Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: HJ v R [2014] NSWCCA 21
• Hearing dates: 20/02/2014
• Decision date: 28 February 2014
• Before: Hoeben CJ at CL at [1]; Garling J at [2]; R S Hulme AJ at [101]

Decision

(1) Application for leave granted.

(2) Appeal allowed.

(3) Order that the sentence imposed in the District Court (Murrell DCJ) on 27 August 2013 with respect to both offences be varied so as to provide that the non-parole period with respect to each count, be a period of 6 months commencing on 27 August 2013 and expiring on 26 February 2014.

(4) Order that the applicant be forthwith admitted to parole upon condition that she is to report to the Juvenile Justice Service at Nowra within 96 hours of her release from custody, submit to their supervision and comply with all reasonable directions of the Service with respect to counselling and education including but not limited to anger management and alcohol-related issues.

(5) In all other respects, the sentence is confirmed.

• Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - whether Judge failed to give proper attention to the fact that the applicant was the mother of a very young baby - whether juvenile detention appropriate if offender has a very young baby - error found - applicant re-sentenced
• Legislation Cited: Children (Criminal Proceedings) Act 1987; Correctional Centres Act 1952; Crimes (Administration of Sentences) Act 1999; Crimes Act 1900; Crimes Act 1914 (Cth); Criminal Appeal Act 1912
• Cases Cited: MS2 v R [2005] NSWCCA 397; R v Ceissman (2001) 119 A Crim R 535; R v Edwards (1996) 90 A Crim R 510; R v Hearne [2001] NSWCCA 37; R v SLR [2000] NSWCCA 436; (2000) 116 A Crim R 150; R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23; R v XYJ (unreported, Court of Criminal Appeal, NSW, 15 June 1992)
• Texts Cited: United Nations Convention on the Rights of the Child 1989
• Category: Principal judgment
• Parties: HJ (Applicant); The Crown (Respondent)
• Representation: Counsel: P Coady (A); V Lydiard (The Crown); Solicitors: Legal Aid NSW (A); Solicitor for Public Prosecutions (The Crown)
• File Number(s): 2012/303376
• Publication restriction: Restriction of parties' names

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2013-08-27 00:00:00
• Before: Murrell DCJ
• File Number(s): 2012/303376

Judgment

1 HOEBEN CJ at CL: I agree with Garling J.

2 GARLING J: This is an application for leave to appeal in respect of two sentences imposed in the District Court by her Honour, Judge Murrell SC, on 27 August 2013.

3 The applicant, who was a juvenile at the time of the offences, pleaded guilty before Murrell DCJ to two offences contrary to s 112(2) of the Crimes Act 1900.

4 The offences occurred on 29 September 2012, when HJ, together with her partner Mr Barry Kelly, entered a home in Mollymook - having first broken in. Whilst within the home she committed a serious indictable offence, namely, assault occasioning actual bodily harm whilst in the company of Mr Kelly upon two victims, Mr Berry (who was then aged 31) and a juvenile referred to as "A" (who was then 14). There were two charges, one relating to each victim.

5 The maximum penalty for each offence was 20 years' imprisonment. Because HJ was a juvenile at the time, the standard non-parole period had no application.

6 The sentencing Judge imposed wholly concurrent sentences on each for the two offences of 2 years and 1 month with a non-parole period of 12 months, commencing on 27 August 2013.

7 Her Honour made an order under s 19 of the Children (Criminal Proceedings) Act 1987 directing that the whole of the non-parole period applicable to HJ be served as a juvenile offender.

Facts

8 A Statement of Agreed Facts was tendered to the sentencing Judge. A brief summary of these facts follows.

9 The victims were Mr Phillip Berry (Count 1) and a juvenile referred to as "A" (Count 2).

10 At the time of the commission of the offences, both victims resided with A's mother. A's mother and father had separated, her father had moved out of the family home and commenced a relationship with the Applicant's older sister, Nicole. Nicole had become pregnant by A's father. Her father made this known to A and told her to keep it secret from her mother. A disclosed to her mother that Nicole was pregnant. This caused friction between A and her father.

11 The Applicant was in a relationship with Mr Barry Kelly, her co-offender, with whom she would frequently visit Nicole and A's father at their home. A's father informed the Applicant and her co-offender that A had told her mother that Nicole was pregnant. This caused both the applicant and the co-offender to form a dislike for A.

12 At around 11.30pm on 29 September 2012 the victims were at their home. A received three similar telephone calls from the Applicant in which she verbally abused and threatened the victim. In one such call, the applicant stated: "I'm coming around to get ya and guess who I'm bringing, your Daddy". A then rang her father who stated, "[HJ]'s coming to bash ya". The call was terminated and A went to her bedroom. Approximately 15 minutes later, Mr Berry called to out A informing her that HJ and the co-offender were at the front door. A approached the front door and saw the co-offender holding a piece of timber in his hand. The co-offender kicked open the timber entry door.

13 With respect to Count 1, the short facts were that the co-offender entered the victim's home and hit Mr Berry on the head with his hand while Mr Berry was on the telephone with a '000' emergency operator. Mr Berry fell unconscious to the floor.

14 With respect to Count 2, the short facts were that A heard the Applicant screaming and saw her enter the house. The Applicant came straight towards A, grabbed her hair and swung her onto the lounge. The Applicant then jumped on A and commenced to punch her in the head. The Applicant then dragged A to the floor and kicked her to the head about four times whilst yelling profanities at A. The Applicant spat in A's face and asked her where her mother was. After A replied that her mother was in Nowra the Applicant let A go and left the house. This assault was recorded by the co-offender on his mobile phone.

15 Mr Berry sustained the following injuries as a result of the assault:

(1) A 3cm superficial laceration over his left cheek bone which required 5 sutures

(2) An abrasion to his left cheek bone

(3) A depressed comminuted fracture of his left zygoma bone, for which there was no surgical intervention, it healed on its own without any long-term affects.

16 A sustained the following injuries as a result of the assault:

(1) Areas of tenderness and mild swelling over both cheekbones and her mandible; and

(2) mild widespread patchy tenderness of her scalp and pre-sternal region.

17 Both A and Mr Berry were transferred to hospital. Before the sentencing Judge the Crown conceded that the injuries sustained by the victims did not amount to grievous bodily harm.

18 Early on the morning after the assault, police attended the applicant's home where she was arrested and taken to the police station. Whilst at the police station the applicant requested medical attention for her right hand. When the ambulance arrived, she explained to ambulance officers that she had injured her hand as a result of punching someone.

19 Police seized mobile phones belonging to the applicant and her co-offender. On the co-offender's mobile phone, police observed video footage of the applicant assaulting the victim A. An examination of the applicant's mobile phone contained text messages which indicated that the assault on A was pre-planned.

Applicant's Submissions on Sentence

20 The applicant agreed with the facts to which I have just made reference. On sentence, she gave evidence herself and relied upon the contents of a report of a clinical psychologist, Ms Caroline Hare. As well, a Juvenile Justice background report was prepared and tendered to the sentencing Judge. Counsel made submissions on behalf of the applicant.

21 The applicant in her evidence accepted her responsibility for what occurred, and expressed regret for what she had done. She said that about an hour or two before the incident, her sister's boyfriend (who was 38 years old) had said with respect to his daughter, A, that she deserved to be "taught a lesson" and that someone should teach her one. The applicant said that this was said in her presence, at a time when she was intoxicated.

22 The applicant gave evidence that what she had told the clinical psychologist was accurate and true.

23 It would appear from Ms Hare's report that the applicant grew up in a house where her mother and step-father would often argue verbally, and engage in low level physical abuse. She described her adolescence as one where she began to consume alcohol, she truanted from school, ran away from home and stayed with friends or on the streets. At the age of 15 the applicant was sent from home to live with her paternal grandfather in Lithgow, which was a considerable distance from her home.

24 Ms Hare summarised HJ's position in the following way:

"47. [HJ] lacked a consistent paternal figure during her upbringing, which appears to have resulted in challenges in her relationship with her mother, who was largely responsible for providing [HJ] with positive role modelling and direction during her upbringing. [HJ] appears to have experienced difficulties in relation to learning to manage her emotions effectively. This has likely been impacted by her poor executive functioning skills. As a result, [HJ] has developed various unhelpful strategie to assist with managing her emotions, such as expressing her anger via outbursts, engaging in self-harm and suicidal ideation, and misusing alcohol and drugs. In addition, [HJ]'s below average cognitive functioning and poor executive functioning has likely impacted upon the development of her social skills and problem solving skills, resulting in her being susceptible to negative peer influence in a bid to maintain friendships, or due to a lack of consequential thinking. These factors appear to have also impacted upon [HJ]'s performance and engagement at school.

48. It is against the above background that [HJ] committed the current offence. The triggers to the offence appear to have been her emotional arousal (and associated problems managing this) and her poor problem solving. These skills, which are relatively underdeveloped in [HJ], were further negatively impacted by her use of alcohol.

25 The following subjective matters were also before the sentencing Judge. HJ had had one unsuccessful relationship at the age of 13. As a consequence of that relationship, and against the background of her family life, she had not felt able to trust men. She had also been sexually assaulted at the age of 16. Accordingly, she had no relationships with men until she met her current partner a few months before the offence. She clearly had a close relationship with this partner (her co-offender), who was about five years older than her.

26 After the offences had been committed, and prior to the entry of a plea of guilty, the applicant fell pregnant to her partner. Her pregnancy was not planned and was described by her as "an accident". When she was about three months pregnant, she attempted to commit suicide. Her youngest brother intervened. She was not admitted to hospital. At the time of her assessment by the clinical psychologist, the following was recorded:

"Currently, [HJ] described feeling scared about the future, in terms of her pregnancy, and the prospect of being alone in managing the baby if her partner receives a custodial sentence. She further expressed concerns that the Department of Community Services will 'be involved' in caring for her child. This seems like it could be a realistic concern given [HJ]'s emotional vulnerability in terms of her limited ability to effectively manage difficult feelings. If [HJ]'s partner receives a custodial sentence, that is likely to increase her needs for emotional and practical support, particularly following the birth of her child."

27 That report was completed some months prior to the sentencing. The pregnancy, according to the Juvenile Justice Report, had the effect that the applicant had ceased to consume alcohol upon becoming aware of the pregnancy, and had ceased contact with a peer group that had had a negative impact upon her behaviour.

28 In the period after her offending and prior to her sentencing, HJ had enrolled in a vocational TAFE course with a view to obtaining employment.

29 Her Honour was told in the submissions of the applicant's co-offender that his baby son had been born a little over three weeks earlier on 3 August 2013. In the submissions of the applicant's lawyer, her Honour was reminded of this, and informed that the birth of her son was the cause for the applicant putting her TAFE studies on hold for six months.

Other Subjective Matters

30 The applicant was born in January 1995, and was accordingly 17 years and 8 months at the time of the offence. She was 18 years and 7 months at the time of her sentencing. She had no criminal history at all, this being her first offence. She was living with her co-offender's family at the time of her sentencing.

Remarks on Sentence

31 At the start of her Remarks on Sentencing, the sentencing Judge recorded the nature of the offences, when they were committed and the fact that the aggravating feature in respect of each case was that the offender was in company. She then said:

"The maximum available penalty is 20 years imprisonment and a standard non-parole period of 5 years applies. Each offender entered a plea of guilty at the earliest reasonable opportunity and is entitled to a 25 per cent discount for the plea."

32 Her Honour was engaged in sentencing both the applicant and her co-offender. This was the only time in her Sentencing Remarks to which her Honour made reference to the standard non-parole period.

33 Her Honour recited the facts and the nature of the injuries suffered by the two victims.

34 She went on to describe the subjective factors of the applicant's co-offender and then came to consider the subjective factors relating to the applicant. She noted that HJ was a child at the time of the offence, and that she was obliged to deal with the sentence which she was imposing by reference to the provisions of s 6 of the Children (Criminal Proceedings) Act 1987.

35 Her Honour noted that the approach to sentencing of young offenders was different from that taken to adults, and was to be more focussed on enabling them to remain in the community and to continue with their education. She also acknowledged "that children have a lesser capacity in terms of decision-making and are intellectually and emotionally less mature than adults".

36 Her Honour recounted the applicant's family history and her growing up. She noted that the applicant had been sexually assaulted when she was 16 years of age in an incident which was very traumatic. She noted the applicant continued to suffer from sequelae of that offence.

37 Her Honour then said this:

"She has been assessed as functioning at a below average level, particularly in the area of executive functioning. She has presented as an introverted and quiet person to people who assessed her. It is said that she needs help in the areas of executive functioning, substance abuse and developing a pro-social network. She commenced a TAFE course but discontinued it, I think, in connection with the recent birth of her child."

38 Her Honour turned to the objective seriousness of the offences. She noted that the applicant was the instigator of the offences and had primarily planned them; that she had consumed a substantial quantity of alcohol prior to the offences for the purpose of "strengthening her resolve". And that although the victim, A, whom the applicant had attacked personally had sustained soft tissue injuries amounting to actual bodily harm, communications by the applicant both before and after the incident suggested that she envisaged quite serious injuries to the victim.

39 Her Honour was satisfied that there was a "disturbing level of pre-planning and premeditated violence". Her Honour was not satisfied that the applicant's below average level of functioning had any bearing on the attack, and her Honour concluded that the attack was not impulsive and was cowardly. As well, she noted that the attack took place in the home of the victim, A.

40 Her Honour formed the view that the objective gravity of the offence and the objective seriousness of it was such, that no such sentence other than a term of full time imprisonment was appropriate. Her Honour accepted that there were special circumstances applicable to the applicant being her youth and the absence of any prior criminal history.

41 Her Honour then proceeded to impose a sentence. In so doing, she did not make any further specific reference to the discount for the early plea of guilty, although her Honour had earlier in her Remarks on Sentence, noted that both the applicant and her co-offender had pleaded guilty at the earliest available opportunity and were entitled to a 25 per cent discount for their plea.

42 Her Honour imposed an identical sentence with respect to each Count with which the applicant was charge. She ordered that both of the sentences be wholly concurrent. Her Honour imposed a sentence which comprised:

(a) a non-parole period of 12 months commencing on 27 August 2013; and

(b) a balance of term of 13 months concluding on 26 September 2015.

43 At the specific request of counsel for the applicant, her Honour directed that the term of imprisonment be served in juvenile detention.

Grounds of Appeal

44 The applicant proceeded with an Amended Application for Leave to Appeal which was filed, without objection from the Crown, on 20 February 2014. There were four grounds noted in her application. They were:

(1) The learned sentencing judge erred in taking into account an irrelevant matter, namely, the applicability of the standard non-parole period in relation to the applicant who was under the age of 18 at the time of the commission of the offences;

(2) The learned sentencing judge erred in failing to have proper regard to the applicant's youth and, in particular, failed to have proper regard to the relationship between the applicant's immaturity and the commission of the offences;

(3) In the circumstances of the case, the sentences imposed are manifestly excessive;

(4) The sentencing judge failed to have proper regard to a matter relevant to the sentencing process, namely, that the applicant had a four week old baby at the time of sentence.

Ground 1 - Error in Considering Standard Non-Parole Period

45 The applicant submits that the reference to the standard non-parole period which has been set out at [31], made by her Honour in the course of her Remarks on Sentence, demonstrated error because the standard non-parole period was not applicable to the applicant in respect of these offences because she was under 18 at the time they were committed.

46 There is no dispute that the standard non-parole period was entirely irrelevant to the sentencing exercise upon which the sentencing Judge was engaged, with regard to the applicant.

47 It is to be recalled that the sentencing Judge was asked to sentence both the applicant and her co-offender together. The sentencing proceedings proceeded together. Submissions were taken at the same time and the Crown responded to the submissions jointly. Her Honour's Remarks on Sentence were delivered jointly with respect to the applicant and her co-offender.

48 The co-offender was an adult at the time of the offending and, accordingly, was a person to whom the standard non-parole period applied.

49 The only reference to the standard non-parole period was made at the very start of her Honour's Remarks on Sentencing, and there was no further reference to the standard non-parole period at any later time, including how it would be used consistently with the authorities.

50 The reference to the standard non-parole period upon which the applicant relies was a generic reference when the sentencing Judge was setting out the nature of the offences, when they occurred and the maximum penalty applicable to the offences.

51 Her Honour's reference to the standard non-parole period was not made specifically in relation to the applicant. It is explicable in the context in which it was used, to being relevant to the co-offender. Her Honour's later references to the fact that the applicant was a juvenile at the time, and that she was bound to apply the provisions of the Children (Criminal Proceedings) Act when sentencing the applicant, all combine to satisfy me that such reference as her Honour made to the standard non-parole period was intended to relate to the co-offender and not to the applicant.

52 The absence of any further reference to the standard non-parole period and the proper use to be made of it, makes it plain to me that her Honour did not have any additional regard to it and did not take it into account when sentencing the applicant.

53 I am not satisfied that the reference relied upon by the applicant indicated any error on the part of the sentencing Judge.

54 Ground 1 should not be upheld.

Ground 2 - Failure to have Proper Regard to the Applicant's Youth and Immaturity

55 The applicant submits that notwithstanding a number of references by the sentencing Judge to the fact that she was a child, that different sentencing principles applied to her and that as children are intellectually and emotionally less mature than adults, the sentences imposed demonstrate that insufficient regard was taken of the applicant's youth and immaturity.

56 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: R v Hearne [2001] NSWCCA 37 at [25].

57 In MS2 v R [2005] NSWCCA 397, Adams J said at [16]:

"... immaturity is relevant to culpability or criminality. The point may be put simply: children do not have adult value judgments, adult experience, adult appreciation of consequences - especially catastrophic consequences - or adult understanding of criminal culpability. That is, of course, not to say that depending on age and background, they cannot be intentionally wicket and know very well that what they do or intend to do is seriously wrong and even criminal. ..."

58 It is also clear that the younger an offender is, the greater will be the weight to be put upon the offender's youth. Conversely, the closer the age of the offender to the age of adulthood, then the less the weight will be on factors such as immaturity and age.

59 There is no doubt that the applicant was immature. She was easily influenced and led. Her history suggests she was lacking a good role model. However, these were all matters which were well before the sentencing Judge. She adverted to them. There is nothing about the sentence itself which suggests that her Honour did not have careful regard to them.

60 I am not satisfied that there is any indication that her Honour fell into error on account of failing to have proper regard to the relationship between the applicant's immaturity and the commission of the offences. On the contrary, the material emanating from the applicant, in particular the various text messages, suggested a far more adult approach to this crime than that of an immature girl.

61 I would not uphold this Ground.

Ground 4 - Relevance of the Applicant's Four Week Old Baby

62 It is convenient to proceed next to this Ground before considering Ground 3.

63 It is accepted on this appeal that in the correctional system in NSW, there are no facilities for mothers and babies to live together whilst an offender is in any juvenile detention facility. On the other hand, if an offender enters the adult correctional system, there is a facility at Jacaranda House where mothers in custody can have their baby with them. These facts are well known, and have been the subject of previous comment by this Court: R v XYJ (unreported, Court of Criminal Appeal, NSW, 15 June 1992); R v SLR [2000] NSWCCA 436; (2000) 116 A Crim R 150.

64 Accordingly, as her Honour sentenced the applicant to serve her imprisonment in a juvenile facility, this necessarily meant that the applicant would be separated from her young baby for the entire period of her imprisonment.

65 The applicant submits on appeal that, as well as the authorities to which it will be necessary to come, s 6(f) of the Children (Criminal Proceedings) Act, identifies a principle which is here relevant, namely:

"(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties."

The applicant submits that this principle is apt to be applied here.

66 The relevance of an offender who stands for sentence being the mother of a young baby is undoubted. It is always a question of weight as to the impact which this factor has on the sentencing process.

67 This Court has held that the fact that a person to be sentenced is the mother of young baby is a relevant factor to take into account: see R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23. In that case, the applicant was standing for sentence about two months after her baby was born. That fact was well known to the sentencing Judge who had adjourned the proceedings on sentence to await the birth of the applicant's child. At [5] Spigelman CJ said with respect to an alleged failure by the sentencing Judge to deal with the matter appropriately because the sentencing Judge had imposed an order suspending the sentence of imprisonment, this:

"Furthermore, the order suspending the sentence could not be justified on the basis that the respondent would be separated from her child for an unknown period. His Honour could, and should, have deferred sentencing until the respondent had been assessed, so that the Court knew whether or not there would be any separation."

68 The Chief Justice went on to say, at [7]:

"In an appropriate case, the inability of prison authorities to provide for detention in a humane manner will justify a court refusing to impose a custodial sentence. That was not shown to be the case here. His Honour was correct to conclude that the evidence from the Department of Corrective Services revealed a process that involved unacceptable delays so that the probable separation of mother and baby could be regarded as inhumane. However, his Honour failed to have regard to the fact that, by deferring by the sentencing task, he may have been able to ensure that, with the cooperation of authorities and subject to a positive assessment, there would be no such separation."

69 It was noted in Togias, where the applicant was an adult, that the provisions of s 16A(2)(p) of the Crimes Act 1914 (Cth) required a court to have regard to, where relevant, "the probable effect that any sentence or order under consideration would have on any of the person's family or dependants".

70 It was noted that the authorities provided that exceptional circumstances needed to exist before that provision could be considered: R v Edwards (1996) 90 A Crim R 510 at 516-517; R v Ceissman (2001) 119 A Crim R 535 at 540-541 [36].

71 As the judgment of Spigelman CJ in Togias demonstrates, Articles 3.1, 9.1 and 9.4 of the United Nations Convention on the Rights of the Child 1989, may all have relevance. However, I note in this case no party drew attention to these provisions, or sought to rely upon them for the purpose of any submissions. Accordingly, in the absence of full argument, it is inappropriate for this Court to deal with the relevance of this Convention.

72 At [67] of Togias, Grove J (with whom Spigelman CJ agreed) with respect to whether or not the sentencing Judge ought to have adjourned the proceedings to obtain further information with respect to the applicant and her child, said this:

"Adjournment sine die is not contemplated but a limited delay to obtain useful information. What was required was firm evidence of what conditions would pertain in relation to this respondent and her child in the event that an order committing her to prison were to be made. The evidence tendered was limited to generalities. No attempt was made to obtain focussed information. It is possible that a response in particular terms may not be forthcoming from Corrective Services, but such situation would need to be take into account if it arose. His Honour elected to proceed without knowing what the situation was in this regard."

73 In SLR this Court held in circumstances where the applicant was pregnant at the time of sentencing, that the fact that the Juvenile Justice Centre, where the applicant was then detained, would not be able to accommodate the applicant's newborn child immediately following its birth, and that no other juvenile facilities in NSW were available which could so accommodate them, was a relevant factor for the sentencing Judge to take into account.

74 Interestingly, in light of the material agreed in this Court about appropriate arrangements for mothers and young babies in custody, to which no attention was paid in the Court below, the Crown in SLR submitted that

"... the applicant should not be separated from her newborn baby because an order directing her to serve her sentence in a detention centre in advertently deprived her of a facility which is available to adult female prisoners namely, to keep their babies with them up until the age of 5 years."

75 In SLR, in circumstances where the sentencing Judge had not specifically adverted to the inability of the applicant to have her child with her after birth, this Court intervened to alter the sentence imposed upon the offender. The effect of the alteration was to ensure that after the birth of the offender's child, she was transferred to an adult prison where facilities were available to keep her child and where an application could be made for leave under the then current s 29(2)(c) of the Correctional Centres Act 1952. That provision now exists, in similar terms, in s 26 of the Crimes (Administration of Sentences) Act 1999.

76 It is clear that in this case, first, it was a matter of relevance and importance to the sentencing Judge to have regard to the fact that the applicant was the mother of a young baby, and the effect of separation from her baby needed to be considered, both with respect to the applicant herself, and the degree to which the separation would have impacted upon the hardship of her period in custody; secondly, if exceptional circumstances could have been shown it was relevant to have regard to any effect on the applicant's child; and thirdly, given that there were no facilities for the applicant to be with her baby whilst in juvenile custody, consideration should have been given to declining to make an order that she serve her term of imprisonment in juvenile detention, which necessarily meant that she would be separated from her baby.

77 No attention was given to any of these matters in the sentencing Judge's Remarks and, accordingly, error has been demonstrated.

78 Ground 4 must be upheld.

79 This does not necessarily automatically mean that the applicant's sentence needs to be re-determined. The Court needs to consider whether, in all of the circumstances any lesser sentence is warranted: see s 6(3) Criminal Appeal Act 1912.

80 The error which has been identified was in the circumstances here, a significant one. In a case involving a young offender who has pleaded guilty to serious offences and who has no previous criminal record, a matter relevant to her subjective case which ought to have played a central role tending to mitigate any penalty, was not addressed.

81 In my view, any consideration of this issue would have resulted in a decision ameliorating any sentence which was to be imposed. As a result, I am satisfied that a lesser sentence is warranted and ought to have been imposed.

82 In those circumstances, it is necessary to set aside the sentences imposed below and re-sentence the applicant.

83 Because the sentences below are to be set aside, it is inappropriate to give any consideration to Ground 3 dealing with whether the sentence imposed was manifestly excessive.

Re-sentencing

84 It is necessary to re-sentence the applicant.

85 As the earlier remarks in this judgment will show, the applicant not been convicted of any prior criminal offence. Prior to entering custody, the applicant was in a reasonably stable relationship, albeit with her co-offender. She was attending TAFE until she fell pregnant and suspended her TAFE course pending the birth of her child. Her son was born on 3 August 2013.

86 The applicant's present position is the subject of additional affidavit evidence to which I have had careful regard.

87 Because she and her co-offender are in custody, her son spends time alternatively with the applicant's mother in the Lithgow area, or with her co-offender's mother in the Nowra area. Since the applicant has been in jail, she has seen her son on no more than six occasions. The limited number of visits is largely due to the difficulty in either her mother or her partner's mother bringing her son to see her. The longest she has been with her son since she has been in custody is four hours in January 2014.

88 Since being confined to custody, the applicant has attended school five days per week and is undertaking a number of courses. She has completed courses with respect to drug and alcohol rehabilitation. She has received a number of certificates commending her on her efforts in the various education courses which she has undertaken. As well, she has been participating in a Karitane parents program two days per week so as to understand the stages of life through which her baby is moving.

89 The applicant in her affidavit deposes to the fact that she has had a meeting with a mental health worker whilst in custody who has offered her assistance whenever she may be released, with drug and alcohol counselling, anger management counselling, and reintegrating into the community as a mother. That support is possible in the Nowra area where the applicant proposes to live upon her release from custody.

90 The applicant has provided to the Court records of her stay in custody which indicate that in December 2013, an episode of misbehaviour whilst in custody had been the subject of a formal report with respect to the inappropriate content of letters which had been passed between herself and another young person in the unit in which she was housed. The letters contained a threat towards an ex-detainee. The formal report concludes:

"[HJ] will be required to discuss her attitude towards violence, anger management, developing strategies to manage her emotions and explore the correlation to her offence."

91 By January 2014, a follow up report by a Juvenile Justice counsellor reported that the applicant demonstrated insight into her misbehaviour, and that her behaviour had improved. According to the counsellor, the applicant displayed remorse for her actions and continued to assert that she had improved her behaviour and wished to continue with such improvement.

92 The applicant was under 18 at the time of the offences, and her youth is necessarily a factor that must be taken into account. However, as this Court has said on many occasions, the closer in age of a juvenile to adulthood, the less mitigating the effect youth will have. Here, the applicant was 17 years and 8 months at the time of the offences.

93 The offences were serious. As demonstrated by the facts recounted earlier, there was an element of pre-planning to the offences, they were initiated by the applicant and involved infliction of actual bodily harm on the two victims, one of whom was only 14 years old.

94 Another matter to which the Court must have regard is that the applicant's co-offender received the same sentences as the applicant, but a slightly longer non-parole period than the applicant did. The applicant's co-offender was an adult at the time, whereas the applicant was a juvenile.

95 There is no doubt that the separation of a young mother of the applicant's age from her young baby, and the particular circumstances of her custody, and the very limited access which she has had to her baby, has meant that she has and will continue to suffer a good deal more personal hardship by her imprisonment.

96 There is no evidence upon which this Court could find that any adverse effect on the baby of the separation from the applicant is sufficient to warrant a finding of exceptional circumstances, such as would enable any such effect to be taken into account as a mitigating factor. No such finding is made.

97 In all of the circumstances, I am of the view that the sentence imposed by the original sentencing Judge by way of the overall length of the term is appropriate having regard to the seriousness of the offences. However, in the particular subjective circumstances of this applicant, I am of the view that the non-parole period should be reduced to 6 months to take full account of the hardship of the applicant's custody which has required her separation from her firstborn baby.

98 Having regard to the applicant's reported misbehaviour whilst in custody, albeit on one occasion, when she is released to parole the applicant ought be required to submit herself to ongoing supervision of the Juvenile Justice Service, and to undertake such courses as the Service requires, including anger management courses.

99 I propose the following orders:

(1) Application for leave granted.

(2) Appeal allowed.

(3) Order that the sentence imposed in the District Court (Murrell DCJ) on 27 August 2013 with respect to both offences be varied so as to provide that the non-parole period with respect to each count, be a period of 6 months commencing on 27 August 2013 and expiring on 26 February 2014.

(4) Order that the applicant be forthwith admitted to parole upon condition that she is to report to the Juvenile Justice Service at Nowra within 96 hours of her release from custody, submit to their supervision and comply with all reasonable directions of the Service with respect to counselling and education including but not limited to anger management and alcohol-related issues.

(5) In all other respects, the sentence is confirmed.

100 R S HULME AJ: I agree with the orders proposed by Garling J and with his Honour's reasons.

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Decision last updated: 28 February 2014