M O v Regina

[2014] NSWCCA 11

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

M O v REGINA [2014] NSWCCA 11

Hearing dates:

12 February 2014

Decision date:

12 February 2014

Before:

Emmett JA at [29]
Hall J at [28]
RS Hulme AJ at [1]

Decision:

(i) Grant leave to appeal

(ii) Allow the appeal;

(iii) Quash the sentence imposed by Lakatos DCJ on 8 November 2013;

(iv) Order that the Applicant be discharged upon her entering a good behaviour bond for a period of 1 year from the date it is entered into.

Catchwords:

CRIMINAL LAW - sentencing -appeal against sentence -sentence was manifestly excessive - appeal allowed

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Category:

Principal judgment

Parties:

M O (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Smith (Crown)
R Rigg (Applicant)
Solicitors:
S Kavanagh (Crown)
S. E. O'Connor (Applicant)

File Number(s):

2013/8891

Publication restriction:

None

 Decision under appeal 

Citation:

R v MO

Date of Decision:

2013-11-08 00:00:00

Before:

Lakatos DCJ

File Number(s):

2013/8891

Judgment

1. RS HULME AJ: On 8 November 2013 Lakatos DCJ sentenced the offender and a co-offender JB in respect of an offence of, on 10 January 2013 detaining SW without her consent with the intent of committing a serious indictable offence, namely, actual bodily harm in company in circumstances of special aggravation, namely, them being in company with (each other) and PM, and at the time actual bodily harm was occasioned to SW.

1. The offence is one arising under s 86(3) of the Crimes Act 1900 and rendered the applicant liable to imprisonment for 25 years.

1. At the time, the applicant was aged fifteen and eight months and JB was something under a year older and SW seems to have been aged 19.

1. The sentence imposed on the applicant was imprisonment for 18 months commencing on 8 November 2013, including a non-parole period of 9 months. The sentence imposed on JB was imprisonment for 2 years including a non-parole period of 1 year commencing on 1 June 2013. His Honour observed that this date was when JB went into custody for other matters and "there is a large element of leniency involved in making those entirely concurrent".

1. The grounds of appeal are:

(1)   His honour failed to take into account the fact of the applicant having a five month old baby when sentenced

(2)   The sentence is manifestly excessive

(3)   There is a marked disparity between the sentence imposed on the applicant and that imposed on her co-offender JB, giving rise to a justifiable sense of grievance of the part of the applicant.

1. The circumstances of the offence are that all persons were in PM's flat. PM told SW to leave. When SW did she was pursued by PM. PM, then in company with JB, sat SW down on a brick wall where SW was punched in the face twice by PM and three times by JB. These persons then walked SW back into the flat, in the course of which exercise JB elbowed SW twice in the face. In the flat PM walked SW into a rear bedroom. JB and the applicant followed.

1. There PM again punched the victim. JB grabbed the victim's arms while PM continued punching. PM told the applicant to punch SW and the applicant did so once in the face. All three offenders then walked SW to the door of the flat and "shoved her outside". The victim's injuries were described by the doctor who treated her as "undisplaced comminuted fractures to her nose which had healed well" and "terrible facial bruising over the cheek, nose and jaw" and the extent of facial bruising was described as "awful."

1. His Honour concluded that PM was the instigator and principal perpetrator and that the applicant was not involved in the initial detention of SW and took a much lesser role in the assaults than did JB. He described the applicant's role as comparatively subsidiary.

1. At the time of the offence against SW, JB had committed offences of, in October 2012 shoplifting and in November 2012 assault occasioning actual bodily harm. In May 2013 she committed further offences that included robbery in company and assault occasioning actual bodily harm. In August 2013 she was sentenced for these and other offences committed. One of the sentences then imposed was a control order for two months commencing on 1 June 2013 although it should be noted that this and other (non-custodial) sentences imposed at the same time are the subject of appeals against severity. The Court was told today that it would seem these appeals were not proceeded with but I don't regard that as of significance for the purpose of this appeal. JB was on bail at the time of the offences dealt with by Lakatos DCJ. JB was also itinerant and consuming ice daily and any other drug she could obtain.

1. JB had been fostered from an early age due to her mother being unable to care for her. The foster relationship had broken down in 2012 due to JB's erratic and violent behaviour. In early 2013 she was in a refuge where she was found unconscious after taking Xanax, cannabis and alcohol. Lakatos DCJ remarked that JB's inability or lack of commitment at that time to further her rehabilitation was troublesome.

1. Earlier JB, who was described as intelligent, had been awarded a scholarship to SCEGGS High School. She left and went to another high school where her time was marked by inconsistent attendance and behavioural issues. She is intelligent and a talented sportswoman and talented student.

1. His Honour observed that JB would benefit from a residential drug and alcohol rehabilitation programme and requires anger management and counselling. While recognizing the possibility that JB might lead a lawful and productive life, his Honour was not prepared to find that her prospects of rehabilitation were good. His Honour remarked that he thought that JB's expressions of remorse might reflect more upon her own circumstances than the position of the victim.

1. The applicant is the second of eight aboriginal children. Her parents' relationship was characterised by way of frequent fights and alcohol misuse and the applicant and her older brother had most of the responsibility for looking after her younger siblings. She was exposed to domestic violence, financial hardship and substance abuse. She was said to have had no significant behavioural issues until she was 15 although other evidence was to the effect that she was consuming alcohol from age 13 and experimenting with cannabis. She left school midway through year 9. Psychological testing placed her in the borderline to low average level of ability and intelligence.

1. She gave birth to a son on 7 June 2013. According to the author of a Pre-Sentence Report that changed her view of life and she has a good relationship with her partner and appears to take responsibility for her actions and has now distanced herself from her peers.

1. At the time of the offence against SW the applicant had no criminal record. It is not clear what conclusion his Honour came to as to her risk of re-offending but generally the matters to which his Honour referred argued for her having reasonable prospects of not re-offending.

1. JB and the applicant pleaded guilty and were awarded the 25% discount for doing so. In the sentencing of JB an offence on a Form 1 of common assault was taken into account. That offence was JB's punching of the victim in the face.

1. A victim impact statement was before his Honour. It is unnecessary for me to quote from it but his Honour recorded that he had little doubt that the victim would carry the psychological impacts of what occurred for a very long time.

1. I turn to the grounds of appeal:

Ground 1

His Honour failed to take into account the fact of the applicant having a five month old baby when sentenced

1. In regards to the applicant's five-month-old baby, his Honour indicated:

"I have given long regard to the fact that you are a new mother. It is regrettable that you will be separated from your child. Unfortunately, as I see my duty, I have no option but to impose such a sentence."

1. During the course of submissions his Honour quoted a psychologist who examined the applicant:

"Ms Hopkins, the psychologist who examined the applicant says, and I accept this, it would be unfortunate if this offender was placed on a control order given the age of her child. It is one matter I have had long regard to."

1. In the face of these remarks the first ground as expressed must fail. There was no evidence adduced as to what was to happen to the applicant's baby in the event of the applicant being incarcerated or evidence as to the probable effect on the baby from separation. In these circumstances, there is no error in his Honour failing to find that the impact on the child would have been such as to bring the circumstances within the rare category where the impact of incarceration on an offender's family can go in mitigation.

1. It may be accepted that the existence of the baby would be likely to make the applicant's incarceration harsher on her than otherwise but that can most conveniently be dealt with under ground two.

Ground 2

The sentence is manifestly excessive

1. His Honour properly drew attention to the seriousness of the attack on SW and the need for a sentence to reflect the objective gravity of the offence. Furthermore, it is clear that he recognized the subjective circumstances favourable to the applicant. That said, in my view, he did not give the latter sufficient weight.

1. The applicant had no prior record. She had no history of violence. On her part there was no premeditation. She had no part in the initial detention of the victim and only a limited involvement after. She was not an instigator of the attack and administered one punch. She had a background such that she was unlikely to have had inculcated in her, with the strength one would fairly ask of parents, respect for others. The evidence indicated remorse and reasonable prospects of rehabilitation. She had a five-month-old child. In these circumstances, the sentence imposed on the applicant should not have involved full-time custody and the sentence that was imposed was manifestly excessive.

Ground 3

There is a marked disparity between the sentence imposed on the applicant and that imposed on her co-offender JB, giving rise to a justifiable sense of grievance of the part of the applicant.

1. In light of the conclusion just expressed, it is unnecessary for me to explore this ground. However, it is not inappropriate to observe that I would find in the applicant's favour on this ground also. The difference in criminality between JB and the applicant, together with the difference in the subjective circumstances, demanded that there be a significantly greater difference in their sentences than Lakatos DCJ imposed. Particularly this is so, when account is taken of the concurrency implicit in JB's sentences. In effect JB was given one month more in her non-parole period than was the applicant.

Conclusion

1. It becomes necessary for this Court to re-sentence. Against that possibility an affidavit of the applicant was read. In it the applicant deposed to using her time in custody to advantage and that she has not misbehaved. In these circumstances, and being satisfied that the pre-conditions exist, an appropriate sentence is a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. The applicant has spent over three months in custody and in these circumstances the term of the bond should be one year.

1. I propose the following orders:

(i) Grant leave to appeal

(ii) Allow the appeal;

(iii) Quash the sentence imposed by Lakatos DCJ on 8 November 2013;

(iv) Order that the applicant be discharged upon her entering a good behaviour bond for a period of 1 year from the date it is entered into.

1. HALL J: I agree.

1. EMMETT JA: I agree with the observations made by RS Hulme AJ and with the orders he proposes for the reasons given by him. The orders of the Court, will, therefore, be those that were just announced by RS Hulme AJ.

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Decision last updated: 20 February 2014