HAMILL J: The applicant seeks leave to appeal against sentences imposed by her Honour Judge Wells in the District Court sitting at Lismore on 1 November 2013. The applicant, who was 15 years of age at the time of the offence, was sentenced along with two other juvenile offenders (AA and PW) following their pleas of guilty to two offences, the most serious of which was a charge of armed robbery with wounding which carries a maximum penalty of 25 years imprisonment: s 98 Crimes Act 1900 (NSW). There is a standard non-parole period associated with this offence but that period does not apply to juvenile offenders. Each of the offenders also pleaded guilty to a charge of assault occasioning actual bodily harm whilst in company (AOABH). AOABH in company carries a maximum penalty of 7 years imprisonment: s 59(2). That offence occurred during the course of the commission of the armed robbery offence.
In addition to the offences to which he pleaded guilty, the applicant also asked that an offence relating to the use of a stolen motor car be taken into account on a Form 1 pursuant to the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW). The car was used to drive to the scene of the robbery.
The applicant was sentenced as follows:
1. AOABH - fixed term of 12 months commencing 25 February 2013 and expiring 24 February 2014.
2. Armed robbery - non-parole period of two years commencing 25 May 2013 and expiring 24 May 2015 with a balance of term of two years expiring 25 May 2017.
The sentences were largely concurrent but there was an accumulation to the extent of 3 months. Thus, the total effective sentence imposed on the applicant was 4 years and 3 months with a non-parole period of two years and three months. The applicant is eligible for release to parole on 24 May 2015.
The co-offender AA was sentenced to a term of imprisonment of 2 years with a non-parole period of 12 months and a wholly concurrent period of 9 months for the assault offence.
The co-offender EW was sentenced to 3 years with a non-parole period of 18 months for the robbery offence and a wholly concurrent period of 9 months for the assault offence.
There is no ground of appeal asserting that the disparity in the sentences gives rise to a justifiable sense of grievance. Apart from significant differences in the subjective cases, to which it will be necessary to make some reference in the course of this judgment, the facts showed that the applicant was the instigator of the offence.
The applicant's notice of appeal raised two grounds and a third ground was added on the hearing of the appeal. The grounds as amended are as follows:
1. "Her Honour failed to address the applicant's "moral culpability" in relation to the offending behaviour, particularly in the light of the applicant's intellectual impairment and ADHD.
2. Her Honour failed to take into account the applicants intellectual impairment and ADHD in relation to the issues of;
1. general and personal deterrence; and
2. that the applicant's time in detention will be of greater hardship than those without such impairments.
1. Her Honour erred in inferring that it was DA who "bent down and punched" Mrs Wilson "to the face with a right closed fist on at least three occasions in quick succession" (ROS at 3.9), it, in effect being agreed between the parties (pursuant to s 191 of the Evidence Act 1995 (NSW) that Mr Wilson, who observed the incident, "was unable to specify which of the offenders did this" (see Agreed Statement of Facts - part of Exhibit 1 on sentence at page 3.3)."
There was an agreed statement of facts. Her Honour recounted the facts in her judgment:
"The facts in the matter are before the Court by way of an agreed facts document pursuant to s 191 of the Evidence Act (1995). Shortly before 2.50pm on 24 February 2013 the young persons travelled in a vehicle that was stolen the morning before to the store. DA was the driver of the vehicle, EW was seated in the front passenger seat, AA and two other young people, KH and DM were seated in the rear of the car. When they arrived at Wyangeree General Store, DA turned to the others and said something to the effect of, "Oh boys do you want to do a robbery." Either he or one of the others repeated that and they all agreed to participate. Four of them entered the store whilst Mr and Mrs Wilson were present. They walked around looking for items. Mrs Wilson asked them if they were all right and they said that they were fine. They left the store and went a short distance away and to all appearances were having a discussion about committing the offence. That discussion was held between four of them with DM apparently still sitting in the vehicle. DA again instigated or promoted the commission of the offence and there was then agreement between them to carry it out. He then said, "A," referring to AA, "You and K run in first." AA agreed to do this.
Mr Wilson in the meantime from inside the shop could see them outside. He saw their hand gestures. He saw one pull the hood of his jacket over his head and became unsurprisingly apprehensive. They entered the shop the second time at 3 o'clock, some ten minutes after their arrival. DM stayed in the car. AA went in first, approached Mr Wilson who was standing near the front door and punched him in the face with closed fist on a number of occasions. He sustained a one centimeter wound to his chin that later required stitches. AA later said that he kicked Mr Wilson. At about that time, KH, another co-offender who is not currently before this Court, picked up a broomstick with a metal hook on the end that was used to pull the shop front door down. He approached Mr Wilson at about the time that AA was engaged in punching Mr Wilson. He began to swing the stick in a forceful manner on a number of occasions. He struck Mr Wilson to the left side of the head and his back with that broomstick. Mr Wilson tried to protect himself by putting his left arm up but was struck on the left arm.
At about the same time, DA who had entered the store ran towards Mrs Wilson. She saw her husband being assaulted and went to assist. DA punched her, knocking her to the ground. She says that she was struck so hard she saw white. DA turned to Mr Wilson and joined in the assault on him before returning to Mrs Wilson. While she was unconscious lying on the ground, one of the offenders inferentially, DA, bent down and punched her to the face with a right, closed fist on at least three occasions in quick succession. At the same time, Mr. Wilson was distracted by one of the offenders threatening him with a knife. Mrs Wilson was still lying on the ground, DA approached her, bent down to her face and demanded the cash. She lapsed into unconsciousness again.
As this attack was being made upon Mr Wilson, EW had entered the store. He and AA made demands for the money and the cigarettes. One of them demanded the fifties and said if they were not told where they were, he would stab them. This person was holding a small knife in his hand. As a result, Mr Wilson told them there was money in the safe. One of them went to the safe and found a blue metal money box that did contain Australian notes but that was left behind. Again they demanded cigarettes or the "smokes" and they were told by Mr Wilson that they were in a cupboard. Property was then removed from the store. While that was happening AA was behind the counter searching that area for items to steal. He picked up a small broom handle and again made a threat while holding that handle to hit anyone who moved. They were all involved in searching for property. Whilst the property was being removed, DM the fifth person entered the store. He was partially disguised. He too left with a quantity of property. All of them were involved in taking stolen property to the car. In the end they took about 100 packets of cigarettes worth over $2,000, forty-two bottles of alcohol worth over $1,500 and something over $1,300 worth of cash and coins. They walked out according to closed-circuit television at about 3.06pm and left in the stolen car.
Witnesses alerted the police and went to assist the Wilsons. A patrolling police vehicle came upon them at Bonalbo. The police car activated lights and sirens. As the stolen vehicle attempted to negotiate past the police vehicle, it collided with a nearby tree. The five offenders left the vehicle and ran into the bush.
The Wilsons meanwhile were taken to hospital where they were treated. Mr Wilson had a wound to his chin as has been noted, soreness to the rear of his head and back, a cut to his forearm and left lower leg and a bruised and swollen middle finger on his left hand. Mrs Wilson who had been knocked unconscious had a sore back, left side of head and jaw and bruising and swelling to her right knee and ankle. Although there is no victim impact statement before this Court, it would be expected that the emotional damage done to Mr and Mrs Wilson would be lasting and perhaps of greater impact than their physical injuries.
Most of the robbery was, captured on the Closed-circuit television. It shows DA holding what appears to be a sharp implement in his outstretched right hand. AA told police he thought there was a butter knife in the car but didn't know if anyone had grabbed it. Scissors were found inside the shop near where the alcohol was kept that did not belong there. AA's prints were found in the stolen vehicle. EW's fingerprints were found in the store on the vegetable fridge glass lid and on a white plastic tub in the boot of the stolen car. DA's prints were found in the store on a cigarette packet protector and on the window of the stolen vehicle. The other two co-offenders prints or DNA were also found.
The following day 25 February both DA and EW were arrested by police, both declined to be interviewed. On 26 February AA was arrested, he took part in an electronically recorded interview where he made detailed and frank admissions in relation to the involvement of himself and the others in the offence. The interview that was held with police closely matches that of the agreed facts and the still pictures that are part of the agreed facts and the still pictures that are part of the exhibits before this court."
The sentencing Judge described the applicant's personal case as follows:
"DA was at the time of the offence fifteen. (DOB [content removed]). He has a criminal history that shows that he has committed some serious offences and has been subject to a previous control order. He, like all of the other young offenders, is an Aboriginal person. DA was diagnosed with ADHD when he was seven to eight years of age and with a mild intellectual disability at aged five. His behaviour according to the Juvenile Justice report of 16 September 2013 was described as erratic, impulsive and violent at school. He was suspended for hitting other children and described as defiant, aggressive and difficult at home and suffered variable, unpredictable moods. He was non-compliant with supervision, difficult to supervise because he chose to avoid appointments and was reclassified because of violent behaviour. It is said that he reacts poorly to any teasing. He is currently a client of the Serious Young Offenders Review Panel. The report reiterates that he has a diagnosis of a mild intellectual disability with hyperactivity. He suffers emotional distress, feelings of significant grief and loss, a history of an alleged sexual assault and poor interaction skills."
[2]
Grounds 1 and 2
In advancing these grounds the applicant placed great reliance on the contents of two Juvenile Justice reports dated 12 September 2013 and 29 October 2013. The applicant submits that whilst the sentencing Judge made some brief reference to the material in those reports, her Honour did not give effect to relevant sentencing principles concerned with young offenders and particularly young offenders who suffer from some intellectual disability. It is regrettable that the sentencing Judge was not provided with more direct and cogent evidence in relation to the matters which are subject to this appeal. There was no direct evidence from a suitably qualified expert.
The report of 12 September 2013 indicated that his carer informed the Juvenile Justice officer that DA was going well in primary school until he began to have behavioural issues at 7 or 8 years of age. He was then diagnosed with "ADHD". He completed his first year of high school but his behaviour deteriorated and he was placed in special classes. The report indicated that he obtained "little schooling" when he was in the community. At 14 years of age he was in custody in juvenile centres and did some form of distance education. The report noted that since being in custody for the present offences he had been attending the year 10 programme. However, his attendance was described as sporadic and he had been involved in "incidents" that prevented him from attending. It was said that he had "good periods" but also "some not so good times". The report said:
"In previous reports it was documented that [DA] was diagnosed with ADHD when he was years 7-8 years of age. [DA] was previously linked into a number of services to assist his need. He was referred to the SWITCH program and the disability service in May 2012 via Juvenile Justice however due to a lack of engagement and detainments to custody he was not to benefit wholly from the resources of the service providers."
The report noted that DA had been a client of the Juvenile Justice Service since October 2012 and had been subject to bonds, probation orders and parole orders. He was described as "non-compliant with supervision" and "extremely difficult to supervise often [avoiding] appointments". The report concluded that supervision upon release was necessary although DA had requested that he not be subject to supervision.
The report of 29 October 2013 said that DA had an "intellectual disability significant enough to be eligible for direct case management". The disability was described as a "mild intellectual disability and ADHD". It noted a "history of defiance and physically aggressive behaviour towards his peers".
The second report also said:
"Dr Jackie Andrews in her report from 25 October 2013, confirms the diagnosis of mild intellectual impairment and ADHD. She also states that DA did not have regular review appointments and as a consequence he ran out of his medication. Dr Andrews states clearly in her report that DA was not medicated at the time of the offence. She adds, that ADHD makes DA more impulsive, i.e. he does not stop and think before acting. She is also canvassing a possibility of court mandating for DA to take his medication. Dr Andrews states that DA requires an increased level of supervision from his peers, as he functions at a level that is considerably lower than his biological age. Furthermore she states that he is unable to make decisions at an age appropriate level. It can be surmised that DA is vulnerable to being guided by negative peers.
The report also noted that DA had some difficulties since being remanded in custody on 26 February 2013. He had been reclassified twice because of his violent behaviour and "can react violently when being teased and baited by fellow detainees" a reaction which "could be precipitated by his limited understanding and ability to express himself because of his intellectual disability".
These were matters of real significance although, as I have said, the sentencing Judge was not assisted by the direct evidence of Dr Andrews or from any other qualified expert.
The applicant relies on well-established and important principles concerning the sentencing of young offenders. He relies on the following passage from Slade v The Queen [2005] NZCA 19 at [43]:
"It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear, 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents' decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents' desire for peer approval, and fear of rejection, affects their choices even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent."
This passage was cited with approval by Kirby J in R v Elliot and ton [2006] NSWCCA 305; 164 A Crim R 208 at [127].
Apart from the applicant's youth, principles relating to the sentencing of offenders suffering from intellectual disabilities and neurological or mental health issues were also engaged. It is well established that an offender's intellectual capacity may impact upon a sentencing exercise in a variety of ways, not all of which are dependent upon a causal link being established between the condition and the offending. In R v Israil [2002] NSWCCA 255 Spigelman CJ said at [21]-[26]:
"The significance of mental illness of an offender in the sentencing exercised has long been accepted. The relevant authorities have been reviewed in this Court, the Victorian Court of Appeal and the Western Australian Full Court. See R v Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson J; R v Harb [2001] NSWCCA 249 at [35]-[45] per Smart AJ; see also R v Lauritsen (2000) 114 A Crim R 333, esp [43]-[51] per Malcolm CJ; R v Tsiaras [1996] 1 VR 398 at 400; see also Potas, Sentencing Manual: Law Principles and Practice in New South Wales 2001 at 285-286; Fox and Freiberg, Sentencing State and Federal Law in Victoria (2nd ed), 1999 at 293-294.
In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion.
To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry, supra, at [254]:
'... the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.'
I agree with the observations of Malcolm CJ in Lauritsen at [48]:
'... mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence.'
Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it:
'... specific deterrence may be more difficult to achieve and is often not worth pursuing as such.' (Tsiaras, supra, at 400)
Finally, a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served. (See Tsiaras, supra, at 400). However in Lauritsen at [51], Malcolm CJ noted that this factor, identified by the Victorian Court of Appeal in Tsiaras, may not represent the law in Western Australia. It is unnecessary to determine whether this is the law in New South Wales. It appears to have been regarded as material in this Court in R v Jiminez [1999] NSWCCA 7 at [25]. I see no reason why this would not be so, but the matter was not fully argued."
The complaint in ground one concerning the failure to take into account the applicant's intellectual impairment and ADHD in determining the offender's moral culpability is difficult to sustain when there was no evidence - at least no direct evidence - that the applicant's conduct was causally related to the conditions referred to in the Juvenile Justice report. Counsel for the applicant relies on inferences to be drawn from the substance of those reports and the applicant's behaviour.
A further difficulty for this argument lies in the fact that the facts of the offence suggested that the applicant was not led astray by his peers. Rather the evidence suggested that he was the instigator of the offence. Further, the sentencing Judge found that the offence (at least from the point of view of the applicant) was premeditated to a certain degree. It was not an impulsive act. In this regard the sentencing Judge made the following findings:
"In relation to premeditation, it is only DA who could be regarded as a person who had considered what he wanted to do over a period of time before arriving at the shop as he was the driver of the car. He drove the other boys there. He was the one in the car outside the store who suggested the offence be committed. He continued to promote the idea of committing a robbery and gave the initial directions before anyone really entered the store on the second occasion."
The learned sentencing Judge made specific reference to relevant principles concerning the sentencing of juvenile offenders. She said:
"As they are young offenders the principles relating to the exercise and functions under the Children (Criminal Proceedings) Act 1987 (NSW) s 6 apply and I have regard to that. I also have regard to the general sentencing principles found in the Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A and particularly note that greater weight should be placed on the individual's rehabilitation in formulating the appropriate sentence and less weight should be directed towards the principle of general deterrence."
The sentencing Judge in the present case took a more lenient approach to the sentencing of the co-offenders AA and EW. This was no doubt because there was more material placed before her to support a number of positive findings. In each case there were psychological reports providing direct evidence of their psychological functioning. AA was assessed as being in the "borderline range of intellectual function" with his IQ being above only 5% of his peers. The psychologist also noted features of attention deficit disorder. In summary, it was said that:
"the combination of AA's intellectual development disorder, limited verbal expressive skills, peer pressure and the effects of cannabis on decision making are considered to be causal factors in his involvement in the incident."
The psychological report for EW referred to his early involvement in drugs resulting in "a degree of developmental lag where there is a delay in emotional and moral development".
The applicant is correct that the sentencing Judge made no reference to the fact that the Juvenile Justice report indicated that the applicant was operating at a "level that is considerably lower than his biological age". Nor did her Honour make any reference to the question of whether this may have impacted on his impulsivity on the day of the offence or meant that he was influenced by peer pressure to involve himself in the offence. Such matters may, as the applicant correctly submits, have influenced an assessment of the applicant's moral culpability. However, as I have said, the Judge made factual findings which proved such a contention difficult to sustain. These were that DA was the only one of the offenders who had acted with some form of premeditation and also that he was the instigator of the offence.
Her Honour specifically referred to the diagnoses of ADHD and mild intellectual disability. Against that, for present purposes, were her findings as to his role and premeditation and the evidence of his aggressive and violent behaviour and non-compliance with supervision. While I accept that it may have been preferable for Judge Wells to engage clearly with the principles to which the applicant has referred, I do not accept that her Honour failed to address the applicant's moral culpability or that, in doing so, she did not take into account the evidence of his intellectual impairment and ADHD. Accordingly, ground 1 must be rejected.
As to ground 2, the evidence that incarceration would be more onerous as a result of his intellectual disability and ADHD was not particularly strong. The second juvenile justice contained the following:
"DA can react violently when being teased and baited by fellow detainees. This could be precipitated by his limited understanding and ability to express himself because of his intellectual disability. Mr Holmes, psychologist, in his report referred to distorted negative interpretations of benign actions of others, which translates to high risk behaviours in group settings."
The report of Mr Holmes was not before the court and so the "high risk behaviours" to which reference was made was unexplained. Apart from the above passage, there was little, if any, evidence that the applicant was a person whose intellectual disability would make his time in custody more onerous. Her Honour made passing reference to the fact that the applicant did not respond well to being teased which suggests that she had read and considered this part of the report.
Again, I am unable to accept that the sentencing Judge failed to take this evidence into account in relation to the issues of deterrence and whether the applicant's time in custody would be more onerous. Accordingly, ground 2 must also be rejected.
[3]
Ground 3
The third ground of appeal concerns an inference that her Honour drew from the agreed facts. It was added at the hearing of the appeal and brief submissions were directed to it.
The relevant part of the agreed facts were as follows:
"DA approached Mrs Wilson and punched her knocking her to the ground. DA struck her so hard that Mrs Wilson stated, 'I just saw white'. DA then turned towards Mr Wilson and joined into the assault on Mr Wilson before returning to where Mrs Wilson lay. At this stage, Mrs Wilson was unconscious. As she lay on the ground unconscious Mr Wilson observed one of the offenders bend down and punch Mrs Wilson to the face with a closed fist on a least three occasions in quick succession. He was unable to specify which of the offenders did this as he was distracted at this time by one of the other offenders threatening him with a knife.
While Mrs Wilson was still lying on the ground, DA the approached her, bent down with his face up against hers and said 'Where's the cash, where's the cash.' Mrs Wilson again lapsed into unconsciousness".
In recounting the facts, Judge Wells said:
"At about the same time, DA who had entered the store ran towards Mrs Wilson. She saw her husband being assaulted and went to assist. DA punched her, knocking her to the ground. She says that she was struck so hard she saw white. DA turned to Mr Wilson and joined in the assault on him before returning to Mrs Wilson. While she was unconscious lying on the ground, one of the offenders inferentially, DA, bent down and punched her to the face with a right, closed fist on at least three occasions in quick succession. At the same time, Mr. Wilson was distracted by one of the offenders threatening him with a knife. Mrs Wilson was still lying on the ground, DA approached her, bent down to her face and demanded the cash. She lapsed into unconsciousness again."
[My emphasis]
The applicant submits that the facts were agreed under s 191 of the Evidence Act 1995 (NSW) and that no submission was made by the prosecutor that DA was the person who hit Mrs Wilson three times. It is submitted that it was an error to draw this inference in those circumstances.
The agreed fact that Mr Wilson was unable to identify the person who hit his wife three times was not a matter that prevented the Judge from drawing inferences from the fact that it was DA who had knocked her unconscious before that incident, that DA returned to where she lay after joining the assault of Mr Wilson and that it was DA who had asked her where the money was after that incident.
Further, it is far from clear precisely what her Honour meant by saying "inferentially DA". It is true that later in the judgment she referred to the fact that "DA showed considerable actual violence, particularly towards Mrs Wilson". However, that was true on any view of the facts. On the evidence available, it was open to the sentencing Judge to infer that it was DA who was responsible for that action.
While it has been submitted that the sentencing judge should have raised the matter with counsel and made plain the basis of her finding and whether it was being taken into account as an aggravating circumstance, this was a case where the young offenders were acting in concert and where the applicant was both the instigator and the only one of the young offenders to act with premeditation. The extent to which their precise roles within the premises would have impacted on the appropriate sentence is very doubtful. I would also reject ground three.
[4]
Conclusion and orders
The sentence imposed on the applicant was a severe one for a person of his age. The grounds that have been taken on his behalf are matters of substance. Accordingly, I would grant leave to appeal. However, none of the grounds have been upheld and the appeal must be dismissed.
Accordingly, the orders I propose are:
1. Application for leave to appeal granted.
2. Appeal dismissed.
[5]
Amendments
16 January 2015 - removed date of birth from quote in paragraph 12
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Decision last updated: 16 January 2015