R v Bashford - [2000] NSWCCA 426

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v BASHFORD [2000] NSWCCA 426

FILE NUMBER(S):
60059/00

HEARING DATE(S): 13/10/2000

JUDGMENT DATE: 13/10/2000

PARTIES:
Regina v Sesoni BASHFORD

JUDGMENT OF: Newman J Hulme J Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0447

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
Crown: PG Berman/V Bessoudian
Applicant: RJ Button

SOLICITORS:
Crown: SE O'Connor
Applicant: DJ Humphreys

CATCHWORDS:

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987 s 33(1)(g)
Children (Detention Centres) Act 1987 s 24

DECISION:
See para 38.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60059/00

NEWMAN J
HULME J
BARR J
Friday, 13 October 2000

REGINA v Sesoni BASHFORD

JUDGMENT

BARR J: The applicant, Sesoni Bashford, seeks leave to appeal against an order made against him under Div 4 of Pt 3 of the Children (Criminal Proceedings) Act 1987.
The applicant pleaded guilty before the Children’s Court to a charge of aggravated robbery and the co-offender, Ian Kaisuva, pleaded guilty before the Local Court to the same charge and both were committed to the District Court for sentence. They appeared, in due course, for sentence before his Honour Judge Goldring. In each case, his Honour took into account, as requested, a single offence of larceny.
His Honour made an order under s 33(1)(g) Children (Criminal Proceedings) Act 1987 committing the applicant to the control of the Minister administering the Children (Detention Centres) Act 1987 for a fixed period of fifteen months, commencing on the day of the order.
His Honour sentenced the co-offender, an adult, to penal servitude for three years comprising a minimum term of one year three months and an additional term of one year nine months.
The applicant broke into a car on the street and stole from it a builder’s nail gun. He and his co-offender held up a man in the street and demanded that he hand over his wallet and money. The applicant pointed the nail gun at him and pulled the trigger. There was a clicking sound but the gun did not discharge. The applicant then set about their victim, hitting him with the nail gun. He also took out a screwdriver and threatened to injure him with that instrument. He took the victim’s watch and briefcase, though the victim was able to retrieve the briefcase.
By that time, the victim had managed to seek help from the attendant at a nearby shop and the applicant and the co-offender ran off. They were found nearby shortly afterwards, the applicant in possession of the stolen watch. The nail gun was found not far away in a place the applicant could be shown to have visited.
As his Honour found, some degree of planning was involved in the enterprise, as demonstrated by the fact that the nail gun was first stolen from the car.
The nail gun worked by discharging a nail at high speed from a cartridge which was inserted into it. When the gun was found, it contained a cartridge but no nails. His Honour accepted the evidence of the owner of the gun that he always kept cartridges and nails separate from the gun. His Honour inferred that the cartridge had been inserted into the gun by the applicant with the intention of using it in an offensive way.
The offence of which the applicant pleaded guilty carried a maximum of twenty years’ penal servitude. The larceny his Honour took into account was the theft of the nail gun.
The question of the offenders’ relative roles and subjective cases arose for consideration and his Honour was obliged to consider whether and to what extent the applicant and Kaisuva ought, as co-offenders, to receive equal treatment.
An important circumstance was that the applicant was sixteen and a half years old at the time of the offence and seventeen and a half years old when sentenced and therefore eligible to be treated according to the favourable regime established under the Children (Criminal Proceedings) Act and the Children (Detention Centres) Act, whereas Kaisuva was eighteen years old at the time of the offence and liable to be sentenced according to law.
His Honour found that the applicant, though the younger of the two, was the leader of the enterprise. He was the one who stole the nail gun and carried it and used it and later disposed of it. He was the one who carried the screwdriver and exposed it when threatening their victim. Both offenders came from troubled domestic backgrounds, were addicted to the use of alcohol and were seriously under its influence at the time of the offence. Neither apparently remembered much about the incident.
The applicant was immature and had a poor work record. He had previously been found to have committed offences of breaking and entering, receiving, indecent assault and sexual intercourse with a person under the age of sixteen years. For the last mentioned of these offences, he had been committed in the control of the Minister for a period of time.
On 23 March 1998, he had been found to have committed robbery in company and assault with intent to rob and had been committed to the control of the Minister for a period of three months with an additional period of supervision of nine months.
The applicant’s early plea of guilty and cooperation with the authorities were accepted by his Honour as genuine and indicating contrition. His Honour accepted the opinion of the authors of Juvenile Justice reports which were put before the Court that, provided that he received proper guidance and supervision, he had good prospects of rehabilitation.
He had spent four months and one week in custody awaiting sentence.
As well as playing a lesser role, Kaisuva had no record of offences. He, too, was contrite and cooperative. His behaviour had changed since his arrest. Whereas he had been unstable and rebellious, he was applying himself conscientiously to work. His father gave evidence on his behalf and supported him. Kaisuva had spent only a few days in custody pending sentence.
The first ground of appeal asserted that his Honour applied wrong principles with regard to parity between the applicant and Kaisuva. It was submitted that the applicant, who was dealt with according to the more lenient regime designed for children, was, taking into account pre-sentence custody, required to spend longer in custody than Kaisuva, about nineteen months as against fifteen months. The result itself, it was submitted, demonstrated error.
Reference was made to well-known cases dealing with the principles of parity of sentencing of co-offenders and to the principle that an adult offender who receives a greater sentence than a juvenile co-offender will not, at least in the ordinary circumstances, be considered to have a justifiable sense of grievance, such is the Court’s concern for the rehabilitation of juveniles. I should add that that appears to be the general rule even though there appears to have been some relaxation of it or identification of exceptions from it in recent times in cases to which I shall refer.
However, the submission went on, here the result was just the opposite, so the applicant had a justifiable sense of grievance.
I think that this submission contains two errors. The first assumes that because he was a child and was dealt with as a child, the applicant must necessarily be required to serve a shorter period of time under control than his co-offender spent in custody. Objectively, the applicant’s criminality was significantly greater than Kaisuva’s. He had a bad record of like offences and his subjective case was not as strong. Age for age, he might have expected to receive a sentence significantly longer than Kaisuva. Bearing in mind the difference between their ages, he might have hoped for his own sentence to be less but there was no absolute rule that it must be less than Kaisuva’s.
Though an adult, Kaisuva was himself very young and not susceptible to the sort of sentencing regime that might be applied to a criminally experienced and mature adult.
Secondly, the period of custody which applied to each was not of the same nature. Kaisuva was bound to serve fifteen months without the prospect of release. He might then be released on parole but was at risk, if he misbehaved, of being required to serve some or all of the additional term of one year and nine months with a possible maximum service of three years.
The applicant, on the other hand, would be subject to the control of the Minister, who has wide and unfettered powers to release persons under his control for particular or general purposes and temporarily or permanently under supervision. See s 24 Children (Detention Centres) Act. Although the Minister cannot bring a control order prematurely to an end, he otherwise has very wide powers and may effectively release the person the subject of a control order before its end.
In my opinion, a comparison between the ways in which each offender was dealt with does not itself demonstrate error and I do not think the first ground of appeal is made out.
The second ground of appeal complained that his Honour applied a wrong principle in imposing a fixed term of control. His Honour had power to divide the control period into a minimum and an additional term and was invited to do so by the solicitor for the applicant.
In response, his Honour observed that the Minister had the discretion to release the applicant before the expiry of the fixed term and that his Honour’s intention was to impose a fixed term “in the interests of parity”.
It was submitted first in this Court that, in view of the difference between the cases put forward by the applicant and Kaisuva, the principles of parity did not apply and, secondly, that even if they did, the length of the minimum term imposed on a co-offender was not an adequate reason for denying the applicant the benefit of a minimum and an additional term, during the latter of which he might be released on parole. I think that this ground has been made good.
It does not seem to me, because of the various differences in their cases and particularly because the applicant was dealt with under the provisions of the Children (Criminal Proceedings) Act, that the principles of parity applied here, notwithstanding an apparent relaxation of the general rule as exemplified in cases like Regina v Govinden(1999) 106 A Crim R 314 in the judgment of Dunford J at 319 and 320 and in Regina v Colgan [1999] NSWCCA 292 in the judgment of Spigelman CJ at para 15.
The fact that Kaisuva’s minimum term was fifteen months constituted, in my view, no reason to deny the applicant, whose total term was fifteen months, the opportunity that ought ordinarily to be present of eligibility for early release on parole.
Judicial Commission statistics put before the Court show that it appears quite exceptional for a person made the subject of a control order not to be given the benefit of an additional term or a parole period. Even though his Honour was entitled to take notice of the Minister’s wide powers, including powers to release the applicant on conditions and under supervision, his Honour had no means of knowing whether and how such power might be exercised.
The next ground of appeal was that, in all the circumstances, the order for fifteen months’ control was excessive. Given the four months and one week that the applicant had been kept in custody awaiting sentence, the total of nineteen months one week was seventy-nine percent of the maximum available period for a control order, namely two years.
It seems to me that there is a certain artificiality in this argument. To begin with, although the maximum available period for a control order was, as submitted, two years, that was merely a jurisdictional maximum resulting from his Honour’s decision to deal with the applicant under the provisions of the Children (Criminal Proceedings) Act. It was not the maximum available sentence for the very serious offences the applicant had committed.
He could have been dealt with according to law but was granted appropriate but not inconsiderable leniency in being dealt with in the way he was. A comparison of maximum sentences should, in my opinion, take account of the difference between the quality of the two sentencing regimes. See Regina v Doan [2000] NSWCCA 317 in the judgment of Grove J at para 35.
Secondly, the offences were very serious ones of their kind committed by an offender well-experienced in criminal conduct and in like criminal conduct. I do not think that this ground has been made out.
I conclude that this Court should interfere so as to allow the applicant a period of parole.
Evidence put before the Court in the event of re-sentencing shows that the applicant has progressed well under the supervision of the Minister and that his prospects of rehabilitation are now, if anything, better than might have appeared when the applicant came before his Honour.
I propose the following orders:
(1) Grant leave to appeal and allow the appeal;
(2) Vary the order of the learned sentencing Judge by adding the following order: The Court fixes a non-parole period of nine months commencing on 18 January 2000 and expiring on 17 October 2000.
The applicant will be eligible for release on parole on 17 October 2000.
The Court has fixed a non-parole period which is less than three-quarters of the term of the control order in order to promote the rehabilitation of the applicant.
NEWMAN J: I agree.
HULME J: The applicant came to be sentenced as a dishonest thug. In my view, he deserved a control order of no less than the period that he received.
He had been convicted in July 1997 of breaking and entering with intent to commit a felony and receiving stolen goods. He was given a recognizance. In breach of that, he committed the offences for which he was dealt with in March 1998 of robbery in company and assault with intent to rob. He was given a control order for a total of twelve months. He then, within the period of that control order, committed the subject offence.
If he continues the way he is, he has a good prospect of spending most of the rest of his life in prison. I agree with much of what has been said by way of criticism of the way in which the sentencing Judge approached the matter but when I reflect on the result, it does not seem to me that a control order any less than fifteen months plus the four months spent in custody prior to sentence should have been imposed.
The sentence imposed on his co-offender totalled three years. When one has regard to the greater criminality and worse prior history of the applicant, he was, in my view, extremely fortunate that he was dealt with as he was rather than in accordance with law. Thus, although I think that there should have been minimum and additional terms imposed as part of the sentence, any additional term should have been added to the in effect nineteen months to which he was sentenced. It is apparent, when his Honour’s remarks on sentence are looked at, that had the applicant not already been in custody for some four months earlier, the sentence ultimately imposed would have been higher than the fifteen months it was.
However, as my view is in the minority, I need not formulate any orders.
NEWMAN J: The orders of the Court will be as proposed by Barr J.

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LAST UPDATED: 25/10/2000