HMP v The Queen
[2010] NSWCCA 63
•23 April 2010
New South Wales
Court of Criminal Appeal
CITATION: HMP v R [2010] NSWCCA 63 HEARING DATE(S): 16 March 2010
JUDGMENT DATE:
23 April 2010JUDGMENT OF: McClellan CJatCL at 1; Latham J at 2; Schmidt J at 3 DECISION: Leave to appeal against sentence refused. CATCHWORDS: CRIMINAL LAW - appeal against sentences - whether sentencing Judge failed to assess where the offence at count 2 fell in the range in terms of objective seriousness - whether the test in relation to any departure from the standard non-parole period was wrongly articulated - whether sentencing Judge impermissibly had regard to the applicant’s prior criminal record as an aggravating factor - whether sentencing Judge erred in finding the offences to be ‘a series of criminal acts’ and so an aggravating factor for purpose of s 21A (2)(m) of the Crimes (Sentencing Procedure) Act - whether sentencing Judge failed to have proper regard to the fact that the offence at count 1 and the two offences on the form 1 could have been dealt with in the Children’s Court of New South Wales - whether other sentences were warranted in law - s 6 of the Criminal Appeal Act 1912 - lenient sentences - no error in sentences shown - leave to appeal against sentence refused LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Children (Criminal Proceedings) Act 1987CATEGORY: Principal judgment CASES CITED: AJO v Regina [2008] NSWCCA 28
Kerr v Regina [2008] NSWCCA 133
McCullough v R [2009] NSWCCA 94
Phan v R [2010] NSWCCA 8
Porter v R [2008] NSWCCA 145
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Janceski [2005] NSWCCA 228; (2005) 44 MVR 328
R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Scott [2005] NSWCCA 152
R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; (2002) 137 A Crim R 180
Regina v Palmer [2005] NSWCCA 349
Tapueluelu v R [2006] NSWCCA 113
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465PARTIES: HMP (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 15102/2008 COUNSEL: Mr W Hunt (Applicant)
Ms J Dwyer - (Crown)SOLICITORS: S O'Connor (Legal Aid NSW) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11/0983 LOWER COURT JUDICIAL OFFICER: Phegan J LOWER COURT DATE OF DECISION: 16 December 2008
2008/15102
FRIDAY, 23 APRIL 2010McCLELLAN CJ AT CL
LATHAM J
SCHMIDT J
1 McCLELLAN CJ: I agree with Schmidt J.
2 LATHAM J: I agree with Schmidt J.
3 SCHMIDT J: This is an application for leave to appeal against the severity of two sentences imposed by his Honour Acting District Court Judge Phegan on 16 December 2008 for offences against ss 97(1) and 98 of the Crimes Act 1900. The applicant was committed for sentence after pleading guilty in the Bidura Children’s Court at Glebe. She was 16 years at the time of the offence and 17 at the time of sentence.
4 Pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 the applicant asked that in sentencing for the s 98 offence the Court take into account two further offences committed on 28 April 2008, they appearing in a form 1 document:
(b) an offence of assault with intent to rob contrary to s 94 Crimes Act (maximum penalty 14 years imprisonment).
(a) an offence of assault with intent to rob whilst armed with an offensive instrument, a syringe, contrary to s 97(1) Crimes Act (maximum penalty 20 years imprisonment; and
5 The applicant was sentenced to :
Count 1 – robbery in company contrary to s 97(1) Crimes Act 1900 – 2 years imprisonment, commencing on 28 April 2008 and expiring on 27 April 2010 (maximum penalty 20 years imprisonment).
- Count 2 – robbery in company and inflict grievous bodily harm contrary to s 98 Crimes Act - 4 years and 6 months imprisonment, comprising a non-parole period of 2 years and 6 months, commencing on 28 April 2008 to expire on 27 October 2010 and a parole period of 2 years to expire on 27 October 2012 (maximum penalty 25 years imprisonment).
6 An agreed statement of facts and a Department of Juvenile Justice criminal and custodial history were put before the Court. Also tendered were a psychological assessment; a report from a Department of Community Services’ caseworker; a psychiatric report from Justice Health and reports from the Department of Juvenile Justice Youth Drug and Alcohol programme and the Juniperina Juvenile Justice Centre. The applicant also gave evidence and read aloud a letter addressed to the Court.
7 Five grounds of appeal were advanced in relation to the sentences imposed:
Ground 1 The sentencing Judge failed to assess where the offence at count 2 fell in the range in terms of objective seriousness.
Ground 2 The sentencing judge wrongly articulated the test to be applied in relation to any departure from the standard non-parole period in relation to the offence at Court.
Ground 3 The sentencing Judge had regard, in an impermissible fashion, to the applicant’s prior criminal record as an aggravating factor.
Ground 5 The judge failed to have proper regard to the fact that the offence at count 1 and the two offences on the form 1 could have been dealt with in the Children’s Court of New South Wales.Ground 4 The sentencing Judge erred in finding the offences to be ‘a series of criminal acts’ and so an aggravating factor for purpose of s 21A (2)(m) of the Crimes (Sentencing Procedure) Act.
- The offences
8 The agreed statement of facts revealed that the applicant was not herself the physical assailant in any of the four offences. She was, however, involved with three others, a female and two male offenders, in four unprovoked attacks on four different pedestrians over a period from about 7.45 pm to about 9 pm on 28 April 2008.
9 His Honour found that the applicant was a willing member of the group which had committed each offence and did nothing to prevent any of the offences being committed. There was no evidence of any planning in advance of the commission of these offences, they were spontaneous and not a part of any preconceived plan. His Honour found that ‘in some relatively ill defined way’ they appeared to have been associated with the need to raise money in order to further the drug habits of the group members. The behaviour of two members of the group towards the victims was found to have been demonstrably callous, with the use of a syringe described as a particularly vicious form of attack.
10 The first offence, which was the subject of the first additional charge in the form 1 document, was an assault with intent to rob a female victim who was walking down a street in Kings Cross. The other female offender demanded money and the victim’s mobile phone and then grabbed the victim’s handbag. In attempting, but failing to pull the handbag from the victim, she ripped the victim’s jacket and during the struggle the victim suffered two small puncture wounds on the back of the left hand. The victim was later treated for a needle stick injury and given a course of antibiotics. The applicant acted as a lookout during this offence.
11 The second offence, which was the subject of the second charge in the form 1 document, was an assault with intent to rob while armed with an offensive instrument. The male victim was approached while walking along a street in Potts Point by the other female offender, who yelled ‘give me all your money’, and raised a needle and syringe in her hand above her head. The victim apprehended that he was about to be stabbed, but fortunately, the female failed to make contact when she struck down. The applicant was standing directly behind the other female offender at this point. A further attempt to stab the victim was then made, but the victim turned and ran away. As he was running one of the male offenders ran towards him from the opposite side of the road, as the applicant and the other female offender chased him. The male offender yelled aggressively and kicked out at the victim, who again turned and ran. The male offender chased him for a short distance, but the victim finally managed to make his way into a convenience store.
12 The third attack, which was the subject of the first count, involved another male victim also walking along a street in Potts Point. As he walked towards the group, they split into two. As he went to walk between them, he was grabbed in a headlock by one of the male offenders, while the second male grabbed him around the head and neck. The victim was pulled down from the front by the two offenders, so that he was bent at the waist and his glasses fell off. The victim screamed out ‘help’, while one of the male offenders repeatedly demanded his wallet and the other offender demanded his phone. The group continued to rumble the victim, moving back and forth towards the gutter and between parked cars into the street. The victim was holding his phone in his right hand. The other female offender tried to take it and tried to bite his hand to get him to release the phone. He opened his hand when he felt her teeth on his wrist. He pulled his hand away and the phone was taken. He was then released.
13 This victim’s clothes were ripped; his bottom lip cut; his neck, face and left elbow scratched; and his left buttock bruised. The phone taken was a blackberry with a hand free kit attached.
14 The fourth attack, the subject of the second count, occurred when a third male victim was walking up the McElhone Stairs at Woolloomooloo, while speaking on his mobile phone to his wife. He was on business in Sydney, carrying a travel bag and a laptop computer in a carry case. He was assaulted on two separate occasions by one of the male offenders, after the other female offender yelled ‘where’s your wallet?’ and he replied ‘I don’t have a wallet’. He was grabbed from behind, pulled backwards from the landing, down four or five steps and held down, while he struggled to free himself. Someone continued to shout ‘where’s your wallet, where’s your wallet?’ The victim managed to free himself, to stand up. He pulled out his wallet and dropped it to the ground. He was then robbed of the wallet, laptop and travel bag. The same male assailant then tried to punch him. He avoided most punches, but received one punch in the right eye. The group then escaped down the stairs.
15 His Honour found that this was a prolonged attack over a short period of time, with serious physical injuries the result. His Honour also found that the victim was engaged in a telephone conversation with has wife at the time of the offence, which must have been a particularly traumatic experience for her.
16 The laptop was valued at about $2,000; the wallet contained items including a licence, a number of credit and other cards, over $100 Australian in cash and $100 US in cash and other papers; the Motorola V3 phone was valued at about $150 and the travel bag containing personal clothing and other items was valued at some $300 to $400. This victim suffered a mark to his eye from the punch, a badly sprained ankle and a broken wrist, later undergoing surgery which required screws to be inserted to stabilise the wrist. He was required to wear a support boot for six weeks and had to undergo continuing physiotherapy treatment to his wrist and ankle.
17 During a patrol of surrounding streets, the group was found shortly afterwards by police. A male was carrying a travel case and another person a laptop bag. The members of the group ran, dropping the bags and a mobile phone, later identified as belonging to the fourth victim. The applicant and a male offender were apprehended, but the other two offenders evaded the police. The wallet and some cards were found near Cook and Phillip Park on 29 April.
18 After her arrest the applicant made a number of admissions to police. She said that her purpose in committing these offences had been to obtain money to purchase the drugs ICE and cocaine. The applicant performed the role of a lookout during the first assault. Both she and the other female offenders were carrying syringes, which they used to inject drugs, but she was not aware that the other offender had used her syringe during this assault. She saw the other offender stabbing at the second victim with the syringe. She admitted still being with the group when the third assault occurred. She was also present during the last assault. She was sick of selling herself and needed money. They intended to split the property taken. The male offenders had got carried away, she had not wanted to hurt the victim. She took the laptop, but gave it to the other female offender at the time of the arrest. She had last taken drugs about 5 minutes before the first robbery. She had been awake for days.
19 None of his Honour’s findings about the nature of these offences were challenged on appeal. It was accepted that these were each serious offences.
The applicant’s history
20 It was also accepted that his Honour must have had regard to the applicant’s extensive subjective case, in order to arrive at the sentences which he imposed. That submission must be correct. His Honour undoubtedly had proper regard to the applicant’s personal history. On any view that history was pitiable.
21 The applicant is the younger of two children born to her parents, who separated when she was aged five years, after a history of domestic violence and substance abuse. The Department of Corrective Services had been involved with the family since 1992, with notifications being made as to the applicant’s exposure to domestic violence and being used to obtain medication for the parents for recreational use. These notifications commenced in her first year of life. After the family breakdown the father moved with the brother to Western Australia. Notifications to the Department became more regular after the applicant was aged 7 years. A half sister was born to the mother in September 2000.
22 There were continuing reports of severe neglect and malnourishment; being prostituted by her parents; repeated sexual abuse, especially by partners of her mother; and later the applicant herself propositioning strangers for money. There was ongoing drug abuse by her mother, who was also engaged in prostitution. At 9 years of age the applicant was removed from her mother’s care and declared a ward of the State. She was placed into foster care, and later refuges and supported accommodation. Problems of stealing, assaulting staff, frequent absconding and sexualised behaviour persisted, increasing after contact with her mother.
23 The applicant had a long history of drug and alcohol abuse and was working as a prostitute at the time of the offence, to support heavy drug use. She first commenced using illegal substances when around 7 years of age when introduced to cannabis at home. She used cannabis daily, as well as binge drinking and began using amphetamines at about age 15, progressing to crystal methamphetamine (ICE) used intravenously almost every day. This was later combined with cocaine.
24 The applicant had been hit by a car when intoxicated in 2006, when she was hospitalised for a broken leg. She had been hospitalised for a deliberate overdose and had been diagnosed with a serious illness. She had been admitted on a number of occasions and had been prescribed various medications and treatments over the years. She was first assessed by a psychiatrist when aged 8 years and had been diagnosed with conduct disorder and oppositional defiant disorder, ADHD, reactive attachment disorder and post traumatic stress disorder.
25 The applicant had only completed education to the end of primary school. Her behaviour at high school had led to significant periods of suspension. At the time of the offences the applicant was on a Youth Drug Court program, but had withdrawn from the program after accommodation problems, exposing herself to a breach of bail conditions. There had been other unsuccessful attempts in recent years to address her drug problems.
26 The applicant also gave evidence and read a letter she had written as to her understanding of her offences and their impact on the victims. She described her schoolwork in the Juvenile Justice Detention Centre, a computer course which she had undertaken and her ambition to undertake a secretarial course. She described the treatment which she was receiving from a psychiatrist and a psychologist as helpful and that she was keen to continue with counselling which she was receiving from a Department of Community Services officer. She was receiving help resolving issues associated with her childhood, as well as with her drug and alcohol problems. She explained her remorse for the offences which she had committed and how her time in custody and her growing maturity, had helped her recognise that there was something better for her than being locked up and breaking the law. She felt that she had changed and wanted to continue that change, once released from custody.
27 The applicant was cross examined and described the understanding she had gained of the seriousness of her offences and their effect on her victims. She also explained her desire not to return to a life of prostitution and drugs. She understood the problems which she faced in avoiding that outcome once released. She explained spending her time in custody to change and free herself from her drug habit. She also explained the problems which she encountered in the education which she was pursuing and how she was trying her hardest to overcome her difficulties.
Grounds 1 and 2: The sentencing judge failed to assess where the offence at count 2 fell in the range in terms of objective seriousness; and wrongly articulated the test to be applied in relation to any departure from the standard non-parole period.
28 It is convenient to deal with the first two grounds of the appeal together. For the applicant it was accepted that the sentence imposed for this offence was a low one, but it was argued that given his Honour’s conceded errors in sentencing and the applicant’s exceptional case, that an even lower sentence than that imposed was warranted. The Crown did concede certain errors on his Honour’s part, but argued that given the sentence imposed, leave to appeal was not warranted.
29 In my view the applicant’s complaint in relation to the severity of this sentence ought not to be accepted. Even accepting the errors complained of, no case for leave to appeal being granted in relation to the sentence imposed was established on these grounds. The offences in respect of which his Honour was imposing sentence were serious, unarguably warranting a term of imprisonment, as had been accepted by the applicant on sentencing. The penalty imposed for the count 2 offence fell at the lower end of the available range, even taking account of the powerful subjective case.
30 The applicant’s first complaint was that his Honour failed to identify, with precision and relative to the mid-range, the objective seriousness of this offence and that this failure had militated against the applicant in the sentence imposed. The Crown conceded that his Honour had erred in not specifying that he had undertaken the required assessment of the objective seriousness of the offence (see R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338 at [39]). It argued however, that the sentence imposed demonstrated that he had found the objective seriousness of the offence to be well below the mid-range (see Phan v R [2010] NSWCCA 8 at [15] - [16]).
31 The applicant’s second argument was that his Honour had applied the wrong test to determine whether there should be a departure from the standard non-parole period. His Honour found that the applicant had to demonstrate 'exceptional circumstances' and 'most significant matters in mitigation' if there was to be such a departure. It was accepted that his Honour had concluded that those tests had been satisfied, but nevertheless it was argued that the result was that the standard non-parole period assumed greater importance than it would have, if the correct approach had been applied to the sentencing exercise. The result was that factors specified in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 as relevant considerations had not been taken into account in determining sentence.
32 The Crown again conceded that his Honour had erred in the approach adopted, but argued that the result of the exercise undertaken, a substantial departure from the standard non-parole period by about two thirds, was not reflective of error in the circumstances of this offence.
33 This Court will not always intervene to re-sentence when errors of the kind here complained about have occurred in sentencing. Before intervening,
s 6(3) of the Criminal Appeal Act 1912 requires that the Court come to the view that some other sentence is warranted in law (see Porter v R [2008] NSWCCA 145 at [74] to [76]; Kerr v Regina [2008] NSWCCA 133 at [35] - [36]; AJO v Regina [2008] NSWCCA 28 at [33]).
34 The sentencing exercise which his Honour was undertaking had to be conducted in light of the fundamental principle that the sentence imposed must ultimately reflect the objective seriousness of the offence and that there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed (R v Scott [2005] NSWCCA 152 at [15]). Unduly lenient sentences must be guarded against, the sentencing exercise being required to be conducted according to s 3A of the Crimes(Sentencing Procedure) Act:
- 3A Purposes of sentencing
- The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
35 In this case, his Honour’s remarks make it apparent that he also approached the sentencing task before him in accordance with the requirements of s 6 of the Children (Criminal Proceedings) Act 1987:
- 6 Principles relating to exercise of functions under Act
- A person or body that has functions under this Act is to exercise those functions having regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,
(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,
(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,
(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
36 In this case, in sentencing his Honour was also obliged to have regard to the other two offences to be taken into account under the form 1. In ReAttorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; (2002) 137 A Crim R 180, Spigelman CJ observed in relation to that exercise that:
42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.
37 With that in mind, in my view it is apparent that the sentence imposed for this offence, of 4 years and 6 months imprisonment, comprising a non-parole period of 2 years and 6 months and a parole period of 2 years, was at the lower end of the available range, given the maximum penalty of 25 years and the standard non-parole period of 7 years.
38 The conclusions which his Honour reached can only have resulted from a view, even though unstated, that the objective seriousness of this offence was below mid-range. The non-parole period imposed involved a substantial departure from the applicable standard non-parole period, even before the application of a 25% discount for the applicant’s early plea.
39 In coming to a conclusion as to whether there should be any departure from the standard non-parole period, his Honour was obliged to consider the matters referred to in s 21A of the Crimes (Sentencing Procedure) Act. His Honour also had to consider s 44 of the Crimes (Sentencing Procedure) Act and whether there were special circumstances warranting a departure from the prescribed balance between parole and non-parole periods there fixed. He also had to consider s 19 of the Children (Criminal Proceedings) Act, and whether an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender, should be made.
40 At the sentencing hearing his Honour was urged to adopt a significant departure from the standard non-parole period, given the applicant’s age, her vulnerable position and traumatic background, her minimal role in the offence and that she was not responsible either for the assault, or the taking of property. It was argued that rehabilitation had to be favoured over deterrence, in accordance with s 6 of the Children (Criminal Proceedings) Act. While the Crown accepted aspects of these submissions, the nature of the role which was claimed for the applicant was not accepted. This accorded with the agreed facts that the applicant had confessed that it was she who had taken the laptop from the fourth victim, intending to share in what had been stolen; that she had acted as a lookout in the first form 1 offence and had participated in the chase, in the second.
41 The applicant conceded that a custodial sentence was warranted in relation to both offences, but sought that wholly concurrent sentences be imposed. His Honour was asked by both parties to find special circumstances in two ways. Firstly, so as to vary the ratio between the head sentence and non-parole period and secondly, so that the applicant would serve her term as a juvenile offender. Both parties urged that the applicant be given the benefit of a lengthy period of intensive supervision as a juvenile offender, with the Crown urging that there be no release before the applicant had completed her year 10 studies. It is apparent that his Honour accepted these submissions.
42 His Honour concluded that ‘involvement in the commission of such an offence whatever other offences might be relevant, and must be taken into account, calls for a sentence of imprisonment of some significant length and clearly. Unless (sic) exceptional circumstances are demonstrated it would require the court to impose a sentence of at least seven years by way of a non-parole period.’
43 His Honour’s remarks show that his conclusion that there should be a substantial departure from the standard non-parole period followed from his consideration of the objective and subjective factors relevant to an assessment of the applicant's criminality.
44 His Honour’s remarks also show that he took account of matters going to rehabilitation and remorse, as he was urged. They included the applicant’s early plea; significant evidence of genuine and comprehensive remorse and insight into her offending, especially for the victims of her offences; efforts at rehabilitation; and constructive efforts being made to rehabilitate, including pursuing education at year 9 and 10 levels with institutional support available while in custody.
45 As I have said, the applicant's subjective circumstances were indeed pitiable. Nevertheless, his Honour was constrained in the extent to which those matters could be taken into account in determining sentence. While his Honour was entitled to take matters such as the applicant’s history of drug addiction into account, he was not entitled to accept that addiction as an excuse for these crimes. Nor could a need for funds to support an addiction lead to an assessment that there was lesser culpability for these offences. (See R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [202] and [206].) Rehabilitation, especially in a child offender is an important sentencing objective, but his Honour was also obliged to keep in mind objectives of retribution and deterrence (see Henry at [268] - [270]).
46 The agreed facts revealed that the count 2 offence was unarguably a serious one, as was accepted for the applicant. So too were the two form 1 offences, which attracted maximum penalties of 20 and 14 years respectively. His Honour took account of the fact that the applicant had played a relatively minor role in these offences, but correctly observed that this was not of itself indicative of any lesser offence. Nevertheless, he accepted that this role and the evident lack of planning, indicative of a life which had spiralled out of control, were considerations bearing on sentence, particularly when considered with the applicant’s prospects of rehabilitation and remorse.
47 As both parties had urged, his Honour concluded that there were special circumstances and fixed a period of two years and six months custody in Junipera Juvenile Justice Centre, if institutionally possible, or in a corresponding youth centre, with a further period of two years on parole, during which there will be a continuation of the sort of programs which the evidence had shown had been provided, with an intensification of those programs to assist the applicant in adjusting to life outside custody.
48 Given the objective seriousness of the offence which constituted count 2 and of the two other offences which had to be taken into account in determining sentence for that offence, it is not open to conclude that the sentence imposed by his Honour was too severe. While his Honour may have departed from a strict adherence to certain sentencing principles, as the Crown conceded, no resulting error in the sentence imposed was shown.
Ground 3 and 4: The sentencing judge had regard in an impermissible fashion to the applicant’s prior criminal record as an aggravating factor and had erred in finding the offences to be ‘a series of criminal acts’ and so an aggravating factor for purpose of s 21A (2)(m) of the Crimes (Sentencing Procedure) Act.
49 The applicant’s third complaint was made by reference to s 14 of the Children (Criminal Proceedings) Act, which provides that:
14 Recording of conviction
(1) Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court:
- (a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and
(b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.
50 The case for the applicant was that all finalised entries on her record related to offences committed before she was aged 16 years and accordingly had not attracted a conviction. His Honour had, however, referred to her prior record as ‘convictions’ and had taken them into account impermissibly, when dealing with aggravating matters under s 21A of the Crimes (Sentencing Procedure) Act. The record could only have operated in aggravation by disentitling the applicant to leniency which she might otherwise have been entitled (R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566).
51 The Crown again agreed that his Honour did not properly explain how he took the applicant’s record into account, having earlier referred to that extensive record as being explicable, given her circumstances. It accepted that the applicant’s record was only relevant in the way submitted for the applicant. Having regard to the conclusions which his Honour reached, however, it was submitted that it had not been demonstrated that the record was taken into account in an impermissible way. If there was error, it was not such as to require intervention, given the sentence imposed.
52 As to the applicant’s next complaint, it was conceded by the Crown that his Honour had erred if he had taken into account the series of offences before him as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act (see R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740, at [28] - [29]). It was argued however, that given the sentence imposed, that his Honour had treated the four offences as aggravating factors, was not apparent.
53 It was further argued that any error in that respect was offset by his Honour’s failure to reflect the fact that there were different victims in respect of each offence, making the sentences on the two counts wholly concurrent, an approach not available in the circumstances. In R v Janceski [2005] NSWCCA 228; (2005) 44 MVR 328 it being held at [21] - [23]:
22 In this second sub-category, it is easy for the sentencing judge to consider the sentencing process as being related to a single action which has created multiple victims, and therefore to fall into the error of imposing wholly concurrent sentences, each of them having been assessed on the basis that the existence of the multiple victims aggravated that sentence. Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, which identifies the fact that an offence involved multiple victims as an aggravating factor, may (read in isolation) unfortunately lend credence to that approach. That is how the judge approached his task in the present case. Such an approach overlooks the fact that, in a case such as the present, there are two counts, each identifying one of the victims and each requiring a separate sentence. It is completely contrary to principle to aggravate each of those sentences on the basis that each offence resulted in multiple victims: Regina v Tadrosse [2005] NSWCCA 145 at [28]–[29].
21 The first error to which the Crown points is that the two sentences are wholly concurrent. There are at least two distinct categories of cases in which problems with concurrency arise. The first is when the offender is being sentenced for discrete offences committed on different occasions. The concurrency of sentences for that category is now governed largely by Pearce v The Queen (1998) 194 CLR 610, which overruled the practice previously common in this State of fixing one of several concurrent sentences to reflect the total criminality of the offender for all the offences. The second category is where the one incident or enterprise gives rise to different charges, usually where there is more than one victim. That category has at least two sub-categories. An example of one of those subcategories is where the offender repeatedly fires a gun, injuring a number of different persons, each as a result of a different action by the offender, although part of the one incident, when it is appropriate to take into account the fact that the offences were substantially contemporaneous and connected: Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168. The other sub-category is where the one action by the offender causes a number of people to be injured and where separate charges are laid in relation to each victim. That is the present case.
54 In my view, rather than impermissibly treating the other offences to which the applicant had admitted her guilt as an aggravating factor, it is apparent that the sentence imposed was a very lenient one. That conclusion is inescapable when it is considered that his Honour was determining the sentence on count 2 in the context of the two form 1 offences.
55 Before his Honour it was conceded that the applicant’s previous record was an aggravating factor, and that additionally, she was on conditional liberty at the time of the offence. His Honour expressly considered various aggravating and mitigating matters specified by s 21A which he identified, including the applicant’s poor record of prior offending and that at the time of the offence, the applicant was on bail for various other offences. His Honour was entitled to have regard to the evidence of the applicant’s prior offending (see Tapueluelu v R [2006] NSWCCA 113 at [30]). That evidence was relevant to the question of leniency and whether the offence was an uncharacteristic aberration or a manifestation of a continuing attitude of disobedience of the law, which may indicate that a more severe penalty is warranted (see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477.)
56 There was no error in his Honour’s approach in these respects.
Ground 5 The judge failed to have proper regard to the fact that the offence at count 1 and the two offences on the form 1 could have been dealt with in the Children’s Court.
57 The applicant drew to his Honour’s attention that the count 1 offence was not a serious children’s indictable offence and could be dealt with either according to law or under the sentencing options provided in s 33 of the Children (Criminal Proceedings) Act. Section 18 of that Act provides:
- 18 Other indictable offences
(1) A person to whom this Division applies shall, in relation to an indictable offence other than a serious children’s indictable offence, be dealt with:
- (a) according to law, or
(b) in accordance with Division 4 of Part 3.
- (a) the seriousness of the indictable offence concerned,
(b) the nature of the indictable offence concerned,
(c) the age and maturity of the person at the time of the offence and at the time of sentencing,
(d) the seriousness, nature and number of any prior offences committed by the person,
(e) such other matters as the court considers relevant.
- (a) the court were the Children’s Court, and
(b) the offence were an offence to which that Division applies.
58 His Honour dealt with the offences according to law. On appeal the applicant relied on Regina v Palmer [2005] NSWCCA 349, where it was observed at [15]:
15 The written submissions on behalf of the applicant and those also on behalf of the respondent refer to a number of decisions of this Court. For the purposes of this application, they are stated in short form as a series of propositions or principles as follows:-
(a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30].
(b) Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge: Crombie (supra) at [15].
(c) Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16].
(d) Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115.
(f) Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case – if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed).(e) Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17].
59 Given the nature and seriousness of the count 1 offence and those contained in the form 1 document, it is apparent that his Honour did not err in the approach adopted. The appropriate sentence for these offences was not of a kind otherwise provided for by s 33 of the Children (Criminal Proceedings) Act. The jurisdictional limit of the Children’s Court may not be regarded as a sentence reserved for a worst case (see the discussion in McCulloughv R [2009] NSWCCA 94 at [26]). As his Honour found, while not herself the physical aggressor, the applicant was a willing participant in these serious, unprovoked attacks on a number of different pedestrians. The applicant had a poor record of prior offending, also a matter to be taken into account under s 18(1A)(d), in determining how the offences were to be dealt with. These were not offences at the lower end of seriousness, but offences admittedly warranting a term of imprisonment. Dealing with these offences according to law, as his Honour did, was entirely appropriate in the circumstances.
60 His Honour’s remarks also show that he paid appropriate regard to the mitigating matters presented. The sentences imposed do not leave open the conclusion that any relevant factor was overlooked. The sentence imposed for count 1 was not severe in the circumstances. To the contrary, there is room for the view that a harsher overall penalty for this series of offences than the applicant in fact received was warranted. Given what was decided in Janceski, it seems to me that the applicant was particularly fortunate that the result of his Honour’s consideration of the matter was a sentence in respect of count 1 which was made entirely concurrent with that imposed in respect of count 2, and that this was a conclusion not challenged by the Crown on appeal.
61 While the sentence for the count 1 offence fell at the top of the range of orders which the Children’s Court could have imposed, given the gravity of the offence and the concurrence ordered, it did not exceed the available range. It was a lenient sentence, even having in mind the significant mitigating matters which his Honour took into account. The way in which his Honour dealt with the two form 1 offences in relation to the sentence imposed in respect of count 2 also resulted in a lenient sentence, as I have explained. This aspect of the applicant’s case was not established.
Conclusion
62 The conclusions to which his Honour came showed that the applicant was not deprived of any leniency to which she was entitled. To the contrary, in the circumstances the penalties imposed were so lenient, that a conclusion that some lesser sentence was warranted as a matter of law is not available. In my view in these circumstances leave to appeal must be refused.
63 The order I would propose is that leave to appeal against sentence be refused.
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