AE v THE QUEEN

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 10, 15A, 15C, 17, Div 3A LEGISLATION CITED: Crimes Act 1900 (NSW), s 98 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54D Criminal Appeal Act 1912 (NSW), s 6

Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Diesing v Regina [2007] NSWCCA 326 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Lowe v The Queen [1984] HCA 46; 154 CLR 606 CASES CITED : OM v R [2009] NSWCCA 267 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Davies [2004] NSWCCA 319 SS v R [2009] NSWCCA 114 SBF v R [2009] NSWCCA 231

PARTIES: AE - Applicant The Queen - Respondent

COUNSEL: K Ginges - Applicant D Arnott SC - Respondent

SOLICITORS: Hal Ginges & Co Solicitors - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent

IN THE COURT OF CRIMINAL APPEAL CCA 2009/5108

BASTEN JA HALL J LATHAM J

10 September 2010 A E v THE QUEEN Headnote On the night of Thursday, 21 August 2008, the applicant, AE (then aged 15) and three other young people, R K, W U and E H, agreed to "bash" or "roll" someone. At about 11.45pm, the victim was approached by the two girls, R K and E H, and asked for money, which he did not have. The applicant then grabbed the victim from behind and held a flick knife against his neck. The victim offered to give them what money he had if they would leave him alone. When his hands were freed, he attempted to flee, but was tackled after a short distance, punched, kicked and stabbed by the applicant in his legs.

The issues for determination on appeal were whether the sentencing judge:

(i) failed to consider the principles of the Children (Criminal Proceedings) Act 1987 (NSW);

(ii) failed to consider the evidence of Ms Bromley, the chaplain at Reiby Juvenile Justice Centre, where the applicant was being held;

(iii) took into account the standard non-parole period, and

(iv) imposed a sentence which was out of proportion to the sentences imposed upon his co-offenders.

The Court held, allowing the appeal: (per Basten JA, Hall and Latham JJ agreeing):

In relation to (i)

1. Although his Honour sentenced the applicant "according to law" rather than under the principles prescribed by section 6 of the Children (Criminal Proceedings) Act 1987 (NSW), the principles were not irrelevant. Given the circumstances, the failure to refer to these principles expressly did not affect the outcome: [9]-[13]. SS v R [2009] NSWCCA 116; SBF v R [2009] HSWCCA 231 followed. KT v R [2008] NSWCCA 51; 182 A Crim R 571 considered.

2. It seems implausible that the primary judge would have forgotten or intended to disregard Ms Bromley's evidence. It is more likely that the primary judge considered Ms Bromley's evidence to the substantially in conformity with the Juvenile Justice Report, to which he did refer and which was more detailed and objective in its assessment: [14]-[20].

3. The sentencing judge used the standard non-parole period as a factor or guidepost indicating Parliament's intention as to the seriousness of such an offence, thereby justifying a higher sentence than might otherwise have been thought appropriate. Given that the standard non-parole period was inapplicable pursuant to s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) due to the age of the offender, that approach was erroneous: [21] - [26]. Baxter v R [2007] NSWCCA 237; 173 A Crim R 284; Diesing and Ors v Regina [2007] NSWCCA 326 considered. R v AJP [2004] NSWCCA 434; 150 A Crim R 575; R v G J Davies [2004] NSWCCA 319 cited.

4. The disparities in the roles and personal circumstances of the offenders warranted a greater sentence being imposed on the applicant: [27]-[32]. Lowe v The Queen [1984] HCA 46; 154 CLR 606 cited. OM v R [2009] NSWCCA 267, distinguished.

IN THE COURT OF CRIMINAL APPEAL CCA 2009/5108

BASTEN JA HALL J LATHAM J

10 September 2010 A E v THE QUEEN Judgment 1 BASTEN JA: On 26 June 2009 Hosking DCJ sentenced the applicant, then almost 16 years of age, to a period of imprisonment involving a three year non-parole period and two years balance of sentence. The sentence was imposed in respect of a charge of robbery in company with wounding, in contravention of s 98 of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment. A standard non-parole period of seven years is specified in respect of the offence. The standard non-parole period was not applicable in the present case, but his Honour found in any event that the offence fell within the mid-range of objective seriousness. 2 A statutory prohibition on the publication of material which might disclose the applicant's identity renders it appropriate that he not be named in these reasons: Children (Criminal Proceedings) Act 1987 (NSW), s 15A. The facts 3 The incident giving rise to the charges occurred shortly before midnight on Thursday, 21 August 2008. Earlier in the evening, the applicant, who was then just 15 years of age, travelled with two other young people (identified as W U and E H) to a park at Pennant Hills. At the park, they consumed alcohol; the applicant and W U each consumed one ecstasy tablet. During the course of the evening the applicant played with a flick knife that he had been given some six months earlier. The three left Pennant Hills together and travelled by train to Granville, where they purchased a cask of wine. They then caught another train bound for Lidcombe. At Auburn a fourth young person, R K, who was the girlfriend of the applicant, joined the group. They left Lidcombe station at about 9.30pm and walked to a nearby park. After drinking alcohol for about two hours, R K said that she wanted to "bash someone". They discussed "rolling" someone. The applicant produced his knife, but W U told him he would not participate in a robbery if the applicant was going to stab someone. W U attempted to take the applicant's knife, but the applicant retained it, promising he would not use it. 4 At about 11.45pm, the victim, Mr Hardeep Singh was approached by the two girls, R K and E H, at a telephone booth in Mills Street, Lidcombe. They asked Mr Singh for money which he said he did not have. At that stage the applicant grabbed Mr Singh from behind and held the flick knife against his neck. Someone else grabbed his hands and held them behind his back. The two girls were not apparently involved in the struggle. 5 The applicant asked Mr Singh if he was Muslim, to which he replied that he was Indian. The applicant stated (not entirely accurately) "we are Muslim" and said either "we will kill you" or "we will stab you, if you not have any money". 6 Mr Singh then offered to give them what money he had if they would leave him alone. When W U let go of his hands, Mr Singh took the opportunity to flee, but was tackled by one of the young persons after a short distance. His mobile telephone, calling card and fifty cents fell on the road. One of the young women picked up the mobile telephone and kept it. W U and the applicant punched and kicked Mr Singh. The girls ran off, but E H came back and punched Mr Singh three times in the face whilst he was lying on the ground. R K then returned to join in the punching. W U apparently yelled at the group to stop punching Mr Singh, but after the group started to move away and the applicant had been told that the girls had not taken anything from Mr Singh, the applicant returned to where he was being held (presumably by W U) and stabbed him four times, although causing only two wounds, to his legs. Mr Singh's jacket was searched, but found to be empty. As the group left, the applicant stated, "If you say you are Muslim we will leave you, otherwise we will kill you". Mr Singh replied "I am Muslim". 7 Over the following week, each of the young persons, other than the applicant, was interviewed by police. The applicant was arrested on 8 September 2008 whilst attending Auburn Police Station in relation to this matter, but denied being involved in the offence. He was subsequently released. On 22 September 2008, he attended Auburn Police Station in relation to another matter, at which time he admitted that he had witnessed the robbery of Mr Singh, but claimed he was not involved. Issues on appeal 8 It is said on appeal that the sentencing judge erred in:

(a) failing to consider the principles of the Children (Criminal Proceedings) Act 1987 (NSW); (b) failing to consider the evidence of Ms Bromley; (c) taking into account the standard non-parole period, and (d) imposing a sentence which was out of proportion to the sentences (later) imposed upon his co-offenders. (a) principles relevant to sentencing children 9 In respect of the first complaint, his Honour stated that he was dealing with the matter "according to law" rather than under the procedure prescribed by the Children (Criminal Proceedings) Act, having regard to what his Honour described as "the extreme seriousness of this offence": Children (Criminal Proceedings) Act, s 17; judgment on sentence, p 2. 10 Section 6 of the Children (Criminal Proceedings) Act provides as follows: " 6 Principles relating to exercise of functions under Act A person or body that has functions under this Act is to exercise those functions having regard to the following principles: (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind, (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, (g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim." 11 The principles apply to any court exercising criminal jurisdiction with respect to a person under the age of 18 years: s 4. 12 The fact that his Honour was sentencing "according to law" in respect of a serious children's indictable offence did not render the principles irrelevant. However, their consequence in the present case would primarily be twofold. First, they would require that consideration be given to the fact that while a person under 18 years of age must bear responsibility for his actions, because of his state of "dependency and immaturity" he or she will require guidance and assistance. Secondly, the principles require that wherever possible he or she should be allowed to continue his or her education or employment and to reside at home. The latter principle at least is inconsistent with fulltime incarceration. However, it had limited relevance in the present case: KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[26] (McClellan CJ at CL). The applicant was neither pursuing education nor in employment. He was, however, living with his grandparents. 13 Given the circumstances set out above, the failure to refer to these principles did not, of itself, affect either the reasoning or the outcome in respect of the appropriate sentence. That such an assessment is appropriate is in conformity with the principles stated in SS v R [2009] NSWCCA 114 at [64] and in SBF v R [2009] NSWCCA 231 at [141]ff (Johnson J, Spigelman CJ and McClellan CJ at CL agreeing). The trial judge was fully entitled to hold that the offence demanded a period of fulltime incarceration, despite the applicant's age. The failure to refer to the principles is not itself appellable error, but did involve a factor which will be revisited shortly. (b) evidence of chaplain 14 The second matter complained of was the failure to make reference to the evidence of Ms Lee Bromley, a chaplain at Reiby Juvenile Justice Centre. 15 The evidence of Ms Bromley, given orally, is set out in the transcript of 22/05/09 at pp 5-9. The cross-examination (involving four questions) established that although Ms Bromley knew the general nature of the offending, she was not familiar with the detail of the criminal activity for which the applicant was to be sentenced. However, she said that in her role as chaplain they had "spent many, many sessions" in the chapel, during which the applicant appears to have undertaken work, but also discussed his situation with Ms Bromley. She stated: "[A E] sought me out, he was very remorseful especially at the start of the year. I think the gravity of his situation really took light in his life and he sought me out, in particular for counselling, and we've spent many hours talking about things, his family life, and all sorts of other things which I think led him to pleading guilty for his part in this crime. … That was a decision he made himself through numerous hours of counselling and talking about life and [A E] does suffer anxiety so we've been working very gently with [A E]." 16 She also noted that A E had been seeing a clinical psychologist weekly and that together they had "seen great improvement especially the last couple of months [A E] has really grown in maturity but also in character of strength". 17 In answer to a question from the sentencing judge, she stated: "I think [A E] is fearful in custody. … [he] has a wonderful grandmother … but [he] aches, I see him ache, from his lack of not being with his family, which shows to me he has a very sensitive, soft spirit which I think has realised the gravity of his crime …." 18 In addition to the evidence of Ms Bromley his Honour had available to him a report from Juvenile Justice. In referring to that document, his Honour stated (judgment, p 9): "He claims that he feels regretful for taking part in this offence; that may be true, it probably is true. The report says that he recognises the injuries caused to the victim and demonstrated remorse as well as empathy, presumably to the victim for his actions. I will accept that as true as a probability." 19 Amongst other things, and consistently with the evidence of Ms Bromley, the report stated (p 9): "It would appear that [A E]'s current time in custody has given him time to think about his actions and the consequences of his actions. [A E] appears to have learnt a valuable lesson and seems determined to live a pro-social lifestyle. [A E]'s attitude and world view towards criminal behaviour also appears to have improved, however more intervention surrounding this area seems required." 20 Ms Bromley's evidence had been given, together with submissions and the tender of other evidence on sentence, on 22 May 2009. On that day, his Honour adjourned the matter to 26 June 2009 for sentencing. Whether his Honour had a copy of the transcript of the evidence when preparing his reasons for sentence is not known. However, he referred in his reasons to other matters which had arisen at the sentencing hearing on 22 May. It seems implausible that he would have forgotten or intended to disregard Ms Bromley's evidence altogether. What is more likely is that he considered her evidence substantially in conformity with the Juvenile Justice Report, which was far more detailed and perhaps balanced in its assessment, and to which his Honour made detailed reference. Having regard to Ms Bromley's evidence (but not having observed her in the witness box) and having read the report, no error has been shown. (c) reference to standard non-parole period 21 The third ground identified above asserted that his Honour's consideration of the standard non-parole period caused the sentencing exercise to miscarry. There is substance in that complaint. His Honour clearly understood that the standard non-parole period did not apply but did not articulate fully why it did not apply. His Honour stated (judgment, p 8): "I will return for a moment to the significance of the standard non-parole period. As I said earlier it does not apply automatically for amongst other reasons that the offender pleaded guilty. Nevertheless it remains, according to the authorities, as a guideline or perhaps guidepost giving some indication, I emphasise some[,] of what the standard non-parole period here should be." 22 A number of comments are apposite in relation to this passage. First, and least importantly, the last sentence was clearly intended to be a reference to the actual non-parole period to be imposed, and not to a "standard" non-parole period, which was not imposed. Secondly, and more importantly, whilst recognising that there were a number of reasons why the standard non-parole period was inapplicable, his Honour referred explicitly only to the plea of guilty. A further, and arguably more important, reason was the exclusion of its operation pursuant to s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The commencement of this provision six months earlier (on 1 January 2009) might be thought to give rise to an expectation that it would be referred to, if its relevance were appreciated. 23 Thirdly, and in combination with the last matter, his Honour's reference to the use of a standard non-parole period as a guideline or guidepost, giving an indication of the range of sentencing options, while not erroneous, is troubling. That language, was originally used in a context where the standard non-parole period was, according to the statute, applicable but the Court exercised the discretionary power to depart from it: see, eg, R v AJP [2004] NSWCCA 434; 150 A Crim R 575 and R v Davies [2004] NSWCCA 319. To use the standard non-parole period as a reference point in a case to which, by force of the statute, it has no application, is to risk misuse. Further, if some indication is to be derived from such a reference point, it is important to identify why the reference point is not in terms applicable. Most importantly in the present case, that is because of the age of the offender. The underlying reasoning is, no doubt, that the application of a standard non-parole period in the case of a young person is likely to be inconsistent with the principles governing the sentencing of children, as set out above. 24 It is clear, in the present case, that his Honour referred to the standard non-parole period as an indication of the seriousness of the offence: in the sentence following the passage set out above, he noted, by way of addition, that the seriousness could also be derived from the maximum sentence. 25 The question is whether the limited use made of the standard non-parole period was a material error, in the sense explained in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at [19] (Spigelman CJ) and [83]-[84] (Latham J). In Diesing v Regina [2007] NSWCCA 326, the Court (Hoeben, Latham and Harrison JJ) stated:

"53 It was common ground that there was no standard non-parole period applicable to offence 4. It was also common ground that her Honour had had regard to a standard non-parole period in relation to offence 4 when she said 'Nevertheless the standard non-parole period remains relevant to sentence as a guidepost …'. The applicant submitted that there was no basis for consideration by her Honour of a standard non-parole period in relation to offence 4 and that in doing so patent error had occurred in that her Honour had taken into account an irrelevant factor. (See R v Ohar (2004) 59 NSWLR 596 at [84].)

54 It was submitted by the applicant that not only had her Honour had regard to an irrelevant consideration but that the sentence imposed by her Honour arose from a reasoning process which was tainted by patent error. It is clear from that reasoning process that her Honour was influenced by an irrelevant matter, ie the standard non-parole period. (See DAC v Regina [2206] NSWCCA 265 at [9]-[10].)

55 As noted at para [53], it has been conceded that there was error in her Honour's approach to sentence. We accept that her Honour was influenced by an irrelevancy to the extent that her reasoning process was infected. Accordingly, the proviso in s 6(3) of the Criminal Appeal Act 1912 has been triggered. The question is whether this Court, after re-exercising the sentencing discretion, ' taking into account all relevant statutory requirements and sentencing principles ', is of the view that some lesser sentence is warranted in law: Baxter v Regina [2007] NSWCCA 237 per Spigelman CJ at [19]. 26 There is a level of uncertainty as to precisely how the sentencing judge took the standard non-parole period into account, but on balance it should be accepted that it was used as a factor indicating Parliament's intention as to the seriousness of such an offence, thereby justifying a higher sentence than might otherwise have been thought appropriate. Given that the standard non-parole period was inapplicable, as a matter of law, and that the reason was the age of the offender, in my view that approach was erroneous in principle. The consequence will be addressed below. (d) sentencing of co-offenders 27 The fourth ground alleged a lack of parity or due proportion with the sentences imposed on the co-offenders. 28 Parity is not the appropriate language in this context. The others were not sentenced for the same offences but for lesser offences, which did not carry the same penalty. In each case the individual circumstances of the offenders played a significant part in the determination of their sentences. Each of the other three offenders was sentenced by Ellis DCJ in the District Court. Two received suspended sentences and one a significantly lesser sentence than that imposed on the applicant. In each case, the reasons for sentence explained the departure from the degree of severity meted out to the applicant, for whom the reasons for sentencing were available to Ellis DCJ when determining the sentences imposed later. 29 The applicant sought to derive support from the reasons given by this Court in OM v R [2009] NSWCCA 267 at [27]-[35] (Fullerton and McCallum JJ). The applicant further suggested that I agreed in the reasons in the joint judgment in that case: I did not. I was then, and remain, concerned that the language used in the joint judgment might be thought to give rise to intervention in inappropriate circumstances. It should be quite clear that the mere fact of disparity between the sentences imposed upon individuals engaged in a common criminal enterprise is, of itself, no ground for appellate intervention. Particularly is that so where the later (and lesser) sentences were imposed by a judge (or judges) fully apprised of the earlier sentence and the reasons for imposing that sentence. 30 It is undesirable, but sometimes unavoidable, that persons involved in a common criminal enterprise are sentenced at different times or by different judges. Disparity in outcome may give the appearance of disparity in approach in circumstances where the basic principle of equal justice requires consistency in punishment: see Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610 (Mason J). However, equal justice also requires that differences in culpability be reflected in different measures of punishment. Accordingly, where circumstances differ, disparity in outcome will be an appropriate, or even necessary, result. It will reflect the fair administration of justice, rather than the contrary. 31 Further, the personal circumstances of a group of offenders will tend to vary, as will the degree of responsibility for the criminal acts. Nor is there any scientific approach to the assessment of such matters. A judge sentencing one offender only must do the best he or she can, on the circumstances and material before the court. If the sentence imposed on that offender is within an appropriate range, given all the circumstances before the sentencing judge, care must be taken by the appellate court not to intervene on the basis that the lesser sentences were precisely correct and that the greater sentence must be calibrated against them. On the other hand, it will usually be inappropriate to comment on the other sentences, those offenders not being before the court. 32 The disparities in the roles of the various parties, outlined above, fully warrant the greater sentence being imposed on the applicant. This ground of appeal is rejected. Conclusion on challenge to sentence 33 The sentencing judge convicted the applicant and sentenced him to a non-parole period of three years with an additional term of two years. That is a significant sentence for a person who was 15 years of age at the date of the offence. Consideration of such a sentence warrants a grant of leave to appeal. 34 One of the specific challenges to the sentencing exercise has been made good, namely the use apparently made by his Honour of the standard non-parole period. It remains necessary to consider whether, despite the error, a less severe sentence is warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3). On one view, despite its relative severity, the sentence has not been shown to be disproportionate to the criminal conduct involved in the offence, including elements of entirely gratuitous violence. 35 On balance, I consider that the non-parole period was excessive, given the age of the applicant at the time the offence was committed. It seems likely that the influence of the standard non-parole period on the thinking of the sentencing judge may have led him to adopt a degree of severity which, though entirely warranted by the objective circumstances of the offence, was high given the age of the young person and his Honour's conclusion that "it appears that [the applicant] has begun the process of re-evaluating his previously held values in regard to anti-social behaviour, attitudes, peer associations and drug use": judgment, p 12. In all the circumstances, I would reduce the non-parole period to a term of two years six months (in place of three years), but leave the length of the overall sentence unaffected, to take account of the expectation of the authorities that an extended period of supervision will be desirable once he is released to the community: judgment, p 12. The balance of the term should therefore be 2.5 years. 36 The effect of these orders will be to vary the relationship of the non-parole period to the balance of the term. The sentencing judge made a finding of special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act, having regard to the fact that it would be the applicant's first time in custody and the need for a lengthy period of supervision, given his antisocial attitudes and other problems. On re-sentencing, the statutory ratio will increase, an effect not inconsistent with the finding of special circumstances, based on the reasons stated by his Honour, which should continue to apply. Closed court 37 At the commencement of the hearing of the application, the Court ordered that the hearing should proceed in open court. 38 Pursuant to s 10 of the Children (Criminal Proceedings) Act, where the court is hearing a proceeding to which a person under 18 years of age is a party, no person who is not directly interested in the proceedings (other than a journalist) is entitled to remain in the courtroom, subject to the court directing otherwise. The effect of the provision, in the absence of an order otherwise, is that the public may learn of the administration of justice in a particular case, but only through a public news medium and not through attendance at court. 39 Any intrusion on the open administration of justice is capable of leading to an erosion of public confidence in the integrity of the system. Accordingly, exceptions to the principle warrant close scrutiny. Where a child is a party to criminal proceedings, Parliament has determined that the principle of open justice should be compromised in the manner noted above, subject to the court exercising its discretion to direct otherwise. There is no need for special circumstances to be shown: it is sufficient that the court exercises its discretion in the circumstances of the particular case, bearing in mind the underlying purpose of s 10. 40 One factor to be borne in mind in that context is that, as already noted, the identity of the child will be protected from publication by separate provisions under Div 3A of the Children (Criminal Proceedings) Act. It is not suggested that an exception should be made to this provision, for example pursuant to s 15C. However, given the seriousness of the offence, the importance of principle of open justice, the fact that the applicant is now 17 years of age and the prohibition on publication of his name (which includes any information or material likely to lead to identification of him - s 15A(5)) the principle of open justice favoured an order that the Court not be closed in the manner provided by s 10. Orders 41 The following orders should be made:

(1) Grant leave to the applicant to appeal against the sentence imposed on him in the District Court on 26 June 2009.

(2) Allow the appeal in part and set aside the non-parole period of three years and the balance of term of two years set by the sentencing judge.

(3) In lieu thereof, set a non-parole period of two years six months commencing on 22 September 2008 and ending on 21 March 2011, with a balance of term of two years six months, commencing on 22 March 2011and ending on 21 September 2013. The direction that the custodial period be served in a juvenile institution as a juvenile offender stands. The first date upon which the applicant will become eligible for release on parole will be 22 March 2011. 42 HALL J: I agree with the orders proposed by Basten JA and with his Honour's reasons. 43 LATHAM J: I agree with Basten JA. **********

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