JT v R

[2011] NSWCCA 128

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

JT v R [2011] NSWCCA 128

Hearing dates:

2 June 2011

Decision date:

10 June 2011

Before:

McCLELLAN CJ at CL at 1
HOEBEN J at 2
GROVE AJ at 42

Decision:

Leave to appeal granted.

Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - robbery with infliction of grievous bodily harm - applicant a juvenile - whether time in custody adequately taken into account when fixing commencement of sentence - whether "planning" was properly taken into account as an aggravating factor - the extent to which sentencing judge needed to take into account youth of applicant - applicable principles.

Legislation Cited:

Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Knight v Regina [2010] NSWCCA 51
KT v Regina [2008] NSWCCA 51
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v MA [2004] NSWCCA 92
R v McHarg [2011] NSWCCA 115
R v Pham and Ly (1991) 55 A Crim R at 35
R v SDM [2001] NSWCCA 158

Category:

Principal judgment

Parties:

JT - Applicant
Regina - Respondent Crown

Representation:

Counsel
Mr M Johnston - Applicant
Ms V Lydiard - Respondent Crown
Solicitors
Mr B Sandland - Legal Aid Commission
Mr S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

File Number(s):

2009/4244

Publication restriction:

Applicant is not to be named.

 Decision under appeal 

Date of Decision:

2009-09-09 00:00:00

Before:

Syme DCJ

File Number(s):

2009/4244

Judgment

1. McCLELLAN CJ at CL: I agree with Hoeben J.

1. HOEBEN J:

Offences and sentence

On 23 March 2009 the applicant pleaded guilty at Cobham Children's Court to an offence of robbery with infliction of grievous bodily harm, contrary to s96 of the Crimes Act 1900, the maximum penalty for which is imprisonment for 25 years. The offence occurred on 26 July 2008.

1. The applicant was 16 years and 7 months old at the time of the offence. Accordingly the s96 offence fell within the definition of a "serious children's indictable offence" under s3 of the Children (Criminal Proceedings) Act 1987. The applicant was therefore committed for sentence to the District Court to be dealt with according to law.

1. The sentence proceedings were conducted on 26 August 2009 before Syme DCJ. Her Honour passed sentence on 9 September 2009. The applicant was sentenced to imprisonment for 6 years with a non-parole period of 3 years and 2 months commencing 1 August 2009 and expiring 30 September 2012 with a balance of term of 2 years and 10 months expiring 31 July 2015.

1. The applicant seeks leave to appeal from the sentence passed by her Honour on the following grounds:

Ground 1 - The trial judge erred in failing to take into account the appellant's time in custody and to properly consider the issue of totality.

Ground 2 - The trial judge erred by taking into account "planning as an aggravating factor".

Ground 3 - In all the circumstances, particularly taking into account the age of the applicant, the sentence was manifestly excessive.

Factual background

1. At about 10pm on Saturday 26 July the victim JV, who was aged 14, and his brother J, aged 11, were returning home from watching a rugby league match featuring the Penrith team. As they did so, a car pulled up and the applicant and another offender approached the victim. They said "Give me your money" to which the victim replied "I don't have any". The applicant and the co-offender then punched and kicked the victim repeatedly, as well as stomping on his head. As a result of the assault, the victim suffered a deep 10 cms wound to the right side of his head and other severe lacerations and swelling over his entire facial area. During the attack the victim curled up in an attempt to protect himself without success. The attack rendered the victim unconscious. The applicant and the co-offender took the victim's jacket, his white running shoes and his wristwatch while he was unconscious. The applicant and his co-offender then returned to the motor vehicle which left the area.

1. By way of further background, the applicant was taken into custody on 2 August 2008 in relation to other offences. These offences included two counts of affray, two counts of assault police officer and counts of resist or hinder police and hinder apprehension of a person who committed a serious offence, destroy or damage property, common assault and escape police custody. Control orders were imposed on 26 May 2009 in respect of all of those offences, the latest in time expiring on 1 August 2009.

1. On 15 June 2009 the applicant received two further control orders in respect of one count of larceny and one of assault occasioning actual bodily harm in company. Those control orders were entirely concurrent with the orders imposed on 26 May 2009 as to the period of detention. The applicant was charged with the offence, the subject of this application, on 6 August 2008.

1. Since sentence was passed for this offence, the applicant has been convicted and sentenced while in custody for an offence of assaulting a Corrective Services officer and occasioning actual bodily harm. On 29 November 2010 he was sentenced for that offence to imprisonment for 16 months with a non-parole period of 12 months to expire 29 September 2013 and a balance of term of 4 months to expire on 29 January 2014.

Remarks on sentence

1. Having reviewed the facts, her Honour allowed a 25 percent discount to the applicant because of the utilitarian value of his early plea of guilty. Her Honour declined to backdate the commencement of the sentence to 1 December 2008 because "to do so would nullify the effect of the prior sentences". Her Honour went on to say:

"Counsel has referred to the principle of totality, however I am sentencing the offender only in relation to this single offence." (ROS 3.9)

Consequently, her Honour was only prepared to backdate the commencement of the sentence to 1 August 2009.

1. Her Honour found aggravating features to be that the offence was committed in company and that the applicant was on several good behaviour bonds from the Children's Court at the time of the offence. Her Honour noted that the applicant had been convicted of a similar robbery matter in the Children's Court in March 2007. While her Honour did not take that into account as an aggravating circumstance, she noted it would disentitle the applicant to considerations of leniency.

1. Her Honour took into account as an aggravating feature that the victim was a 14 year old child and therefore vulnerable to this kind of offence. Her Honour noted that although violence was an element of this offence, in assessing its seriousness she would have regard to the fact that the violence was sustained and substantial.

1. Her Honour took into account as an aggravating feature the fact that the offence was planned. Her Honour said:

"While this is planning to a limited degree and the choice of victim appears to have been totally random, this is an aggravating circumstance to that limited degree." (ROS 4.3)

1. Her Honour had regard to the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. By reference to Henry her Honour noted that while the applicant was young, unlike the offender in Henry he had a very significant criminal history. In Henry there was limited, if any, actual violence whereas in this case significant violence was inflicted on the victim. Unlike the victim in Henry , the victim here was vulnerable. Her Honour also noted that in Henry the offence was contrary to s97 of the Crimes Act which imposed a lesser maximum penalty.

1. Her Honour took into account the provisions of s6 of the Children (Criminal Proceedings) Act 1987 . Relevantly, her Honour made reference to the following subsections:

"6(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

...

(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."

1. Her Honour took into account that general deterrence was of less significance when sentencing a young offender.

1. In relation to the applicant's subjective case, her Honour noted the following factors. The applicant was born in 1991. He was aged 16 years and 7 months at the time of the offence. He was due to turn 18 in December 2009. He was of Samoan descent and came to Australia with his family when he was aged 5. His father has been in custody for violence related offences and physical punishment was common at home. His mother and his family were supportive of him.

1. As a result of his behaviour at school, the applicant was frequently suspended from year 7 onwards. He was completing year 10 while in custody. He had not engaged in any employment.

1. The applicant commenced using alcohol and cannabis from the age of 12 and at the time of his offending, was regularly abusing those substances. He had never undergone any rehabilitation.

1. A psychologist's report identified the applicant has having longstanding anger and tolerance issues. Her Honour noted that while the psychologist identified options such as anger management counselling, drug and alcohol counselling and violent offender programs which were available to the applicant, all of them required his co-operation if they were to be useful. The applicant scored poorly on IQ tests. The psychologist concluded that his poor verbal and reasoning skills were associated with his impulsivity and accordingly, constituted a risk of re-offending. The psychologist thought that his prospects for rehabilitation were dim. Her Honour accepted that the applicant would require substantial and sustained supervision once he was released.

1. Her Honour concluded her remarks as follows:

"This offence for the reasons given is above midrange of seriousness for an offence of this nature. Having regard to the assessment of this offence as higher than midrange, taking into account the s21A factors that I have referred to including the mitigating circumstances, there are reasons and there will be reasons for altering the standard non-parole period ratio, those reasons will be the age of the offender and the demonstrated need for continued and long term supervision." (ROS 11.5)

1. Her Honour directed that the applicant remain in a Juvenile Detention Centre rather than an adult prison after he turned 18.

Appeal

Ground 1 - The trial judge erred in failing to take into account the applicant's time in custody and to properly consider the issue of totality.

1. The applicant relied upon s24(1)(a) of the Crimes (Sentencing Procedure) Act 1999 which provides that when sentencing an offender the Court must take into account any time for which an offender has been held in custody in relation to the offence. That having been said, the applicant accepted that because the other offences were committed at different times and involved different victims, it was within the discretion of the sentencing judge to impose a sentence that was cumulative on that passed for the other offences.

1. The thrust of the applicant's submissions was that her Honour erred when she said that the principle of totality did not apply because she was only sentencing the offender in respect of the robbery offence. In saying that she could not consider totality in that context, her Honour was clearly in error. She could have, if she regarded it as appropriate, considered not only the sentence which she was passing but the other sentences which he was serving so as to ensure that the principles of totality and proportionality were observed.

1. However, her Honour was not obliged to do so. Earlier in her Remarks on Sentence, her Honour declined to backdate the commencement of the sentence for this offence to 1 December 2008 because to do so would nullify the effect of the prior sentences. This was an entirely proper basis for her Honour declining to backdate the commencement of the sentence more than she did. To have acceded to this application would have meant that the applicant spent only four months in custody for the very serious instances of offending for which those sentences were passed (see [7] - [8] hereof).

1. Looked at from that point of view, the fact that her Honour substantially accumulated the sentence she passed on the earlier control orders did not offend the principles of totality and proportionality. On the contrary, such a level of accumulation was proportionate to the serious offending which had led to the imposition of control orders up to 1 August 2009 and also had adequate regard to the serious offence for which the applicant was then being sentenced by her Honour.

1. This ground of appeal has not been made out.

Ground 2 - The trial judge erred by taking into account "planning as an aggravating factor".

1. Her Honour clearly erred in taking into account as an aggravating factor the limited planning which she identified as being present in this offence. In Knight v Regina [2010] NSWCCA 51 James J said:

'16 Section 21A(2)(n) has been the subject of interpretation by this Court. See for example R v Yildiz (2006) 160 A Crim R 218; Fahs v R [2007] NSWCCA 26; Hewitt v R (2007) 180 A Crim R 306. It has been consistently held by this Court that a sentencing judge should not find that the aggravating factor in s 21A(2)(n) was present, unless there is evidence that would permit a finding beyond reasonable doubt that the degree of planning in the instant case exceeded the degree of planning which would ordinarily be expected in an offence of that kind."

1. Although her Honour erred in the manner specified, it is clear from her Honour's mode of expression that she gave very little weight to this factor. Having characterized the planning as being "to a limited degree" her Honour's conclusion was "this is an aggravating circumstance to that limited degree".

1. Although error has been identified, it is clear that this error had only a minimal effect on the sentence which her Honour passed.

Ground 3 - In all the circumstances, particularly taking into account the age of the applicant, the sentence was manifestly excessive.

1. The applicant submitted that when one allowed for the 25 percent discount, her Honour's start point for the sentence must have been 8 years. The applicant submitted that such a start point was manifestly excessive when one had regard to the applicant's age and personal circumstances.

1. The applicant submitted that although her Honour purported to take into account the applicant's age in her Remarks on Sentence, she in fact did not do so. The applicant submitted that this was the very type of offence, involving as it did impulsivity and opportunism, which was significantly contributed to the applicant's youth.

1. In support of that proposition, the applicant relied upon the following extract from KT v Regina [2008] NSWCCA 51 where McClellan CJ at CL set out the principles applicable when sentencing young offenders:

"22 The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. ...

23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. ... The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence. ... Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. ...

24 Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. ...

25 The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity. ... In determining whether a young offender has engaged in "adult behaviour"... the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. ... Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society."

1. I am not persuaded that this is the sort of offence which indicates impulsivity and immaturity on the part of the applicant so that the need for rehabilitation should be given paramount consideration. Rather, this is the very sort of offence that McClellan CJ at CL had in mind when qualifying his initial statement of principle in paras [24] and [25] of KT v Regina .

1. This is the sort of case where general deterrence and retribution cannot be ignored. The bashing of a 14 year old child into insensibility during the course of a prolonged attack by two significantly older youths is very much the sort of crime of violence and considerable gravity which his Honour had in mind. The existence in this case of an extensive criminal history, the nature and circumstances of the offence and the applicant's obduracy in continuing to commit offences of considerable violence meant that rehabilitation did not have the force which it would normally have when sentencing a juvenile.

1. Similar observations were made by Dunford J in R v MA [2004] NSWCCA 92 where his Honour said:

"28 ... There comes a point at which the seriousness of the crime committed by a young offender, particularly if a crime of violence, is so great that the special attention normally given to rehabilitation in the case of young offenders must give way, and greater emphasis given to punishment and deterrence. The relevant principle was summarised in the joint judgment of this Court in R v AEM Snr and Ors [2002] NSWCCA 58 at [97] - [98] as follows:

"It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation.... However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society.""

1. In R v Pham and Ly (1991) 55 A Crim R, Lee CJ at CL said at p 135:

"It is true that courts must refrain from sending young persons to prison unless that course is necessary. But the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal courts' function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes."

1. Contrary to the applicant's submissions, her Honour did take into account all relevant principles. She took into account the requirements of s6 of the Children (Criminal Proceedings) Act 1987 and to the extent that it was applicable, the guideline judgment in Henry. In that regard Henry has been held to apply to the sentencing of juveniles ( R v SDM [2001] NSWCCA 158).

1. The approach followed by her Honour was consistent with the observations of this Court in R v McHarg [2011] NSWCCA 115 where Johnson J (with whom Whealy JA and Hidden J) agreed) said:

"146 ... It was important that the objective seriousness of his offences not be overshadowed by his youth and the undoubted desire to take steps to foster his rehabilitation. It remained necessary as well to have regard to issues of personal and general deterrence. In relation to crimes of violence committed on the streets by groups of young persons, consideration of general deterrence should be given substantial weight, notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69].

147 Given the Respondent's past history of committing offences despite non-custodial sentencing orders in the Children's Court, and his commission of these offences whilst subject to conditional liberty by way of bonds or bail (or both), specific deterrence remained a significant factor on sentence. "

1. Her Honour's sentence involved an appropriate balance of the principles referred to in the above cases and no error, either in her Honour's approach or in her Honour's sentence has been made out.

Conclusion

1. The orders which I propose are:

(1) That leave to appeal be granted.

(2) That the appeal be dismissed.

1. GROVE AJ: I agree with Hoeben J.

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Decision last updated: 16 June 2011