fact that the applicant had received the benefit of a finding of good character, and a finding that he had reasonable prospects of rehabilitation, did not mean that personal deterrence was of limited weight. It was submitted that personal deterrence remained a significant consideration in light of the applicant's past offending. 4. The Crown further submitted that there was nothing specific in the applicant's subjective case which supported a conclusion that the sentence was manifestly excessive. To the extent that counsel for the applicant had relied on youth as a mitigating factor, the Crown submitted that it was clear that her Honour had taken into account to all of the relevant principles in that regard, and had factored those matters into the determination of the sentence she imposed. The Crown also pointed out that the applicant had been the beneficiary of a finding of special circumstances which, it was submitted, was a further indication that her Honour had taken into account the applicant's youth. 5. Finally, the Crown submitted that none of the authorities referred to by the applicant established a sentencing range which assisted him. Consideration 1. In order to establish manifest excess, the applicant must demonstrate that the sentence is unreasonable or plainly unjust. [100] In Hughes v R [101] this Court (Payne JA, Hulme and Garling JJ) summarised the relevant principles as follows: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust. 1. The gravity of the applicant's offending cannot be understated. He knew, some days in advance, that a violent confrontation between rival gangs was to take place at a public railway station. It was in those circumstances that he chose to be present. As I have noted, [102] when asked why he did so the applicant said (in reference to his friends) that he was there to "have their back". The reality is, as the applicant later conceded in his evidence, [103] that he went to the scene, in an intoxicated state, knowing that a confrontation was going to take place. Having arrived at the scene he decided (on his own admission) to take things into his own hands [104] by throwing a lit Molotov Cocktail with the intention of burning a person whom he thought was the leader of the rival gang. 2. It is also significant that the confrontation in which the applicant chose to become involved took place at approximately 7.18pm on a Thursday evening, a time at which it could be reasonably expected that there would be a large number of members of the public in and about a suburban railway station. The applicant obviously knew that to be the case. He must also have known that there was, as a consequence, a high risk of injury being inflicted upon innocent members of the community who were doing no more than going about their daily routine. 3. Although the applicant had obviously planned, over some days, to go the Railway Station in the circumstances I have outlined, I am unable to accept the Crown's submission that his answers to questions put to him by the sentencing judge [105] amounted, in effect, to an admission that his act of throwing the Molotov Cocktail was planned over a similar period. When read as a whole, the answers given by the applicant to the questions put by the sentencing judge amount to a concession that his attendance at the scene (as opposed to his act of throwing the Molotov Cocktail) was not a spur of the moment decision. As counsel for the applicant pointed out, the evidence establishes that the applicant came into possession of the Molotov Cocktail only after he arrived, and as a consequence of swapping it for a knife which he had found, apparently by chance, on the ground. 4. Equally however, I am unable to accept the submission of counsel for the applicant that that the applicant's act of throwing the Molotov Cocktail was impulsive, and something to which he gave no thought. The evidence establishes that having arrived at the railway station, the applicant walked up the concourse stairs at 19.19pm. [106] He was seen making his way towards the stairs from which he threw the Molotov Cocktail at 19.21.39. [107] It was within that period that the applicant acquired the Molotov Cocktail and lit it. [108] It is clear that having acquired the Molotov Cocktail, the applicant made a conscious and informed decision to light it, carry it through the crowd, take up a positon on the stairs, look down, aim the Molotov Cocktail at a specific person who was some distance away, and throw it in that person's direction with the intention of burning him. Although the evidence does not establish the precise period of time over which all of that occurred, it is evident that it was several minutes. That does not bespeak an impulsive act, or an act devoid of thought. 5. Further, the applicant had consumed a significant amount of alcohol in the hours leading up to the incident. He must have known, if only from the previous charges which had been dealt with in the Children's Court, that there was a connection between his excessive consumption of alcohol and his propensity to act violently. In these circumstances, I am unable to accept the submission of counsel for the applicant that personal deterrence was not a relevant consideration on sentence. It was also necessary for any sentence imposed to carry with it a strong element of general deterrence. Organised gang violence, of any kind and at any level, is antithetical and repugnant to any ordered and civilised society. This is particularly so when such violence places the safety of innocent members of the community in jeopardy. 6. In both written and oral submissions, counsel for the applicant emphasised the applicant's youth at the time of committing the offence. The applicant turned 18 years of age on 11 March 2016. The offending occurred on 7 April 2016, less than one month later. Because of the significance which this factor assumed, both before the sentencing judge and before this Court, it is necessary to re-state the principles which govern the sentencing of youthful offenders, and analyse those principles as they apply to the present case. 7. In KT v R [109] McClellan CJ at CL summarised the principles as follows: (i) considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation (at [22]); (ii) the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age (at [23]); (iii) where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult (at [23]); (iv) although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct (at [24]); (v) the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence or considerable gravity (at [25]); (vi) in determining whether a young offender has engaged in "adult behaviour", the Court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society (at [25]); (vii) the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. A 'child- offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth (at [26]). 1. In BP Hodgson JA generally accepted the correctness of those principles and emphasised three additional matters, namely: 1. where emotional immaturity, or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating his or her culpability; [110] 2. whilst the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, such that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18. This is because emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be developed until the situation as it pertained on the railway platform early to mid-20's. In making these observations, his Honour noted that youth may be a material factor in sentencing even a 19 year old for a most serious crime; [111] and 3. Courts should not be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour, or acted as an adult. [112] 1. Hodgson JA also observed [113] that the offending in that particular case did not involve significant planning or reflection, or any other indicia of mature decision-making. For the reasons I have already set out, [114] this was not the position in the case of the applicant's offending. 2. In the same case, Johnson J, having set out the principles summarised by McClellan in KT, said: [115] … [t]he law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. The law considers youth and not just biological age. Where immaturity of an offender is a significant contributing factor to the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. 1. More recently in HJ v R [116] Garling J (with whom Hoeben CJ at CL and R S Hulme AJ agreed) said: It is undoubted that the youth of an offender is a relevant factor to be considered in assessing what sentence ought be imposed. The Court makes an allowance for the youth of the offender because immaturity is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years. [117] 1. Bearing these principles in mind, I am unable to accept the submission that immaturity played a part in the applicant's offending. This is so for a number of reasons. 2. To begin with, and contrary to the tenor of the submissions of counsel for the applicant, it is does not follow from the fact that an offender is youthful that immaturity "must have" contributed to the offending. None of the cases to which I have referred stand as authority for that proposition. There must be some evidentiary basis for such a finding. That evidentiary basis may, for example, take the form of expert opinion [118] . Whilst I do not suggest that the absence of expert opinion precludes a finding that immaturity was a contributing factor to particular offending, it remains the case that there was no such evidence was put before the sentencing judge in the present case. 3. Moreover, such evidence as there was in the present case tended against a finding that immaturity played any significant part in the applicant's offending. For example, the letter from the applicant's parents which was before the sentencing judge made reference to (inter alia) the fact that the applicant was, in his domestic setting, responsible and trustworthy, and acted as something of a role model to his younger siblings. The letter also attested to the self-discipline displayed by the applicant in the course of his employment prior to his arrest. Such references are somewhat at odds with a finding that the applicant was immature. 4. Further, I am unable to accept that the specific matters relied upon by counsel for the applicant [119] supported a finding that immaturity played any part in the offending. In circumstances where the applicant had made a conscious decision, some days in advance, to attend what he knew would be a violent riot, the "situation as it pertained on the railway platform" does not suggest that immaturity played any part in the offending. On the contrary, the applicant's attendance at the Railway Station reflects adult-like behaviour, and considerable forethought. Similarly, the applicant's intoxication is not, per se, indicative of immaturity having contributed to his offending. Finally, as I have discussed, [120] this was not a case in which the applicant gave his offending no thought. 5. In R v Mastronardi [121] Sully J observed: ….. [y]outh - whether it is real, or merely comparative, or defined with a generous elasticity - is not a cloak of convenience behind which, relevantly, those who deliberately engage in armed robbery can shelter from the just consequences of their conduct. 1. Whilst his Honour's observations as to an offender's youth were made in the context of an offence of armed robbery, they are no less apt in a case involving gang violence. 2. The applicant was entitled to have his youth taken into account. The sentencing judge clearly did so. The seriousness of the applicant's offending, which her Honour quite properly assessed as being considerably above the mid-range, was relevant to the emphasis that could be given to the applicant's youth. Where offending is as serious as it was in the present case, retribution and deterrence cannot give way entirely, or even substantially, to the interests of rehabilitation. [122] 3. I have had regard to the sentences imposed in the cases to which the sentencing judge referred. [123] Those cases do not establish a sentencing range for the purposes of this offending. None of them involved gang violence. None of them involved conduct which put the safety of a large number of the community at risk. They do not, in my view, support a conclusion that the sentence was manifestly excessive. The sentence imposed was entirely consistent with her Honour's unchallenged findings. 4. Finally, I note that in respect of the Form 1 matter, the sentencing judge said the following: [124] I am of the view here that the circumstances of the riot are so inextricable from the circumstances of the primary offence, that is the s 47 offence, and that the surrounding circumstances of the riot have informed the criminality of the s 47 offence, that the fact of it being placed on a Form 1 does not add an additional aspect. In other words, the criminality involved in the riot is so inextricably a part of the context of the s 47 offence, and I have taken those circumstances of the riot into account in coming to a view about the gravity of the s 47 offence. 1. The point of the Form 1 process is to impose a longer sentence than would have been imposed had the primary offence stood alone. It involves a sentencing court taking into account a matter (or matters) for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the principal offence. The court does so by giving greater weight to two elements, namely the need for personal deterrence and the entitlement of the community to extract retribution for serious offences, when there are other offences for which no punishment has in fact been imposed. [125] Whilst it is the case that the offence to which the applicant pleaded guilty was committed in the course of the riot offence which was on the Form 1, the fact remains that the riot offence was, as her Honour acknowledged, serious in itself. [126] In my view, her Honour's approach to the Form 1 in the present case was somewhat generous to the applicant. 2. For all of these reasons, this ground is not made out. 3. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. ********** Endnotes 1. At [38]. 2. At [39]-[42]. 3. At [44]-[51]. 4. At [43]. 5. At [65]. 6. R v AA [2017] NSWCCA 84 at [43]. 7. At [67]. 8. At [67]-[68]. 9. At ROS p 21. 10. At ROS p 19. 11. At ROS p 26. 12. At [93]-[98]. 13. BP v R [2010] NSWCCA 159. 14. At [93]. 15. At [93]. 16. At ROS 23. 17. At [42]. 18. At T15. 19. At [91]. 20. At [81]. 21. Commencing at ROS 1. 22. Photographs 7, 8 and 10. 23. Photographs 11, 14 and 15. 24. Photograph 19. 25. Photographs 20 and 22. 26. Photographs 24 and 26. 27. Photograph 26. 28. Photographs 26 and 29. 29. See the photograph and diagram annexed to Detective Sparham's statement of 23 January 2012. 30. Photograph 33. 31. Photographs 34 and 35. 32. Commencing at T6.32. 33. T6.46-T6.50. 34. T7.1-T7.4. 35. T7.6-T7.36. 36. At T7.41. 37. T7.45-T7.46. 38. Commencing at T7.48. 39. At T8.48 – T8.49. 40. Commencing at T11.22. 41. Commencing at T13.19. 42. Commencing at ROS 5. 43. At ROS 5. 44. At ROS 5. 45. At ROS 7-8. 46. At ROS 6. 47. At ROS 7. 48. At ROS 8-9. 49. At ROS 6-7. 50. At ROS 9. 51. At ROS 7-8. 52. At ROS 9. 53. At ROS 7. 54. At ROS 9. 55. At ROS 9-10. 56. At ROS 18. 57. At ROS 19. 58. At ROS 20. 59. At p. 2 60. At p. 2. 61. At p. 3. 62. T6.22-T6.30. 63. T5.21-T6.20. 64. T14.19-T14.21. 65. T13.37-T14.7. 66. Commencing at T10.10. 67. T9.5 – T9.8. 68. At [47] above. 69. At ROS 27. 70. At ROS 19. 71. At ROS 19. 72. At ROS 20. 73. At ROS 20-21. 74. At ROS 21. 75. At ROS 22. 76. At ROS 22-23. 77. At ROS 24. 78. At ROS 24-25. 79. At ROS 24-25. 80. At ROS 24. 81. At ROS 25. 82. At ROS 26. 83. Set out in the written submissions of the Applicant at para. 14. 84. Commencing at T19.01. 85. At ROS 21. 86. Section 23(2)(b). 87. Section 23(2)(e). 88. Section 23(2)(g). 89. Section 23(2)(h). 90. [2012] NSWCCA 44; (2012) 223 A Crim R 460. 91. At [81]. 92. At ROS 27 and ROS 32. 93. At ROS 21. 94. At [82]. 95. At [38] above. 96. Photographs 34 and 35. 97. T10.3-T10.4. 98. T10.8-T10.11. 99. At [42] above. 100. Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]. 101. [2018] NSWCCA 2 at [86] 102. At [39] above. 103. At [41] above. 104. At [41] above. 105. At [42] above. 106. Statement of Det. Sparham dated 26 April 2016 at para. 8; photograph 8. 107. Statement of Det. Sparham dated 26 April 2016 at para. 23; photograph 22. 108. Photographs 11, 14, 15, 16, 19, 20 and 22. 109. [2008] NSWSC 51; (2008) 182 A Crim R 571 at [22] and following 110. At [4] citing TM v R [2008] NSWCCA 158 at [33]-[36]. 111. At [5]. 112. At [6]. 113. At [6]. 114. At [81]-[82] and [84] above; [93]-[95] below. 115. At [75]. 116. [2014] NSWCCA 21 at [56]. 117. Citing R v Hearne [2001] NSWCCA 37 at [25]. 118. See for example Clarke-Jeffries v R [2019] NSWCCA 56 at [50]. 119. At [71] above. 120. At [84] above. 121. [2000] NSWCCA 12; (2000) 111 A Crim R 306 at [20], Simpson and Grove JJ agreeing. 122. JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55 at [108] per Simpson J. 123. These include R v Dinh [2010] NSWCCA 74; (2010) 199 A Crim R 573; Browning v R [2015] NSWCCA 147. 124. At ROS 26. 125. Attorney-General's Application under s 37 Crime (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [29]; [35]; [39]; [42]-[43]. 126. At ROS 5. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2019

Howard v R [2019] NSWCCA 109

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Howard v R [2019] NSWCCA 109

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