MS2 v The Queen

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: MS2 and Ors v Regina [2005] NSWCCA 397

FILE NUMBER(S):
2005/1368
2005/1199
2005/1625

HEARING DATE(S): 16/11/2005

JUDGMENT DATE: 24/11/2005

PARTIES:
MS2 - Applicant
PM - Applicant
JS - Applicant
Crown - Respondent

JUDGMENT OF: Simpson J Adams J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3194, 04/21/3056, 04/21/3192

LOWER COURT JUDICIAL OFFICER: Marien DCJ

COUNSEL:
Mr H Dhanji - Applicant MS2
Mr S Corish - Applicant PM
Mr M Johnston - Applicant JS
Ms J Girdham - Crown

SOLICITORS:
K Kyriacou Croke & Co - Applicant MS2
S O'Connor, Solicitor for Legal Aid - Applicant PM
Brenda Duchen - Applicant JS
S Kavanagh, Solicitor for Public Prosecutions - Crown

CATCHWORDS:
SENTENCE APPEAL - effect of immaturity and youth when serious offence involved - weight to be given to planning of offence - parity.

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
Appeals allowed. Applicants resentenced - sentences reduced.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1368
2005/1199
2005/1625
SIMPSON J
ADAMS J
HOEBEN J
Thursday, 24 November, 2005

MS2 v REGINA
PM v REGINA
JS v REGINA

Judgment

SIMPSON J: The facts and circumstances are adequately stated in the judgment of Hoeben J, which I have had the advantage of reading in draft.

I have reached a different conclusion as to the outcome of these applications.

The objective seriousness of the offence can scarcely be overstated. The applicants effectively lay in wait for a suitable victim; one of them (PM) had taken the precaution of arming himself with a club-lock. He used it with devastating effect. He caused severe and permanent injury. Another (JS) kicked Mr Jansz in the head while he was lying on the ground, presumably unconscious or near to unconsciousness. The offenders then stole his property, including his motor vehicle.

This was a most serious instance of an offence against s96 of the Crimes Act 1900.

None of the three applicants can take refuge, as is so often seen in this Court, in a strong subjective case constituted by a disturbed, dysfunctional, or traumatic childhood and adolescence. Each came from, at least, a positive family background. Each had family support throughout his developmental years. So much is demonstrated by the absence of any previous criminal history, as well as by the various background reports.

It is true, as his Honour observed, that, seen in this light, the offences were inexplicable.

I do not find that any explanation for the offences lies in the youth of the applicants. There simply is no explanation. Their youth is not an excuse. There is no excuse for this conduct.

His Honour was conscious of “clear pre-planning”. That is not necessarily inconsistent with immaturity and his Honour did not suggest otherwise. He did reject the notion that the offences might be regarded “as the product of an immature and impetuous act”. I agree. I do not read that sentence, extracted from the remarks on sentence in the judgment of Hoeben J, as a finding that pre-planning of itself rebutted the proposition that the offences were the product of an immature mind. The two notions, encompassed in the one sentence, are conjunctive.

It is sometimes said that in cases of youthful offenders, principles of general deterrence may be given less weight than would otherwise be the case. That is not always so. This was a crime of such magnitude as to call for severe sentences, if for no other reason, than to demonstrate to other young men that crimes of this kind will not be tolerated and will be met with severe sentences, no matter how young or immature the offender.

In my opinion it has not been shown that inadequate weight was given to the youth of any applicant. I would reject that ground of appeal. I agree with Hoeben J that none of the applicants has made out a case for interference in the sentences on the basis of parity.

I would, in each case, grant leave to appeal but dismiss the appeal.

ADAMS J: I agree with the orders proposed by Hoeben J and with his Honour’s reasons. I wish to add some comments of my own.
The offences here were grave indeed. The most serious aspect of them, to my mind, is the permanent and substantial disability suffered by the victim. All offences involving the infliction of grievous bodily harm are serious, but those resulting in permanent disability are necessarily more so. It is plain that this must be reflected in the severity of the sentence.
The gravity of the offence, however, is not the only element that must be taken into account in determining the sentence in this case. Amongst other matters, the youthfulness of the offenders is a very significant factor. The reasons for this are twofold. The first is that there is a substantial public interest in the rehabilitation of youthful offenders. This important consideration is not justified on the ground of sympathy: it reflects an objective view of public policy. Thus it is wrong in principle to use language – as one sometimes sees in sentencing remarks – that suggests that an offender can or cannot “take advantage” of his or her youth to obtain a lenient sentence.
It need hardly be said that the degree to which this factor is significant depends on how young the offenders are and their prospects for rehabilitation and also the nature and seriousness of their offences. It is worth observing, I think, that the underlying purpose of the principle supports the argument that the more serious the offence, the greater the public interest in the rehabilitation of the offender, although there is the countervailing argument that the more serious the offence, the greater the culpability and the necessity for denunciation and deterrence. In Hearne (2001) 124 A Crim R 451 at 458 the Court said –
“…in none of the cases is it suggested that the weight to be given to the element of youth varies depending on the seriousness of the offence. Rather is the topic dealt with in materially the same way as it is in the case of lesser offences…Of course that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in less serious ones.”
The second reason is that immaturity is relevant to culpability or criminality. The point may be put simply: children do not have adult value judgments, adult experience, adult appreciation of consequences – especially catastrophic consequences – or adult understanding of criminal culpability. That is, of course, not to say that, depending on age and background, they cannot be intentionally wicked and know very well that what they do or intend to do is very seriously wrong and even criminal. I do not doubt that the appellants in the present case were well aware of this.
However, as Cummins AJA observed in R v ALH (2003) 6 VR 276 at [72] –
“…The time of Aethelstan although not illuminated by the insights of modern developmental psychology well understood the humanity and justice of protecting children from the full rigor of the criminal law. The wisdom of such protection is manifest. Harper J in R (a child) v Whitty (1993) 66 A Crim R 463 (a decision favourably noticed by Lord Lowry in C (a minor) v DPP ([1996] AC 1 at 40)) cited with evident approval a passage from Professor Colin Howard's Criminal Law:
No civilised society regards children as accountable for their actions to the same extent as adults.
The ancient sense of justice and modern cognitive psychology come together properly to protect children in their development to adulthood. The ‘intermediate zone’ between 10 and 14 years is one of significant psychological, moral and personal development in children. The law should not be blind to its quality and character.”
These observations were made in the context of discussing the common law presumption as to the capacity of children under the age of 14 to commit a crime but they state an obvious truth just as relevant to punishment as to guilt and – though it is obviously a matter of degree – to 15 and 16 year olds. I should be sorry to see the day when it will be necessary to call evidence from a developmental psychologist to establish it.

The point is made by the Parliament of this State in the Children (Criminal Proceedings) Act 1987 which, relevantly, states (s 6(b)) –
“Principles relating to the exercise of criminal jurisdiction
A court, in exercising criminal jurisdiction with respect of children, shall have regard to the following principles:
…
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and emotional immaturity, require guidance and assistance,
A child is, by definition, a person under the age of eighteen years.

In Hearne (2001) 124 A Crim R 451 at 458, citing Allam (unreported) NSWCCA, 13 April 1993, WKR (1993) 32 NSWLR 447; 71 A Crim R 95, this Court said –
“[Where the immaturity which is usually involved] is a significant contributing factor to an offence, then it may fairly be said that the criminality is less than it would be in the case of an adult of more mature years.”
The Court went on to observe –

“A similar approach of imposing a sentence less than otherwise appropriate is taken where an offender, though not legally insane, suffers from significant intellectual disability…[taking into account] the extent and significance of the disability...

It is, at least in part, for a similar reason that the courts have taken the view that, the younger the offender, the greater the weight to be afforded to the element of youth.”

I respectfully acknowledge that the learned sentencing judge did take into account the youthfulness of the appellants and ameliorated the severity of the sentences for that reason. However, I agree with Hoeben J that his Honour erred in thinking that the preplanning of the offence showed that these offences were not (or not significantly) the result of immaturity. The planning of the offence, at all events, was quite rudimentary though, of course, no sophistication was called for. They were quickly apprehended by the use of CCTV footage.
It seems to me that the very inexplicability of the offences is substantially, if not entirely, explained by the immaturity (including moral immaturity) of the appellants. I am very far from suggesting that they did not know that what they were doing was very wrong. What I am saying is that this knowledge is not the same as that which a mature adult would have had. Nor am I suggesting that they were unaware of the possibility of serious consequences, especially PM, who used the bar with, as the learned sentencing judge found, the intention of causing grievous bodily harm (albeit there was no finding that he foresaw, let alone intended, the catastrophic injury that he caused). What I am saying is that this was not the awareness of a mature adult. The evident puzzlement of the learned sentencing judge as to the motivations of the appellants, given their backgrounds and apparent personal attributes, points in my mind to the considerable significance of immaturity as a factor, particularly in relation to the appellants who did not wield the disabling blow.
It is worth noting also, I think, that the very fact that immaturity is a significant feature – indeed, the defining feature of youthfulness – indicates that it is sensible to give considerable weight to the consideration of rehabilitation, for the simple reason that the potential for change with increasing maturity is manifest. This change for the better has already been marked in each of the appellants.
There is no question of the youthfulness of the appellants being any excuse for their conduct. The point, as I see it, is that their culpability was significantly less than would have been the case had they been mature adults and the public interest in their rehabilitation requires that these features not be qualified in the manner that Hoeben J has identified.
HOEBEN J:
Offences and sentence
On 25 November 2004 the three applicants, together with a co-offender (hereafter referred to as TN), appeared before his Honour Judge Marien SC in the District Court for sentence. Each had been committed for sentence from the Children’s Court upon a charge of aggravated robbery causing grievous bodily harm pursuant to s96 of the Crimes Act 1900, namely that each:
On 30 June 2003 at Warwick Farm in the State of New South Wales did rob Randolph Jansz of certain property, namely a wallet containing $10 in money, a brief case containing personal papers and a blue Ericsson mobile phone, the property of Randolph Jansz and that at the time of the robbery did inflict grievous bodily harm upon him.
The maximum penalty for such an offence is 25 years imprisonment.
PM pleaded guilty to “taking and driving conveyance without consent” contrary to s154A(1)(a) Crimes Act 1900. MS2 and JS together with TN pleaded guilty to “being carried in a conveyance without the consent of the owner” contrary to s 154A(1)(1b) of the Crimes Act 1900. Both offences have a maximum penalty of 5 years imprisonment.
At the time of the commission of the offences and at sentence each of the applicants and TN was a child within the meaning of the Children (Criminal Proceedings) Act 1987. The aggravated robbery charge was a serious children’s indictable offence and thus each offender fell to be sentenced according to law (s17 of the Children (Criminal Proceedings) Act 1987).
His Honour sentenced each offender as follows:

OFFENDER	AGE (DOB)	OFFENCE	NON-PAROLE	COMMENCE-MENT	TOTAL TERM
PM	15 yrs 10 mths (29.8.87)	Aggravated Robbery Causing GBH Unlawful take and drive	4 yrs	3.7.2003 3.7.2003	6 yrs 2 yrs fixed
JS	14 yrs 5 mths (28.1.89)	Aggravated Robbery Causing GBH Being carried in conveyance	3 yrs 4 mths -----	3.7.2003 3.7.2003	5 yrs 18 mths fixed
MS 2	15 yrs 7 mths (1.12.87)	Aggravated Robbery Causing GBH Being carried in conveyance	3 yrs 4 mths ----	30.7.2003 30.7.2003	5 yrs 18 mths fixed
TN	14 yrs 8 mths (10.10.88)	Aggravated Robbery Causing GBH Being carried in conveyance	15 mths ----	Suspended Suspended	2 yrs 12 mths fixed

In the case of the sentences that were not suspended, an order was made pursuant to s19 Children (Criminal Procedure) Act 1987, directing that the whole of the non-parole period be served in a juvenile detention centre.

The applicants seek leave to appeal from the severity of the sentences imposed. TN has not filed any application for leave to appeal. The applicants MS2 and JS are still under the age of 18.
Background to offences
His Honour dealt with the factual background to the offences at ROS 2-4. His Honour’s review of the facts is accepted by all three applicants.
At about 6.25 pm on Monday 30 June 2003 the offenders, together with another person, boarded a train at Liverpool railway station and travelled to Warwick Farm railway station. The five persons got off the train at that station and walked to the car park which adjoins the station. They went to the southern end of the car park, concealed themselves and waited.
At about 6.40 pm the victim, Mr Jansz, who was 50 years of age got off a train at Warwick Farm station. He was on his way home from work and was carrying his brief case. He had left his car in the car park. The victim when he reached his vehicle, a 1990 Nissan Pintara, unlocked the driver’s door.
As the victim was unlocking the door PM, who was armed with a metal steering wheel lock, ran out and struck him to the head causing him to fall unconscious. In his statement PM could only recollect striking the victim once. The other offenders stated in their ERISP accounts that they saw PM strike the victim a number of times with the steering lock. In that regard it should be noted that none of the offenders undertook to give evidence against one or other of his co-offenders and accordingly his Honour only had regard to admissions made by each offender in relation to his own actions.
After the victim had fallen unconscious to the ground JS then kicked him in the head whilst he was lying on the ground. MS stole the victim’s brief case which contained personal documents and a mobile phone.
As the victim fell to the ground, he dropped the keys to his motor vehicle. PM removed the victim’s wallet containing $10 from his back pocket, picked up the car keys and entered the driver’s seat of the vehicle. JS and TN entered the vehicle. PM, JS and TN then drove from the car park in the vehicle. MS2 ran from the scene in the direction of the Hume Highway taking with him the victim’s brief case and personal items. MS2 subsequently rejoined the other applicants at Cabramatta and travelled as a passenger in the stolen vehicle.
The victim was left in an unconscious state, bleeding profusely from a number of wounds to the head and face. His false teeth plate had been knocked from his mouth and he was lying face down in a pool of his own blood. A Mr Harrison saw legs protruding from behind a parked car as he was parking his vehicle in the car park. He tried to provide assistance to the victim and immediately called for medical help.
State Rail CCTV footage showed the offenders catching a train from Liverpool and alighting at Warwick Farm Station. At about 9 pm on 3 July 2003 the police apprehended PM, JS and TN. MS2 subsequently attended Liverpool Police Station with his mother on 30 July 2003 and was arrested.
Injuries to victim
The victim was admitted to Liverpool Hospital with facial lacerations which required sutures, a swollen face especially to the left side, tenderness over the left mandibular joint, a fractured left condylar process of the mandible which required an open reduction and internal fixation of the mandible. The victim was discharged on 8 July 2003 with a provisional diagnosis of head injury, cerebral contusion and associated subarachnoid haemorrhage in the left temporal parietal region, a fracture of the left neck of the mandible and multiple facial lacerations with extensive scalp haematoma over the right frontal area. There was a suspected tiny undisplaced fracture of the right lateral frontal bone.
On 11 July 2003 the victim was readmitted to the Brain Injury Rehabilitation Unit at the Liverpool Hospital for further management. An x-ray on 14 July 2003 revealed a fracture of the 4th rib on the left side. He was discharged home on 1 August 2003. He continued to receive treatment from the Brain Injury Unit as an outpatient.
By July 2004, over a year after the robbery, the victim was still experiencing problems. He had temporary behavioural outbursts and was demonstrating difficulty in finding words, although that problem was improving. He had ongoing problems with impaired concentration and mental fatigue. His verbal fluency was reduced as was his visio-spacial planning. He had high level cognitive impairments which impacted on his ability to learn.
Quite unrelated to the robbery the victim suffered from renal failure, which required the operation of a dialysis machine at home. One of the sequelae of his injuries was that he had difficulty in operating his haemodialysis equipment at home and had to be retrained in its use.
Although the victim’s long-term prognosis was not fully known, in July 2004 Dr Hodgkinson from the Liverpool Hospital Brain Injury Unit was of the opinion that he had sustained a severe traumatic brain injury which was likely to result in long term high level cognitive impairment. He was undergoing retraining so as to re-establish skills which would improve his ability to find employment.
Remarks on sentence
In dealing with the objective seriousness of the offences, his Honour characterised them (ROS 13-14) as follows:
“The facts before me disclose the commission of offences of an extremely high order of criminality. A ferocious unprovoked and cowardly attack upon an innocent man was perpetrated by these offenders. Mr Jansz was quietly going about his business on his way home from his work. The offenders were laying in wait in the dark car park with the offender PM armed with a metal steering lock awaiting the arrival of an appropriate victim whom they could attack and rob. PM did not own a car. For what other purpose could he have been there holding such an item? The offences were pre-planned and were perpetrated in cold blood. The robbery was, in my view, cowardly in the extreme as the offenders did not even given Mr Jansz the chance to hand over his property before he was so ferociously attacked. I have absolutely no doubt from all of the material before me, to which I shall shortly refer, that all the offenders were fully aware that their callous acts were wrong in the extreme.”

In relation to objective seriousness his Honour referred to the possibility that the victim may have died as a result of the attack. His Honour also took into account that the victim was left unconscious without any attempt being made to help him or call for medical assistance.
His Honour reviewed the subjective factors. In order to do so his Honour considered a Juvenile Justice report and a psychological report in respect of each offender. The only offender to give evidence and be subjected to cross-examination was TN. For the others his Honour relied upon the ERISP statements.
MS2
He was aged 15 years and 7 months at the time of the offences. His parents had migrated to Australia from Laos in 1976. He came from a strong and supportive family background. He had been exhibiting behavioural problems in the two years leading up to the offences. He had ceased attending school at the beginning of 2003. He had been suspended seven times whilst at Busby High School. He had attempted but not completed his school certificate whilst in custody. He was, however, doing some TAFE courses in building construction, shop fitting, sewing and hospitality.
Alcohol and illicit substances were not a factor underlying these offences. The motivation for committing the offences was to obtain money and a phone. Otherwise MS2 could not explain his motivation and the apparent urgency of his need to obtain money. Neither the author of the Juvenile Justice report nor the psychologist were able to adequately explain “the full extent of the dynamics and causal factors that may have led a young person who had no prior criminal antecedents up until that time to become involved in such a serious and violent attack”. The psychologist, Mr Champion, noted the involvement of MS2 in past aggressive activities such as fighting and thought that MS2 may have been left with the impression that one recovered from blows and wounds without any great problem.
MS2 told Mr Champion that he had simply followed what had been planned. He said that he had heaps of friends who “rolled or robbed people” as if such activities were commonplace. Mr Champion thought that MS2 might have been in some way trying to emulate some of his associates and thereby gain some credibility. MS2 told Mr Champion that he regretted his actions saying:
“I feel sorry for the man, an innocent man going home to his family and kids. I never thought injuries that bad would happen.”
It was common ground that MS2 had not in any way physically assaulted the victim. He had taken his brief case, removed the phone from it, left the scene, meeting his co-offenders later at Cabramatta and only then getting into the victim’s car.
PM
He was 15 years and 10 months at the time of the offences. He was the third of seven children. His family, which was of Cambodian origin, settled in Australia in 1983. The Juvenile Justice report described him as having been brought up in a loving and caring family.
PM had attended Chester Hill High School from years 7 to 9. He had attracted attention for fighting and truanting. He was transferred to Fairfield High School where he attended Year 10 in 2003. The fighting and truanting had continued and in fact he had truanted in the week immediately before the commission of the offences. While in custody, he had completed Years 10 and 11.
PM denied any criminal activities, but said that he and his friends tended to get together for thrill seeking such as drinking alcohol, smoking pot and going to the city to “have fun”. He also participated in positive activities such as programs at the Police Citizens’ Youth Club at Cabramatta. He had started to consume beer and other types of alcohol at the age of 14 and shortly thereafter began to smoke marijuana with his friends. He had continued to smoke approximately six to seven cones per day until shortly before his arrest. He was not under the influence of any substance when he committed the offences.
PM admitted that he and his friends planned to rob someone and had agreed in advance that they would have to immobilise the victim before robbing him or her and that he had been allocated the task of hitting the victim first. PM said that he did not have a good understanding of how he felt about his offences until after he spent some time in custody. He eventually realised the seriousness of his offences and dreaded the consequences if the victim had died. He said that he deeply regretted hurting the victim.
Although PM said that he had learned a valuable lesson about acting without thinking and identified peer pressure as contributing to his offending, his Honour was somewhat sceptical. His Honour noted that the facts clearly disclosed that it was PM who took the leading role and who was the most active participant in the attack upon the victim. It was he who was armed, it was he who struck the victim with the steering lock, it was he who searched the victim and took his wallet from his back pocket and it was he who picked up the car keys and drove the victim’s car away. There was no evidence that PM had been subjected to any pressure from his co-offenders with respect to his participation in the offences.
The Juvenile Justice report assessed PM as suitable for participation in a Juvenile Justice Violent Offenders’ program. PM had been regularly visited by members of his family, particularly his father. The psychological report added little although it did suggest that PM’s inability to think through issues could be seen as a secondary contributing factor to the offences.
JS
He was aged 14 years and 5 months at the time of the offences. He was the younger brother of MS2 and had the same positive family background. He had not demonstrated any behavioural difficulties until 2003 when he commenced truanting from school.
JS admitted that he kicked the victim once in the head as he lay on the ground. JS was unable to explain with any precision in the Juvenile Justice report what his exact motivation for engaging in this violent behaviour was. Alcohol and the use of illicit substances were not a factor underlying the offences.
JS had been engaged in fights at school and had a number of suspensions as a result of this. Fights were apparently common at school between groups of different ethnic origin. Some of these fights involved weapons and were often planned to take place outside of school hours. In such fights JS did not contemplate inflicting a lot of damage on others unless he was feeling very angry at which point he would “keep smashing them”.
JS justified his participation in those fights as a form of self-defence and loyalty towards his peer network. The Juvenile Justice report concluded that JS had difficulty controlling his impulse to respond violently towards others when he perceived that he was being provoked. The report expressed concerns about his beliefs and attitudes towards violence.
In the psychologist’s report JS said that “he didn’t want to actually hit the guy but the boys were talking about it” and he was not going to back down and look like he was a wimp. The psychologist thought that JS was on track for developing a “severe explosive disorder” and would benefit greatly from Anger Management courses.
His Honour noted that none of the offenders had any criminal antecedents. He accepted (somewhat surprisingly) that each had pleaded guilty at the first reasonable opportunity and in that regard his Honour said:
“Each is therefore entitled to a discount for the utilitarian value of their pleas of guilty towards the top end of the range of 10% to 25% identified in Thomson (2000) 49 NSWLR 383. Clearly by their pleas of guilty they have saved the community the expense of a trial and in particular have saved the victim Mr Jansz from the trauma and stresses of having to give evidence.”
His Honour was mindful of the principles relating to the sentencing of children in s6 of the Children (Criminal Proceedings) Act and also of the obligation to sentence the offenders according to law. In that regard his Honour said (ROS 34):
“In sentencing the offenders I must provide adequate punishment through the recognition of the balancing required on the one hand of the need to protect the community and denounce the offence and on the other hand to promote the rehabilitation of each of the offenders and take into account the relevant subjective circumstances so as to result in a sentence reflecting justice to the community, the victim and each of the offenders.”
At ROS 35-38 his Honour set out his conclusions and the basis for the sentences ultimately imposed. Since parts of these passages were subjected to criticism in the present applications, it is necessary to set out this part of his Honour’s judgment in full.
“Although deterrence, retribution and protection of the community are not to take precedence to the exclusion of rehabilitation, but neither is rehabilitation to take precedence over deterrence, retribution and punishment. All must be balanced in the overall synthesising of the sentence – see R v MA [2004] NSWCCA 92 at [2].
As I have already said the offences for which each of the offenders is to be sentenced today are extremely serious. The offence of aggravated robbery under s96 as I said earlier carries a maximum penalty of 25 years imprisonment.
Aggravated robbery under s96 involves a number of circumstances of aggravation. In this case those circumstances of aggravation relied upon by the Crown are, that corporal violence was used upon the victim and that there was the malicious infliction of grievous bodily harm. However, the aggravated robbery is aggravated further by the following factors. First, that there was preplanning so as to ensure that the robbery would take place in a dark and isolated place where the victim could more easily be immobilised. Second, the offence was committed in company. Third, there was actual use of a weapon. Fourth, substantial injuries were inflicted on the victim. In particular I refer again to the evidence of Dr Hodgkinson that the victim Mr Jansz has sustained a severe traumatic brain injury likely to result in long-term high-level cognitive impairment. Fifth, the offence is aggravated by the fact that no chance was given to the victim to part with his property without being violently assaulted.
In relation to the offender PM in my view there is a further circumstance of aggravation. I am satisfied beyond reasonable doubt on all the evidence before me that when he struck the victim he did so with an intention to inflict grievous bodily harm upon him. That intention may be readily inferred from first, the nature of the weapon used and second that the victim was struck on the head with that weapon.
I now turn to the question of the youth of the offenders. In the case of young offenders there is generally greater emphasis given to rehabilitation and less to deterrence than in cases of adult offenders. But that depends in part on the circumstances of the offence. As was said in R v MA (supra) at [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 Senior & 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.””
In R v Pham & Ly (1991) 55 ACrimR Lee CJ at CL said this at p135:
“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.”
In R v Hearne [2001] NSWCCA 37 the Court of Criminal Appeal considered an appeal by the appellant against a sentence imposed upon him for stabbing and killing Constable Peter Forsyth in February of 1998. In reducing the sentence imposed upon the appellant the Court found that the act of the appellant in suddenly stabbing Constable Forsyth occurred in circumstances which were unplanned and that the sudden stabbing which was not premeditated resulted primarily from the immaturity of the appellant. The Court further found that his act in stabbing Constable Forsyth was impetuous.
In this case, however, there is clear pre-planning and in no way in my view can these offences be regarded as the product of an immature and impetuous act. As the Court said in R v Hearne at [28]:
“It takes no great maturity to appreciate in the course of planning for example an armed robbery or other instance of violence that such activities infringe the rights of others in a way that no civilised society can tolerate.”
I will, as I must, give consideration to the fact that I am sentencing children under the law. But I must also take into account that the offences for which they are to be sentenced are, as I have previously stated, of the highest order of criminality and seriousness. As I have previously said, the protection of the community is paramount in the sentencing exercise.
However, rehabilitation is an important factor in the sentencing exercise which I must not ignore. Children, no matter how appalling their criminal acts may be, are still children and they hopefully have a long life ahead of them. The community will be benefited by the fact that when they are released from custody that there has been some rehabilitation. A crushing sentence of many years will not assist in the rehabilitation of a child.
The sentences that I will impose on the offenders are severe sentences. But I wish to make it perfectly clear and particularly to the victim who has been sitting in court throughout these entire sentencing proceedings that much longer sentences would have been imposed had the offenders been adults. The law does require me to take into account that they are children and that there must be prospects of rehabilitation, unless the offence falls into the most exceptional category that no consideration at all can be given to an offender’s youth. In my view, these cases do not fall into that exceptional category.”
His Honour concluded his remarks by referring to what he regarded as a “very troubling aspect of this case” in that he could not understand the motivation for “how these four children with no prior criminal antecedents came to commit this appalling and unprovoked ferocious attack against Mr Jansz”. His Honour speculated as to the possible influence of peer pressure and violence depicted in the media and in video games so as to desensitise young persons to the real ramifications of violence. His Honour concluded:
“In my view the only appropriate sentence with respect to each of the offenders is a custodial sentence. I am also of the view that the culpability of the offender PM is greater than that of the other offenders. He clearly took the leading role as I have earlier indicated. I have found, and it is conceded by his counsel, that he was not under the pressure of his co-offenders. I do accept with respect to the other offenders that there was some degree of peer group pressure in the commission of the offences although that does not excuse the offences.”
Grounds of appeal in the matter of MS2
Ground 1 – the learned sentencing judge erred in failing to have proper regard to the applicant’s youth and in particular failed to have proper regard to the relationship between the applicant’s immaturity and the commission of the offence.
Ground 2 – the applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him and those imposed upon his co-offenders
Ground 3 – the sentence is, in all the circumstances, manifestly excessive
Ground of Appeal 1
The submissions in relation to Ground 1 were directed at his Honour’s conclusion (ROS 37) “In this case there is preplanning and in no way in my view can these offences be regarded as the product of an immature and impetuous act”.
It was submitted that although the element of planning rebutted any suggestion of impetuosity, it did not adequately or at all deal with the applicant’s immaturity. Specifically issue was taken with his Honour’s reliance upon such decisions as R v MA, R v Pham & Ly and R v Hearne in that the offenders in those cases were significantly older than MS2.
The issue of peer pressure which was found to be a factor by his Honour and which was emphasised in the Juvenile Justice report, together with his Honour’s inability to understand the motivation for these offences, were clear indicia of the immaturity of MS2 to which his Honour failed to have due regard.
It was further submitted that the age of MS2 and the evidence as to his involvement in fights before the offences were indicative of immaturity in that it was likely that he did not appreciate or fully appreciate the effect of violent conduct on those subjected to it. Reliance was placed upon R v JLC-H [2004] NSWCCA 70 at [57]:
“If in a person’s formative years, violence is the norm or, if not the norm, commonly employed in situations of conflict or frustration, it cannot be surprising if the normal inhibitions on the use of violence are much less weighty. The situation is a fortiori in the case of someone young or immature.” (Hulme J)
His Honour’s review of the principles applicable to the sentencing of children was comprehensive and accurate. So also was his Honour’s analysis of the factual background and subjective matters relating to MS2. Nevertheless I am of the opinion that his Honour did err in his conclusion that the preplanning of the offence of itself rebutted the proposition that these offences were the product of an immature mind.
MS2 at age 15 years and 7 months was very young. The very reasons identified by his Honour (ROS 39) for being unable to understand the motivation for these violent offences indicates, in my opinion, that immaturity in the sense of not appreciating the potentially devastating effects of violent conduct, played a significant part in the commission of these offences by MS2. In that regard the comments of Santow JA in R v JLC-H are pertinent:

“[30] Then there are subjective factors of a terrible home background and domestic violence of a continuing nature which clearly marked this immature young man, still only 16 years 9 months at the time of these offences. That immaturity is an important aspect of this case. In Hearne [2001] 124 ACrimR at para 22, this Court considered the sentencing of young offenders and, in particular, what might be described as the tension between the desirability of rehabilitating the offender with the need to recognise the criminality of an offender who has committed a particularly serious crime. Addressing the principle involved, the Court said (at para 25):

“It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.” “

That approach it seems to me is applicable to MS2 in this case and in failing to have adequate regard to it, his Honour did err. Ground of Appeal 1 is made out.
Ground of Appeal 2
Although the ground of appeal referred to co-offenders generally, the thrust of the submission was directed at the sentence imposed on TN, both as to length and as to the fact that it was suspended. Emphasis was also placed on the fact that MS2 did not actively participate in the violence directed at the victim. The submission was that in most respects the conduct of MS2 was similar to that of TN and accordingly he should have received a sentence of a similar kind.
His Honour dealt with the subjective case of TN at ROS 29-33. It is clear from that material that TN had a significantly stronger subjective case than did MS2. He was of course much younger, being 14 years and 8 months at the time of the offences. Not long before these offences TN’s father had been gaoled for drug offences and this had had a significantly de-stabilising effect upon him and his family. TN gave evidence before his Honour and his Honour clearly formed a favourable impression of him. His Honour accepted that TN had been intimidated by PM into participating in the offences. Of all the offenders his Honour concluded that TN had best demonstrated remorse and empathy for the victim. Finally, TN had not actively participated in any violent conduct towards the victim, nor had he gained anything from the robbery.
At ROS 40 his Honour summarised the position of TN as follows:
“I do however regard the offender TN as falling in a different category to the other three offenders. He did not actually participate in any physical assault on the victim and he did not take any of his property. He gave evidence before me and exposed himself to cross-examination. He said that he was scared at the time and he felt that he was under pressure to stay with his friends. He told the Juvenile Justice officers that he felt intimidated by the offender PM, whom I should say the photographs indicate was physically bigger at the time of the offences than the other offenders. And I accept that TN did not want to be seen as weak by his group. He said in his ERISP, and I accept, that he was scared and shocked when PM used the steering wheel lock although he said he knew it was there.
I therefore propose with respect to TN, to suspend his sentence given particularly his lack of prior convictions and his lack of actual involvement in the offence and given that I accept that his culpability was at a much lower level than those of the other three offenders.”
The principle of parity in sentencing was clearly stated in Postiglione v Regina (1997) 189 CLR 295 at 301:
“Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.”
There were, as his Honour indicated, clear and significant differences between the position of TN and that of MS2 and it was open to his Honour to award to TN a significantly lesser sentence and to then suspend that sentence. No error in his Honour’s approach to the sentencing of MS2 based on the principle of parity has been demonstrated.
Ground of Appeal 3
This ground of appeal to a large extent picks up the same matters dealt with in Ground 1. If, as I have concluded, his Honour failed to have adequate regard to the immaturity of MS2, there is a strong likelihood that there would be error in the sentence ultimately imposed. That such was the case was sought to be demonstrated by reference to the discount “towards the top end of the range of 10% to 25%” applied by his Honour when dealing with the early plea of guilty of MS2. It was submitted that if his Honour gave a discount of 25%, then the head sentence which his Honour originally had in mind must have been in excess of 6½ years before that discount was applied and as such, the head sentence was manifestly excessive.
Absent the matters referred to in relation to Ground of Appeal 1, I am of the opinion that the sentences imposed by his Honour were not manifestly excessive. It is only when one has full regard to the immaturity of MS2 in the way referred to in relation to Ground of Appeal 1, that the question of the sentence imposed upon him being manifestly excessive arises. Accordingly I prefer to base my conclusions upon Ground of Appeal 1 rather than the proposition that the sentence imposed on MS2 was manifestly excessive.
Should the sentences imposed on MS2 be disturbed?
As indicated I am of the opinion that error has been disclosed in his Honour’s treatment of the relationship between the immaturity of MS2 and the offences committed by him. It is not, however, sufficient for the applicant to establish error alone. It is necessary that this Court be satisfied that “some other sentence … is warranted in law and should have been passed” (subs 6(3) of the Criminal Appeal Act 1912; R v Simpson (2001) 53 NSWLR 704 at [79] and [99]-[100]).
I am of the opinion that when due regard is had to the immaturity of MS2 at the time when the offences were committed that some other sentence is warranted in law and should have been passed. That sentence should be lower and include a significant period of parole supervision.
In relation to MS2, the orders which I propose are:
(1)That leave to appeal against the severity of sentence in relation to the s96 offence be granted.
(2)That the appeal be allowed and that the sentence imposed by Marien DCJ on 25 November 2004 in relation to the s96 offence be quashed.
(3)In lieu thereof MS2 be sentenced in respect of the s96 offence to a period of imprisonment comprising a non-parole period of 2 years and 5 months commencing on 30 July 2003 and to expire on 29 December 2005 and a balance term of 2 years commencing on 30 December 2005 and to expire on 29 December 2007.
(4)Otherwise the orders of Marien DCJ in respect of MS2 are confirmed.
Grounds of appeal in matter of PM
Ground 1 – the sentencing judge gave too much weight to what were regarded as the objectively aggravating factors of the offence.
Ground 2 – the sentencing judge had insufficient regard to the applicant’s age and misapplied the principles relevant to sentencing offenders of such tender years
Ground 3 – the sentence is manifestly excessive in the circumstances of this case.
Ground of Appeal 1
This Ground of Appeal focused on three matters. It was submitted that in having regard to the fact that “substantial injuries” were inflicted upon the victim and that no chance was given to the victim to part with his property before being violently assaulted, his Honour was really taking into account as aggravating features matters which were elements of the offence. (ROS 35-36.) Complaint was also made concerning his Honour’s finding that PM “when he struck the victim did so with an intention to inflict grievous bodily harm upon him”. (ROS 36)
These criticisms of his Honour’s remarks are not made out. When referring to the fact that “substantial injuries” were inflicted upon the victim his Honour was doing no more than pointing out that there are degrees of grievous bodily harm in a s96 offence and that the circumstances of this case were such that the grievous bodily harm actually inflicted went considerably beyond the minimum required to establish the offence. That was a matter to which his Honour was entitled to have regard and there was ample evidence to support his conclusion in relation to it.
His Honour’s reference to no chance being given to the victim to part with his property before being violently assaulted was simply another way of pointing out that PM intended to violently assault the victim when he armed himself with the wheel lock. That also was a matter to which his Honour was entitled to have regard as an aggravating feature and the evidence in relation to it was all one way.
In the absence of any direct evidence from PM, the question of his intent when he struck the victim on the head with the metal steering lock was one to be determined by inference from the facts. I am of the opinion that the inference drawn by his Honour was the only one reasonably open to him, not only because of the matters identified by his Honour ie the nature of the weapon used and the fact that the victim was struck on the head, but also because the blow was sufficiently strong to cause the victim to fall unconscious to the ground.
This ground of appeal has not been made out.
Ground of Appeal 2
Although the arguments put in support of this ground were expressed somewhat differently in the case of PM when compared with that of MS2, their effect was the same. Although I agree with his Honour that the part played by PM in the offences involved significantly more culpability than that of his co-offenders, I am of the opinion that immaturity played a significant role in the commission of these offences and that for the reasons set out in respect of MS2, his Honour erred in failing to have due regard to this consideration when sentencing PM. Accordingly, this ground of appeal is made out for the reasons previously indicated ([51] and [56]).
Ground of appeal 3
No specific submissions were addressed to this ground and in that regard I follow the same approach as I did in relation to MS2 ([61]- [62]).
Should the sentence imposed on PM be disturbed?
For the reasons indicated in the application by MS2, I am of the opinion that some other sentence is warranted in law and should have been passed and that such sentence should be lower and include a substantial non-parole period so that rehabilitation can be fully explored.
In relation to PM, the orders which I propose are:
(1)That leave to appeal against the severity of sentence in relation to the s96 offence be granted.
(2)That the appeal be allowed and that the sentence imposed by Marien DCJ on 25 November 2004 in relation to the s96 offence be quashed.
(3)In lieu thereof PM be sentenced in respect of the s96 offence to a period of imprisonment comprising a non-parole period of 3 years commencing on 3 July 2003 and to expire on 2 July 2006 and a balance term of 2 ½ years commencing on 3 July 2006 and to expire on 2 January 2009.
(4)Otherwise the orders of Marien DCJ in respect of PM are confirmed.
Grounds of Appeal in matter of JS
Ground 1 – the learned sentencing judge erred in failing to have proper regard to the applicant’s youth.
Ground 2 – the applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him and his co-offenders
Ground 3 – the sentence is manifestly excessive.
Ground of Appeal 1
The same submissions were put on behalf of JS as have been referred to in respect of the other applicants. In addition reference was made to the comments of Shaw J in R v AO [2003] NSWCCA 43 at [77]:
“However it must be stated that seriousness of the offence cannot be the exclusive guiding factor in this respect and there is nothing in the case law that would put that proposition as authoritative. Rather, it is generally regarded as acceptable that the “younger the offender, the greater the weight to be afforded to the element of youth” Hearne [2001] NSWCCA 37 at [27]. Similarly the closer an offender is to the statutory age of adult maturity (ie 18) the less these principles will apply to the child. Tran [1999] NSWCCA 109.
In submissions emphasis was placed on the fact that JS was the youngest of the offenders, being 14 years and 5 months at the time when the offences took place. Because of his age it was submitted that JS was more likely to be influenced by peer pressure particularly when the chief protagonist was a child more than eighteen months older than him.
For the reasons previously indicated ([51] – [56]) I am of the opinion that this ground of appeal has been made out.
Ground of Appeal 2
This ground of appeal was directly primarily at the suspended sentence imposed on TN. Although JS was younger by 3 months than TN, the distinguishing features to which his Honour referred ([58] – [59]) apply equally to JS. Additionally JS engaged in a violent and cowardly attack on the victim when he was unconscious and had pre-existing problems with violence and anger control as the Juvenile Justice and psychological reports set out.
This ground of appeal is not made out.
Ground of Appeal 3
As indicated in the application by MS2, this ground of appeal gains its force from the age of the applicant. Absent that consideration which is specifically raised in ground of appeal 1, there is nothing to indicate that the sentence imposed was otherwise manifestly excessive.
Should the sentences imposed on JS be disturbed?
I am satisfied that some other sentence is warranted in law and should have been passed and that such a sentence should have been lower than that imposed and should have provided for a substantial parole period so as to implement the rehabilitation recommendations made in respect of JS.
The orders which I propose are:
(1)That leave to appeal against the severity of sentence in relation to the s96 offence be granted.
(2)That the appeal be allowed and that the sentence imposed by Marien DCJ on 25 November 2004 in relation to the s96 offence be quashed.
(3)In lieu thereof JS be sentenced in respect of the s96 offence to a period of imprisonment comprising a non-parole period of 2 years and 5 months commencing on 3 July 2003 and to expire on 2 December 2005 and a balance term of 2 years commencing on 3 December 2005 and to expire on 2 December 2007.
(4) Otherwise the orders of Marien DCJ in respect of JS are confirmed.

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LAST UPDATED: 25/11/2005

[2005] NSWCCA 397

24 November 2005