Ruttley v R

Court of Criminal Appeal (NSW)|2010-05-27|Before: Simpson J, Fullerton J, Clellan CJ

The applicant's personal circumstances 13 Evidence of the applicant's personal circumstances was put before the sentencing judge by way of a Pre-Sentence Report prepared by Mr Joseph Hillard, District Manager of the Gunnedah District Office of the Probation and Parole Service. 14 The applicant was born in July 1988. At the time of the offences he was two weeks short of 20 years of age. Other than an offence, in 2007, of driving whilst unlicensed, he has had no prior encounters with the criminal law. Mr Hillard was unaware of any formal assessment of the applicant with respect to disability or mental health, but said that an assessment of "low cognitive/intellectual disability would not surprise". 15 He is the third youngest of 13 children of a close knit Aboriginal family, reared in what Mr Hillard described as "rustic circumstances" on the outskirts of [B]. The family had lived at these premises until their physical state deteriorated to the point that they were uninhabitable, and the family moved to Aboriginal housing. Most of the applicant's siblings continue to live in the area. 16 Mr Hillard described the applicant's extended family as "hardworking people" employed in the sleeper cutting and timber industry in the Pilliga. He said, however, that those industries had declined to the point of extinction and that: "… that generation of young men reared in the small towns and villages of the Pilliga has had less opportunity to identify with the forest and hard work then did their forebears." 17 It is noteworthy at this point that Mr Hillard said that the family was known to the Gunnedah District Office through preparation of Pre-Sentence Reports with respect to and supervision of one of the applicant's brothers, and in relation to a partner of one of the applicant's sisters. What is notable about this is that, despite the apparent poverty of the family, there is no suggestion of any significant criminality in the family. 18 In late 2007 (when the applicant was about 19) he moved to Boggabri to live with his "young girlfriend" (age unstated). At that time the couple had one child and were expecting another. The applicant left school early (Year 7, aged 13) and is illiterate, and was, at the time of the report, unemployed. 19 The applicant told Mr Hillard that, on the day of the offences, he and KR had been drinking all day and all night to celebrate his sister's birthday. Initially, he gave no explanation for the offences, but later said that, sometime previously, TJ had exposed himself in front of his (the applicant's) 13 year old sister. 20 When asked how he felt about having committed the offences, the applicant said that he felt "nothin". However, Mr Hillard was at some pains to diminish the prejudicial value of this answer, and to suggest that it: "… may say more about [the applicant's] level cognitive functioning and intellectual capacity than about, say, a propensity to be callous."

The remarks on sentence 21 Woods ADCJ recounted the facts of the offences, and the personal circumstances outlined by Mr Hillard. 22 He directed himself as to the need to consider the various aggravating and mitigating factors set out in s 21A of the Sentencing Procedure Act, and the need, in considering matters of aggravation, to avoid "double counting" by taking into account circumstances that are elements of the offences. 23 He found that the break and enter offence was "… a deliberate home invasion to bash the occupant"

and held that, on that characterisation, the offence was: "… towards the higher level of seriousness." 24 He recognised that the applicant's "… difficulties in his position in society due to his upbringing and intellectual problems"

while, perhaps, providing a reason for the offences, did not constitute an excuse. 25 He noted that KR had been dealt with in "another court" for a slightly more serious offence (unspecified) which included the break in to the premises. He said that he had been made the subject of a control order. In fact KR was charged with breaking and entering a dwelling house and committing a serious indictable offence (assault occasioning actual bodily harm) in circumstances of aggravation. The circumstance of aggravation was that the offence was committed in company. That offence carries a maximum penalty of imprisonment for 20 years. The "other Court" was the Children's Court. 26 Woods ADCJ noted that, although KR was younger than the applicant, there was no evidence as to the "leadership" or the relationship between the two. He noted the need to impose a deterrent penalty. He described the assault as "quite brutal", and therefore also serious. 27 He then proceeded to impose the sentences mentioned above. In doing so, he allowed a reduction in the sentences of 25 percent in recognition of the utilitarian value of the pleas of guilty: see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. The starting point for the sentence on the break and enter offence was 6 years, reduced to 4 years for the plea of guilty. Applying the s 44(2) ratio would give a non-parole period of 3 years, which his Honour further reduced (by 6 months) by reason of the specific circumstances I have already mentioned.

The application for leave to appeal 28 Five grounds are pleaded. They are: "Ground 1: His Honour erred by not taking the applicant's voluntary disclosure of otherwise unknown guilt into account as a mitigating factor in the sentencing exercise.

Ground 2: His Honour erred in not taking into account the applicant's prospects of rehabilitation in the sentences imposed.

Ground 3: His Honour erred in failing to set a non-parole period for the offence of aggravated assault occasioning actual bodily harm.

Ground 4: The sentence and the non-parole period imposed upon the applicant are manifestly excessive.

Ground 5: The applicant has a legitimate sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his juvenile co-offender."

Ground 1: voluntary disclosure 29 In support of this ground counsel for the applicant relied upon two lines of authority. The first is that beginning with R v Ellis (1986) 6 NSWLR 603, which has been invoked, and followed (and distinguished) on many occasions since. There, by reason of voluntary disclosure, it was said that the applicant was entitled to a "significant added element of leniency". 30 It is true that the applicant did disclose an offence which was not at that time known. However, in Ellis it was added that: "… the degree of [added leniency] will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." 31 Here, notwithstanding TJ's initial reluctance to identify the applicant as the offender, there is little doubt that he did recognise and identify him and would have been able to nominate him as one of the perpetrators. The applicant's involvement would certainly have very quickly become known. Accordingly, the Ellis reduction is of limited value. 32 The other decision relied upon is Thewlis v The Queen [2008] NSWCCA 176; 186 A Crim 279. 33 That case involved a very serious assault by an offender upon his recently estranged de facto wife and a friend of hers. The injuries inflicted upon the former de facto were life threatening. Immediately after the offence the offender alerted neighbours next door and asked them to call an ambulance. I described this as amelioration of the effects of his criminal conduct. In that case, the amelioration was so significant as to be said by the Chief Justice to have played a significant, and quite possibly decisive, role in saving the victim's life. 34 I stressed, and the Chief Justice and Price J agreed, that there are few cases where the principle will be applicable; I also said that such conduct warrants "some consideration in mitigation of sentence". 35 Although the applicant's immediate post-offence conduct was creditworthy, and went some way to ameliorate the effects of his crimes, it does not fit neatly into the categories recognised in Ellis and Thewlis. Certainly, it could not be said to have been in the same class as that in Thewlis. It did, however, deserve recognition. It was indicative of the applicant's appreciation of the criminality of his conduct, and perhaps of remorse. It undoubtedly resulted in TJ being rescued and treated at an earlier time than he otherwise would have been. In fact, it was taken into account by the sentencing judge. His Honour included reference to that conduct in his account of the facts; he also, in considering sentence, said: "I must balance the deliberate nature of the actions that night, albeit under the influence of alcohol, against the action and immediately reporting themselves [to] the police, the pleas of guilty and the unusual circumstances of his background. The immediate reporting to the police is of small comfort to the victim and the general community and it cannot create a precedent to owning up immediately which thereby could allow a licence to commit such acts." 36 It is unclear whether the last sentence ought to be interpreted as minimising the effect of the reporting. 37 If this ground of appeal stood alone, I would reject it. But it does not stand alone, and the circumstances must be taken into account with other relevant factors.

Ground 2: prospects of rehabilitation 38 Criticism is made of the absence of any express mention of the applicant's prospects of rehabilitation. It was argued that, given his age and his prior clear record, that was a matter of considerable importance in the sentencing exercise. 39 The difficulty with this argument is that there was no evidence on which the judge could base any finding, either favourable or adverse to the applicant. The Pre-Sentence Report did not, as was recognised, address the issue. And the applicant did not give evidence. 40 But there were other circumstances from which inferences were available. Despite the applicant's unpromising background, he had survived almost 20 years without succumbing to criminality. And his conduct in his immediate reporting to police was relevant to his prospects of rehabilitation.

Ground 3: non-parole period for the assault offence 41 Reliance was placed upon s 44 of the Sentencing Procedure Act, which requires a sentencing judge first to set a non-parole period and then a balance of term. However, by s 45(1) a court may decline to set a non-parole period if it appears appropriate to take that course for reasons there specified. These include the nature of the offence, the antecedent character of the offender, any other penalty previously imposed on the offender, or any other reason that the court considers sufficient. By sub-s (2) if the court declines to set a non-parole period, it is required to make a record of its reasons for doing so. 42 It is true that his Honour did not set a non-parole period, and he did not give reasons for taking that course. He was in error in failing to give reasons. (It is easy to infer that the reasons were the total concurrency of the second sentence with the first, and the conventional structure of the sentence on the first.) Sub-section (4) specifically provides that failure to comply with this requirement to give reasons does not invalidate the sentence. 43 Although error is demonstrated in the failure to give reasons for taking that course, I do not consider that the error is such as to justify interfering with the sentence imposed. I would add this note of caution to those who raise this ground of appeal. Ordinarily, where a fixed term is imposed, it equates to what would have been a non-parole period had one been fixed. Correction of an error in failing to fix a non-parole period is more likely to result in the imposition of a balance of term, often to the detriment of the applicant who complains. That course is permitted by s 6(3) of the Criminal Appeal Act 1912. 44 Here, examination of the fixed term persuades me that the fixed term did, as one would expect, equate to what would have been a non-parole period in a sentence fixed in accordance with s 44. 45 I would reject this ground of appeal.

Ground 4: manifestly excessive 46 Two matters were raised here. The first concerned the question of special circumstances justifying departure from the ratio between the head sentence and the non-parole period specified in s 44(2) of the Sentencing Procedure Act. It was submitted that: "Special circumstances should appropriately have been found …" 47 As I have indicated above, this is precisely what happened. The statutory ratio, on a sentence of 4 years, would have given a non-parole period of 3 years. The applicant's non-parole period is 2½ years. Woods ADCJ adverted to this, briefly, by saying: "[After reduction for the plea of guilty] I then arrive at a term of non-parole custody of about three years which I will further reduce for his age and lack of prior offending." 48 I would reject this aspect of this ground of appeal. 49 As to the contention that both the head sentence and the non-parole period are manifestly excessive, reference was made to statistics provided by the Judicial Commission. (The actual statistics were not provided.) They were said to show that, in respect of 21 cases involving first offenders, 14 were dealt with by way of outcomes other than custodial sentences. Of the remaining seven, where a fulltime custodial sentence was imposed, the maximum sentence imposed was one of 3 years (in four cases) and lesser sentences in the others. The maximum non-parole period was 18 months. 50 Even accepting that summary (in the absence of the actual statistics), the difficulty is that nothing is known of the circumstances of those offences. This is a particularly serious instance of the offence of aggravated entry. The serious indictable offence intended to be committed was, not stealing, but assault occasioning actual bodily harm. It was committed during the early hours of the morning, when the victim could be expected to be (and was in fact) asleep, and in his home. In the absence of more detailed information, I would not conclude, on the basis of statistical information, that these sentences were outside the range legitimately available.

Ground 5: parity 51 This Court was informed that KR was aged 17½ at the time of the offence. He was, accordingly, dealt with in the Children's Court. He was charged with breaking and entering TJ's dwelling house and committing a serious indictable offence, assault occasioning actual bodily harm in circumstances of aggravation. The circumstance of aggravation was that he was in company with the applicant. The maximum applicable penalty was imprisonment for 20 years. 52 KR was initially subjected to a control order for a period of 18 months, with a non-parole period of 9 months; on appeal to the District Court, the control order was confirmed, but suspended conditional upon KR entering into a good behaviour bond. 53 This Court is familiar with complaints that depend upon a co-offender who is charged with a less serious offence and consequently receives a lesser penalty. It has consistently declined to extend its supervisory role, under the guise of the parity principle, to prosecutorial discretions: see, eg Pham v R [2009] NSWCCA 25, per Latham J. 54 This case, however, is different: KR was charged with a more serious offence, carrying a heavier penalty; he was nevertheless dealt with more leniently. That would, in my opinion, ordinarily give rise to the application of parity principles. 55 However, there is a significant distinguishing feature: that is, the jurisdictions in which the two offenders were sentenced. The Children's Court operates under its own sentencing regime: see Children (Criminal Proceedings) Act 1987. Principles applicable to dealing with children who have been found to have committed crime are spelled out in s 6. One important principle is the desirability of "reintegrating" a child who has committed crime into the community. 56 It will, accordingly, be a rare case in which an adult offender, sentenced in an adult court, can invoke the parity principle where the co-offender is a child, and is dealt with in the Children's Court. 57 This is not such a case. It is true that, in circumstances such as this, where the age difference between the two offenders is relatively small, that one comes within the more benign Children's Court regime, and the other is subjected to the rigours of the adult penal system, may at times appear to be arbitrary. But that is the consequence of the need for the legislature to identify an age of adulthood, at which an offender is expected to take responsibility for his or her actions. 58 That does not render the penalty imposed upon KR irrelevant. Putting parity aside, there remains an issue of proportionality. 59 Here, in respect of a more serious offence, a co-offender was given a wholly suspended custodial penalty. There was nothing to distinguish the two offenders, in terms of their criminal responsibility or participation, or, indeed, in respect of their personal circumstances (so far as those of KR are known). 60 Having regard to all of the circumstances, it seemed to me that, in the words of s 6(3) of the Criminal Appeal Act, a less severe sentence was warranted in law and should have been passed. I proposed that the following orders ought to be made:

(iii) In lieu thereof, the applicant be sentenced as follows: On count 1: to imprisonment for 3 years, commencing on 14 January 2009, with a non-parole period of 16 months, expiring on 13 May 2010, and a balance of term of 20 months expiring on 13 January 2012;

On count 2: a fixed term of imprisonment of 16 months commencing on 14 January 2009, and expiring on 13 May 2010.

(iv) Accordingly, in accordance with s 50 of the Sentencing Procedure Act , direct that the applicant be released forthwith . 61 FULLERTON J: I agree with Simpson J. **********

21/11/2012 - replaced name of town with "[B]" - Paragraph(s) 5, 7 and 15

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CITATION: Ruttley v R [2010] NSWCCA 118 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Pham v R [2009] NSWCCA 25 CASES CITED : R v Ellis (1986) 6 NSWLR 603 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Thewlis v The Queen [2008] NSWCCA 176; 186 A Crim 279

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