• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Facts

5. The facts were not in dispute.

6. In relation to the primary offence, in the afternoon of 17 March 2015, the appellant entered the Latham Handymart, a small local supermarket in Latham, a suburb of Canberra. The only other person in the store at the time was the female part-owner. The appellant was holding a kitchen knife in his right hand at hip height. He approached the owner, pointed the knife towards her and demanded that she open the till and give him the cash. The owner, fearing for her safety, told the appellant that he could take as much cash as he wanted. The appellant did so, removing cash of an amount between $400 and $1,400. The appellant also demanded that the owner give him her Apple iPad and Apple iPhone and then left the store. Following his apprehension, the appellant participated in an interview in which he admitted to committing the offence. He told police that he committed the offence to pay off drug debts.

7. The facts of the 2012 offence were that the appellant and a co-offender entered a residential home in Waramanga by smashing a laundry window. They ransacked rooms in the house before the police arrived and apprehended them.

8. The facts of the 2013 offence were not dissimilar to the facts of the primary offence, though on that occasion the appellant was in the company of others. In the early morning of 22 August 2013, the appellant and two co-offenders entered a 7-Eleven Service Station located in Melba. Present in the store at the time was a male sales attendant and a female customer. Upon entering the store, one of the co-offenders (not the appellant) pointed a large knife at the sales attendant, who then fled and locked himself in the manager’s office. The appellant’s co-offenders seized what was approximated to be about $200 from the till and fled the scene with the appellant. The appellant was apprehended later that morning.

The sentence proceedings

9. The evidence tendered at the sentence proceedings included evidence of the appellant’s criminal history, a Pre-Sentence Report (which annexed a series of earlier Pre-Sentence Reports) and a report of the Court Alcohol and Drug Assessment Service (CADAS).

10. The appellant had a relatively lengthy criminal history, given his young age, including convictions for possessing cannabis, assault, obstructing a public official, theft and possessing a knife without reasonable excuse.

11. The Pre-Sentence Reports were far from positive in terms of the appellant’s attitude to the primary offence and his prospects of rehabilitation. The same could be said of the CADAS report.

12. In a Pre-Sentence Report dated 1 June 2015, the author stated:

On 19 May 2014, YJCM [Youth Justice Case manager] asked [LB] what [sic] he thought his offence has on his victim. [LB] reported that, “I don’t think about it at all”, [LB] went on to report that, “I’m not bothered about it”. YJCM asked [LB] if he regretted committing the offence, [LB] reported that, “not at all, I do it again, it was worth it”. YJCM assessed [LB] has [sic] having no remorse or regret about the victim and [the] offence. [LB] showed no empathy towards his victim or his circumstances. YJCM asked [LB] why he had committed the offence knowing that he would be arrested due to the lack of sophistication around the planning of the offence. [LB] reported that, “I owed money, and need to pay the dept [sic] off quick”. YJCM asked [LB] if he felt he was in a better situation now he did not owe the money, [LB] reported “yes”. The YLS/CMI [Youth Level Service/Case management Inventory] has assessed that [LB] [sic] level of risk with regards to ‘attitudes and orientation’ is high. This is due to [LB] having no remorse or empathy towards his victim. [LB] also defies authority whilst in Bimberi and refuses help where offered.

13. The appellant was assessed as being within the high risk category for recidivism.

14. In the CADAS report (dated 20 May 2015), CADAS concluded as follows:

[LB] has refused to engage in counselling treatment which is recommended by CADAS. [LB] refused to enter another residential program in the future. [LB] requested the only intervention he will do is to see his worked at Ted Noffs. [LB] does not intend to continue with schooling or seek employment. [LB] showed no remorse for the armed holdup reporting to CADAS he is likely to use drugs in the future and could not guarantee he would not re offend [sic]. Remarks on sentence

15. In his remarks on sentence, the sentencing judge dealt with the uncontentious facts concerning the offences. His Honour noted that the commission of the primary offence occurred whilst the offender was subject to good behaviour orders in relation to the 2012 and 2013 offences and remarked that “it is a circumstance calling for greater punishment with respect to the present offences that you committed this offence whilst subject to those orders”.

16. After dealing at length with the appellant’s subjective circumstances as revealed in the Pre-Sentence and CADAS reports, his Honour concluded as follows:

You are apparently very immature, aimless and self-centred young man [sic]. It is to be hoped that as you grow older you will achieve a greater level of maturity and with it an ability to understand how your acts affect others. You presently do not see beyond the immediate thrill of drug-taking and perhaps the status that gives you with your peer group. You appear to have no interest in changing your way of life, and in particular addressing drug abuse. Your prospects for rehabilitation at the present time must be seen as guarded, although it is possible, bearing in mind your age, that this may change during the term of imprisonment, though, I intend to impose. You are to be sentenced by reference to the principles governing the sentencing of juveniles set out in the Crime Sentencing Act, 2005 [sic], which means that I may give greater emphasis to your rehabilitation and I must also sentence in accordance with the common law principles of individualised justice. Other sentencing considerations, however, such as general and personal deterrence are still relevant, particularly, in this case. In my opinion, you present as at [sic] high risk of reoffending, taking into account your drug abuse, your unwillingness to address that abuse, your attitude to your offending and your lack of empathy. I have considered all sentencing options but I am satisfied that nothing less than an immediate term of imprisonment is appropriate.

Appeal ground and submissions

17. As indicated earlier, the sole ground of appeal was that the sentence was manifestly excessive, in that it required the appellant to serve a period of 22 months’ imprisonment before being released into the community. The appellant did not contend that the “head sentence” (which is taken to mean the aggregate sentence of 36 months of imprisonment) was manifestly excessive.

18. It was not asserted that the primary judge made any specific error in sentencing the appellant. Indeed, the appellant expressly conceded that the primary judge’s findings concerning the high risk of the appellant reoffending and the “guarded” prospects of rehabilitation were plainly open. Nor did the appellant submit, by reference to sentences imposed in comparable matters, that the sentence imposed (including the period of imprisonment to be served before the sentence was suspended) was outside any established range of sentences for the offences. The appellant accordingly conceded that, in order to succeed on the appeal, he had to establish that the sentence was “unreasonable or plainly unjust”; that the excess was “plainly apparent”: Dinsdale v The Queen (2000) 202 CLR 321 at 325[6].

19. The appellant relied on Ch 8A of the Sentencing Act, which applies when a court is sentencing a young person and modifies the sentencing regime that would otherwise apply under the Sentencing Act. Chapter 8A requires a court that is sentencing a young person to focus on the sentencing purpose of rehabilitation and “the common law principle of individualised justice” (s 133C). It also provides that imprisonment for a young offender should be “a last resort for the shortest appropriate term” (s 133G). The appellant did not suggest that the sentencing judge failed to focus on rehabilitation or failed to have regard to the principle of individualised justice. He submitted, however, that 22 months imprisonment was not the “shortest appropriate term” and that to require the appellant to serve such a lengthy custodial sentence was “plainly unjust”.

Consideration

20. It is by no means “plainly apparent” that the sentence imposed by his Honour was unreasonable or plainly unjust. Rather, it is apparent that the sentence was, in all the circumstances, both reasonable and just.

21. The primary offence was objectively serious. The appellant did not suggest otherwise. It carried a maximum penalty of 25 years imprisonment. The appellant had a lengthy criminal history. He was on conditional liberty in the community at the time that the offence was committed as a result of Good Behaviour Orders, including Good Behaviour Orders made in the context of a sentence for an earlier offence that was strikingly similar to the primary offence. The appellant had shown little remorse or insight into his offending behaviour and had displayed a complete lack of empathy towards those affected by his offending. The appellant’s prospects of rehabilitation were poor. The need for a sentence which provided for specific deterrence was obvious. The sentencing judge was entitled to give some weight to sentencing purposes such as accountability and protection of the community.

22. The appellant’s immaturity and failure to engage with education also justified a period of enforced discipline and educational opportunity that a term of imprisonment would provide in his particular circumstances. It was noted that the appellant had, in fact, commenced his Year 12 studies while in custody following sentence.

23. When consideration is given to each of those matters, it is not possible to conclude that requiring the appellant to serve 22 months imprisonment was unreasonable or plainly unjust. The sentence imposed was not manifestly excessive. The appeal must accordingly be dismissed.

24. It remains to make one brief observation concerning an authority relating to the sentencing of young offenders that was referred to in the Crown’s written submissions. The Crown referred to a passage from the judgment of McClellan CJ at CL in KT v R (2008) 182 A Crim R 571 at [25] where his Honour observed, amongst other things, that the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be “moderated” when the young offender conducted him or herself “in the way an adult might conduct him or herself” and has committed a crime of violence or considerable gravity. His Honour also noted, at [26], that the weight to be given to a person’s youth diminishes the closer the offender approaches the age of maturity. Neither of those generalisations sit comfortably with the statutory regime in Ch 8A of the Sentencing Act, which focuses attention on individualised justice and considerations such as the young offender’s maturity and state of development. There is not always a direct correlation between a young offender’s age and his or her maturity and state of development. Attention should be focused on the particular circumstances of the young offender to be sentenced, not on generalisations about “adult behaviour” or generalisations based solely on the age of the offender. I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 24 February 2016