R v LLM

GROVE J HULME J SIMPSON J

Friday, 2 September 2005 REGINA v LLM Judgment 1 GROVE J: I have had the advantage of reading the draft judgment of Hulme J and I gratefully adopt his recounting of the circumstances of offence and the issues raised by the grounds of appeal. 2 There is no need for me to emphasize the serious nature of the violence and threats of violence against unprotected victims which were perpetrated by the appellant or joined in by him. Although I would give full weight to the application of the principles relating to the exercise of criminal jurisdiction with respect to children as required by s6 of the Children (Criminal Proceedings) Act 1987, I am of opinion that no less severe sentence was warranted and, subject to what follows, the appeal should be dismissed. 3 That opinion is qualified by the correction to balance of term which Hulme J has indicated should be done in order to fulfil what was obviously the intention of O'Reilly DCJ. 4 I agree with the orders proposed by Hulme J. 5 HULME J: The person identified above by the initials LLM was, at relevant times, a juvenile. So were other persons who seem to have been involved with LLM in the activities the subject of these Reasons. Section 11 of the Children (Criminal Proceedings) Act 1987 precludes such persons being described in a way that identifies them and accordingly it is convenient to use initials throughout these remarks. 6 On 18 May 2004 Judge O'Reilly sentenced LLM and a co-offender VL both of whom have sought to appeal against the sentences imposed. Both appeals were heard on the same day although at the request of their counsel, separately. A decision in VL's case will be delivered at the same time as this decision is handed down. LLM was sentenced in respect of 2 offences, viz:- (i) That on 1 April 2003 he did assault Patrick Chang with intent to rob him and at the time of the assault did wound Patrick Chang whilst being then in the company of AD and JB. (ii) On 10 April 2003 he did, without consent, take and detain John Lee with the intention of obtaining an advantage, to wit, cash moneys via an automatic teller machine, the said John Lee having occasioned actual bodily harm during being detained, while in the company of AD and two other unknown males. 7 The first of these offences arises pursuant to s98 and the second pursuant to s86(3) of the Crimes Act 1900. Each offence rendered LLM liable to imprisonment for 25 years. 8 In sentencing LLM in respect of the first offence his Honour took into account 5 offences on a Form 1 of:- (i) On 31 March 2003 stealing a motor vehicle, registered number WFS-989. (ii) On 1 April 2003, robbery with an offensive weapon of Huang Lee (iii) On 1 April 2003, use of an offensive weapon, to wit a motor vehicle WFS-989 in an attempt to avoid arrest and run over police. (iv) On 1 April 2003, drive a conveyance WFS-989 without the consent of the owner, and (v) On 14 April 2003 being carried in a conveyance, registered number "IVALUE" without the consent of the owner 9 In sentencing LLM in respect of the second offence his Honour took into account an offence on a Form 1 of:- On 12 February 2003 having goods, viz a black plastic case containing a rechargeable torch, a rechargeable drill and a battery charger which may reasonably be suspected of being stolen or otherwise unlawfully obtained. 10 In imposing sentences Judge O'Reilly expressed himself as follows:- "I fix a non-parole period of five years from 24 April 2003, eligible for release to parole on 23 April '08. I fix a full term sentence that that is simply the non-parole period plus one-third - a full term sentence of eight years and four months from 24 April 3003 expiring 23 August 2011."

And later: - "Well counsel reminded me that I have only sentenced on the matter of 1 April '03, s98. So far as the count laid under s86(3), that is in relation to the events of 10 April '03, I fix a non-parole period of 5 years from 24 April '03, eligible then on 23 April '08. I sentence him to a full term of seven and a half years commencing 24 April '03 expiring 23 October 2010. So the full term is only the non-parole plus one-third." 11 The 24th April 2003 was the date of the Applicant's arrest. His Honour said that he intended to make an order under s19 of the Children (Criminal Proceedings) Act and to that end made a finding of special circumstances based on the Applicant's age, his Honour's view that psychological and Juvenile Justice information indicated that if the Applicant had access to intense professional supervision he was very likely to have a good chance of rehabilitation and his Honour's opinion that the Applicant would be in grave danger in the adult prison system. His Honour's finding was clearly directed to s19 of the Children (Criminal Proceedings) Act and not to s44 of the Crimes (Sentencing Procedure) Act. (In fact, and despite his expressed intention to do so, the transcript of his remarks on sentence indicates that his Honour did not make any order that LLM's sentence be served in a Juvenile Detention Centre although such an order does appear endorsed with the sentences on a "Continuation Sheet" which appears to have been attached to the Bench Copy of at least one Charge Sheet.) 12 The circumstances of the offences on 1 April were as follows. (I have largely taken the account from Judge O'Reilly's remarks on sentence although not in every respect verbatim. There was no challenge to these remarks.):- At about 10.20am on that day… Patrick Chang aged 17 and his mother Mrs Lee aged 47 were walking… along Parnell Street, Strathfield. They walked by a stolen motor car, a blue Nissan vehicle, WFS-989. As they did so, they were confronted by a co-offender of LLM and VL, AD. He was armed with some metal pipe and he was in company with another co-offender who was armed with a broken beer bottle. The Prisoner LLM was in the driver's seat. AD demanded Patrick Chang's portable CD player, his mobile phone and money. AD had the metal pole extended towards the victim and the other co-offender was standing behind him. Mrs Lee said "no" and began calling for help. They started to walk away. Then the two men who were out of the vehicle walked up to Mrs Lee, one of them grabbing her handbag. Patrick Chang punched one of the males in the stomach causing him to back off. The man with the bottle threw this towards Patrick Chang. Patrick struck him twice to the body causing him to back off. Then LLM came out of the vehicle and punched Patrick Chang to the left side of the face. AD then struck Patrick Chang to the right side of the head with the metal pipe. This caused pain and bleeding. The two men approached Mrs Lee, one taking her handbag. LLM moved back into the car as did the co-offenders. Patrick Chang tried to stop them. Mrs Lee on the left side of the car tried to get her handbag but they drove off causing her to fall to the ground, fortunately not severely injured. 13 The injuries to Mr Chang included lacerations to the right parietal scalp which required 3 sutures, soft tissue swelling over his left zygoma and a fracture of the zygoma. 14 Judge O'Reilly acknowledged that the offence was one in respect of which a standard non-parole period of 7 years applied but said that "we know now that that only applies to verdicts after a trial - it does not interfere with the normal discounting process in respect of a plea and perhaps other matters where mitigation comes into play on a common law type basis" and "Whether (the Applicant's offence) be in the middle of the range or whether it be simply as a useful benchmark from which one can move either way, based on the other available evidence, perhaps does not matter a great deal in a case like this". Later his Honour remarked that "I have had to have regard to the new sentencing regime". 15 The circumstances of the offences on 10 April were as follows. (Again I have largely taken the account from Judge O'Reilly's remarks on sentence and to which there was again no challenge, although not in every respect verbatim.):- At about 9.10pm a car containing five offenders including LLM and VL drove into a car park next to a set of shops. A doctor John Lee who lived in a unit at the rear was standing near his vehicle talking on a mobile phone. Three males left the vehicle and approached Dr Lee, one pointing a knife at his chest and another who was armed with a metal pole raised it at Dr Lee. One of the offenders demanded money. Dr Lee was robbed of his wallet containing $20, a handheld computer and a mobile phone. One of the offenders removed a CD player and a second mobile phone from Dr Lee's vehicle. Dr Lee was told to sit in the back of his car and an offender armed with a knife sat on one said and an offender armed with a pole sat on the other. Another offender occupied the driver's seat and drove from the car park. LLM followed in a separate vehicle. Dr Lee's car was driven the rear of a supermarket near the Guildford Hotel. One of the offenders demanded Dr Lee's PIN number to a Commonwealth Bank Account and also his National Bank Flexicard. Dr Lee provided the number. One of the men said to Dr Lee "if I don't get at least $1,000 I am going to stab you". LLM, VL and another offender left the car park leaving a fourth to look after Dr Lee. The three returned a short time later. When this was occurring Dr Lee pushed one of the males and closed the door to his car. He got into the driver's seat and tried to start it. Then one of the four men struck him on the side of the head. After a struggle with Dr Lee an offender took the ignition key and Dr Lee was struck to the head about six times by one of the men. One also said "you try one more and I cut you open." Three of the offenders got back into Dr Lee's car and he was driven to McArthur Street Guildford. The other vehicle containing the rest of the offenders arrived a little later. Three males got out of Dr Lee's vehicle and spoke to someone in the second vehicle. As this occurred Dr Lee turned off the ignition, took the key and made his escape. 16 It is appropriate also to say a little about the Form 1 offences. The stealing and driving of the motor vehicle need so expansion. The reference to "Huang Lee" in the second of the offences is a reference, although misspelt, to Mr Chang's mother. The third offence arose this way:- Just after the offence involving Mr Chang police saw the vehicle WFS-989 and pursued it for some distance. Having regard to the absence of charges arising from this pursuit it is sufficient to mention next that the pursuit continued to St Hilliers Road Auburn where red lights had caused other traffic and forced LLM to stop. Police approached the vehicle and when Senior Constable Peterson was a short distance from it, LLM drove WFS-989 into two of the other stationery vehicles. He then extricated the vehicle he was driving from the jam, damaging 4 or 5 vehicles in all while doing so. 17 There was no further information in the Appeal papers recording the details of this offence and of the way the Applicant attempted "to run over police". Statements of Facts, apparently tendered in the sentencing proceedings, and later supplied by the Crown to this Court contained no further information about that offence. Neither originally nor in those Statements of Facts was there any information supplied to this Court concerning the circumstances of the fifth offence, apparently committed on 14 April, and referred to in the Form 1 that referred to 5 offences. 18 The goods in custody charge referred to in the second Form 1 related to a black plastic case containing a rechargeable cordless drill and torch and a battery charger located in the course of execution of a search warrant on the day the Applicant was arrested. He said that he bought them for $50 from a friend, knowing they were worth more and thinking they may or may not have been stolen. 19 The subjective circumstances of LLM are also relevant to the determination of his appeal and it is convenient to refer to them now. 20 LLM was born on 31 January or 1 February 1986. He was thus 17¼ or just over at the time of the offences. On 6 April 2001 he was the subject of control orders for a minimum term of 7 months and an additional term of 3 months for a number of offences. These were:- · 2 counts of robbery in company in respect of which he had been charged in May 2000; · one of assault with intent to rob in company in respect of which he had been charged in June 2000; · One count of being carried in a conveyance without the consent of the owner in respect of which he had been charged in December 2000; · one count of possessing implements to enter or drive a conveyance and one of good in custody in respect of which he had been charged on 6 February 2001; and · one count of being carried in a conveyance without the consent of the owner in respect of which he had been charged on 15 February 2001. 21 In July 2001 he was again charged with goods in custody and in January 2002 another, but suspended, control order was imposed.

22 In October 2001 he was again charged with being carried in a conveyance without the consent of the owner and in November 2001 placed on 18 months probation. That probation was thus current at the time of the subject offences. Twelve months probation was imposed in March 2002 in respect of offences of driving when he had never been licensed and resisting or hindering a police officer in the execution of his duty, offences with which he was charged on 20 January 2002.

23 Also on 20 January 2002 LLM was charged with driving a conveyance taken without the consent of the owner and driving recklessly, furiously or in a speed or manner dangerous to the public. He was convicted of these offences and appeals were dismissed on 17 May 2002 when control orders were imposed. The longest of these was for 9 months minimum term commencing on 20 April 2002 with a non-parole period of 3 months following. The antecedent report says that this 3 months period commenced on 20 April 2002 but that would not seem to be right. In connection with the driving dangerously charge, he was disqualified from driving for 2 years from 7 March 2002.

24 On 13 February 2003 he was charged with driving whilst disqualified on 5 February 2003 and a further 2 years disqualification commencing 7 March 2004 imposed.

25 According to reports from the Department of Juvenile Justice of February and April 2004 which was before Judge O'Reilly, LLM's upbringing was chaotic. His father was in and out of gaol, his parents' relationship volatile and when that relationship ended his mother commenced a relationship with a man who was violent towards her. Later she reported to the Department of Community Services that she was addicted to alcohol and LLM and his siblings were placed with relatives one of whom the Applicant regarded as overly strict. Whether that was the fact or the Applicant's views are coloured by his general attitude to authority it is unnecessary to decide. A return to live with his mother in 1999 imposed further strains. His schooling was characterised by truanting, learning difficulties and aggression towards staff. Referred to a special educational unit because he was exhibiting behavioural and intellectual disability, he refused to attend. Following release from detention in January 2002, he attended an employment program and job interviews for some 6 months but then ceased. He has no or negligible employment history.

26 In those reports it was said that LLM had few friends or acquaintances whose lives did not revolve around drug use, antisocial and criminal free (sic) lifestyles. He was introduced to marijuana smoking from age 13 and since then has experimented with other drugs. He is recorded as not motivated to confront his marijuana dependency. Psychological testing indicated significant problems with social adjustment and willingness to resort to violence. It was also observed that he attempted to escape from custody in September 2003 although that after Christmas 2003 his behaviour improved and he decided to learn new skills. He commenced an Aggression Replacement Program and in the April report it is recorded that his behaviour had "dramatically improved" and that he was actively addressing his propensity for violence. It was said that he would continue to benefit from intensive intervention provided at the Detention Centre.

27 A psychological report of February 2004 from Duffy Barrier Robilliard reported the Applicant saying that he had been using ecstasy about every second day and also amphetamines. He said that while the amphetamines slowed him down the ecstasy made him vicious. He told the author of the report that he was then trying to give up cannabis because he wanted to stop committing crimes to pay for it and that since being in custody he had woken up to himself. The conclusions in the report included the following:- "…(LLM) is deemed to be intellectually intact and operating in the lower end of the Average range. He had no difficulty communicating … His performance of the personality test described a markedly antisocial disposition. Areas of concern are his substance abuse problems, delinquent pattern of behaviour and inability to control impulses. From the background history … it appears he was born into an unstable family of origin. (LLM) appears to have been especially in awe of co-accused (AD) although (LLM) also described him in negative terms and disliked (AD)'s treatment of the victims. This suggests he is very vulnerable to negative influences and unwilling or unable to think and act independently. There is some indication that (LLM) regretted injuries, psychological and physical, done to the victims … . "(His) behaviour during our meeting indicates (LLM) has a major problem with perceived authority figures. He repeatedly interrupted the interview and made no attempt to conceal his contemptuous attitude toward most staff members. He was rude, demanding and hostile. On the other hand LLM is evidencing some signs of growing maturity. His behaviour in these offences indicated LLM is easily influenced. The longer he remains in custody, the greater his exposure to unhelpful attitudes, behaviours and associates. Placing him in the adult prison population would probably cause even greater damage. When LLM is ultimately released from custody, a lengthy period of monitoring, support and supervision would be recommended."

28 An April report from a departmental chaplain also attested to improvement in LLM's behaviour and attitude and effort since the beginning of 2004.

29 At one place in his remarks on sentence, Judge O'Reilly seems to have accepted the substance of these reports of improvement during 2004 although later he remarks that "under the mitigating factors I think the only positive is the plea of guilty". His Honour also remarked that he had gone a little higher than the usual discounting for a plea, because of the Applicant's age. Earlier his Honour had said that he would allow a discount of 25% for the plea and that he gave VL, who was born on 1 June 1987 and thus not yet 17 at the time of sentence, a discount of 25%. 30 During the hearing of the appeal there was read on the usual conditional basis a recent affidavit of the Applicant, one by Mr Barrow, the Applicant's solicitor, and one by a Mr Mumford, the Acting Governor of the Karion Detention Centre. Putting aside LLM's criticism of the changes he says have occurred at Kariong since it was taken over by the Corrective Services Department in late 2004, LLM said that he was going to school in the afternoon only, doing limited work, and currently undergoing a 6 week drug and alcohol course. He also said that many of the adult members of his family had been in prison a lot and he can see that if his participation in crime continues he will also spend much of his time in prison - something he does not want. 31 Mr Barrow annexed to his affidavit a letter of 12 April 2005 from the principal of the school attended by residents of Kariong, a Mr Foster. In that letter Mr Foster said:- "(LLM) had been in a General Education class participating in "remedial reading recovery" and studying the following…: English Mathematics Humanities Civics and Citizenship Creative Art Currently (LLM)'s teachers all report him as interested and usually well behaved. He has been very willing to improve is literacy and numeracy levels, both of which have been assessed as remedial. In this group he is compliant, helpful, interested and motivated at most times. (LLM) is particularly interested and usually a keen participant, in all the sports activities offered. (LLM) is usually no discipline problem and we are satisfied with his level of involvement in all programs. We recommend that LLM continue with his studies and we wish him every success in all that he does." 32 Mr Mumford's affidavit recorded that the Applicant's situation was because his behaviour had been poor and non-compliant and his classification was because he had attempted to escape but this classification was open to review in the event in an improvement in his behaviour and attitude. Documents annexed indicate that the escape attempts occurred in July and November 2003 and that there were plans or discussions about doing so in September 2003 and June 2004. Another letter from the principal of the school at Kariong, dated 28 April 2005, was annexed to Mr Mumford's affidavit. In this letter Mr Foster said that LLM's attendance at school had been inconsistent at best and he had been a chronic avoider. There have been lengthy periods of withdrawal from school (and for a time the school was full) and LLM has rarely adhered to conditions of attendance imposed as terms of his re-entry to school. LLM's latest withdrawal was on 21 March 2005. Other documents attached to Mr Mumford's affidavit, including a departmental Alert list and incident advice sheet provide an indication that the Applicant's conduct during 2004 was much better than previously. 33 There was no attempt during the hearing of the appeal to resolve the extraordinary difference in stance apparent in Mr Foster's 2 letters. 34 It is convenient to say at this stage that the Applicant's criticism of the change in regime at Kariong and its consequences are of no present weight. The Second Reading Speech of the Minister when introducing the Bill which resulted in the change made it clear that a more disciplined and, by inference harsher, regime was desired at that institution. While it is proper for the Court to recognise the nature of that regime, the Court is in no position to say that it is not appropriate. Secondly, if regard is had to the totality of this new evidence the picture portrayed is no more favourable to the Applicant than the evidence which Judge O'Reilly accepted in the Court below.

35 The grounds of appeal advanced on behalf of LLM are: (i) The sentences imposed upon the co-offender AD by a different Judge and subsequent to the sentencing of the applicant in respect of the two offences committed in common gives rise to a degree of disparity that occasions a legitimate sense of grievance in the applicant. (ii) The learned sentencing judge erred in having regard to an element of the offence, being that the applicant was in company at the time of armed robbery offence of 1 April, as a factor of aggravation. (iii) The learned sentencing judge erred in having regard to the fact of a prior criminal record as a factor of aggravation. (iv) The sentences imposed upon the application are manifestly excessive.

Grounds 2 and 3 36 It is convenient to address first the second and third grounds of appeal. What his Honour said relevant to these grounds was:- "And so far as he (LLM) is concerned, I should also have regard to s21A and one has the threatened use, actual or threatened use of violence; use of a weapon in the hands of others; he has the criminal record; the offence was committed in company; yes he was also on a bond." And in the case of VL:- "I should specifically deal with those (sic) s21(A) matters. The aggravating factors are - well there is the actual or threatened use of violence; weapons were used; there is a record of previous convictions; it was committed in company, and (VL) was I think, was on parole. So there are a number of aggravating factors."

37 The matters to which his Honour referred in these passages are matters listed in s21A as aggravating and it seems to me that that is how his Honour used them. However in a concluding paragraph, Section 21A(2) expressly provides that "The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence."

38 Specified in the assault with intent to rob charge against LLM was that the offence was committed in company and that there was wounding. Implicit in the allegation of assault was that there was actual or threatened violence. The suffering of actual bodily harm and the fact that LLM committed the offence in company were ingredients of the second offence charged against him. Thus his Honour's approach in the passages from his remarks on sentence which I have just quoted was directly in the face of s21A(2). 39 Section 21A(4) provides:- "The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so."

40 It is clear law that, while a prior criminal record is relevant in sentencing in that it may deprive an offender of leniency to which he might otherwise be entitled or indicate that more weight is to be given to retribution, personal deterrence and protection of the community, such a record does not aggravate an offence - R v Shankley [2003] NSWCCA 253 at [31]; R v Johnson [2004] NSWCCA 76 at [33] et seq; R v Wickham [2004] NSWCCA 193 at [24]. Although his Honour's error was undoubtedly contributed to by the misleading and inappropriate specification in s21A(2) of a record of previous convictions as one of the "aggravating" factors to which a sentencing judge must have regard, the passages quoted from the remarks on sentence seem to me to indicate that his Honour breached the terms of s21A(4). 41 Accordingly, these ground of appeal are made out.

Ground 4 42 Before turning to the issue of parity it is also convenient to consider this ground complaining that the sentences are manifestly excessive as incidental to it are considerations of the Applicant's criminality and subjective circumstances. 43 Even though it may not come strictly within the ground "manifestly excessive", 2 matters to be noticed at the outset are the apparent errors in his Honour's calculation of the non-parole periods. Having determined in the case of each offence on a non-parole period of 5 years he then fixed as the full terms 8 years and 4 months in the case of the first charge and 7½ years in the case of the second, in each case indicating that the result was just 5 years plus one-third - the proportion contemplated by s44 of the Crimes (Sentencing Procedure) Act. One third of 5 years is of course one year and 8 months so that neither sentence fixed by his Honour in its full term accords with his Honour's apparent intention. 44 Turning to the more substantive matters, there can be no doubt that the offences for which he was sentenced, while not the most serious of their type, were serious. An attack with a broken beer bottle, even if in the end only thrown, and metal bar applied to the side of someone's head is serious and although the Applicant was not the offender wielding these weapons, he chose to associate with those who were and aided them in the robbery. On Judge O'Reilly's findings, the Applicant also helped by punching the victim. An attack with a knife is no less serious. When it is made the means of kidnapping a victim and accompanied by threats to stab and cut open the victim, effectively helpless in the presence of 4 offenders, the criminality exhibited cannot be regarded as other than gross. No civilised society can tolerate such behaviour.

45 Nor can society tolerate the conduct involved in the offences the subject of the Applicant's Forms 1. Stealing and using other people's motor vehicles may be not uncommon among those with whom the Applicant associated but is a substantial impost on those who own the vehicles and most of whom will have presumably worked for substantial periods to pay for those vehicles. In this connection it is not to be ignored that the 2 offences of that nature on the Form 1 followed 4 prior convictions for similar offences. The robbery of Mrs Lee was also serious as was use of a motor vehicle to avoid arrest. In any society where those with the Applicant's standards of behaviour exist, some organisation is necessary to protect others against crime and violence and the approach of courts must reflect the needs of the police in the apprehension of offenders. I do not forget the limits which this Court has put on the weight to be given to offences taken into account - see R v AEM [2002] NSWCCA 58 at [82]; R v Kay [2002] NSWCCA 286 at [53] - but in totality, the offences on the Applicant's longer Form 1 required that the sentence for the offence in connection with which they were taken into account be appreciably increased - c.f. R v Kay at [55]..

46 In any judgment about the Applicant, it is appropriate that there be recognition of his upbringing. It would be unduly harsh to punish someone for offending against standards which he had never been taught and about which he knew nothing. It would be unduly harsh not to recognise that habits and standards not inculcated from birth are harder to adopt and accept as the norm and that to some degree all of us are products of our environment, including our family, friends and acquaintances. It would be unfair not to recognise that the Applicant, at 17 when the offences were committed, was not yet an adult.

47 On the other hand, LLM cannot have been ignorant of what community standards and basic rules of society expected of him. At even his rudimentary level of schooling, he must have been taught that one should not bully others by force or take their possessions. Furthermore, his previous experiences of being charged and sentenced, with the inevitable interviews and discussions that are associated with such events must also have fully informed him of the wrongness of the actions considered by Judge O'Reilly. The offences for which he was dealt in April 2001 contain many of the ingredients of those with which Judge O'Reilly dealt. And one could have no doubt that he would have been reminded of his obligations when after April 2001 he was again brought before the courts. I have no doubt that he would not have regarded himself as fairly entitled to treat his friends as he treated Mr Chang and Dr Lee or that that was a proper way for anyone to treat him.

48 Given these matters together with the nature of the offences, the Applicant's past record, and the fact that he apparently chose to ignore the probation he was on at the time he committed the offences, I regard his background as entitled to no more than very limited weight in any consideration of the appropriate sentences. He has not learnt from the very considerable leniency and chances given to him in the past for his numerous instances of offending. Instead he has chosen - for that is what he has done - to prey on others whom he and his friends can overcome by force or threat. 49 I also regard his youth as of limited weight. While the authorities make it clear that youth is a mitigating factor in sentencing and rehabilitation of young offenders important, they also make clear that there are limits on the extent to which these matters can be allowed to influence the sentencing process. 50 As was said in R v Hearne [2001] NSWCCA 37 at [25] "part of the rationale for making any allowance for youth (is) 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:-

"If, in a particular case, a crime has been committed and it is a crime which is, in its nature and incidents, an adult crime rather than a crime which can be conceptualised sensible as deriving from the offender's ' … state of dependency and immaturity …,' then that factor is, in my opinion, strong warrant for the exercise of the relevant discretion in favour of dealing with the offender according to law."

And later, at [28] of the decision in R v Hearne :- "It takes no great maturity to appreciate in the course of planning, for example, an armed robbery or other instance of violence, that such activities infringe the rights of others in a way that no civilised society can tolerate." 51 Furthermore, as Hunt CJ at CL said, with the concurrence of the other members of the Court, in Hawkins (1993) 67 A Crim R 64 at 66:- "… even for children considerations of general deterrence are not to be ignored completely. And, where a youth conducts himself violently in the way an adult might conduct himself, and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remained significant considerations in sentencing that youth: Pham (1991) 55 A Crim R 128 at 135; Allam (Unreported, CCA, 13 April 1993)" 52 Experience in this Court demonstrates that it is a regrettable fact of modern life in New South Wales that violent offences of the nature of those committed by the Applicant are not infrequently committed by persons of the Applicant's general age group. Furthermore, so common are violent attacks on innocent victims with a view to obtaining money that there is a demonstrated need to ensure that sentences for the offences are not unduly lenient. 53 Given his youth and background, rehabilitation of the Applicant merits particular consideration. It is by no means obvious that that will be facilitated by a shorter rather than longer time in custody. In saying that I do not forget the opinion expressed in the Duffy Barrier Robilliard report to the effect that "the longer LLM remains in custody, the greater his exposure to unhelpful attitudes, behaviours and associates and that placing him in the adult prison population would probably cause even greater damage". However the Applicant seems to have managed to find sufficient of these attitudes, behaviours and associates outside custody to make it both necessary and desirable to incarcerate him for a substantial period and I could not conclude that the risk of contamination from other inmates at Juvenile Detention Centres would increase to any significant extent if he spends more than the minimum necessary time there. 54 The argument for not sending him to an adult gaol is stronger. However again I find it impossible to believe that the Applicant has not learnt enough undesirable behaviour and standards to make this argument of little weight. I suspect much may also depend on what adult gaol the Applicant is in due course sent to and one must recognise that that event may not occur until the Applicant is 21 i.e. on 31 January 2007 when he will have 15 months of his non-parole period left to serve and when, one may hope, he will have learnt the error of his ways. 55 It is impossible to disagree with the recommendation of the author of the Duffy Barrier Robilliard report that after his release, the Applicant receive "a lengthy period of monitoring, support and supervision" but there is little point in that unless the Applicant is prepared to accept it and changes to his method of life. His conduct since he was sentenced in April 2001 gives no confidence that he yet has. And if he is easily influenced (by others) as Duffy Barrier Robilliard suggest, it is as well that he have the chance to be influenced by the restrictions of custody for a longer rather than a shorter period. If the Applicant is prepared to change, then either the non-parole periods fixed by Judge O'Reilly or the 1 year and 8 months which is one third of the non-parole periods fixed should be a sufficiently "lengthy period of monitoring, support and supervision". 56 By comparison with the statutory provisions against which the Applicant has offended, and application of first principles of sentencing which require the Court to take account of the need for general deterrence, deterrence of the Applicant, his need for rehabilitation, retribution and protection of society, I am of the view that the non-parole portions of the sentences imposed by Judge O'Reilly are not manifestly excessive. 57 In reaching this conclusion I have not ignored the fact that, pursuant to s54A et seq of the Crimes (Sentencing Procedure) Act a standard non-parole period has been fixed for offences under s98 of the Crimes Act and that the period prescribed is 7 years, and that his Honour considered the Applicant entitled to a discount of 25% or possibly a little higher, for his plea. His Honour did not expressly find that the Applicant's offence fell "in the middle of the range of objective seriousness" for offences of its type but a comparison of the 5 years he selected and "a little higher" than 25% suggests he may well have held that view. Of course, in the selection of a starting point in respect of the first count, his Honour was required to have regard to numerous other matters beside the objective seriousness of the relevant offence. 58 That my view that the sentence imposed in respect of the first count is not manifestly excessive is correct is demonstrated by a comparison with this Court's decision in R v Henry (1999) 46 NSWLR 346. In that case this Court indicated, as a guideline for cases of armed robbery having the characteristics there described (at 380), a sentence falling between 4 and 5 years in its total term was appropriate. Although there are obvious differences between the circumstances envisaged in that case and the offence involving Mr Chang, most of those differences are not to the advantage of the Applicant. He has a substantial criminal record, he was on conditional liberty at the time, and I do not regard the violence exhibited towards Mr Chang as "limited". His offence carries a maximum penalty of 25 years while that under consideration in R v Henry rendered the offender liable for only 20 years imprisonment and Judge O'Reilly was also required to take account of 5 matters on a Form 1 - matters which, as I have said, were sufficiently serious as to require some appreciable increase in the sentence otherwise appropriate. By comparison with the case of R v Henry, I regard the 5 years non-parole period imposed for the offence involving Mr Chang as within the proper exercise of Judge O'Reilly's sentencing discretion. 59 The matter is a fortiori in the case of the offence involving Dr Lee where in addition to the factors I have mentioned (except that the Form 1 had only 1 not 5 offences on it), the nature of the offending and the sustained period of threatened violence were both significantly worse than in the typical situation contemplated in R v Henry. 60 It is to be observed also that the Applicant's sentences were, apart from a minor part of one parole period, made wholly concurrent. Given the seriousness of each offence and the fact that they were entirely separate, there was in fact no justification for his Honour adopting this lenient course which has the effect (subject to the variation in the parole period) of not punishing the Applicant at all for one of his very serious offences. For completeness, I should perhaps add that I have reflected on the possibility that the co-incidence in the length of the non-parole periods is an indication that his Honour in determining on the periods he set for each offence took into account in breach of the principles for which R v Pearce [1998] 194 CLR 610 stands as authority, the totality of the Applicant's criminality. However when one has regard to his Honour's remarks made at the time of announcing the sentences and to their length, I am not persuaded that he did. 61 In short, I do not regard the non-parole portions of the sentences imposed on the Applicant as manifestly excessive. 62 However, it is clearly apparent from Judge O'Reilly's remarks quoted near the start of these Reasons that the balance of the term of each sentence does not accord with what his Honour intended, viz. that it should be one-third of the non-parole periods, i.e. 1 year and 8 months. While I do not regard the periods fixed by his Honour in this respect as manifestly excessive, nor making the total sentences so, those periods are the product of error and should be corrected. In the circumstances of this case I do not regard the provisions of s6(3) of the Criminal Appeal Act as militating against that conclusion. 63 As expressed, the fourth ground of appeal fails but there are errors which require correction.

Ground 1 - Parity 64 AD was sentenced by Judge Nicholson on 9 September 2004 in respect of a large number of offences. An appreciation of the strength of the argument advanced on behalf of the Applicant here requires that how AD was dealt with be set out in some detail. The offences for which he was sentenced fell into 3 groups:- First Group (i) Robbery in company on 10 January 2003.

(ii) Assault with intent to rob with wounding on 1 April 2003. This was an offence against Mr Chang involving the Applicant.

(iii) Robbery of Huyan Lee whilst armed with an offensive weapon on 1 April 2003. This offence was one of those on one of LLM's Forms 1 (despite the difference in spelling of the victim's name).

(iv) Using an offensive weapon to avoid detection. This was the same offence involving a motor vehicle as on one of LLM's Forms 1.

(v) On 10 April 2003 taking and detaining Mr John Lee in company with intent to obtain a financial advantage in circumstances here actual bodily harm was occasioned. This is the same offence as the second for which LLM was sentenced.

(vi) There were 3 matters of a Form 1, viz. stealing of a motor vehicle, robbery (of Mr Lee) whilst armed with an offensive weapon and being carried in a conveyance without the consent of the owner. These and the preceding offences all occurred between 10 January and 14 April 2003. Second Group (vii) Robbery of Graham Jones on 17 January 2003 whilst armed with an offensive weapon.

(viii) Robbery at the same time of Jian Mah whilst armed with an offensive weapon.

(ix) Robbery at the same time of Cuu Luong whilst armed with an offensive weapon, viz a knife and metal pole.

(x) At the same time detaining Jian Mah in company (4 unknown males) with the intent of obtaining a financial advantage and in circumstances where actual bodily harm was occasioned.

(xi) At the same time detaining another person in company with the intent of obtaining a financial advantage.

(xii) At the same time detaining Graham Jones in company with the intent of obtaining a financial advantage.

(xiv) Also on 17 January, larceny of somewhere between $1,500 and nearly $5,000. (The remarks on sentence are not clear.)

(xv) There were 16 matters on a Form 1. 11 occurred on 17 January and included 3 of obtaining money by deception, assault occasioning actual bodily harm, larceny of 2 motor vehicles, malicious damage by fire of 2 motor vehicles. There were 5 on other occasions of being driven in a motor vehicle knowing it to have been stolen. The period within which this second group of offences occurred was between 17 January and 3 April. Those on 17 January specifically charged were said to have all occurred within one hour. Third Group (xvi) On 31 March 2003 maliciously damaging by fire a motor vehicle.

(xvii) On 3 April 2003 robbery in company (with 2 unknown males.)

(xviii) On 8 April 2003 robbery in company. 65 The first group of offences came before Judge Nicholson on 15 December 2003. His Honour took the view that, if an adjournment was granted, AD might be able to demonstrate substantial movement in the direction of rehabilitation. With the consent of AD and the Crown, his Honour adjourned the proceedings until 25 March 2004 for mention and until June 2004 for sentence. The proceedings were then further adjourned and AD was finally sentenced on 9 September 2004. In the interim the further matters referred to in Groups 2 and 3 had been brought before the Court. It is worth recording that Judge Nicholson observed that that had been done with some haste. 66 Judge Nicholson determined that all offences should be dealt with according to law. His Honour characterised many of the offences in terms that indicated he regarded them as extremely serious and was of the view that AD was one of, if not the leader of the group of offenders involved. It is not necessary for the purposes of this appeal that I detail further the facts of the offences. Many of the more serious of them displayed a similar, and in at least one case greater, degree of violence and disrespect for the victims and community standards as those with which the Applicants were involved. Some, e.g. those I have numbered (ii), (iii), (iv) and (v), were offences where the Applicant was a co-offender. Judge Nicholson did not refer to AD as having been on conditional liberty at the time of his offending although entires in his Juvenile Justice record indicating that he was not before the court on a number of charges in November 2002 would suggest that he probably was or at least at liberty having not adhered to conditions on which it had earlier been granted. 67 AD was born on 10 July 1986 and was thus 16 years and 9 months when the last of the offences was committed, i.e. 5 months younger than LLM. AD had an unremarkable home life and supportive parents. He had however substantial difficulties at school from about year 7, possibly or probably due to ADHD. At the time of sentence he was said to present with that condition at "a serious level". He chose to leave home prior to the offending and appears to have enjoyed his association with co-offenders and offending because of the adrenalin rush or excitement afforded. His offending was also a way of obtaining money for drugs excluding, according to the evidence, any significant amount of heroin. Judge Nicholson said that he did "not regard the Offender's contrition for the offences as reaching any genuine level yet". 68 AD had a not insignificant record although not of the seriousness of LLM's. Thus -

In January 2000 AD was convicted of 4 offences, including being carried in a conveyance taken without the consent of the owner and maliciously destroy or damage property. The heaviest sentence then imposed was probation for 6 months. In July 2000 he was convicted of 2 offences, including being carried in a conveyance taken without the consent of the owner. The heaviest sentence then imposed was probation for 12 months. In March 2001 he was convicted of 4 offences, including taking and driving a conveyance taken without the consent of the owner and break, enter and steal. Four 3 months control orders were then imposed. The report does not reveal whether these were concurrent or cumulative. In September 2001 he was convicted of having goods in custody and placed on probation for 12 months. In each of January and February 2002 he was convicted of being carried in a conveyance taken without the consent of the owner and on each occasion placed on probation. 69 There were other occasions when he was not before the Court and also breaches of probation. 70 For the offences he dealt with, Judge Nicholson imposed terms of imprisonment as follows:- First Group (i) 3 years 6 months non-parole period and 1 year 9 months balance of term. (ii) 3 years 6 months non-parole period and 1 year 9 months balance of term. (iii) (At the time of imposing sentence, Judge Nicholson seems not to have referred to this offence.) (iv) 2 years 6 months non-parole period and 1 year 3 months balance of term. (v) 3 years 6 months non-parole period and 1 year 9 months balance of term. (vi) The Form 1 offences were taken into account in connection with the first charge. Second Group (vii) 3 years non-parole period and 2 years balance of term. (viii) 3 years non-parole period and 2 years balance of term. (ix) 3 years non-parole period and 2 years balance of term. (x) 3 years 6 months non-parole period and 1 year 9 months balance of term. (xi) 3 years non-parole period and 2 years balance of term. (xii) 3 years non-parole period and 2 years balance of term. (xiii) 1 year fixed term. (xiv) 15 months fixed term (xv) The Form 1 offences were taken into account in respect of the charge I have numbered 10. Third Group (xvi) Fixed term of 2 years. (xvii) 3 years non-parole period and 2 years balance of term. (xviii) 3 years non-parole period and 2 years balance of term. 71 All sentences were ordered to commence on 14 April 2003 when AD had gone into custody and his Honour directed that all be served at a Juvenile Justice Centre until AD turned 21. The effective sentence imposed on AD was thus imprisonment for a non-parole period of 3 years and 6 months and a balance of term of 1 year and 9 months. 72 The submission for the Applicant is that, given the concurrent sentences of 3 years 6 months non-parole periods and 1 year 9 months balance of terms imposed on AD for the offences with which the Applicant has been charged, he would have a justifiable sense of grievance if his sentence is allowed to stand. Reliance is placed on a passage from the judgment of Hunt CJ at CL in R v Paul Joseph Anderson (unreported, NSWCCA, 25 March 1993) in terms:- "However, the principle of parity requires this Court to have regard to the sentences imposed upon the co-offenders, even though we ourselves regard those sentences as inadequate. If we do not have such regard, the High Court has held, the legitimate sense of grievance thereby engendered by the imposition of a higher sentence (which is otherwise completely appropriate) produces an injustice: Lowe v R (1984) 154 CLR 606. The result is that we are required to err on the side of leniency and to impose a sentence which we ourselves also regard as inadequate."

73 However, with respect to his Honour, I do not regard this passage as accurately setting out the effect of what the High Court said in Lowe v R or in another case Jones v R (1993) ALJR 376 to which the Court was referred. The correct position is as stated by his Honour in R v Diamond (Unreported, CCA, 18 February 1993) that, if disparity such as to engender a sense of grievance exists, the Court has a discretion whether to interfere and - "The issue is whether the particular sense of grievance (or of injustice) is a legitimate one. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance can no longer be regarded as a legitimate one." 74 The approach taken in R v Diamond has been endorsed by this Court subsequently in, inter alia, R v Doan (2000) 50 NSWLR 115 at 120, R v Steele (Unreported, CCA, 17 April 1997) and R v Ismunandar and Siregar [2002] NSWCCA 477 at [23]. See also Reardon (1996) 89 A Crim R 180 at 191. 75 Reverting to the situation here, given the extent of AD's offending, the sentences imposed by Judge Nicholson, in many cases individually, and certainly in totality were extraordinarily lenient. However, it is apparent from Judge Nicholson's remarks that he was impressed with AD's prospects of rehabilitation. Whether his Honour was correct in this approach is, of course, not presently before this Court. The fact is that his Honour was so impressed and exercised the very broad discretion which exists in that situation, particularly in the case of young offenders, in AD's favour. 76 As I read his remarks, Judge O'Reilly did not take so favourable a view. Certainly his Honour said that: "the psychological and Juvenile Justice information furnished to me indicates that if (LLM) has access to intense professional supervision that he is very likely to have a good chance of rehabilitation" but when one also has regard to the sentence his Honour imposed, it is not possible to regard that assessment as unequivocal. Furthermore, the evidence before Judge O'Reilly did not place LLM's prospects as high as the passage quoted suggests. The latest Juvenile Justice report before his Honour rather said that:- "The likelihood that (LLM) may commit a violent act falls in the range of 'moderate to high' if no efforts are made to manage his risk. However his involvement with the intensive program intervention provided as the Centre may override the propensity for future violence … The probably nature, frequency and severity of any future violence may escalate if his propensity for violence in not addressed effectively. However, (LLM) is actively addressing this as indicated above. It is noted that (LLM) appears amenable to psychological interventions …" (My emphasis.) 77 The psychologist's report included:- "The client's behaviour during our meeting indicated (LLM) has a major problem with perceived authority figures … "On the other hand (LLM) is evidencing some signs of growing maturity. …" (Again my emphasis) 78 There is a substantial difference between the criminal records of LLM and AD. It would not be surprising if this is reflected in their respective prospects of rehabilitation but it also has another effect. Because of that difference, AD had a somewhat greater claim to leniency than does LLM although, given the extent of AD's offending, it is doubtful if that was entitled to much weight. 79 In light of the differences between the situations of AD and LLM, I doubt that the sentences imposed on them for offences they had in common are so different that they establish unjustified disparity. But be that as it may, I am satisfied that, in the absence of evidence justifying the very optimistic assessment of the prospects of rehabilitation which Judge Nicholson formed in the case of AD, I would take the view that the sentence imposed on him was wholly inadequate and so much so that any resulting sense of grievance in LLM was not a legitimate one. Furthermore, as the authorities to which I have referred show, in circumstances of disparity, this Court has a discretion. It is not only offenders who have an interest in the outcome of sentencing. So do the victims of crime and the general community and young though LLM is, I have no doubt that these persons would have a very real and legitimate sense of grievance if LLM's sentence were reduced to reflect that imposed on AD. The severity of LLM's offending, and the long term consequences to Mr Chang must not be forgotten. 80 As I said in Reardon (1996) 89 A Crim R 180 at 191. "Faced with inadequacy in a lower sentence a court asked to correct a higher sentence is unlikely to be able to avoid disparity in some way. If the court does nothing the disparity between the sentences on the co-offenders will remain. If the court interferes so as to eliminate that disparity it is likely that the result will be the existence of two sentences out of line with the sentences imposed on other offenders in similar cases. As Street CJ recognised in R v Tisalandis (at p431) "the ultimate decision at the appellate level will involve a balancing of the general as against the particular considerations in order to arrive at a just result." and there is a deal to be said for the approach exhibited by Moffitt P in R v Tisalandis at 439 and by Brennan J in Lowe v The Queen at 617 that "it is wrong to think that it is "more important that sentences should be proportionate to one another than that they should be proportionate to guilt"." 81 Particularly having regard to the magnitude of LLM's offending, to the fact that he has already been granted a deal of leniency in the sentences imposed on him being made concurrent, the approach referred to towards the end of the passage just cited is the one which I would adopt in this case.

Conclusion 82 The conclusions at which I have arrived in relation to Grounds 2 and 3 mean that, subject to s6(3) of the Criminal Appeal Act, the appeal must be allowed and the Applicant re-sentenced. The error in the length of the balance of term to which I referred when considering ground 4 should in any event be corrected. 83 Section 6(3) provides:- "On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal." 84 Subject to the reduction in the length of the balance of term, I am of the view that no lesser sentences were warranted. What I have said above when reflecting on this Court's decision in R v Henry is enough to indicate why I take that view but I would add that, even if some reduction in the sentences for the individual offences were appropriate, the accumulation of sentences which should have occurred and which I would order would have the result that the overall sentence was not reduced. 85 Judge O'Reilly, as I have said, made a finding of special circumstances for the purposes of s19 of the Children (Criminal Proceedings) Act. There was no appeal against, or challenge to, that finding and in circumstances where this Court is required to re-sentence to correct the errors to which I have referred, and to ensure that the requirements of sub-section (3) of that section are met, this Court should make the same finding. 86 Accordingly, the orders which this Court should make are:- 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentences imposed by Judge O'Reilly on the Applicant on 18 May 2004. 4. In lieu thereof:- (a) In respect of the offence of assaulting Patrick Chang with intent to rob and wounding, sentence the Applicant to imprisonment for a non-parole period of five years from 24 April 2003, and a balance of term of one year and eight months. (b) In respect of the offence of, without consent, taking and detaining John Lee with the intention of obtaining an advantage, the said John Lee having occasioned actual bodily harm during being detained, sentence the Applicant to imprisonment for a non-parole period of five years from 24 April 2003, and a balance of term of one year and eight months. (c) Order pursuant to s19 of the Children (Criminal Proceedings) Act that the Applicant's sentence be served as a juvenile offender until he attains the age of 21. (d) Record as the date upon which it appears to the Court that the Applicant shall be eligible for parole, 24 April 2008. 87 SIMPSON J: I agree with the orders proposed by Hulme J and generally with his Honour's reasons therefor. **********

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