R v JJ [2014] ACTCA 23 | Case summary | Zoe

ACTACTCA

R v JJ [2014] ACTCA 23

[2014] ACTCA 23

Court of Appeal (ACT)|2014-06-27|Before: Murrell CJ, Burns and Ross JJ

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At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2014-06-27

Before

Murrell CJ, Burns and Ross JJ

Catchwords

CRIMINAL LAW AND PROCEDURE – sentencing – young offender
– murder – Crimes (Sentencing) Act 2005 (ACT), Chapter
8A.
CRIMINAL LAW AND PROCEDURE – sentencing – young

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW AND PROCEDURE – sentencing – young offender– murder – Crimes (Sentencing) Act 2005 (ACT), Chapter8A.CRIMINAL LAW AND PROCEDURE – sentencing – youngoffenders – Crown appeal – manifest inadequacy – section 61Crimes (Sentencing) Act 2005 (ACT) – jurisdictional error.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v JJ

Citation:

[2014] ACTCA 23

Hearing Date(s):

2 May 2014

Decision Date:

27 June 2014

Before:

Murrell CJ, Burns and Ross JJ

Decision:

Appeal upheld insofar as it relates to the orders of 15 October 2013

Orders of 15 October 2013 set aside

Matter remitted back to Refshauge J to reimpose sentence of 8 October 2013

Appeal in relation to manifest inadequacy of sentence dismissed.

Category:

Principal Judgment

Catchwords:

CRIMINAL LAW AND PROCEDURE – sentencing – young offender – murder – Crimes (Sentencing) Act 2005 (ACT), Chapter 8A.

CRIMINAL LAW AND PROCEDURE – sentencing – young offenders – Crown appeal – manifest inadequacy – section 61 Crimes (Sentencing) Act 2005 (ACT) – jurisdictional error.

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Legislation Act 2001 (ACT)

Supreme Court Act 1933 (ACT)

Cases Cited:

I agree with the decision of Ross J. Burns J: 1. I have had the advantage of reading the judgment of Ross J. I agree with the reasons of his Honour and the orders he proposes. Ross J: Introduction 1. On 4 August 2011 the respondent and Taylor Schmidt (‘the co-offender’) murdered Liang Zhao (‘the deceased’). The co-offender was just over 20 years of age on the day of the murder and the respondent was just short of 17 years and 9 months of age. As he was under 18 years of age when the offence was committed, the respondent was required to be sentenced as a young offender pursuant to Chapter 8A of the Crimes (Sentencing) Act 2005 (Sentencing Act). I deal with the relevant provisions of the Sentencing Act in more detail shortly.
When the respondent came to be sentenced on 8 October 2013, Refshauge J initially sentenced him to 17 years’ imprisonment and purported to set a nonparole period of 10 years and 6 months. When it was pointed out to his Honour that the legislative scheme makes no provision for the setting of a nonparole period for a sentence of imprisonment imposed on a young offender, his Honour amended the sentence to suspend the sentence after 10 years 6 months, upon the respondent entering into a good behaviour order for 6 and a half years, with a probation condition that the respondent obey all reasonable directions of the director-general.
On the Court reconvening on 14 October 2013 at the request of the Crown, it was pointed out to his Honour that a supervision condition could not exceed 3 years, and his Honour then resentenced the respondent by amending the condition in the good behaviour order. The sentence thus became one of 17 years’ imprisonment, to be released after 10 years 6 months on a good behaviour order of 6 years 6 months with a probation condition that the respondent be subject to the supervision of the Director-General or her delegate for 3 years or such lesser period as considered appropriate. I will return to these sentence amendments later.
The co-offender was subsequently sentenced by Refshauge J to 20 years 6 months’ imprisonment with a nonparole period of 14 years.
The Crown has appealed the sentence imposed on the respondent. There are two grounds of appeal. The first ground is that the sentence imposed is manifestly inadequate. This ground is particularised in the following ways: (a) his Honour erred in failing to take sufficiently into account the objective seriousness of the offence; (b) his Honour erred in failing to take sufficiently into account the aggravating features of the offence; (c) his Honour erred in the way that he dealt with the rehabilitation of the offender; (d) his Honour erred in the way that he dealt with the age of the offender; and (e) his Honour erred in imposing an unsuspended period of the sentence that was too short when considered as a proportion of the total sentence.
The second ground of appeal is that his Honour applied an incorrect principle of sentencing, in that in determining the unsuspended portion of the sentence he did not have regard, or proper regard, to the length of time that the offender could be subject to the supervision of the Director-General.
The principles governing Crown appeals against sentence are well established and were conveniently summarised by Refshauge J in R v TW,[1] drawing on the analysis by Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke.[2] It is unnecessary to repeat everything that his Honour said in that case, but three points are apposite.[3]
First, Crown appeals are considered anomalous in the criminal justice system and should only be brought in rare and exceptional cases to establish some point of principle.
Secondly, the appeal is not a new hearing. The Court is not entitled to substitute its own opinion for that of the sentencing judge merely because it disagrees with the sentence. It may only interfere with the sentence if there is error of the kind referred to in House v The King[4].
Thirdly, appellate courts have an overriding discretion which entitles them to decline to intervene despite error.[5]
I also note that in R v Chatfield[6] this Court held that the approach adopted by the High Court in Bui v DPP[7] should be adopted in the Australian Capital Territory. As a consequence, double jeopardy was abolished as a consideration in re-sentencing.
Before turning to the Crown’s submissions it is necessary to say something about the sentencing regime that applies to young offenders and to the proceedings at first instance. The sentencing regime for young offenders in the ACT
The Sentencing Act makes special provision for ‘young offenders’. As mentioned earlier, the respondent is a young offender within the meaning of that Act, having been found guilty by the court of an offence that was committed when he was under 18 years of age. The Sentencing Act generally applies to young offenders in the same way it applies to other offenders, subject to some particular provisions that only apply to young offenders. The particular provisions that apply to the sentencing of young offenders are set out in Chapter 8A of the Sentencing Act.
The purposes for which an offender may be sentenced are set out in s 7. These sentencing purposes apply to young offenders (see s 133A) but are modified by s.133C. Subsection 133C(1) provides that a court sentencing a young offender must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than to any of the other purposes in s.7(1). Subsection 133C(2) provides that in sentencing a young offender the court must have particular regard to the common law principle of individualised justice.
In deciding how an offender should be sentenced, s.33 sets out the relevant considerations. These considerations do not limit the matters a court may consider in deciding how an offender should be sentenced for an offence. Section 133D(1) requires the court to consider certain additional matters in sentencing young offenders, namely: (a) the young offender's culpability for the offence having regard to his or her maturity; (b) the young offender's state of development; and (c) the past and present family circumstances of the young offender.
Section 10(2) of the Sentencing Act allows a court to sentence an offender to imprisonment if satisfied that no other penalty is appropriate. Subsection 133G(2) provides that if a court is sentencing a young offender to imprisonment, then the sentence of imprisonment ‘must be a last resort and for the shortest appropriate term’. A court cannot sentence a young offender to imprisonment for life: s 133G(4).
There is no provision for the setting of a nonparole period for a sentence of imprisonment imposed on a young offender. Part 5.2 of the Sentencing Act deals with the setting of nonparole periods. Subsection 64(1) provides that pt 5.2 applies to ‘a sentence of imprisonment imposed by a court on an offender for an offence, other than an excluded sentence of imprisonment’. Section 64(3)(f) provides that a sentence of imprisonment imposed on a young offender is an ‘excluded period of imprisonment’.
Instead of setting a nonparole period for a young offender, s 133G(3) directs the court to consider making a ‘combination sentence’. It provides: (3) The court must consider making a combination sentence consisting of - (a) the sentence of imprisonment; and (b) a good behaviour order with a supervision condition.
Part 3.3 of the Sentencing Act deals with non-custodial sentences, including good behaviour orders. Subsection 13(3) provides that a good behaviour order may include one or more of the following conditions: (a) that the offender give security in a stated amount, with or without sureties, for compliance with the order; (b) a rehabilitation condition; (c) a probation condition; (d) that the offender comply with a separation order; (e) a condition prescribed by regulation for this paragraph; (f) any other condition, not inconsistent with this Act, or the Crimes (Sentence Administration) Act 2005 that the court considers appropriate.[8]
Relevantly, in the context of this case, a ‘probation condition’ of a good behaviour order is defined to mean: a condition included in the order that, during the period of the order, or for that part of the period stated in the order, the offender is - (a) to be on probation subject to the supervision of a person appointed under the order; and (b) to obey all reasonable directions of the appointed person.[9]
The definition of a ‘probation condition’ provides examples of the type of directions that the offender may be given by the ‘appointed person’, namely: 1. that the offender undertake medical treatment and supervision (eg by taking medication and cooperating with medical assessments); 2. that the offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer; 3. that the offender attend educational, vocational, psychological, psychiatric or other programs or counselling; 4. that the offender not drive a motor vehicle or consume alcohol or non-prescription drugs or medications 5. that the offender regularly attend alcohol or drug management programs.
The examples provided are not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears.[10]
Part 8A.2 of the Sentencing Act deals with the imposition of good behaviour orders on young offenders. Section 133L modifies the condition of community service that can be imposed as part of a good behaviour order. Section 92 of the Sentencing Act stipulates the minimum and maximum hours of community service work that can be imposed upon an adult offender. Section 133L sets a different number of minimum and maximum hours that the sentencing court can impose upon young offenders. For young offenders, community service must be at least 20 hours and not more than 200 hours. In setting community service hours, the sentencing court must also ensure that the community service does not interfere with the young offender’s access to education and training.
Section 133L(2) limits the period during which community service work is required to be completed under the community service condition to not longer than 12 months. Section 133L(3) ensures that any concurrent or consecutive good behaviour order imposing community service upon a young offender does not result in a combined maximum number of hours greater than 200 hours.
Section 133M modifies the conditions that can be imposed as part of a good behaviour order when applied to young offenders. The effect of s 133M(1) is to remove the condition of giving security for complying with a good behaviour order, such that s 13(1)(a) does not apply to young offenders.
The effect of s 133M(2) is to provide a sentencing court with the option of imposing two further conditions when sentencing young offenders. Subsection 133M(2) provides: (2) In addition to the conditions mentioned in section 13(3)(b) to (g), a good behaviour order for a young offender may include - (a) an education and training condition; and (b) a supervision condition. (Emphasis added)
Division 8A2.2 of pt 8A.2 sets out the eligibility and suitability for imposing an education and training condition as part of a good behaviour order: see ss 133N-133T.
Division 8A2.3 of pt 8A.2 sets out the supervision condition that can be imposed on young offenders, as permitted by s 133M(2)(b). A ‘supervision condition’ means a condition included in the order that: (a) requires the young offender to comply with all reasonable directions given by the director-general; and (b) allows the director-general to require information from entities directly supervising the young offender (s.133U).
Section 133V sets out when a supervision condition must be included in a good behaviour order for a young offender. It states: 133V Supervision conditions—when required (1) A court must include a supervision condition in a good behaviour order for a young offender if the court has made, or proposes to make, a good behaviour order that includes— (a) a community service condition; or (b) A rehabilitation program condition; or (c) An education and training condition. (2) Subsection (1) does not limit the circumstances in which the court may include a supervision condition in a good behaviour order.
The maximum period for a supervision condition is three years (s 133W). In the event that two or more good behaviour orders are made in relation to a young offender that include supervision conditions, the total period of supervision must not be longer than three years (s 133X). The proceedings at first instance
I have earlier referred to the various amendments made by his Honour to the sentence imposed on the respondent.
On 8 October 2013 his Honour initially purported to sentence the respondent to 17 years’ imprisonment and set a nonparole period of 10 years and 6 months.[11] Counsel for the Crown then pointed out that his Honour could not set a nonparole period as the respondent was a young offender. This is undoubtedly correct (see s 133G). His Honour agreed and proceeded to sentence the respondent as follows: I withdraw the third order I made. I suspend the sentence on 5 February 2022, and I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act, for a period of six and a half years with a probation condition that you be subject to the supervision of the Director-General or her delegate, and obey all reasonable directions of the person delegated to supervise you. JJ, what that means it that at the end of what I would have set as a non parole period, you will be released automatically without having to apply for parole, but only on you entering into an undertaking to be of good behaviour which means that if you commit any further offences which are punishable by imprisonment, you can be brought back before me and sentenced to a further term of imprisonment. I have included in that a probation condition which requires you to be under supervision for the balance of the term that I sentenced you to as the head sentence. And again, if you do not obey the directions of the officers appointed to supervise you, then you can be brought back as a breach of that order and re-sentenced.[12]
On 15 October 2013, at the request of the Crown, his Honour further amended the sentence on the basis that s 133W did not permit a ‘supervision condition’ to be imposed for a period exceeding 3 years. The relevant extracts from the transcript are set out below (Mr Lundy appeared for the Crown): Mr Lundy: Your Honour, thank you for having this matter listed. It’s simply to clear up if there’s any ambiguity in relation to the period of supervision. . . His Honour: Yes Mr Lundy: . . .under which JJ. . . His Honour: Yes Mr Lundy: You will recall, your Honour . . . His Honour: I initially was proposing a non parole period and then you drew my attention to s64 which means I can’t set that. So I suspended the sentence and made a good behaviour order. Mr Lundy: Yes, and your Honour made that good behaviour order for six and a half years and it only occurred afterwards that the section 133W. . . His Honour: Well I think the - if I’m not wrong, the good behaviour order can be for six and a half years. . . Mr Lundy: It can it’s just the. . . His Honour: . . .but there was a probation condition which was for the length of the good behaviour order which can only be for a maximum of three years. Mr Lundy: Maximum of three years. So that was the reason for today to clear up and ambiguity, your Honour. His Honour: Yes, all right. I’ll just speak to your client, Mr Whybrow. JJ, I’m probably the last person you want to see at the moment but I got it wrong and I’m sorry for that. The order I’ll make will be to your benefit, in the sense that it will be a lesser period of supervision but I just have to briefly resentence you. On 8 October 2013 I sentenced JJ for the offence of murder. Initially I intended to set a non parole period but it was pointed out to me that under section 64 of the Crimes (Sentencing) Act 2005 a non parole period cannot be set for a person in JJ’s situation, namely any young offender. Instead I suspended the sentence with a good behaviour order. I set that good behaviour order for a period of six years and six months which was the period I would have set for parole had I been able to set a non parole period. I made a probation condition for the length of the good behaviour order but under s133W of the Crimes (Sentencing) Act I cannot set such a probation condition for more than three years. Under section 61 of the Crimes (Sentencing) Act I have power to amend a sentence which is not in accordance with the law and I propose to do so. Accordingly I amend the probation condition to the good behaviour order to read, “a probation condition that you be subject to the supervision of the Director-General or her delegate for a period of three years or such lesser period as the person delegated to supervise you may consider appropriate, and that you obey all reasonable directions of that person delegated to supervise you.” Anything further? Mr Lundy: No, your Honour. The Prisoner: No, sir. His Honour: You’ve checked the legislation? I haven’t got it wrong this time? All right, thank you.[13]
Two observations may be made about the exchange set out above. The first is that his Honour erroneously formed the view that a probation condition in a good behaviour order can only be imposed for a maximum period of three years. In fact, while there is a three year time limit in respect of a supervision condition (s133W), no time limit applies in relation to the imposition of a probation condition as part of a good behaviour order. It is clear from the transcript of the proceedings of 8 October 2013 that his Honour was including a probation condition (not a supervision condition) as part of the good behaviour order he imposed on the respondent. It must be said that his Honour was not assisted by counsel in this regard.
The second point to make is that, in amending his earlier (amended) sentence of 8 October 2013, his Honour was purporting to act pursuant to the power in s 61 of the Sentencing Act to amend a sentence which is not in accordance with the law.
Under s 61 the Court has the power to reopen proceedings to correct penalty errors, and provides: (1) This section applies to a criminal proceeding (including a proceeding on appeal) in which a court has— (a) made a sentence-related order that is contrary to law; or (b) failed to make a sentence-related order that is required to be made by law. (2) This section applies whether or not anyone has been convicted or found guilty of an offence in the proceeding. (3) The court may reopen the proceeding (on the application of a party to the proceeding, or on its own initiative) and may, after giving the parties an opportunity to be heard, do either or both of the following: (a) make a sentence-related order that is in accordance with law; or (b) amend any relevant finding of guilt, conviction, sentence or order. (4) For this section, the court may issue a warrant for the arrest of a person charged in the proceeding if— (a) the court considers that the person will not appear unless the warrant is issued; or (b) the person fails to appear when the court calls on the person to appear. (5) For an appeal under any Act against a sentence-related order made under this section, the time within which the appeal must be made starts on the day the order is made. (6) However, this section does not otherwise affect any right of appeal. (7) In this section: “sentence-related order”— (a) see section 55 (Application—pt 4.4); and (b) includes an ancillary order within the meaning of section 58 (Ancillary orders relating to offences taken into account in sentencing).
It is clear from s 61(1) that the power to amend a sentence may only be exercised where the court has made a sentence related order that is contrary to law, or failed to make a sentence related order that is required to be made by law.
In Achurch v The Queen (‘Achurch’)[14] the High Court recently considered the proper construction of s 43 of the Crimes (Sentencing Procedures) Act 1999 (NSW) (NSW Sentencing Act). Section 43 of the NSW Sentencing Act deals with the correction and adjustment of sentences. Subsections 43(1) and (2) of the NSW Sentencing Act are relevantly indistinguishable from subsections 61(1) to (3) of the ACT Sentencing Act. In both provisions the power to amend a sentence is contingent on the existence of a sentence related order (in the ACT Act) or a penalty (in the NSW Act) that is contrary to law or where the court has failed to make a sentence related order (or impose a penalty) that is required to be made (or imposed) by law. In Achurch the plurality (French CJ, Crennan, Kiefel and Bell JJ) dealt with the proper construction of s 43 of the NSW Act, in these terms: Section 43 and its precursors provided a conditional statutory power to correct penalties beyond the inherent and implied powers of courts and of the slip rule ... Section 43 confers upon courts exercising jurisdiction in criminal proceedings a power to re-open those proceedings and to impose a penalty that is in accordance with law. The section only applies to criminal proceedings in which one of two conditions is fulfilled. The condition directly relevant to this appeal is that ‘a court has ... imposed a penalty that is contrary to law’. On the ordinary meaning of that collocation, what must be contrary to law is the ‘penalty’. That condition is not satisfied merely by demonstrating that the court has erred in law or fact. Notwithstanding such error, the penalty imposed may not be contrary to law. It may fall within the range of penalties permitted or required by the relevant statutory provisions and may also be consistent with the reasonable exercise of a discretion applicable to the particular offence and offender ... The text of s.43 is clear enough. The relevant power is conditioned upon the penalty being ‘contrary to law’. A construction encompassing error in the imposition of a lawful penalty would allow the power to be applied to any penalty, however appropriate, that is imposed under the influence of an error of law or fact. That construction does not fit with the text. Nor does it accord with the limited purpose of the section. The principle of finality should not be taken to have been qualified except by clear statutory language and only to the extent that the language clearly permits. The construction for which the appellant contended, and which is reflected in some earlier decisions of the Court of the Criminal Appeal, can only be supported by attributing to the provision a purpose which, whatever its practical benefits, leaves the boundaries between correction and appeal porous and protected only by the exercise of the sentencing court’s discretion. The importance of the distinction between original and appellate jurisdiction in the application of s.43 to courts of first instance militates against such a result. The appellant’s construction should not be accepted. A penalty is not ‘contrary to law’ only because it is reached by a process of erroneous reasoning or factual error.” (citations omitted).[15]
The approach adopted in Achurch should be applied to the construction of s 61 of the Sentencing Act.
As mentioned earlier, his Honour initially purported to set a nonparole period for the young offender. Such a sentence related order is contrary to law (s 64(3)(f), see [17] above) and so the power to amend the sentence, pursuant to s 61(3), was enlivened. Accordingly, his Honour amended his initial sentence. The effect of his Honour’s amendment was that: (a) the respondent was sentenced to 17 years’ imprisonment; (b) the sentence of imprisonment was suspended on 5 February 2022 (that is after serving 10 years and 6 months); and (c) on the suspension of his sentence of imprisonment the respondent was required to sign an undertaking to comply with a good behaviour order with a probation condition (the amended sentence).
Importantly, the amended sentence was not contrary to law. Three points may be made in this regard.
First, a good behaviour order may be made for a ‘stated period’ (s 13(2)) and there is nothing to preclude such an order being made for a period of six and a half years. The temporal limitation in s 133W only applies to a supervision condition imposed as part of a good behaviour order; his Honour did not impose a supervision condition.
Second, a good behaviour order imposed on a young offender may include a probation condition. So much is clear from s 133M(2) (see paragraphs [18] - [21] above) which provides that a good behaviour order for a young offender may include an education and training condition and a supervision condition in addition to the conditions mentioned in s 13(3)(b) to (g). The probation condition is mentioned in s 13(3)(f).
Third, the sentence imposed by his Honour is a combination sentence of the type contemplated by s 133G(3). I acknowledge that s 133G(3(b) refers to ‘a good behaviour order with a supervision condition’ (emphasis added) and that the order imposed by his Honour did not include a supervision condition. But s 133G(3) does not require the making of a good behaviour order with a supervision condition, it only requires the court to consider making such an order. In this case there were good reasons for not incorporating a supervision condition - the good behaviour order would run for six and a half years and a supervision condition can only be imposed for three years. In such circumstances a probation condition was entirely appropriate.
It is convenient to deal here with the appellant’s contention that his Honour had in fact intended to impose a ‘supervision condition’, not a ‘probation condition’. In essence the appellant submits that his Honour made an erroneous reference to what used to be known as a ‘probation order’ under the sentencing regime that applied to young offenders prior to the enactment of ch 8A of the Sentencing Act. Upon the commencement of the current sentencing regime what used to be known as a probation order became a good behaviour order with a supervision condition.
I reject this contention. It is entirely speculative and is contrary to his Honour’s use of the expression ‘probation condition’. It is apparent from his Honour’s earlier judgment in R v PM[16] that he was well aware of the changes to the existing regime for young offenders. Further, his Honour deliberately used the expression ‘probation condition’ (as mentioned in s 13(3)(d) of the Sentencing Act) rather than ‘probation order’ as appeared in the former regime.
The amended sentence made on 8 October 2013 was not contrary to law and nor had his Honour failed to make a sentence related order that is required to be made by law. Accordingly, there was no power to further amend that sentence pursuant to s.61(3). It follows that his Honour had no jurisdiction to make the purported amendment to the amended sentence.
What then is the legal status of his Honour’s sentencing orders, as amended on 15 October 2013?
The orders of a superior court are valid and effective until set aside,[17] whereas an order of an inferior court made without jurisdiction is a nullity and lacks legal effectiveness.[18] The ACT Supreme Court is a superior court of record (see s 3 Supreme Court Act 1933 ACT)), hence it follows that his Honour’s sentencing orders, although beyond jurisdiction, remain valid and effective until set aside.
I would set aside his Honour’s orders of 15 October 2013. As a consequence the sentence under consideration in this appeal is his Honour’s amended sentence of 8 October 2013 (see paragraph 35 above).
I now turn to the facts and his Honour’s sentencing remarks before considering the submissions advanced in support of the appeal. Background
The respondent pleaded guilty to one count on an indictment dated 4 July 2012, that on 4 August 2011 he, in company with Taylor Schmidt, murdered Liang Zhao. Briefly stated, the facts are that during the afternoon of 3 August 2011, the respondent was at his residence at 59 Karuah Street, Dickson, smoking cannabis and drinking alcohol. He also injected one or two shots of speed and later snorted some more. A number of other people were also present because the respondent was hosting a barbeque. Around 9pm, the co-offender went to the respondent's residence to purchase cannabis.
Around midnight, the co-offender suggested that the pair go and 'do a robbery' to get some money. He also suggested that they arm themselves for that purpose, to which the respondent agreed.
In the early hours of morning of 4 August 2011, the pair left the respondent's residence with a baseball bat and machete, with the intention of committing a robbery. At the co-offender's suggestion, they also took gloves.
As they proceeded down Northbourne Avenue towards Canberra, the co-offender used the baseball bat which he was carrying to smash a bus shelter, the windscreen of a parked car and the entry mechanism to a car park.
The respondent and the co-offender went to the residence of the co-offender's girlfriend where they drank more wine and stayed at the residence for a period of time.
By this stage, the deceased had arrived on a bus from Melbourne at the Jolimont Centre in Canberra. He began to walk along Northbourne Avenue in a northerly direction. There were no taxis available and the deceased hoped to meet up with his mother to get a lift back to Gungahlin where he resided.
Shortly after the deceased left the Jolimont Centre, the respondent and co-offender left the residence of the co-offender’s girlfriend. They were carrying the machete and baseball bat. The respondent was wearing a pair of work gloves and the co-offender put on rubber or latex gloves.
In the vicinity of the flats on Henty Street Braddon which face Northbourne Avenue, the respondent and co-offender came across the deceased. They knocked him to the ground and dragged him several metres from the footpath where they robbed him of his mobile phone and some cash.
The deceased cried out when the co-offender hit him with the baseball bat. The respondent swung the machete above him and told him to "be quiet, shut up, don't tell the cops".
The deceased raised his arm and was struck by the machete. He screamed out in pain. The respondent did not recall what happened next, however, forensic evidence established that the deceased was struck a number of times to the head and body with implements consistent with a machete and baseball bat. The cause of death was found to be "extensive crush and incised injuries to the head".
The co-offender and respondent fled from the scene and returned to the residence of the co-offender’s girlfriend. They washed themselves, changed clothes and the co-offender hid the machete and baseball bat in a boiler room at the bottom of a stairwell in the building.
The respondent was arrested on 6 August 2011 and the co-offender was arrested the following day.
The respondent was charged on 8 August 2011 in the Children's Court with the offences of murder and aggravated robbery. He has remained in custody since his arrest. He entered a plea of not guilty to both charges on 2 February 2012 and the matter was committed to the ACT Supreme Court for trial on that date.
An indictment for the charges was filed on 5 July 2012 and on 29 August 2013, the respondent and his co-offender were arraigned and a plea of guilty was entered by both to the first count on the indictment, being murder, in full satisfaction of the indictment. There was no agreement between the Crown and defence as to the facts and it was indicated to the court that a disputed facts hearing would be necessary in order to determine the facts of the matter. The respondent's counsel offered the assistance of the respondent to the Crown as a witness in a disputed facts hearing for the co-offender. I return to this matter later in considering the Crown’s parity submissions.
On 4 September 2013, an agreed statement of facts and the respondent's criminal history was tendered by the Crown. A notice declining to proceed on the second count on the indictment was filed with the leave of the court. The matter was listed for sentence on 25 September 2013 and a pre-sentence report was ordered.
The following evidence was tendered by the Crown at sentence: (a) Exhibit A- Agreed Statement of Facts; (b) Exhibit B- Criminal History; (c) Exhibit C - Two bundles of photographs depicting the deceased at the scene and the weapons used in the murder; (d) Exhibit D - pre-sentence report dated 20 September 2013; and (e) Exhibit E - Victim Impact Statements from the deceased's mother, and his wife.
The Crown called the author of the pre-sentence report, Ms Simone Fowlie and she was cross-examined. The author of the pre-sentence report made the following observation about the offending: When questioned about his intention, JJ claimed that his intention was never to murder the victim, only to rob him. However when asked to explain why the assault continued after the victim had been robbed of his mobile phone and wallet, he could provide no explanation. JJ stated he feels no pride in what he has done and is ashamed of his actions. He was of the opinion that if his co-offender had not suggested doing a robbery that night the offence would not have occurred nor would he be in custody facing a lengthy custodial sentence. This statement shows a degree of JJ's inability to accept full responsibility for his actions. JJ willingly agreed to commit a robbery and had the opportunity to cease the assault once the victim handed over his mobile phone and wallet, however he continued the assault with his co-offender. JJ did express regret for his actions and was able to articulate the effect his actions have had on the victim and the victim's family as well as his own family.”
The author's assessment of the respondent was as follows: Although the offender has expressed regret for his actions and is aware of the consequences of these actions, being a custodial sentence, he places some of the blame for his current predicament on his co-offender. This belief includes a lack of ability by JJ to accept full responsibility for his part in the commission of the offence. JJ willingly agreed to take part in the commission of a crime, at the suggestion of his co-offender and at no time did he cease or suggest ceasing the assault on the victim. Given the nature of JJ's offence, he is currently assessed as medium high risk of further offending. JJ will need to address alcohol and drug issues, poor associates and anger management issue to reduce this risk. He will also need to address his lack of consequential thinking and decision making will need to be addressed during his custodial sentence, as well as his diverting of blame to his co-offender.
The following evidence was tendered on behalf of the respondent: (a) Exhibit 1 - Letter by JJ; (b) Exhibit 2 - Letter from the respondent's mother, to the family of Liang Zhao; (c) Exhibit 3 - Letter from the respondent's sister, to the Superintendent of the Alexander Maconochie Centre; and (d) Exhibit 4 - Report by Associate Professor Jonathon C Arnold dated 3 September 2013.
The respondent called the following witnesses to give oral evidence at the sentencing proceeding: (a) The respondent; (b) The girlfriend of the respondent; (c) The sister of the respondent; and (d) The mother of the respondent.
The respondent gave evidence referring to the letter that he had written to the court.
In his report Associate Professor Arnold concluded as follows: · The respondent did not appear to have been undergoing a psychotic reaction or cannabis withdrawal on the night of the incident, and his cannabis use was unlikely to have any relationship to any impulsive aggressive behaviour he may have exhibited. · It was possible that the respondent's impulsive aggressive behaviour may be partially explained by his prior heavy use of amphetamines, however his recent use of amphetamines may have actually improved his cognitive capacity and awareness of the events and his actions that occurred on the night of the incident. · The respondent's heavy use of alcohol in the past and on the night might have increased his vulnerability to performing an impulsive aggressive act. · In conclusion based on the current scientific literature ‘no causal link can be drawn between the use of drugs of abuse and predatory aggression’.
On 8 October 2013 his Honour sentenced the respondent. In his sentencing remarks his Honour set out the facts and dealt at length with the subjective circumstances of the respondent. His Honour addressed the various considerations which had been taken into account in determining the length of the sentence imposed including: (a) The subjective circumstances of the respondent, noting the two minor entries on his criminal record which did not seriously impact on the present proceedings.[19] (b) The difficulties the respondent had encountered whilst in custody and noting that the respondent’s behaviour had recently improsed. [20] (c) The pre-sentence report, noting the view of the author that the respondent was unable to accept full responsibility for his part in the crime in which he willingly agreed to take part, and from which at no time did he try to withdraw. “He is assessed as at medium/high risk of further offending, and will need to address alcohol and drug issues as well as his poor choice of associates and anger management problems to reduce this risk. There is also a need to address his lack of consequential thinking and decision making if he is to be able to participate appropriately in the community.”[21] (d) The report of Professor Arnold. (e) The severity of the offence, stating “This is a most serious offence. Indeed, there is none more serious.”[22] (f) The intention of the respondent, accepting the respondent had no intention to kill.[23] (g) The respondent’s role in the offence, concluding: “Here it appears that JJ had a machete. That, in itself, is a fearsome and life threatening weapon. Its use would inevitably risk fatal injury. I accept, however, that this was not a case of premeditated murder and that JJ was not the initiator of the offence. Indeed, it appears that Mr Schmidt was the aggressor, having acted aggressively and causing much wanton damage on their journey down Northbourne Avenue.”[24] (h) The guilty plea, concluding that a 10% reduction in sentence was appropriate for the plea of guilty which came “very late in the day” but did “facilitate the course of justice”[25]. But for the plea of guilty he would have sentenced the respondent to 19 years’ imprisonment.[26] (i) The evidence of the respondent and the letter that he had tendered and his Honour’s acceptance of the respondent’s remorse and contrition.[27] (j) The respondent’s age, referring to authorities which balanced the need for rehabilitation of young offenders with the seriousness of the crime committed,[28] noting that he was obliged to take into account the fact that the respondent was a young offender under the legislation.[29] (k) The respondent had no relevant prior offences.[30] (l) That “there is a real prospect of rehabilitation and that a sentence commensurate with the seriousness of the offending must not crush such prospects”.[31] (m) The offer of assistance which had caused the co offender to change his plea and concluded that the cooperation “is relevant and must sound, in the sentence, to mitigate it to a degree”.[32]
I now turn to the grounds of appeal. The Appeal
As I have mentioned, the appellant advances two grounds of appeal. The first ground is that the sentence imposed is manifestly inadequate. This ground is particularised in a number of ways and I will return to it shortly. The second ground of appeal is that his Honour applied an incorrect principle in that in determining the unsuspended portion of the sentence he did not have regard to the length of time that the offender could be subject to the supervision of the Director-General.
The essence of the complaint advanced by the appellant is that the head sentence and the unsuspended portion of it were both too short, and that inadequate provision was made for the supervision of the respondent's rehabilitation.
The second ground of appeal may be shortly disposed of on the basis that it is directed at his Honour’s sentencing orders of 15 October 2013. As the appellant correctly points out, his Honour’s sentencing orders of 15 October 2013 left the respondent unsupervised for some 3 years and 6 months of the suspended portion of his sentence. I accept that this was the consequence of his Honour’s amended sentence of 15 October 2013 and if that sentence was to stand then such a significant period without supervision would invite appellate scrutiny. But that is not the position.
For the reasons already given, his Honour had no jurisdiction to make the orders of 15 October 2013 and those orders are to be set aside. As a consequence the sentence under consideration in this appeal is his Honour’s amended sentence of 8 October 2013 (see paragraph 40 above). Under that amended sentence the good behaviour order - including a probation condition - runs for the duration of the suspended period of the respondent’s sentence. In other words the respondent will be subject to supervision (through the probation condition) for the entirety of the suspended portion of his term of imprisonment. The appellant’s complaint about this aspect of his Honour’s sentence has no substance because it is directed at the amended sentence of 15 October 2013 (which is to be set aside) rather than the actual sentence of 8 October 2013.
I now turn to the first ground of appeal, that the sentence was manifestly inadequate.
It is convenient to deal first with the challenge to the unsuspended portion of the sentence.
The appellant contends that on the facts before his Honour the unsuspended portion of the sentence was too short. It is submitted that a longer unsuspended term was called for to ensure compliance with discipline and engagement in rehabilitation. In support of this submission the appellant pointed to the respondent’s disciplinary problems in custody and that the pre-sentence report presents ‘a less than glowing account of prospects of rehabilitation’.
I am not persuaded that the unsuspended portion of his Honour’s sentence was manifestly inadequate.
In the case of a young offender, release on suspended sentence with a good behaviour order and a probation condition performs much the same function as parole does for an adult offender. The substantive difference is that in the case of a young offender the release date is set in advance, without knowing how the young offender will rehabilitate in custody. In the case of adult offenders the prospect of parole provides an incentive to comply with directions and rehabilitate in custody.
I accept that the determination of a release date for a young offender involves a degree of speculation about their behaviour in custody and the longer the custodial period the more difficult that assessment becomes. However, I reject the proposition that follows from the appellant’s argument; that young offenders should necessarily serve a more substantial portion of their sentence in custody in order to ensure that they behave while in custody. Such a proposition is antithetical to the sentencing regime applicable to young offenders and in particular to the requirement that a sentence of imprisonment ‘must be a last resort and for the shortest appropriate term’ (s 133G(2)).
The circumstances of a particular case may require that a young offender serve most, or a substantial portion of, his or her sentence in custody, but this is not such a case.
As mentioned earlier the appellant relies on the respondent’s disciplinary problems in custody and his prospects for rehabilitation. On analysis, both these matters lack substance.
In his sentencing remarks, his Honour noted that the respondent has had some difficulty in adapting to the routine in custody and some disciplinary issues had arisen but concludes that ‘his behaviour has improved more recently’. This observation is supported by the evidence of the author of the pre-sentence Report, Ms Fowlie, who says: There have been a few issues whilst he’s been in custody. But from my understanding from talking with the custodial staff, there’s been no issues with his behaviour. He’s been quite positive in his behaviour since about July this year.... He indicated he’s moved his head space from remand into sentence. So he’s now realised he’s going to be doing a significant period of time, and he’s tried to put his mind in the sentence part of the jail now rather than the remand part. And he’s tried to settle down, which would be indicated from his behaviour recently.[33]
As to the respondent’s prospects for rehabilitation, his Honour accepted that ‘there is a real prospect of rehabilitation and that a sentence commensurate with the seriousness of the offending must not crush such prospects’.[34]
The appellant contends that the presentence report presented ‘a less than glowing assessment of prospects for rehabilitation’. Two observations may be made about this proposition. The first is that no such submission was put below, indeed the Crown made no submissions at all about the respondent’s prospects for rehabilitation. This Court is reviewing the exercise of a discretionary judgement not conducting a rehearing of the plea. Given the Crown’s silence below, it should not now be permitted to submit that the respondent’s prospects for rehabilitation were poor.
The second observation is that, even were we to permit the Crown to advance a different case on appeal to that run below, the submission fails to particularise how it is said that the pre-sentence report supports the proposition that the respondent’s prospects for rehabilitation are poor. In fact, the pre-sentence report makes no direct comment on the respondent’s rehabilitation prospects. The pre-sentence report must also be seen in the context of the evidence as a whole. It is noteworthy that the respondent had received continuous support from his partner and family during the two years he was in custody on remand prior to sentencing. The following exchange from Ms Fowlie’s evidence is also relevant: Mr Purnell SC: If he has a relationship with a person that can provide a positive outlook for him, and encourage him to do positive things, inside as well as his mum and his sister and his father, and gets away from the drugs culture, then his prospects would be very good, wouldn’t they, in terms of the future? Ms Fowlie: Yes, they would.[35]
It will be recalled that Ms Fowlie was the author of the pre-sentence report.
I now turn to the challenge to the head sentence.
There are two limbs to the appellant’s contention that the head sentence of 17 years imprisonment is manifestly inadequate.
First, it is submitted that the objective seriousness of the offending, and the need in the circumstances of the case for attention to general deterrence, specific deterrence and the protection of the community, demanded a longer term. In short, the appellant submits that the respondent's youth, though relevant, had to take a ‘back seat’ to the other sentencing considerations mentioned.
The second limb of the appellant’s submission is that the sentence imposed on the respondent was ‘out of kilter’ with that imposed on the co-offender, even allowing for the differences between them’. The appellant submitted that as the co-offender was only 2 years and 3 months older than the respondent there was nothing that could justify a three and a half year difference in the head sentences of the two offenders. In essence the appellant is advancing a parity argument. It is convenient to deal with this submission first before turning to the appellant’s broader submission that the head sentence was manifestly inadequate.
Parity in sentencing is an incident of the principle of equal justice. It requires that offenders be treated in a like manner but allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. As Gibbs J observed in Lowe v The Queen: It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.[36]
The sense of grievance necessary to attract appellate intervention on the basis of disparity is to be assessed by objective criteria. An appeal court will not intervene in circumstances where the disparity imposed on co offenders is justified by the differences between the co-offenders such as age, background, criminal history, general character, and the part each has played in the relevant criminal conduct.[37]
The appellant submits that the three and a half year difference in the head sentence imposed on the respondent, compared to that imposed on his co-offender, is indicative of error and suggests that too much weight has been given to the respondent’s age. For the reasons which follow this submission should be rejected.
There are a number of differences between the circumstances of the respondent and his co-offender. In addition to the difference in the age of the respondent (17 years and 9 months, and as such fell to be sentenced under a different legislative scheme as a young offender) and his co-offender (just over 20 years of age on the day of the murder) the matters set out below are particularly relevant. (i) Antecedents
The previous criminal history of the respondent and his co-offender are quite different.
The respondent had no prior convictions, though he had committed two relatively minor offences when aged sixteen. These offences were not relevant for sentencing purposes, a point conceded by the Crown in the proceedings below.[38]
The co-offender, on the other hand, had committed offences for theft, aggravated burglary, assault and discharging a firearm and had served a period of imprisonment for an offence of violence. In addition, the co-offender was on conditional liberty, on a suspended sentence, at the time he committed this offence.[39]
The different criminal histories of the respondent and his co-offender supported differential treatment. As Doyle CJ observed in R v Cox[40]: There is a marked disparity between that sentence (ie of the appellant’s co-offender) and the sentence imposed upon the appellant, but if that disparity is justified by the appellant’s record, it must be permitted to stand. Otherwise a hardened criminal sentenced with a new offender would not receive an appropriate sentence. (ii) Respective roles in the offence
The co-offender was the instigator of the criminal enterprise which culminated in the murder - he suggested that they ‘do a robbery’ and he proposed that they arm themselves with weapons. The agreed facts before his Honour also makes it clear that the co-offender struck the first blow with a baseball bat to the head of the deceased in circumstances where it was accepted that the respondent did not have any intention to kill the deceased. (iii) Assistance to authorities
The respondent had offered to give evidence on behalf of the Crown against his co-offender. In the proceedings at first instance the Crown conceded that the respondent’s plea, plus his commitment to give Crown evidence, was instrumental in his co-offender pleading guilty.[41] His Honour properly took this matter into account: I also accept that JJ’s plea and offer of cooperation, though not specific, was a factor in obtaining a plea of guilty from Mr Schmidt. As accepted by the Crown, ‘There is no doubt that JJ’s plea plus his commitment to give Crown evidence, caused Mr Schmidt to change his plea.’ This cooperation is relevant and must sound in the sentence, to mitigate it to a degree.[42]
On appeal, the appellant sought to resile somewhat from the concession given below, submitting that the matter was left in a most unsatisfactory state below because both offenders in fact entered pleas on 29 August 2013 and both, at that stage, were foreshadowing disputed facts. This matter was the subject of the following exchange between Counsel for the appellant and the Court: Murrell CJ: Even on your version, Mr Crown, if the offer of assistance related to disputed facts on a plea what was the nature of the dispute; can you assist? Mr White: Yes. From memory Mr Schmidt was seeking to distance himself from any involvement in the actual injuries that resulted in death. I think that may be the nature of the disputed facts. Murrell CJ: So he was just present aiding and abetting? Mr White: Effectively, his case was to be that he was simply present aiding and abetting. Murrell CJ: That would have been very, very significant assistance then, wouldn’t it? Mr White: It certainly was. It would have probably been achieved if the matters had been listed together and the matters had been heard together, but in any event that didn’t happen. We have to accept that there was a component which his Honour properly took into account in relation to the offered assistance or the assistance that was given. His Honour expressly took that into account and we don’t criticise his Honour taking that into account.[43]
His Honour clearly took into account the assistance provided by the respondent to mitigate the sentence, though he did not quantify and separately identify the discount applied (as required by s 36 of the Sentencing Act). On whatever view one takes of the effect of the assistance provided, it is conceded that it was ‘very, very significant assistance’. In these circumstances the respondent’s assistance warranted a discount of at least 10 per cent on his sentence. On this basis the assistance provided by the respondent, viewed in isolation of the other differences mentioned, substantially explains the difference in the head sentence imposed on the respondent and his co-offender. (iv) Other Offences
In sentencing the respondent’s co-offender his Honour took into account three additional offences (one of theft and two concerning damage to property) pursuant to Part 4.4 of the Sentencing Act.[44] The theft related to the property stolen from the deceased. His Honour referred to the property offences in sentencing the co-offender: They walked along Northbourne Avenue, Mr Schmidt carrying the baseball bat with which he proceeded to smash a bus shelter and the windscreen of a parked car. These acts of wanton vandalism constituted the two offences of damaging property on the list of additional offences.[45]
In R v Barton[46] Spigelman CJ explained how a court is to take such additional offences into account: The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.
The above observation is subject to the constraint imposed by s 57(3) of the Sentencing Act (which provides that any penalty imposed cannot exceed the maximum penalty for that offence notwithstanding that additional offences are taken into account) and by other relevant principles of sentencing such as totality.[47]
When s 57(3) speaks of taking the offences into account, it means taking them into account in the same way as other matters are taken into account for the purpose of sentence. As this Court observed in R v Tracey-Campbell:[48] No doubt it will generally have the result of increasing the sentence about to be imposed.
The appellant’s parity argument is devoid of merit. The differences between the respondent and his co-offender were numerous and significant such that any apparent disparity is readily explicable. This conclusion also has implications for the appellant’s contention that the sentence imposed on the respondent was manifestly inadequate as it was not contended that the co-offender’s sentence was inappropriately low.
I now turn to the first limb of the appellant’s contention that the head sentence is manifestly inadequate.
The appellant does not allege that his Honour made any specific error (such as acting upon the wrong principle; allowing extraneous or irrelevant matters to guide or affect him; mistaking the facts or not taking into account some material consideration); rather, it is submitted that his Honour made an error of the last kind mentioned in House v The King,[49] in that it was to be inferred from the result that there was a ‘failure properly to exercise the discretion which the law responses in a court of first instance’. As the plurality observed in Barbaro[50], in the field of sentencing, this kind of error is often described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. In this context it is common to speak of a sentence as falling outside the available range of sentences.
As was stated in Dinsdale v The Queen;[51] ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’ and, as the plurality pointed out in Wong v R,[52] appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is materially different from other sentences that have been imposed in other cases’. Rather, as the plurality in Wong went on to say: [i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.[53]
The Court’s power to substitute a sentence for that imposed a first instance can only be enlivened if it is satisfied that his Honour’s discretion miscarried in the result; that is, that his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offences consistently with sentencing standards.[54]
The appellant contends that the head sentence imposed bespeaks manifest inadequacy, having regard to the objective seriousness of the offence and the attendant aggravating features. The appellant drew attention to what were said to be a number of salient features of the offending, namely that the murder was committed: (a) in company; (b) with weapons, both offenders using their weapons; (c) it involved the infliction of extensive injuries upon the deceased; (d) the assault on the victim was prolonged; (e) the offenders attempted to conceal their involvement in the offence; (f) there was a degree of planning, noting that the victim was not specifically targeted and was not known to the respondent or co-offender.
A number of observations may be made about this submission. The first is that it is not contended that his Honour mistook any of the relevant facts. Further, it is plain from his Honour’s sentencing remarks that he had regard to the objective seriousness of the offence. His Honour said: ... this is a most serious offence. Indeed, there is none more serious ... The law recognises without specific evidence, the value which the community places on human life, that is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar ... The attack on Mr Zhao was unprovoked, cowardly, brutal, indescribably vicious, and of course ultimately deadly. As such no other sentence than a lengthy period of full time custody is required.[55]
Although this was not a case of intention to kill his Honour correctly noted that it did not necessarily follow that an intention to inflict grievous bodily harm which resulted in death was less serious,: The offence is a serious one, but I must consider too the precise circumstances of its commission. It seems to be accepted that JJ had no intention to kill. In some cases, it is suggested that this might mean that the offence is less serious where he inflicted grievous bodily harm which resulted in death. That is not always so, however, and depends, as the New South Wales Court of Criminal Appeal said in R v JB, “On the nature of the acts of the offender which played a part in the death of the victim. In R v Hearne, it was held that the offence involving intent to kill is generally more serious than one involving an intent to inflict grievous bodily harm. However, in R v Hilsley, the court held that although it will generally be the case that the intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, that is not always the case. Here it appears that JJ had a machete. That, in itself, is a fearsome and life threatening weapon. Its use would inevitably risk fatal injury. I accept, however, that this was not a case of premeditated murder and that JJ was not the initiator of the offence. Indeed, it appears that Mr Schmidt was the aggressor, having acted aggressively and causing much wanton damage on their journey down Northbourne Avenue.[56] (Citations omitted)
His Honour also dealt with the significance of the respondent’s age: As the New South Wales Court of Criminal Appeal pointed out in R v A E M: ‘It is well accepted that in the case of youth general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation (see R v D A; R v Mazili).’ However important as that principle is, it cannot defeat the primary purpose of punishment nor in the circumstances where young offenders conduct themselves in a way which an adult does can it stand in the way of the need to protect society. Lee AJ commented on this in Nichols: ‘True it is that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to jail or dealing heavily with them if that course can be avoided. However, there is a point at which the seriousness of the crime committed by a man at 19, even though a young man, is of such a nature, so great, that that principle must, in the public interest give way.’ Nevertheless, that does not mean that for such a serious offence youth and the principles laid down by the courts in sentencing youthful offenders, cannot play a part. It does so regularly in sentencing, even for the most serious offence of murder. In the first place the legislature has prohibited me from imposing a sentence of life imprisonment. That immediately makes a statutory distinction from the sentencing of an adult. In the second place, the statute sets out a separate regime for the sentencing of young offenders, and I am not satisfied that this regime is to be set aside simply because the seriousness of the offence without further consideration. Nevertheless, JJ, as at the time of the offence, a few months short of his 18th birthday.[57] (Citations omitted)
His Honour’s observations of the significance of the respondent’s age are consistent with principle and do not disclose any error.
His Honour also addressed the various other considerations he was required to take into account. These matters are set out earlier (at paragraph [74]), and, without reciting them in detail, the following matters were significant mitigating considerations: (a) the respondent was not the initiator of the offence; the plea and the respondent’s assistance to the authorities; (b) the respondent’s remorse and contrition; (c) that there was ‘a real prospect of rehabilitation’; and (d) the absence of any relevant prior record.
In the course of oral argument, the appellant did not contend that rehabilitation should be ignored, but submitted that ‘the real issue is the weight to be given to it, given the gravity of the offence’.[58] This proposition may be shortly disposed of. Within the range of sentences for this offence and this offender, the weight to be given to the evidence and the various conflicting sentencing considerations were a matter for his Honour. As I have mentioned, the authority of this court to substitute a sentence for that imposed by his Honour is only enlivened if the court is satisfied that his Honour’s discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could justly be imposed for the offence consistent with sentencing standards.
The appellant sought to rely on comparative sentences to make good the proposition that the sentence imposed here was manifestly inadequate. In that context, the appellant particularly relied on the sentence imposed by Penfold J in R v Yuen.[59]
Her Honour sentenced the offender in Yuen to 21½ years’ imprisonment, reduced from 24 years’ imprisonment for a late plea with disputed facts. The appellant submitted that the circumstances of the present matter called for a greater sentence than that imposed in Yuen. This submission was largely put as a matter of assertion, with no analysis of the particular circumstances in Yuen compared to the present matter. On analysis, the proposition that the present matter called for a higher sentence than that imposed in Yuen cannot be substantiated. Two points may be made in this regard.
First, the circumstances in Yuen are markedly different from the present matter.
Yuen was not a random act of violence committed on an unknown victim. Rather, the offender had waited in anger for some hours, with a loaded shotgun, for the victim to arrive, having taken steps to lure him to the place where he was eventually killed. Her Honour found that the offender intended to begin the confrontation with the victim by firing the shotgun. The offender discharged two, separate, shots from a distance of less than a metre. Most or all of the pellets from the first shot entered the victim’s chest cavity causing extensive injuries. Post mortem evidence was that death was the inevitable result of the wounds inflicted. There was no suggestion that the offender’s actions or state of mind were affected by alcohol or any illicit substance. As her Honour observed in her sentencing remarks: The passage of three hours after Mr Yuen first heard about his van, and the repeated attempts to confront Mr Welsh over that period, mean that Mr Yuen’s shooting cannot be characterised as an instantaneous reaction to immediate provocation. Mr Yuen’s anger appears to have grown rather than abated during that time. It is also clear from the evidence of Mr Yuen’s efforts to disguise his appearance and remove fingerprints from his gun before he set off to find Mr Welsh that, despite his anger, he was thinking quite rationally about a prospective violent confrontation in which Mr Welsh would suffer serious injury.
In Yuen, the offender was 28 years old at the time he was sentenced and, it may be surmised, about 25 years old when he committed the offence. He had an extensive criminal history involving offences of violence. There is simply no comparison between the circumstances in Yuen and the present matter. The objective gravity of the offending in Yuen was self evidently more serious than in the present matter.
The second point to be made is, as the plurality cautioned in Hili v The Queen,[60] care must be taken in using what has been done in other cases. Manifest inadequacy is not demonstrated by reference to the sentence imposed in another case. A history of sentencing can establish a range of sentences that have in fact been imposed, but that history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper or lower limits. The plurality also endorsed the following observation of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa[61]: Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’ (emphasis added). When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned’.[62]
As to the articulation of unifying principles, the plurality in Wong v R[63] said,: [R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.[64]
In terms of the distillation of unifying principles from other sentences for the offence of murder, the appellant relied on the following passage from the sentencing remarks of Penfold J in Yuen: I am not satisfied that this murder falls into the worst category of murders, not because it is always possible to imagine a worse case but because there are plenty of actual cases, in the ACT as well as in New South Wales and other jurisdictions, the circumstances of which reflect significantly higher degree of culpability, or indeed raw wickedness, on the part of offenders than I have found in this case. There are carefully planned murders carried out in cold blood for financial or other personal gain (R v DonaiI [2008] NSWSC 502, Burrell v The Queen (2009) 196 A Crim R 199; R v Marsh [2012] NSWSC 208 and R v Johnson [2007] NSWSC 274); there are killings carried out for some perverse sexual or other kind of thrill (R v Debs [2012] NSWSC 119); killings resulting from an attack intended to cause serious pain and long-term disfigurement to the victim (R v Tan [2007] NSWSC 684) or from a particularly vicious, frenzied and irrational attack (McDougall); killing or even attempted killing of a public official in connection with his official duties (Eastman, Kocan); or the planned executions of gang rivals (Darwiche v The Queen [2006] NSWSC 1167). Other ACT cases, being those of R v Conway SCC 167/1997, 7 July 1998 (sentencing remarks) and R v Hillier SCC 37/2004, 16 March 2005 (sentencing remarks), in both of which offenders were sentenced for the calculated murders of their partners, either for financial gain or because of a wish not to lose custody of their children, did not in fact involve life sentences, but respectively sentences of 24 years with an 18-year non-parole period and 18 years imprisonment with 13 years to be served.
The above extract essentially stands for the proposition that the objective seriousness of the offence of murder is graduated on the basis of the degree of culpability, or indeed ‘raw wickedness’ on the part of the offenders. While it may be accepted that the degree of culpability or ‘raw wickedness’ is relevant to assessing the objective seriousness of this offence, that does not assist the appellant in the context of this case. The appellant contends that the offending in this case should be placed at the top of the range of such offending. This submission is put on the following basis: What is particularly evil about this act was the element of randomness about it. The desire to go out and commit a robbery and then once the robbery was effected to finish the victim off. It had a real raw wickedness about it, which is the expression her Honour used.[65]
While the offence of murder is plainly very serious, the type of conduct constituting such offending varies from what might be regarded as lower range to high range offending. This characterisation is not to diminish the seriousness of the offence; nor does it diminish the impact on the victims, but rather recognises the reality that the type of conduct constituting such offences varies significantly.
To give effect to the appellant’s submission, one would place a random act of violence causing death above the objective seriousness of carefully planned murders carried out in cold blood for financial or other personal gain. Such an approach is contrary to principle and must be rejected.
For completeness I note that the appellant also submitted that the present case was comparable to McDougall[66] or even Debs.[67] This submission was not the subject of much elaboration and there was no attempt to compare the circumstances of the instant case with those in the cases cited. This submission must also be rejected.
A considered assessment of the objective seriousness of the offending in this case, taking into account the culpability of the respondent and the subjective circumstances found to have applied to him, inexorably leads to the conclusion that the sentence imposed did not fall outside the available range of sentences. The contention that the sentence was manifestly inadequate is rejected.
For the reasons given, his Honour did not have the requisite jurisdiction to make the orders he made on 15 October 2013.
I would order that his Honour’s orders of 15 October 2013 be set aside. It is likely that the effect of such an order would be to enliven his Honour’s earlier amended sentence of 8 October 2013, but to put it beyond doubt I would remit the matter to his Honour to reimpose the sentence reflected in the amended order of 8 October 2013.

R v JJ [2014] ACTCA 23

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