Gosland and McDonald v The Queen
[2013] VSCA 269
•24 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0080 | |
| IAN LIONEL GOSLAND | Appellant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2013 0078 | |
| DYLAN McDONALD | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE and COGHLAN JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 24 September 2013 | |
| DATE OF JUDGMENT | 24 September 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 269 | |
| JUDGMENT APPEALED FROM | DPP v Gosland and McDonald (Unreported, County Court of Victoria, Judge Mullaly, 19 April 2013) | |
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Gosland
CRIMINAL LAW – Sentencing – Youthful offender – One charge of intentionally cause serious injury – Bashing and stabbing of defenceless victim – Appellant affected by alcohol – Whether total effective sentence of six years and one month manifestly excessive – Whether judge failed to take into account full recovery made by victim – Whether disparity as between co-accused – Appeal dismissed – R v Mills [1998] 4 VR 235, R v Burke (2009) 21 VR 471, DPP v Lawrence [2004] VSCA 154 referred to.
McDonald
CRIMINAL LAW – Sentencing – Youthful offender – One charge of theft and one charge of recklessly cause serious injury – Bashing and kicking of defenceless victim – Appellant affected by alcohol – Whether total effective sentence of two years and one month detention in Youth Justice Centre manifestly excessive – Whether principle of parsimony necessitating imposition of Community Correction Order – Need for specific deterrence – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant Gosland | Ms D M Caruso | Rainer Martini & Assoc |
| For the Appellant McDonald | Mr D D Gurvich | Michael J Gleeson |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA
COGHLAN JA:
On 18 April 2013, the appellants, Ian Gosland (‘Gosland’) and Dylan McDonald (‘McDonald’) pleaded guilty to an array offences committed in the course of an affray at Bayswater Railway Station on the night of 11 September 2012. Following pleas in mitigation of penalty they were sentenced as follows:
Ian Gosland Charge on Indictment Offence Maximum Sentence Cumulation 1 Intentionally cause serious injury [Crimes Act 1958 (Vic) s 16] 20 years [Crimes Act 1958 (Vic) s 16] 6 years Base Related summary offence
Unlawful assault (Summary Offences Act 1966 (Vic) s 23)
15 penalty units or 3 months’ imprisonment
6 weeks
1 month
Total Effective Sentence:
6 years and 1 month’s imprisonment
Non-Parole Period: 4 years Pre-sentence Detention Declared: 119 days 6AAA Statement: 7 years and 2 months’ imprisonment with non-parole period of 5 years
Dylan McDonald Charge on Indictment Offence Maximum Sentence Cumulation 2 Theft
[Crimes Act 1958 (Vic) s 74(1)]10 years
[Crimes Act 1958 (Vic) s 74(1)]1 month 2 weeks 3
Recklessly cause serious injury [Crimes Act 1958 (Vic) s 17]
15 years [Crimes Act 1958 (Vic) s 17]
2 years
Base
Related summary offence
Unlawful assault (Summary Offences Act 1966 (Vic) s 23)
15 penalty units or 3 months’ imprisonment
1 month
2 weeks
Total Effective Sentence:
2 years and 4 weeks detention in a Youth Justice Centre
Non-Parole Period: N/A Pre-sentence Detention Declared: N/A 6AAA Statement: 4 years’ imprisonment with non-parole period of 2 years Other orders:
Forensic sample order
On 24 July 2013, they were granted leave to appeal against sentence on the following grounds:
Gosland’s Ground of appeal
The sentence imposed on Charge 1 and the non-parole period are manifestly excessive, having regard to Gosland’s plea of guilty, the utilitarian benefits of the plea, Gosland’s age and the full recovery made by the victim of the offences from the injuries which he sustained.
McDonald’s grounds of appeal
1)The individual sentences and total effective sentence are manifestly excessive.
2)The difference in sentences with respect to the co-offender Gosland is manifestly inadequate and thus infringes the principle of parity.
For the reasons which follow, we are not persuaded that the sentence imposed on either offender is manifestly excessive and we do not consider that either sentence infringes the parity principle.
The circumstances of the offending
The sentencing judge summarised the circumstances of the offending thus:
1) On 11 September 2012, Gosland and McDonald and a young female, A, spent the evening together with Cameron Cordwell.
2) They were drinking and at around 8.00 pm they were spoken to and issued with fines by PSO’s at the Ringwood Railway Station.
3) At about 9.40 pm they got off the train at Bayswater Railway Station and began acting aggressively towards two other passengers, Mr Jaipal Singh and Mr Harmeet Singh-Bajwa, who also got off the train at that station.
4) As Mr Singh and Mr Singh-Bajwa walked to the exit of the station minding their own business, the group kicked at their feet. When Mr Singh turned and faced them, they made threats to stab him if he called the police.
5) When then Mr Singh-Bajwa asked for calm, Gosland knocked the turban from his head, poured beer over it and threw it on the tracks. As the judge said, that was a highly insulting and provocative act. At the same time, they made abusive and racist remarks.
6) Mr Singh was so concerned that he reached for his mobile phone to call the police. A reacted by trying to grab it from him and was then assisted in stealing if from him. McDonald’s role in that offence was as part of a joint enterprise.
7) Another passenger, Mr Banyari, moved out of the Station into the car park where he heard and saw the treatment being meted out to Mr Singh-Bajwa and Mr Singh.
8) Mr Banyari thus reached for his mobile phone and called the police. He spoke to the Triple 0 operator as he kept the appellants’ group under observation. His sole concern was to assist Mr Singh and Mr Singh-Bajwa, who were strangers to him, and to bring about a safer environment for train passengers.
9) Gosland and McDonald became aware that Mr Banyari had called the police and, in what the judge described as a display of truly disturbing anti-social behaviour, ran to him, outnumbered and surrounded him and punched and threw a bottle at him.
10) Gosland then stabbed Mr Banyari in the torso, causing him to fall to the ground.
11) Mr Banyari curled up on the ground in the foetal position in an attempt to protect himself as best he could, whereupon Gosland and McDonald set upon him again and kicked and punched him as he lay wounded on the ground. At the same time, Gosland inflicted two further stab wounds.
12) Thus the attack continued until some courageous bystanders came to Mr Banyari’s aid and Gosland and McDonald fled.
13) Mr Banyari was conveyed to The Alfred Hospital where he underwent surgery for lacerations to his liver. He also sustained a fractured nose and abrasions to his hand and arm. He remained in hospital for four days but ultimately recovered.
14) When arrested some days later, McDonald was shown CCTV footage of his involvement in the attack but denied that he was involved. Gosland denied having any recollection of the incident but conceded that he may have stabbed Mr Banyari. He added that Mr Banyari had been stabbed because he was ‘lagging’ to the police.
15) The judge observed that Cordwell was to plead guilty separately and would be dealt with on 17 June 2013, and that A was before the Children's Court.
16) The judge noted that McDonald was not liable for the stabbing. His plea was put and accepted by the Crown on the basis that his offending was limited to alerting the group to the fact that Mr Banyari was calling the police and to punching and kicking Mr Banyari.
The judge’s assessment of the nature and gravity of the offending
The judge regarded the offending as intolerable. As his Honour said, displays of violence in public are calculated to instil corrosive fear into the community and the attack directed to Mr Singh-Bajwa's turban and the racist remarks directed at him demonstrated poor character and were shameful. The physical attack was still more serious. Fortunately for the appellants, the plea proceeded on the basis that the attack was not racially motivated and, therefore, did not attract the operation of s 5(2)(daaa) of the Sentencing Act 1991 (which deals racially-motivated offending). But, as the judge said, the violence was mindless and most concerning. Mr Banyari was not a big man and he posed no threat to either appellant. They attacked him simply because he was endeavouring to call the police to stop a violent attack on Mr Singh-Bajwa. That added to the gravity of the offending and, in the case of Gosland, the carrying of and resort to a deadly weapon was cowardly and vicious.
The judge noted that both appellants were intoxicated and his Honour inferred that both were addled by alcohol. But, as his Honour said, both had histories of alcohol abuse which had led them into trouble in the past. Both had previously been provided with chances to deal with their abuse of alcohol. Both well knew that excessive drinking, especially in the company of others, created risks that their behaviour would become aggressive and anti-social. In those circumstances, their intoxication did not mitigate their offending. It was as an aggravating circumstance.[1]
[1]R v Martin (2007) 20 VR 14, 22 [30].
Each of the appellants also had significant criminal antecedents. The judge noted that, in the space of only a few years, Gosland had been before the courts with disturbing regularity for offences including intentionally causing serious injury and criminal damage. As his Honour said, that prior offending informed the gravity of the subject offences. Taken together with the offences committed against Mr Banyari, it denoted an established, ingrained pattern of criminal violence in public places and contempt for the opportunities for rehabilitation which courts had afforded Gosland in the past. Accordingly, the judge concluded that the requirements of just punishment necessitated a distinctly sterner sentence than had been imposed in the past.
In the case of McDonald, the judge observed that, although he was only 19 at the time of offending and 20 at the time of sentence, he had also been dealt with by the courts for a number of violent offences, mostly in public and in company of others. Although those offences did not include causing serious injury, McDonald had prior appearances for causing injury, attempted armed robbery, threat to kill, twice for affray and many charges for damaging property. As the judge said, they were concerning antecedents.
Gosland’s appeal
Under the heading of manifest excessiveness, counsel for Gosland argued that, since there was only one year and one month’s difference between the sentence which the judge said he would have imposed if Gosland had not pleaded guilty and the sentence which was imposed (a difference of 15.12 per cent) it was evident that the judge had given inadequate recognition to Gosland’s early plea of guilty and the remorse of which counsel submitted it was indicative. Further, counsel argued, it was apparent that, in the case of McDonald, the difference between the sentence which the judge said he would have imposed if McDonald had not pleaded guilty and the sentence which was imposed was almost two years (representing a difference of more than 48%) and, in counsel’s submission, there was no basis for such a disparity between the offenders given their similar ages and the relative timing of their pleas. Additionally, counsel relied on the fact that the Crown had submitted on the plea that the appropriate sentencing range was two to three years’ imprisonment and that the sentence imposed by the judge was some 25% to 50% more than the Crown had stated was appropriate. Counsel contended that it was apparent that the judge had not given enough weight to Gosland’s relative youth (he was 21 years old at the time of offending and at the time of sentencing) and that the judge had overstated the seriousness of the gravity of the injuries suffered by Mr Banyari. Each of those factors individually and further or alternatively in combination was said to be indicative of a manifestly excessive sentence.
Taking each of those points in turn, we think the first to be misconceived. It assumes that the difference between the notional sentence which the judge said he would have imposed but for a plea of guilty and the actual sentence which was imposed is examinable for specific error. As this court has said repeatedly, that is not so:
A complaint about the sentence discount ... identified in the 6AAA statement is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.[2]
[2]R v Burke (2009) 21 VR 471, 477 [31]; see also Scerri v R [2010] VSCA 287 [24]; Saab v R [2012] VSCA 165, [58]-[62].
Secondly, it seems to us that the complaint about the disparity between the percentage discount allowed to Gosland compared to that allowed to McDonald is equally wide of the mark. Apart from the considerations already referred to, in light of the judge’s assessment of the extent of remorse and consequent prospects of rehabilitation of Gosland relative to McDonald, there was every reason for a greater percentage discount for McDonald.[3] In the case of Gosland, the judge’s assessment was that there was very little if any evidence of remorse and that the prospects of rehabilitation were guarded. In the case of McDonald, the judge determined that there was genuine shame and remorse, and reasonable prospects for rehabilitation, due to his positive engagement with support services during a period of youth justice supervised bail.
[3]Phillips v R [2012] VSCA 140, [72]-[73]; Pasquale Barbaro v R [2012] VSCA 288, [41].
The sentencing range submitted by the Crown raises more complex considerations. But the fact that the judge significantly departed from the Crown’s suggestion is not of great significance in itself. What matters is whether in all the circumstances of the case the sentence is manifestly excessive. As the judge observed, he was not bound to adhere to the Crown’s range. That point was made by Maxwell P, Vincent and Redlich JJA in MacNeil-Brown as follows:
No judge is bound to accept counsel’s submission on any point, and a sentencing judge is entirely free to come to a different conclusion. Indeed, the judge is bound to do so if, in his/her judgment, a sentence outside the nominated range is called for and can lawfully be imposed. The weight to be given to a submission is to be judged according to the merits of the argument(s) which it advances. It would be wrong for a judge to accord weight to a Crown submission on sentence merely because it came from the Crown.[4]
[4](2008) 20 VR 677, 691 [45].
Hence, as Maxwell ACJ and Neave JA more recently observed in Talbot and Dux v R:[5]
… there is no guarantee that a sentencing judge will accept that theCrown’s submission on range is correct. As the judge in the present case correctly emphasised, the question of the applicable range – and the appropriate sentences to be imposed for this offending – was for her alone to determine.
We shall come back to that question later in these reasons.
[5][2012] VSCA 118 [47].
Thirdly, we do not accept that the judge gave too little weight to Gosland’s relative youth. It is apparent from his Honour’s sentencing remarks that he paid close attention to the principles essayed in R v Mills.[6] As his Honour observed, however, the premium which is placed on the rehabilitation of youthful offenders must be balanced against other sentencing considerations such as general and specific deterrence, denunciation and community protection. More specifically, as Batt JA explained in R v Lawrence,[7] the general propositions enunciated in R v Mills are just that, general propositions, and they are not to be treated as if they were of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence as well as of the offender.[8] That is particularly so where a sentencing judge is required to deal with a case of gratuitously violent offending in a public place by youthful offenders under the influence of alcohol or drugs; especially where, as here, the offender has had previous opportunities to rehabilitate through community-based orders and Youth Justice Centre orders and in effect has thumbed his nose to those chances. Additionally, as Batt JA said, the benefits that flow to youthful offenders diminish the older they become. Although McDonald was a youthful offender at the age of 20, he was hardly a child.
[6][1998] 4 VR 235.
[7](2004) 10 VR 125.
[8]R v Bell [1999] VSCA 223 and R v Hennen [2004] VSCA 42.
Fourthly, we do not accept that the judge overestimated the gravity of the injuries inflicted on Mr Banyari. To the contrary, it strikes us as most remarkable that someone like Gosland, who claims to be remorseful, should even dare suggest that stabbing a man repeatedly in the liver as he lay beaten, prostrate on the ground at a railway station while being kicked and punched repeatedly because he telephoned the police for assistance, was not as serious as the judge considered it to be. Contrary to the very confused thinking which seems to us to inform the submission put on Gosland’s behalf, it does not diminish the seriousness of Mr Banyari’s injury that, by reason of the skill of the medical staff who cared for him and sublime good fortune his injuries have healed. But for that, he would likely be dead.
We return to the question of manifest excessiveness. Clearly enough, Gosland has had a very poor start in life. As the judge observed, he was raised by his father, who has a criminal history and a drug problem, and he is poorly educated and un disciplined. He attended a number of schools up to Year 8 and thereafter an eastern suburbs community school but he dropped out part way through Year 11. He has ongoing difficulties with reading and he has not had any long term employment or training since leaving school more than six years ago. As a consequence, he is unmotivated and indolent. He is prone to binge drinking and the abuse of crystal methamphetamine. It is said that he has tried to deal with his drug and alcohol problems with the assistance of the Eastern Drug and Alcohol Service; evidently to no avail. He told police that he had consumed 20 beers and had taken ‘ice’ before the attack on Mr Banyari and was in need of anger management. According to another version of events which he gave to a consultant psychologist, Mr Cummins, he had drunk nearly a whole slab of bourbon and coke and was ‘hanging out for ice’.
Gosland is, however, also a significant risk to public safety. His criminal record began on 16 April 2010 when he was found guilty without conviction of criminal damage and intentionally damaging property for which he was placed on a nine month community based order and required to attend Ringwood Community Correctional Services. On 28 October 2010 he was found guilty of further criminal damage and a forfeiture order was made. On 16 December 2010 he was found guilty without conviction of further criminal damage for which he was fined $200 and ordered to pay compensation of more than $800. On 16 December 2010 he was found guilty of failure to comply with the Community Based Order, criminal damage and intentionally damaging property and the original order was confirmed. On 6 May 2011 he was convicted of intentionally causing serious injury and sentenced to eight months to be served by way of an intensive correction order. On 14 July 2011 he was found guilty of failing to comply with the Community Based Order, criminal damage and intentionally damaging property. The original order was confirmed and he was required to attend at Ringwood Community Correctional Service and to perform 100 hours of unpaid community work. On 21 February 2012 he was convicted of charges of theft from a shop, criminal damage and attempted robbery, and two charges of intentionally damaging property, for which he was sentenced to a total effective sentence of six months of which two months was suspended for a period of 12 months. On 23 March 2012, he was convicted of intentionally causing serious injury for which he was sentenced to 145 days imprisonment to be served concurrently with the sentence previously imposed. The offence of intentionally causing serious injury of which he was convicted on 23 March 2012 involved a brutal attack at a railway station in company with other violent youths on a man who was quickly disabled and then set upon with kicks and punches. In effect, the only significant difference between that offence and the subject offending was that, by the time of the attack on Mr Banyari, Gosland had graduated from kicks and punches to kicks and punches and stabbing with a knife. It is also to be observed that Gosland committed the subject offence only two months after being released from the sentence of imprisonment imposed on him for the prior offence of intentionally causing serious injury and while still serving the suspended term of imprisonment imposed on him on 21 February 2012. In the result, Gosland stood to be sentenced as a serious violent offender and community protection became the principal sentencing consideration.
In Lawrence,[9] Batt JA (with whom the other members of the court agreed) said that:
… the cases make clear [that], with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a ‘back seat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both. Here, the [offender] was in any event only on the borderline of youthfulness and moreover was not by any means a first offender. For these reasons I agree with [counsel’s] submission that her Honour did err in her statement that the [offender’s] rehabilitation was required to be foremost in the mind of a sentencing court.
[9]DPP v Lawrence [2004] VSCA 154, [22] (citations omitted).
The sentencing judge in this case approached the task of sentencing Gosland in accordance with that paradigm. With respect, we see no error in his Honour’s analysis. Nor do we see any inconsistency with current sentencing practices.[10] In the result, we reject the submission that the sentence imposed was manifestly excessive.
[10]See the sentencing table appended to the reasons for judgment in Nash v R [2013] VSCA 172.
For those reasons, Gosland’s appeal will be dismissed.
McDonald’s appeal
(i) Ground 1 – Manifest excessiveness
Under cover of Ground 1 of McDonald’s appeal, counsel for McDonald argued that the sentence imposed on McDonald was wholly outside the range having regard to what counsel described as McDonald’s limited role in the attack on Mr Banyari, his plea of guilty, his remorse, his youth, his antecedents, what was said to be the low risk of his re-offending and his prospects of rehabilitation. Reference was also made to McDonald’s difficult personal circumstances and to the fact that the Crown had conceded on the plea that a Community Correction Order was not necessarily beyond the range.
We shall take each point in turn. Starting with McDonald’s role in the attack on Mr Banyari, it was accepted that it was not as serious as Gosland’s. McDonald was charged with recklessly causing serious injury, as opposed to intentionally causing serious injury, and he was sentenced on the basis that he was not aware that Gosland had a knife and did not bear any responsibility for the stabbing.
That said, as the judge observed, McDonald’s offending involved kicking and punching Mr Banyari in company with three other offenders as Mr Banyari lay disabled on the ground. It was McDonald who alerted the other offenders to the fact that Mr Banyari was calling police and McDonald’s participation in the attack on Mr Banyari was by way of retribution for the fact that Mr Banyari had attempted to call police. The violence which McDonald inflicted on Mr Banyari was gratuitous, cowardly and cruel, and McDonald was under the influence of alcohol at the time of the incident. He also well knew as a result of from previous offending that he was likely to behave violently when in that condition. In our view, the judge was right to come to the conclusion that McDonald’s offending was serious.
The judge took into account McDonald’s plea of guilty and allowed a substantial discount on sentence both for the utilitarian value of the plea and because his Honour considered it to be emblematic of real remorse. As his Honour said:
You, Mr McDonald, will receive a significant benefit for your plea of guilty, both as to the length of the sentence but also the type of penalty. I have not under-valued your youth, your growing insight into your previous poor behaviour and your maturing attitude with respect to substance abuse and the need for further education, and in general as to a better direction in your life. I have factored in your shame and remorse.[11]
[11]Sentencing remarks, [61].
But, as against that, McDonald’s antecedents were ominous. His criminal record had begun on 11 November 2010 when he was found guilty without conviction of unlawful assault, criminal damage and make threat to kill and he was placed on probation for a period of six months. On 19 January 2011, he was found guilty without conviction of affray, recklessly causing injury and attempted armed robbery and released on a Youth Supervision Order for a period of six months to 18 July 2011 (with which he complied). On 23 February 2011, he was found guilty without conviction of common law affray and released on a Youth Supervision Order for a period of six months until 22 August 2011 (with which he also complied). On 21 September 2011, he was found guilty without conviction of intentionally damaging property and released upon entering into a good behaviour bond in the amount of $200.00. On 5 December 2011, he was found guilty without conviction of wilfully damaging property and being drunk in a public place for which he was placed on a Community Based Order of eight months’ duration. In effect, the subject offending represented a further, escalated incident of serious criminality coming after McDonald had been dealt with leniently for previous offending on a succession of prior occasions. And, as the judge concluded, that implied a need for a greater specific deterrence.
The judge was cognizant of McDonald’s difficult personal circumstances. His Honour noted that McDonald had attended various schools, and was said to show an aptitude for design and visual arts, but had dropped out during Year 10 and had not sought further study opportunities until shortly before the plea. Like Gosland, he was under-motivated and indolent and had not worked for any length of time. He also had a child by his girlfriend and continues to be involved with them. More lately, while on bail, he had been receiving psychological treatment for anxiety and emotional regulation.
As to the Crown submission on penalty, the judge said that:
A Youth Justice Centre sentence is not one that plays no role in rehabilitation, it certainly is an expression of punishment, deterrence and protection of the community, but the intent and the practical focus of a Youth Justice Centre and youth parole is to facilitate rehabilitation.
…
The Crown submission as to the range for sentence was expressed as … a Community Corrections Order for you, Mr McDonald. I have seriously considered these submissions. I have taken into account what the Court of Appeal in this State has said on many occasions, that is a submission by the Crown on sentence is simply that, a submission, and not something that caps or collars the discretion of the sentencing judge.
…
The sentences I am about to announce [are] an endeavour to balance the need for denunciation and deterrence to you and to others who may be minded to get drunk and display violence to ordinary citizens. The community must be protected from you as you have displayed unrestrained aggression. The balance with your rehabilitation. Whether you do reform is up to you. You will be supervised and assisted in that regard and you should not again let down the people who have stood by you.
With respect we see no error in that. Perhaps it was open to impose a Community Corrections Order. But McDonald had received sentencing dispositions of that kind in respect of previous offending and had failed to learn from them. Instead of mending his ways, his level of offending had escalated to recklessly causing serious injury by intentionally kicking and punching an unarmed man lying helpless on the ground. As the judge said, the community needs to be protected from criminal behaviour of that kind. And, with respect, we share his Honour’s view that, in the circumstances of this case, a Youth Justice Centre Order was best calculated to achieve that objective.
(ii) Ground 2 – Parity
The argument advanced under Ground 2 was that, because Gosland’s offending was more serious than McDonald’s offending, and because Gosland will be eligible for parole after only four years whereas McDonald will be under detention for two years, there is objectionable disparity as between their sentences.
We do not think that there is any substance in that point. The relevant comparison is not as between the non-parole period set for Gosland and the length of the Youth Justice Centre Order made against McDonald but rather between the head sentence of six years’ imprisonment imposed on Gosland and the head sentence of a two years and one month Youth Justice Centre Order made against McDonald. There is no minimum term under a Youth Justice Centre Order. All Youth Justice Centre inmates are immediately eligible for parole. A Youth Justice Centre Order is also inherently less onerous sentence than a sentence imprisonment to be served in an adult prison and it reflects the premium which the judge placed on rehabilitation .
In the circumstances of this case, we do not consider that the sentence of two years’ and one month Youth Justice Centre Order is excessive.
Accordingly, McDonald’s appeal will be dismissed.
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