R v DM [2005] NSWCCA 181 | Case summary

Court of Criminal Appeal (NSW)|2005-05-20|Before: Grove J, Hulme J, Simpson J

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.

ground three: manifestly excessive 66 In my opinion, the force of this ground may best be gauged by an appreciation of the actual effect of the length of the sentences, having regard particularly to the applicant's age. Counsel for the applicant pointed out that the applicant will be 18 years and 8 months when he becomes eligible for release to parole. This Court was told, without dissent from the Crown, that if his release occurs at a time beyond his eighteenth birthday then he will be ineligible for DJJ programmes such as the intensive supervision programme recommended by the psychologist. On the other hand, even if his release occurs at a time only days before his eighteenth birthday, then he will be eligible for DJJ programmes. 67 It would, ordinarily, be quite erroneous to select a sentence by reference to those circumstances. The task of a sentencing judge is to select the appropriate sentence to take account of the objective gravity of the crime, tempered by any mitigating circumstances and having regard to any aggravating circumstances. However, in s6 of the Children (Criminal Proceedings) Act, the legislature enacted a statement of principles applicable to the extending of criminal jurisdiction with respect to children. In my view, the section allows a more liberal and flexible approach to sentencing children. In particular, principle (b), recognising that, while children bear responsibility for their action, by reason of their state of dependency and immaturity they require guidance and assistance, permits (in my view) this court to take a course that will, it is to be hoped, promote rehabilitation. I have come to the view that it is open to the court (should it come to re-sentencing) so to structure the sentences as to ensure that the applicant will, on his release, be supervised by the authority that has particular experience in dealing with, and responsibility for, young offenders. 68 The overall sentence imposed is a long one, particularly for a teenager. As against that, the offences committed by the applicant were very serious, and were repeated. His history is of little assistance to him. After considerable hesitation I have come to the view that error attended the sentencing process in two ways: firstly, the sentence imposed in respect of the first count (five years and three months with a non-parole period of three years) was manifestly excessive; secondly, the accumulation resulted in a manifestly excessive total term, exceeding the totality of the offending. 69 Accordingly, in my view, the applicant should be re-sentenced. 70 As against the possibility of re-sentencing this Court received additional evidence in the form of affidavits affirmed by the applicant and by his solicitor. These confirm the evidence that the applicant has real prospects of rehabilitation. It is unnecessary to say more than that. 71 Re-sentencing is complicated by reason of the dates of the commission of the offences. The first offence was committed on 10 January 2003 and sentencing is to be effected in accordance with the provisions of the now repealed and replaced s44 of the Sentencing Procedure Act. That section relevantly provided as follows: "44(1) When sentencing an offender to imprisonment for an offence, a court is required: (a) firstly, to set the term of the sentence, and (b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The non-parole period must not be less than three quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision. ..." 72 However, s45 provided that a court may decline to set a non-parole period if it appeared appropriate to do so because of the nature of the offence, because of the antecedent character of the offender, because of any other penalty previously imposed on the offender, or for any other reason that the court considered sufficient. Subs(2) required a court which declined to set a non-parole period to make a record of its reasons for doing so. Delaney DCJ did not set a non-parole period in respect of the three June offences, but did not give reasons for doing so. By subs(4) of s45, that failure does not invalidate the sentences. It may be inferred that the reasons concerned the sentence imposed in respect of the January offence, and the subsequent accumulation of the remaining sentences. That constitutes a perfectly appropriate reason. The remaining offences were committed in June 2003, and called for sentencing in accordance with the regime provided in the amended version of s44, which came into effect on 1 February 2003 and applies to offences committed on or after that date. The section now requires a sentencing court first to set a non-parole period representing the minimum period for which an offender must be kept in detention, and a balance of term which, in the absence of special circumstances, must not exceed one third of the non-parole period. S45 continues to permit a sentencing judge to decline to set a non-parole period, for the same kinds of reasons as previously applied, and to oblige the judge to give reasons for taking that course. I would adopt the course taken by Delaney DCJ, for the reasons that I have postulated motivated his Honour. 73 I would also adopt his Honour's finding of special circumstances warranting departure from the statutory proportion between the head sentence and the non-parole period, and the reasons therefor. An additional reason for doing so is, again, the accumulation of sentences. 74 It is also convenient to adopt the sequence of sentencing, and the partial accumulation, so as to make the sentence imposed in relation to the offence committed first in time, robbery in company with wounding, the last to be served. The only variation I would make to the overall sentences is a reduction in the non-parole period. I would not interfere with the sentences, or the commencement dates, in respect of the offences numbered 2, 3 and 4. As to the sentence imposed in respect of the first offence I would confirm the sentence imposed as one of five years and three months but reduce the non-parole period to two years. 75 I propose the following orders:

(ii) appeal allowed in part, to the extent that the sentence imposed in respect of the first count, of robbery in company with wounding committed on 10 January 2003: the sentence imposed be quashed and in lieu thereof the applicant be sentenced to imprisonment for five years and three months, commencing on 25 June 2004 and expiring on 24 September 2009, with a non-parole period of two years expiring on 24 June 2006. **********

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R v JDB [2005] NSWCCA 102; unreported, 24 March 2005 R v Hearne (2001) NSWCCA 37; 124 A Crim R 451 CASES CITED: Johnson v The Queen [2004] HCA 15; 78 ALJR 616 R v GDP (1991) 53 A Crim R 112 Veen v R (No 2) [1987-1988] 164 CLR 465

Monday 18 July 2005 R v DM Judgment 1 GROVE J: I agree with Simpson J. 2 HULME J: The Applicant for leave to appeal was, on 19 May 2004, sentenced in respect of 4 charges. The charges and the sentences imposed were:- (i) Robbery in company, with wounding, committed on 10 January 2003 - imprisonment for 5 years 3 months with a non-parole period of 3 years, both periods commencing on 25 June 2004; (ii) Detain person in company with intent to obtain advantage, committed on 9 June 2003 - imprisonment for a fixed term of 2 years, commencing on 25 June 2003; (iii) Robbery in company, committed on 18 June 2003 - imprisonment for a fixed term of 2 years and 6 months, commencing on 25 March 2004; and (iv) Detain person in company with intent to obtain advantage, committed on 18 June 2003 - imprisonment for a fixed term of 2 years, commencing on 25 December 2003; 3 The victim of the first offence was one Ted Tyra and the Applicant was in the company of, inter alia, another young offender AD. The victim of the second offence was a Ms Chen. The victim of the third offence was a Ms Mee Lee Rhee. The victim of the fourth offence was Peng-Jie Pan 4 Simpson J has set out at some length the circumstances giving rise to those offences and the Applicant's unfortunate history and I shall not repeat what her Honour has said in these respects. I would however add the following. 5 The bruising suffered by the victim of the offence the subject of the first count included severe bruising to the victim's kidneys leading to the passing of blood in his urine for a period. 6 The opinion of the doctor who examined the victim that he would have ongoing pain from walking and sitting indefinitely and be unable to engage in strenuous activity without experiencing pain to his hip region was confirmed in a statement from the victim, made in April 2004 saying that at that time, 15 months after the robbery, he was restricted in what and how he lifted at work and was still experiencing pain. In the statement the victim also indicated that he suffered from ongoing anxiety, very aware of his surroundings and became "a bit freaked out if I am on my own anywhere and there are young people around". 7 The offences taken into account, in chronological order, were:- (i) 10 January 2003 - being carried in a conveyance UOC 828, knowing it was taken without the consent of the owner. (ii) 1 May 2003 breaking and entering a garage with intent to commit a felony, namely to steal a Holden Commodore, AOA O4N. (iii) 1 May 2003 - attempting to take and drive a conveyance AOA 04N without the consent of the owner. (iv) 1 May 2003 - maliciously destroy property, namely a Holden Commodore, AOA O4N. (v) 29 May 2003 - driving a conveyance YAP 433 knowing it was taken without consent of owner. (vi) 9 June 2003 - being carried in a conveyance YKB 619 knowing it was taken without the consent of the owner. (vii) 9 June 2003 - robbery of a Miss Chen of a back pack, purse, $20 and key cards whilst armed with an offensive weapon, viz a knife and in company of 2 others. (viii) 15 June 2003 - attempting to take and drive a conveyance, AGH 84Y, without the consent of the owner. (ix) 15 June 2003 - larceny of property of the value of $130 (x) 15 June 2003 - maliciously destroy property, namely a GTV Alfa Romeo, AGH 84Y. (xi) 18 June 2003 - being carried in a conveyance AA4 48Y knowing it was taken without the consent of the owner. (xii) 25 June 2003 - driving a conveyance YOR 784 knowing it was taken without the consent of owner. 8 The appeal papers contain no information concerning the first of these offences beyond the fact that the vehicle was that which was used by the Appellant and his co-offenders on the occasion the subject of the first count. 9 What has been said sufficiently describes the second, third and fourth of these offences save and except that the vehicle was not destroyed but merely damaged in the attempt to steal it. 10 The evidence adds little to the description of the fifth of these offences. Its commission was observed by a police officer before the Applicant swapped seats with another occupant of the vehicle which had been previously stolen. 11 The robbery of Ms Chen was constituted by the initial actions of the Appellant and co-offenders prior to detaining her in circumstances which constituted the second count on which the Appellant was sentenced. Simpson J has described these actions. The vehicle in which the Appellant and his co-offenders were driving on that day was YKB 619, the event the subject of the offence I have numbered (vi). 12 The larceny referred to in the paragraph I have numbered (ix) was from the motor vehicle AGH 84Y during or after an unsuccessful attempt to steal it, that conduct being the offence in the paragraph I have numbered (viii). The offence I have numbered (x) was constituted by damage to a vehicle in an attempt to steal it, not the destruction of the vehicle. 13 The offences I have numbered (xi) and (xii) are sufficiently explained by their terms. The facts sheet asserts that the vehicle YOR 784 was previously stolen by the Applicant but because such an offence was not charged, I disregard it. 14 It should also be mentioned that at the time of all of the Applicant's offences, including those on the Forms 1, he was subject to conditional liberty, as the result of earlier offending. Thus:- On 11 July 2001, an 18 months good behaviour bond had been imposed for entering and being carried in a conveyance without the consent of the owner. On 6 March 2002, an 18 months probation order had been imposed for breaking and entering and entering prescribed premises without lawful excuse. On or about 2 May 2003, a control order for 8 months and an additional term of 2 months had been imposed for driving a conveyance taken without the consent of the owner and for driving recklessly or dangerously. On 12 July 2002 a number of control orders were imposed, the longest of which was for 10 months with 4 months additional term. The offences dealt with on that day included taking and driving a conveyance without the consent of the owner, possessing implements to enter or drive a conveyance, driving recklessly or dangerously, breach of recognisance and placing gunpowder near a ship or vessel with intent to injure. 15 So far as the first ground of appeal is concerned, viz. that the sentencing judge erred in the partial accumulation of the Applicant's sentences, I agree with Simpson J that the four offences for which the Applicant was sentenced were discrete, called for discrete sentences and that those sentences required some degree of accumulation. Indeed, counsel who appeared for the Applicant before Judge Delaney conceded as much. Considerations of general deterrence, personal deterrence and retribution, if no others, require that the courts make clear that the fact that an offender who has committed one serious offence is not able to commit others with impunity, content in the knowledge that, if caught, there will be no increase in penalty. The commission of the second, third and fourth offences charged increased the Applicant's criminality and it was appropriate that he be punished for that enhancement. 16 I am however unable to agree with Simpson J in respect of the third ground of appeal, viz. that the sentence imposed in respect of the first count and the totality of the sentence imposed upon the Applicant were manifestly excessive. 17 In so concluding, I am not unconscious of the Applicant's upbringing, or of his youth, or of some factors favourable to the Applicant's prospects of rehabilitation which appear in the evidence or to which Judge Delaney had regard. These are all matters which, in accordance with principle, lead to the conclusion that the sentence to be imposed on the Applicant should be less than it otherwise would be. 18 However these matters have to be put in some perspective. Even though he left school at 12, even though his father was, on one report, in and out of gaol, his upbringing in the words of the Juvenile Justice Report "chaotic" and, in the words of Dr Lennings, his background "dysfunctional", it is impossible to believe that he did not receive some instruction in, and did not acquire some recognition of, the principle that one should not assault people with weapons such as baseball bats and did not have some understanding that the actions he and his co-offenders contemplated and then executed on 10 January 2003 were unacceptable in any civilised society. Furthermore, he had been before courts on at least four - or if one counts an appeal, five - separate occasions for offences to which reference has been made. It is inconceivable that on each of those occasions the error in, and from the point of view of society, unacceptable nature of, dishonesty was not made clear to him. 19 In R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 this Court directed attention to the principle which lies behind the practice of imposing on young offenders lesser sentences than the general run of sentences imposed on adults who commit similar offences. The Court said, at [25 et seq]:- It lies in at least part of the rationale for making any allowance for youth, i.e. the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years. Thus it was that Hunt CJ at CL in R v Allam (unreported, CCA, 13 April 1993), in a passage quoted by Sully J in R v WKR (1993) 32 NSWLR 447 at 460 said:-

R v DM

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