REGINA v. LC [2001] NSWCCA 175

1 GREG JAMES, J: This is an application for leave to appeal against a sentence imposed by his Honour Judge Shillington sitting in the District Court at Sydney. 2 The applicant had been charged with two counts of robbery whilst armed with a dangerous weapon, they being offences under s.97(2) of the Crimes Act 1900 punishable by a maximum penalty of imprisonment for 25 years. 3 In addition the applicant sought that his Honour take into consideration on a Form 1 two further counts of robbery whilst armed with a dangerous weapon and one count of stealing. 4 His Honour referred in his remarks on sentence shortly to the circumstances of those offences. As to the two charges to which the applicant had pleaded guilty, his Honour noted that on the first charge the applicant at Eastwood on 12 November 1999 while armed with an imitation self-loading pistol robbed Ms. Peggy Lo of a quantity of Vodafone starter kits, six mobile phones, a black sports bag, a ladies handbag and the sum of $500. 5 As to the second count his Honour noted that on 30 November 1999 at Marrickville the applicant being then armed with a dangerous weapon, an imitation self-loading pistol, robbed Thi Thu Nguyen of a 1998 Honda motor vehicle, two ANZ Visa cards, two Commonwealth Bank Mastercards, an Ericsson mobile phone, a small ladies purse and the sum of $1,200 in cash. 6 The three matters on the Form 1, two of which were committed on 18 November of the same year, involved again armed robbery with a dangerous weapon and the stealing of money, the property of Video Ezy Australia. 7 The applicant had committed these offences and had come forward for sentence together with a co-accused, JN. Both the applicant and JN were juveniles at the time of the commission of the offences and at the time of sentence. They are to be treated as children under the relevant legislation. Nonetheless the applicants were dealt with according to law in the District Court having regard to the seriousness of the charges. 8 The learned trial judge noted expressly that seriousness and noted that the offenders had threatened the people in the store when robbing the Vodafone Store and had threatened that the staff would be killed if the police were informed. 9 The robbery of Mrs. Nguyen, which was the subject of the second charge in the indictment, his Honour noted involved her abduction in her own car, into which she was forced and the taking of her to various ATM outlets where attempts were made to use her credit cards. She was in due course driven from where she was initially confronted, in the car park at the Marrickville RSL, to Chinatown where she managed to escape. She called out to a security guard "this man wants to kill me". The two offenders then absconded with her vehicle. The property taken included her credit cards and cash. The proceeds were shared between the offenders. 10 His Honour referred to that simple recital as being sufficient to indicate the seriousness of the charged offences and to the tragedy that persons so young should have committed such offences. 11 In the material before his Honour concerning the offences there was admitted by consent a statement of facts. That fact sheet shows that in perpetration of these robberies the applicant was the person who, during the attack on Mrs. Nguyen, produced the handgun and ordered her back into the vehicle. It was he who restrained her in the rear of the vehicle by putting his legs over her. Threats were made that she would be killed if she did not give them money although it was the accomplice who threatened that if she called the police she would be killed. 12 The vehicle was located, after having been observed, on 1 December whilst being used for joy-riding purposes. When the applicant's home was searched credit cards belonging to the victim and her husband were seized. 13 The applicant contacted the police and expressed his own intention to give himself up. He was interviewed. Chillingly when he made the full admissions he did about the matter he stated that he needed to get some money to pay some debts and robbing someone was the easiest way to get cash. 14 In relation to the robbery on 12 November of the communications store, he similarly made full admissions to the police concerning the commission and planning of that offence. As to the Video Ezy store robbery, being one of the matters referred to on the Form 1, he had produced the small handgun and it was he who had directed the staff as to how other members of the staff were to be restrained with duct tape, which he had supplied. The co-offender was apparently, during that offence, aloof from the scene keeping a look out. 15 The robbery on 18 November 1999 again involved the apparent use of a firearm, although the weapon was not itself observed. Nonetheless, the young person told the staff that they were required to lie down or he would kill them. He had his right arm in a black carry bag at the time. There were co-offenders who decamped with him. 16 In respect of those matters also there were full admissions. 17 The trial judge's recital of the circumstances of these offences can only be said to be a short summary. Overall, it seems to have been favourable, compared with the extensive evidence also provided to his Honour, to the offender in respect of the degree of violence attended upon the commission of the crimes charged. 18 When turning to the offenders' background, his Honour noted that the co-accused had prior offences of violence involving common assault in 1997 for which he had received a recognisance; a matter of break and enter, apparently accompanied by stealing in the same year, which also attracted a recognisance; and an offence in 1999 for which he was in due course placed on probation. We are now told that he was on bail for that last matter at the time of the commission of certain of these offences. 19 The present applicant his Honour noted had only one prior entry but it was an extremely serious one for robbery. It is noted that he had appeared before the Cobham Childrens' Court and after a lengthy adjournment during which it was considered that youth conferencing might be appropriate, he was directed to perform a very small amount of community service work but failed to comply with that direction. In consequence he was placed on a bond in November of the year in which he came forward for sentencing. It may be, in view of that history of the sentencing options, that the facts of the offence might not have been as serious as might otherwise have been expected. 20 This history shows, however, that this applicant had been before the courts at the time at which the first of the offences occurred and was the subject of a recognisance, into which he entered only a few days prior to the commission of the second offence. 21 In the case of both co-accused, his Honour was of the view that each had shown a complete disregard for the law and each, having been the subject of leniency on a number of occasions, had treated the law with contempt. 22 His Honour adverted to the substantial material before him in each case as to the personal background of each of the offenders. 23 The co-offender was a person of considerable intelligence and manipulative ability. He had come from a refugee family and his parents it would seem gave him little by way of control. He had a gambling addiction of quite enormous proportions which motivated him to the commission of the crimes and he had participated in various gang activities. 24 His Honour's findings concerning him and the report material supports the submission made that he is a person of considerable capability to manipulate and lead others notwithstanding that he might be slightly younger than the present applicant. 25 Both he and the present applicant claimed that he was the instigator and the principal planner of these offences. His Honour was of the view that that seemed to be consistent not only with the assessment made of the co-accused but also those made, particularly as to his state of intelligence, of the present applicant. 26 His Honour did not accept the assertion that the co-accused would now lead a crime free life. His Honour was of the view that it appeared the co-accused had little appreciation of the significance of the violent offences upon the victims. 27 There was some family discord in the background of the co-accused to which was related the lack of family control but it was the gambling that motivated him and that gambling it was clear was the overwhelmingly important aspect of his subjective circumstances. 28 The present applicant was the subject of a number of reports. In particular those reports adverted to his family's migrant background and the dislocation of relationships between his mother and her partners. His Honour noted sceptically her asserted unawareness of any prior criminal or indeed inappropriate behaviour by the applicant. He particularly noted the circumstances of vicious cruelty to the applicant that appeared to underlie the relationships between the applicant and his mother's male partners. 29 The applicant was described in a background report as friendly, polite and co-operative. He was also described as a person who was in the lower level of intelligence. When one has regard, particularly to the report to which his Honour referred before him on that issue, it can be seen that the applicant's verbal reasoning abilities are within the low average range out-performing 10% of his age group, but his non-verbal reasoning abilities are within the low average range and above 25% of his peers. 30 The report further continues:- "Overall Lawrence's reasoning abilities exceed seven percent of his age peers and are within the borderline range of intellectual functioning." 31 That matter is noted by the report as underlying a "depressive symptomatology which is likely to be related to his peer interactions". 32 The psychologist adverted to the relationships the applicant might well have with his peers. "It is possible that Lawrence may be subservient in his conduct with peers, however he has engaged in serious criminal conduct with careful planning and intent. He minimises his conduct problems attributing the blame to others. Lawrence appears to react aggressively to problematical interactions with others, and uses power as a means to assert himself with peers or other persons in the community. His behaviour is impulsive and exacerbated by inappropriate peer associations, which leave him at risk of further offending." 33 The psychologist had noted that he may feel dejected and misunderstood in the custody in which he then was detained, bail refused, in a Juvenile Detention Centre. It was recommended that therapeutic intervention in respect of the depressive affect by counselling be supplied in any custodial situation. 34 His Honour noted all of those matters. 35 He said that it may well be that the present applicant was involved in these offences at the instigation of the co-offenders but that he was satisfied the applicant had a motive to do what he did and that he certainly took his share of the proceeds. 36 His Honour referred to the necessity to consider the assessment of the applicant's intelligence but not in isolation. He said:- "Although you no doubt are in the lower level of intelligence there has been no suggestion you have not been able to function in the community in a quite normal way." 37 His Honour noted the conclusion of the psychological report to which I have referred, that the applicant's adjustment had been affected by physical abuse by his step-father and the relocation of his father to another State. 38 His Honour made specific reference to that portion of the report that I have quoted and said that it was the background against which he approached the difficult problem of sentence. 39 His Honour adverted to the well recognised principle that in the case of young people the question of deterrence is not to be placed foremost in the mind of the sentencing judge but that general deterrence was still a matter of significance in cases where there are considerable acts of violence in the community. In his Honour's reasons that passage is expressed as referring to considerable acts of violence against young people in our community. I apprehend that his Honour was referring there to the victims of the offences. 40 His Honour was of the view that the only responsible course was to impose a substantial sentences of imprisonment on both offenders, having regard to the extreme seriousness of the offence, the backgrounds to which his Honour had referred, which in the case of this applicant included specific reference to the applicant's low intelligence, and the prospects of each of the young persons for the future. 41 In each case his Honour found special circumstances and varied the statutory proportion. In each case the sentence was dated back to the time at which the offenders had gone into custody. The sentence thus provided for a period each applicant would have to serve in custody of two years to expire on 2 December 2001 and a period during which each applicant would be under supervision after release on parole for two years thereafter. His Honour directed that the sentences be served in a Juvenile Justice Centre. 42 Before us it has been argued that his Honour fell into error in a number of respects and that the sentences are manifestly excessive. In particular it has been argued that his Honour failed to give sufficient weight to the principle that persons of limited intelligence should have considerations of general deterrence treated as of less significance and the sentence thereby mitigated since they do not constitute, so it is said, a good vehicle for example for others. 43 It is also put that the trial judge failed specifically to relate the applicant's low intelligence to the question of general deterrence and the possible moderation of the operation of that consideration in the sentence. Further, it is put that his Honour failed specifically to relate the applicant's low intelligence to the prospect that the sentence he passed upon the applicant would have a greater impact upon him, so that it would be more onerous than it would be upon his co-accused or upon others who might be subject to a similar sentence. 44 More importantly it is put that because of the differences between the applicant's circumstances, in particular his low intelligence and the high intelligence and manipulative nature of his co-accused, the applicant would have a justifiable sense of grievance should he be compelled to serve the same sentence as the person who, so it was said, involved him in these offences which, it is put, he might well have not committed without that influence. 45 For my part I am not persuaded that his Honour failed to relate the applicant's low intelligence to the question of general deterrence. Indeed it was after noting the matters of the applicant's low intelligence, and immediately after noting those matters, that his Honour turned to the question of general deterrence and considered that in the context of looking at the extreme seriousness of the offences, the background and the prospects of each of the offenders. His Honour particularly referred to the low intelligence of the applicant not being such as to disable him from functioning in the community in quite a normal way. 46 That low intelligence did not produce any such consequence as to show that the applicant was incapable of independent and violent action while committing the robberies. 47 I am also not of the view that the trial judge erred in failing to have regard to the impact of the sentence upon the applicant, having regard to the recommendations made in the psychologist's report and having regard to his Honour having determined that the sentences should be served in a Juvenile Detention Centre. 48 The principles to be applied in the sentencing of children and young offenders customarily require the considerations of punishment and general deterrence be given less weight in favour of individual treatment aimed at rehabilitation of the offender. However, those principles are themselves moderated where the offenders commit violent adult crimes in such a way as to show that for their welfare and the welfare of the community a substantial period in custody is required. This was in my view such a case. 49 Indeed, having regard to the guidelines laid down by this court for cases of adult offenders by Regina v. Henry (1999) 46 NSWLR 346, it can be seen that the sentence passed by his Honour in this regard in the context of that number of offences, even having regard to the applicant's youth, his early surrender and plea, were in my view lenient. 50 The submissions the Crown has made were, that there were no errors of a specific kind in the sentence nor, says the Crown, should the applicant be regarded as having a justifiable sense of grievance because, although the applicant might have been manipulated into the commission of the offences by a person more intelligent, he was a willing and vigorous participant in the planning and in the carrying out of the offences and adopted a role of considerable personal violence which indicated independent thought and independent action. 51 It was submitted that his low intelligence was not sufficient to require any different sentence, that any substantial reduction in the sentence would render the sentences entirely inappropriate to the culpability of the crimes and that is particularly so in the context of the commission of certain of the offences while on the recognisance and the lack of appropriate response to other, more lenient, sentencing options. 52 It was submitted that there was no justifiable sense of grievance and in any event that these differences had adequately been taken into account by his Honour and expressed in his judgment. 53 For my own part, having regard to the principle that in this court we sit on appeal from a discretionary decision and in doing so we have regard to the range of sentences that might well have been imposed below, I am of the view that there is no such error as would warrant interference either with the head sentence or the non-parole period. It is only if we conclude that there is error below that under s.6(3) of the Criminal Appeal Act 1912 we should interfere with the sentence and then only when any reduction would result in a sentence which is warranted in law and should have been passed. 54 In my view the sentence passed by the learned trial judge was such that any further reduction to it would be to reduce the sentence to such a level as would not be warranted in law. I see no particular error nor do I see any error in the up-shot. 55 Since the matter has been fully argued, I would grant leave to appeal but propose that the appeal should be dismissed. 56 HODGSON, JA: I agree with Greg James, J. 57 Despite the youth of the applicant, in my opinion, having regard to the serious nature of the offences, the sentence passed was not manifestly excessive. 58 In my opinion also, while the circumstance that the other offender instigated the offences and the applicant has a low level of intelligence, those matters were taken into account by the trial judge; and it has not been shown to be an error for him not to have, in reliance on those circumstances, imposed a different sentence on the applicant from that imposed on the co-offender. 59 There were other matters that the trial judge had regard to pointing in the other direction. The applicant's role in the offences themselves was a more violent role than that of the co-offender. Of course, the co-offender as instigator of the offences, bears responsibility for that violence, but the actual perpetration of the violence was a factor in my opinion that weighed against the appellant. 60 I agree with the orders proposed by Greg James, J. 61 ADAMS, J: I have the misfortune to be unable to agree with the orders proposed by Greg James, J. and agreed by the learned presiding judge. I consider that there were two significant errors of law in his Honour's judgment. 62 The first is, that I consider that his Honour did not place in the scales, in determining whether the principles of general deterrence were appropriate to be applied against this applicant, the fact of his borderline range of intellectual functioning. 63 In this respect we are not dealing with someone who is simply mildly less competent than his peers. His verbal reasoning abilities are within the low average range, out-performing 10% of his age group and his non-verbal reasoning abilities are within the low average range but above 25% of his peers. However, of most concern is that this applicant's reasoning abilities exceed seven percent only of his age peers and, as the psychological report which was tendered before his Honour said, "he is in the borderline range of intellectual functioning". 64 An individual who has such limited verbal reasoning will, as commonsense and experience suggests, find it far more difficult to negotiate social differences than those whose verbal skills are normal. A great deal of social communication, whether adversarial or co-operative, is negotiated by language and the manipulation of subtle but significant modes of communication attached to the words, although not limited to the vocabulary itself. We all learn this process. For someone whose skills in this area are less than 90% of his peers, frustration in communication will be his or her usual experience. 65 Having regard to the intellectual functioning as a whole demonstrated in the tests conducted by the psychologist, it is not surprising to find when one adds his difficult domestic and family background, a youth who resorts to violence in adversarial or confrontational situations, and who finds it difficult to respond to any communications not obviously friendly with the sophisticated understanding of subtleties of communication which typify persons of normal intelligence. 66 This consideration is, to my mind, very important in understanding the relationship between this offender and his co-offender and the circumstances of the crimes which he has committed, regrettably marked by violence. The learned sentencing judge's general observations lead me, respectfully, to the conclusion that the importance of this aspect was not appreciated. 67 It will be a rare case, when one is dealing with a child, considering the public interest in rehabilitation, that general deterrence will be a substantial factor in the sentencing process. 68 Having regard to the background of this young man characterised by physical abuse, of which only a part was referred to in the psychological report, together with the intellectual problems to which I have referred. I consider that there was no role for the principles of general deterrence to apply to sentencing this young man. He was not an appropriate instrument of which to make an example to others. 69 I regret, therefore, that I have concluded, with unfeigned respect for the very experienced sentencing judge, that his Honour erred in considering that general deterrence was a significant matter in the sentencing of this applicant. It is obvious, from what has been already said, that there was a marked difference between this offender and his co-offender; far from the acts of violence committed by the applicant equalising their culpability, they demonstrated the difference to which I have endeavoured to draw attention. 70 Considered by itself, if he were not sentenced with his co-offender, the applicant's sentence could not be seen to be manifestly excessive and I agree that it was significantly lenient. However, he was not sentenced alone, he was sentenced with a person of far greater intelligence than he, who was the instigator of the offence and who was prepared to use what he must have known was the violent propensities of this offender to perpetrate crimes. I do not see that the fact that this offender was more directly violent than the instigator as, in some way, placing him on an equal level so far as culpability is concerned. Indeed if I were to draw that distinction I would draw it to the opposite effect. 71 When one considers whether this offender might be left with a justifiable sense of grievance, it is important to appreciate that the term is not truly a description of any particular state of mind, having regard especially to this offender's level of intellectual functioning. The reference to any justifiable sense of grievance is somewhat artificial, but the test is correctly understood an objective one. 72 Having regard to the distinctions between the offenders in responsibility and in intellectual capacity, I consider that they should not have received the same sentence and there should be, in light of the errors of law which I have identified, a re-consideration by this court of an appropriate sentence. 73 For myself, I think that a lengthy term of supervision is an important factor in attempting the rehabilitation of this young man and for that reason I would not vary the head sentence but I would have reduced the non-parole period to 18 months. 74 HODGSON, JA: The order of the court is, leave to appeal is allowed and the appeal is dismissed. *********

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