SJ v Regina

Judgment 1BATHURST CJ : I will invite Buddin J to give the first judgment. BUDDIN J Introduction 2The applicant, who was a juvenile at the time of the offence, seeks leave to appeal against a sentence imposed upon him in the District Court by Judge English. It followed his plea of guilty to an offence of robbery committed on 26 July 2008 in circumstances of aggravation, namely that the victim was wounded. The offence attracts a maximum penalty of 25 years' imprisonment. On 4 February 2010 the applicant was sentenced to a non-parole period of 3 years and 2 months to date from 10 December 2009 with a head sentence of 5 years 11 months and 12 days. His non-parole period is thus due to expire on 9 February 2013. The sentence was backdated to the date upon which the applicant was remanded in custody, which was at the end of the sentencing hearing. The sentence was structured in such a fashion as to give effect to a finding of "special circumstances". The sentencing judge made an order, pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that the applicant, who was 17 at the time of the offence, was to serve his sentence in a juvenile detention centre until he reached the age of 21. The sentence proceedings 3Although there was agreement about some aspects of the Crown case, other matters remained in dispute. That dispute was resolved by the sentencing judge after her Honour heard evidence from two witnesses called by the Crown and from the applicant. 4A short statement of facts was tendered in order to provide the sentencing judge with a framework within which to determine the facts that were in issue. That statement revealed that the victim of the offence (a 14 year old boy) and his 11 year old brother were returning home at about 10 pm on the night in question after having attended an NRL match at Penrith. They were standing on a street corner with a friend when a blue Commodore vehicle approached them. In the vehicle were the applicant and four other young persons, JT, ST, PT and JF. As the vehicle approached the victim's group, the victim's friend rode off on his pushbike. The vehicle then stopped next to where the victim and his brother were standing. The applicant and JT got out of the car, approached the victim and demanded his money. When the victim said that he did not have any, they repeatedly punched and kicked him. They also stomped on his head. During the attack the victim curled up in an unsuccessful attempt to protect himself. In due course he lost consciousness. As the result of the attack, the victim sustained a deep 10 cm wound to the right side of his head. As well as sustaining swelling to his entire face, he also received other severe lacerations. Photographs of the injuries were tendered at the hearing. 5After stealing the victim's running shoes, wallet and wristwatch as he lay unconscious on the ground, the applicant and JT then returned to the vehicle which then left the scene. Police and ambulance officers attended and conveyed the victim to Nepean Hospital for urgent medical attention. 6Police obtained the registration number of the vehicle and were able to ascertain that it was registered to JF's mother. Enquiries led them to speak to ST, on both 5 and 19 August 2008, and to PT on 19 August 2008. As a result of information obtained during those interviews, police made endeavours to locate the applicant. On 27 August 2008 the applicant attended Mt Druitt Police Station where he was placed under arrest. During the course of an ERISP interview, he denied having played any part in the robbery. He admitted to being an associate of other persons involved in it, but was unable to explain why they would "fabricate his involvement" in it. He also admitted that he and the persons who were involved in the offence were members of a gang called 'FBI' (which is an acronym for full blooded Islanders). Police observed that during the interview the applicant had not shown any remorse or concern for his victim. However after the interview, one of the officers noticed that the applicant had become upset. The applicant then admitted to police that he had, in fact, been there on the night in question but maintained that he had intervened and "pulled [JT] off". 7ST pleaded guilty to being an accessory after the fact to the robbery in which the applicant was involved and was sentenced by Judge Syme on 7 September 2009 to a control order for a period of 4 months, which was suspended. His culpability arose from his having been the driver of the Commodore vehicle. On 9 September 2009 JT was sentenced by Judge Syme for the same offence of which the applicant was convicted. He received a non-parole period of 3 years and 2 months with an overall sentence of 6 years imprisonment. An appeal against that sentence was dismissed by a differently constituted bench of this Court on 10 June 2011: see JT v R [2011] NSWCCA 128. It is to be observed that no issue of parity is raised on this application in respect of the sentence that was imposed on JT. 8As I have said, the applicant disputed various aspects of the Crown case. The statement of facts to which I referred earlier was based on what PT and ST had told police. In his statement to police, PT, who was 16 at the time, said that he was asked to join 'FBI' by a person he referred to as 'King C' (whom he knew to be the applicant). After describing the incident in which the applicant and JT were involved, PT maintained that he had got out of the car and had dragged JT off the victim. He said that he had yelled both at him and the applicant to get back in the car. ST, who was 15 at the time, provided a description of events which was to a broadly similar effect, including the fact that PT had sought to restrain both JT and the applicant. However, it was not until his second interview that he referred to the involvement of the applicant in the offence. Both PT and ST were required for cross-examination by the applicant's then legal representative. When giving evidence, each sought to distance himself from what he had originally told police. Each gave evidence that he had been intoxicated at the time of speaking with police and that he could not recall what he had told them or indeed, any of the details of the incident. Unsurprisingly, the sentencing judge rejected those explanations as to why they had resiled from their original statements. It is unnecessary, for present purposes, to descend to any further analysis of that aspect of the matter. Suffice it to say that the explanations which were proffered were completely implausible. That is particularly so in the case of ST who was accompanied, at the time of speaking to police, by either a parent or a legal guardian. 9The applicant also gave evidence at the sentence hearing. He claimed to have punched the victim on only one occasion, after which he said that he had "moved away". He also denied having kicked the victim or having taken his property. He nominated PT as the person who had initially pursued the victim when the latter had attempted to get away. He did concede however that he had called out for ST to stop the car so that he could "beat up the victim". He said that he had decided "to roll" someone about half an hour before they had come upon the victim. He explained that expression to mean that he intended to "beat him up and take his stuff". He gave evidence that, since he had been seeing his girlfriend, his associates had been teasing him that he had been "under the thumb". His motivation for having committed the offence, he said, was his desire "to prove to the boys I hadn't changed" and that he was just as tough as he had always been. The sentencing judge found as a fact that the versions provided to the police by PT and ST were an accurate reflection of what had occurred. 10In relation to the applicant's version of events, her Honour found that "this was a premeditated assault upon an innocent young boy to prove he was still 'King C'. It was instigated by him, it was his blow to the victim's jaw which fell (sic) the victim. Contrary to his evidence I find he did kick the victim as he lay on the ground and it was [PT] who stopped the assault contrary to what this offender would have this court believe." There is no challenge in this Court to her Honour's findings concerning the factual basis upon which the applicant stood to be sentenced. 11Her Honour then addressed the subjective aspects of the applicant's case. The applicant is the youngest of 9 children. He was born in New Zealand but moved to Australia with his family in April 2007. His formative years were unremarkable other than for the fact that, sadly, an older brother had committed suicide. The applicant began consuming alcohol at the age of 16. Although his attendance at school was at times less than satisfactory, there was evidence that, in the period whilst he was on bail, he had been attending a youth services centre in an endeavour to further his studies. The pastor of the local church which he had attended provided the applicant with a letter of support. 12Her Honour allowed the applicant a discount of 15% on account of his plea of guilty which was entered upon his arraignment in the District Court. She also acknowledged that he came before the court as a person without any prior convictions. 13Her Honour then had regard to the sentence which had been imposed upon JT. But for the fact that her Honour found that the applicant had instigated the attack upon the victim, she otherwise saw no reason to distinguish their roles in the commission of the offence. Her Honour however recognised that, unlike the applicant, JT had a criminal record and that he had been on conditional liberty at the time of the offence. On the other hand, JT's plea of guilty which was entered at an early stage had attracted a discount of 25%, and there were a number of other matters which served to moderate his sentence, that did not arise in the applicant's case. 14The applicant relied upon the following grounds of appeal: 1 Her Honour erred by finding that there was a total lack of remorse and contrition shown by the offender. 2 Her Honour erred in failing to have regard to the principles in s 6 of the Children (Criminal Proceedings) Act 1987 and the principles governing the sentencing of juvenile offenders. 3 Her Honour erred in imposing a sentence that was manifestly excessive in all the circumstances. Ground 1 15In order to consider this ground, it is necessary to refer to the evidence which was before the sentencing judge in relation to the issue of remorse. In a Juvenile Justice Background report dated 25 November 2009 under a heading entitled "Victim Empathy", the author observed that: [SJ] expressed remorse for his actions when asked to reflect on his involvement in the offence. He was able to recognise that the victim would have experienced " fear and pain ", and that he would have been " frightened and scared" . [SJ] also acknowledged that the victim may continue to experience these feelings and therefore may be " scarred for life" . Whilst there is obviously room for further development of the concept of victim empathy, [SJ's] ability and willingness to engage in the initial steps of this process is encouraging. 16During the sentence hearing the following exchange occurred whilst the applicant was giving evidence: Q Tell her Honour how you feel about his incident? A I really regret this incident. HER HONOUR Q Why? Because of the trouble you're now in or because of what you did to the victim? A Because of I what did to the victim and the state he was left in. 17In an updated Juvenile Justice Report dated 3 February 2010 the following appears: [SJ] informed this author that he has had a lot of time to think about his actions relating to this offence and views the offence as a 'waste of time' and 'not worth being in custody' for. From telephone interviews with the young person, it appears that the offence was financially motivated. [SJ] has been able to express that if it was his brother who was the victim of such an offence, he would be angry and he can only imagine how the victim's parents would feel. [SJ] further went on to say that he thought the victim would be 'scarred for life' and that he would be unlikely to be out alone by himself in the future. 18In her remarks on sentence, her Honour said that the applicant "comes before this court as a young person facing a very serious criminal charge who has not shown one iota of remorse or contrition despite what others may say". Her Honour also said: In the opinion of the Juvenile Justice Officer the offender retains a perception or need to protect his social status and street reputation. The offender had spoken of an involvement in boxing up until the age of fourteen, he also spoke of a perception that others wished to fight him because of his size. When interviewed he spoke of some understanding of the fear and pain his victim would have felt and that his victim might be scarred for life. The Juvenile Justice Officer was of the view that there was room for further development of the concept of victim empathy. Certainly by the time he gave evidence he had lost any such victim empathy. He was not the respectful engaged personality described by Juvenile Justice in court but rather an arrogant and belligerent young man who seemed all too pleased with himself and prepared to boast about his conquest as he saw it. 19A little later, her Honour observed: In the most recent Juvenile Justice report, which was made available for this sentence today, the officer as a consequence of speaking with the offender was of the opinion that the offence was "financially motivated". If his evidence on oath is to be accepted nothing could be further from the truth. From that report it is clear he still has simply no understanding of the seriousness of the offence he has committed or the condemnation in which he is held by this court and no doubt the community at large. It is simply extraordinary that he describes his offending behaviour as "a waste of time" and "not worth being in custody". That shows a complete lack of incite [sic] on his part and a total lack of genuine remorse or contrition. It demonstrates someone who considers being placed into custody an inconvenience rather than a punishment for the crime committed, a very very serious crime. ... I am not persuaded that the offender is truly remorseful and contrite despite the opinion of the Juvenile Justice Officer. As I have said his demeanour and behaviour in court was clearly to the contrary. The contents of his conversation to the Juvenile Justice Officer in more recent times confirms the view I have already formed. 20It was submitted that those findings were not open to her Honour in light of the material that had been placed before her at the sentence hearing. It was submitted that the sentencing judge had allowed her view, that PT and ST had resiled from their original statements in an attempt to benefit the applicant, to infect her judgment when she was considering the issue of the applicant's remorse. 21The starting point for a consideration of this ground is s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 which lists as a mitigating factor: the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledge any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) 22The onus of establishing remorse as a mitigating factor rests with the applicant on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270. 23As the assessment of whether or not the applicant had satisfied the statutory requirement involved a exercise of judicial discretion, the applicant must demonstrate error of the kind identified in House v The King (1936) 55 CLR 499 in order to succeed on this ground: R v Baker [2000] NSWCCA 85, per Spigelman CJ [at para 11]. In my view, the applicant has failed in that endeavour. 24It is true, as counsel for the applicant pointed out, that there were a number of references during the course of the proceedings to the reluctance of the two witnesses to give evidence. There were also several robust comments passed by her Honour which raised the spectre that the witnesses had been intimidated. Nevertheless, her Honour did not, in terms, make an actual finding that the applicant had been responsible for any such intimidation as there may have been. In any event, the sentencing judge's conclusion was not solely based, as I read her Honour's remarks, upon the circumstances in which the two witnesses sought to resile from what they had originally told police. 25Indeed, there were a number of features of the case that enabled her Honour to come to the conclusion which she reached. First, there was the fact that the applicant had lied in his initial interview to police. Indeed, a reading of the interview reveals that he had demonstrated a degree of callousness towards the victim at that time. Secondly, the evidence which he gave at the sentence hearing was designed to minimise the extent of his involvement in the offence. Moreover, by then, over a year had passed since the time of the offence and accordingly, the applicant had had plenty of time within which to reflect upon the incident. There was nothing to suggest, from the tenor of his evidence, that he had "accepted responsibility for his actions" in any meaningful sense. Thirdly, her Honour had the advantage of observing the applicant both whilst he was in the dock and whilst he was giving his evidence. It is apparent from her Honour's remarks, to which I referred earlier, that he created a less than favourable impression. In the circumstances, her Honour was perfectly entitled to discard the applicant's expression of regret in the witness box. Indeed, in Alvares v R [2011] NSWCCA 33 I said, with the concurrence of the other members of the Court: ...a sentencing judge is not bound to accept assertions by an offender that he is remorseful, even when that assertion is made in the witness box: R v Stafrace ( 1997) 96 A Crim R 452. Nor will what Simpson J described, in Pham v R [2010] NSWCCA 208 [at para 33], as "the often ritual incantation of remorse and contrition" be automatically accepted by a sentencing judge . [at para 65] 26Fourthly, the only other material upon this issue was what was contained in the Juvenile Justice reports. The author of those reports was at something of a disadvantage in evaluating the genuineness of the applicant's expression of remorse because it was not possible to provide her with a copy of the facts surrounding the offence because they were in dispute. In any event, there is a consistent line of authority concerning the caution which should be exercised by a court in evaluating material of that kind. See Alvares (supra) at paras 49-52. 27Counsel for the applicant also referred to her Honour's remarks concerning the contents of the updated Juvenile Justice report, and in particular, to the applicant's observations that he viewed his offence as being a "waste of time" and "not worth being in custody for." It was submitted that those comments represented "a genuine, if inarticulate and immature, expression of remorse by the applicant." It was also submitted that her Honour had "misconstrued" the remarks attributed to the applicant and had, accordingly, fallen into error. It should be observed that when the updated report was tendered, her Honour had specifically invited the parties to address upon any aspect of the report that they saw fit to raise. Neither party availed themselves of that opportunity. 28I am prepared to accept that the applicant's remarks, when considered in isolation, may be somewhat ambiguous and thus open to different interpretations. Nevertheless, when regard is had to the totality of the evidence upon this issue, I am not persuaded that error has been demonstrated with the consequence that this ground of appeal should be rejected. Ground 2 29The first proposition upon which the applicant relied in support of this Ground, was that her Honour erred in not referring, either expressly or impliedly, to s 6 of the Children (Criminal Proceedings) Act 1987 which is in the following terms: A person or body that has functions under this Act is to exercise those functions having 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, (f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties, (g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim. 30It was also submitted that her Honour had fallen into error in failing to refer to authorities such as KT v R (2008) 182 A Crim R 571 and BP v R (2010) 201 A Crim R 379. Reliance was placed upon the observations of Rothman J, with whom the other members of the court agreed, in R v LNT [2005] NSWCCA 307: In the sentencing of a particular offender, it is unnecessary for a sentencing judge to set out all of the cases which have dealt with the principles. Further, it is unnecessary for the sentencing judge to deal at length with the balancing exercise dictated by the principle or whether, because of the findings of fact, the offender should be treated as an adult in all respects. However, the absence of any remark that the offender is being treated, if it be the case, in all respects, as an adult, is, to say the least, problematic. Further, if the references to age of the applicant by the sentencing judge were intended to be the consideration of the applicability of the principles relating to child offenders, one would expect some mention of the process. The absence of any reference to the principles associated with the sentencing of young offenders in the remarks on sentence is sought to be countered by the Crown submission that the principles were put to his Honour by counsel for the applicant below and, quite separately, that his Honour did refer to the age of the applicant. The mere fact that his Honour was addressed on the principles associated with the sentencing of young offenders, but did not refer to them or to the fact that he had taken them into account, does not, of itself, suggest that his Honour did take account of such principles. ... An analysis of the remarks on sentence does not indicate any consideration by his Honour of the principles associated with sentencing minors or juvenile offenders, or whether such principles ought, or ought not, be applied. [at paras 34, 35 and 37] 31It may be accepted at once that her Honour did not refer, in terms, to the important principles enunciated in s6 of the Act. It would have been preferable had her Honour done so. However, I am not persuaded that her Honour overlooked or, in some other fashion, ignored the sentencing principles which govern the sentencing of young offenders. Indeed, her Honour referred to the applicant as "the young person". Moreover, she determined that he would be detained in a juvenile detention centre until he turned 21. Her Honour also observed that: [h]is prospects for rehabilitation will largely depend upon him developing insight into his offending behaviour and demonstrate a willingness to continue with his education, obtain employment and choose better friends... He is of course still relatively young and rehabilitation remains of paramount consideration. He is being dealt with at law due to the serious nature of the crime committed by him. ... Street violence is a significant problem. It is often committed by young men seeking to earn a reputation and it will not be tolerated whatever the motivation might be. General deterrence still looms large despite the age of the offender. 32In my view, those observations provide a very strong indication that her Honour was well aware of the relevant principles that are to be applied when sentencing a young offender for an offence involving serious violence. Moreover, her Honour's remarks demonstrate that the circumstances of the present case are somewhat removed from those which prevailed in LNT (supra). 33It was also submitted "that her Honour's finding that the offence was instigated by the applicant to prove his worth to his mates bespeaks a lack of adult emotional maturity and impulse control on the part of the applicant which her Honour failed to address". 34A similar submission was addressed by this court in JT (supra). Hoeben J, with whom the other members of the court agreed, observed: I am not persuaded that this is the sort of offence which indicates impulsivity and immaturity on the part of the applicant so that the need for rehabilitation should be given paramount consideration. Rather, this is the very sort of offence that McClellan CJ at CL had in mind when qualifying his initial statement of principle in paras [24] and [25] of KT v Regina . This is the sort of case where general deterrence and retribution cannot be ignored. The bashing of a 14 year old child into insensibility during the course of a prolonged attack by two significantly older youths is very much the sort of crime of violence and considerable gravity which his Honour had in mind. ... Similar observations were made by Dunford J in R v MA [2004] NSWCCA 92 where his Honour said: "28 ... There comes a point at which the seriousness of the crime committed by a young offender, particularly if a crime of violence, is so great that the special attention normally given to rehabilitation in the case of young offenders must give way, and greater emphasis given to punishment and deterrence. The relevant principle was summarised in the joint judgment of this Court in R v AEM Snr and Ors [2002] NSWCCA 58 at [97] - [98] as follows: "It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation.... However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society."" In R v Pham and Ly (1991) 55 A Crim R 128, Lee CJ at CL said at p 135: "It is true that courts must refrain from sending young persons to prison unless that course is necessary. But the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal courts' function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes." [at paras 34-7] 35That reasoning, in my view, is equally apposite to the present case even allowing for the fact, as his Honour noted, that JT had an extensive criminal history. 36I would reject this Ground of Appeal. Ground 3 37It appeared to be common ground that her Honour's starting point, before allowing the applicant a discount fo 15% for his plea of guilty, was a sentence of 7 years imprisonment. In advancing the submission that the sentence imposed was manifestly excessive, counsel for the applicant relied upon this Court's decision in MW v R [2010] NSWCCA 324, a case in which a young offender, aged 17 years and 8 months, had committed an offence of aggravated robbery with wounding. Simpson J, with whom the other members of the court agreed, observed that: As I have mentioned above, the sentence ultimately imposed incorporated a reduction of 35 per cent in recognition of the plea of guilty and assistance to authorities. That translates to a starting point, therefore, of 5 years with a non-parole period of about 2 years and 8 months. For an older offender, with a lengthier criminal record, that sentence would be well within the range. I have come to the view that, having regard to the applicant's youth, his relatively benign criminal record, and his personal circumstances, the sentence was manifeslty excessive. [at para 56-7] 38In written submissions, counsel for the applicant contended that: It is submitted that the objective criminality of the offending behaviour in that case is comparable with this matter. Given that the age and antecedents of the applicant entitle him to more favourable consideration than the successful applicant in that matter we submit that despite the differences in the cases and the limitations on how useful comparison with any individual case may be that this decision supports the submission that the applicant's sentence is manifestly excessive. 39I am not persuaded that the submission should be accepted. First, Simpson J was not purporting to establish a range for all offences that fall within the category of aggravated robbery with wounding. Her Honour's remarks were confined to the facts of that particular case which were quite different to the present case. Secondly, the applicant's contention falls to be considered in the light of a consistent line of authority to the effect that "care must be taken...in using what has been done in other cases". See Hili and Jones v R (2010) 272 ALR 465 [at para 53]; R v Morgan (1993) 70 A Crim R 368. 40This was, on any view, a most serious offence of its kind. It was committed late at night upon a vulnerable young victim in the presence of his 11 year old brother, by a very powerfully built young man who, at the time, was in the company of another young offender. Notwithstanding the applicant's youth, his lack of prior convictions and his plea of guilty, I am not persuaded that this ground of appeal should be upheld. 41I propose that the time within which to seek leave to appeal should be extended, that leave should be granted but that the appeal should be dismissed. 42BATHURST CJ : I agree with the orders proposed by Buddin J and with his reasons. 43HARRISON J : I also agree. 44BATHURST CJ : The orders of the court accordingly will be: 1 Extend the time for seeking leave to appeal up to and including 6 May 2011. 2 Grant leave to appeal. 3 Dismiss the appeal.