R v BB

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v BB [2005] NSWCCA 215

FILE NUMBER(S):
2005/808

HEARING DATE(S): 09/06/2005

JUDGMENT DATE: 16/06/2005

PARTIES:
Regina v BB

JUDGMENT OF: Studdert J James J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0483

LOWER COURT JUDICIAL OFFICER: Latham DCJ

COUNSEL:
D. Frearson SC - Crown
C. Craigie SC - Applicant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Applicant

CATCHWORDS:
Criminal Law - Sentencing - Taking into account a matter being an element of an aggravated form of the principal offence - delay - whether sentence manifestly excessive.

LEGISLATION CITED:
Crimes Act 1900 - ss 35(b), 112(2), 112(3)
Children (Criminal Proceedings) Act 1987 - ss 3, 28
Crimes (Sentencing Procedure) Act 1999 - s 32

DECISION:
Application for leave to appeal is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/808 CCAP
STUDDERT J
JAMES J
HOWIE J
THURSDAY 16 JUNE 2005

REGINA v BB

Judgment

STUDDERT J: I agree with Howie J.
JAMES J: I agree with Howie J.
HOWIE J: The applicant, who was at the time a juvenile, appeared in the District Court before Judge Latham (the Judge), as she then was, to be sentenced on a charge of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act. That is an offence for which the maximum penalty prescribed is imprisonment for 20 years. In addition the applicant asked her Honour to take into account a charge of malicious wounding contrary to s 35(b) of the Crimes Act. As a consequence the Judge sentenced the applicant to imprisonment for a term of 5½ years to date from 9 December 2003 and set a non-parole period of 3 years to expire on 8 December 2006, the date upon which the applicant is eligible to be released to parole. The Judge ordered that the sentence be served in a Juvenile Detention Centre.
The offence for which the applicant was to be sentenced and the matter taken into account on the Form 1 were both committed on 21 September 2003. The history of the proceedings thereafter is significant. The applicant was arrested on 9 December 2003 and charged with both the offence of aggravated break enter and steal and malicious wounding. He appeared initially before the Children’s Court and on 21 January 2004, having pleaded guilty to both charges, was referred to the Youth Drug Court sitting at Campbelltown Children’s Court. He was to appear in that court on 29 January 2004.
However, on 28 January 2004 the police prosecutor notified the applicant’s solicitor that the applicant was to be charged with an offence under s 112(3) of the Crimes Act, that is an offence of break, enter and steal in circumstances of special aggravation. The circumstance of special aggravation was to be the fact that the applicant wounded the occupier of the premises. Such an offence carried a maximum penalty of imprisonment for 25 years. Perhaps more significantly in the applicant’s case it was a “serious children’s indictable offence” for the purposes of the Children (Criminal Procedings) Act, and, therefore, was not an offence for which the applicant could be sentenced in the Children’s Court: see sections 3 and 28 of the Act.
When the applicant came before the Youth Drug Court on 29 January 2004, the magistrate was informed of the intention of the police to re-charge the applicant with the more serious offence and the matter was accordingly referred back to the Children’s Court. On being charged with the offence under s 112(3), the applicant pleaded not guilty and was committed for trial on that offence to the District Court.
On 13 August 2004 the applicant appeared before the Chief Judge of the District Court on an indictment dated 12 August 2004 which contained two charges, the first being the charge under s 112(3), that is the special aggravated offence of break, enter and steal, and, in the alternative, the s 112(2) offence of aggravated break, enter and steal. The applicant pleaded guilty to the second count on the indictment and the Crown accepted that plea in full satisfaction of the indictment. On the same date the applicant signed a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act containing the charge of malicious wounding and asking that that matter be taken into account when he was sentenced for the s 112(2) offence.
The applicant appeared before Judge Latham initially on 1 October 2004 but the matter could not be heard on that date. The sentencing proceedings finally took place on 5 November 2004 and the applicant was sentenced two weeks later on 19 November.
There are three grounds of appeal relied upon by the applicant as follows:
1.Her Honour erred in law when taking into account the Form 1 offence of malicious wounding and (sic) in treating that matter as aggravating the indictment offence.
2.Her Honour gave insufficient, if any, consideration to a relevant factor of delay and its resultant hardship occasioned to the applicant.
3. The sentence is manifestly excessive.
The facts can be stated very briefly. In the evening of Sunday 21 September 2003 the victim was at his home in Erskineville waiting for his partner to arrive. He had closed the front door of the premises but left it unlocked so that his partner could enter. At about 9.30 pm he heard his dog growling and went to the front door which he found open. He shut the door but realised that someone was in the house. The applicant emerged from the front bedroom and attacked the victim with a wooden fence picket causing him to fall to the floor. He then proceeded to punch the victim about the head and body. The victim called for help but the applicant left the premises taking the victim’s wallet with him. As a result of the attack upon him the victim suffered relatively minor facial injuries, bruising and abrasions. However, he had a number of lacerations to his scalp requiring the insertion of a total of 25 stitches.
The offence to which the applicant pleaded guilty stated that the circumstances of aggravation relied upon was that the applicant knew that there was a person in the premises at the time of the commission of the offence. The malicious wounding offence taken into account on the Form 1 related to injuries inflicted upon the victim by the piece of wooden fencing.
So far as the charges were concerned the applicant ended up in a better position than he had been in the Children’s Court because he was to be only sentenced for one offence, albeit that in sentencing for that offence the matter on the Form 1 was to be taken into account. On the other hand the applicant found himself in the District Court as a result of the fact that the s 112(3) charge, now effectively abandoned by the Crown, required that he be dealt with at law. The Crown had determined not to proceed on the more serious charge, notwithstanding the gravity of the conduct giving rise to that charge and the strength of the Crown case against the accused. Yet it sought to have the court sentence the applicant on the basis of conduct that would have amounted to the more serious charge that it had abandoned. According to the Crown, the applicant was guilty of conduct amounting to the more serious offence yet was not guilty of that offence. One can readily understand how members of the public, and the victim in particular, might have thought that this was an exercise of sophistry of the kind that tends to bring the criminal justice into disrepute.
However that might be, the Judge was confronted with the difficult and delicate sentencing exercise of attempting to appropriately deal with the criminality involved in the s 112(2) offence while taking into account the malicious wounding on the Form 1, yet not effectively sentencing the applicant for the s 112(3) offence and, thereby, breaching the principle in R v De Simoni (1981) 147 CLR 383. I accept that this could technically be achieved by a strict adherence to the principles stated in Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 (the “Guideline Judgment”). I also acknowledge that there should be a manifest difference in the penalty imposed upon the applicant for the s 112(2) offence taking into account the offence on the Form 1 than that which would have been imposed upon the applicant had he been sentenced for either the s 112(2) or the s 112(3) offence alone. The judge had also to take into account the fact that by the applicant being charged with an offence now abandoned by the Crown he had lost any opportunity that he might have had for the matter to be dealt with by diversion to the Youth Drug Court. One should not underestimate the difficulty imposed upon the sentencing judge by the approach taken by the prosecution or the subtleties involved in the exercise of the sentencing judge’s discretion in this particular case.
It is in these circumstances that the first ground of appeal arises and which contends that the Judge erred in the way that she approached the task confronting her by the nature of the charge and the existence of the matter on the Form 1. During the course of her remarks on sentence, the Judge set out in a brief, but accurate form, the history of the proceedings from the date of the arrest of the applicant until he appeared before her. Her Honour then went on:
Thus the offender now stands to be sentenced on the same basis which initially qualified him for a form of diversion, namely the Youth Drug Court. This feature of the sentencing proceedings introduces a degree of artificiality in that it must be accepted that pleas of guilty were entered at the first available opportunity to the charges as presently framed. More particularly the aggravating feature of the more serious charge which resulted in committal to this Court now finds expression as a separate offence on the Form 1. As such, it nonetheless aggravates the offence on indictment to which the offender has pleaded guilty. The objective gravity of the principal offence must however be assessed by reference to the maximum penalty of twenty years imprisonment.
Later in the course of the sentencing remarks, when dealing with a submission that the applicant be dealt with under the provisions of the Children (Criminal Proceedings) Act rather than according to law, her Honour stated:
The principles to be applied in determining that issue and those matters to which the Court must have regard under s 18(1A) of the Children (Criminal Proceedings) Act are not in dispute. Of the matters mandated by s 18(1A) I have already noted the seriousness of the principal offence, the fact that it is aggravated by the Form 1 offence and the fact that it represents a gross violation of the safety and security of a young man in his own home.
Based upon these two passages in the sentencing remarks, and in particular the two parts I have underlined, the applicant submits that her Honour erred by finding that the offence on the Form 1 aggravated the offence on the indictment. The argument is that her Honour used the malicious wounding offence as a factor that aggravated the objective seriousness of the aggravated break and steal offence rather than, in accordance with the approach adopted in the Guideline Judgment, by considering whether the Form 1 offence gave rise to a need to give more weight to personal deterrence and the community’s entitlement to exact retribution when sentencing for the offence on the indictment. It was argued that the Judge had infringed the principle in De Simoni by in effect sentencing the applicant for the more serious offence contained in the first count in the indictment than for the second count in the indictment to which he had pleaded guilty.
In support of this ground of appeal the applicant relies upon the judgment of this Court in R v Dowd [2005] NSWCCA 113. That was a case where the judge, in sentencing for a number of offences for which the applicant had been committed for sentence, was asked to take into account a number of similar offences on a Form 1. During the course of her remarks and when referring to the committal charges, the judge, not Judge Latham, stated that the matters on the Form 1 “increased the objective gravity of those offences”. Giles JA, with whom the other members of the Court agreed, found that her Honour had erred in the use made of the Form 1 offences and stated:
45 The judge did not otherwise refer to objective gravity, but earlier described the applicant’s crimes as “objectively serious”. In the absence of an acceptable alternative, which I can not discern, I conclude that she meant much the same thing in referring to objective gravity. The judge did not express her regard to the offences in the Form 1 in a manner reflecting the approach described in Attorney General’s Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, and the unfortunately preferable reading of her remarks on sentence is that she impermissibly treated the offences in the Form 1 as increasing the objective seriousness of the principal offence(s).
I accept that, on the face of it, those parts of the remarks that I have highlighted suggest that in the present case the Judge also took into account the matter on the Form 1 as aggravating the objective criminality of the offence on the indictment. However, a consideration of the remarks in more detail convinces me that her Honour did not fall into the error committed by the judge in Dowd. During the course of her remarks on sentence Judge Latham made the following statements relating to the objective seriousness of the s 112(2) offence. It should be noted that these passages follow directly after the first passage earlier quoted and contain the second passage set out above.
There are a number of features of the principal offence which warrant its description as objectively very grave. Firstly the offender entered a private home in the late hours of a Sunday night. Secondly, he did so armed with a fence paling which he used as a club to assault the victim from behind, striking the victim to the head. Thirdly, he continued the assault upon the victim by punches to the head and body after the victim had dropped to the floor.
I refer to the features of the offence on indictment independently of the fact that the offender is taken to have known of the victim’s presence in the home and independently of the assault constituting the malicious wounding. It is always possible to think of a worse example of such an offence but for sheer brutality and callous disregard for the wellbeing of another, the offender’s conduct on this night ranks high on the scale of criminality. The offender’s legal representative submits that it is open to me to deal with the offender as a young person, pursuant to the Children (Criminal Proceedings) Act rather than according to law. The principles to be applied in determining that issue and those matters to which the Court must have regard under s 18(1A) of the Children (Criminal Procedure) Act are not in dispute. Of the matters mandated by s 18(1A) I have already noted the seriousness of the principal offence, the fact that it is aggravated by the Form 1 offence and the fact that it represents a gross violation of the safety and security of a young man in his own home.
Later in the remarks the Judge stated:
………Taking into account the premeditation displayed by the offender in arming himself prior to entry in circumstances where he knew a person was inside the premises and taking into account the unprovoked assault on the victim, I have come to the view that this offence cannot sensibly be characterised as anything other than an adult crime.
In the first of the two passages quoted above her Honour was attempting to assess the objective seriousness of the particular offence committed by the applicant in order to determine where it fell within the range of offences under s 112(2) and as against the maximum penalty prescribed for the offence. In the first part of the underlined sentence the Judge was indicating that, in order to make that assessment, she was considering those aggravating features “independently of”, or putting to one side, the aggravating feature alleged in the offence and which brought it within the compass of s 112(2). In other words, the judge was contemplating the objective features of the applicant’s offending in determining how serious it was as an instance of an offence of break, enter and steal aggravated by the fact that the applicant was taken to know that there was a person in the premises at the time.
In undertaking this assessment, the Judge took into account those matters, of which she makes mention in the first passage quoted in that paragraph: the fact that the applicant entered private premises in the late evening of a Sunday; that he had armed himself before entering the premises; that he used that weapon to assault the victim to the head; and that he continued to assault him as he lay helpless and injured on the floor. Her Honour concluded that, having regard to those facts in aggravation of the offence, it “ranked high on the scale of criminality” although it was not the worst example of the offence.
The second part of the underlined sentence indicates that, in undertaking the assessment of the objective seriousness of the particular offence of aggravated break, enter and steal committed by the applicant, the Judge was also considering features of the offence “independently of”, or disregarding the fact that, the applicant inflicted a wounding to the victim. Clearly her Honour was putting that fact to one side because it could not be taken into account in determining the objective seriousness of the s 112(2) offence as it gave rise to a more serious charge. If, as is asserted by the first ground of appeal, her Honour was taking into account the malicious wounding as a factor aggravating the objective seriousness of the s 112(2) offence, I do not understand why the Judge would be putting aside the malicious wounding when considering the facts aggravating the objective seriousness of the s 112(2) offence. Nowhere, when referring to the facts that she considered as aggravating the objective seriousness of the break, enter and steal offence, does the Judge mention the wounding of the victim.
In my view her Honour’s reference to the Form 1 offence “aggravating” the break, enter and steal offence was merely a looseness of expression not truly conveying what it appears to suggest on its face. The fact that the Judge used a similar expression later in the same paragraph as that in which she states that she was putting aside the malicious wounding when determining the objective seriousness of the offence committed, confirms my view that her Honour did not mean to convey that she was taking the malicious wounding offence into account as a matter of aggravation of the objective seriousness of the break, enter and steal offence.
The Crown sought to answer this ground of appeal by submitting that the Judge should be taken as using the word “aggravating” “to signify the requirement for an enhanced sentence to accommodate the totality of criminality” arising from the principal offence and the Form 1 matter. By relying upon statements of this Court in R v Bavadra (2000) 115 A Crim R 152 at [30]-[31] and R v Barton (2001) 121 A Crim R 185 at [5] and by distinguishing passages in the Guideline Judgment, the Crown argued that her Honour was entitled to reflect in the sentence the added criminality of a matter on a Form 1 where it had “an objective gravity nexus” with the principal offence. In other words, the Crown submitted that there was a difference of approach permissible in a situation, as here, where the matter on the Form 1 was connected with the offence charged and for which sentence was being passed, as distinct from a situation where, as in R v Dowd the matter on the Form 1 had no such nexus.

Because I do not believe that the Judge in the present case was intending to, or did, take into account the Form 1 matter in determining the objective seriousness of the s 112(2) offence, it is unnecessary to examine in detail the Crown’s argument or to consider the ramifications of such approach, particularly in the situation as was presented to her Honour. However, I should indicate my firm opinion that there is no different approach to be adopted in taking into account a matter on a Form 1 depending on it’s connection or lack of connection with the principal offence. A proper analysis of the Guideline Judgment does not permit of such a distinction. Statements in Bavadra, which are relied upon by the Crown as supporting this submission, and which suggest that the sentencing judge takes into account the total criminality of the matters on the Form 1, were interpreted by the Chief Justice at [29] in the Guideline Judgment as merely indicating that a sentencing judge “should give due recognition to the gravity of those offences”. But, as the Chief Justice pointed out, in so far as the offender is being punished for his criminal conduct, “the focus…..must be on the ‘principal offence’ alone”.
Had I been persuaded that the Judge in the present case had taken into account the malicious wounding offence as a matter aggravating the seriousness of the break, enter and steal offence, I would have concluded that this was an error of principle. However, as her Honour did not approach the matter in that way, the ground of appeal fails.
The next ground of appeal asserts that her Honour failed to take into account the delay in the sentencing of the applicant and the hardship that would have arisen to the applicant during the course of that delay.
There is no doubt that significant delay between the date of the commission of an offence and the date on which sentence is imposed is a matter that should be considered by a sentencing judge and may need to be taken into account in a proper case to reduce the otherwise appropriate sentence R v Todd [1982] 2 NSWLR 517. I am prepared to accept that delay, which may have little impact upon the sentencing of an adult offender, may be of more significance when sentencing a juvenile.
In the present case her Honour was clearly aware of the delay between the charging of the applicant and his sentencing because she set out in her remarks the history of the proceedings from the date of the applicant’s arrest in December 2003 until he appeared before her. The delay in the present matter was one of 14 months from the date of the commission of the offence to the date of sentence and, of that period, almost 7 months occurred between when he first appeared in the Children’s Court in January 2004 and the date upon which he pleaded guilty in the District Court on 13 August 2004.
There was no suggestion in any of the material before her Honour that the delay in the sentencing of the applicant had any significant impact upon him or, in particular, that it in any way disadvantaged him in terms of his prospects of rehabilitation or in any other way. Although I am prepared to accept, without evidence of it, that the applicant was in a state of anxiety and suspense for the period pending the resolution of the matter in the District Court, it does not seem to me that the delay or its consequences was of such significance that the failure to advert to it should be seen as an error in the exercise of the sentencing discretion. It is a matter, however, that should be considered together with the other subjective material placed before the Judge when determining the third ground of appeal, asserting that the sentence was manifestly excessive.
The applicant was aged 16 and 10 months when the offence was committed and was just two weeks short of his 18th birthday by the time he came to be sentenced. He had a criminal record of some significance commencing on 1 May 2002 when he was before the Children’s Court for offences of possessing house breaking implements and aggravated break, enter and steal. In respect of both of these matters he was placed on a good behaviour bond. In October 2002 the applicant was again before the Children’s Court for offences including common assault, malicious damage and break, enter and steal. He was placed on unconditional probation for 18 months in respect of three of the offences and probation with supervision for the offence of break, enter and steal.
On 5 September 2003 he appeared on numerous offences including escape police custody, receiving, stealing a motor vehicle and break, enter and steal. He was once more placed on supervised probation. The applicant was subject to this probation order when he committed the offence for which he was before Judge Latham.
The Juvenile Justice report in evidence indicated that the applicant maintained that he had been smoking cannabis at the time of the offence and could not recall anything about it. However, the officer reported that, when the facts were brought to his attention, the applicant appeared to be “genuinely shocked and upset by what had occurred”.
The applicant’s parents separated when he was very young and he had no contact with his father until 2002. However, this reunion was unsuccessful and the report indicates that the applicant wished to have no further contact with his father. The applicant resided with his mother during his formative years but left the family home in 2001 after problems developed in his relationship with his mother and stepfather. Thereafter the applicant resided in different types of accommodation including boarding with friends and youth refuges. At one stage he lived with his paternal grandmother and her husband in Kurrajong. They had provided him with support and encouragement both when he resided with them and during his period in custody.
The applicant had completed his formal education to year 10 level but had been undertaking a course of horticulture while in custody. He has also completed an occupational health and safety course. Prior to entering custody the applicant was employed on a fishing trawler and the Juvenile Justice report indicated that the position was available to him on his release.
The applicant’s responses to supervision since May 2002 was generally unsatisfactory, as he had failed to keep in contact with his supervising officer and because of his re-offending. However, the applicant did not present as a “major management problem” in custody and had completed a number of courses in respect of which certificates were placed before her Honour.
The Juvenile Justice officer expressed an opinion that the majority of the applicant’s criminal behaviour stemmed from his use of cannabis and that there was a high risk of re-offending when affected by that drug and alcohol. The applicant acknowledged this state of affairs and apparently was keen to seek treatment when he was released from custody. The officer believed that the applicant was shocked by his behaviour whilst under the influence of cannabis on this occasion and it was for this reason that he had expressed his determination to avoid the drug. He had, however, acknowledged that he would require assistance in this regard. The applicant had also expressed remorse and concern for the victim.
There was in evidence a psychological report dated 30 August 2003 prepared by a psychologist who had interviewed the applicant when he was at Exodus House School. The psychologist found that the applicant presented with the following problems at that time: firstly, the fact that he was homeless; secondly his use of illegal drugs; and thirdly that the applicant claimed that he needed help to obtain his school certificate and change his life style. The psychiatrist expressed the view that the applicant was an emotionally disturbed boy who may have a major depressive illness that he medicated with illegal drugs.
A more recent psychologist report was prepared on 28 September 2004. That report disclosed that the applicant commenced drinking alcohol at the age of 13 years after he left home but that the applicant was of the view that his use of alcohol was not a problem. The applicant also reported use of cannabis from the age of 13 and believed that he was addicted to the drug. The applicant had used other prohibited drugs from time to time although his drugs of choice were cannabis and amphetamine. He denied any history of hallucination or other psychotic symptoms, although he had experienced paranoid thinking at times when under the influence of drugs. The applicant acknowledged that he tends to aggression when using cannabis.
As a result of the psychological tests administered to the applicant, the psychologist summarises the position as follows:
“ [the applicant] is a young man who has limited abilities in verbal intellectual functioning, reading, attentional resources and more complex cognitive tasks. His functioning is likely to be further compromised under periods of stress or distress, including the ingestion of alcohol or illicit substances. This assessment of his cognitive functioning is likely the result of the Attention Deficit syndrome, limited education, and extended substance abuse.”
The psychologist formed the view that the applicant’s prognosis was poor and that he was likely to require a high level of intervention. She stated:
“[The applicant] is an impulsive and psychologically immature young man who would benefit from developing skills with respect to self-management. An integral part of this is anger and aggression management. Whilst he has engaged in some intervention in this respect, it is unlikely to have been sufficient given his ongoing volatility in custody. Therefore, it is recommended that [the applicant] engaged in psychological counselling through the Department of Juvenile Justice’s Violent Offender Programming to assist in this regard. Such intervention is available in the community through local Juvenile Justice services.”
The psychologist concluded her report by expressing the opinion that “there is some hope for [the applicant] but he is likely to require a high level of support to achieve his more prosocial goals.”
As against the applicant’s need for rehabilitation, the Judge was confronted with an offence of substantial seriousness, regardless of the malicious wounding offence on the Form 1. Her Honour was clearly correct to regard it as a “gross violation of the safety and security of a young man in his own home”. She was also correct, with respect, in forming the view that, notwithstanding the applicant’s immaturity, the offence “cannot sensibly be characterised as anything other than an adult crime”. In my view that assessment of the offence had to follow from the fact that the applicant armed himself before entering the house and was prepared to use the weapon immediately the victim posed any threat to frustrating his attempts to obtain property of value from the premises.
The Judge found that the applicant was entitled to a discount of 25 per cent for the utilitarian value of the plea of guilty and noted that he had expressed real contrition to the Juvenile Justice officer. The Judge also found special circumstances, observing, with respect correctly, that while general deterrence was necessary in fixing both the head sentence and the non-parole period, the community’s interest lay also in the rehabilitation of the applicant. In my view that observation was appropriately addressed by the relationship of the non-parole period of 3 years to a head sentence of 5 years 6 months.
I am not persuaded that there was any patent error disclosed in the sentencing remarks or in the sentence imposed. As I have already indicated, her Honour was confronted with a difficult sentencing exercise not only because of the history of the matter and the way the Crown ultimately proceeded on the charges arising from the applicant’s criminal conduct, but also because of the task in attempting to balance the somewhat competing interests arising from the commission of a very serious crime by a disadvantaged youth. The High Court has recently stressed the importance to be given by an appellate court to the exercise of discretion performed by a sentencing judge where no error is obvious in the sentencing process and where minds might legitimately differ as to the appropriate sentence to be imposed: Markarian v The Queen [2005] HCA 25 at [27]. I am far from persuaded that the sentence was manifestly excessive.
I propose that the application for leave be granted but the appeal dismissed.

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LAST UPDATED: 16/06/2005

[2005] NSWCCA 215

16 June 2005