R v DF

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v DF [2005] NSWCCA 259

FILE NUMBER(S):
2005/771

HEARING DATE(S): 22/07/2005

JUDGMENT DATE: 22/07/2005

PARTIES:
Regina
DF

JUDGMENT OF: Brownie AJA Buddin J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0099

LOWER COURT JUDICIAL OFFICER: Shillington ADCJ

COUNSEL:
Ms J Girdham (Crown)
PM Winch (Applicant)

SOLICITORS:
S Kavanagh (Crown)
S O'Connor (Applicant)

CATCHWORDS:
Appeal - severity of sentence - offences of specially aggravated kidnapping and robbery whilst armed - youth and rehabilitation - quantification of discount for pleas - form of order

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted. Appeals allowed but only to the extent of correcting the sentences imposed so that they conform with the requirements of s 44 of the Crimes (Sentencing Procedure) Act 1999. In respect of the offence of specially aggravated kidnapping the applicant is sentenced to a non-parole period of 2½ years to commence on 22 July 2004 and to expire on 21 January 2007. The total sentence is one of 5 years which will expire on 21 July 2009. In respect of the offence of robbery whilst armed the applicant is sentenced to a non-parole period of 2½ years to commence on 22 July 2004 and to expire on 21 January 2007. The total sentence is one of 4 years which will expire on 21 July 2008. The applicant is eligible for parole on 21 January 2007.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/771
BROWNIE AJA
BUDDIN J
LATHAM J
FRIDAY 22 JULY 2005

REGINA v D F

Judgment

BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court. In that court he adhered to pleas of guilty originally entered in the Children’s Court. The offences arose out of an incident which occurred on 10 April 2003 when the applicant was aged 17. He was 18 at the time of sentence.
The two offences to which he pleaded guilty were an offence involving the specially aggravated form of kidnapping and an offence of robbery whilst armed with an offensive weapon. There are two matters, pursuant to s 86(3) of the Crimes Act, the proof of either of which gives rise to the specially aggravated form of the offence of kidnapping. The first arises if the offence is committed in company and the second arises if actual bodily harm is occasioned to the victim. Both of those factors existed in the present case. The maximum penalty for this form of the offence is 25 years imprisonment. The maximum penalty for the robbery offence is 20 years imprisonment.
In respect of the kidnapping offence the sentencing judge imposed a term of imprisonment of 5 years with a non-parole period of 2½ years. A wholly concurrent sentence of 4 years with a non-parole period of 2½ years was imposed in respect of the robbery offence.
The sentencing judge made an order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that the sentences be served in a juvenile detention centre. His Honour also made a finding pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 of “special circumstances”.
The facts of the matter may be shortly stated. The applicant together with four co-offenders named Murdoch, Evalu, Dowham and Louvulu respectively were driving in a stolen vehicle when they saw the victim standing in a carpark adjacent to his home. The victim was talking on his mobile phone to a friend at the time. The stolen vehicle was then driven into the carpark where it was stopped next to the victim’s vehicle. The applicant and Murdoch did not get out of the vehicle but the other three offenders did. They were then armed with a knife and a steel pole. Whilst so armed they approached the victim and stole from him a wallet, a palm computer, a CD player and two mobile phones. Those facts give rise to the offence of robbery whilst armed. The applicant’s liability arose from his participation in a joint criminal enterprise to commit that offence.
The victim was then ordered to sit in the back seat of his own vehicle which the three co-offenders then entered. One of those three men then drove the vehicle away from the scene. The applicant and Murdoch, who were still in the stolen vehicle, followed the victim’s car to a nearby shopping centre. During the course of that trip the victim was threatened by one of the co-offenders. That caused him to disclose his PIN number to them. As a result of obtaining that information and having taken possession of the applicant’s credit card, Murdoch, Dowham and Louvulu then went to an ATM where they were able to withdraw the sum of $800 from the victim’s account.
Whilst the other three were away at the ATM, the applicant and Evalu were left with the responsibility of guarding the victim who had been ordered to remain in his vehicle. When the victim endeavoured to escape from the vehicle the applicant leant into the vehicle and repeatedly punched the victim with a closed fist. He struck the victim at least half a dozen blows to the face. As a result of this assault upon him, the victim sustained substantial bruising.
The co-offenders then returned from having obtained the money. Dowham, Evalu and Lavulu thereupon once again entered the victim’s vehicle. The applicant and Murdoch returned to the stolen vehicle. The vehicles were then driven to a nearby location. At that location all five offenders got out of the vehicles in which they had been travelling and began to discuss the victim’s fate. The victim overheard them discussing plans to keep him for a couple of days. The victim was on this occasion however able to made good his escape. He went to a nearby house where he sought help. It was this episode which gave rise to the kidnapping charge.
The co-offender Evalu was arrested and interviewed by police in relation to the incident. He made full admissions and nominated each of his co-offenders, including the applicant, as having been involved in the commission of the offences. Although the applicant declined to be interviewed, as was his entitlement, his fingerprints were located on the outside of the driver’s door of the victim’s vehicle. The sentencing judge observed that the facts disclosed an incident which was clearly a “violent and terrifying experience for the victim”.
The applicant gave evidence during the course of the sentencing proceedings. He said that he had participated in the offences only reluctantly and that he had not received any proceeds of the money taken from the ATM. The sentencing judge accepted that there was no evidence to suggest that the applicant had done so. His Honour pointed out however that the applicant had actively participated, at least in relation to the kidnapping offence, and concluded that “his second thoughts as to his involvement came at a stage after the damage was done”.
It is pertinent to observe that all but one of the applicant’s co-offenders had been sentenced by the time the applicant stood for sentence. That co-offender has now also been sentenced. Given the sentences which were imposed upon the other offenders, it is understandable that no issue of parity is raised on behalf of the applicant in these proceedings.
By the time the applicant came to be sentenced he had already acquired a not insignificant criminal record which commenced when he was aged 13. Since then he has made frequent appearances in the Children’s Court. He has been made the subject of a control order on four occasions. The matters of which he has been convicted include several offences of violence, such as robbery in company and steal from the person. He also has convictions for matters of break, enter and steal and for serious driving offences. Various other offences of dishonesty also appear on his record. He has had the benefit on a number of occasions of being placed on a recognisance. Furthermore, it was a matter of aggravation that he was on parole at the time when the present offences were committed. He was also, it is to be observed, in breach of a bond which had been imposed upon him in respect of a separate offence.
The applicant’s grandmother also gave evidence on his behalf during the course of the sentencing proceedings. In addition, there were three background reports in evidence. The sentencing judge referred to that material in the following terms:
He had certainly a disturbed upbringing. His father died when he was quite young. Before that, there had been considerable domestic violence between his parents. His mother later entered into de facto relationships and she became involved with the use of heroin, apparently because of the situation of her de facto from time to time. This situation led to this prisoner being alienated from his mother. He has expressed the view that he does not wish to live with her. His grandmother, Mrs Walton, as I have said, gave evidence; she took over the role of his care, although on frequent occasions he was absent from her home and was then living an itinerant lifestyle. It is said that for a period of at least five years, he has been involved with the use of illicit drugs, including methylamphetamine. He has also used Valium and excessive use of alcohol. His education was marked by frequent truanting. He was ultimately asked to leave the Chester Hill High School in year 9 because of the use of cannabis at the school grounds. In evidence, he says that he has since completed year 10. He commenced a plumbing, electrical and carpentry course at Granville Tech, which was a period of nine weeks, and he commenced that on 9 June of this year. He commenced the trial period as an apprentice, but gave up because of what he said were differences between he and the boss.
In evidence before me, he claims not to have taken drugs this year and now described his life as “under control”. That situation is confirmed to a degree in the Juvenile Justice report of 4 August, although the giving up of his apprenticeship does cause some concern. Nevertheless there are reasonable signs of a major change of his attitude and that is confirmed by his grandmother.
The applicant makes a number of challenges to the sentences which were imposed. First of all he complains that “the sentencing judge erred in failing to allow a discount for the utilitarian value of the early plea”. The submission which is advanced is that whilst the sentencing judge specifically referred to the fact that the pleas were entered at the earliest opportunity, his Honour failed to quantify the discount which would flow to the applicant as a consequence. The applicant contended that he was entitled to the “full discount of 25%”, namely the figure which was identified by this Court in R v Thomson & Houlton (2000) 49 NSWLR 383 as being at the top of the range for the utilitarian value of the plea.
This court has said repeatedly that it is preferable, so as to ensure that the sentencing process is transparent, that sentencing judges quantify the discount which is extended to offenders on account of this aspect of the process. Error is not however established merely because there is no explicit quantification of the discount allowed.
I would not however in the present case be disposed to infer that the sentencing judge did not allow an appropriate discount. The Crown specifically conceded during the course of submissions, in response to a contention advanced on behalf of the applicant, that the applicant was entitled to “the full discount for the plea”. There is no reason to believe in those circumstances that his Honour did not act upon that concession, particularly as the parties were on common ground in relation to the issue. Accordingly, this ground has not been made out.
It is next contended that the sentencing judge “erred in failing to allow any or sufficient weight to the applicant’s remorse and contrition”. The applicant gave evidence acknowledging that he had done “the wrong thing…I shouldn’t have done it. I had no right to.” The authors of one of the Juvenile Justice reports observed that he had “demonstrated some level of remorse for his actions and motivation to change his offending lifestyle”. They go on to note that he “demonstrated empathy for the impact his actions may have had on the victims. His responses suggest a degree of insight into the consequences of his behaviour beyond his possible incarceration.” His grandmother gave evidence that she had observed a “big change” in the applicant. She also expressed the view that he was “genuinely sorry”.
Notwithstanding the fact that the sentencing judge made no express reference to the applicant’s remorse, I would not infer that his Honour thereby overlooked this consideration or gave it insufficient weight. This was a case in which there was no immediate indication by the applicant in the wake of the offences of any contrition, but rather was one in which over a period of time the applicant began to develop some insight into the wrongfulness of his behaviour. In other words, the applicant’s remorse was part and parcel of the change in attitude to which the sentencing judge specifically referred and was a matter which his Honour thus took into account. This ground of complaint should be rejected.
It is also contended that the “sentencing judge erred in failing to give any or sufficient weight to the successful completion by the applicant of two residential drug rehabilitation programs nor to his success on the youth Drug Program”. There is a related complaint that the “sentencing judge erred in failing to give sufficient weight to the applicant’s prospects of rehabilitation”.
It is convenient to deal with these two matters together. It is contended that the sentencing judge fell into error in not making any reference to the applicant’s participation in the Youth Drug Court program. The authors of the Juvenile Justice Report, to which I earlier referred, observed that the applicant was making positive progress and that he had “demonstrated a high level of compliance with the YDAC program”. That indicated, so it was submitted, that the applicant was in that respect making positive steps towards his rehabilitation. His efforts in that regard were indeed laudable.
Even if it be accepted that his Honour’s remarks were somewhat terse, a fair reading of them does not demonstrate in my view that his Honour overlooked this important feature of the case. As I have previously said, his Honour specifically concluded that “there are reasonable signs of a major change in his attitude”. Moreover, in finding “special circumstances” his Honour made particular reference to the applicant’s youth and to the need to provide him with an extended period of supervision upon his release to parole, a matter which was designed to assist in his eventual rehabilitation. Moreover, as I have said, his Honour ordered that the sentences should be served in a detention centre rather than in an adult institution.
It was also submitted that some consideration should have been given to the fact that the applicant had spent three months in a residential drug rehabilitation program. Participation in such a program has in some circumstances been treated as being akin to a form of quasi-custody. However, his attendance in that program was not part of his conditions of his bail in respect of the present offences. It was referable to unrelated offences which were dealt with in the Youth Drug Court. In those circumstances this was not a matter to which much weight could be attached. These two grounds of complaint should be rejected.
It is finally contended that the sentences which were imposed were manifestly excessive. Notwithstanding the favourable subjective matters upon which the applicant was able to rely, this was a case in which the objective gravity of the offences remained significant. That consideration had to weigh heavily in the sentencing process. Moreover, the applicant had a prior record which assumed some relevance in the context of the current matters, and he was both on parole and on a bond at the time when the offences were committed. Accordingly, this submission must also be rejected.
There remains a technical error that requires attention. It will be necessary to correct the sentences imposed so that they conform with the requirements of s 44 of the Crimes (Sentencing Procedure) Act 1999. However, as this court said in R v Cramp [2004] NSWCCA 264, the error identified does not justify the court proceeding as if the exercise of the sentencing discretion miscarried.
I propose that the application for leave be granted and that the appeals be allowed, but only to the extent to which I have just indicated. In respect of the offence of specially aggravated kidnapping the applicant is sentenced to a non-parole period of 2½ years to commence on 22 July 2004 and to expire on 21 January 2007. The total sentence is one of 5 years which will expire on 21 July 2009. In respect of the offence of robbery whilst armed the applicant is sentenced to a non-parole period of 2½ years to commence on 22 July 2004 and to expire on 21 January 2007. The total sentence is one of 4 years which will expire on 21 July 2008. The applicant is eligible for parole on 21 January 2007.
BROWNIE AJA: I agree. It really is heartening to see progress towards rehabilitation on behalf of the applicant. I can only encourage him to keep trying, it is his last hope.
LATHAM J: I also agree with the orders made by Buddin J.
BROWNIE AJA: The orders of the court are as proposed by Buddin J.

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LAST UPDATED: 26/07/2005

[2005] NSWCCA 259

22 July 2005