MW v R

Court of Criminal Appeal (NSW)|2010-12-10|Before: Simpson J, Blanch J, Garling J

The applicant's personal circumstances 23 As is clear from the above, the sentencing proceedings took place almost 4 years after the offence. 24 Before Williams DCJ was a (somewhat outdated) background report from the Department of Juvenile Justice. It is expressed to have been prepared for sentencing proceedings on 14 September 2007 (which happens to be the day on which the applicant was released on bail). Also before the sentencing judge was a comprehensive psychological report (by a Ms Seidler) dated 12 September 2007; and a letter (undated) handwritten by the applicant and addressed to the sentencing judge (directly related to the present offence). In yet another slip-up in this chronicle of errors, an updated report (whether from the Department of Juvenile Justice or the Probation and Parole Service is not clear) that had been requested did not eventuate. 25 The sentencing judge also had available, and had regard to, the Remarks on Sentence by Ainslie-Wallace DCJ, who sentenced a co-offender, Cecil McHughes. 26 The applicant gave evidence on the sentencing proceedings. 27 As I have mentioned above, the applicant was 4 months short of 18 years of age at the time of the offence. He was 21½ at the time of sentencing.

The applicant's personal circumstances 28 The applicant was born into an Aboriginal family in Brewarrina, NSW, the elder of two sons. His parents separated when he about 6 years of age, and he had little contact with his father thereafter, partly because of repeated incarceration of his father. His father was a heavy marijuana smoker, his mother an irregular user. The family have depended upon Social Security payments for income. Some years later his mother developed a relationship with another man, who was also a heavy user of marijuana. In 2005 (when the applicant was about 17) his mother suffered a nervous breakdown and this caused disruption to what remained of the family. 29 The psychologist, Ms Seidler, reported that the applicant's developmental history suggests significant social disadvantage through poverty and exposure, in an Aboriginal community, to alcohol and drug abuse, with "antisociality". 30 The applicant began using alcohol at about 16 years of age. He drank only occasionally, but then by binge drinking to intoxication over several days. He began using marijuana at 13, becoming a daily user in significant quantities. He acknowledged addiction to this drug. He used heroin for a time, but ceased. 31 The applicant has limited criminal history. He has been fined for driving (or riding) whilst unlicensed, and dealt with for larceny, destruction to or damage of property, goods in custody, and cautioned for being carried in a conveyance taken without the consent of the owner. Until June 2007 he had not spent any time in custody, either juvenile or adult. 32 After testing, Ms Seidler concluded that the applicant has "limited cognitive resources", most likely functioning in the lower end of the borderline range or the upper end of mild intellectual disability. 33 She therefore thought that the applicant had "considerable social needs, with respect to education, training and support, in addition to social supports within the community". She recommended a structured programme of community support. 34 The applicant's letter to the judge expressed regret for his actions and determination not to re-offend. He said that, in the intervening 4 years, he had fallen in love, abstained from alcohol, and stayed out of trouble, and had become a father (of a daughter, then 3 months old). He aspired to doing a TAFE course, to supporting his partner and their daughter, to obtaining employment. 35 In his evidence he essentially repeated this. He said that since being in custody he had ceased using marijuana, and felt (physically) better for it. 36 In cross-examination he said that, when the victim was asked for a cigarette, "he turned round and made a racial comment at us". (His Honour appears to have accepted this, in a passage in the Remarks on Sentence to which I will later refer.) 37 The applicant gave an explanation for his non-appearance in 2007. He said, initially, he had been told to attend at the Downing Centre Court, which he did, and waited all day until lunchtime. He said he was then told by his barrister that sentence could not be delivered at that court and he would have to go to another court (the transcript records him as saying the Downing Centre Court again, but this is probably a slip of the tongue on his part or transcription error). Frustration overtook him and he left. He was asked why he had not contacted police, to which he replied that he was frightened to go back to gaol. This, presumably, was a reference to the period he had spent in custody between June and September 2007.

The Remarks on Sentence 38 After recounting the facts, referring expressly to the Victim Impact Statement, and to the evidence of the applicant's personal circumstances, Williams DCJ dealt with the various considerations relevant to sentencing. 39 He accepted that the offence did not appear to have been planned and, in expressly accepting that "there was some degree of provocation", appeared to accept the applicant's evidence about the racial remark he attributed to the victim (although, a little later, he noted a description by Ainslie-Wallace DCJ of the assault as "unprovoked"). 40 He noted that the plea of guilty was not entered at the earliest available opportunity and noted the subsequent failure to appear. In respect of the plea of guilty, together with the assistance the applicant had given to authorities, he allowed a reduction in the sentence he otherwise would have imposed of 35 per cent. He took the view that the applicant had reasonable prospects of rehabilitation, and was well motivated, particularly in the light of his present family circumstances. 41 He considered that, by reason of the applicant's background, limited intellectual skills, and alcohol and marijuana consumption, he was not, at the time of the offence, fully aware of the consequences of his behaviour, although his Honour added that he must have realised that his behaviour was "quite inappropriate". 42 He accepted that the applicant was not the instigator of the event. He found, noting the concession by the Crown, that special circumstances existed justifying departure from the statutory ratio between the non-parole period and the head sentence set out in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). His Honour had regard to the sentence imposed by Ainslie-Wallace DCJ on McHughes. That sentence, however (as his Honour recognised) had limited real relevance: McHughes pleaded guilty to an offence of malicious wounding in company, an offence that carries a maximum penalty of 10 years imprisonment - compared with the maximum penalty applicable to the offence to which the applicant pleaded guilty, 25 years. 43 In other respects, comparison favoured the applicant. McHughes was older, had a more significant criminal history, and was subject to a suspended sentence at the time of the offence. Although both were from Aboriginal families who grew up in Brewarrina, McHughes was from a stable background. McHughes was sentenced to imprisonment for 3 years made up of a non-parole period of 15 months and a balance of term of 1 year and 9 months.

The grounds of appeal 44 The grounds of appeal are pleaded as follows: "1. The commencement date of the sentence is in error because: a. the resulting sentence does not take into account two months of custody served by the applicant solely referable to this offence;

b. the resulting sentence is wholly accumulated upon the earlier sentence.

The learned sentencing judge erred in failing to have proper regard to the applicant's age at the time of committing the offence.

Ground 1 45 As I have indicated above, the Crown accepts that there is some merit in this ground, although not to the extent claimed on behalf of the applicant. 46 At the time Williams DCJ sentenced the applicant, he was subject to the sentence imposed in the Local Court for the assault offence. That sentence was expressed to be imprisonment for 12 months commencing on 17 October 2009 and expiring on 16 October 2010 with a non-parole period of 4 months expiring on 14 February 2010. What Williams DCJ did was to impose a sentence that commenced 1 month into the non-parole period of that sentence, and therefore cumulative to that extent, and concurrent as to 3 months. However, after Sides DCJ re-sentenced the applicant on the assault offence, to a term of only 3 months and 13 days commencing on 3 July 2009 and expiring on 16 October 2009, there was, as at 17 November 2009, no valid sentence on which to accumulate the aggravated robbery sentence. In fact, subject to bail considerations in respect of that offence, the applicant was entitled to be free from 16 October 2009 until commencement (on 17 November 2009) of the sentence imposed by Williams DCJ. That means that from 17 October 2009 the applicant was in custody solely referable to this offence, a circumstance and a time he was entitled to have taken into account in the commencement date of the present sentence. 47 Counsel for the Crown has pointed out two anomalies in the approach taken by Sides DCJ. Firstly, the term of the sentence is highly unusual - it can hardly be thought that his Honour considered that 3 months and 13 days represented the appropriate term of a sentence for the assault offence. Rather, it is an inescapable inference that he selected that term in order that the applicant be free (or, subject to the present offence, entitled to be free) on the date of the execution of the bench warrants, and therefore that could be expected to be the starting point of this sentence. Secondly, the starting date of 3 July is unexplained, and, so the Crown suggests, inexplicable. If, as seems likely, Sides DCJ intended to structure the sentence to take into account the 2 months and 23 days the applicant had spent in custody between 22 June and 14 September, then it would be expected that the sentence would have commenced on 25 July, not 3 July. Counsel for the applicant accepted that this was so. 48 Both of these are valid points, well made by the Crown. But the sentence imposed by Sides DCJ is not before this Court, and this Court has no jurisdiction to intervene in it. Unless the Crown were somehow to challenge that sentence (as I understand it, it has no right of appeal), it must stand, however unlikely it appears to be. It would not be right to attempt to correct any errors in the sentence imposed by Sides DCJ through the mechanism of this application. (Section 7 of the Criminal Appeal Act 1912, which permits the Court, in specified circumstances, to quash or vary sentences other than that or those the subject of the appeal, has no application.) 49 In my opinion all this Court can do is to adjust the commencement dates of the present sentence in order to achieve what, plainly, Williams DCJ intended, which was frustrated after the decision of Sides DCJ. That is to accumulate the present sentences upon the sentence in respect of the assault offence by 1 month. (That was a sentence in which the non-parole component was 4 months, as distinct from the 3 months and 13 days ultimately imposed. The difference is immaterial.) To give effect to that intention it would be necessary to order that the sentence commence on 3 August 2009. However, counsel for the applicant accepted that the correct starting date would be 25 August. I will bear this in mind when I have considered the other grounds of appeal, and propose, as is necessary, a restructure of the sentence.

Ground 2: age 50 Counsel for the applicant referred to s 6 of the Children (Criminal Proceedings) Act 1987 ("the Children (CP) Act"), which sets out (in terms that need not here be re-produced) certain principles applicable to the sentencing of children. Of course, the applicant was, at the time of the offence, a child within the meaning of that Act, and entitled to its beneficial provisions. He was no longer a child by the time he was sentenced. 51 While the Children (CP) Act necessarily creates a distinct division between offenders classified as children, and offenders who are adults, the application of the principle is not so rigid. Where, as here, an offender is very close to the age at which he becomes, in the eyes of the law, an adult, it can be expected that he/she will be afforded somewhat less of the amelioration that might be given to a younger offender. Nevertheless, leaving aside the Children (CP) Act, it is well established that relative youth is a relevant factor to be taken into account in sentencing: see, for example R v SDM [2001] NSWCCA 158; 51 NSWLR 530; R v Pham and Ly (1991) 55 A Crim R 128; R v Hearne [1999] NSWSC 605; R v Hearne [2001] NSWCCA 37; 124 A Crim R 451; BP v R [2010] NSWCCA 159 and many others. 52 In response, the Crown argued that his Honour had adequately taken into account the applicant's age at the time of the offence. He opened his remarks by noting the applicant's date of birth and that he was 17 years of age at the time of the offence, and therefore a juvenile. Later, in noting the Crown's concession as to the finding of s 44(2) special circumstances, he referred again to the fact that the applicant was a juvenile at the time when the offence was committed. Finally, in considering the remarks of Ainslie-Wallace DCJ in sentencing McHughes, he noted her Honour's reference to the youth of that offender and his prospects of rehabilitation. The Crown submitted that, in effect, Williams DCJ incorporated her Honour's findings and her Honour's approach. 53 It is not clear to me that his Honour did so. What he said was: "Some of the things that her Honour referred to in her judgment are probably worth repeating."

He then noted her view that the assault was very serious, that it took place early in the morning when the victim was on his way to work, was unprovoked and must have been frightening, and that the victim had significant injuries. Williams DCJ then went on to say: "However, her Honour said in regard to Mr McHughes that he was not an appropriate vehicle for general deterrence as other more able offenders. He was young and issues of rehabilitation were important."

This passage is at least equally capable of being read as distinguishing the applicant - "other more able offenders" - from McHughes. 54 I have come to the view that the applicant has made good his contention that inadequate consideration was given to the fact that he was 4 months less than 18 years of age at the time of the offence. 55 This may be explicable by the circumstance that he was, at the time of sentencing, 21½ years of age. Nevertheless, his youth at the time of the offence deserved a greater degree of consideration.

Ground 3: manifestly excessive? 56 As I have mentioned above, the sentence ultimately imposed incorporated a reduction of 35 per cent in recognition of the plea of guilty and assistance to authorities. That translates to a starting point, therefore, of 5 years with a non-parole period of about 2 years and 8 months. 57 For an older offender, with a lengthier criminal record, that sentence would be well within the range. I have come to the view that, having regard to the applicant's youth, his relatively benign criminal record, and his personal circumstances, the sentence was manifestly excessive. 58 Two other matters, only lightly touched on in the proceedings before his Honour, suggest to me that the sentence did not take into account all relevant circumstances. Firstly, it appears that the applicant surrendered himself to police shortly after the assault offence. This may be of limited weight, given that he was known to the victim of that offence, and must have been identified. But the agreed facts also suggest (not very clearly) that it was his own disclosures, when arrested on 11 November 2006, that implicated himself in this offence. It that is so, it would have entitled him to consideration under the principles stated in R v Ellis (1986) 6 NSWLR 603. This was not drawn to the attention of the sentencing judge. 59 Secondly, the pre-sentence and psychological reports plainly brought the applicant, in terms of his social and family history, squarely within the pattern of disadvantage and deprivation identified by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58. This was also not adequately brought to the attention of the sentencing judge. 60 In my opinion, leave to appeal ought to be granted, the appeal allowed, and the applicant re-sentenced. 61 Against that possibility, the Court accepted additional evidence. An affidavit affirmed by the applicant shows that he is making significant progress towards rehabilitation. That means that the sentence that I propose will incorporate a greater reduction than it otherwise would. 62 I propose the following orders:

(i) leave to appeal granted, the appeal allowed, the sentence imposed on 15 January 2010 quashed;

(ii) in lieu thereof, the applicant be sentenced to imprisonment for 2 years and 9 months, commencing on 25 August 2009 and expiring on 24 May 2012, made up of a non-parole period of 1 year and 6 months, expiring on 24 February 2011, and a balance of term of 15 months.

(iii) direct the release of the applicant at the expiration of the non-parole period. 63 BLANCH J: I agree with Justice Simpson. I would add some comments. 64 Since the sentencing of the applicant, the Judicial Commission of NSW has been made aware of the Tribal Warrior Association Mentoring Program, a non- profit organisation operated by Aboriginal elders largely from Redfern in partnership with the Redfern Local Area Command of the NSW Police. This organisation provides certified commercial maritime training, employment opportunities and mentoring. It provides opportunities for education and encourages self-respect and independence. It is funded through the State Department of Community Services and the Federal Department of Families, Housing, Community Services and Indigenous Affairs. Training is funded through Centrelink and the Federal Department of Education, Employment and Workplace Relations. 65 The program with the co-operation of Redfern Police deals with offenders including young persons. There are presently seven trained mentors with plans to increase that to 30 by 2012. Importantly the program is a significant success with Redfern Local Area Command reporting a decrease of 80% in 2009 in the number of young Aboriginal men charged with robbery. 66 There is also a post release program for those recently released from custody. This program again is a co-operative effort between the police and the Tribal Warriors Association. It requires participants to complete a "behaviour undertaking" agreeing to various conditions including seeking assistance from assigned mentors who assist in obtaining accommodation and employment. The mentors conduct seminars and forums and meetings with police. 67 These programs appear to be an effective way of dealing with bail conditions and bond conditions and parole conditions. They also appear to be particularly relevant to this applicant. I would add a recommendation that on his release to parole he be referred to the program. 68 GARLING J: I agree with Simpson J. **********

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BP v R [2010] NSWCCA 159 R v Ellis (1986) 6 NSWLR 603 R v Fernando (1992) 76 A Crim R 58 CASES CITED : R v Hearne [1999] NSWSC 605 R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 R v Pham and Ly (1991) 55 A Crim R 128 R v SDM [2001] NSWCCA 158; 51 NSWLR 530

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