REGINA v. LAY [2000] NSWCCA 30

No. 60085 of 1999 CORAM: GROVE, J. GREG JAMES, J. WEDNESDAY 23 FEBRUARY 2000

1 GREG JAMES, J: The applicant, Siew-Long Riew Lay, seeks leave to appeal against the sentences imposed upon him in the District Court by his Honour Judge Rummery in consequence of his pleas of guilty and conviction on those pleas on two counts of robbery whilst armed with an offensive weapon and wounding, offences punishable by penal servitude for 25 years, and 11 counts of armed robbery, offences punishable by 20 years' penal servitude. In addition there were offences contained on a Form 1 comprising one count of assault with intent to rob, one count of use heroin, one count possess heroin, one count possess unlicensed firearm, that is, an air gun. 2 When the matter came before his Honour the applicant was a young person. Nonetheless, since the two offences of armed robbery with wounding were required by legislation to be dealt with at law, his Honour determined, in the exercise of his discretion, to deal with all the offences according to law. 3 His Honour set out in his remarks on sentence details of the 13 principal charges. He found that in all cases the weapons with which the applicant was armed were knives with blades of either 15 or 20 centimetres in length. In the two cases where victims were wounded it was the larger weapon. In respect of three of the offences, the applicant had been accompanied by a co-offender, also a juvenile, and younger than the applicant, the brother of the applicant's girlfriend. He had been living with her during this spate of criminality. The co-offender carried a club-lock as a weapon during two of those three offences but for one of them both he and the applicant were armed with 20 centimetre bladed knives. 4 The general modus operandi was for the applicant to present to his victim, the operators or staff at various service stations, a small item of food and money for purchase. When the victim turned to the register the knife was produced, the victim threatened and ordered to open the cash register, and money removed from it. There was some variation in the circumstances of the commission of certain of the offences. 5 As to the two wounding charges, on count one the victim, when threatened, attempted to disarm the applicant and received a laceration on his hand. On count two, when the victim opened the cash register, the applicant ran behind the counter and threatened him with the knife. In the course of the applicant waving the knife about the victim was cut on his right hand, the cut later requiring eight sutures. 6 The other matter that was on schedule, the offence of assault with intent to rob when armed, was committed using the same modus operandi to those matters which I have referred. However, on that occasion the applicant took hold of a fire extinguisher with which he smashed the front glass doors of the premises and the victim received slight lacerations to his face from the glass. 7 At the time of the offences his Honour noted the applicant was on bail granted by the Supreme Court on a similar armed robbery charge and had failed to attend court and otherwise meet the conditions of his bail. His Honour held the offences were motivated by the applicant's desire to obtain money and goods, usually cigarettes, in order that he might cater for his addiction to heroin. 8 He was interviewed in the presence of the father of the co-accused and made full and frank admissions shortly after having been arrested. 9 There were admissions of addiction to heroin and the possession of the air rifle, the subject of the charge of possess unlicensed firearm. 10 This was a spate of the most serious criminality. This court has recognised, in decision after decision, that the offences of armed robbery are offences that not only operate to deprive people of their property but to put them in terror and all too often have the consequence that those people are permanently adversely affected by the experience. Consequently there are many decisions of this court which emphasise the necessity for courts to reflect due regard to the objective seriousness of the conduct in sentences. 11 Turning to the applicant's subjective circumstances, he comes from a family of refugees who, having made it to Australia, it has been submitted, became dysfunctional as a family unit, the applicant falling out with his father. Extensive information as to the applicant's circumstances was provided to the sentencing judge by way of background and other reports from officers of the Juvenile Justice Department. His Honour referred to those family circumstances and the difficulties he had experienced in obtaining an education in detail in his most conscientious remarks on sentence. The contact between the applicant and the department was recited by his Honour, as was the departmental attempts at adequate supervision. That supervision, it may be summarised, was essentially unsuccessful arising from the effects on the applicant of his heroin addiction. 12 His Honour set out in his remarks on sentence some detail of the assistance the applicant received from the various departmental reports and made reference to the recommendations made to him by the departmental officers as to the mode under which the applicant should serve the inevitable sentence of imprisonment his Honour imposed. In particular it was recommended to his Honour that the applicant be given the opportunity to serve all or part of the sentence in a juvenile justice centre to enable counselling and other specialist assistance with the aim of rehabilitation. 13 His Honour, having regard to various assessments of the applicant's ability and, in particular, a keenness to consider further education which would enable the applicant in due course to pursue a career in electronics, made when passing sentence the order pursuant to s.19 of the Children (Criminal Proceedings) Act 1987 that the applicant's sentences be served in an education centre until 30 November 2001, that is, a little over a month beyond the applicant's 21st birthday. That order was made in the expectation that the applicant will in that year be sitting for his Higher School Certificate or other matriculation examination equivalent and, to avoid disruption to the educative process if the applicant was required to leave the centre before that date. 14 His Honour relied upon the decision of the Court of Appeal in Regina v. Essam Karhani (unreported, 14 October 1998). His Honour took this course because he agreed with the submission put to him that the applicant wished appropriately to educate himself as an aspect of the applicant's own endeavours towards his rehabilitation. His Honour was of the view the applicant had the capacity to achieve goals which embraced successful tertiary studies. His Honour saw that process of education as having significance not only of benefit to the applicant personally but detected in that process a willingness on the applicant's part to achieve rehabilitation from his drug use and criminality which would be of benefit to the community generally. In that context his Honour was also prepared to, and did, find special circumstances and varied the ratio between the additional term and the minimum term required otherwise by s.5(2) of the Sentencing Act 1989. 15 His Honour concluded that, applying the principles of totality, sentences should be passed to date from the day on which the applicant went into custody totalling 10 years' penal servitude, such sentences to be split into a minimum term of five years and an additional term of five years. His Honour had regard to the matters on the schedule and passed consequent sentences to carry out his intention on the other eleven offences, imposing terms of four years to commence on the same date and additional terms of four years, all sentences to be served concurrently. When concluding the sentencing exercise, his Honour sought that the applicant be advised that if he stayed at a juvenile justice centre, although he be by then over 21 years, "he might get another extension of that if he wishes and he may not know that unless he is told that by a lawyer". 16 I have for my part been unable to ascertain what precisely it was that his Honour was there referring to. It may be that his Honour was referring to some administrative process whereby the effect of the order he made under s.19 might be extended so the applicant might be permitted to remain in a juvenile justice centre notwithstanding that the date referred to in his Honour's order had passed. 17 Whatever be the position, it does seem as though his Honour sought to give the applicant to understand that he could have a further proportion of his minimum term served in a juvenile justice centre should he wish to take that course. 18 On the present appeal there have been two main criticisms made of what occurred below. The submissions are put in the alternative, the first being that, in the light of all the circumstances before his Honour and in the light of additional material which it is sought to have available to the court should it move to re-sentence him, the applicant's rehabilitation has advanced so far that the court should intervene to re-craft the overall total sentence and that the minimum term should be reduced so that it expires on a date shortly after the applicant would have completed his Higher School Certificate in the event that he should proceed to that examination. 19 It is put that this will facilitate the completion of the Higher School Certificate and not require a further period of custody in an adult prison after the completion of that certificate. 20 It is submitted that a further period of incarceration would probably retard the applicant's rehabilitation and, in that sense, is not in the best interests of the community. In support of that submission it has been put that his Honour failed to give sufficient weight to, firstly, the age of the applicant at the relevant time, an addiction to heroin at the relevant time, and that the applicant was at the crossroads, the last being a reference to a passage contained in the judgment of Chief Justice King in Regina v. Osesnkowski (1982) 5 A. Crim. R. 394. 21 It is sufficient to say in response to those criticisms that his Honour plainly had regard to every one of those matters and dealt with them expressly, particularly when reducing the head sentence that might otherwise have been expected to be passed for this spate of criminality to the sentence he did pass and, particularly when it came to his Honour's determination of the respective proportions between minimum term and additional term. Certainly there was material before his Honour to suggest prospects for the applicant's rehabilitation, and his Honour had regard to it and reached an appropriate finding. The material that is presently tendered was not before his Honour and is not available to us for the purpose of ascertaining whether his Honour fell into error in that respect. 22 The second submission that is put is that, in the light of what his Honour said concerning the extension of the period during which the applicant might remain in a juvenile justice centre at least an expectation has been engendered to enable him to remain there after the time at which he turns 21 and at the conclusion of his Higher School Certificate. His Honour's remarks do not express with clarity, on all points at least, a conclusion that his Honour was persuaded the applicant might remain in such an institution after he turns 21. There is nothing on the face of s.19, nor in anything of which we have been informed today from the bar table, which would suggest any restriction on any order the court might make permitting a person to remain in such an institution after having reached their 21st birthday. 23 The judgment of this court in Karhani (supra) is direct authority in favour of that proposition. 24 The additional material which has been provided comprised a submission prepared by Miss Jane Marchant, case worker, and a further report. This material is most extensive and detailed. It is enormously to the applicant's credit. It shows within the institution he has laboured well and productively towards obtaining a first quality education and to rehabilitate himself such that great expectations might justifiably be held for him if he keeps this up in the future. 25 Nonetheless when this court comes to deal with an appeal of this kind it does so as a court of error. It does not sit to re-hear what occurred below. It is also required to apply legal principle. That principle includes having appropriate regard to the objective seriousness of the offences committed both in respect of the minimum term and the additional term. Although the distinction between minimum term and additional term does mean that the matters relevant to sentencing will have a different impact upon minimum term to that on the overall sentence and the additional term it does not mean that considerations of general and personal deterrence and those considerations relevant to objective seriousness should be disregarded in favour of rehabilitation, even such rehabilitation as may be to the community's general benefit, when one comes to assessing the minimum term. 26 For my part I am unpersuaded in those circumstances that any appellable error occurred in his Honour's sentence or in his assessment of the relevant proportions that should divide the sentences he passed. I am of the view, however, that in the light of what concluded his Honour's remarks concerning the applicant remaining in the juvenile justice centre, an appropriate direction might be given under s.19 of the Children (Criminal Proceedings) Act 1987 to clarify the matter and carry into effect what appears to have been indicated to the appellant as the intention of the sentencing judge. 27 Enquiry was made of counsel for the applicant as to whether his client would wish such a direction to be given in the event the court was not disposed in favour of his principal submissions concerning reduction of the minimum term. That enquiry was answered in the affirmative. In those circumstances I would propose leave to appeal against sentence be granted and that the appeal should, except in regard to the terms of the order made below under s.19 of the Children (Criminal Proceedings) Act 1987 be dismissed, but that the order under that section be varied to read that it be ordered that the sentence be served in a detention centre until the expiration of the minimum term, that is, until 22 August 2003, or until the applicant is released from custody. 28 GROVE, J: I agree with the judgment just delivered. The order of the court will be as proposed by Greg James, J.

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