Mallard v The Queen
[2003] WASCA 85
•17 APRIL 2003
MALLARD -v- THE QUEEN [2003] WASCA 85
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 85 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:133/2002 | 14 MARCH 2003 | |
| Coram: | MURRAY J ANDERSON J MCKECHNIE J | 17/04/03 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal allowed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRENDAN PETER MALLARD THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Juvenile justice principles Defendant aged 17 at time of offences and 19 at time of sentence Failing to apply principles Whether sentence of 4 years' imprisonment for serious violent offences nevertheless appropriate |
Legislation: | Young Offenders Act 1994 (WA), s 4, s 7, s 46(1), s 50(B)(5) |
Case References: | Ainsworth v D (A Child) (1992) 7 WAR 102 McKenna v The Queen (1992) 7 WAR 455 Yorkshire v The Queen, unreported; CCA SCt of WA; Library No 7169; 20 June 1988 BAC (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950510; 5 September 1995 Duncan v The Queen 47 ALR 746 Fyfe v The Queen, unreported; CCA of SCt of WA; Library No 980142; 2 April 1998 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 R v "VC" (A Child), unreported; CCA of SCt of WA; Library No 990142; 23 March 1999 R v B (A Child) (1985) 82 A Crim R 234 R v C (A Child) (1995) 83 A Crim R 561 R v McKennan (1992) 63 A Crim R 452 S (A Child) (No 2) (1992) 60 A Crim R 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MALLARD -v- THE QUEEN [2003] WASCA 85 CORAM : MURRAY J
- ANDERSON J
MCKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Juvenile justice principles - Defendant aged 17 at time of offences and 19 at time of sentence - Failing to apply principles - Whether sentence of 4 years' imprisonment for serious violent offences nevertheless appropriate
Legislation:
Young Offenders Act 1994 (WA), s 4, s 7, s 46(1), s 50(B)(5)
(Page 2)
Result:
Application for leave to appeal allowed
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Mr C L J Miocevich
Respondent : Mr K P Bates and Ms A D Kurtze
Solicitors:
Applicant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ainsworth v D (A Child) (1992) 7 WAR 102
McKenna v The Queen (1992) 7 WAR 455
Yorkshire v The Queen, unreported; CCA SCt of WA; Library No 7169; 20 June 1988
Case(s) also cited:
BAC (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950510; 5 September 1995
Duncan v The Queen 47 ALR 746
Fyfe v The Queen, unreported; CCA of SCt of WA; Library No 980142; 2 April 1998
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
R v "VC" (A Child), unreported; CCA of SCt of WA; Library No 990142; 23 March 1999
R v B (A Child) (1985) 82 A Crim R 234
R v C (A Child) (1995) 83 A Crim R 561
(Page 3)
R v McKennan (1992) 63 A Crim R 452
S (A Child) (No 2) (1992) 60 A Crim R 235
(Page 4)
1 MURRAY J: I entirely agree with Anderson J that, for the reasons his Honour gives, the application for leave to appeal should be granted, but the appeal dismissed.
2 ANDERSON J: This is an application for leave to appeal against an aggregate sentence of 4 years' imprisonment passed in the District Court (Nisbet DCJ) on 25 July 2002.
3 The applicant had been presented for trial with one Donaldson on a joint indictment charging them with three offences as follows:
Count 1 - Robbery in company
Count 2 - Unlawful detention
Count 4 - Assault occasioning bodily harm
4 The maximum penalties for these offences were 20 years' imprisonment, 10 years' imprisonment and 5 years' imprisonment respectively. Donaldson was charged on the same indictment with another two offences.
5 The circumstances were that the applicant had joined Donaldson and another young man, Kelly, at a house at 7 Rutherfield Road, Balga occupied by one of their acquaintances, a man by the name of Jesnoewski. When they saw the complainant (another young man by the name of Jones who lived nearby) drive past in his vehicle they decided to follow in Jesnoewski's vehicle. When the complainant stopped at traffic lights the applicant, Donaldson and Kelly jumped out of Jesnoewski's vehicle and ran to the complainant's vehicle and all three began to viciously assault him with their fists. The applicant took charge of the complainant's vehicle by pushing the complainant over to the passenger seat and getting behind the wheel. The applicant drove the complainant's vehicle back to Jesnoewski's house at 7 Rutherfield Road and by the time they arrived Donaldson, Kelly and Jesnoewski had got back there and Donaldson and Kelly pulled the complainant out of his vehicle and gave him a savage beating. The applicant and Kelly then took the complainant to the complainant's house at 20 Rutherfield Road in the complainant's vehicle in order to persuade the complainant to give money to the applicant. Apparently the applicant believed, wrongly it seems, that the complainant owed money to someone. Whilst the applicant and Kelly were there at that address with the complainant the complainant's parents arrived in their vehicle. Kelly threw a rock through the rear windscreen of the complainant's vehicle. Donaldson came on the scene and the applicant, Kelly and Donaldson then assaulted the complainant by punching him.
(Page 5)
- The complainant fell to the ground apparently unconscious and Donaldson in the presence of the applicant then proceeded to kick the complainant. The complainant was left lying unconscious suffering lacerations and bruising to most of his limbs, body and head. In the altercation the complainant's father was also assaulted by one of the applicant's co-offenders.
6 In all of this the applicant was found to have played a leading role. The Judge described him as the ringleader. This finding is not challenged.
7 When the trial commenced the applicant pleaded guilty to the charge of deprivation of liberty but not guilty to the other two charges. He was convicted of them after trial and sentenced as follows:
Count 1 - Robbery in company - 4 years' imprisonment.
Count 2 - Unlawful detention - 3 years' imprisonment.
Count 3 - Assault occasioning bodily harm - 2 years' imprisonment.
8 These sentences were allowed to run concurrently and the applicant was made eligible for parole.
9 The main ground of appeal is that the Judge appeared to overlook and failed to apply the general principles of juvenile justice prescribed in the Young Offenders Act 1994 s 46(1). This ground arises from the fact that although he was aged 19 when he was sentenced the applicant was of about the age of 17½ at the time of the offences and therefore a "young person" for the purposes of sentencing: Young Offenders Act, s 4, s 50(B)(5).
10 Section 46(1) of the Young Offenders Act provides:
"46(1) When dealing with a young person who has been found guilty of an offence, the Court, in disposing of the matter, is to apply -
(a) the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b) the general principles of juvenile justice."
"(d) the community must be protected from illegal behaviour
(Page 6)
- (h) detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for a short a time as is necessary
(j) punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways
(k) a young person who is dealt with for an offence should be dealt with in a timeframe that is appropriate to the young person's sense of time
(l) in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered."
12 It does appear from the sentencing Judge's remarks that he did overlook the Young Offenders Act when sentencing the applicant. His Honour made no reference to the Act and gave no indication that he differentiated between Donaldson and the applicant on juvenile justice grounds. Donaldson was aged 19 at the time of the offending and therefore not a "young person" for the purposes of sentencing. His Honour referred to parity principles and to the totality principle but only in terms which suggested that he considered it was necessary that the applicant be dealt with in parity with Donaldson on whom he passed an aggregate sentence of 5 years' imprisonment in respect of five offences. He said with respect to parity:
"There is an issue with respect to both parity and totality. Parity because of the way I have sentenced Kelly and the way in which I intend to sentence Donaldson."
13 In the course of debate with counsel the age difference between the applicant and Donaldson was referred to but not in terms which suggested that juvenile justice principles would be applied.
14 His Honour referred to the two year age difference between the applicant and Donaldson but said of this, "Being the ringleader outweighs the consideration that might be regarded as differentiating between the two of them on account of the two year age different".
(Page 7)
15 In my opinion the applicant has made out the ground of appeal which pleads that the sentencing Judge overlooked the need to have regard to the Young Offenders Act and to the principles of juvenile justice in arriving at a proper sentence for the applicant.
16 It must be observed however that although this error may have been to the applicant's disadvantage counsel on both sides and the Judge mistakenly thought that the maximum penalty for aggravated robbery was 14 years' imprisonment whereas it was (and still is) 20 years' imprisonment. Hence the applicant was sentenced in respect to that offence on the basis that the offence was less serious than it in fact is. Therefore, although the applicant has made good his ground of appeal the question whether there has been a miscarriage of justice is very much alive.
17 This was a very serious gang attack. Nisbet DCJ did not overstate the position when he described it as "appalling". Four young men, of whom the applicant was the ringleader, got into a car and followed another young man to traffic lights where three of them set upon him, over-powered him, took control of his vehicle and drove him back to their address where two of them then administered a savage beating to him. It would appear that, whilst the applicant did not take an active part in the beating at that place, when it was over he and one of his co-offenders forced the applicant back into the applicant's vehicle and took him to the applicant's own house where further acts of violence occurred in which the applicant did participate. He took part in a vicious assault on the complainant in the presence of the complainant's parents and after the rear window of the complainant's vehicle had been smashed with a rock by one of the gang. The purpose of this attack on the complainant appears to have been to force him to hand over a sum of money.
18 The applicant's conduct was to be viewed in the light of the pre-sentence material provided to the sentencing Judge and in the light of the applicant's antecedents. The antecedent report shows that the applicant's offending began a little less than six years ago at the age of 14 and that before being convicted of the three offences in question he had 30 convictions including several periods of detention. His first period of detention was ordered in the Children's Court in April 1998 when he was sentenced to seven periods of detention each of 5 months on three counts of assault to prevent arrest, one count of stealing a motor vehicle and counts of reckless driving failing to stop and no driver's licence. In October 1998 he was sentenced to 9 months' detention for robbery in company, 3 months' detention for no driving licence, 2 months' detention
(Page 8)
- for reckless driving and 1 month's detention for stealing a motor vehicle. A few weeks later he was sentenced to 6 weeks' detention for damage. On 31 August 2001 the applicant received an 18 month intensive supervision order for assault occasioning bodily harm. There are numerous driving offences and there are offences of stealing, burglary, assault, hindering police, threatening behaviour, giving a false name and possessing a weapon in respect to which, no doubt because of his age, community based punishment was usually ordered. The community based orders included five conditional release orders and an order for 60 hours community work handed down on 19 December 2000 for three offences of assaulting a public officer, one of hindering police and one of threatening behaviour. The offences with which we are now dealing were committed only one week later.
19 I would accept the submission of the Crown that this record reveals a propensity for persistent violent offending from which the applicant had not been deterred by the custodial sentences he had experienced nor reformed by the many community based orders to which he had been made subject. It is a case in which the only conclusion open is that a sentence of immediate imprisonment was called for if only to observe the principle of juvenile justice promulgated in s 7(d) namely that the community must be protected from illegal behaviour.
20 Putting to one side juvenile justice principles there could be no possible complaint about the length of the aggregate term (4 years) having regard for the gang nature of the attack, the maximum penalty of 20 years' imprisonment applicable to the most serious of the offences and the lack of any other mitigatory factors of any worth. The only question is whether in light of the principles of juvenile justice enumerated in s 7(h), (j), (k) and (l), 4 years was too long. There are two main reasons why I would not interfere with it. In the first place, this is not by any means the first custodial sentence which the applicant has received. I have detailed the other custodial terms. There are a number of them going back to April 1998, for periods ranging up to 9 months. So the applicant is no stranger to detention and the considerations of mercy to which emphasis is given when a young offender is facing his first prison sentence are hardly applicable. The second reason why I would not interfere with the sentence imposed by Nisbet DCJ derives from the pre-sentence material which was before the Judge. I would quote from the summary of the pre-sentence report prepared by the Senior Community Corrections Officer attached to the Perth Community Justice Services:
(Page 9)
- "Mr Mallard is a 19 year old man with an established record of regular offending which has continued almost unabated for the past five years. His offending has largely involved his use of motor vehicles and his reluctance to accept that he simply should not drive cars until he is free to obtain a valid licence.
The more disturbing aspect of his offending history lies in his assault and robbery offences. On 14 December 2000 he committed the two assault occasioning bodily harm offences for which he was later placed on an ISO. On the 19th of that month he was convicted on three charges of assault public officer and then on 26th December 2000 committed the offences for which he now awaits sentence. Mr Mallard continued to offend whilst on bail awaiting trial and included among his driving offences there is a conviction for possess weapon."
In discussing his offending history and the disturbing nature of his use of violence and weapons, Mr Mallard shows little insight into his behaviour and no guilt, shame or remorse for the suffering of his victims. He has in the past agreed to undertake a programme to address his aggressive and violent nature but when given the opportunity to attend the STAC programme he avoided it and offered only weak excuses based on his family responsibilities. Mr Mallard's stated good intentions have not been reflected in his subsequent behaviour when placed on his ISO in August of last year."
21 The psychological report accompanying the pre-sentence report is somewhat more sympathetic to the applicant in as much as it is pointed out in the psychological report that there appeared to be a cessation of offending after the current offences. There is some discrepancy between the psychological report and the pre-sentence report on this subject. In the passage from the pre-sentence report which I have set out above the observation is made that the applicant continued to offend whilst on bail awaiting trial for the current offences. Even if the more favourable psychological report is accepted as accurate it really does not assist the applicant very much. It is naturally to be expected that whilst on bail awaiting trial on these very serious offences the applicant would not re-offend and anyway it must be observed that the psychological report assesses the applicant as "presenting a significant risk of re-offending".
22 The applicant's long history of offending including the development of a pattern of violent offending, his lack of remorse and the absence of
(Page 10)
- insight into his behaviour, his failure in the past to take advantage of the programmes offered to him for treatment of his aggression and violence, the extremely violent nature of the current offences and the assessed risk of re-offending lead inevitably to the conclusion that protection of the public has become an important sentencing objective along with that of personal deterrence and reformation through imprisonment.
23 In my opinion, the aggregate sentence passed by Nisbet DCJ was no more than was necessary to achieve the objectives of punishment having regard to the principles of juvenile justice set forth in the Young Offenders Act.
24 I would allow the application for leave to appeal but dismiss the appeal.
25 MCKECHNIE J: On 26 June 2002 the applicant was found guilty of robbery in company with the use of personal violence and guilty of assault occasioning bodily harm. By a special verdict of the jury he was found guilty of punching the complainant.
26 The applicant had earlier pleaded guilty to one count of deprivation of liberty.
27 On 25 July 2002 the trial Judge, Nisbet DCJ, sentenced the applicant to 4 years' imprisonment for robbery with violence; 3 years' imprisonment for deprivation of liberty and 2 years' imprisonment for assault occasioning bodily harm, each term to be served concurrently.
28 At the same time the trial Judge sentenced a co-offender to an effective term of imprisonment of 5 years' imprisonment with a parole eligibility order.
29 In brief, the applicant, with others, attacked the complainant while his motor vehicle was stationary at a set of traffic lights. The applicant then took the car keys, pushed the complainant from the driver's seat and took charge of the vehicle, which was driven to an associate's house. The driver was then pulled out of the vehicle and given a savage beating which included the assault occasioning bodily harm by punching. The trial Judge correctly described the offences:
"… These were violent crimes committed on an unsuspecting victim lawfully going about his business. Save for a suggestion in the evidence that you intervened to stop Michael Jones from being kicked when he was down whilst outside 7 Rotherfield
(Page 11)
- Road, there is nothing that could be said about your conduct which mitigates the seriousness of it.
Indeed you could properly be categorised as the ringleader. …"
30 Oddly, at the time of sentence, counsel for the prosecution, counsel for the defence and the trial Judge all made the same mistake. They assumed that the maximum penalty for the crime of robbery was 14 years. In fact the maximum penalty was 20 years by reason of the circumstances of aggravation which had been found by the jury.
31 The applicant was born on 4 July 1983. The offences occurred on 26 December 2000. The applicant was therefore 17-1/2 at the time of the offences, although he had recently turned 19 at the time of sentence.
32 As is conceded by the Crown, the trial Judge failed to consider the provisions of the Young Offender's Act 1994 (WA) in sentencing the applicant, appearing instead to pay regard to parity of sentence with Donaldson who was at the relevant time an adult.
33 The fact that a Judge makes an error of principle in sentencing does not necessarily mean that the appeal must therefore be allowed. Under the Criminal Code, s 689:
"(3) On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict … and in any other case shall dismiss the appeal."
34 Therefore, it is necessary for the applicant to show not only that the trial Judge has fallen into error, but also that the Court of Criminal Appeal regards the sentence of 4 years as a wrong sentence in that a different sentence should have been passed. In order to test the sentence of 4 years, it is necessary for the Court of Criminal Appeal to apply the correct principles of sentencing and, having done so, to determine whether or not those principles lead to a sentence of 4 years' imprisonment. If they do not, then it follows that the Court thinks that a different sentence should have been passed.
The applicant's sentence: relevant principle
35 The Young Offender's Act 1994 sets out by s 6 the objectives of the Act and by s 7 the general principles of juvenile justice. Those principles
(Page 12)
- are set out in enumerated paragraphs (a) to (m). Relevantly, s 7(d) provides that the community must be protected from illegal behaviour. Section 7(h) provides that detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and if required is only to be for a short a time as is necessary. Section 7(l) provides that in dealing with a young person, the age, maturity and cultural background of the offender are to be considered.
36 In McKenna v The Queen (1992) 7 WAR 455 Seaman J, in remarks that may be regarded as obiter dicta, said (468):
"At common law, youth is a significant mitigatory factor (although normally its weight decreases as the offender moves through the early 20's) and so is the need to attempt rehabilitation of youthful offenders. There is also, in my view, a significant difference between a youthful offender and an offender who is defined as a child by legislation.
This leads to a situation in which there will be a marked transition in the severity of sentencing for offences committed on and after the day on which an offender attains 18. In my view that is the case because the offender no longer enjoys the particular statutory protection for juveniles which is implicit in the Children's Court of Western Australia Act 1988 and the Child Welfare Act 1947 and is indeed reflected by s 282 of the Criminal Code."
37 Seaman J was then dealing with an offender who was 18 at the time of offending.
38 Although Seaman J was referring to a slightly different statutory regime, I accept his comments as generally applicable to the Young Offender's Act.
39 His reference to the common law is confirmed in Yorkshire v The Queen, unreported; CCA SCt of WA; Library No 7169; 20 June 1988 per Wallace and Smith JJ at 10:
"There has been universal acceptance by the courts in England, Australia and elsewhere that there is an essential difference between children and adults when they come before a court exercising criminal jurisdiction. In particular it has been accepted by the courts that the reformation of the offender is
(Page 13)
- always an important, if not the dominant consideration and that any sentence should be tailored with a greater emphasis on the future welfare of the offender."
40 In Ainsworth v D (A Child) (1992) 7 WAR 102, Malcolm CJ, with whom Franklyn and White JJ agreed, noted that having regard to the common law and to the statutory regime, the circumstances of the offence and the character and antecedents of the offender may have the result that the need to protect the community and for deterrence, both personal and general, require a significant custodial sentence.
41 I have already outlined the circumstances of the offence and the trial Judge's unchallenged comments in respect of it which I accept.
42 Counsel for the applicant accepts that a term of imprisonment to be served immediately is an appropriate disposition. Indeed, the applicant's counsel accepts that were the applicant an adult at the time of the offences, there could be no complaint against a sentence of 4 years' imprisonment.
43 The personal circumstances of the applicant reveal a depressing, all too familiar, background. The applicant has, as is described in the pre-sentence report, an established record of regular offending which has continued almost unabated for the past five years. It should be noted that many of those offences involve motor vehicles. However, there are in his background a number of violent offences. The applicant appears to show little insight into his behaviour and no guilt or remorse. He is now a father to two daughters and indicates that he has curbed his offending behaviour because he does not want his daughters to grow up with violence around them. Significantly the psychologist noted:
"While the best predictor of future behaviour is typically past behaviour once (sic) must assess Mr. Mallard as presenting a significant risk of reoffending. However, it must be noted that his most serious offences occurred when he was a juvenile and while it is difficult to assess whether his lack of significant offending in the past 20 months is due to his being on bail for the current offences, the prognosis for treatment is good. Mr. Mallard appears to be taking his parenting responsibilities seriously and seems to be concerned about being a positive role model to his children. He indicated that his ambition is for study in the field of psychology and that his goal is to help other prisoners."
(Page 14)
44 This offence carried a maximum of 20 years' imprisonment and was committed in serious circumstances. However, the underlying assumption in the Young Offender's Act is that some young persons may commit serious offences out of immaturity and lack of life experience. They are not to be completely invested with adult concepts and understanding. Even when a young offender turns 18, the mitigatory effect of youth may continue. Below 18, as Seaman J pointed out in McKenna, a different regime applies.
45 In my opinion, while acknowledging the seriousness of the offence, the proper application of the principles set out in the Young Offender's Act requires the applicant to be re-sentenced to a total term of 3 years' imprisonment as follows:
• For the offence of robbery with violence -3 years;
• Deprivation of liberty - 2 years to be served concurrently;
• Assault occasioning bodily harm - 1 year to be served concurrently.
46 I would make a parole eligibility order and declare that the sentence commence on 17 June 2002.
47 I would therefore grant leave and allow the appeal to this extent.
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