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[2001] NSWCCA 158
Court of Criminal Appeal (NSW)
2001-03-21
Giles JA, Wood CJ, Simpson J, Hidden J, Carruthers AJ
Original judgment source is linked above.
The application 37 The principal argument advanced on the application was that, having regard to the applicant's age, the Henry guideline was inapplicable. Counsel for the applicant placed particular reliance upon two previous judgments of this court. In R v Jack Sua [2000] NSWCCA 94; unreported, 23 February 2000, the applicant had been found guilty by a jury of an offence of armed robbery committed when he was just short of seventeen years of age. Hidden J, with whom Carruthers AJ agreed, said: "Passing reference was made to the guideline judgment in R v Henry and Ors (46 NSWLR 346), but it does not appear that much assistance is available from that case. I take the guidelines to be applicable to adult offenders and not to embrace the special facts governing the sentencing of children. The principles governing the sentencing of children are well known." 38 In R v RLS [2000] NSWCCA 175; unreported, 1 May 2000, the applicant had pleaded guilty to a number of armed robbery offences, all committed when he was sixteen years of age. Referring to Henry, Hulme J, with whom Carruthers AJ also agreed, referred to Henry and then said: "I acknowledge that the applicant is of a younger age than contemplated in the guidelines." 39 Counsel for the applicant also drew attention to particular provisions of the Act. These included s 6, which bears the heading "Principles Relating to the Exercise of Criminal Jurisdiction"(in relation to children). A child is defined in s 3 as a person under the age of eighteen years. The principles are stated in s 6 as: 6. Principles relating to the exercise of criminal jurisdiction
A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles: (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind. 40 One matter on which the parties joined issue may now be disposed of. That concerned whether the Henry guideline was intended to apply to offenders who, by reason of their age, are "children" within the meaning of the Act. Counsel for the applicant argued that the Henry guideline was not intended to, and does not, apply to juvenile offenders. Senior counsel for the Crown argued that, because the guideline specifically incorporated youthfulness as one of the features in the category to which it is expressed to apply, it should be taken to have been intended to encompass "children" as defined in the Act. In my opinion the Crown argument elevates the use of the phrase "young offender" beyond what was intended. As I interpret the judgment, the phrase "young offender" was not intended to include "children" so defined. Support for that view is to be derived from the fact that of the seven offenders whose cases were considered in conjunction with the guideline, only one was a "child" within that definition. All others were young adults. It was offenders in this latter category to whom the consideration of the court was principally directed. The reference to "young offender" has nothing to do with "children" as it appears in the Act. That does not mean that the guideline is of no relevance to offenders under the age of eighteen years. Like all guideline judgments, Henry is to be applied flexibly. There will be cases in which greater weight is to be given to particular facts. For example, a plea of guilty where the Crown case is not strong will attract a greater discount than may otherwise be the norm. 41 The youth of an offender may also, in particular circumstances, attract a measure of leniency not extended to older offenders. In this regard it is necessary to bear in mind the well established principle that offenders who engage in very serious crimes, or crimes more commonly associated with older individuals, may forfeit all or some of their claims to leniency: R v Pham and Ly (1991) 55 A Crim R 128. 42 When it is remembered that the guideline sentence promulgated in Henry is non prescriptive and has inbuilt a high degree of elasticity, the applicant's argument, it seems to me, evaporates. The youth of an offender is a relevant factor in the sentencing consideration, to be given the appropriate weight, together with all other relevant factors. 43 To the extent that it may be thought that the court either in Sua or RLS intended to exclude the application of guideline sentences (whether in relation to offences of armed robbery, or any of the other offences which have been the subject of guideline judgments) to children, I respectfully consider them to have overstated the position. It is, in any event, to be borne in mind that each was a judgment of a bench of this court constituted by two judges in accordance with s 6AA of the Criminal Appeal Act 1912, sub s 2 of which envisages that disputed issues of general principle will not be decided by the court so constituted. In my opinion neither of the benches in question intended to state any general principle as to the applicability or non-applicability of guideline judgments to juvenile offenders and should not be read as having done so. 44 I am, accordingly, satisfied that no error in principle has been demonstrated by reason alone of the fact that, in an indirect way, the sentence imposed on the applicant derived from the Henry guideline. 45 That does not finally dispose of the application. On behalf of the applicant it was submitted that, even taking Henry as a starting point, the weight given to certain mitigating factors was inadequate. These factors were identified as the applicant's youth, his level of involvement in the planning of and preparation for the offence, his guilty plea and the circumstances in which it came to be entered, and the remorse that was evident from those circumstances. The fact that the guideline extends the sentencing of children does not mean that it would not be proper in appropriate cases to impose a sentence below the range stated. 46 The pre-Henry authorities that are directed to sentencing of young offenders are readily adaptable to the application of guideline judgments. The principles have been so frequently stated that little is to be gained from further exposition: youth is a factor that may operate to reduce the emphasis to be placed on considerations of general deterrence and retribution; but that principle itself is counterbalanced where the offence is one more commonly expected of an adult offender: Pham and Ly; R v Hearne [1999] NSWCCA 605 at para 76, and the cases there cited; R v Hearne [2001] NSWCCA 37, and the cases there cited. 47 Armed robbery is classically an offence of the kind in which the leniency otherwise attracted by youth may be diminished. The applicant could therefore gain little comfort from his youth in this sentencing process. 48 I have mentioned above the circumstances of the applicant's involvement, his prior almost clear record, and the circumstances in which he entered his plea of guilty. These are matters that were expressly taken into account by the sentencing judge; there is nothing in the remarks on sentence to suggest that they were given inadequate weight. The thrust of the submission made on behalf of the applicant was that, from the ultimate sentence itself, it should be inferred that insufficient attention was given to one or more of these factors. 49 Having considered all of these matters, I am unpersuaded that such error has been demonstrated. In my opinion the sentence was, in all the circumstances, fairly heavy, but not outside the range of the sentencing discretion legitimately available. I would grant leave to appeal but dismiss the appeal.
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Regina
SDM
CITATION : Regina v SDM [2001] NSWCCA 158 revised - 8/05/2001 FILE NUMBER(S) : CCA 60191/00 HEARING DATE(S) : 21 March 2001 JUDGMENT DATE : 4 May 2001
COUNSEL : R D Cogswell SC with Ms B Baker - Crown A Haesler - Applicant SOLICITORS : S E O'Connor - Crown D J Humphreys - Applicant CATCHWORDS : Criminal law - sentencing - armed robbery - juvenile - whether manifestly excessive - whether Henry [1999] 46 NSWLR 346 guideline applicable to juvenile offenders - Children (Criminal Proceedings) Act 1987. LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 R v Henry [1999] 46 NSWLR 346 Jack Sua [2000] NSWCCA 94, unreported, 23 February 2000 RLS [2000] NSWCCA 175 Douglas NSWCCA 11 December 1998 Lattouf NSWCCA 12 December 1996 Kable (1995) 36 NSWLR 374 Karacic 2001 NSWCCA 12 R v Ngui and Tiong (2000) 111 A Crim R 593 Walters and JB (2001) NSWCCA 121 CASES CITED: Tran (1999) NSWCCA 109 Townsend & Cooper NSW CCA 14 February 1995 Biggs NSWCCA 5 March 1997 Kama [2000] NSWCCA 23, 110 A Crim R 47 GDP (1991) 53 A Crim R 112 Sharbon NSWCCA 5 December 1991 Wilkie NSWCCA 2 July 1992 R v Pham and Ly (1991) 55 A Crim R 128 R Hearne [1999] NSWCCA 605 R Hearne [2001] NSWCCA 37 DECISION : Leave to appeal granted, appeal dismissed.
A similar assumption appears to have been made by Hulme J, with whom Carruthers AJ again agreed, in RLS [2000] NSWCCA 175. 6 Each of these decisions was made by a bench comprising two judges of this Court, but in neither case does it appear to me that the point was intended to be dealt with in a considered way so as to constitute a post script to Henry, or as a qualification of the guidelines there pronounced. 7 If the effect of these decisions was to construe Henry in a way that would entirely exclude its application to juvenile offenders, ie those who qualify as a "child" within the meaning of the Children (Criminal Proceedings) Act 1987, S 3(1), then that approach would, in my view, have been inappropriate, having regard to the nature and purpose of a guideline judgment. Such judgments are not to be regarded as equivalent to statutory instruments, which invite interpretation or which bind Judges strictly within their terms, and from which there can be no departure. As this Court has made crystal clear (e.g. Douglas NSW CCA 11 December 1998, Henry per Spigelman CJ at para 29; and Jurisic per Spigelman CJ at para 15), guideline judgments do not have the force of statute law, and they are not to be treated, for example, as the equivalent of mandatory sentencing legislation. 8 One of their advantages is to avoid the vice attached to such form of legislation which can, in individual cases, lead to great injustice, and which conflicts with the well recognised principle that "if justice is not individual, it is nothing" per Mahony JA in Lattouf NSWCCA 12 December 1996 and in Kable (1995) 26 NSWLR 374 at 394. 9 Recently, in Karacic 2001 NSWCCA 12, Spigelman CJ, when confirming the indicative nature of such judgments, said: "Nevertheless they are appropriate indicators, or to use the words of Winneke P [in R v Ngui and Tiong (2000) 111 A Crim R 593 at 13] a "sounding board" or a "check" so that in circumstances such as the present, the court does not fail to consider the level of sentences that have been found to be appropriate in the general run of similar cases, whilst taking into account the differences between the circumstances of the individual case and those of previous cases."
• • • 29 There was some support for the applicant's claimed contrition. From the date he was charged (1 April 1999) until 10 January 2000, he maintained an intention to plead not guilty. He was released on bail on 13 April 1999. On 10 January 2000 he decided to change his plea to one of guilty and also to ask that his bail be revoked, and he accordingly surrendered himself on that day. The only source of this information was a Background Report prepared for the court by the Department of Juvenile Justice, which was accepted by the Crown as accurate. The Department of Juvenile Justice report also contained the information that, in about January 2000, the applicant committed an offence of break enter and steal. 30 There was other subjective material, again drawn largely from the Background Report. The applicant was born on 9 April 1982, and was almost seventeen years of age at the date of the offence, seventeen years and eleven months at sentencing. He had an insignificant criminal history, extending only to a charge of receiving stolen property and one of common assault, which were dealt with together in the Children's Court in 1998. He was placed on probation for eighteen months. 31 The applicant has had a disturbed family life, his parents having separated when he was about five years of age. He has little contact with his father, to whom he harbours some resentment. Since the separation his mother has entered into at least two successive relationships. One of her partners became something of a father figure to the applicant, but his mother's relationship with that man has since terminated. He bears some animosity to his mother's current partner. 32 The applicant has an older sister, to whom he is close, and two younger brothers. His mother's care for the family has been unstable, and, from an early age, the applicant and one of his brothers have been left to find their own accommodation. He left school shortly after turning fifteen and has had some casual employment, but the temporary nature of his domestic arrangements has made continuous employment difficult. He was described by the Juvenile Justice officer as "anxious and depressed". 33 In R v Henry [1999] NSWCCA 111; 46 NSWLR 346 this court promulgated a guideline sentencing regime in relation to armed robbery. The sentence there proposed was expressed to apply in cases that fell into a broad category of cases with identifiable common features. Those features were stated as: "(i) Young offender, with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence, but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case." (para 162, p 380)
[1999] NSWCCA 605
(1995) 36 NSWLR 374
(1999) 46 NSWLR 346
(1995) 26 NSWLR 374