R v AO

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. AO [2003] NSWCCA 43

FILE NUMBER(S):
No. 60310 of 2002

HEARING DATE(S): Wednesday 19 February 2003

JUDGMENT DATE: 04/03/2003

PARTIES:
REGINA v. AO

JUDGMENT OF: Hulme J Greg James J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3247

LOWER COURT JUDICIAL OFFICER: Sides, DCJ.

COUNSEL:
Crown: D.M. Woodburne
App: M. Thangaraj

SOLICITORS:
Crown: S.E. O'Connor
App: Nyman Gibson Stewart

CATCHWORDS:
Criminal law - child offender - sentence - appeal - multiple armed robberies - fresh evidence to show offender aged 14 not 16, as held by trial judge - ordered to be detained in detention centre - consideration of remitter to trial judge - whether fresh evidence could make any difference - appeal dismissed.

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Young Offenders Act 1997
Justices Act 1902
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

No. 60310 of 2002
HULME, J.
GREG JAMES, J.
SHAW, J.
TUESDAY 4 MARCH 2003

REGINA v. AO

Judgment

HULME, J: I agree with Greg James, J.
GREG JAMES, J: This application for leave to appeal against the severity of sentence is brought by a child, that is to say, by a person defined as a child by the definition provided in s.3 of the Children (Criminal Proceedings) Act 1987, ie., a person aged under the age of 18 years.
The provisions of that Act apply to these proceedings and to the proceedings before the learned sentencing judge.
Division 4 of Part 2 of that Act, by s.16 of the Act, applies to a person against whom a finding of guilt, either on a plea or otherwise, by a court other than the Children's Court has been made who was a child when the offence in question was committed and was under the age of 21 years when charged before the court. By s.18, such a person in respect to such offences as are here charged may be dealt with according to law or in accordance with Division 4 of Part 3 of the Act, in which case the court dealing with such a child may exercise all the functions of the Children's Court.
In the present case, the District Court proceeded to deal with the child pursuant to s.19 of the Act, directing that the whole of the term of sentence of imprisonment imposed upon the child should be served in a detention centre, or until the child turned 21. Subsections 2 and 3 of s.19 provide for limits in certain circumstances on the period of a sentence of imprisonment that may be served in a detention centre until the age of 21 years or until the age of 18 years.
Division 4 of Part 3 of the Act, by s.33, provides penalties which may be imposed upon persons guilty of offences to which that Division applies. The orders that may be made include orders dismissing the charge, administering a caution, requiring release upon a good behaviour bond, fine, release on complying with an outcome plan determined at a conference held under the Young Offenders Act 1997, release on probation, community service or committal to the control of the Minister for a period not exceeding two years. These options were at least theoretically available if the applicant had been dealt with otherwise than he was.
In the written submissions provided on behalf of the applicant appears a succinct statement of the circumstances and the course taken in relation to him in the court below.
The applicant is a young refugee from Somalia. In the District Court he had pleaded guilty to nine counts of armed robbery, one count of robbery in company and one count of attempted robbery in company. A further 19 counts of armed robbery, two counts of robbery in company and one count of attempted robbery in company were taken into account. There were, thus, 33 offences relating to 22 separate incidents. It was common ground that the applicant was a teenager at the time of the offences and that they all took place in a six week period between 10 November 2000 and 12 December 2000.
The applicant was sentenced to a complex of sentences imposed on the 11 counts in the indictment, taking into account the further 19 counts on Form Ones. The sentences imposed were as follows:-
"Count One (and first Form One); Count Three (and second Form One); Counts Four, Five, Seven and Nine:-
Imprisonment for four years to commence 12 December 2000 and to expire 11 December 2004. Non-parole period of two years to commence 12 December 2000 and to expire 11 December 2002.
Count Two:-
Imprisonment for four years to commence 12 December 2000 and to expire 11 December 2004. Non-parole period of 18 months to commence 12 December 2000 and to expire 11 June 2002.
Count Six (and third Form One):-
Imprisonment for four years and six months to commence 12 December 2000 and to expire 11 June 2005. Non-parole period of three years to commence 12 December 2000 and to expire 11 December 2003.
Count Eight (and fourth Form One); Count 10 (and fifth Form One); Count 11 (and sixth Form One):-
Imprisonment for five years to commence 12 December 2002 and to expire 11 December 2007. Non-parole period of two years to commence 12 December 2002 and to expire 11 December 2004."
The overall effect of the sentences was that the applicant was sentenced to seven years imprisonment with a four year non-parole period to commence on 12 December 2000.
The applicant had, for a young person, an appalling criminal record which included multiple offences of possessing car breaking implements, stealing, robbery and robbery in company, resisting an officer, demanding property with menaces with intent to steal and affray. This list understates the extent of that record.
In respect of the matters in that record, he had been the subject of recognisances, probation orders, control orders, community service orders and fines. Most recently, he had received a control order for six months commencing on 10 April 2002.
Sentence was imposed by the learned District Court judge on 9 May 2002. The offender had come forward for sentence together with two other persons. Between them, the offenders had committed a quite enormous number of crimes and were being dealt with by the trial judge for all of them together.
In carefully considered and detailed remarks on sentence totalling 131 pages, the trial judge reviewed all the circumstances relevant to each offender and to each offence. It is not necessary in this judgment to repeat them. In his remarks on sentence, there appear tables setting out the relevant characteristics of the various offences. In the submissions provided to us on behalf of the Crown, similar tables are produced referrring to the date and place of each offence, the short facts relevant to it, the penalty imposed and the circumstances of each co-offender.
The trial judge's remarks on sentence and those tables show that the applicant and his co-accused were parties to robberies upon service stations where the employees were threatened with knives and a small amount of cash or goods stolen. As I have already noted, there were 22 such incidents, involving threats to the employee victims, others involving both threats and actual violence inflicting some degree of injury. The additional counts in the main refer to the taking of the employee's personal property as well as the taking of the property of the employer. Each of the 33 offences was punishable by imprisonment for 20 years.
In each case, the applicant had been committed for sentence to the District Court pursuant to s.51A of the Justices Act 1902.
Notwithstanding that the offences were committed whilst the applicant was on parole for robbery in company and notwithstanding the number of and the extent of the criminality in these offences, dealt with as he has been by the trial judge, the applicant is eligible to be released on parole on 11 December 2004.
It is common ground that the applicant was sentenced and dealt with by the trial judge on the basis that at the time of the offences he was 16 years of age, his Honour having determined that the applicant had been born in September 1984. This application has been brought upon the basis of fresh evidence showing that the applicant had been born in September 1986.
In the written submissions filed on behalf of the applicant, it was contended that the court should set aside the sentences imposed and re-sentence the applicant pursuant to Division 4 of Part 3 of the Act which, at most, would provide for the control order to which I have referred and, although each individual order cannot exceed two years, which would provide for cumulative orders not to exceed three years in totality.
Although in the written submissions it was contended that the District Court was arguably not subject to this three year limit (see s.33A, Children (Criminal Proceedings) Act 1987 and s.18(2) of that Act), oral submissions did not turn to this matter.
It was contended that the difference between 14 years of age and 16 years of age was a very relevant factor and that, having regard to the particular circumstances of the offender, a lack of maturity of the offender in this case required re-assessment of the sentences in the light of the contended further youthfulness of the applicant.
Twelve factors were propounded in the written submissions as having been found by the trial judge such as were capable of interrelating with what it was submitted was the lesser maturity in the event that the applicant were aged 14 rather than 16 such as to require a re-assessment of the sentence. They are as follows:-
"(i)Due to the civil war in Somalia, the applicant was separated from his mother and placed with his uncle when he was three.
(ii)The applicant did not settle well in Australia and his uncle and aunt found it difficult to provide for him. The inability to adjust was not surprising. His uncle and aunt themselves separate.
(iii)He came under the supervisions of DOCS.
(iv)For several months when he was 13 he was missing from home and DOCS.
(v)He commenced to abuse marijuana and then heroin at an early age.
(vi)The applicant resorted to drug use in order to deal with his anger and frustration with life.
(vii)It is likely that the applicant suffers post-traumatic stress disorder as a consequence of his experiences in civil war, a refugee camp and separation from his parents.
(viii)It is unfortunate that the applicant has not received specialised counselling.
(ix)The background of the offender excites the sympathy of the court.
(x)The circumstances explain the drug addiction, criminal behaviour, poor choice of associates and poor response to education.
(xi)The offender is very vulnerable.
(xii)The circumstances of the offender are quite unique."
It was contended that his Honour's lack of optimism about the applicant's rehabilitation prospects and his finding of the need for general and personal deterrence were undermined by the applicant being two years younger than he had concluded.
The Crown submitted that, whether or not the applicant were found to be two years younger, the course taken by the trial judge was either entirely appropriate or lenient, but, in any event, was not such as would warrant interference by this court with the orders made by the sentencing judge.
It was submitted that no lesser sentence would be warranted in law: see s.6(3) of the Criminal Appeal Act 1912; Regina v. Cocking [1999] NSWCCA 311. Reference was made to the decision of this court in Regina v. FQ (unreported 28 May 1998) and to the decisions cited therein, in particular, Regina v. GDP (1991) 53 A. Crim. R. 112 in which Mathews, J. at 116 analysed the principles concerning the sentencing of young offenders under the principles prescribed by the Act. Particularly relevant was the citation by Carruthers, J. with whom Hulme and Hidden, JJ. agreed in FQ (supra) of what had been stated as the relevant principle by Hunt, CJ. at CL. speaking for the court in Regina v. Bus & AS (CCA, unreported 3 November 1995 at 11):-
"Rehabilitation plays a more significant role and general deterrence a lesser role. But that principle is subject to the qualification that, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing him."
Accepting that the applicant's age was a relevant consideration, the Crown contended that in the event that proper regard be had, as it submitted it must necessarily be had, to the nature of the various matters, then the applicant should not be dealt with in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987 and the sentence should not be reduced. The Crown submitted that given that the applicant had been released on conditional liberty and had committed a series of objectively serious offences, in accordance with principle, the offences required objectively deterrent sentences and making appropriate and adequate allowance for the applicant being younger than found by the trial judge, nonetheless, the sentences remained such that no other sentence was warranted in law or should have been passed.
No doubt in recognition of the strength of the Crown submissions, at the commencement of the hearing, Mr. Thangaraj, counsel for the applicant made an application that the proceedings be remitted to the learned trial judge to determine the age of the applicant at the time of the commission of the offences and, in the event, that the applicant's age was determined to be two years younger, to re-sentence.
The court has power pursuant to s.12(2) of the Criminal Appeal Act 1912 to remit "a matter of issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made". The circumstances in which a matter might be remitted and the availability of an appeal from a determination on such a remitter were discussed by me in my judgment in Histollo Pty. Limited v. Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661.
It may be accepted as a general proposition, in the event that the applicant were considerably younger than found by the trial judge, that is a matter which might well impact upon the type of sentences imposed upon him and their extent. In particular, it may well mean that an applicant remains in a detention centre longer than the applicant would otherwise remain, the limit being set at 21, as here, and that the applicant would remain a lesser time as an adult in an adult gaol. However, that matter, in this case would be of little relevance, since either the effect would be one of greater leniency to the applicant or, as here, the applicant would be due for release before entering any adult gaol.
It was put to counsel for the applicant that such a course, however, would seem to have little utility unless it were open to the trial judge to make some other order than that which had been made. In his oral submissions, counsel expressly disclaimed any order of a different kind such as a control order as appropriate but, having regard to the trial judge's view that a lengthy period of intensive supervision was necessary, submitted that the non-parole period should be reduced and some further supervised release available. The Crown opposed the proposed orders contending that the evidence was not such as to be capable of displacing the trial judge's finding of fact, but that in any event, even if it was, there was no other appropriate sentences available in law to the trial judge for crimes of such culpability as these notwithstanding the applicant might be two years younger than the age that he appeared to be to the trial judge.
Our attention was drawn to various of the statutory provisions of the Children (Criminal Proceedings) Act 1987, in particular, those dealing with the apparent age of a child and the power of the Attorney General to determine the age of a child and as a result to cause an application to be made to a court to review a decision.
On behalf of the Crown, it was submitted that the remission was really a pointless exercise, having regard to the offences and the sentences that had been imposed. It was submitted that the material was not such as would support a re-assessment of the question of age by the trial judge, nor such as would, even if the age were determined differently, warrant any interference with the sentences.
I turn to the evidence concerning the applicant's age. It was contended on behalf of the applicant that there was sufficient disclosed in the affidavit of Dennis Miralis, solicitor, sworn 13 December 2002 which was read without objection; in the birth certificate obtained from Somalia, annexed to that affidavit, said to relate to the applicant and in the letter from Helen Thompson, International Movement Record, Department of Immigration and Multicultural and Indigenous Affairs dated 18 February 2003 to Ms. Ramsey at the Office of the Director of Public Prosecutions to require that the applicant's age be re-assessed.
Notwithstanding there is a difference in the name "Abdulkadir Mohamud Elmi" in the birth certificate from the name expressed in other documentation of the applicant, that matter seems to be clarified by reference to the applicant's uncle, a person at times referred to as the applicant's father, having the surname Elmi.
Although the Crown pointed to a deal of documentation in which the applicant's age had been otherwise referred to, upon analysis, all of that material seems to proceed without regard to the primary documentation and upon the basis of originally incorrect information provided to the authorities. I consider this court is well able to consider this matter for itself. I conclude that it is more probable than not that the applicant was 14 at the time. Thus, it is necessary to consider the significance of this.
In Regina v. T [2001] NSWCCA 210, this court recognised the importance under the Children (Criminal Proceedings) Act 1987 of the correct ascertainment of the age of a child and proceeded to examine fresh evidence to determine that issue. That, however, was done in the context that an interview of the child took place in that matter in the absence of an accompanying person and evidence of what the child had said had been tendered at trial as an admission. In that regard, the court concluded that the function of the Court of Criminal Appeal when a factual error of such significance had occurred below, was to consider whether the change in the factual basis was such that there was a significant possibility of a different outcome on the relevant issue.
I am content to apply to this matter the test therein expressed, that is to say, to consider the impact of the difference in the applicant's age at the time of the offences on the sentences to ascertain whether or not there is a significant possibility that the sentences passed might be revised favourably by the trial judge.
Although the learned Crown Prosecutor expressed the view that she would be unwise to say that there was no significant possibility the child would have been treated differently, for my part I conclude that there is no significant possibility.
In my view, having regard to the applicant's prior record, to his having been on conditional liberty at the time of the commission of these offences, having regard to the number of the offences, their gravity and, in particular, the applicant's role in their perpetration, I can see no other rational course having been available to the trial judge than the course that he took.
Mr. Thangaraj submitted:-
"There is a difference between sentencing someone who has just gone past being 13 and someone who is 16."
He said:-
"It is not my submission that sentencing for a 16 year old the sentence would have been manifestly excessive. I don't make that submission."

He did, however, submit that if the applicant was 14 and the court should so find, the sentences failed to give adequate recognition of the principles relating to the prospects of rehabilitation of a child and the reduced relevance of deterrence in the case of a child. He emphasised the general difference in maturity of persons aged 14 to those aged 16. He contended that increased immaturity would mean an earlier and more effective rehabilitation as a result of supervision in custody. That one had to commence the process by assuming rehabilitative prospects and that one, in the case of a younger person, would not assess them as harshly as the trial judge did in this case.
He referred us to the applicant's prior difficult circumstances as setting the context for possible rehabilitation. In particular, he makes reference to the applicant having come to Australia from a civil war as a refugee, without parents, under the supervision of the Department of Community Services, suffering from heroin abuse and post-traumatic stress disorder.
All of those circumstances are such as evoke sympathy. But as was pointed out in argument, this court sits as a court of appeal in respect of any error of law in the proceedings below affecting the result such as to show that the sentence which was imposed was in error and in lieu thereof another sentence warranted in law and which should have been passed, should be substituted.
Notwithstanding giving the most anxious consideration to the applicant's circumstances, I am firmly of the view that no more lenient sentence could have been passed on the applicant for these crimes, even accepting he was two years younger than the age determined by the trial judge.
In my view, there is no warrant for interfering with the sentences passed in this case and for that reason, I am of the view that there is no purpose in remitting the matter to the trial judge. This view, in my opinion, requires the challenge to the sentences to be rejected.
I propose that the application for leave to appeal should be granted, since the matter has been fully argued, but the appeal dismissed.
SHAW, J: A majority of this court would dismiss the appeal. I take a different view and suggest a procedure which would facilitate the reconsideration of the sentence imposed on the applicant.
The applicant is a refugee from Somalia. He engaged in what is undoubtedly an appalling series of crimes during what his counsel described as a ‘rampage’ in November-December 2000. This involved thirty three offences of armed robbery, and resulted in his sentence by his Honour, Judge Sides, QC, of seven years imprisonment with four years non parole.
This heavy sentence was plainly appropriate in all of the circumstances, because whatever the possibilities of rehabilitation, there was a clear need to impose a sentence which reflected community abhorrence of such offences and which had the effect of deterring other people from engaging in similar conduct.
However, what prompts me to suggest that the appeal should be upheld and the matter remitted to the trial judge for further consideration is the confusion which occurred as to the age of the applicant when he committed the relevant offences.
It is obvious that age is a relevant circumstance in the exercise of the discretion of a trial judge in determining a sentence. R v WKR (1993) 32 NSWLR 447 makes it clear that age and maturity are material factors.
In the present case, the trial judge appropriately turned his attention to the question of the age of the applicant, and indicated the fact that there was some dispute about the age and therefore some ambiguity about it. Having regard to the evidence before the trial judge and having regard to the appearance of the applicant, the trial judge rejected the proposition that 15 September 1986 was his date of birth and said:
In all the circumstances I am of the view that, it is highly probable that his date of birth is 5 September 1984. I will proceed on the basis that he was sixteen at the time he committed these offences.
However, the evidence before this Court seems to indicate, at least prima facie, that the applicant was fourteen years of age at the time of committing these offences. A somewhat difficult to comprehend birth certificate has been tendered (by consent) which, assuming it does relate to the applicant, indicates a date of birth of September 1986. Perhaps more cogently, a document has been tendered to this Court, helpfully supplied by the Crown to the defence, emanating from the Department of Immigration and Multicultural and Indigenous Affairs dated 18 February 2003 which appears on its face to relate to the applicant and which indicates a date of birth of 5 September 1986. This evidence having been tendered on appeal by consent leads to the conclusion that it is more than respectably arguable that the applicant was fourteen years of age at the date of the offence. Thus, the trial judge in the sentencing process proceeded on the basis of a misapprehension because of the lack of accurate or complete information put before him.
It may be, as the Crown contends, that the same result would have ensued had the correct date of birth of the applicant been known by the trial judge. On the other hand, it may be that the trial judge would have, at least in respect of the non parole period, accorded weight to the relative youth of the applicant and awarded a somewhat lesser period of necessary incarceration. That is a matter of speculation for this Court, but it seems to me that there is a rational possibility that the result might have been different had the trial judge been properly informed of the age of the applicant.
It is an established, and I think clearly correct principle, that in sentencing ‘young people’ general deterrence is not as important as it would be in the sentencing of adults, and that in relation to a young offender considerations of rehabilitation should be regarded as ‘very important’: R v GDP (1991) 53 A Crim R 112 at 116 per Gleeson CJ. It seems to me to be a reasonable application of that principle to conclude that the degree of youthfulness (that is, the age of the offender) is also relevant and that the sentencing of a 14 year old should be different to someone who is 16 years of age.
However, the question for determination by this Court is whether that finding amounted to an error requiring this Court to intervene, and, if so, the appropriate course for that intervention.

Background principles: sentencing young offenders

Section 3 of the Children (Criminal Proceedings) Act 1987 affirmatively states that a person under the age of 18 years is a child. However, s 5 of the Act declares that it is ‘conclusively presumed’ that children over the age of 10 years must bear responsibility for actions classified as criminal. The principle that balances these two provisions is identified in s 6(b) of the Act, which relevantly states:
6 Principles relating to the exercise of criminal jurisdiction
A court, in exercising criminal jurisdiction with respect to 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,
The regime for sentencing a child is therefore considerably different to sentencing an adult.

In sentencing any offender once the minimum period of actual incarceration necessary to reflect the proportionate punishment of an offender has been determined (see Power v The Queen (1974) 131 CLR 623), in some ‘special circumstances’ the assessment that an offender has better than usual prosects of rehabilitation is reflected in a shorter period of incarceration than would otherwise be appropriate to allow a longer than usual period of supervision whilst reunited with the community from which they have been excluded (R v Simpson (2001) 53 NSWLR 704). General deterrence is one factor amongst many to be considered in setting that required minimum period of incarceration (R v Moffitt (1990) 20 NSWLR 114). However it is generally accepted that in sentencing young offenders considerations of general deterrence are not as significant as in the sentencing of an adult. This reflects an accepted norm that the community interest reflected in the sentencing of a child is not advanced by using him or her as an example but rather in seizing the opportunity to direct the child into rehabilitative efforts: Smith [1964] Crim LR 70; Bellavia (Unreported, Hunt J, 16 August 1980); GDP (1991) 53 A Crim R 112 per Matthews J.

Considerations of deterrence are not displaced by a consideration of the rehabilitation of a child: Broad (Unreported, Street CJ, 30 March 1984). In some cases this will override all other considerations: AEM (Snr), KEM, and MM [2002] NSWCCA 58. A proper consideration of the appropriate rehabilitative efforts for the child may even result in an assessment that a long period of time in a detention centre is required: see C, S and T (Unreported, NSWCCA, 12 October 1989) per Gleeson CJ at par 14.

As a point of principle, an assessment that the prospects of rehabilitation are poor should not preclude a consideration of those relevant circumstances that proceed on the basis that children are to be sentenced according to a different regime to adult offenders. This is a statutory direction to the courts as well as an ethical, social and intellectual duty for the courts. In this case the emotional immaturity of the applicant, as a child of fourteen at the time the offences were committed, is a material factor that requires a proper assessment of the rehabilitative efforts that may go to at least a distinct possibility of preventing the applicant from re-offending in the future.

The assessment of the appropriate penalty in this case by the sentencing judge

In sentencing the offender on thirty-three counts arising out of twenty-two separate, serial and serious incidents the sentencing judge had little option but to consider an appropriate term for detention. This was noted in the Sentencing Remarks (“SR”) at 109. By applying the principles of totality and parity the sentencing judge determined that all terms be served concurrently and made a finding of ‘special circumstances’ on each charge. Further, the sentencing judge determined that totality and parity demanded that each sentence be backdated to the date of arrest.

Allowing for the ‘maximum leniency’ for a plea of guilty (SR at 5) the sentencing judge also noted:
…the pleas of guilty were entered at an early stage and he has genuinely expressed remorse. Many victims have been spared the anxiety of awaiting a trial and giving evidence in it (SR at 6).
The sentencing judge, however, noted that any leniency allowed for ‘contrition’ could not be as great as that of his co-offenders ‘because he did not nominate his co-offenders’ (SR at 6). It was also noted that ‘[t]he offender AO did not settle well in this country’ (SR at 103). His carers have separated and the trial judge noted that:
Mrs Elmi has found it financially stressful to care for AO and has not been able to appropriately supervise him, particularly in relation to his associates (SR at 103-104).
It was also stated that the offender began abusing drugs at an early age ‘in order to deal with his anger and frustration with his life’ (SR at 104). This finding of fact becomes even more significant considering the error made regarding the offender’s age. The sentencing judge also considered that the use of drugs was ‘self medication’ to cope with post traumatic stress disorder and anxiety as a result of the offender’s background in Somalia and the separation from his family respectively (SR at 104). It was appropriately noted that the offender was on conditional liberty at the time of the commission of these offences (SR at 106).

On the offender’s prospects for rehabilitation the sentencing judge said:
He has been in custody since 12 December 2000. He has not settled well there. However, he has undertaken schooling, educational courses and participating in alcohol and other drug groups. These are positive signs for the future. However, he does not have firm plans in this regard. It is clear that he will need intensive support, both in custody and after release to the community, if he is to successfully rehabilitate himself.
As to how these considerations would be reflected in the sentence his Honour said:
It is well established in sentencing principles that less weight is given to deterrence than to rehabilitation when dealing with youthful offenders. However, in doing so, the Court must not lose sight of the objective seriousness of the offences, particularly where they involve violence: Pham and AEM (SR at 107).
Though his Honour addressed himself in line with the decisions of AEM (Snr) and also Pham (1991) 55 A Crim R 128, it should be noted that Pham involved a successful Crown appeal against the ‘wholly inappropriate’ use of the Griffiths remand as disproportionate to the appropriate exercise of the sentencing discretion and AEM (Snr) involved a misapplication on the part of the trial judge of the totality principle. Neither case strictly involved a consideration of whether the prospects of rehabilitation for a child offender differ according the age of the child and the weight to be accorded to this consideration along with considerations of general deterrence. This Court has noted previously that this question has rarely been addressed: see Hearne [2001] NSWCA 37.

Finally, his Honour went on to say:
In all the circumstances it is difficult to be optimistic about his rehabilitation.
It is this finding which was made the subject of attack by the counsel for the applicant.

The issue determined

The trial judge noted:
The fixing of an appropriate non-parole period or total non-parole period, in the case of AO, is a matter that causes me considerable anxiety as there are competing considerations. On the one hand the objective criminality of the multiplicity of crimes and the need for general and personal deterrence. On the other hand, the deprivation of his background. Those matter [sic], of course, do come into play in fixing the head sentences for each matter and considering the aggregate sentence upon the application of the principle of totality. However, the balancing of such considerations with other matter is a different exercise in connection with determining the time required to be spent in custody before eligibility for parole. In R v Fernando [2002] NSWCCA 28 Spigelman CJ [with whom Wood CJ at CL and Kirby J agreed] said:
As is well established, it is a primary objective of sentencing for criminal offences that the community must be protected from the commission of crimes, by deterring both the particular offender and other possible offenders –referred to as personal and general deterrence respectively. In a case of the character now before the Court, by an offender with this record, the protection of the community requires a substantial period of imprisonment. It is, however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the Court is presented with information about the personal circumstances which have led an individual into a life of crime [my emphasis].
The accumulation of sentences is a matter that must be considered in the context of whether there are special circumstances in relation to the aggregated sentence and the time required to be spent in custody before eligibility for parole (SR at 123-124).
It is significant that the sentencing judge did not include the offender’s age as balancing the considerations of personal and general deterrence in the ‘tempering’ process he described by reference to the Chief Justice in Fernando. The conclusion is inescapable that had the sentencing judge known the offender was fourteen, rather than sixteen, this would have caused the sentencing judge even greater anxiety. It is entirely appropriate that the matter be re-assessed with this information in mind.

The trial judge made all findings of fact and law about an offender he considered to be sixteen, and who would be released to the community at the earliest at age 20. He was not reflecting upon a person of 14 who could be released at age 18. In coming to the conclusion that these offences warranted a minimum term of incapacitation of 4 years, the trial judge was reflecting upon an offender that would become an adult during the required period of detention, and had the potential to be affected in this respect and made provision with regard to s 19 of the Children (Criminal Proceedings) Act. He did not, therefore, consider a sentence that would at all material times impact upon a child.

In the amalgam of considerations, the seriousness of the series of offences was to be understood as the actions of a young, immature and irresponsible offender with very little social ties to the community against which he offended and which now judges him. In this respect, considerations of how the subjective circumstances of the offenders age impact upon a consideration of the seriousness of the offences becomes fundamental to the sentencing discretion. Considerations of the offender’s age affect the sentencing discretion in a number of ways including:

the assessment of the appropriate penalty when making findings of fact about the relationship between the offender and his co-offenders;
when making findings of fact about the culpability of the offender;
when coming to an assessment of the objective gravity of the offences;
when coming to an appreciation of the subjective background of the offender;
when considering the prospects for rehabilitation;
when considering the totality of the offenders criminality;
when fixing an appropriate term of detention;
when considering whether there are ‘special circumstances’ as a matter of fact or law;
when fixing the minimum period of detention that is required; and
when assessing whether an order should be made that the offender be kept in a detention centre.

A misconception as to the offender’s age therefore had the potential to greatly affect the manner in which the sentencing discretion was undertaken. The notional idea that the criminality of an offender can be classified as ‘childish’ or somehow ‘adult’ is, at times, a difficult concept. In some cases, there must be allowance for a consideration that the seriousness of the offence is, in some respects, a result of the offender’s immaturity and, accordingly, lack of social identity and loyalty. There are some cases in which age is not only a relevant consideration but rather the only consideration. This is reflected in the doctrine of doli incapax, set by statute at 10 years of age. In the years between 10 and 18 (at which any offender must be classified as adult, disregarding any intellectual disability) it is difficult for any person called upon to sentence a child to distinguish culpability from immaturity. The appropriate person in this regard is the sentencing judge.

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 para 27 per Powell JA, Hulme and Dowd JJ. Similarly, the closer an offender is to the statutory age of adult maturity (i.e. 18) the less these principles will apply to the child: Tran [1999] NSWCCA 109. When these two propositions are considered it is plain that legal error attended the erroneous findings of the sentencing judge that the offender was sixteen years of age. This error had the potential to affect the exercise of the sentencing discretion.

This error was compounded by the trial judge finding proof of the offender’s age on the balance of probabilities. The principle that age has the capacity to adversely affect the sentence of a young offender, explained in Hearne and Tran, requires that in circumstances in which age is an issue, it be proved beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270.

Appropriate remedy

In those circumstances, I am of the view that the correct course would be to remit the matter to the trial judge for further consideration, which I would expect to be short in terms of the argument and evidence presented so that his Honour can consider whether any alteration in the sentence is warranted in all the circumstances.
I am of the view that there is clear power in this Court arising from s 12(2) of the Criminal Appeal Act 1912, which provides:
The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.

I appreciate, as was referred to by the Crown Prosecutor, that there are some special provisions in the legislative scheme concerning the age of an offender: see s 45 of the Children (Criminal Proceedings) Act. However, in my view, none of those provisions detract from the otherwise plenary power of this court to remit a matter to a trial judge to reconsider a particular issue.
In circumstances where further evidence has been tendered without objection on an appeal and where that further evidence might reasonably have had a material impact upon the sentence, then it seems to me that procedural justice indicates that the sentence ought to be reconsidered. I acknowledge that that imposes upon a trial judge a further obligation, but a fair result is more important than questions of time and resources for the courts. It might be argued that this Court as presently constituted could perform the task of reconsidering the sentence in the light of fresh evidence, but it is my view that the trial judge is particularly well informed about the matter and has in comprehensive reasons considered the position of the applicant. A reconsideration based on this single and specific issue should be capable of being undertaken in a short and simple procedure.
As the applicant has submitted, the age difference is significant in a number of ways, including whether the sentence should have been dealt with in the Children’s Court and what the prospects of rehabilitation are.
In all these circumstances I favour a reconsideration of the sentence, without expressing any view as to whether the existing sentence should be maintained or whether some variation should be made to it.
The orders I would propose are:
1) Leave to appeal granted;
2) Appeal allowed;
3) Sentence imposed by Sides DCJ be quashed; and
4) The matter to be remitted to Sides DCJ to be reconsidered in respect of the fresh evidence concerning the age of the applicant.

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LAST UPDATED: 05/03/2003

[2003] NSWCCA 43

4 March 2003