AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 29 September 2020

TF v R

[2020] NSWCCA 248

Assault & violenceTheft & property
CRIME SENTENCE APPEAL AGAINST SEVERITY ARMED ROBBERY MULTIPLE OFFENCES IN COMPANY YOUTH

Citation: TF v R [2020] NSWCCA 248
Court: NSW Court of Criminal Appeal
Date: 29 September 2020
Judge(s): Basten JA; Rothman J; Price J

Background

The applicant, TF, was 20 years old at the time of the appeal. He had pleaded guilty to a series of offences committed in January 2018, shortly before his eighteenth birthday, including five armed robberies and an aggravated taking of a motor vehicle with a person inside. A statutory suppression order prohibited publication of material identifying him.

In August 2019, the Campbelltown District Court sentenced TF to an aggregate term of 10 years' imprisonment, commencing 16 February 2018, with a non-parole period of five years. The offences were committed in company with other offenders, and the sentencing judge described several of the armed robberies as mid-range in objective seriousness.

TF applied for leave to appeal against the severity of the sentence, raising three grounds: that the sentencing judge overlooked or rejected relevant childhood disadvantage; that the judge failed to properly apply sentencing principles relating to low cognitive functioning; and that the overall sentence was manifestly excessive for a young offender with low cognitive ability.

  • Whether the sentencing judge failed to take adequate account of the applicant's disadvantaged childhood, including exposure to violence and substance abuse during formative years.
  • Whether the sentencing judge properly applied sentencing principles relevant to an offender with low cognitive functioning and general immaturity.
  • Whether the aggregate sentence of 10 years with a five-year non-parole period was manifestly excessive in all the circumstances.
  • Whether the structure of the sentence, particularly the balance of term (five years) relative to the non-parole period, was disproportionate.

Decision

Ground 1 (Childhood disadvantage): The Court found no error in the sentencing judge's treatment of the applicant's childhood. The evidence of disadvantage relied primarily on the applicant's own account to a forensic psychologist, which was unconfirmed by Juvenile Justice reports or by evidence from family members interviewed during that process. The sentencing judge had expressly found that three co-offenders had dysfunctional upbringings warranting a reduction in moral culpability, and his deliberate omission of the applicant from that finding demonstrated that he had considered and rejected the claim rather than overlooked it.

Ground 2 (Low cognitive functioning): The Court accepted that the sentencing judge had acknowledged the applicant's low cognitive functioning. The ground of appeal argued that this factor, combined with the applicant's youth and immaturity, was not given adequate weight. Rothman J examined the relevant principles governing sentencing of young offenders with cognitive limitations, including the reduced weight to be given to general deterrence in such cases and the heightened emphasis on rehabilitation.

Ground 3 (Manifest excess and sentence structure): While the Court found that the total head sentence was not manifestly excessive given the gravity and number of the offences, it identified a significant problem with the structure of the sentence. The balance of term, being the period between the end of the non-parole period and the end of the head sentence, was five years. The Court found this balance excessive and disproportionate. A lengthy balance of term creates a risk of the offender serving the entirety of the head sentence without any supervisory support in the community, which is inconsistent with the purposes of a structured sentence for a young offender. The Court resentenced TF with an adjusted structure.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentencing judge's silence on a particular matter does not automatically establish that the matter was overlooked. Where the judge expressly applied a finding to some co-offenders but not others, the Court of Criminal Appeal treated the omission as deliberate and reasoned, not as an error.

  • Childhood disadvantage invoked under the principles affirmed in Bugmy v The Queen (2013) 249 CLR 571 requires adequate evidentiary foundation. Self-reporting to a forensic psychologist, without corroboration from independent sources such as Juvenile Justice reports, may be insufficient to engage the relevant mitigating principles.

  • Where a young offender has low cognitive functioning, sentencing courts are required to address the specific principles governing that characteristic, including the reduced significance of general deterrence and the increased importance of rehabilitation.

  • The structure of a custodial sentence, not merely its length, is a proper subject of appellate review. An excessively long balance of term relative to the non-parole period can constitute a sentencing error, particularly for young offenders, because it increases the prospect of the offender being detained for the full term without supervised reintegration into the community.

  • In dismissing grounds 1 and 2 but finding error in sentence structure, the Court of Criminal Appeal confirmed that an appeal against severity may succeed on structural grounds even where the total length of the sentence is upheld as appropriate.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A, 19
- Crimes Act 1900 (NSW), ss 97, 98, 112(1)(a), 154C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Kennedy v R [2010] NSWCCA 260
- Kentwell v R (No 2) [2015] NSWCCA 96
- R v AN [2005] NSWCCA 239
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v LNT [2005] NSWCCA 307
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- Taylor v The Queen [2018] NSWCCA 255
- Yildiz v R [2020] NSWCCA 69