Blanco, Barker & Gibson, TJ v R

[2009] NSWCCA 99

New South Wales
Court of Criminal Appeal

CITATION:	TJ v R [2009] NSWCCA 99
HEARING DATE(S):	19 March 2009
JUDGMENT DATE:	8 April 2009
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 26; Howie J at 32
DECISION:	By majority: Grant leave to appeal but dismiss the appeal.
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - particular offences - aggravated robbery (in company) - proportionality with sentence of juvenile co-offender - delay in sentencing - juvenile offenders
LEGISLATION CITED:	Crimes Act 1900 Children (Criminal Proceedings) Act 1987
CATEGORY:	Principal judgment
CASES CITED:	R v BB (2005) NSWCCA 215R v Blanko (1999) NSWCCA 121 R v Colgan [1999] NSWCCA 292 R v Ellis and Carr [2002] NSWCCA 21 R v Todd (1982) 2 NSWLR 517
PARTIES:	TJ (Applicant) The Crown
FILE NUMBER(S):	CCA 2007/13816
COUNSEL:	A Francis (Applicant) M Grogan (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/13816
LOWER COURT JUDICIAL OFFICER:	Lakatos DCJ
LOWER COURT DATE OF DECISION:	19 December 2008

2007/13816

McCLELLAN CJ at CL
SIMPSON J
HOWIE J

WEDNESDAY 8 APRIL 2009

TJ v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to one offence of robbery in company, aggravated by the infliction of grievous bodily harm, contrary to s 98 of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment. The applicant was sentenced to a non-parole period of 6 months with a balance of sentence of 15 months. The sentencing judge made a finding of special circumstances and by reason of the applicant’s age ordered that she be detained in a detention centre pursuant to s 19 of the Children (Criminal Proceedings) Act 1987.

2 The sentencing judge adopted and made findings in accordance with the statement of agreed facts in the following terms:

“At about 8.25 pm on Friday 8 December, the two young offenders, [TJ] and [PH], along with a third, [KT], arrived at the Roseville Railway Station. At about 8.30 pm on that date, the victim, who was then aged nineteen, also arrived at the railway station and walked onto the platform and purchased a ticket, intending to go in the direction of the city.
The victim noticed the three young offenders on the platform. She was approached by [KT] and asked for money to make a phone call. She gave that person some money. [KT] then went away and a short time later [TJ] approached the victim and sat down beside her. [TJ] engaged the victim in conversation concerning borrowing her phone. There was discussion about that matter. There was then discussion about the victim’s intentions for that evening relating to the going to a twenty-first birthday party and the young persons here in question asked if they could accompany her. The victim refused them that request.
Shortly thereafter the victim moved away from the two young offenders. [TJ] and [KT] followed her and stood in front of her. They were joined by [PH]. Without any warning, [TJ] punched the victim on the right hand side of her face, just below her eye, with her fist. The victim was then grabbed by the hair and shirt and dragged along the platform. She was slapped, punched and kicked by [TJ] and [KT] and at one point fell to her knees.
When she was on her knees, [PH] approached and kicked her and then punched her to the head before removing her iPod. [TJ] then removed a handbag which contained the victim’s wallet, containing some twenty dollars in cash, a drive’s licence and a mobile phone. The three young offenders ran along the platform and left the station. The incident was captured on closed circuit television cameras.
The victim got to her feet and walked up to the railway bridge where she borrowed some money and called her mother. The police and her mother arrived and the victim provided police with a description of the offenders.
At about 3 am, a police officer patrolling in the Chatswood area, came across the three young offenders. In the event he merely took their particulars and made a detailed note of the clothes they were wearing. At about 5.30am that morning the same police officer viewed the television footage and recognised the three young offenders.
About 7.40 pm that evening, the police officer attended at Pinaroo Place, Lane Cove with the intention of arresting the young offender [TJ]. Upon arrival he found the young persons [KT] and [PH] sitting in the gutter in the street. Both were arrested. He then attended at [TJ’s] residence. She was also arrested. All were conveyed to the Chatswood Police Station and the parents of [TJ] and [KT] were contacted and attended, whilst a youth worker was arranged for [PH].
Each of the young offenders were shown the footage and subsequent to obtaining legal advice, each declined to take part in a record of interview, although [TJ] did make a brief statement to the police, to which I will later refer.
On 14 December, that is some six or so days later, the same police officer went to [PH’s] home in Chatswood. She was not present. He removed some items of clothing from her home, which he recognised to be that shown on one of the figures on the CCTV footage. On the same day he attended at [TJ’s] premises at Lane Cove. She was not there. Her father allowed him access to a bedroom and he could not find any useful evidence, however the following Saturday and Sunday, [TJ] attended at the Chatswood Police Station and handed in a number of items of clothing.
As a result of this incident on 8 December, the victim was taken by her mother to the Chatswood Medical Centre where she was treated for injuries to her head, swelling and bruising to her face, a sore neck and grazes to both knees. She was diagnosed with a fractured and depressed cheek bone which required surgery. On 15 December 2006 Dr Younessi, an oral and maxillofacial surgeon performed a procedure on the victim which required the stabilisation of the broken jaw and the placing of two plates and screws in that young lady’s face.
On 5 April the police prosecutor accepted a plea made on behalf of [KT] to aggravated robbery under s 95. As I have indicated, the learned magistrate at the Hornsby Children’s Court recorded no conviction and imposed a nine month suspended sentence.
The proceedings involving the two offenders were subsequently referred to the Director of Public Prosecutions and offers of pleas to the aggravated robbery under s 95 were made on behalf of each but rejected and the matters were committed for trial to the Sydney District Court in September of last year. On 22 October last year the Director of Public Prosecutions found a bill against both young persons for the count to which they have now pleaded guilty. On 13 December 2007 that matter was fixed for trial on 2 June 2008.
At the time of the offence, [TJ] was aged thirteen years, [PH] was aged fourteen years and [KT] was aged fourteen years.
I have read the reports and heard the evidence given by [PH] before me, that at the time of the offence both offenders were well affected by alcohol, although it appears that their motor skills in carrying out the attack were not noticeably affected. The effect of alcohol in my view, is a relevant matter to the objective seriousness of the offence in that it warrants a conclusion which I do make, that the offence was not deliberate, but impulsive and was essentially a result of the reduced inhibitions caused by excessive alcohol and perhaps drug intake.
The gravity of the attack by both young persons and [KT] cannot be fully appreciated without viewing the CCTV footage. In accepting the limitations of no sound and poor quality pictures, it discloses an attack by three persons on one person who vainly attempts to protect herself. The attack was unprovoked and its level and intensity were unnecessary to achieve the objective of robbing the victim. The initiator of the physical confrontation was [TJ] who appears on the CCTV footage without warning to deliver more than one blow with a closed fist to the victim’s face. The others then joined in. Although [TJ] was clearly the instigator or initiator of the physical violence against the victim, I consider that the culpability of each of the three offenders, in particular the offenders before this court, was equal. [PH] and the other co-accused did not try to stop [TJ], nor distance themselves from the attack. Rather each of them joined in and themselves punched and kicked the victim.”

3 The co-offender KT was convicted of an offence contrary to s 95(1) of the Crimes Act for the offence of aggravated robbery. The maximum penalty for that offence is 20 years imprisonment. She was also convicted and sentenced for the offence of assault with intent to rob in breach of s 94 of the Crimes Act which carried a maximum penalty of 14 years imprisonment. The Local Court magistrate imposed a control order for a period of 9 months for the s 95 offence which was suspended. A bond to be of good behaviour for 18 months was imposed with respect to the s 94 offence. The magistrate dealt with KT pursuant to the Children (Criminal Proceedings) Act 1987 and not according to law. Although KT was dealt with for a different offence the sentencing judge in the present matter nevertheless had regard to the approach taken in the Children’s Court. However, because they were dealt with for different offences, under a different sentencing regime, parity considerations are diminished (see R v Colgan [1999] NSWCCA 292).

4 PH was sentenced to a non-parole period of nine months with a balance of sentence of one year and three months.

5 The applicant was aged 13 at the time of the offence. Her life had not been easy. Prior to being sentenced she had been dealt with for some minor offences including a shop lifting offence.

6 The applicant is one of five children and, at the time of the offence, lived with her father and two of her brothers. Her mother died of cancer in 2003 when she was ten years of age. His Honour accepted that “there was enormous grief which was occasioned to her at such a young age for the loss of her mother.” She moved for a time to stay with her uncle but became involved with illicit drug taking and moved back to be with her father. Her father is suffering from diabetes and has bowel cancer. The applicant attended high school in Woolwich but was removed due to truanting, drug abuse and aggression towards her teachers. Notwithstanding her difficulties her teachers considered her to be ‘an excellent student leader’. She later went to Chatswood High School and then to a Christian School in Mt Druitt.

7 Since January 2008 the applicant was employed within the CBD and earned between $400 to $500 per week. The sentencing judge recorded that she had run up some $5,000 in debt in transit or traffic infringements but to her credit had repaid $2,000 of this amount. His Honour said “it seems to me the fact of her getting a job and the fact of her attending to those responsibilities reflect positively for her rehabilitation prospects.”

8 A psychologist’s report was tendered. It confirmed that the applicant has been a loner with difficulty associating with people. She ultimately became mixed up with a number of gangs and became involved in negative behaviour through these acquaintances. However, by the time she was sentenced the sentencing judge was satisfied that she had broken off those associations and was determined to change her behaviour.

9 The applicant has a long history of poly substance abuse which commenced at twelve years of age. She became a heavy daily user. She went to a rehabilitation program in 2006 and 2007 and his Honour was satisfied has been able to cease most of her drug use since around this time. She has not used illicit drugs since December 2007 and her alcohol use has moderated.

10 The sentencing judge accepted that the offence was committed on impulse and was greatly influenced by the excessive amount of alcohol and, perhaps, drugs that she had taken. His Honour accepted that the applicant was truly remorseful and determined that a discount of 20% was appropriate for the plea of guilty. His Honour was mindful that neither offender had a previous criminal history.

11 His Honour gave careful consideration to the circumstances of KT and to the sentence which had been imposed on her. His Honour said:

“Much of the time in the sentencing hearing was taken up with a number of legal issues. The offenders in the present case were fourteen years and thirteen years of age at the time of the offence and are now respectively sixteen and fifteen years of age. They were undoubtedly young when the offence occurred and by this fact, the case raises issues regarding the principles to be applied to young persons, the principles of parity and whether the latter consideration is affected by reason of the fact that the co-accused, [KT], was dealt with in the Children’s Court and for a lesser offence. This has led to the undesirable result that this Court is required to deal with essentially the same factual criminality according to law, but in respect of a more serious charge than that which [KT] had to face.
In my view, the following principles of parity apply. Firstly where there is a degree of disparity so as to invite a reduction of sentence, it is not necessary to effect such reduction if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved. Secondly a stage can be reached at which the inadequacy of the sentence imposed on the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one. Discrepancy of itself is never a sufficient warrant for a court to intervene in terms of parity. The discrepancy must be unjustifiable and the test is an objective one.
The underlying principle however is that a court should not act upon the principles of parity if the result would be to reduce the sentence to that which would be inappropriate for the offence in question. The authorities have noted that unequal treatment before the law and lack of parity in like cases, brings the administration of justice into disrepute, but so too does the imposition of a sentence which is inappropriately low for the offence and the offender in question.
A number of authorities were proffered to me in relation to how a court should deal with a situation where one co-accused is dealt with in the Children’s Court under a different regime and others are dealt with as if they are adults in a court such as this. The principles which I must apply appear to state that whilst that does not mean that necessarily a similar result should ensue, it is relevant for this Court to have regard to that which the Children’s Court has done to a co-offender.
Finally in my view the following principles apply in relation to sentencing of youthful offenders. Section 6 of the Children (Criminal Proceedings) Act of 1987 provides the legislative guidelines that a court should take into account. In my view relevantly guidelines (b) to (e) apply; firstly that whilst children who commit offences bear responsibility for their actions, the court must give adequate weight to their state of dependency and maturity and their necessity to be guided and assisted. It should wherever possible allow the education and employment of children to proceed without interruption. It should wherever possible allow a child to reside at his or her home and it should impose a penalty which is no greater than that imposed upon an adult who commits an offence of the same kind.
The principles which are set out in the authorities and in particular the authority of KT v The Queen [2008] NSWCA 51; which is a case containing a useful summary, indicates that when dealing with youthful offenders, considerations of general deterrence and principles of retribution are of less significance. Next, the law must and should recognise the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Notwithstanding those matters, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. Next the courts have stated that sentencing judges and 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 in their teens must be kept steadfastly in mind, otherwise the protective aspect of the criminal courts’ function will cease to operate. Finally the younger the offender, the greater the weight to be afforded to the element of youth.”

12 It is apparent that his Honour concluded that principles of parity did not apply in the “strict sense” but he nevertheless had regard to them in what he described as a “de facto sense.” His Honour considered the findings in the Children’s Court but concluded that the facts before him justified a significantly more serious view of what occurred than the view expressed by the magistrate. For that reason his Honour concluded that a sentence “other than one of full time custody would be inappropriate for the offence and the offender.”

13 The applicant sought to raise only one ground of appeal being:

The sentencing judge erred by failing to impose upon the applicant a sentence proportionate to that imposed upon her juvenile co-offender.

14 The applicant’s counsel accepted that the sentencing judge was obliged to make his own assessment of the objective gravity of the offending but submitted that, when determining the appropriate sentence, his consideration should have been tempered by the “lenient and proper, outcome of the sentence imposed upon the co-offender.” The applicant emphasised that there is authority for the proposition that a sentence imposed in a children’s court is a relevant consideration in relation to a sentence imposed on a co-offender in an adult court. (R v Colgan [19991] NSWCCA 292 and R v Ellis and Carr [2002] NSWCCA 21). It was submitted that because the sentence imposed upon the applicant was so significantly greater than that imposed upon KT that the principles reflected in these decisions had been disregarded.

15 In my judgment the submission must be rejected. The sentencing judge was careful to identify the circumstances of the offence and the role of each offender. His Honour found that the initiator of a physical confrontation was the applicant who without warning delivered one, or more blows, with a closed fist, to the victim’s face. The other offenders then joined in. Although the matter is not clear it would seem likely that it was because of the applicant’s role in the offence that the Crown elected to charge her with an offence contrary to s 98 and have the matter dealt with in the District Court.

16 In these circumstances the offending of the applicant was more serious than that of her co-offenders. Bearing in mind that the sentencing judge was required to sentence her for an offence contrary to s 98 there was no error in imposing a more significant penalty than that imposed on KT. His Honour carefully considered the position of each offender, and notwithstanding the youth of the applicant, determined that a term of full time custody, although moderate, was required.

A further matter

17 Apart from the issue of proportionality there is one matter which has caused me concern. Although the offence was committed on 8 December 2006 the applicant’s trial was not due to begin until 2 June 2008. She was sentenced on 19 December 2008. The delay, which is unusual, is partly explained by negotiations with the Crown over whether a plea which the applicant offered to a s 95 count would be accepted. However, following the entry of the plea of guilty the matter was stood over for sentence to 24 July 2008. On that day the question of parity was raised and because the sentencing remarks in relation to KT were not available the matter was adjourned until 22 August 2008. Because of the sentencing judge’s commitments the hearing did not proceed on that day and the applicant was not sentenced until 19 December 2008.

18 By the time the applicant was sentenced her conduct since committing the offence suggested that she had begun to understand the serious nature of the offence she had committed and had taken steps to provide structure to her life. She had not come to the attention of the authorities for any further offence. Notwithstanding the difficulties in her early life there were indications that she was making efforts to bring real change.

19 When there has been a lengthy delay between the apprehension of a person and their sentencing fairness to the offender may require weight to be given to the personal stress occasioned by the delay and the progress which the person may have made towards his or her rehabilitation at the time of sentencing. If the delay is such that the offence would be considered a “stale crime” considerable leniency may be appropriate (see R v Todd (1982) 2 NSWLR 517 at 519). In R v Blanko (1999) NSWCCA 121 Wood CJ at CL said at [16]:

“The reason why delay is to be taken into account in sentencing an offender relates to first to the fact of the uncertain suspense in which the person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach.”

20 It is accepted that delay “which may have little impact upon the sentencing of an adult offender, may be of more significance when sentencing a juvenile” R v BB (2005) NSWCCA 215 at [27].

21 The grounds of appeal did not contain any complaint about his Honour failing to appropriately consider matters of delay although when raised by the court during argument the point was immediately taken up by the applicant’s counsel.

22 It is apparent from his Honour’s remarks that he did consider the issue of delay when determining the appropriate sentence. His Honour said:

“I have also had regard to the protracted nature of these proceedings and the effect that it must have had on both young offenders, noting however that the delay is not attributable so as far as I can gauge to the Crown, but rather the way in which the proceedings were conducted by both parties.”

23 Although this issue has caused me to hesitate I have ultimately concluded that the appeal must fail. His Honour was mindful of the delay and its potential impact on the applicant and her co-offender. Although his Honour did not refer to the progress which the applicant had made from the time of her offending until sentence the offence was serious and I am satisfied that even after having regard to those matters a period of full time custody was appropriate. Before the appeal could succeed the applicant would have to show that the sentence was excessive to the point of error. In my opinion this is not the case.

24 However, it is appropriate that I should indicate that when young persons are facing sentence it is important that the proceedings be disposed of efficiently. Where a person at a young age is facing the prospect of fulltime custody for the first time the sense of apprehension will in most persons be considerable. The criminal justice system must acknowledge this possibility and, even if it means that other matters may be slightly delayed or additional sitting hours are required, every effort should be made to dispose of the matter as soon as possible.

25 Although I would grant leave to appeal the appeal should be dismissed.

26 SIMPSON J: I have read in draft the judgment of McClellan CJ at CL.

27 I am unable to agree that the appeal ought to be dismissed.

28 Four significant factors have propelled me towards this conclusion. The first is the almost extreme youth of the applicant at the time of the offence. The second is her personal circumstances, that is, her history of personal family tragedy. The third is the lengthy delay in bringing the proceedings to conclusion. The fourth is that the consequence of that delay was significant, if not complete, rehabilitation achieved by her during that long period.

29 Although, as the Chief Judge has pointed out, the sentencing judge did have regard to all of these factors, in my opinion the sentence that resulted did not adequately take them, in combination, into account. In particular, the delay of 2 years (taken together with the rehabilitation achieved during that time) was such as not only to warrant, but, in my opinion, demand, a shorter sentence. Indeed, notwithstanding the plain gravity of the offence, in my judgment a non-custodial sentence would not have been manifestly inadequate.

30 Although I recognise the divergences between the circumstances of the appellant, and those of the co-offender, KT, the disparity in treatment was marked.

31 In my opinion the orders that ought to be made are:

(1) Leave to appeal granted;
(2) Appeal allowed, sentence imposed in the District Court quashed;
(3) In lieu thereof the applicant be sentenced to imprisonment with a non-parole period of 3 months, commencing on 19 December 2008 and expiring on 18 March 2009 with a balance of term of 12 months, expiring on 18 December 2009.

32 HOWIE J: I agree with McClellan CJ at CL.

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