R v Eh - [2003] NSWCCA 223

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v EH [2003] NSWCCA 223

FILE NUMBER(S):
60158/03

HEARING DATE(S): 12 August 2003

JUDGMENT DATE: 12/08/2003

PARTIES:
Crown - Respondent
EH - Applicant

JUDGMENT OF: Wood CJ at CL Simpson J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3117

LOWER COURT JUDICIAL OFFICER: Robison DCJ

COUNSEL:
G Rowling - Crown
H Dhanji - Applicant

SOLICITORS:
SE O'Connor - Crown
D Humphreys - Applicant

CATCHWORDS:
appeal against severity of sentence
young offender
plea of guilty
discharge of loaded pistol with intent to do grievous bodily harm
subjective circumstances
rehabilitation
sentence to be served in a detention centre

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987, s19
Crimes Act 1900, s33A(1)
Crimes (Sentencing Procedure) Act 1999, s44(2)

DECISION:
(i) leave to appeal granted
(ii) appeal allowed, sentence quashed
(iii) in lieu thereof the applicant be sentenced to imprisonment for a term of four years to commence on 21 February 2002 and expire on 20 February 2006 with a non-parole period of two years to commence on 21 February and expire on 20 February 2004
sentence to be served in a detention centre.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60158/03
WOOD CJ at CL
SIMPSON J
ADAMS J
12 August 2003

REGINA v EH

Judgment

WOOD CJ AT CL: I will ask Simpson J to deliver the first judgment.
SIMPSON J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant in the District Court following his plea of guilty to a charge that he discharged a loaded pistol with intent to do grievous bodily harm. By s 33A(1) of the Crimes Act 1900, the offence carries a maximum penalty of imprisonment for fourteen years. The District Court Judge sentenced the applicant to imprisonment for six years with a non-parole period of three years. Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 the sentencing Judge ordered that the sentence be served in a detention centre until 20 February 2005, that is, at the expiration of the non-parole period.
The offence was committed in daylight on 20 February 2002 in the Sydney suburb of Heckenberg. The victim, Vuthy Rous, a schoolboy, was walking to a bus stop. The applicant believed Rous to have been responsible for a previous arson attack on the applicant’s family’s home and car which took place in May 2001. This in turn, he believed, followed and was related to an accusation by Rous that either the applicant or a friend of the applicant’s had attempted to shoot a friend of Rous’. The applicant claimed that this accusation was false.
The applicant therefore drove in a stolen vehicle to the vicinity of Rous’ home. He was in possession of a firearm. He drove in such a way as to attract Rous’ attention. Rous approached the vehicle. The applicant produced the gun, which he fired. The bullet grazed Rous on his right shoulder. The applicant fired a second shot that did not hit Rous, but passed so close to his face that Rous could feel the air displacement. Rous ran off. As he did so, he heard a car door open and heard another one or two gunshots. Rous took shelter in the grounds of a nearby house. From there he saw the vehicle drive past.
The offence is obviously a very serious one and is not excused by the applicant’s belief that he had grounds for revenge on Rous, whether that belief was warranted, reasonable or deluded.
The applicant was born on 7 November 1985. He was sixteen years of age at the time of the offence. He had no previous criminal history. He was born in Cuba of mixed Cuban and Chilean heritage, but migrated with his mother (but not his father) to Australia as a small child. Whilst still in Cuba the applicant was electrocuted and spent some time in a hospital. He received skin grafts and was said to experience some continuing pain, but there was no suggestion that the injuries have caused any emotional disturbance that might explain this offence.
The applicant’s early life had significant disruption. He has had little contact with his father, who has remained in Cuba and remarried. His mother also has established relationships, but these have been unsatisfactory. One of her partners, with whom she had another son, was violent both to her and to the applicant, and on one occasion tried to choke the applicant. The applicant was then five or six years old.
The applicant’s mother then became involved with another man, a Honduran, who was a violent alcoholic and who physically abused the applicant’s mother. Another son was born. This man evicted the applicant’s mother and her children, leaving them homeless. They lived with the applicant’s maternal grandmother for a time before obtaining a house of their own.
The family has been geographically unstable, making frequent moves.
The applicant attended various schools and was in year 11 at Menai High School at the time of the offence. He has continued with his studies whilst in custody.
The applicant has used both marijuana and alcohol, he claims both in moderation. Notwithstanding the instability of his background, the applicant has no prior offences against the law recorded.
The sentencing Judge received a number of reports. It is from these that much of the history I have outlined is drawn. A Juvenile Justice Officer, Mr Stephen Strachan, provided a comprehensive report and also gave oral evidence. Mr Strachan initially interviewed the applicant by telephone in February 2002. It has to be said that his report, at least initially, was of mixed benefit to the applicant. On the adverse side, Mr Strachan took a detailed history of the applicant’s involvement in the offence, and this did little to assist him in the sentencing proceedings. For example, it was plain that the applicant had planned the offence. He went to some lengths to obtain a gun. The act was deliberate and pre-meditated. On the other hand, he denied any intention of shooting Rous, saying that his intention was merely to frighten him and make sure he remained away from the applicant’s location. Mr Strachan also reported that the applicant showed no empathy for Rous.
Mr Strachan again interviewed the applicant eight months later. On this occasion the applicant said he no longer felt justified in the things he had done. He maintained, however, that his family had almost died in the arson attack, which he still attributed to Rous, and had suffered because of the need to move their residence. Another aspect of Mr Strachan’s report, which was very favourable to the applicant, concerned his behaviour whilst in custody. He was described as well behaved, very motivated and focused. Mr Strachan confirmed this in the oral evidence he gave. He said the applicant’s behaviour in custody had been “very very good”. Mr Strachan had never seen a problem either with other detainees or with staff. The applicant had participated in sporting programs and had attended school full-time. As a result of this good behaviour, the applicant had achieved the highest unit points available. This, presumably, is a reference to some incentive program conducted in the detention centre. Mr Strachan said that the applicant had never been cited for any misbehaviour - he knew of no other inmate who had such a record. Mr Strachan also spoke of the strong family support available to the applicant.
Also before his Honour were a neuropsychological report and two psychological reports. Neuropsychological testing revealed all cognitive functions within normal limits and, indeed, in some respects at the upper level. Any after effects of the electrocution were excluded. The first psychological assessment of the applicant was conducted on 13 March 2002. The psychologist conducted an interview and routine testing. At this point the applicant had not entered a plea to the charge and the psychologist, quite properly in my opinion, refrained from addressing directly the circumstances of the offence. The psychologist considered the possibility of a conduct disorder (saying that the applicant was too young for a diagnosis of personality disorder) but found the information available to make such a diagnosis inadequate. He reported that the applicant:
“demonstrated a clear propensity to a rigidity of thought and intransigence in his attitudes and beliefs ...”
He also recorded a period over 2000-2001 when the applicant had truanted from school, began to consume alcohol, and to stay out late, in contrast to his earlier satisfactory behaviour. The psychologist also recorded the applicant’s account of subsequent major problems arising out of conflict between the applicant and gang members, including Rous. Reference was made to the vandalism to the applicant’s family car.
The psychologist again interviewed the applicant at the detention centre on 30 September 2002. He described the applicant’s literacy skills as “excellent” and the applicant is performing, intellectually, within the average range. On this occasion the psychologist considered that there was evidence of “a measure of remorse” but also “a measure of self justification.”
The applicant wrote a letter to the sentencing judge dated 7 November 2002. He said that during his time in custody he had “calmed down and relaxed”, had learned not to worry about problems and to avoid as many problems as he could. He expressed his intention of continuing with his studies and obtaining employment to keep himself occupied. He wrote:
“During the time inside, I have a lot of time to acknowledge the erroneous mistake that I committed against the victim and his family. I am really regretful about the way that I decided to resolve the problem between us. I realise the danger that I could have caused the victim and the loss to the victim’s family, even though I had no intentions of doing so, but I am truly very regretful.”
The sentencing judge recorded the relevant historical matters at some length. In relation to the applicant’s letter, he expressly said that he accepted it as genuine. He said that he had taken it into account and given it appropriate weight. He considered that the facts revealed “a pre-meditated course of conduct” on the applicant’s part and that the offence was “planned and executed”. He observed that it had taken a long time for the applicant to come to accept the seriousness of his conduct. He found that special circumstances that would justify departure from the ratio between the parole and non-parole period of the sentence referred to in section 44(2) of the Crimes (Sentencing Procedure) Act 1999 had been established; he also found that special circumstances existed to warrant an order that would have the effect that the applicant’s detention would be served in a detention centre beyond his attaining the age of eighteen years.
Counsel who appeared for the applicant at the appeal acknowledged that he could point to no specific error of principle in the sentencing procedure or the remarks on sentence. He confined his argument to an attempt to establish the sentence was, in the circumstances, manifestly excessive. He submitted that the sentence indicated that inadequate weight was given to any or all of the following:
(i) the youth of the applicant at the time of the offence: see R v Pham and Ly (1991) 55 A Crim R 128; R v SDM [2001] NSWCCA 158; 52 NSWLR 530. He also placed reliance on the absence of any prior criminal history on what was said to be “the applicant’s demonstrated rehabilitation at the time of sentence”. In these circumstances, counsel argued, questions of punishment and general deterrence could and should yield to rehabilitation;
(ii) the applicant’s plea of guilty: the sentencing judge said that he was giving the applicant the “full utilitarian value of that plea”. Further, the Judge accepted the plea as demonstrating contrition and remorse. The “full utilitarian value” of the plea of guilty is, no doubt, a reference to the 25 per cent which is the top of the range promulgated in R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. If, indeed, it was the case that a 25 per cent discount had been applied, resulting in the sentence imposed, then the starting point of the sentence considered must have been eight years. I will return to this matter;
(iii)rehabilitation;
(iv) “the applicant’s subjective case including his motive in committing the offence.”
This last matter can, in my view, be disposed of with expedition. There is nothing in the motivation of the applicant as it emerged from the evidence that would justify any leniency at all. What is referred to as “the applicant’s subjective case” contained matters which assisted him, but others which did not. These latter included his persistence in perceiving the offence as justified.
I have come to the view the applicant has succeeded in establishing that two matters appear to have been given inadequate weight. The first of these was the applicant’s youth. He was sixteen years old at the time of the offence. When added to this is his prior clear record, the circumstances, in my opinion, show that greater weight deserved to be given to that circumstance. Secondly, the applicant’s exemplary conduct whilst in custody was indeed evidence of rehabilitation deserving of greater weight than it appears to have been given. The judge’s acceptance as genuine of the applicant’s letter expressing regret is also of significance. It is suggestive of some maturing of the applicant whilst in custody. Further, if the applicant was given a discount of 25% in recognition of his plea of guilty, then the starting point must have been a sentence of eight years. This, in relation to a sixteen year old of prior good character, would represent an extraordinarily heavy sentence.
For these reasons I have come to the view the sentence was shown to be outside the range legitimately available. Against the possibility of re-sentencing, this Court accepted additional evidence in the form of two affidavits sworn by the applicant’s solicitor and one sworn by his mother.
The affidavit sworn by the applicant’s solicitor did no more than annexe documents demonstrating the applicant’s continued application to his education, and update the evidence that was before the sentencing judge. In saying that I do not mean to minimise the effect of that evidence. It is encouraging.
The applicant’s mother in her affidavit deposed to an increased awareness in the applicant of the wrongfulness of his conduct and this too is of significance.
All this evidence is relevant to show that the process of rehabilitation which was well under way at the time of sentencing has continued. The applicant is, at re-sentencing, entitled to the benefit of the evidence of rehabilitation.
I would adopt the sentencing Judge’s findings of special circumstances, both in relation to section 44(2) of the Crimes (Sentencing Procedure) Act and also in relation to the circumstances in which he is to serve his term in custody.
I propose the following orders:
(i)leave to appeal is granted;
(ii)appeal allowed, sentence quashed;
(iii)in lieu thereof the applicant to be sentenced to imprisonment for a term of four years to commence on 21 February 2002 and expire on 20 February 2006 with a non-parole period of two years to commence on 21 February 2002 and expire on 20 February 2004. I would direct that the sentence be served in a detention centre.
WOOD CJ AT CL: I agree.
ADAMS J: I also agree.
WOOD CJ AT CL: The orders of the court will be as proposed.

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LAST UPDATED: 22/08/2003