Regina v Voss

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0177 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60126/03

GROVE J WHEALY J SHAW J

Monday 7 July 2003 REGINA v PAUL ANTHONY VOSS

Judgment 1 GROVE J: This is an application for leave to appeal against sentence imposed by Gibson DCJ in the District Court at Sydney on 4 October 2002. On that occasion the applicant pleaded guilty to an offence of breaking and entering a dwelling house and committing therein a serious indictable offence namely stealing, in circumstances of special aggravation which were that he maliciously inflicted grievous bodily harm upon a victim. The offence occurred during the night of 3 November 2001. The victim was aged twelve years. The applicant was born on 1 April 1984 and therefore was aged seventeen years and six months at the date of offence but was eighteen years of age when sentenced. His Honour imposed a sentence of ten years imprisonment with a non-parole period of six years and six months directing, pursuant to appropriate findings, that the applicant be detained in a juvenile detention centre until the attainment of his twenty first birthday. 2 In a written submission (adopted by senior counsel at the hearing, the submission having been filed and signed by another) the grounds of appeal were stated as follows: "1. His Honour erred in failing to have sufficient regard to the youth of the applicant and the fact that he was a child at the time of the offence. 2. The sentence was too severe and that some other lesser sentence is warranted." 3 In his remarks on sentence, the learned sentencing judge identified the considerable volume of tendered material, particularly factual material, to which he had had reference and in so doing did not recite detail with which he had been supplied concerning the offence and its surrounding circumstances. He noted that the offence was a defined serious indictable offence and that the applicant, although aged less than eighteen at the date of offence, was required to be dealt with according to law. He found that the offence was objectively a very serious one. No challenge is offered against that description, however, in the light of matters raised and argued in support of the grounds abovementioned it is appropriate to extract from the material before his Honour a slightly more detailed description of the relevant facts arising out of which the applicant's culpability needed to be assessed. Some of the facts which I now recount are extracted from answers given by the applicant when he was interviewed by police in the presence of his mother following arrest a few days after the offence and others from statements which were tendered in the sentencing proceedings and received without objection on the part of the applicant, all part of the evidence at the sentencing hearing. 4 There was a party being held in an area near a surf club. The applicant had been introduced to a young man who was about to leave with a friend at about 12.30 am. This young man had a car and the applicant asked whether he could come along on the journey which was being undertaken in order to drop off a passenger. This passenger was dropped at Randwick and the applicant asked to be taken to Tamarama. By this time there were only two occupants in the car. As they approached Tamarama the applicant asked to be let out. He asked the driver to wait, however the driver did not and proceeded towards Bondi but after apparently cruising in that direction he turned around in order to return to his home. On this return journey the applicant was seen running towards the car carrying something. The driver stopped the car and the applicant threw what was later identified as a stereo into the back seat of the car. He said to the driver "Drive, drive, drive." He asked to be taken to Botany. On the journey the car radio was playing music and the applicant was singing to it. Near Botany he asked to be left near a park and asked the driver whether he could leave the stereo in the car. The driver refused and the applicant alighted with the stereo. 5 The final contact between the driver and the applicant involved the receipt by the driver of a call on his mobile phone a few days later. The applicant identified himself and among other things said: "I think I could be in some trouble because I hit someone over the head with a cricket bat and put them into a coma. It's on the news."

and "If I get caught I could go to gaol for a long time, so keep your mouth shut and don't tell anyone. If you tell anyone you'll get hurt." 6 What had happened when the applicant alighted from the vehicle at Tamarama is that he entered the bedroom of a dwelling house, via a balcony. He was armed with a knife. He commenced to disconnect a stereo system and whilst doing so, a twelve year old boy awoke and called out for his mother. The applicant picked up a cricket bat which belonged to this boy and struck the victim twice. In interview with police he stated, "He just stood there. He went back down and I hit him again as he went down." The applicant fled the scene with the stereo and as I have related, he encountered the driver who had previously given him a lift and was taken to Botany. 7 The victim's father heard moaning and banging coming from the young boy's bedroom and as a result he came into the room where he saw his son bleeding from the mouth and appearing to be having a seizure. An ambulance was called and at hospital it was discovered that the boy had a fractured skull. He was placed on a respirator and remained in a coma for several days. He has been significantly and permanently impaired as a result of head and brain injury and there was evidence before his Honour concerning the markedly reduced scale of intellectual, verbal and performance abilities of the victim. 8 The applicant told police that the purpose of the theft was to obtain money to purchase marijuana. Before striking the victim he realized that he was young although he estimated his age at thirteen or fourteen. He said he carried the knife to scare anyone that came to him and said that he "didn't fucking intend to hurt the kid, but he just woke up at the wrong moment and I was there". The purpose of hitting him with the cricket bat was to knock him out in order to make him be quiet. 9 In addition to the telephone conversation with the driver of the car which I have recited in part, there was also confirmation to police that the applicant had told a friend "I had to frigging belt some cunt's head in 'cause he woke up and frigging his dog and that started barking". 10 Against those facts, the learned sentencing judge accepted that the applicant was sorry for his actions as he stated in a letter which was tendered at the hearing. Nevertheless his Honour did not accept that the applicant fully appreciated the long-term damage which he had done to the victim. He accepted that alcohol and drugs (the applicant had stated that he had consumed a considerable quantity of beer and a tablet of ecstasy during the night) might explain although not excuse the conduct of the applicant. The plea of guilty was accepted as evidence of remorse and his Honour accepted that the applicant had resumed his education whilst in custody and was trying to rehabilitate himself. He accepted that the applicant's actions in hitting the victim were reaction and not something he had intended upon entering the premises. He assessed the applicant's prior record as of relatively minor nature and it was common ground that the applicant had never previously been detained or imprisoned. As can be deduced from the sentence imposed, he found special circumstances by which he reduced against the statutory formula, favourably to the applicant, the proportion between non-parole period and head sentence. 11 In a precise and comprehensive oral submission Mr Craigie SC for the applicant focussed upon the youth of the applicant and the obligation to apply the principles specified in s6 of the Children (Criminal Proceedings) Act 1987 namely: "6. 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."

12 It can be observed that subs(e) does not mandate a lesser sentence than that which would be imposed upon an adult for an offence of the same kind. 13 The essence of the applicant's submission was expressed in a contention that in resolving a necessary tension between moral culpability for an offence and the objective gravity of it, the learned sentencing judge erred in failing to give proper or sufficient weight to the applicant's age and immaturity. 14 It was recognized that there were applicable authorities concerning the approach to be taken in such cases. A young offender who conducts himself "as an adult" or engages in "grave adult behaviour" will have less weight given to those principles and more weight given to the objective seriousness of the offence: R v AEM [2002] NSWCCA 58; R v MHH NSWCCA 161. The same may apply if there is planning of the offence: R v Pham 1991 55 A Crim R 128. 15 When the offence was committed the applicant was six months short of his eighteenth birthday. In reference to the principles abovementioned, Hunt CJ at CL observed in R v Bus, unreported NSWCCA 3 November 1995: "In any event, it is obvious that the relevance of the principles stated in section 6 to each individual case depends to a very large extent upon the age of the particular offender and the nature of the particular offence committed. An offender almost eighteen years of age cannot expect to be treated according to law substantially differently to an offender just over eighteen years of age." 16 It was pointed out in the written submissions that such a qualification does not appear in the section, however the section articulates the principles and Hunt CJ at CL was dealing with their application. I would respectfully endorse his comments concerning obviousness. His Honour went on to say: "Rehabilitation plays a more important role and general deterrence a lesser role: R v GDP 1991 53 A Crim R 112. But that principle is subject to the qualification that, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing him." 17 See also R v Tran [1999] NSWCCA 109. 18 Particular attention was directed to the finding by Gibson DCJ that the applicant's hitting the victim was a reaction and not something which he intended upon entering the premises. The argument was developed that the cricket bat, the property of the victim, was "a weapon of opportunity" and the use of it as "a reaction" was a manifestation of the applicant's immaturity. The critical elements of the applicant's culpability relate to the circumstances of aggravation and it was contended that his Honour erred in, at least notionally, not severing those elements and assessing the applicant's immaturity in that regard and reflecting that immaturity in accordance with principles applicable to child offenders. 19 As the cricket bat was in the premises, the applicant could not have intended to use it before he entered but he did not come unprepared. He had a knife. Police asked him about it. He was asked to describe it and replied: "It was a long black handle, but I had no intention of using it, I just …… to scare whoever came. That's why I had to pick up the bat and that's why I didn't want to use a frigging knife to frigging kill no one." 20 The applicant had also chosen the house because it was large and had a lot of windows and doors. 21 Thus the evidence showed that the applicant had made a series of judgments concerning the suitability of the particular house as a target for theft, arming himself for the purpose of scaring anyone if he was discovered and, in the event of discovery, actually choosing a weapon option which he assessed as less likely than the knife to cause fatality. I am unpersuaded that the sentencing judge fell into error in failing to find that the applicant's reaction was immature and unlike that of an adult. 22 Reference was made to the applicant's ingestion, prior to the offence, of intoxicating liquor. He also mentioned a tablet of "ecstasy". These were not matters demanding mitigatory reflection. There was some expert evidence based upon hypotheses of quantities ingested but there was also the eyewitness statement of the car driver: "I could smell alcohol on him. I'm not sure how many he had to drink. I remember him running towards me and he didn't look drunk. He didn't mention anything to me in relation to alcohol or drugs." 23 In revealing the processes of his reasoning his Honour estimated a sentence referrable to culpability of fifteen years imprisonment which he reduced to ten years by reason of the applicant's subjective case and the utilitarian value of his plea of guilty. It was submitted that fifteen years was an excessive estimate. It represents three-fifths of the prescribed statutory maximum. It was conceded, as it had to be, that the consequences of the offence were not irrelevant. The consequence of injury to the twelve year old boy was accurately described as catastrophic. His Honour's estimate was not erroneous. 24 As already mentioned the specified non-parole period was reduced as against the statutory formulation and the applicant is to be detained in a juvenile centre until he is twenty one years of age. Counsel calculated that he would therefore be transferred to an adult institution to serve approximately two years and seven months before becoming eligible for consideration for parole. It was said that there was a risk that possible advances towards rehabilitation achieved in the juvenile system may be prejudiced by transfer into an adult regime. That is not, of course, to ignore that there exist young offenders programmes within the adult system. The issue for this Court is whether there was error in the assessment of sentence and in this regard, none is demonstrated. 25 The jurisdiction of this Court to intervene on a matter of sentence requires a finding that some less severe sentence is warranted in law and should have been passed before it is enlivened: Criminal Appeal Act s6(3). I am unpersuaded to that effect and in my opinion the imposition was well within the range of the sound exercise of the sentencing judge's discretion. 26 I propose that leave to appeal be granted but the appeal dismissed. 27 WHEALY J: I agree with the reasons of Grove J and the order he proposes. 28 SHAW J: I agree with the judgment of Grove J. **********

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