Wednesday, 5 November 2003
REGINA v D.S.W
Judgment
1 STUDDERT J: I agree with Barr J.
2 BARR J: This is an appeal brought by the Crown under s.5D Criminal Appeal Act. On 4 March 2003 the respondent was found guilty by a jury of maliciously inflicting grievous bodily harm upon the complainant, Mr Shane Noel. On 29 May 2003 Ducker DCJ sentenced him to imprisonment for four years and fixed a non-parole period of two years and six months. His Honour ordered under s.19 Children (Criminal Proceedings) Act that the sentence be served in a Juvenile Justice Centre. The Crown says that the sentence is inadequate.
3 The respondent, an aboriginal youth, was born on 3 September 1985. On 7 March 2002, when he was aged sixteen years and six months, he was in the company of friends and relations at an hotel in Grafton. The premises closed at about 11:00pm and the party left. The respondent had had so much to drink that he vomited. As the party moved away from the hotel there was a scuffle among its members, but he broke away from it. He came upon Mr Noel, a young man who was walking along the street minding his own business. He attacked Mr Noel. Nobody who gave evidence was able to say how the violence began, but the sentencing judge was satisfied that the respondent had started it. The respondent later gave two explanations why he had dealt with Mr Noel in the manner complained of. One was that he had a few days earlier called him a poofter and the other was that he had made a racist remark. The sentencing judge believed neither of those explanations. The evidence does not explain how it came about, but Mr Noel came to be lying in the street, apparently unconscious and quite unable to defend himself. The sentencing judge found that the respondent forcefully and deliberately jumped on his head, certainly more than twice. The attack ended when an adult member of the respondent's group pulled him away. That adult tried to help Mr Noel but was unable to do so. He saw blood and other fluid running from Mr Noel's ears and nose.
4 Before the attack Mr Noel was a healthy young man of normal intelligence. He suffered intermittent psychosis, probably schizophrenia, which was responding well to antipsychotic medication, and had a drug-induced problem for which he was receiving counselling and support. He was well and able to manage his own affairs. After the attack he was admitted to the Princess Alexandra Hospital in Brisbane. Scans revealed bilateral extracranial haematomas but no fracture of the skull or intracranial abnormality. He was badly affected and remained within the brain injury unit of the hospital for a number of months. He was doubly incontinent and dependent for all care. His cognition was seriously impaired.
5 In statements which were put before the sentencing judge, members of Mr Noel's family described the condition of Mr Noel in May 2003. He was unable to walk unassisted and used a walking frame with wheels. He was unable to walk long distances without becoming tired. He could not complete normal daily activities, such as showering and attending to his personal hygiene, without assistance. He had difficulty preparing meals and drinks. He suffered body tremors. He was incontinent on occasions at night. His vision was reduced. He had difficulty in focusing, reading and writing. He was undergoing physiotherapy and needed care and supervision 24 hours per day. He was unable to hold a driver's licence or drive a motor vehicle. He suffered from short-term memory loss. He tended to become agitated, frustrated and verbally abusive at times. He had a low attention span and had lost the ability to draw. Sometimes he was withdrawn. Sometimes he had difficulty understanding simple routines. He was confused when handling money and tended to lose track of time. It was necessary for the members of Mr Noel's family responsible for caring for him to be constantly on the alert. Their time was very much taken up with his care, with his personal hygiene, seeing to his medication and transporting him to physiotherapy, medical and hospital appointments. The stress and strain on the family was great. All the indications were that that state of affairs would continue indefinitely.
6 It is implicit in the findings of the sentencing judge that the respondent did nothing to try to help his victim. Moreover, as his Honour said, he gloried in what he had done, offering to demonstrate to those present what he had done and jumping close to Mr Noel's head. His Honour took the view that there had been no convincing statement of remorse on behalf of the respondent. A witness was called at the sentencing hearing who reported that the respondent had said to members of his family that he was sorry, but his Honour did not find the evidence impressive. His Honour noted that the maker of a Juvenile Justice report had observed that during her interview with the respondent remorse was neither stated or implied.
7 The respondent is the eldest of three children born to his mother and father. There are half-brothers and sisters as well. His parents separated when he was four or five years old and he was brought up by his grandparents. His mother and grandparents are part of the aboriginal community at Yamba. His father lives at Casino. All are concerned for him.
8 The respondent attended Maclean high school and left at the end of year nine. His attitude there was satisfactory and he is not recorded as having misbehaved. However, he began to use alcohol and other drugs at an early age. He first appeared in court in 1997, when he was placed on probation for two years for some unspecified offence. He was supervised by the Department of Juvenile Justice and responded satisfactorily. He was before the courts twice again in 1999, four times in 2000 and seven times in 2001. His offences were of misbehaviour, stealing and kindred offences and the possession of drugs. In March 2001 he was dealt with, among other things, for two instances of assaulting and intimidating police officers. He was put on a six month control order. That brought him into the Jacaranda Unit at the Juvenile Detention Centre at Grafton. On 15 July 2001 he was behaving in a noisy and agitated manner in his room. When one of the youth workers went to investigate the respondent punched him, breaking his nose. He was reported to have taken pleasure in the commission of that offence and to have said that if given the chance he would hit the worker again twice as hard.
9 That offence produced a twelve month period of probation and it was during the currency of that term that the respondent attacked Mr Noel.
10 A Juvenile Justice report was put before the sentencing judge. It indicated that during 2001 he had been binge drinking spirits weekly and using cannabis daily. Reports had indicated that he was not mentally ill and, unsurprisingly, that his offensive behaviour was connected with his abuse of alcohol and other drugs. He was said to have a propensity to react quickly and violently to behaviour by other males that he perceived as sexual.
11 His Honour had to decide in view of the age of the respondent whether to deal with him according to law or under the provisions provided by young people in the Children (Criminal Proceedings) Act. His Honour decided that the only appropriate way to deal with the respondent was according to law.
12 There were several features his Honour was bound to take into account in deciding how to sentence the respondent. The first was the objective seriousness of the attack on Mr Noel and its grave consequences. The second was the respondent's youth. The third was his troublesome history of violence and his abuse of alcohol and other drugs. The fourth was his lack of remorse and its effect upon his prospects of rehabilitation. The fifth was an offer he had made to plead guilty to this offence.
13 This last matter needs explaining. The respondent had been tried for the offence of maliciously inflicting grievous bodily harm with intent to do so. The jury had acquitted him of that charge but had found him guilty of the statutory alternative. During the sentencing proceedings counsel for the respondent informed his Honour that at the committal an offer had been made on his behalf to plead guilty to the offence of which he was ultimately convicted. The Crown had refused to accept the offer but had required the respondent to come forward to trial on the more serious charge. A conviction on that charge would have attracted a maximum penalty of twenty-five years' imprisonment. The offence of which the respondent was found guilty attracted a maximum sentence of only seven years' imprisonment.
14 Having expressed surprise at the verdict, his Honour commented critically on the difference between the two maximum penalties and called for an increase in the maximum penalty for the lesser offence.
15 The position of the respondent before his Honour was clear. He was entitled to full consideration for his offer. Although the Crown could not be criticised for pressing on to a trial on the more serious charge, the result of which was that the community was saved no time, trouble or expense, the respondent was entitled to equal value for his willingness to facilitate the course of justice: see Cameron v The Queen [2002] HCA 6. The appropriate range of discount in such an event is between 10% and 25%: R v Thomson and Houlton [2000] NSWCCA 309. Generally, the earlier the plea is offered the higher is the allowance that is made.