SUBJECTIVE CIRCUMSTANCES
27 The applicant was aged eighteen at the time of the offence and nineteen and a half at the time of sentence. He had no prior convictions.
28 He was the eldest of four children to parents of Vietnamese origin and had arrived in Australia when he was aged two years. He was unmarried. He completed the Higher School Certificate and worked at a Tandy Electronics store. He had taken up employment at an early age due to his father's illness. He came from what appears to have been be a stable and happy home. He did not give evidence but various reports were placed before the Court which recounted his thought processes and attitude to the offences.
29 He claimed, in a history given to a psychiatrist, Dr Nielssen, that he had begun to use drugs (amphetamines) two months before the offence, and had in fact used drugs about one hour prior to arriving at the premises of the victims. He also claimed, in a history given to a clinical psychologist, John Machlin, that he had joined a group of friends who were involved in drug use and offending and who referred to one another as "brother". This "brotherhood", he said, had certain expectations of loyalty.
30 I his report, Mr Machlin, identified the five circumstances which he considered had contributed to the applicant's involvement in this episode of serious criminality. None of those operate, to my mind, as a mitigating circumstance, although they perhaps tend to explain why it was that a person of otherwise good character chose to lend himself to delinquent behaviour, and to become involved in what was a particularly serious offence.
31 The applicant said to the psychologist that since the offences he had been particularly depressed, with thoughts of suicide. He also said that he had not been gratified by the sexual assault and had felt "a bit sick" immediately after it. He claimed to have felt "blank" after the offences and wanted to pretend they had never happened. He also said that he knew he would eventually be caught, that he had attended confession at church where he made a full disclosure and had been advised to accept whatever punishment was coming.
32 Evidence was given by Father Knight, a parish priest from Waterloo, who knew his family and who said that the applicant was contrite and that his behaviour had been out of character.
33 His Honour expressly took into account the fact that he had taken over the role as the "family breadwinner" due to his father's stroke, which had occurred in 1999, and the apology which his counsel had offered to the victims, on his behalf. He observed that "the rehabilitation prospects for this young man not only appear to be very promising but have gone a long way towards having been accomplished already." He accepted that he had demonstrated genuine remorse and contrition and took into account what he considered to have been an impressive testimonial from a work supervisor.
34 He also noted the circumstance that, while the applicant had provided some assistance in acknowledging his own criminality, he had refrained from providing other information, particularly that relating to his co-offenders, out of fear of repercussions for his family. That circumstance perhaps explains why it was that he took that stance, but it does not operate in mitigation of his objective criminality, nor does it stand in his favour as a special circumstance. The simple fact is that he did not provide that measure of assistance. He has not been punished additionally for it, but he is not entitled to any mitigation for it.
35 His Honour applied a discount of twenty-five per cent to the sentences which he would otherwise have imposed due to the early plea.
36 His Honour drew attention to the distinction between subjective features and special circumstances, noting that the two are not synonymous. He specifically considered, but declined to find that a number of factors qualified as special circumstances, including his youth and prospects for rehabilitation.
37 It is submitted by the applicant that the sentence was manifestly excessive, and that the learned sentencing judge also erred in declining to find special circumstances in not reducing the non-parole period.
38 Essentially, the same arguments were advanced, in relation to each ground, to the effect that, while recognising the considerable remorse and contrition, the youth of the offender and his favourable prospects of rehabilitation. His Honour did not give effect to these findings, or to the general principle that rehabilitation is the primary aim in sentencing young offenders, when setting the head sentences and the non-parole periods.
39 This case was one involving very great objective criminality on the part of all who were involved. The Courts have made it clear that offences of this kind, which involve the invasion of the victim's home, followed by robbery or acts of violence, cannot be countenanced by decent living members of the community. Inevitably, in such cases, condign sentences must be passed which convey a very strong message of general and personal deterrence: R v Li NSWCCA 9 July 1997.
40 The kidnap and sexual assault of the young victim was particularly serious, and similarly demanded a condign sentence. That offence, in my view, fell within the upper range of seriousness for such an offence, the seriousness of which is, itself, underlined by the fact that the maximum available penalty for it is imprisonment for life. In this instance, a young, defenceless victim was abducted and subject to an ordeal that could only be described as having been terrifying, as well as one involving her complete and utter humiliation and debasement.
41 The kidnap and ill-treatment of the other victim and the attempted extortion fair little better in terms of objective criminality.
42 This community will not, and it cannot, tolerate the activities of marauding young gangs of the kind to which this appellant attached himself, and it is time that he and his ilk understood that to be the case, at the penalty otherwise of facing lengthy terms of imprisonment.
43 In most instances the youth of an offender and the objective of rehabilitation are properly to be taken into account when assessing his or her objective criminality and then given a loading in favour of a degree of leniency that would not otherwise be available for an adult offender: R v GDP (1991) 53 A Crim R 112. That arises, for example, where the offending arises out of immaturity: R v Hearne [2001] NSWCCA 37, or where the offender has an impoverished or deprived background and shows positive signs for rehabilitation.
44 However, these considerations have very much less weight when the offender has behaved with extreme violence or has acted as an adult, as has occurred in this case: R v Tran [1999] NSWCCA 109 and R v AEM [2002] NSWCCA 58.
45 Additionally, the weight to be given to these considerations diminishes the closer the offender approaches the age of maturity: R v Bus NSWCCA 3 November 1995 and R v Voss [2003] NSWCCA 182.
46 The remarks of Lee CJ at CL in R v Pham and Ly (1991) 55 A Crim R 128 at 135 are apposite:
"Whilst the early background of each respondent merits sympathy and understanding it can not be used to cloak or disguise the fact that the actions of the respondents and the other men involved can only properly be described as the actions of a gang of thugs and armed thugs at that, violently invading the home of the victims and rendering them helpless.
It is true that Courts must refrain from sending your persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal courts function will cease to operation.
In short, deterrence and retribution do not seek to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Queen v Williscroft [1995] VR 292 at 299 where the majority of the Full Court of Victoria expressed the view that notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment, i.e. coercive action, is fundamental to correctional treatment in our society."