MJ v R, CPD v R

KT v R (2008) 182 A Crim R 571 R v AN [2005] NSWCCA 239 R v Bus (Court of Criminal Appeal, 3 November 1995, unreported) CASES CITED : R v Gallagher (1991) 23 NSWLR 220 R v Henry (1999) 46 NSWLR 346 R v LNT [2005] NSWCCA 307 R v Smith (1987) 44 SASR 587

MJ - Appellant PARTIES: CPD - Appellant The Crown - Respondent

T M Healey - for CPD COUNSEL: P Strickland SC - for MJ J Girdham - Crown

Z Vasiljevic - Solicitor for CPD SOLICITORS: S O'Connor (Legal Aid Commission) - for MJ S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT FILE NUMBER(S): 2008/18244; 2008/18246

IN THE COURT OF CRIMINAL APPEAL 2008/18244 2008/18246

McCLELLAN CJ at CL JAMES J ROTHMAN J

23 APRIL 2010 MJ v R CPD v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: MJ and CPD applied for leave to appeal against sentences imposed on them in the District Court on 13 March 2009 by his Honour Acting Judge McLauchlan for an offence of robbery in company inflicting grievous bodily harm committed on 21 March 2008, to which each of the applicants had pleaded guilty. A third offender ER who had participated in the joint commission of the offence and who was also sentenced by Acting Judge McLauchlan on 13 March 2009 did not apply for leave to appeal. 3 The applicants are referred to by their initials in this judgment, because each of the applicants was under the age of 18 years when the offence was committed. MJ was born on 28 April 1990 and CPD was born on 31 August 1990. The third offender ER was born on 22 July 1990. 4 The sentencing judge imposed on each of the applicants (and also on the third offender) a head sentence of three years with a non-parole period of two years and directed that the sentences be served in a Juvenile Detention Centre. The sentencing judge did not expressly specify a date for the commencement of each sentence, so that it would appear that each sentence should be taken to have commenced on the date of sentencing. Each of the applicants had been on bail up to the date of sentencing. 5 Robbery in company inflicting grievous bodily harm is an offence under s 98 of the Crimes Act for which the maximum penalty is imprisonment for 25 years. In circumstances where Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act applies, there is a standard non-parole period of seven years.

Remarks on Sentence 6 In his remarks on sentence the sentencing judge concisely summarised the facts of the offence. 7 In the early hours of the morning of 21 March 2008 the victim, a 25 year old man was waiting in a street for a taxi. 8 The three offenders approached the victim. One of the offenders walked behind the victim and struck him from the rear. The victim fell to the ground. While he was on the ground the victim felt blows to his head, body and legs. The victim estimated that he was hit in the head three or four times and on the legs 15 to 20 times. The victim particularly recalled blows to his "tail bone", to above his right eye and to his jaw. 9 The inflicting of blows on the victim ended and the victim got up and ran away. He discovered that his mobile phone was missing and he later discovered that his car keys were missing. It is clearly implicit in the agreed facts which were admitted into evidence in the proceedings on sentence and in his Honour's remarks on sentence that the mobile phone and the car keys had been stolen by the offenders. 10 The victim was taken to a hospital and treated there for two fractures to his jaw. Each fracture was surgically reduced and a metal plate inserted. The victim was observed to have other injuries, including a cut above his right eye and widespread bruising. 11 In his remarks the sentencing judge summarised what each offender had told police had been the extent of his personal contribution to the violence perpetrated on the victim. It is unclear whether his Honour accepted that these accounts by the offenders were fully accurate. In any event, his Honour found that all of the offenders were equally culpable. 12 In his remarks the sentencing judge summarised the objective facts of the offence as follows:- "Broadly speaking, the offenders were engaged in a joint criminal enterprise, born of the moment and fuelled by heavy intoxication, when they attacked the victim. Their conduct involved kicking and hitting the victim and striking him with a hammer. The actual hammer blows were struck by ER but, in my opinion, each of the participants shares the responsibility for this…"

13 In sentencing the offenders the sentencing judge proceeded on the basis that the offence was one to which the standard non-parole period of seven years applied. For the purpose of determining whether there were reasons for departing from the standard non-parole period his Honour engaged in an assessment of the level of objective seriousness of the offence and made the quite equivocal finding that "the present case is at most a middle range case but may equally be regarded as somewhat below that level of seriousness". It will be necessary later in this judgment to refer in more detail to the parts of his Honour's remarks on sentence relating to the standard non-parole period. 14 In his remarks the sentencing judge summarised the subjective circumstances of each of the applicants. Each of the applicants had, of course, pleaded guilty to the offence. 15 His Honour found that MJ had no criminal history, that he had shown remorse, that there was "no elevated risk" of his re-offending, that he had had drug and alcohol problems since he was 15 years old, that a grandfather and his mother had died of cancer and that a grandmother and his father had stated that the offence was out of character. 16 As to CPD, the sentencing judge found that he had no criminal history apart from a driving offence, that he had abused alcohol and drugs since he was 14 or 15 years old, that his father, grandfather and his mother's second husband had died and that his grandmother and mother had stated that the offence was out of character. 17 In his remarks on sentence his Honour made references to the Children (Criminal Proceedings) Act and to the guideline judgment for offences of armed robbery of R v Henry (1999) 46 NSWLR 346. 18 His Honour arrived at the sentences he imposed by deciding that a starting point of four years was appropriate and that the head sentence should be reduced to three years by reason of the plea of guilty. His Honour found special circumstances in the case of each applicant in a need to have a proportionally longer than usual period of conditional liberty.

Grounds of appeal 19 The original grounds of appeal of the applicant MJ were:-

1. His Honour erred in failing to reduce the applicant's sentence as a result of the assistance the applicant gave to authorities
2. The sentence proceedings miscarried because the applicant's counsel failed to draw to his Honour's attention the assistance the applicant gave the authorities 20 Shortly before the hearing of the applications notice was given that MJ intended to rely on additional grounds of appeal. The grounds stated in a document then lodged ("MJ's amended grounds") were:-
3. His Honour erred in applying the standard non-parole period because the applicant was under the age of 18 when he committed the offence
4. His Honour erred in failing to reduce the applicant's sentence as a result of the assistance the applicant gave to authorities
5. The sentence proceedings miscarried because the applicant's counsel failed to draw to his Honour's attention the assistance the applicant gave the authorities
6. The sentence was manifestly excessive
7. The applicant relies on the fresh evidence of his medical condition 21 Grounds 2 and 3 in the amended grounds are identical with grounds 1 and 2 in the original statement of grounds. 22 At the hearing the Court permitted MJ to rely on all the grounds in MJ's amended grounds. 23 The only ground of appeal originally relied on by the applicant CPD was that the sentence imposed on the applicant was manifestly excessive. At the hearing of the application the Court permitted CPD to rely on a ground of appeal in the same terms as the first ground of appeal in MJ's amended grounds. Counsel for CPD did not seek to rely on grounds similar to grounds 2 and 3 in MJ's amended grounds.

Consideration 24 It is convenient to deal first with the first ground of appeal in MJ's amended grounds and the corresponding ground of appeal by CPD. 25 It is clear that the sentencing judge was in error in proceeding on the basis that the offence was one to which the standard non-parole period of seven years applied. The Crown conceded that the sentencing judge had erred and, indeed, it was the Crown which had pointed out the sentencing judge's error in its written submissions on these applications. 26 In general, a standard non-parole period of seven years does apply to offences under s 98 of the Crimes Act. However, s 54D of the Crimes (Sentencing Procedure) Act was amended by Act 105 of 2008 by the insertion of sub-s (3) having effect from 1 January 2009, which provides that Div 1A of Pt 4 of the Act does not apply to the sentencing of an offender in respect of an offence if the offender was under the age of 18 years at the time the offence was committed. In the present case, each of the offenders MJ and CPD was under the age of 18 years at the time the offence was committed and the offenders were sentenced on 13 March 2009, after the amendment had come into effect. Section 54D(3) was not drawn to the attention of the sentencing judge in the proceedings on sentence. 27 As I have upheld this ground of appeal in the case of both applicants, the question arises whether this Court should now enter into a determination of what sentences it considers should be imposed on the applicants for the offence. If this Court enters into a determination of what sentences it considers should be imposed, then grounds 2, 3 and 4 in MJ's amended grounds and the only remaining ground in CPD's application would become academic and this Court could receive the evidence about MJ's medical condition which was not before the sentencing judge, without the need for the court to be satisfied that the evidence fell within one of the classes of fresh or new evidence which can be admitted on an appeal against sentence. 28 It was submitted by the Crown that the sentencing judge's error in proceeding on the basis that a standard non-parole period of seven years applied had not been a material error. It was submitted that it was evident from the leniency of the sentences that the error had not had any effect on the sentences. Consequently, this Court should not enter upon a determination of what sentences it considered should be imposed. 29 It is true that the non-parole period of the sentences imposed on the applicants was not the same as the standard non-parole period, that the sentencing judge held that there were reasons for setting a non-parole period shorter than the standard non-parole period and that the non-parole period in the sentences imposed on the applicants departed, and departed substantially, from the standard non-parole period. 30 Nevertheless, I do not consider that the sentencing judge's error can be regarded as immaterial. The sentencing judge devoted a substantial part of his remarks on sentence to the issue of whether a non-parole period equal to the standard non-parole period should be set. Although his Honour concluded that there were reasons for setting a shorter non-parole period than the standard non-parole period, his Honour, in accordance with authority, directed himself that a standard non-parole period of seven years remained "a reference point or guide". 31 Accordingly, I consider that this Court should enter upon a determination of what sentence it would itself impose on the applicants for the offence. In the case of the applicant MJ it will be necessary to take into account any assistance given by the applicant to the authorities and to the evidence about the applicant's medical condition which was not before the sentencing judge. There are no corresponding matters in the case of the applicant CPD and, accordingly, it is convenient to consider his case first.

The sentencing of CPD 32 I have already summarised earlier in this judgment the sentencing judge's statement of the facts of the offence, his Honour's summary of the objective facts and his Honour's summary of the subjective circumstances of CPD. 33 The submissions by counsel for CPD concentrated on the Children (Criminal Proceedings) Act ("the Act") and especially s 6 which provides:- "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." 34 The sentencing judge did refer to s 6 of the Act in his remarks on sentence but said that the principles in s 6 "have perhaps little relevance since the offenders were almost 18 years of age at the time". 35 It was submitted on behalf of CPD that he (like MJ) was still a child at the time of committing the offence and that the sentencing judge had erred in saying that the principles stated in s 6 were of "perhaps little relevance". 36 The offence for which the applicants were sentenced was an offence punishable by imprisonment for 25 years and was, accordingly, a "serious children's indictable offence" within the meaning of that expression in the Act and had to be dealt with according to law (s 17 of the Act). Notwithstanding that the offence was to be dealt with according to law, the sentencing judge was still required to apply the Act in the sentencing of the applicants. 37 However, the sentencing judge did not err in considering that the principles in the Act were of less significance because the offenders were almost 18 years of age at the time of committing the offence (CPD was over 17 ½ and MJ was within a few weeks of his 18th birthday). In KT v R (2008) 182 A Crim R 571 McClellan CJ at CL said at 578 [26]:- "The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity…A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age…" 38 Whether an offender is still a child or no longer a child for the purposes of the Act, an offender's youth is a relevant sentencing factor. Usually in the sentencing of a young offender greater emphasis should be placed on providing an opportunity for rehabilitation and less emphasis on general deterrence and retribution. However, as McClellan CJ at CL stated in KT at 578 [25]:- "The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity." 39 The present offence was one in which the applicants had conducted themselves in a way in which adults might have conducted themselves and was a crime of violence and of considerable gravity and, consequently, it was necessary for sentences to give some effect to the sentencing purposes of general deterrence and retribution. 40 It is apparent from his Honour's remarks on sentence that his Honour gave earnest consideration to the need to recognise and foster the applicants' prospects of rehabilitation. 41 In my opinion, the sentence passed by the sentencing judge on CPD was lenient and a more severe sentence than that imposed by the sentencing judge would have been warranted. However, in the absence of a Crown appeal, this Court should not set a more severe sentence than was imposed by the sentencing judge and I consider that this Court, while granting leave to appeal, should dismiss CPD's appeal on the basis that the Court considers that no less severe sentence would be warranted.

The sentencing of MJ 42 Earlier in this judgment I summarised what the sentencing judge found to be some of the subjective circumstances of MJ. In the sentencing of MJ it is necessary also to take into account evidence of any assistance given by him to the authorities and evidence about his medical condition which was not before the sentencing judge.

Assistance 43 After the offence was committed there was no immediate arrest of any of the offenders. 44 On 8 May 2008 a young adult male named Mark Barnes made a statement to police. In the statement Mark Barnes said that he was acquainted with the victim and all of the offenders, that he had become aware that the victim had been assaulted on the day after the offence occurred and that by Anzac Day 2008 he had heard that the two applicants and the third offender "may have had something to do with what happened to (the victim)". On 26 April 2008 CPD admitted to Mark Barnes that he had been involved in the offence and confirmed that the other two offenders were MJ and ER. Mark Barnes did not immediately go to the police. 45 MJ gave evidence in the proceedings on sentence that in early May 2008 he saw a solicitor and instructed the solicitor to make inquiries of the police, apparently as to whether the offence had been reported to police. MJ then attended a police station with his solicitor and took part in an interview by police in which he made admissions of his own offending and implicated the co-offenders. Police linked MJ's interview to the offence committed on 21 March 2008, which had been reported to police. The statement of 8 May 2008 was then obtained by police from Mark Barnes. 46 In cross-examination in the proceedings on sentence MJ admitted that he had become aware before he went to police that Mark Barnes knew that at least CPD was involved in the assault on the victim and "the word was going around that it was us". 47 It was submitted on behalf of MJ that MJ had provided assistance to law enforcement authorities and that was a matter which the sentencing judge had been required to take into account and which this Court was required to take into account in a re-sentencing of MJ (Crimes (Sentencing Procedure) Act s 21A(3)(m)). The sentencing judge had not referred to the matter of assistance in his remarks on sentence and it was submitted that it could be inferred that his Honour had failed to take it into account. Counsel submitted that the assistance provided by MJ should be found to have been significant and useful, even though there was no evaluation of the assistance by the authorities (s 23(2)(b)). 48 I accept that MJ did provide some assistance to the authorities and that that assistance should be taken into account by this Court. However, I do not consider that any substantial allowance should be made for the assistance. 49 There was a delay in MJ communicating with the police. He communicated with the police, only after he had ascertained that the commission of the offence had been reported to police and he knew that "the word was going around that it was us". 50 It is not a case where the offender has suffered or will suffer harsher custodial conditions as a consequence of assistance. There is no evidence of any risk of any injury to the offender or his family as a consequence of the assistance. 51 As was pointed out by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 227, where an offender is entitled to have assistance to authorities taken into account in his favour, that will usually be on a number of grounds some of which may overlap with other subjective matters to be taken into account in his favour. In the present case, I consider that there is substantial overlap with other subjective matters, such as the plea of guilty for which the applicant received a discount of 25 per cent and the applicant's remorse, which the sentencing judge took into account in his favour. 52 There is also the constraint in s 23(3) of the Crimes (Sentencing Procedure) Act that a lesser penalty by reason of assistance must not be unreasonably disproportionate to the nature and circumstances of the offence.

MJ's medical condition 53 Evidence about MJ's medical condition which was not before the sentencing judge included an affidavit by the applicant himself, three reports by Dr Tiley of the Cancer Care Centres at Gosford and Wyong Hospitals and a report by a psychologist. 54 In late November 2009 MJ was diagnosed as suffering from Stage 4 Hodgkin's Lymphoma. He has had a number of sessions of chemotherapy, which are continuing. On three occasions he has had to be taken by officers of the Juvenile Detention Centre to Gosford Hospital for treatment for the side effects of the chemotherapy. 55 The three reports by Dr Tiley were dated 5 January 2010, 1 February 2010 and 16 March 2010. 56 In his first report Dr Tiley commented mainly on the progress to that stage of the courses of chemotherapy MJ was undertaking. 57 In his report of 1 February 2010 Dr Tiley expressed an opinion about MJ's prognosis, which has been superseded by Dr Tiley's last report. Dr Tiley said in his report of 1 February 2010 that it had been difficult to achieve rapid transport of MJ from the Detention Centre to Gosford Hospital. 58 In his report Dr Tiley commented that persons suffering from MJ's illness should monitor their own temperature but MJ had not been provided with a thermometer. Patients should also keep a diary in which they record their symptoms but MJ had not been provided with a diary. 59 In his report Dr Tiley said that it was also almost universal for patients such as MJ to have a psychological reaction to their illness, including anger and frustration, and these emotions were difficult to manage in a correctional facility. 60 Dr Tiley expressed the opinion that MJ's detention was not conducive to MJ receiving optimal therapy, "given the high probability that adverse events will be under-recognised or that appropriate interventions will be delayed. This will increase the risk of treatment failure". 61 In his last report of 16 March 2010 Dr Tiley said:- "MJ appears to be responding extremely well to chemotherapy at this stage with a PET scan in late January indicating resolution of all previous areas of abnormal uptake suggesting a complete remission. I will be seeking confirmation of this response with repeat scans once he has completed the planned eight cycles of chemotherapy. With regards to prognosis the likelihood of MJ achieving a complete remission is 80-90% with the majority of these patients, around 80% remaining in remission and alive at five years. He faces some risk of late bone marrow toxicity including acute leukemia in the more distant future although this risk should be low." 62 In her report of 3 February 2010 Susan McConaghey psychologist said:- "In other words, as well as being "normally" worried and anxious about his health and treatment, MJ carries the added worry about, and lack of confidence in, the facility that is presently responsible for monitoring his health and transporting him to hospital as needed. From a subjective point of view, an institution is no substitute for a family with respect to being able to respond to the emotional demands of this present crisis." 63 The Crown filed an affidavit of 17 March 2009 by Dr Leigh Haysom of Justice Health, who is the medical officer at the Juvenile Detention Centre at which MJ is detained. In his report Dr Haysom said inter alia:- "MJ has just finished cycle 4 of his chemotherapy treatment, and is well. I see MJ almost every week at the centre to check his progress, monitor for complications of treatment and follow-up on blood tests. ……….. I very strongly feel that MJ has received an excellent level of care from the nursing staff, the clinic, Juvenile Justice New South Wales (JJNSW), and me. There have been some teething issues along the way which were always expected given the fact that MJ is incarcerated in a custodial facility, his transfers out are logistically difficult, and he requires an intensive level of monitoring in an environment that does not have 24 hour nursing care. JJNSW have gone out of their way to get MJ to all of his appointments, and have responded well, but within their staffing abilities, to his episodes of sepsis and illness. At no point has his health been compromised. The kitchen has provided extra nutrition in line with instructions given by the hospital, and the clinic room is made available to house MJ for rest and monitoring when he is more unwell post chemotherapy. MJ has been unwell during his treatment, which was not unexpected given the aggressive chemotherapy he receives. Despite this he has been well supported enough to continue to play some sport, do some work, and participate in activities and day visits. The nursing staff have educated the unit staff about things to be alerted to in MJ's case, and he has access to his own thermometer and can request pain relieving and anti-nausea medication whenever he needs it. The after-hours health staff have also been monitoring his care." 64 In R v Smith (1987) 44 SASR 587 King CJ of the Court of Criminal Appeal of South Australia said at 589, in a passage in his judgment which has been frequently quoted or referred to in this Court:- "How far should the new information about the appellant's health affect the matter? The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." 65 In the present case I am satisfied on the evidence that the applicant has been receiving a satisfactory, and indeed a high standard, of care while he is detained in the Detention Centre. According to the most recent report from Dr Tiley, the applicant is responding extremely well to the chemotherapy and there is likely to be a complete remission. Dr Haysom states in his report that, even while the applicant has been suffering from the side effects of the chemotherapy, he has been able to continue to play some sports, do some work and participate in activities and day visits. The evidence does not indicate that there has been any recent need to transport MJ to hospital and, if such a need should arise, it seems to me likely that officers of the Detention Centre, particularly with the benefit of the experience they have gained, will be able to transport MJ to the hospital within a reasonable time. 66 The evidence before this Court does not establish any serious risk of imprisonment having a gravely adverse effect on MJ's health and I do not consider that the additional burden from MJ's ill health, by reason of MJ being in a Detention Centre, is substantial. 67 Having taken into account in MJ's case the additional factors of assistance given to the authorities and his medical condition, I would still consider that a sentence of the length imposed by the sentencing judge would be lenient and that this Court on any re-sentencing should not impose a lesser sentence and on that basis, while giving leave to appeal, I would dismiss the appeal against sentence.

Conclusion 68 In the case of each applicant, while granting leave to appeal, I would dismiss the appeal against sentence. 69 ROTHMAN J: I have had the advantage of reading the reasons for judgment of James J. I agree with the reasons of his Honour and the orders that he proposes. 70 Further to the foregoing, I confirm the comments made by me in R v LNT [2005] NSWCCA 307 (with whom Simpson and Johnson JJ agreed) as to the principles to be adopted on the sentencing of young offenders. The Children (Criminal Proceedings) Act 1987 applied to minors and establishes a different regime than for adults. Nevertheless, a person who is 17½ years of age cannot be expected to be treated significantly differently from his co-offender who has turned 18. This does not mean that youth, who are not minors, are not entitled to an assessment of sentence, that takes into account their youth and immaturity: see LNT, supra, at [32] and following, and the cases cited therein. 71 Chronological age of a young offender is not solely the determining factor in deciding how much weight should be attributed to general deterrence, as distinct from the other factors, in assessing an appropriate sentence. Regard must be had to the mental state and circumstances of the offender at the time of the offending: R v AN [2005] NSWCCA 239, per Howie J, with whom James J and I agreed, at [57]. Likewise, the violence of the offence, of itself, does not necessarily establish that the juvenile is acting "as an adult". In sentencing, juveniles (including minors), who act as an adult would, the function of the courts requires deterrence and retribution and they remain, or become, more significant elements in sentencing the youth: R v AN, supra, at [53], citing R v Bus (Court of Criminal Appeal, 3 November 1995, unreported). The test, in those circumstances, is whether the youth has conducted himself or herself in a way that an adult would, and that requires an assessment of the maturity and conduct, not only the degree of violence and the gravity of the offence. 72 Nothing in the judgment of James J, in these proceedings, is inconsistent with the foregoing comments and nothing, in the foregoing comments, is intended to be inconsistent with the reasons for judgment of James J. **********

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