DAC v R

[2006] NSWCCA 265

CITATION:	D A C v Regina [2006] NSWCCA 265
HEARING DATE(S):	09/08/2006
JUDGMENT DATE:	30 August 2006
JUDGMENT OF:	Tobias JA at 1; Howie J at 2; Rothman J at 25
DECISION:	Application for leave to appeal granted. The appeal is allowed in so far as the non-parole period specified in relation to the fourth count is concerned. The non-parole period specified is quashed and in lieu a non-parole period is fixed of four years imprisonment to expire on 30 May 2009, the date upon which the applicant is eligible to be released to parole. The Court directs that the applicant serve his sentence prior to release to parole as a juvenile offender.
CATCHWORDS:	Criminal Law - Sentencing - Judge incorrectly applies standard non-parole period - application of s 19 of Children (Criminal Proceedings) Act.
LEGISLATION CITED:	Crimes Act 1900 - ss 61J, 61P, 95, 105A Crimes (Sentencing Procedure) Act 1999 - s 54D, Div 1A Children (Criminal Proceedings) Act 1987 - s 3, 19
CASES CITED:	R v Way (2004) 60 NSWLR 168 R v Hammoud (2000) 118 A Crim R 66 Pearce v The Queen (1998) 194 CLR 610 R v AEM [2002] NSWCCA 58 R v Gorman [2002] NSWCCA 516 R v AN [2005] NSWCCA 329
PARTIES:	D A C v Regina
FILE NUMBER(S):	CCA 2006/871
COUNSEL:	D. Woodburne - Crown A. Haesler SC - Applicant
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/61/0214
LOWER COURT JUDICIAL OFFICER:	Woods DCJ
LOWER COURT DATE OF DECISION:	01/08/2005

2006/871

TOBIAS JA
HOWIE J
ROTHMAN J

WEDNESDAY 30 AUGUST 2006

D A C v REGINA

Judgment

1 TOBIAS JA: I agree with Howie J.

2 HOWIE J: On 23 May 2006 the applicant was arraigned before Acting Judge Woods (the Judge) and a jury in the District Court on an indictment containing four counts arising from a single incident that occurred on 17 March 2003. After trial the applicant was convicted of the first, second and fourth counts. There was a directed verdict in respect of the third count on the indictment, as the complainant gave no evidence supporting that allegation, an aggravated sexual assault.

3 The first count in the indictment alleged an offence contrary to s 95 of the Crimes Act, being an aggravated robbery. The prescribed maximum penalty for that offence was imprisonment for twenty years. The circumstance of aggravation was the malicious infliction of actual bodily harm. The second count alleged a break and entering with intent to commit a serious indictable offence, being larceny, in circumstances of aggravation contrary to s 105A of the Crimes Act. The prescribed maximum penalty for that offence is imprisonment for 20 years. The fourth count alleged an aggravated attempt to have sexual intercourse without consent contrary to ss 61J and 61P of the Crimes Act. The prescribed maximum penalty for that offence is imprisonment for 20 years.

4 The applicant was sentenced on 1 August 2005. In respect of the first count in the indictment the applicant was sentenced to imprisonment for a fixed term of four years to date from 31 May 2005 and to expire on 30 May 2009. In respect of the second count he was sentenced to imprisonment for a fixed term of three years to be served concurrently with the first count. In respect of the fourth count the applicant was sentenced to imprisonment for eight years with a non-parole period of five years to date from 31 May 2005 and to expire on 30 May 2010, the date upon which the applicant is eligible to be released to parole.

5 The facts can briefly be stated. On the morning of 17 March 2003, while the victim, a woman of 78 years, was working in the garden of her home, the applicant entered the house through the closed but unlocked back door. The victim went inside to prepare some sandwiches and became conscious of the presence of the applicant. She asked him what he was doing in her home and he replied, “Give me some money”. He then grabbed hold of the victim and led her through to a bedroom. She struggled to free herself but the applicant pushed her into another room and threw her on the bed where he fondled her, attempted to kiss her and interfered with her clothing. The applicant desisted when the victim said she would get some money and led him into the lounge room. The victim gave him two of three $50 notes she had hidden there. The applicant then threw her to the floor where he pulled off her pants and panties. He lay on top of her and interfered with her vagina. He suddenly got up and left the house after taking the third of the $50 notes. The victim then rang Triple 0. As a result of the attack upon her the victim sustained abrasions to a knee and elbow.

6 The applicant is an Aboriginal youth, aged 14 years and 5 months at the time of the offending. He was subject to a disrupted childhood after his parents separated. The applicant lived mainly with his paternal grandparents or his father. He was frequently moved to various country towns and attended a number of schools until he left school in year seven after one semester due to his poor attendance and behavioural problems. He was dealt with by the Judge on the basis that he had no prior criminal offences. He had been sentenced in the Children’s Court for subsequent offences including an offence of assault occasioning actual bodily harm in July 2004 and a break and enter with intent in January 2005. For each offence he was placed on probation.

7 There was in evidence a juvenile justice report. It revealed that the applicant was diagnosed as suffering from ADHD in 1998 and for which he was taking medication until a few years ago. Because of his educational deficits, he has extremely poor literacy and numeracy skills. However, there have been opportunities provided to him to address these problems but for a number of reasons, some due to the applicant’s failure to attend courses, they have been unsuccessful. He spent most of his time when at liberty with other Aboriginal youths whom he believes had a major influence on his life providing him with support and a sense of belonging. He does not drink alcohol but has used cannabis since the age of 12. He presented as a shy, polite and friendly person but, because of his refusal to acknowledge the offences, has no insight into them. However, his past reaction to supervision has been good and he has indicated a preparedness to make changes to his life.

8 There was also in evidence a psychological report. It revealed that, although generally unemployed, the applicant had assisted his grandfather in cleaning and maintaining a driving range prior to his arrest. He has experienced no major physical or mental health concerns. Testing revealed the applicant to be in the bottom 0.1 per cent of the population in his combined IQ score. He was considered to be within the Moderate level of intellectual impairment. It was thought that counselling could assist him in implementing strategies in coping with, and managing, stress and giving guidance in training and development.

9 The first ground of appeal complains that the Judge erred in believing that there was an applicable standard non-parole period in respect of the offence in the fourth count on the indictment and that this error led to a miscarriage in the exercise of his sentencing discretion. As has been noted, the applicant was convicted of an attempt to commit and offence under s 61J in accordance with the provision of s 61P of the Crimes Act. The Crown has conceded the error made by the Judge although it does not concede that this Court should interfere and impose some lesser overall sentence.

10 The Crown concession is based upon the fact that s61P is not found in the table of offences to which a standard non-parole period applies and are set out in s 54D of the Crimes (Sentencing Procedure) Act. It is clear from the Second Reading Speech of the Attorney General, when introducing the bill containing the standard non-parole provisions, that it was not intended at that time to include attempt offences in the table except for the various manifestations of the offence of attempt murder: see Hansard 23.10.02 at page 5813. Further, in 2003 the Attorney General referred to the Sentencing Council the question whether attempt offences corresponding to those offences set out in the table should be included in the table. In its report of February 2004 the Council stated that it did not consider that any amendment was required at that time.

11 Although the Judge was erroneously led to believe that the offence in the third count did carry a standard non-parole period, he was of the opinion that the fact that the offence was an attempt permitted him to depart from the standard non-parole period as did the youth of the applicant, his immaturity and the need for an extended period of supervision. As has already been noted, the Judge imposed a non-parole period of five years against what he believed to be a standard non-parole period of ten years and notwithstanding that he found the offence to be in the middle to upper range of objective seriousness.

12 However, it must be accepted that the Judge’s discretion in assessing the appropriate sentence for the fourth count was influenced by his belief that there was an applicable standard non-parole period by using that period as a benchmark in accordance with R v Way (2004) 60 NSWLR 168. His Honour stated that he “could not ignore the implication of s 54B, even though he held that he was not bound to “start with the ten year minimum”. The Judge noted that before the commencement of Division 1A of the Crimes (Sentencing Procedure) Act the range of sentences for attempt sexual intercourse was three to six years full term and one year and four years for the non-parole period. It has been made clear in a number of decisions of this Court that the existence of a standard non-parole period might increase the range of sentences above those that operated before the legislation was introduced.

13 The question then arises whether, error having been shown, any lesser sentence is warranted. The Judge faced a difficult sentencing exercise. On the one hand the offences for which the applicant had been convicted were undoubtedly serious and warranted a sentence of imprisonment that was long enough both to denounce the conduct and to act as a deterrent. The applicant was convicted after trial and, therefore, could not receive any leniency that might have followed a plea of guilty, particularly as the victim would then have been spared the undoubted trauma of giving evidence. On the other hand the applicant was a young person and his rehabilitation was an important factor notwithstanding that he refused to acknowledge the offences. The Judge was aware of these conflicting sentencing considerations and referred to a number of cases concerned with sentencing youths for serious sexual offences.

14 It has been noted that the sentences for each of the three offences were made concurrent. The Judge took this course because of the applicant’s youth and because the three offences “were all part of the same scenario”. I acknowledge that it is generally a matter for the discretion of the sentencing court whether sentences for offences should be served concurrently or cumulatively: R v Hammoud (2000) 118 A Crim R 66. One consideration in exercising that discretion is whether the offences arose from the one criminal enterprise or involved separate acts of criminality. But that consideration is not decisive. It has been made clear since Pearce v The Queen (1998) 194 CLR 610 that the principle consideration will be the issue of totality and whether the sentence for any one offence can encompass the criminality for the other offences. This is made clear in sexual assault cases by R v AEM [2002] NSWCCA 58 and R v Gorman [2002] NSWCCA 516.

15 In this particular case, the issue that the Judge should have considered was, whether, having regard to the fact that the offences all arose from a single criminal enterprise, the criminality involved in the attempted sexual intercourse offence could encompass the criminality reflected in the whole of the applicant’s conduct. The issue of the applicant’s youth was to my mind totally irrelevant except as it impacted on an assessment of his criminality for each of the offences and his conduct overall. In my opinion it is arguable that the discretion miscarried because the Judge failed to ask himself the relevant question.

16 However, the Crown while accepting that the Judge’s finding was favourable to the applicant, did not submit that this Court should impose cumulative or partly cumulative sentences if it had to re-sentence the applicant. Although I doubt that the imposition of wholly concurrent sentences is the appropriate course, I acknowledge that the violence to the victim seems to have been sexually based rather than to put her in fear for the purpose of robbing her. The Court can take into account when considering the sentence for the attempted intercourse offence that the applicant broke into the victim’s home for the purpose of stealing property and that there was actual violence inflicted upon the victim over and above the violence involved in the attempted intercourse itself. In this regard of course it should be noted that the applicant did not leave the house or cease his violence to the victim when she had given him $100.

17 In case it was necessary to re-sentence the applicant the Court has received an affidavit from the applicant as to his progress while in custody. He has had some difficulty because of his placement in keeping in contact with his family and he finds this to be one of the frustrations he is experiencing as a result of being in custody. He has undertaken some courses since his incarceration, but the Judge was aware of that fact from the reports before him. There is nothing in the material that, in my opinion, would significantly impact upon the exercise of this Court’s discretion.

18 As has been noted, the Judge treated the applicant as a first offender based upon the material before him. The antecedent report before this Court reveals that he had previously been dealt with in the Children’s Court for two minor matters of dishonesty. The existence of those matters should not affect the sentence to be imposed for the offences of which he was convicted. Any consideration of the prospects of his rehabilitation, however, should have regard to the fact that he committed a number of offences since his arrest on these matters including offences of dishonesty and violence.

19 The offence was aggravated by the age of the victim, the fact that the attack occurred in her own home and the nature of the attempt, that was all but a completed offence. However, the degree of violence was not high, the injuries were not inflicted intentionally and were, fortunately, of a very minor nature. The applicant was very young, underprivileged and intellectually impaired. In R v AN [2005] NSWCCA 329 I discussed the relevance of the fact that the offender was young and had severe intellectual disabilities. There is no need to review the applicable principles again in order to determine the application. I should merely add that this was, as the Judge recognised, a very different case to that before the Court in AN. The offences are far more serious, the applicant’s culpability is greater and his intellectual deficiencies are not as severe. Although the applicant was only 14 years of age, the offences were not committed as a result of his immaturity and it is difficult to understand the relevance of his intellectual impairment other than its impact upon his reading and writing skills.

20 In light of the very significant objective seriousness of the offence in the fourth count, it seems to me that the head sentence is an appropriate one notwithstanding the applicant’s subjective features. Even without regard to the standard non-parole for s 61J, the particular offence, as against the maximum penalty of 20 years, must be in the upper range of seriousness because of the aggravating features present. The appropriate penalty must have been diminished significantly because of the age of the applicant and his intellectual deficits otherwise the sentence would not have adequately reflected the objective facts. Although general deterrence might be reduced by reason of the subjective features of the applicant, specific deterrence was a matter of particular relevance in light of the applicant’s refusal to acknowledge his guilt notwithstanding a very strong Crown case.

21 However, I believe that the non-parole period should be reduced to one of four years. This would allow the applicant to have the benefit of a very lengthy parole period but gives control to the parole board to decide whether he should be released at the expiration of the non-parole period having regard to the advances, if any, made by the applicant while in custody. No doubt the fact that the applicant refuses to acknowledge his guilt of the sexual offences is a matter of concern, but that fact alone would not disentitle him from release to parole. The applicant has so far not shown interest in counselling but that may change over time. It seems to me that specific deterrence in this case can best be reflected in the total sentence rather than in the non-parole period that should be reduced to encourage his rehabilitation.

22 The Judge directed that the applicant serve the non-parole period in a juvenile institution. The offence in the fourth count was a “serious indictable offence” for the purposes of the Children (Criminal Proceedings) Act 1987; see s 3 of that Act. Section 19 of that Act relevantly provides:

19(1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender.

(2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless:
(a) in the case of a sentence for which a non-parole period has been set—the non-parole period will end within 6 months after the person has attained that age, or
(b) in the case of a sentence for which a non-parole period has not been set—the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

(3) A person who is sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless:
(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or
(b) in the case of a sentence for which a non-parole period has been set—the non-parole period will end within 6 months after the person has attained that age, or
(c) in the case of a sentence for which a non-parole period has not been set—the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

This subsection is subject to subsection (2).

(4) In determining whether there are special circumstances for the purposes of subsection (3), the court may have regard to the following matters:
(a) the degree of vulnerability of the person,
(b) the availability of appropriate services or programs at the place the person will serve the sentence of imprisonment,
(c) any other matter that the court thinks fit.

23 The applicant will turn 18 years on 11 October 2006 and 21 years on 11 October 2009. The Judge’s order could not, as I understand s 19, have operated as intended because the applicant would not have been due for release to parole until 30 May 2010 that is almost three and a half years after the applicant’s eighteenth birthday. The non-parole period that I propose would expire on 30 May 2009. Unless the Court finds that there are special circumstances the applicant cannot serve his sentence as a juvenile offender after his attainment of the age of 18 years. No consideration was given to this provision by the Judge or by the parties before this Court. However, it is clear, in my view, that special circumstances exist by reason of the age of the applicant at the time of offending and his intellectual disabilities. He should remain in a juvenile detention centre as long as possible. The juvenile justice report indicates that he has generally been compliant with supervision and has been participating in programmes while in custody. He has also, notwithstanding his denial of the offences, been assessed as suitable for participation in a sex offenders programme administered in the detention centre.

24 I propose that the application for leave to appeal should be granted. The appeal should be allowed in so far as the non-parole period specified in relation to the fourth count is concerned. The non-parole period specified by his Honour should be quashed and in lieu a non-parole period should be fixed of four years imprisonment to expire on 30 May 2009, the date upon which the applicant is eligible to be released to parole. I also propose that the Court direct that the applicant serve his sentence prior to release to parole as a juvenile offender.

25 ROTHMAN J: I agree with Howie J.

**********