C-P v R - [2009] NSWCCA 291

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
C-P v R [2009] NSWCCA 291

FILE NUMBER(S):
2008/7442

HEARING DATE(S):
30 October 2009

JUDGMENT DATE:
11 December 2009

PARTIES:
C-P (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Fullerton J McCallum J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/470

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

LOWER COURT DATE OF DECISION:
28 November 2008

COUNSEL:
G Brady (Applicant)
S Dowling (Respondent)

SOLICITORS:
Brenda Duchen (Applicant)
S Kavanagh (Respondent)

CATCHWORDS:
SENTENCING – armed robbery – accessory after the fact – concealing a serious indictable offence – appropriateness of offences listed on Form 1 – supervisory role of the court in relation to Form 1 offences
SENTENCING – whether sentencing judge gave sufficient weight to uncontested evidence of psychologist – sentencing judge rejected uncontested expert evidence that offender was of low intelligence
SENTENCING – whether sentencing judge properly considered s 6 Children (Criminal Proceedings) Act
SENTENCING – parity – no question of principle

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
DB v R [2007] NSWCCA 27
Eedens v R [2009] NSWCCA 254
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Postiglione v The Queen [1999] HCA 26; (1997) 189 CLR 295
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; 137 A Crim R180

TEXTS CITED:

DECISION:
(1) Leave to appeal granted.
(2) Appeal dismissed.

JUDGMENT:

- 14 -

IN THE COURT OF
CRIMINAL APPEAL

2008/7442
McCLELLAN CJ at CL
FULLERTON J
McCALLUM J
11 DECEMBER 2009

C-P v REGINA

Judgment

McCLELLAN CJ at CL: I have read the draft judgment of McCallum J. I agree with her Honour’s reasons and the orders she proposes. There is one matter which requires emphasising.
Under s 32 of the Crimes (Sentencing Procedure) Act 1999 a prosecutor may file a list of additional charges, being charges which an offender wants the court to take into account when sentencing for the principal offence. Section 32 is as follows:
“(1) In any proceedings for an offence (the "principal offence"), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.
(2)          A list of additional charges may be filed at any time:
(a)after the court finds the offender guilty of the principal offence, and
(b) before the court deals with the offender for the principal offence.
(3) A copy of the list of additional charges, as filed in the court, is to be given to the offender.
(4)          A list of additional charges:
(b)          must be signed by the offender, and
(c) must be signed by or on behalf of the Director of Public Prosecutions.
(5) A list of additional charges is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person:
(a)who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised, or
(b) who is prescribed by the regulations or who belongs to a class of persons so prescribed. “
Although an offender may make the request and a prosecutor may file a list of additional charges, before accepting the list and sentencing accordingly the sentencing judge must be satisfied that it is appropriate to do so. Section 33 of the Act is in the following terms:
“(1)When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.
(2)The court may take a further offence into account in dealing with the offender for the principal offence:
(a)          if the offender:
(i)           admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offender, and
(b) if, in all of the circumstances, the court considers it appropriate to do so.
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.
(4)          A court may not take a further offence into account:
(a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or
(b) if the offence is an indictable offence that is punishable with imprisonment for life.
(5)For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.
(6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account. “
In Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; 137 A Crim R180 the court considered the matter of offences on a Form 1 in some detail. Spigelman CJ said at [49], when discussing s 33(2)(b):
“(49)There is authority for the proposition that “serious charges” should normally be separately charged, rather than listed on a Form 1. (R v Vougdis at 132 per Yeldham J; R v Morgan at 371 per Hunt CJ at CL.) However, those authorities should be understood in the light of s33(4) which expressly provides that offences punishable by life imprisonment – and only such offences – may not be included on a Form 1. This provision was first introduced into the original s447B of the Crimes Act as subsection (7) by the Statute Law (Miscellaneous Provisions) Act No 1 of 1987. It contemplates the inclusion of serious offences on a Form 1.
(50)As long as the most serious offences or, in the case of similar offences, an appropriate range of offences, are included on the indictment, there is no objection to the inclusion of some offences on a Form 1. It would normally be inappropriate to include more serious offences on a Form 1, where the maximum sentence available for the offence on an indictment would be insufficient to allow for the total criminality revealed by the whole course of the offender’s conduct to be appropriately reflected in the sentence.
…
(57) Further, there is a balance to be struck between the number and gravity of charges on an indictment and the number and gravity of charges on a Form 1. A sentencing judge will find it difficult to undertake the statutory task if the number and gravity of the charges on the indictment do not appropriately reflect the total criminality of the whole course of criminal conduct revealed by the indictment and the Form 1.
(58) Subject to the agreement of the accused, in accordance with the statutory scheme, the determination of the appropriate balance is a matter for the Crown. This will generally occur in the context of charge negotiations between the prosecution and the defence.
…
(68) Striking the appropriate balance between overloading an indictment and ensuring that the indictment – leading to conviction and to sentence for, and only for, matters on the indictment – adequately reflects the totality of the admitted criminality, is primarily a matter for the Crown. The decision of the Crown in this regard will, no doubt, be guided by the determination in this case that, when matters are ‘taken into account’ on a Form 1, the sentencing judge does not, in any sense, impose sentences for those offences.”
In the present case the appellant was charged with three offences, two counts of armed robbery and one count of being an accessory after the fact to a serious indictable offence. However, there were eight additional offences included on a Form 1. One of these offences was an armed robbery that involved threatening a hotel manager at gunpoint and the robbery of approximately $38,000. Another Form 1 offence was the concealing of a further armed robbery of a hotel where a patron was shot in the stomach at close range. The list on the Form 1 also included the charges of possession of ammunition, knowingly dealing with the proceeds of crime, theft and use of a car, having suspected stolen goods in custody, and possession of a prohibited drug.
I appreciate that the ability of a court to take into account other offences allows an offender to emerge from the sentencing procedure with a clean slate. There is often a utilitarian value in the admission of guilt of further offences; see the discussion by Spigelman CJ in Re A-G’s Application at [62]-[64]. In Eedens v R [2009] NSWCCA 254 Howie J said at [19]:
“the sentence imposed for one offence even taking the other two offences into account, could not replicate the sentence that would have been imposed had the applicant been sentenced on all three charges. The use of the Form 1 meant that the sentence imposed could not, in my opinion, sufficiently reflect the seriousness of the totality of the applicant’s conduct nor could it properly denounce the fact that three children had been abused in the way that they were.”
It is the responsibility of the prosecutor to determine the offences to be listed on the Form 1. In making that decision careful consideration must be given to the seriousness of the offences as well as the number of offences to be listed. The Prosecution Guidelines emphasise that “the decision to place offences on a Form 1 should be based on principle and reason, not administrative convenience or expedience alone.” (pg 39) The guidelines continue, at page 40:
“The counts on indictment should reflect such matters as the individual victims, range of dates, value of property and aggravating factors. Where there are multiple offences…Generally speaking, the maximum penalty of offences placed on a Form 1 should be less than the maximum penalty available for the principal offence. An obvious exception to this is the situation where multiple counts for the same or similar offences (such as a series of counts for break, enter and steal or robbery) have been laid against an accused person.”
In as much as it is the prosecutor’s task to file the Form 1 it is important to emphasise that s 33(2) contemplates that the court must supervise the use of the Form 1 procedure. The court may take the further offence into account when the court considers it appropriate to do so. Although a court should recognise the many considerations which may inform a prosecutor’s decision to include matters on a Form 1, when an entirely inappropriate arrangement is proffered and because of it a court would be denied the opportunity to impose a proper sentence, the discretion provided by s 33(2)(b) should be invoked and the court should decline to accept the Form 1.
In the present case the inclusion of both an armed robbery offence and the concealing robbery offence on a Form 1 was in my view inappropriate. The number of offences and the serious nature of the armed robbery offences meant that the sentence imposed may not adequately reflect the seriousness of the totality of the appellant’s conduct. Sentencing judges should be careful to ensure that they exercise the supervisory role accorded to them by s 33(2)(b).
FULLERTON J: I agree with McCallum J.
McCALLUM J: The applicant seeks leave to appeal against the sentences imposed on him after he pleaded guilty to two counts of armed robbery and one count of being an accessory after the fact to a serious indictable offence (“carjacking” in circumstances of aggravation). Eight additional offences admitted by the applicant were taken into account by the sentencing Judge as allowed by s 33 of the Crimes (Sentencing Procedure) Act 1999.
The applicant was 17 years old when the offences were committed. He entered his pleas of guilty in the Children’s Court and was committed for sentence to the District Court.
The offences to which the applicant pleaded guilty were serious. The charge of being an accessory after the fact related to an incident when three young men in a car rammed the back of a BMW convertible. Following the collision, the driver of the BMW got out of her car to check for damage, leaving the engine running. The three men then got out of their car, all armed with large weapons (including a baseball bat). The woman screamed and ran away, whereupon the offenders took the BMW and fled, leaving their original car at the scene with the engine running.
The statement of agreed facts tendered at the sentence hearing does not allege that the applicant was one of the three men directly involved in the carjacking. The Crown’s written submissions provided to this Court state that he was, but I am unable to find any support for that contention. Rather, the basis for the charge against the applicant appears to be that he assisted the offenders after the commission of the offence by discussing with them how to disable a Global Positioning System (GPS) device installed in the BMW and by monitoring a television news broadcast in relation to the carjacking and discussing its contents with the offenders.
The first count of armed robbery related to an offence committed on 4 June 2007 when, according to the agreed facts, the applicant and two other young men “smashed” their way into the Royal Hotel at Ryde. The hotel was still trading and a number of patrons and staff were present. The three offenders were armed, respectively, with a self-loading pistol, a revolver and a wrench.
The offenders confronted staff and demanded cash from the cash register, the safe and the automated teller machine. The hotel manager informed the offenders that the safe could not be opened as it was fitted with a “time delay” mechanism. At that point, one of the offenders pointed a firearm at the manager’s head and demanded cash from the ATM. The manager was not able to open the ATM. The offenders took almost $2,000 from the cash register and left.
The second count of armed robbery related to an offence committed later the same evening when the applicant and two others forced their way into the Woolwich Pier Hotel. The hotel was closed for trading at that time and only members of staff were present. The offenders were again armed with two handguns and a wrench. In response to the offenders’ demands, the manager took them to the safe, which she opened, warning them that there was a ten minute time delay. They waited, holding the manager and other staff at gunpoint. After the safe opened, the manager gave them cash and retrieved the keys to the ATM, which she also opened. The offenders left with over $40,000 in cash.
The offences taken into account under s 33 of the Crimes (Sentencing Procedure) Act (on a “Form 1”) also included some very serious offences. One was a further offence of armed robbery committed by the applicant at the Gladesville Hotel on 27 May 2007 in circumstances similar to the armed robberies described above. The offenders were armed with guns and a metal baseball bat. They threatened the manager by pointing the guns towards his head and took approximately $30,000 from the safe and a further $8,000 from poker machines after threatening a staff member.
Another offence on the Form 1 was concealing a serious indictable offence, which related to a further armed robbery committed at the Phoenix Hotel on 10 May 2007. During the commission of that offence, a patron of the hotel swung a bar stool at the offenders and was shot at close range. He later recovered, but his injuries were serious. The offenders made away with approximately $19,000 from that offence. The applicant is not alleged to have been directly involved in the commission of that offence. The charge related to his role in concealing it.

The other offences on the Form 1 were possession of ammunition (relating to a small quantity of .22 calibre ammunition found at the applicant’s residence when a search warrant was executed); an offence of knowingly dealing with proceeds of crime arising from the applicant’s purchase of a car using $3,000 from the proceeds of the armed robbery at the Gladesville Hotel; the theft and use of a car from a carpark; an offence of having suspected stolen goods in his custody (an Apple Ipod) and an offence of possession of a prohibited drug (relating to a small quantity of amphetamine found in the applicant’s cell at Cobham Juvenile Detention Centre in November 2007).
The two offences of armed robbery were brought under s 97(2) of the Crimes Act 1900 and carried a maximum penalty of 25 years imprisonment. The offence of being an accessory after the fact to the carjacking carried a maximum penalty under s 350 of the Crimes Act of 5 years imprisonment.
The sentencing Judge discounted the sentences by 25% to reflect the utilitarian value of the pleas of guilty. The sentences imposed were, for the offence of being an accessory after the fact of carjacking, a fixed sentence of 2 years; for the armed robbery at the Royal Hotel, a non-parole period of 4 years with a balance of term of 3½ years and for the offence of armed robbery at the Woolwich Pier Hotel, a non-parole period of 3 years accumulated by 2 years with a balance of term of 3 years. Accordingly, the aggregate sentence was a total non-parole period of 5 years and a total sentence of 8 years. The additional offences listed on the Form 1 were taken into account in connection with the third count, the armed robbery at the Woolwich Pier Hotel.
The applicant identified three grounds of appeal. It is convenient to deal with grounds 1 and 2 together. They were:

“Ground 1

The learned Sentencing Judge erred in failing to give sufficient weight to the uncontested evidence, by way of the Forensic Psychologist Report of Alex Edgar, of the appellant’s limited cognitive ability and immaturity.

Ground 2

The learned Sentencing Judge misapplied the principles relevant to sentencing a child including:

(a)He failed to properly assess the extent to which the applicant’s immaturity, having regard to his age, background and limited cognitive ability, was a factor in the commission of the offences;

(b)He failed to have regard to s 6 of the Children (Criminal Proceedings) Act 1987;

(c)He failed to have proper regard to the principle that greater weight may be given to a child’s prospects of rehabilitation, at the expense of general deterrence.”

The forensic psychologist report referred to in ground 1 was tendered by consent at the sentence hearing. The Crown did not seek to cross-examine the psychologist and did not invite the sentencing Judge to reject any part of the psychologist’s report.

The report stated that the psychologist had conducted psychometric assessment of the applicant to measure his general intellectual functioning. On the strength of those tests, the psychologist assessed his intelligence as falling at the low end of the “borderline” range, that is, superior to only 2% of the community. She concluded:
“[The applicant] is a young man of limited cognitive ability and maturity. His self-reported unstable childhood and adolescence apparently led to his early exposure to anti-social behaviours and abuse, including illicit drugs and alcohol, mental health issues and a criminal sub-culture. As such his development trajectory would have been compromised such that he was likely vulnerable and under skilled.”

As noted in the Crown’s written submissions, much of the report focussed on the applicant’s prospects for rehabilitation. The psychologist predicted that, due to the applicant’s low level of cognitive functioning, intervention and treatment options would be limited. She recommended that he be placed within a juvenile facility to allow him greater access to education and training skills and to “lessen the possibility of him running the risk of either significant harm or recruitment by more sophisticated and deviant offenders”.
In his remarks on sentence, the Judge referred to the assessment and stated:
“He is regarded as having relatively low intelligence. He gave evidence before me. He did not appear to me to be unintelligent. The psychologists of course form their opinions as the result of tests. I can only form my opinion as a result of seeing somebody give evidence. He seemed to me to be a person who would come across as someone of average intelligence.”

As submitted on behalf of the applicant at the hearing of the appeal, that finding was made on the basis of very limited evidence given by the applicant. His evidence at the sentence hearing consisted largely of monosyllabic answers to questions posed by his counsel, and may be thought to have provided little opportunity for the Judge to assess the applicant’s intelligence. Ultimately, however, the evaluation of that evidence and that of the psychologist was a matter within the discretion of the sentencing Judge. It is not for this Court to substitute its own opinion for that of the sentencing Judge. In the context of the present appeal, the relevant inquiry is whether specific error is shown in the sense explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25]-[28]. An allegation of error by giving insufficient or undue weight to evidence must be determined by reference to those principles.
Counsel for the applicant acknowledged that it was open to the Judge to reject the evidence of the psychologist, even though it was unchallenged. He submitted, however, that the Judge’s own assessment of the applicant did not afford a reasonable basis for rejecting the evidence of the psychologist. That, however, is not sufficient to establish the kind of error which warrants appellate intervention. In any event, even assuming acceptance of the psychologist’s evidence, a different result was not mandated. I do not think that specific error has been shown in that respect.
Counsel for the applicant frankly acknowledged that the second ground of appeal rested heavily on the success of the first. The first complaint under ground 2 was that the sentencing Judge did not make any assessment of the applicant’s immaturity and its role in his commission of the offences. Once it is accepted that it was open to the Judge to reject the evidence of the psychologist, the basis for that complaint falls away.

Separately, it was contended on behalf of the applicant that the Judge failed to have regard to s 6 of the Children (Criminal Proceedings) Act 1987. Specifically, the applicant relied on the fact that the Judge imposed a greater sentence on the applicant than that imposed on his adult co-offender, Rajuel Khurana, for the armed robbery of the Royal Hotel. Mr Khurana received a non-parole period of 3 years with a balance of term of 3 years for that offence, compared with the offender’s sentence for the same offence of a non-parole period of 4 years with a balance of term of 3½ years.
The applicant acknowledges that the sentencing Judge did expressly refer to s 6 of the Children (Criminal Proceedings) Act and to the prominence of rehabilitation as a factor when sentencing children. The applicant submitted, however, that the Judge’s remarks fell short of a proper consideration of the relevant principles: cf DB v R [2007] NSWCCA 27 at [60] per Latham J.
I do not think that the Judge’s remarks on sentence disclose a failure to have regard to the principles applicable in sentencing young offenders. In my view, the remarks disclose that the Judge gave proper consideration to those matters. The Judge stated:
“It is really extremely difficult to contemplate sentencing someone who is 19 years old to a very large sentence. Consequently the sentences are very much reduced.”
His Honour indicated that, but for the youth of the applicants, he would have considered doubling the sentences imposed.
As to the fact that the applicant received a greater sentence on count 2 than his adult co-offender, it is certainly difficult to understand the apparent anomaly between the two sentences. Mr Khurana received the same sentence for the Woolwich Pier Hotel Robbery as the applicant received for the robbery at the Royal Hotel, and vice versa. It is tempting to conclude that the Judge simply confused counts 2 and 3 (intending to impose like sentences on each offender), but that is by no means clear.

However, the overall sentence did not exceed that imposed on Mr Khurana. Further, I do not think that a lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912. It must be accepted that the offences for which the applicant was sentenced were extremely serious. As submitted by the Crown at the sentence hearing, the offences were of a level of seriousness well above the kind of offence considered in the guideline judgment in R vHenry [1999] NSWCCA 111; (1999) 46 NSWLR 346. Indeed, it would have been open to the sentencing Judge to decline to take the third armed robbery (on the Form 1) into account under s 33, in which event it is likely that a longer sentence would have been imposed. Ground 2 should be rejected.
Ground 3 is:
“The Learned Sentencing Judge erred in that he sentenced the appellant to a sentence when compared to his co-offenders Rajuel Khurana and Robbie O’Reilly such that, even giving due allowance for their antecedents, personal circumstances and mitigating factors, it gives rise to a justifiable sense of grievance.”
Disparity between sentences imposed on co-offenders is an accepted ground for appellate intervention in relation to a sentence that is otherwise appropriate and within the permissible range of sentencing options, provided that it is understood that the term “disparity” comprehends a complaint that the difference is such as to engender a justifiable sense of grievance by giving the appearance to an objective observer that justice has not been done: Postiglione v The Queen [1999] HCA 26; (1997) 189 CLR 295 per Gummow J at 323.3; see also per Dawson and Gaudron JJ at 301.9; per McHugh J at 313; per Kirby J from 335 to 338, especially at 338(6); Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 per Gibbs CJ at 609-610; per Mason J at 611.9; per Brennan J at 618.6; per Dawson J at 623-624.
In Postiglione, Gummow J, while noting that different views were expressed in Lowe as to the rationale for intervention, stated that the principle for which that decision is authority appears to be that:
“the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.”

It is not enough for the applicant to establish a difference between the sentences or between the circumstances on the strength of which like sentences were imposed. It must be established that any alleged disparity is such as to give rise to a grievance that an objective bystander would consider to be justified.
Mr Khurana was sentenced at the same time as the applicant, by the same Judge. The applicant submitted that there is disparity between the two sentences arising from the fact that Mr Khurana, an adult, received the same overall sentence as the applicant where he had an equal or greater level of criminality.
The difficulty with that submission is that the sentencing Judge expressly considered the requirement for individual even-handedness between sentences imposed on co-offenders when he sentenced Mr Khurana. The Judge said:
“Because Khurana is 22, I could sentence him as an adult totally without any regard whatsoever to any of these considerations. However, fairness and parity of sentencing require that I give him a sentence which in an overall sense is similar to the sentences imposed on the other two.”
It is accordingly apparent that the sentencing Judge would have imposed a more severe sentence upon Mr Khurana but for a consideration of the principles of parity. So far as the applicant is concerned, there is, in my view, no basis for a justifiable sense of grievance. Ground three is not made out.
The orders I propose are that leave to appeal be granted but that the appeal be dismissed.
**********

LAST UPDATED:
11 December 2009