R v DM - [2005] NSWCCA 181

No judgment structure available for this case.

CITATION:
R v DM [2005] NSWCCA 181

HEARING DATE(S): 20 May 2005

JUDGMENT DATE:

18 July 2005

JUDGMENT OF:
Grove J at 1; Hulme J at 2; Simpson J at 33

DECISION:
(i) leave to appeal granted; (ii) appeal allowed in part, to the extent that the sentence imposed in respect of the first count, of robbery in company with wounding committed on 10 January 2003: the sentence imposed quashed and in lieu thereof the applicant sentenced to imprisonment for five years and three months, commencing on 25 June 2004 and expiring on 24 September 2009, with a non-parole period of two years expiring on 24 June 2006.

CATCHWORDS:
application for leave to appeal against severity of sentence - robbery in company with wounding - detain person in company with intent to obtain advantage - robbery in company - detain - pleas of guilty - offences taken into account - applicant on conditional liberty - accumulation of sentence - youthful offender - special considerations applying to sentencing of children - totality - subjective circumstances - whether overall sentence manifestly excessive - special circumstances - promotion of rehabilitation - sequential and partially overlapping sentences - ratio between non-parole period and overall sentence

LEGISLATION CITED:

Children (Criminal Proceedings) Act 1987, s3, s6, s17
Crimes Act 1900, s66A
Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3, s44, s45

CASES CITED:
R v JDB [2005] NSWCCA 102; unreported, 24 March 2005
R v Hearne (2001) NSWCCA 37; 124 A Crim R 451
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
R v GDP (1991) 53 A Crim R 112
Veen v R (No 2) [1987-1988] 164 CLR 465

PARTIES:
Crown - Respondent
DM - Applicant

FILE NUMBER(S):
CCA 2005/97

COUNSEL:
G Rowling - Crown
A Francis - Applicant

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

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/0037

LOWER COURT JUDICIAL OFFICER:
Delaney DCJ

2005/97

GROVE J
HULME J
SIMPSON J
Monday 18 July 2005

R v DM

Judgment

1 GROVE J: I agree with Simpson J.

2 HULME J: The Applicant for leave to appeal was, on 19 May 2004, sentenced in respect of 4 charges. The charges and the sentences imposed were:-

(i) Robbery in company, with wounding, committed on 10 January 2003 – imprisonment for 5 years 3 months with a non-parole period of 3 years, both periods commencing on 25 June 2004;

(ii) Detain person in company with intent to obtain advantage, committed on 9 June 2003 – imprisonment for a fixed term of 2 years, commencing on 25 June 2003;

(iii) Robbery in company, committed on 18 June 2003 – imprisonment for a fixed term of 2 years and 6 months, commencing on 25 March 2004; and

3 The victim of the first offence was one Ted Tyra and the Applicant was in the company of, inter alia, another young offender AD. The victim of the second offence was a Ms Chen. The victim of the third offence was a Ms Mee Lee Rhee. The victim of the fourth offence was Peng-Jie Pan

4 Simpson J has set out at some length the circumstances giving rise to those offences and the Applicant’s unfortunate history and I shall not repeat what her Honour has said in these respects. I would however add the following.

5 The bruising suffered by the victim of the offence the subject of the first count included severe bruising to the victim’s kidneys leading to the passing of blood in his urine for a period.

6 The opinion of the doctor who examined the victim that he would have ongoing pain from walking and sitting indefinitely and be unable to engage in strenuous activity without experiencing pain to his hip region was confirmed in a statement from the victim, made in April 2004 saying that at that time, 15 months after the robbery, he was restricted in what and how he lifted at work and was still experiencing pain. In the statement the victim also indicated that he suffered from ongoing anxiety, very aware of his surroundings and became “a bit freaked out if I am on my own anywhere and there are young people around”.

7 The offences taken into account, in chronological order, were:-

(i) 10 January 2003 - being carried in a conveyance UOC 828, knowing it was taken without the consent of the owner.

(ii) 1 May 2003 breaking and entering a garage with intent to commit a felony, namely to steal a Holden Commodore, AOA O4N.

(iii) 1 May 2003 - attempting to take and drive a conveyance AOA 04N without the consent of the owner.

(iv) 1 May 2003 - maliciously destroy property, namely a Holden Commodore, AOA O4N.

(v) 29 May 2003 – driving a conveyance YAP 433 knowing it was taken without consent of owner.

(vi) 9 June 2003 - being carried in a conveyance YKB 619 knowing it was taken without the consent of the owner.

(vii) 9 June 2003 - robbery of a Miss Chen of a back pack, purse, $20 and key cards whilst armed with an offensive weapon, viz a knife and in company of 2 others.

(viii) 15 June 2003 – attempting to take and drive a conveyance, AGH 84Y, without the consent of the owner.

(ix) 15 June 2003 – larceny of property of the value of $130

(x) 15 June 2003 - maliciously destroy property, namely a GTV Alfa Romeo, AGH 84Y.

(xi) 18 June 2003 - being carried in a conveyance AA4 48Y knowing it was taken without the consent of the owner.

(xii) 25 June 2003 - driving a conveyance YOR 784 knowing it was taken without the consent of owner.

8 The appeal papers contain no information concerning the first of these offences beyond the fact that the vehicle was that which was used by the Appellant and his co-offenders on the occasion the subject of the first count.

9 What has been said sufficiently describes the second, third and fourth of these offences save and except that the vehicle was not destroyed but merely damaged in the attempt to steal it.

10 The evidence adds little to the description of the fifth of these offences. Its commission was observed by a police officer before the Applicant swapped seats with another occupant of the vehicle which had been previously stolen.

11 The robbery of Ms Chen was constituted by the initial actions of the Appellant and co-offenders prior to detaining her in circumstances which constituted the second count on which the Appellant was sentenced. Simpson J has described these actions. The vehicle in which the Appellant and his co-offenders were driving on that day was YKB 619, the event the subject of the offence I have numbered (vi).

12 The larceny referred to in the paragraph I have numbered (ix) was from the motor vehicle AGH 84Y during or after an unsuccessful attempt to steal it, that conduct being the offence in the paragraph I have numbered (viii). The offence I have numbered (x) was constituted by damage to a vehicle in an attempt to steal it, not the destruction of the vehicle.

13 The offences I have numbered (xi) and (xii) are sufficiently explained by their terms. The facts sheet asserts that the vehicle YOR 784 was previously stolen by the Applicant but because such an offence was not charged, I disregard it.

14 It should also be mentioned that at the time of all of the Applicant’s offences, including those on the Forms 1, he was subject to conditional liberty, as the result of earlier offending. Thus:-

On 11 July 2001, an 18 months good behaviour bond had been imposed for entering and being carried in a conveyance without the consent of the owner.

On 6 March 2002, an 18 months probation order had been imposed for breaking and entering and entering prescribed premises without lawful excuse.

On or about 2 May 2003, a control order for 8 months and an additional term of 2 months had been imposed for driving a conveyance taken without the consent of the owner and for driving recklessly or dangerously.

On 12 July 2002 a number of control orders were imposed, the longest of which was for 10 months with 4 months additional term. The offences dealt with on that day included taking and driving a conveyance without the consent of the owner, possessing implements to enter or drive a conveyance, driving recklessly or dangerously, breach of recognisance and placing gunpowder near a ship or vessel with intent to injure.

15 So far as the first ground of appeal is concerned, viz. that the sentencing judge erred in the partial accumulation of the Applicant’s sentences, I agree with Simpson J that the four offences for which the Applicant was sentenced were discrete, called for discrete sentences and that those sentences required some degree of accumulation. Indeed, counsel who appeared for the Applicant before Judge Delaney conceded as much. Considerations of general deterrence, personal deterrence and retribution, if no others, require that the courts make clear that the fact that an offender who has committed one serious offence is not able to commit others with impunity, content in the knowledge that, if caught, there will be no increase in penalty. The commission of the second, third and fourth offences charged increased the Applicant’s criminality and it was appropriate that he be punished for that enhancement.

16 I am however unable to agree with Simpson J in respect of the third ground of appeal, viz. that the sentence imposed in respect of the first count and the totality of the sentence imposed upon the Applicant were manifestly excessive.

17 In so concluding, I am not unconscious of the Applicant’s upbringing, or of his youth, or of some factors favourable to the Applicant’s prospects of rehabilitation which appear in the evidence or to which Judge Delaney had regard. These are all matters which, in accordance with principle, lead to the conclusion that the sentence to be imposed on the Applicant should be less than it otherwise would be.

18 However these matters have to be put in some perspective. Even though he left school at 12, even though his father was, on one report, in and out of gaol, his upbringing in the words of the Juvenile Justice Report “chaotic” and, in the words of Dr Lennings, his background “dysfunctional”, it is impossible to believe that he did not receive some instruction in, and did not acquire some recognition of, the principle that one should not assault people with weapons such as baseball bats and did not have some understanding that the actions he and his co-offenders contemplated and then executed on 10 January 2003 were unacceptable in any civilised society. Furthermore, he had been before courts on at least four - or if one counts an appeal, five – separate occasions for offences to which reference has been made. It is inconceivable that on each of those occasions the error in, and from the point of view of society, unacceptable nature of, dishonesty was not made clear to him.

19 In R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 this Court directed attention to the principle which lies behind the practice of imposing on young offenders lesser sentences than the general run of sentences imposed on adults who commit similar offences. The Court said, at [25 et seq]:-

It lies

R v Allam

R v WKR

Scognamiglio

R v Wright

R v Bus & A S

R v Letteri

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

28 It takes no great maturity to appreciate in the course of planning, for example, an armed robbery or other instance of violence, that such activities infringe the rights of others in a way that no civilised society can tolerate. It may be, in light of the Applicant’s experience with knives, that similar considerations apply with equal force to his decision to carry a knife. However, the same cannot be said of his response to the undoubtedly stressful situation in the alcove on the night of 27 February. Although an adult may have reacted as he did and the reaction was one of violence, it is not possible to postulate that his reaction was not influenced by the immaturity of youth. Thus, there is substance in the submission that the cases cited as illustrations of where an offender conducts himself as an adult - cases which involve premeditated violence - and commits a particularly serious crime are at some distance removed from the conduct of the Applicant.”

20 Reverting to the circumstances of the Applicant, although he can pray in aid the fact that in age he is towards the bottom of youthful offenders with whom courts have had to deal, it takes no appreciable maturity to know that one should not belt people with a baseball bat or, in the case of other of his offences, threaten them with knives, and that a need for money does not justify violent attacks on other people. It is appropriate also to recognise that his youth or immaturity or drug addiction did not prevent him having enough ability and rationality to participate in some planning of the offence the subject of count 1 and, it is to be inferred, the other offences also, exhibiting an appreciation of what he needed and how to go about getting it so as to increase the chance of his attacks succeeding.

21 And even accepting as I do that considerations of general deterrence and retribution should be given less weight in the case of someone as young as the Applicant and someone who has had his unfortunate upbringing, there are other factors to be considered. The Juvenile Justice Report in evidence recorded that the Applicant had been subjected to a “Structured Assessment of Violence Risk in Youth”. Addressing individual components of that Assessment, the Report recorded, inter alia, that the Applicant had been exposed to violence at home, had been suspended from schools for violence towards teachers, demonstrated a pattern of increasing frequency and severity of violence, sources indicated that he endorsed attitudes and values that condone violence and that he had moderate difficulty with controlling expressions of anger. He was also reported to have few friends or acquaintances whose lives did not revolve around drug use, antisocial and criminal free (sic) lifestyles. Intensive intervention at a Detention Centre was recommended.

22 A psychologist Dr Lennings whose report was tendered, observed in respect of the Applicant, inter alia, “(he) cannot take being told what to do”, “his poor frustration tolerance, his short fuse and his oppositional behaviour”, “He does display poor impulse control and has very short temper”, “(DM) simply has not got the capacity currently for self regulation skills”. At the end of his report, Dr Lennings’ opinions included the following:-

“Clearly it would not be to his benefit to go to gaol … the brutal environment of gaol would only further harden and distort his character …

Treatment Plan

On the assumption that a custodial sentence might be provided in addition to his long remand period, it would be beneficial to allow for a substantial head sentence, and the capacity to commute a significant part of any custodial sentence into release to the Intensive program Units of the Department of Juvenile Justice. Rather than a direct release then to the community, (DM) should be required to undertake the PALM rehabilitation program (essentially a three month program) and then release to the IPU program for intensive follow up and community integration, Failure of (DM) to comply with the requirements of such a program could lead to a breach of his conditions.

23 I do not suggest that these remarks should increase the Applicant’s sentence beyond what would otherwise be appropriate but a number of them do demonstrate that the Applicant has a substantial need for specific deterrence and that the protection of the community, within the limits to which regard may be had to this factor – see Veen v R (No 2) [1987-1988] 164 CLR 465 at 473 - is also important. Furthermore, the remarks provide no grounds for thinking that the Applicant’s rehabilitation is likely to be advanced by any shorter head sentence than that imposed in respect of the first count (or I would add, the effective totality of the head sentences).

24 Once regard is had, not only to the offence the subject of the first count itself, but also to the 12 offences taken into account – offences which Judge Delaney, who sentenced the Applicant correctly said, “significantly increase the overall criminality” - and to the fact that all of the offences were committed while the Applicant was on conditional liberty, I am satisfied that the sentence imposed on the first count was not manifestly excessive.

25 Many of the above remarks apply a fortiori when the totality of the Applicant’s sentences is considered. The effect of the commencing dates chosen by the sentencing judge is that the Applicant has been required to serve only ;

· 6 months of the sentence imposed on the second count before the sentence for count 4 commenced,

· 3 months of the sentence imposed on the fourth count before the sentence for count 3 commenced, and

· 3 months of the sentence imposed on the third count before the sentence for count 1 commenced.

26 Thus, for the 3 offences the subject of those counts, the Applicant received but an additional 12 months in actual custody. Each of those offences was a serious offence in its own right and there is much to be said for the view that these additional periods do not adequately reflect that fact, even taking account of the principle of totality. Certainly I am satisfied that it is only the length of the sentence imposed in respect of the first count which could justify these additional periods being so short. The kidnapping of a woman or girl by three youths who threaten her with a knife and death while they have imprisoned her – conduct which is the subject of the second count - is an appalling offence and while not as serious, the other offences also demanded substantial additional punishment.

27 There remains ground 2, viz. that Judge Delaney fell into error by failing to adequately reflect the need to promote rehabilitation in the structure of the sentences imposed.

28 I have set out at a little length extracts from the report of Dr Lennings. Judge Delaney also quoted extensively from that report including from paragraphs 25 and 26 and, although he did not say so in terms, seems to have accepted the substance of Dr Lennings’ views. However, this Court was informed that participation in the programs which Dr Lennings recommended is not possible unless the Applicant’s non-parole period expires prior to him attaining the age of 18 years. The sentences imposed do not permit the Applicant’s participation because, having been born on 18 October 1988, he will be about 18 and 8 months when his non-parole period concludes. His Honour’s remarks on sentence provide no reasons why, given his acceptance of so much of Dr Lennings’ evidence, the sentences in fact imposed do not enable the recommendation to be implemented and it would appear both from that fact and the transcript of proceedings before his Honour that Judge Delaney was not given the information provided to this Court. Of course, given the nature of the information, the usual rules about fresh evidence on appeal do not apply.

29 Section 6(c) of the Children (Criminal Proceedings) Act provides:-

“A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:-

(a) …

(b) That children who commit offences bear responsibility for their actions but because of their state of dependency and immaturity require guidance and assistance.”

30 In light of this provision, the general principles as to the importance of rehabilitation of young offenders, and the evidence which was before his Honour as to the Applicant’s situation and his needs so far as rehabilitation is concerned, it seems to me that, within the terms of s6 of the Criminal Appeal Act, “some other sentence … is warranted in law, and should have been passed”.

31 There are a variety of ways this could have been achieved. One is to make the non-parole period of the sentence imposed on the first count shorter and expire before 18 October 2006 when the Applicant turns 18. Theoretically at least, that could be achieved by making the non-parole period expire on 17 October 2006 but having regard to the constraints involved in the program and to which Dr Lennings has referred, it seems to me that the order proposed by Simpson J, reducing the non-parole period of the sentence on the first count to 2 years, is an appropriate one.

32 Accordingly, I agree with the orders proposed by her Honour.

33 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court in Parramatta on 19 May 2004 following his pleas of guilty to four charges. Those charges were:

(ii) detain person in company with intent to obtain advantage, committed on 9 June 2003;

(iii) robbery in company, committed on 18 June 2003; and

34 The applicant asked, pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), that an additional 12 offences listed on two Forms be taken into account. These ranged from armed robbery (one offence) to malicious destruction of property (two offences, each involving a motor vehicle) to being carried in, driving, or attempting to drive (seven offences) stolen motor vehicles, stealing, and break and enter with intent. These offences were committed over the same period as those charged, that is, between January and June 2003.

35 Delaney DCJ sentenced the applicant on 19 May 2004. On the first count, of robbery in company with wounding, and taking into account the 12 additional offences, his Honour imposed a total sentence of five years and three months with a non-parole period of three years, to commence on 25 June 2004. This charge carries a maximum penalty of imprisonment for 25 years. On the second count, of detaining, he imposed a fixed term of imprisonment for two years, commencing on 25 June 2003; on the third count (robbery in company) he imposed a fixed term of two and a half years, commencing on 25 March 2004; and on the fourth count (of detaining) he imposed a fixed term of two years, commencing on 25 December 2003. Each of these offences carries a maximum penalty of imprisonment for 20 years.

36 As a result of the manner in which his Honour structured the sentences, they will be served sequentially, and partially overlapping with one another, as follows:

(i) count 2 (detain): 25 June 2003 – 24 June 2005;

(ii) count 4 (detain): 25 December 2003 – 24 December 2005;

(iii) count 3 (robbery in company): 25 March 2004 – 24 September 2006;

37 The overall sentence to be served is of six years and three months with a non-parole period of four years.

facts

38 The facts of the offences may be stated as follows.

count one: robbery in company with wounding

39 During the afternoon of Friday 10 January 2003 the applicant, with two others, travelled in a stolen motor vehicle to an address in Sefton at which one of the co-offenders had previously been employed. One of the co-offenders remained in the car while the applicant and the other co-offender waited for employees to leave the premises. One of them (a 54 year old male) was carrying a briefcase containing about $1,000 in cash. The applicant was armed with a baseball bat. In company with one co-offender, he approached the man carrying the briefcase and struck him a number of times around the upper body with the baseball bat. While he was doing this the co-offender was kicking the victim and attempting to take the briefcase. The victim let go of the briefcase, the co-offender took it and ran away. The victim and other employees of the business chased him and the co-offender threw the briefcase towards them. The applicant and the co-offender entered the stolen motor vehicle and were driven off by the third co-offender. The victim received lacerations, abrasions and contusions to his arms and back, cuts to his hands, and bruising. He was taken to Auburn Hospital where he was found to have some injury to his kidneys. He sustained an avulsion fracture to the right hip. A medical practitioner expressed the view that the victim would have ongoing pain from walking and sitting and would be unable to engage in strenuous activity without experiencing pain to the hip region. He also reported the victim to be nervous and “overly aware” when in public places.

count two: detain

40 During the morning of Monday 9 June 2003 the female victim left her home in Burwood and walked towards the railway station. The applicant, with two co-offenders, again in a stolen motor vehicle, stopped. One of the co-offenders alighted from the vehicle, holding a knife, and approached the victim. He took hold of her right arm and told her to give him her bag. He pointed the knife towards her. She gave him her backpack and he walked back towards the motor vehicle. The applicant then approached the victim and demanded to know what she had in her pockets, and removed a purse from her pocket from which he took $20 and small change together with ATM cards. He told her to give him the PINs. He then forced the victim through the passenger door of the vehicle onto the back seat where the third man was seated. The men told the victim not to look at their faces. The applicant sat in the front passenger seat and one of the other men drove the car a short distance to an ATM. While this was being done, they demanded the PIN, threatening to kill the victim. One of the men handed the victim a mobile phone and told her to key in the PIN. She did so and handed the phone back to one of the men. $1,000 was withdrawn from the account to which one of the cards gave access. The victim’s telephone was used to make telephone calls.

count three: robbery in company

41 This offence occurred at about 4.30 pm on 18 June 2003. Again, the victim was a female walking in the vicinity of the Burwood Railway Station. She was in the company of her 16 year old daughter. Two men alighted from a different stolen vehicle and approached the victim. One of them demanded money which the victim initially refused to produce. The applicant grabbed the handbag and attempted to pull it away. Another offender approached the daughter and demanded money. The daughter attempted to break free to assist her mother. The co-offender punched her a number of times. One of the men was engaged in a struggle with the victim, attempting to take possession of the handbag which eventually broke. The offenders gained control of the handbag, and entered the vehicle which drove away. There was approximately $150 and personal papers in the handbag.

count four: detain

42 The final offence charged was committed only about half an hour later on the same day, and in the same vicinity. A male victim was approached by the applicant in company with another man. The applicant was armed with a hollow pipe. He held this out towards the victim, telling him not to move. The two offenders searched through the victim’s pockets, taking possession of $150 in cash, a wallet and a mobile phone. The applicant then pushed the victim, and said he would not be hurt, but ordered him to enter the car. He was placed in the rear of the vehicle and driven a short distance. A co-offender removed an ATM card and demanded the PIN which the victim supplied. They then allowed the victim to leave the car. As he walked away he looked back in order to note the registration number. The applicant asked if this was what he was seeking to do, which he denied, but the applicant punched him to the face with his fist. The applicant re-entered the vehicle and the two offenders left.

the offences taken into account

43 During the early hours of Thursday 1 May 2003 the applicant, in company with others, attended a caravan park in Karuah where they gained entry to a garage attached to the home of the manager, and then to an unlocked Holden Commodore. They attempted to start the car but succeeded in damaging the steering column. This gave rise to three of the offences taken into account. During the evening of 15 June 2003 and early morning of 16 June 2003 the applicant and a co-offender forced entry into an Alpha Romeo parked in the underground of a home unit block in Newington. They attempted unsuccessfully to start the vehicle. They took $30 in change and some other small items from the vehicle. This gave rise to some of the remaining offences taken into account. There appears to be little information about the remaining offences, including the offence of armed robbery.

subjective circumstances

44 The applicant was born on 18 October 1988. He was 14 years of age at the time of all of the offences, 15 at sentencing. He had some record, generally to do with the illegal use of motor vehicles, but nothing approaching the seriousness of the robbery offences. At the time of the January 2003 offence, the applicant was subject to the requirements of an 18-month good behaviour bond imposed by the District Court on 11 July 2001, which was due to expire just one month later. The sentencing judge was provided with a report of an officer of the Department of Juvenile Justice (“DJJ”), and one of a psychologist, each of which exposed a history of a dysfunctional family and chaotic upbringing. His father served a number of gaol terms during the applicant’s youth. There are suggestions in the material that the applicant had a relatively close relationship with him, and described the periods when his father was free as the happiest in his life. The relationship between the applicant’s parents, however, was “volatile” and “chaotic” and eventually ended in separation. The insecurity of the relationship affected the applicant and his two siblings. Subsequently, the applicant’s mother entered into another de facto relationship, and this was abusive. Although they were not themselves directly the subject of violence or aggression, the children were exposed to abuse and domestic violence inflicted on their mother. In 1997, when he was nine, the applicant was living with his father when he died suddenly and unexpectedly, possibly of a drug overdose. It seems that the father’s death occurred away from home and the applicant remained in the home for a time thereafter. He did not notify his mother, or any other adult of his father’s death, and attempted to cope, although traumatised.

45 The applicant’s mother was also vulnerable, and was addicted to alcohol. Eventually, after she sought Department of Community Services intervention, the children were removed from her care, and placed with relatives. In 1999 the applicant and his elder brother returned to live with their mother, but this was unsuccessful. Both brothers became involved in criminal activity, although it seems that, until the offending that is the subject of the present application, the applicant’s transgressions were far less serious than those of his older brother. (By coincidence, applications for leave to appeal against sentences imposed upon him, in relation to different offences in which the applicant was not involved, were listed on the same day and before the same bench of the Court of Criminal Appeal as the present application.)

46 The applicant’s education was severely disrupted, and came to an end, it seems, when he was about 12 years old.

47 The applicant became involved in the use of illegal drugs (initially, marijuana) at the age of 12, and progressed to alcohol, amphetamines and ecstasy.

48 According to information given by the applicant to the officer of DJJ who was the author of the report, and to the psychologist, the applicant was, at about 11 or 12, diagnosed as suffering from Attention Deficit Hyperactivity Disorder. Treatment was, at his mother’s request, terminated after a short time. At some stage he was receiving psychiatric treatment, but this, too, was short lived and also was terminated at his mother’s request.

49 A psychologist employed at the Detention Centre where the applicant was held is of the opinion that the applicant is an anxious individual who on occasions suffers from anxiety attacks. She and the applicant were, at the time of the report, working on strategies to manage the anxiety.

50 The psychologist’s report was largely to similar effect. The psychologist described the applicant as clearly “a very difficult child” whose education was cut short at the end of primary school and who had attended a special school from which he was expelled. He thought the applicant was of average intelligence but immature. He considered that:

“... it would still be to [the applicant’s] great benefit if he would be able to undertake rehabilitation but his most likely response to rehabilitation will be poor unless he was able to undertake that rehabilitation in a residential unit such as the Ted Hoffs PALM Programme.”

51 It must be said that the psychologist is not encouraging as to the prospects of salvation. Indeed, under the heading “Treatment Plan” he wrote:

“It seems in this case the likely trajectory for Danny is a very bleak one.”

52 However, he went on to consider what kinds of strategies might help reduce the likelihood of “a lifestyle of entrenched criminality”. Ultimately, he recommended:

“On the assumption that a custodial sentence would be provided in addition to his long remand period, it would be beneficial to allow for a substantial head sentence, with the capacity to commute a significant part of any custodial sentence into release to the Intensive Program Units of the Department of Juvenile Justice. Rather than a direct release into the community, Danny should be required to undertake the PALM rehabilitation program (essentially a three month program) and then released to the IPU program for intensive follow-up and community integration.”

53 The applicant gave evidence in the sentencing proceedings on 20 April 2004. He had been in custody by that date for about 10 months. He appeared to have benefited from the programmes in which he had participated and there were some real signs of rehabilitation. His mother also gave evidence, which also suggested growing maturity and greater ability to deal with his problems.

the remarks on sentence

54 Because of the applicant’s age at the time of the commission of the offences, the regime of sentencing provided for by the Children (Criminal Proceedings) Act 1987 applied. The first offence was, within the meaning of that legislation, a “serious children’s indictable offence” (see s3). S17 required that, in respect of that offence, he be dealt with according to law. In relation to the subsequent offences, the judge was required to make a determination whether he should be dealt with according to law, or under the provisions of the Children (Criminal Proceedings) Act. He determined to take the former course. No challenge has been made to that determination.

55 Delaney DCJ conventionally outlined the nature of the offences, and identified all relevant considerations in sentencing. He noted the contents of the two reports. He found that special circumstances within the meaning of s44 of the Sentencing Procedure Act (as it then stood) existed, justifying departure from the statutory proportion between the head sentence and the non-parole period. He thus imposed the sentences I have outlined above.

56 It was not suggested that any significant error can be identified by a perusal of the Remarks on Sentence. The application was based upon what was said to be the erroneous application of correctly stated principles.

the application for leave to appeal against sentence

57 Three grounds of the application were advanced. They may be encapsulated as asserting:

1. error in the partial accumulation of sentences;
2. error in failing adequately to promote rehabilitation (as evidenced by the sentences imposed);
3. the imposition of manifestly excessive sentences.

grounds 1 and 2: partial accumulation; rehabilitation

58 As argued, these grounds raise specific matters that ultimately lead into the third. It is convenient to deal with them together. The argument advanced in support of the first ground focussed upon the applicant’s youth, both at the time of the offences, and the time of sentencing, and the principle of totality, as most recently recognised by the High Court in Johnson v The Queen [2004] HCA 15; 78 ALJR 616.

59 Counsel for the applicant relied upon a very recent decision of this Court in R v JDB [2005] NSWCCA 102; unreported, 24 March 2005. There Mason P, with whom Barr and Johnson JJ agreed, said:

GDP

60 That case, however, was very different from the present. That applicant, like the present applicant, was 15 years of age at the time of the application; he was aged between 13 years and 5 months and 14 years and 2 months at the time of the offences to which he pleaded guilty and for which he was to be sentenced. There, however, the similarities end. That applicant was charged with six offences against s66A of the Crimes Act 1900, that is, having sexual intercourse with a person under ten years of age. The victim was his half-sister, aged eight. The judgment suggests that the applicant had never previously had an adverse encounter with the law. There was a great deal of subjective material to which Mason P made detailed reference. I do not read the single sentence extracted above as intended to state a general principle, but rather to apply conventional and known principles to the case before the court.

61 It is, in my view, a general principle that, in the case of an extremely young offender, more emphasis can be given to questions of rehabilitation, even at the expense of deterrence: see R v GDP (1991) 53 A Crim R 112. But that is not universal, and does not mean that, in an appropriate case, issues of general deterrence are not of significance. On the facts of JDB, one would think that general deterrence did not loom large. The courts are not swamped with 13 year old boys sexually assaulting their half-sisters, or, indeed, anybody else. That does not apply to the present case; the applicant’s offences, particularly the robbery offences, are quintessentially of the kind that attract attention to the concept of general deterrence.

62 Nevertheless, it is correct to note that by reason of the present applicant’s age rehabilitation was and remains a matter of real significance. The DJJ and psychological reports confirm that.

63 Counsel for the applicant relied upon the passage in the psychological report, extracted above, in which the psychologist recommended that, at the end of any custodial sentence imposed, the applicant be required to undertake a three month rehabilitation programme with intensive follow-up and community integration. Counsel argued that the overall non-parole period of four years did not allow for the incentives to rehabilitation suggested in this part of the report. He also argued that the effective minimum term of four years was “neither required nor appropriate in this case”.

64 It is true that there were some quite promising signs of rehabilitation. However, it can hardly be said that the sentencing judge overlooked that evidence. He referred to it extensively, and, indeed, extracted the very passage from the psychological report on which counsel relied. The question, therefore, is whether, notwithstanding his consciousness of the need to attend to the applicant’s potential rehabilitation, his Honour in fact failed adequately to reflect that in the sentences imposed. In the end, in my opinion, the merits of these grounds can only be determined by the determination of the final ground: if it is established that the sentences were manifestly excessive, then it may be inferred that some specific error of the kind suggested in grounds 1 and 2 infected the sentencing process. However, I should say here that I would reject the contention that the partial accumulation of the sentences was erroneous. These were discrete offences calling for discrete sentences. Not to accumulate, at least in part, would, in my view, have been erroneous. The question then arises whether the extent of the accumulation exposes error. Examination of the sentences shows unquestionably that it does not. The second sentence to be served was accumulated only by six months on the first – that is, by one quarter of the two year sentence; the third was accumulated by three months on a two year sentence – that is, by one eighth; and the fourth by three months on a two and a half year sentence – that is, by one tenth. The vast majority of the sentences are, in fact, to be served concurrently.

65 This ground, as pleaded, cannot be made out. However, the argument was not so limited, and it remains to be determined whether error has otherwise been demonstrated.

ground three: manifestly excessive

66 In my opinion, the force of this ground may best be gauged by an appreciation of the actual effect of the length of the sentences, having regard particularly to the applicant’s age. Counsel for the applicant pointed out that the applicant will be 18 years and 8 months when he becomes eligible for release to parole. This Court was told, without dissent from the Crown, that if his release occurs at a time beyond his eighteenth birthday then he will be ineligible for DJJ programmes such as the intensive supervision programme recommended by the psychologist. On the other hand, even if his release occurs at a time only days before his eighteenth birthday, then he will be eligible for DJJ programmes.

67 It would, ordinarily, be quite erroneous to select a sentence by reference to those circumstances. The task of a sentencing judge is to select the appropriate sentence to take account of the objective gravity of the crime, tempered by any mitigating circumstances and having regard to any aggravating circumstances. However, in s6 of the Children (Criminal Proceedings) Act, the legislature enacted a statement of principles applicable to the extending of criminal jurisdiction with respect to children. In my view, the section allows a more liberal and flexible approach to sentencing children. In particular, principle (b), recognising that, while children bear responsibility for their action, by reason of their state of dependency and immaturity they require guidance and assistance, permits (in my view) this court to take a course that will, it is to be hoped, promote rehabilitation. I have come to the view that it is open to the court (should it come to re-sentencing) so to structure the sentences as to ensure that the applicant will, on his release, be supervised by the authority that has particular experience in dealing with, and responsibility for, young offenders.

68 The overall sentence imposed is a long one, particularly for a teenager. As against that, the offences committed by the applicant were very serious, and were repeated. His history is of little assistance to him. After considerable hesitation I have come to the view that error attended the sentencing process in two ways: firstly, the sentence imposed in respect of the first count (five years and three months with a non-parole period of three years) was manifestly excessive; secondly, the accumulation resulted in a manifestly excessive total term, exceeding the totality of the offending.

69 Accordingly, in my view, the applicant should be re-sentenced.

70 As against the possibility of re-sentencing this Court received additional evidence in the form of affidavits affirmed by the applicant and by his solicitor. These confirm the evidence that the applicant has real prospects of rehabilitation. It is unnecessary to say more than that.

71 Re-sentencing is complicated by reason of the dates of the commission of the offences. The first offence was committed on 10 January 2003 and sentencing is to be effected in accordance with the provisions of the now repealed and replaced s44 of the Sentencing Procedure Act. That section relevantly provided as follows:

“44(1) When sentencing an offender to imprisonment for an offence, a court is required:

(b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The non-parole period must not be less than three quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.

...”

72 However, s45 provided that a court may decline to set a non-parole period if it appeared appropriate to do so because of the nature of the offence, because of the antecedent character of the offender, because of any other penalty previously imposed on the offender, or for any other reason that the court considered sufficient. Subs(2) required a court which declined to set a non-parole period to make a record of its reasons for doing so. Delaney DCJ did not set a non-parole period in respect of the three June offences, but did not give reasons for doing so. By subs(4) of s45, that failure does not invalidate the sentences. It may be inferred that the reasons concerned the sentence imposed in respect of the January offence, and the subsequent accumulation of the remaining sentences. That constitutes a perfectly appropriate reason. The remaining offences were committed in June 2003, and called for sentencing in accordance with the regime provided in the amended version of s44, which came into effect on 1 February 2003 and applies to offences committed on or after that date. The section now requires a sentencing court first to set a non-parole period representing the minimum period for which an offender must be kept in detention, and a balance of term which, in the absence of special circumstances, must not exceed one third of the non-parole period. S45 continues to permit a sentencing judge to decline to set a non-parole period, for the same kinds of reasons as previously applied, and to oblige the judge to give reasons for taking that course. I would adopt the course taken by Delaney DCJ, for the reasons that I have postulated motivated his Honour.

73 I would also adopt his Honour’s finding of special circumstances warranting departure from the statutory proportion between the head sentence and the non-parole period, and the reasons therefor. An additional reason for doing so is, again, the accumulation of sentences.

74 It is also convenient to adopt the sequence of sentencing, and the partial accumulation, so as to make the sentence imposed in relation to the offence committed first in time, robbery in company with wounding, the last to be served. The only variation I would make to the overall sentences is a reduction in the non-parole period. I would not interfere with the sentences, or the commencement dates, in respect of the offences numbered 2, 3 and 4. As to the sentence imposed in respect of the first offence I would confirm the sentence imposed as one of five years and three months but reduce the non-parole period to two years.

75 I propose the following orders:

(i) leave to appeal granted;

**********

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Citations

R v DM [2005] NSWCCA 181

Most Recent Citation

DB v Regina; DNN v Regina [2006] NSWCCA 391

Cases Citing This Decision

7

R v West [2019] NSWDC 838

R v Akok Lueth Noi [2007] NSWDC 383

Dungay v R [2020] NSWCCA 209

Cases Cited

3

Statutory Material Cited

3

R v JDB [2005] NSWCCA 102

Johnson v The Queen [2004] HCA 15

R v Hearne [2001] NSWCCA 37

CITATION:	R v DM [2005] NSWCCA 181
HEARING DATE(S):	20 May 2005
JUDGMENT DATE:	18 July 2005
JUDGMENT OF:	Grove J at 1; Hulme J at 2; Simpson J at 33
DECISION:	(i) leave to appeal granted; (ii) appeal allowed in part, to the extent that the sentence imposed in respect of the first count, of robbery in company with wounding committed on 10 January 2003: the sentence imposed quashed and in lieu thereof the applicant sentenced to imprisonment for five years and three months, commencing on 25 June 2004 and expiring on 24 September 2009, with a non-parole period of two years expiring on 24 June 2006.

CATCHWORDS:	application for leave to appeal against severity of sentence - robbery in company with wounding - detain person in company with intent to obtain advantage - robbery in company - detain - pleas of guilty - offences taken into account - applicant on conditional liberty - accumulation of sentence - youthful offender - special considerations applying to sentencing of children - totality - subjective circumstances - whether overall sentence manifestly excessive - special circumstances - promotion of rehabilitation - sequential and partially overlapping sentences - ratio between non-parole period and overall sentence
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987, s3, s6, s17 Crimes Act 1900, s66A Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3, s44, s45
CASES CITED:	R v JDB [2005] NSWCCA 102; unreported, 24 March 2005 R v Hearne (2001) NSWCCA 37; 124 A Crim R 451 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 R v GDP (1991) 53 A Crim R 112 Veen v R (No 2) [1987-1988] 164 CLR 465
PARTIES:	Crown - Respondent DM - Applicant
FILE NUMBER(S):	CCA 2005/97
COUNSEL:	G Rowling - Crown A Francis - Applicant
SOLICITORS:	S Kavanagh - Crown S O'Connor - Applicant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0037
LOWER COURT JUDICIAL OFFICER:	Delaney DCJ