Parity in Sentencing: Youth Sentence Reduced to Reflect Co-Accused’s Successful Appeal

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By Paul Gregoire and Ugur Nedim

At about 9.50 pm on 16 December 2021, Jordan Campton, Brayden Taylor and Brock Ruwoldt were leaving the Events Cinema at Liverpool’s Westfield Shopping Centre, when they were set upon by a group of six male youths, who cornered and then began harassing them.

One of the teen assailants, later referred to by the courts as AJ, grabbed an item out of Campton’s pocket, while two others attempted to remove his jacket. This continued on, as AJ and another accomplice set upon Ruwoldt, who was moving towards the George Street exit of the shopping mall.

As some of the offenders continued to wrestle Campton for his jacket, he fell to the ground. And after one of the assailants punched him in the head with a closed fist, the entire group then ran in to join an all-out assault upon Campton.

The agreed facts later in court outlined that the six co-offenders kicked and punched Campton as he lay on the ground, although NSW District Court Judge Andrew Colefax went on to state that CCTV footage revealed that AJ had actually stomped on the man’s head.

Campton was taken to the Liverpool Hospital, where it was found he’d sustained injuries that included a three-centimetre-long laceration and a fractured skull.

And AJ’s attempt to convince the court that he hadn’t stomped on Campton’s head in the process of causing these injuries was rejected, as besides the footage, a text message tendered in evidence saw him bragging to a friend about having committed the heinous act.

A serious children’s indictable offence

AJ pleaded guilty to three offences in the NSW Children’s Court. The first was one count of aggravated robbery causing grievous bodily harm, contrary to section 96 of the Crimes Act 1900 (NSW). This is an offence that carries a maximum penalty of 25 years imprisonment.

The second offence involved one count of robbery in company, contrary to section 91 of the Crime Act. Those convicted of this offence are liable to 20 years prison time.

And the third offence AJ pleaded guilty to was demand property with menaces in company, which is contained in section 99 of the Crimes Act, and it carries up to 10 years gaol time.

Under the provisions of section 3 of the Children’s (Criminal Proceedings) Act 1987 (NSW), aggravated robbery causing grievous bodily harm is considered a serious children’s indictable offence and therefore, the matter was committed for sentencing in the NSW District Court.

This resulted in the additional two charges being taken into account on a Form 1, in accordance with section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which involves extra charges of a lesser nature being considered by a judge when sentencing in relation to the principal offence.

These additional offences can be filed at any time and are listed on a Form 1, while both the offender and the Director of Public Prosecutions must sign it. And the offender needs to admit guilt to these additional offences and indicate a willingness for them to be dealt with in this manner.

On 13 March this year, Judge Colefax sentenced AJ to 3 years and 3 months prison time, with non-parole set at 1 year and 6 months. And this reflected a 25 percent sentencing discount due to the utilitarian value of the early guilty plea.

Disparities in sentencing

AJ appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) in September this year on three grounds: that the judge failed to address the offender’s moral culpability and neglected to consider age in reference to general deterrence, as well as a co-offender’s sentence being much less.

As for the last ground, Judge Colefax sentenced a number of other co-offenders in relation to the same incident, which included sentencing another teen offender, TM, to 3 years gaol time, with a 1 year non-parole period on 24 March.

TM’s non-parole period was later dropped to 9 months on appeal in July, while his head sentence remained at 3 years. However, AJ and TM’s crimes were both assessed by the sentencing judge to be within the mid-range of objective seriousness.

The appeals court heard that AJ had “a stable family background”, although there was an issue with the “extent of parental discipline”. At the age of 15, AJ had fallen in with the wrong crowd and taken on an antisocial attitude. And this occurred two years after he’d been the victim of a violent assault.

A report also concluded that AJ’s thought processes at the time of the incident and on being interviewed reflected his lack of maturity. And the psychologist added that “immaturity affected several areas of cognitive functioning, such as impulsivity, reasoning and consequential thinking”.

Grounds on appeal

NSWCCA Justice David Davies found it convenient to deal with the first two grounds of appeal together. These were those regarding moral culpability and that of the offender’s age in relation to the sentencing principle of general deterrence.

His Honour recalled Judge Colefax had explained to 15-year-old AJ that a boy of his age would usually be sentenced in accordance with child sentencing principles, but due to the serious nature of the crime, he would be sentenced “not quite as an adult but more as an adult than a child”.

The sentencing judge “made no reference to the applicant’s moral culpability nor to the issue of general deterrence”, the appeals court found. Yet, as AJ submitted to the court, he had a right to know whether his age affected culpability, as well as how any deterrence had been factored in.

Justice Davies explained that when Judge Colefax sentenced TM, he noted the different sentencing principles, and he’d suggested that juvenile sentencing would still be a factor, whilst also insisting that the boy’s high moral culpability would be reduced due to his difficult childhood.

TM had appealed his sentence on the grounds that the sentencing judge had failed to give any regard to or give any explanation for how his youth had reflected upon moral culpability and general deterrence. 

On appeal, it was found that Judge Colefax had neglected his sentencing obligations, as when penalising TM, despite his having referred to moral culpability and general deterrence, it was determined that he had not done so in the thorough manner the role of a judicial officer requires.

And Justice Davies set out in relation to AJ’s appeal that “the sentencing judge had evidence before him from the Youth Justice Report which suggested that the excessive home discipline experienced by the applicant had possibly resulted in normalising physical harm in some circumstances.” 

“His Honour rejected that any such discipline had anything to do with the offending, although his Honour did not say why,” the appeals justice added. 

Judge Colefax was also in possession of a psychologist’s report that stressed AJ’s immaturity and the fact that the teen had been trying to “fit in” by joining in the assault. However, the sentencing judge made no reference to how his youth affected his moral culpability and general deterrence.

And for these reasons, Justice Davies found the first two grounds made out, which left it unnecessary to consider the remaining ground of appeal.

Due to parity in sentencing

On resentencing the teenager, Justice Davies outlined that he agreed with Judge Colefax in assessing that the crime was in the mid-range of objective seriousness, in finding that the Form 1 offences shouldn’t result in a steeper sentence and that a 25 percent sentencing discount should apply.

“Based on reports from Cobham Youth Justice Centre, the applicant’s prospects of rehabilitation are very good,” his Honour said. “I agree from all of the material that the applicant is remorseful, and I consider that the applicant is at low risk of reoffending.”

Justice Davies then underscored that the weight that the principle of general deterrence had upon the sentence should be mitigated due to the offender’s age, as well as his lack of maturity having the effect of reducing his moral culpability.

However, his Honour then made clear that he wouldn’t have considered a lesser sentence necessary if it wasn’t for the issue of parity regarding the resentencing of TM, who was the only offender that had a seriously difficult childhood.

And whilst TM kicked Campton, the court noted that AJ had stomped on the victim’s head.

So, on 6 October this year, Justice Davies determined that AJ’s head sentence would remain set at 3 years and 3 months prison time, but his non-parole period was reduced to 12 months.

And NSWCCA Acting Justice Carolyn Simpson and Justice Derek Price agreed with their colleague’s orders.

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