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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: Court of Criminal Appeal
Date: 29 September 2020
Judge(s): Basten JA, Rothman J, Price J

Background

The applicant, TF, was 17 years old when he participated in a spate of armed robberies at petrol stations and other locations across the Sydney metropolitan area in January and February 2018, shortly before his eighteenth birthday. The offences involved weapons, disguises, violence, and were committed in company. One particularly serious incident involved the armed robbery of an Uber driver, who was threatened with a knife, cut, and forced from his own vehicle. The offences were motivated by financial gain to fund drug habits.

In August 2019, the applicant was sentenced in the Campbelltown District Court to an aggregate term of 10 years imprisonment with a non-parole period of 5 years, commencing 16 February 2018. The sentencing judge applied a 25% discount for the utilitarian value of an early guilty plea, found special circumstances, and ordered that the sentence be served as a juvenile offender until the applicant turned 21.

TF applied for leave to appeal on the grounds that the sentencing judge failed to properly account for his disadvantaged childhood, did not adequately address the significance of his low cognitive functioning, and that the resulting sentence was manifestly excessive for a young offender with those characteristics.

Legal Issues

  • Whether the sentencing judge erred by overlooking, ignoring, or rejecting aspects of the applicant's disadvantaged childhood in fixing the sentence.
  • Whether the sentencing judge failed to properly apply sentencing principles relating to the applicant's low cognitive functioning, including its effect on moral culpability, general deterrence, and the experience of custody.
  • Whether the aggregate head sentence of 10 years imprisonment was manifestly excessive for a young offender with low cognitive functioning and a partly dysfunctional upbringing.

Decision

Ground 1: Disadvantaged childhood

The judges divided on this ground. Basten JA (with whom Price J agreed) held that the sentencing judge had not ignored or overlooked the limited evidence of childhood disadvantage but had rather rejected it as inadequate to engage the relevant principles of mitigation (at [13]). The sentencing judge expressly found that three co-offenders had a "dysfunctional upbringing" reducing their moral culpability, and the deliberate omission of the applicant from that finding demonstrated an active choice, not an oversight (at [13]). Much of the evidence of disadvantage rested on the applicant's own unconfirmed account to the forensic psychologist, and there was little independent corroboration (at [12]).

Rothman J reached the opposite conclusion on Ground 1, finding that the sentencing judge's failure to address the applicant's developmental background, particularly given the reliance placed on it in submissions, constituted a failure to disclose adequate reasons (at [84]-[85]). Because Grounds 1 and 2 succeeded on Rothman J's analysis, resentencing followed regardless.

Ground 2: Low cognitive functioning

Again, Basten JA and Price J dismissed this ground. The sentencing judge had expressly found the applicant had "low-cognitive functioning" and responded appropriately by making a special circumstances finding under s 19 of the Children (Criminal Proceedings) Act 1987, directing that the sentence be served as a juvenile offender until age 21 (at [15]). That response was described as appropriate and sufficient in the circumstances.

Rothman J, however, upheld Ground 2, observing that the effect of low cognitive functioning on sentencing extends beyond any causal connection to the offending: it also bears on the applicant's suitability as a vehicle for general deterrence, his moral culpability, and the harshness of the custodial experience (at [89]). The remarks on sentence did not make clear how the sentencing judge treated this factor or what effect, if any, it had on the sentence imposed (at [91]).

Ground 3: Manifest excess

By majority, the Court of Criminal Appeal held that the head sentence of 10 years was manifestly excessive. Basten JA found that while the non-parole period of 5 years was "comfortably within a range of appropriate minimum terms," a 10-year head sentence was excessive because there is no presumption that an offender with poor rehabilitation prospects will be released at the expiry of the non-parole period, creating a real risk of significantly extended incarceration (at [16]-[17]). He reduced the head sentence to 7 years 6 months (at [18]).

Rothman J, having found errors warranting resentencing, independently concluded the head sentence was unreasonable and plainly unjust. He noted that a decade-long sentence represented more than half the applicant's life, that rehabilitation is a more significant consideration for young offenders, and that the Parole Authority was better placed to assess rehabilitation prospects at the point of eligibility (at [97]-[98]). He also gave some weight, though slight, to the applicant's partly violent upbringing and the compounding effects of youth and low cognitive functioning on the relevant sentencing factors (at [109], [122]). Price J dissented on this ground, concluding that the 10-year head sentence was a legitimate exercise of the sentencing discretion given the seriousness of the offending, the applicant's criminal history, and the limited weight attributable to his subjective circumstances (at [132]-[135]).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed on 23 August 2019 is quashed.
  • The applicant is sentenced to an aggregate head sentence of 7 years and 6 months imprisonment, commencing 16 February 2018 and concluding 15 August 2025, with a non-parole period of 5 years concluding 15 February 2023. The applicant is first eligible for parole on 15 February 2023.

Key Takeaways

  • A sentencing judge's silence about a particular mitigating factor does not necessarily indicate that the factor was overlooked. Where contextual reasoning in the remarks (such as expressly distinguishing co-offenders on a particular basis) demonstrates an active choice, the Court of Criminal Appeal may infer deliberate rejection rather than inadvertent omission (at [13]).

  • The relevance of intellectual disability or low cognitive functioning to sentencing is not confined to cases where there is a proven causal link between the condition and the offending. Such a condition may also reduce the offender's suitability as a vehicle for general deterrence, reduce moral culpability, and increase the harshness of the custodial experience, each operating as a distinct sentencing consideration (at [89]).

  • Where youth and low cognitive functioning both exist, the Court of Criminal Appeal confirmed that their combined effect on the sentencing discretion is greater than the sum of their individual contributions, producing a compounding impact across multiple sentencing purposes including general deterrence and moral culpability (at [104]-[105]).

  • In imposing a head sentence significantly longer than the non-parole period, sentencing courts should account for the fact that there is no presumption an offender will be released at the expiry of the non-parole period, particularly where rehabilitation prospects are poor. A disproportionately long balance of term may result in effective incarceration well beyond the minimum term (at [16]-[17]).

  • A special circumstances finding permitting a longer parole period does not, without more, discharge the sentencing court's obligation to articulate how factors such as low cognitive functioning have been weighed in arriving at the overall sentence, particularly where that consideration was central to the submissions made on behalf of the offender (at [81]-[85], [91]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW) , ss 6, 15A, 19
- C rimes Act 1900 (NSW), ss 97, 98, 112(1)(a), 154C(2)

Cases
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- 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