R v DM

the application for leave to appeal against sentence 57 Three grounds of the application were advanced. They may be encapsulated as asserting: 1. error in the partial accumulation of sentences; 2. error in failing adequately to promote rehabilitation (as evidenced by the sentences imposed); 3. the imposition of manifestly excessive sentences.

grounds 1 and 2: partial accumulation; rehabilitation 58 As argued, these grounds raise specific matters that ultimately lead into the third. It is convenient to deal with them together. The argument advanced in support of the first ground focussed upon the applicant's youth, both at the time of the offences, and the time of sentencing, and the principle of totality, as most recently recognised by the High Court in Johnson v The Queen [2004] HCA 15; 78 ALJR 616. 59 Counsel for the applicant relied upon a very recent decision of this Court in R v JDB [2005] NSWCCA 102; unreported, 24 March 2005. There Mason P, with whom Barr and Johnson JJ agreed, said: " ... For an offender of this age, facing his first time in custody, extreme youth should have meant that rehabilitation and not deterrence was the primary focus of attention (see generally GDP (1991) 53 A Crim R 112)." 60 That case, however, was very different from the present. That applicant, like the present applicant, was 15 years of age at the time of the application; he was aged between 13 years and 5 months and 14 years and 2 months at the time of the offences to which he pleaded guilty and for which he was to be sentenced. There, however, the similarities end. That applicant was charged with six offences against s66A of the Crimes Act 1900, that is, having sexual intercourse with a person under ten years of age. The victim was his half-sister, aged eight. The judgment suggests that the applicant had never previously had an adverse encounter with the law. There was a great deal of subjective material to which Mason P made detailed reference. I do not read the single sentence extracted above as intended to state a general principle, but rather to apply conventional and known principles to the case before the court. 61 It is, in my view, a general principle that, in the case of an extremely young offender, more emphasis can be given to questions of rehabilitation, even at the expense of deterrence: see R v GDP (1991) 53 A Crim R 112. But that is not universal, and does not mean that, in an appropriate case, issues of general deterrence are not of significance. On the facts of JDB, one would think that general deterrence did not loom large. The courts are not swamped with 13 year old boys sexually assaulting their half-sisters, or, indeed, anybody else. That does not apply to the present case; the applicant's offences, particularly the robbery offences, are quintessentially of the kind that attract attention to the concept of general deterrence. 62 Nevertheless, it is correct to note that by reason of the present applicant's age rehabilitation was and remains a matter of real significance. The DJJ and psychological reports confirm that. 63 Counsel for the applicant relied upon the passage in the psychological report, extracted above, in which the psychologist recommended that, at the end of any custodial sentence imposed, the applicant be required to undertake a three month rehabilitation programme with intensive follow-up and community integration. Counsel argued that the overall non-parole period of four years did not allow for the incentives to rehabilitation suggested in this part of the report. He also argued that the effective minimum term of four years was "neither required nor appropriate in this case". 64 It is true that there were some quite promising signs of rehabilitation. However, it can hardly be said that the sentencing judge overlooked that evidence. He referred to it extensively, and, indeed, extracted the very passage from the psychological report on which counsel relied. The question, therefore, is whether, notwithstanding his consciousness of the need to attend to the applicant's potential rehabilitation, his Honour in fact failed adequately to reflect that in the sentences imposed. In the end, in my opinion, the merits of these grounds can only be determined by the determination of the final ground: if it is established that the sentences were manifestly excessive, then it may be inferred that some specific error of the kind suggested in grounds 1 and 2 infected the sentencing process. However, I should say here that I would reject the contention that the partial accumulation of the sentences was erroneous. These were discrete offences calling for discrete sentences. Not to accumulate, at least in part, would, in my view, have been erroneous. The question then arises whether the extent of the accumulation exposes error. Examination of the sentences shows unquestionably that it does not. The second sentence to be served was accumulated only by six months on the first - that is, by one quarter of the two year sentence; the third was accumulated by three months on a two year sentence - that is, by one eighth; and the fourth by three months on a two and a half year sentence - that is, by one tenth. The vast majority of the sentences are, in fact, to be served concurrently. 65 This ground, as pleaded, cannot be made out. However, the argument was not so limited, and it remains to be determined whether error has otherwise been demonstrated.