R v Evans
[2003] VSCA 223
•19 December 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 227 of 2002
| THE QUEEN |
| v. |
| DWAYNE ANDREW EVANS |
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JUDGES: | ORMISTON, BATT and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 November 2003 | |
DATE OF JUDGMENT: | 19 December 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 223 | |
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CRIMINAL LAW – Sentence – Armed robbery – Intentionally causing serious injury – Possession of a drug of dependence – Manifest excess – Youth – Whether sentence was significantly outside the range available in the circumstances – Prospects of rehabilitation – Issue of parity with sentences in Children’s Court – Appropriateness of sentence imposed – Short gap between head sentence and non-parole period – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr J.P. Dickinson Mr J.J. Lavery | Victorian Aboriginal Legal Service |
ORMISTON, J.A.:
On this appeal I have had the benefit of reading the judgment to be delivered by Vincent, J.A. I agree that the appeal should be allowed and the appellant re-sentenced in the manner proposed by him. There is one matter on which I would differ from his Honour. Nevertheless, although the appellant’s offending was appalling and his prospects for rehabilitation negligible, the original sentence went outside the acceptable range, as counsel for the respondent fairly conceded.
The one matter upon which I would, with respect, disagree with Vincent, J.A. is the application of the rules of parity and disparity to the appellant’s sentence. I should emphasise, however, that the absence of that factor as a basis for re-sentencing the appellant would not alter my opinion that the sentence proposed for the appellant by Vincent, J.A. is the appropriate one.
As to parity, I have the gravest doubts as to whether that is applicable in the circumstances. Vincent, J.A. has referred to the authorities, such as they are, and in particular those which reflect a concern that an offender, just a few months beyond the age limit which would otherwise require him to be dealt with by the Children’s Court, might be seen to have been harshly dealt with because he receives a sentence appropriate for a person in the adult system, albeit that he is a “young offender” for the purposes of the Sentencing Act 1991. The particular problem, if so it can be described, in the present case is that the appellant is only seven months older than one of the co-accused Johnson who was sufficiently young still to be dealt with by the Children’s Court. There is obviously a huge disparity in the sentences if one ignores (1) the involvement in the offending in relation to those charges; (2) the character and past history of the two offenders; and (3) the nature of the two jurisdictions exercised in relation to the two offenders.
The case appeared to be argued before this Court on the basis that it was a mere matter of chance that the appellant had no longer the advantages which he could formerly claim (and which he had claimed successfully but unproductively in relation to 73 earlier offences) under the Children and Young Person’s Act 1989. As Vincent, J.A. has succinctly summarised them (see para.[44] of his judgment), the considerations applicable under that Act and the Sentencing Act “can and do lead to dispositions which would be regarded as entirely inappropriate in the case of older … individuals”.[1]
[1]See e.g. R. v. Neket (C.A. unreported, 28 May 1997) and R. v. Harris (No. 2) (1971) 2 S.A.S.R. 255 at 257 per Bray, C.J.
In my opinion, notwithstanding certain dicta and earlier decisions largely directed to the previous legislation, those considerations make any comparisons between sentences under the two regimes entirely unsatisfactory and inappropriate. Consistency in sentencing is no doubt, in general terms, a desirable aim, however difficult it is to achieve in practice having regard to the multifarious factors which must now be taken into account. One of the virtues, however, of the Children’s Court system is that that court can make special allowance for factors which would otherwise be irrelevant under the Sentencing Act. Consistency must work both ways and it would be entirely inappropriate that members of the Children’s Court should temper their sentences to reflect what had been done or might yet be done in sentencing offenders pursuant to the Sentencing Act. Apart from the effective limit of three years’ detention in a youth training centre, there is also the practical consideration that for the most part the evidence given in that court and more importantly the sentencing remarks are not published generally and certainly are not made available in the ordinary course of events to either trial judges or members of the Court of Appeal. One may wonder, therefore, to what extent any person might reasonably be perceived to have a legitimate ground of grievance if they are unable to know what the factual basis was for sentencing in the Children’s Court, what were the factors peculiar to the individual and what were the grounds upon which that court acted, assuming that they have been expressed in full.[2]
[2]See generally the useful discussion in Fox & Freiberg: Sentencing State and Federal Law in Victoria, 2nd ed., paras.11.506-11.509.
In my opinion objective observers, rather than perceiving the older offender as having a legitimate sense of grievance by reason of any difference in sentence, would fairly conclude that the younger offender was more fortunate and would remain more fortunate for relevant purposes until that offender turned 17, so that they should, again objectively, conclude that, in comparing sentences imposed by different courts with different responsibilities and powers, there could be no fair comparison made. If the older offender has any sense of grievance, and most offenders sentenced to appropriate penalties ordinarily have some grievance whatever be its legitimacy, then that offender’s sense of grievance should rather be directed to his or her misfortune at no longer being able to claim the special benefits of the Children’s Court regime. Almost inevitably there will be some difference in penalty and the difference will be invariably significant where serious offences are charged and there is no practical likelihood of the Children’s Court’s being able to impose what would otherwise have been appropriate penalties for offenders over the age of 17.
The present is such a case, for not only were there four counts of armed robbery but there was also one count of intentionally causing serious injury. So far as the offending was concerned, there was doubtless good reason to treat that as deserving condign punishment, having regard to the appellant’s participation in the offences and in particular his threatened use of a tomahawk, which one of his companions used to slice off the ear of one unfortunate victim. The Court does not know the factual basis upon which the younger offender was sentenced but, so far as is known to this Court and the sentencing judge, he remained in the car on each occasion. Of course his plea must be treated as admitting to at least aiding and abetting the violent offences perpetrated by his colleagues, but there may be some basis for thinking that, as the youngest of the group, his connection was technical and to a degree not as involved in the particular acts of violence, although his plea to the count of intentionally causing serious injury leaves one to have some doubts. The significant, indeed overwhelming, difference between the two offenders was, however, their comparative records. Whereas the appellant had previously been found guilty on 73 occasions at six Children’s Court appearances while he had been under the age of 17, the younger offender had a record merely of being found guilty of one charge of theft and one of using cannabis, for which he had been placed on a six month good behaviour bond. To my way of thinking it is more than apparent why the Children’s Court would have taken, consistent with its statutory duty, a benevolent view of the younger offender and given him as much chance for rehabilitation as was fairly possible. Again we have no reasons for the decision but it is not difficult to see why, notwithstanding the appalling offences committed by him, he was sentenced to be detained in a youth training centre for merely six months. What he would have received if he had a record even remotely resembling that of the appellant is quite a different matter, although, again, he could not in law have received a detention order for more than three years, at least on each count and subject to the special rules applicable to concurrence in the Children’s Court.
For these reasons I do not believe that any fair-minded observer could conclude that the appellant should properly have had a legitimate sense of grievance over the differing sentences he and the younger offender received. There is no basis in my opinion for making any allowance for that factor and so the judge in that respect did not err. Moreover, so far as this Court is concerned, then in the re-sentencing process, with due respect to the opinion of Vincent, J.A., I do not think it is a relevant factor. I have already said why the mere fact that the appellant was but a few months beyond the age limit of the Children’s Court should not have any bearing on the outcome, although his comparative youth was relevant. Logically, and I concede that in sentencing one must be very cautious about the application of logic in every case, the appellant might complain of want of parity even if he were sentenced to three or four years total effective sentence, for such a sentence would be six to eight times that handed out to his younger colleague “merely because [the appellant] was a few months beyond the jurisdiction of the Children’s Court”. It would be better, in my opinion, to scotch the idea that such comparisons can fairly be made, for it merely gives an impression to those sentenced, especially for serious offences, that they can call in aid the so-called principle of parity in circumstances where objectively there is no basis for proper comparison.
Nevertheless, as I originally observed, the sentences proposed by Vincent, J.A. in substitution for those imposed below are entirely appropriate in all the circumstances having regard to the grounds upon which the appellant can properly rely.
BATT, J.A.:
Subject to what follows, I agree with Vincent, J.A.
Whilst I would not presume to speak for the other members of the Court, it appears to me that the gap between their views on the question of “parity” is not as great as it might seem. Although I acknowledge the force of Ormiston, J.A.’s observation that consistency must work both ways, it is, to my mind, difficult when sentencing an offender who had just attained 17 years of age at the time of offending to disregard the sentence imposed in the Children’s Court for the same offending upon an offender with like antecedents who is, say, two months younger. Some – not great – regard is, it seems to me, to be had to the latter sentence and it may be that some moderation in sentence results. That is what I understand Vincent, J.A. to say in paragraph [49] of his reasons for judgment. For myself I would not elevate that process into an application of the principle of parity.
VINCENT, J.A.:
The appellant pleaded guilty in the County Court, on 6 September 2002, to four counts of armed robbery (counts 2, 3, 4 and 5), one count of intentionally causing serious injury to a person (count 6) and one count of possession of a drug of dependence (count 7).
He admitted 18 previous findings of guilt from three Children’s Court appearances between 14 September 1999 and 8 January 2001, and 55 previous convictions from three Children’s Court appearances between 4 December 2000 and
15 October 2001. The offences involved related to various forms of dishonesty, the use of motor vehicles and the possession and use of drugs.
After hearing a plea in mitigation of penalty, on 11 September 2002 the learned sentencing judge imposed the following sentences:
On count 2 - 7 years' imprisonment
On count 3 - 6 years' imprisonment
On count 4 - 4 years' imprisonment
On count 5 - 6 years' imprisonment
On count 6 - 6 years' imprisonment
On count 7 - convicted and fined the sum of $50.His Honour directed that one year of the sentence imposed on count 4 and one year of the sentence imposed on count 5 were to be served cumulatively upon each other and that imposed on count 2 thus creating a total effective sentence of nine years' imprisonment in respect of which a non-parole period of seven years was fixed.
Having been granted leave to do so, the appellant seeks to overturn the sentences imposed upon him on the following grounds:
“1.The learned sentencing judge erred in imposing manifestly excessive sentences on each of the counts on the presentment.
2.The learned sentencing judge erred in failing to apply the relevant principles of parity as between the sentences to be imposed upon the appellant and those imposed upon the co-accused, Johnson, which sentences were imposed in the Children’s Court.
3.The learned sentencing judge misdirected himself and erred in applying principles relevant to the youth and the prospects of rehabilitation of the appellant in that he failed to have any or sufficient regard to the appellant’s youth and his prospects of rehabilitation.
4.The learned sentencing judge erred in that he failed, in the circumstances of the appellant’s youth and prospects of rehabilitation, in imposing a minimum term to be served which was insufficiently distant from the head sentence.
5.The learned sentencing judge erred in finding that there was little if any evidence to show that the appellant had reasonable prospects of rehabilitation at least in the near future.
6.The learned sentencing judge erred in that he failed to give sufficient weight to the matters put in mitigation which were personal to the Appellant.”
The Background
The appellant was born on 17 November 1984 and was, at the time of the commission of these offences, aged 17 years. On the evening of 17 March 2002, he was present with four other young men, David Marks aged 22 years, Michael James McDonald aged 19 years, Robert Hall aged 16 years and Ashleigh William Johnson who was also aged 16 years, at the appellant’s home in St Albans. They decided to set out and commit some armed robberies, their plan being to drive around nearby shopping areas, wait near automatic teller machines and rob people immediately after they had withdrawn cash.
Marks, I should add at this point, had 31 previous convictions from six court appearances between 13 August 1997 and 26 November 2001. They related largely to offences of dishonesty that included burglary, theft and obtaining property by deception, but also involved the use and possession of drugs.
McDonald had 12 previous findings of guilt from three Children’s Court appearances between 23 March 1998 and 10 September 1999; and four previous convictions from four Magistrates’ Court appearances between 16 November 1999 and 21 May 2001. Again they related for the most part to offences of dishonesty.
Hall, who as I have mentioned was 16 years of age at the time, was born on 1 June 1985. He had no criminal history.
Johnson, the youngest of the group, was born on 3 April 1985. He had two previous findings of guilt arising from a single appearance before the Children’s Court in respect of which he had been placed on a six months’ good behaviour bond.
Shortly after midnight on that night the group set out in the appellant’s unregistered vehicle. Each was equipped with a tomahawk obtained from the appellant’s home. They attended various local teller machines and waited for approximately 15 minutes in the vicinity of each, but, as no prospective victims appeared, they continued to drive around.
Counts 2, 3 and 6
At about 1 a.m., the group was travelling along St Albans Road, St Albans when they saw their first victims, Darren Kelling and his sister Cindy Kelling, at a telephone box. Both were quite intoxicated and apparently on their way home from a family celebration when they were selected as targets. They must have appeared to the group to be extremely vulnerable. The appellant stopped his car next to the telephone box and members of the group alighted. Armed with their tomahawks, they approached the two young people whom they surrounded. They demanded money and threatened them with their weapons. Cindy Kelling handed over the $1 coin which she had been attempting to use in the telephone. This was the only cash that she had. Her brother managed to get out of the telephone box and began to walk backwards away from his assailants who followed him, swinging their tomahawks at him. They surrounded him and repeated their demands for money. He emptied his pockets and threw a total of $25 in cash onto the ground in front of McDonald who picked it up. One of the robbers shouted “He’s got a wallet in his back pocket”. This however, was not the case. McDonald then swung his tomahawk into the left side of Darren Kelling’s head, severely injuring his left ear. The group then left in the appellant’s car.
The shouting of the robbers and the screams of their victims during this incident attracted the attention of the occupants of a ground floor flat facing St Albans Road. When they looked out of a window, they recognized the appellant as one of the assailants. He was seen swinging his tomahawk and, to their observation, played a very active part in the offence.
Darren Kelling was taken to the Western Hospital where plastic surgery was performed on his ear. Although he suffered no loss of hearing, he has been left with permanent scarring and, at the time of sentencing, still experienced stinging sensations in cold weather.
Count 5
Shortly afterwards, the appellant and his companions saw a 72-year-old man named Dimitrios Misarvidis walking along up Alfrieda Street towards the intersection with Arthur Street, St Albans. Mr Misarvidis had found himself unable to sleep, being concerned about his wife who was in hospital for heart surgery. This victim had himself, only a little while before, suffered two strokes and had twice undergone heart surgery. It was his custom, when he wished to smoke a cigarette, to go for a walk as he was doing on this occasion. Given Mr Misarvidis’ appearance as an elderly man of relatively small stature, who was alone late at night, he also must have been perceived as a singularly vulnerable subject. The appellant brought his car to a stop a short distance from Mr Misarvidis and, with his companions, approached the unfortunate man. They surrounded Mr Misarvidis at a distance of 10 to 15 centimetres and, holding their tomahawks above his head, demanded money. Marks grabbed him by the testicles and squeezed them while the others turned out his pockets from which they removed his cigarettes, house keys, sunglasses and approximately $20 in small change. They then left. Fortunately, Mr Misarvidis appears to have suffered only relatively minor bruising to his hands as a consequence of the rough handling to which he was subjected. However it is apparent when regard is had to his medical history that this cowardly assault upon him may well have ended tragically.
Count 4
At about 2 a.m., Alma Malit was sitting in a car parked outside a computer shop in Sage Avenue, Kealba. She was reading a book while she waited for her boyfriend to emerge from a friend’s home. The appellant and his co-offenders drove past and observed her sitting there. The appellant stopped his vehicle next to that of this victim and again members of the group alighted armed with their tomahawks. McDonald went to the driver’s side door and struck the window with the head of his weapon. This did not break the glass. Ms Malit attempted to lock the vehicle, however McDonald was able to open the driver’s door. He leaned across her and grabbed her bag containing approximately $200 in cash and her mobile telephone which were on the front passenger seat. He also took her boyfriend’s wallet that held $90 in cash from the centre console and the keys from the car’s ignition lock. The group then left. Although this victim did not see any weapons, the offenders were armed as previously. Ms Malit was also undoubtedly selected as she was alone and vulnerable at the time.
Count 7
At about 9.10 a.m. the appellant and Ashleigh Johnston were arrested at the appellant’s home. In his vehicle the police found a tomahawk in the driver’s side-door pocket. There were three further tomahawks located in a wardrobe in the appellant’s bedroom. A bowl containing some cannabis L was also found in that bedroom.
The Aftermath
· The appellant was interviewed and admitted his part in these activities.
· Johnston made a statement in which he too made admissions.
· Hall, McDonald and Marks were arrested and charged at later dates.
· The fifth tomahawk employed was found at the time of Marks’ arrest on 29 March 2002. It had blood and hair clinging to it.
· Marks and McDonald were jointly presented with the appellant on 6 September 2002.
Marks pleaded guilty to counts 2, 3, 4, 5 and 6 and one count of theft (count 8) in respect of which he was sentenced to imprisonment for 6 months. In his case, an effective sentence of 8 years' imprisonment was imposed with a non-parole period of 6 years.
McDonald pleaded guilty to one count of recklessly endangering life (count 1), and to counts 2, 3, 4, 5 and 6. He was sentenced by his Honour to an effective sentence of 11 years' imprisonment with a non-parole period of 8 years.
Marks and McDonald were both subsequently refused leave to appeal against their sentences. Marks elected to have the matter considered by a court of three judges but later abandoned his application.
On 2 September 2002, Johnson pleaded guilty in the Children's Court to four charges of armed robbery, intentionally causing serious injury and was sentenced to be detained in a Youth Training Centre for 6 months.
On 9 December 2002, Hall pleaded guilty to two charges of armed robbery. The material before the Court does not indicate to which offences these charges related. He was, without conviction, placed on probation for 6 months.
The Appeal
There is, I consider, no need to dwell upon the separate grounds of appeal in this matter in view of concessions made on behalf of the Crown that there were three areas of concern with respect to the sentence “which if shared by the Court would necessitate the reopening of the sentencing discretion in any event.”
First, attention was drawn to the fact that the appellant was sentenced to imprisonment for seven years and six years respectively in relation to the counts of armed robbery upon and intentionally causing serious injury to Darren Kelling (counts 2 and 6). Bearing in mind that the injury encompassed by count 6 was occasioned in and as part of the circumstances of the robbery covered by count 2, the imposition of a sentence of seven years for that robbery must be viewed, the prosecution considered, as, at least, particularly heavy.
Second, it was pointed out that whilst, as this Court has stated on more than one occasion, there is no ratio which has been specified as generally applicable between the head sentence and the non-parole period to be fixed by a sentencing judge, the relatively small gap present here invites scrutiny in the case of a very young appellant in relation to whom, in accordance with well recognised principles, rehabilitation would ordinarily constitute a very significant sentencing consideration.[3]
[3]Consequent upon the reopening of the discretion regarding the non-parole period would be the reconsideration of the head sentence. See R. v. Pope (2000) 112 A.Crim.R. 588 at [27].
Third, in his sentencing remarks, his Honour made it clear that he did not take into account the disposition of the co-offender Johnson who appeared before the Children’s Court, in the determination of appropriate sentences for the appellant. Although there were substantial differences between their situation that would have justified the imposition of quite disparate sentences upon these two young men, and recognising that, although they were separated in age by only a few months, they were subjected to different sentencing regimes, his Honour nevertheless was required to have some regard to the sentences imposed upon Johnson in determining those to be handed down upon the appellant, the Crown submitted.
These concessions were, I consider, appropriately made and, in my view, the exercise of the sentencing discretion should be reopened in this case.
In view of the appellant’s age and other matters to which I will refer later the sentence imposed on the robbery counts, and particularly on count 2 which may involve an element of double sentencing, appear to me to be very heavy indeed. As counsel for the appellant argued in relation to count 2, it seems likely that his Honour either gave insufficient weight to the factors militating in favour of mitigation of penalty in this case or, have imposed in their absence, a sentence that was significantly outside the range available in the circumstances.
I also consider that there is force in the submission that the gap between the head sentence and the non-parole period fixed by his Honour appears to be remarkably short in the circumstances and in relation to a young offender who was to be incarcerated for the first time and for a lengthy period in an adult prison. His Honour provided no explanation for the adoption of this course and little indication of the possible reasoning processes which may have led to this result. I suspect that he was heavily influenced by his pessimism concerning the appellant’s prospects of rehabilitation. However, in the absence of any explanation of the basis upon which he acted, it appears to me that the intervention of this Court is required.[4]
[4]See R. v. Pope (2000) 112 A.Crim.R. 588 per Callaway, J.A. at [27].
The issue of parity, which is the third matter raised by the Crown, presents somewhat more difficult questions in a case where two co-offenders who were only a few months different in age from the appellant have been subject to a quite different sentencing regime and outcomes.
The Court of Criminal Appeal in Andrews[5] stated:
“Children’s Courts are given special powers … and may be regarded as having special responsibilities. Because of these, a comparison between sentences imposed in those Courts and sentences imposed or to be imposed in the County Court or in this Court will not always be a relevant consideration. However, in a case where joint offenders form a group all of about the same age, but where some are under seventeen and some over, it must be accepted that a feeling of injustice will arise if those under seventeen are dealt with upon one basis by the Children’s Court and those over seventeen on an entirely different basis by the County Court or by this Court.”[6]
Whilst this may well be justifiably the situation in some situations, there are a number of statements which make clear that the parity principle can have only limited application, in the case of an adult offender where a younger co-offender has been dealt with according to different principles and practices. In Wilson[7], Lush, J. stated:
“The age difference between the two men is a little over five years. The sentence which was received by Economidis came as a result of the provisions of the Children’s Court Act. … Economidis’ sentence emerges then as a result of special processes set up in the handling of charges against persons under seventeen. The result of the application of that process cannot exercise any large influence in the fixing of an appropriate sentence by this Court or the County Court for a man aged twenty-two.”[8]
[5]Unreported, Court of Criminal Appeal, 10 December 1979.
[6]See also R. v. Mapolar unreported, Court of Criminal Appeal, 28 May 1993 and R. v. Kraja unreported Court of Criminal Appeal 7 March 1984.
[7]Unreported, Court of Criminal Appeal, 28 February 1983.
[8]See also R. v. Angus unreported, Court of Criminal Appeal, 1 February 1996, where these passages were cited and applied.
Winneke, P. in Neket[9] also considered this issue:
“It is true that the sentence imposed upon the female co-accused seems to pale into insignificance alongside the sentence given to the applicant, but it must be remembered that she was dealt with pursuant to a quite different sentencing regime and in circumstances which make it inappropriate to apply the principles of sentencing parity discussed by the High Court in Lowe v. The Queen and by this Court in R. v. Taudevin, particularly at p.404, per Callaway, J.A. I refer also to the decision of this Court in R. v. Angus, where the Court explained why the so-called parity principle must be qualified in circumstances where co-offenders are sentenced pursuant to different regimes in which quite different sentencing principles apply.”[10] (Citations omitted.)
[9]Unreported, Court of Criminal Appeal, 28 May 1997.
[10]At pp.6-7.
I observe that in neither of these passages is it suggested that no regard whatever is to be had to the sentence imposed on the younger offender in such situations.
An elaborate system has been developed to deal with the problem of offending by children and young persons in our community, with a separate court, separate detention facilities, supervision systems and so forth. Whilst broadly speaking, normal sentencing principles can be said to remain applicable when dealing with youthful offenders, as a matter of law and practice it is recognised that the respective weight to be given to relevant factors will vary. In addition the Children and Young Persons Act 1989 (Vic.) sets out a number of matters to which a sentence in the Children’s Court[11] must have regard and which differ in kind and emphasis from roughly similar provisions in the Sentencing Act 1991 (Vic.)[12]. Underlying this system is the attribution of considerable significance to the generally accepted immaturity of the young people who appear before the Children’s Court and the need, in the interests of the community and the young persons concerned, to endeavour to divert them from engagement in anti-social conduct at that early stage of their lives.[13] These considerations can and do lead to dispositions which would be regarded as entirely inappropriate in the case of older and presumably more mature individuals.
[11]See s.139.
[12]See s.5. There is a useful discussion on the sentencingof young offenders which points out the differences in approach in Sentencing – Fox and Freiberg 2nd ed. Ch. 11.
[13]See R. v. Homer (1976) 13 S.A.S.R. 377.
It is against this background that the various statements of this Court and its predecessor have been made. They rest upon the recognition of the importance and extent of the differences in the principles and practices of the separate systems and, to some extent, on the inability to make valid comparisons between the dispositions ordered in the cases of co-offenders who have been dealt with under such different regimes.
The making of comparisons in order to achieve parity of treatment which may require some disparity in outcome between co-offenders is frequently an extremely difficult task to perform where offenders have been sentenced in the same court and by the same judge. Individuals regularly seek to rely upon quite different factors to differentiate themselves favourably from their confederates in terms of their respective levels of culpability, roles in the offences and prospects of rehabilitation. The task can be considerably more difficult where the sentences have been imposed by different judges on the bases of different information, to the extent that sometimes the exercise may be virtually impossible to perform in the case of adult offenders as no relevant basis for comparison can be seen to be present.
In the present case, not only was Johnson dealt with under a different regime but it is not even possible to ascertain upon what factual foundation his sentence rested. In any event, there were a number of bases upon which his situation could be distinguished from that of the appellant. In his statement he claimed that, although he agreed to go with the others, he remained in the car when each of the offences was committed. He said that he did so because he was scared. There is a distinct possibility that he was sentenced on that foundation. As earlier mentioned, he was the second youngest of the group and he had a significantly less serious criminal history than any of his older companions. The inference can, I think, be reasonably drawn that these features did not escape the attention of the magistrate who sentenced him. Hall who had not previously appeared before a court was, as earlier indicated, not only the youngest of the group, but charged with only two of the offences committed on that night. He was clearly entitled to a significantly more lenient disposition.
Bray, C.J. in delivering the judgment of the Court in R. v. Harris (No. 2)[14] made the further point that the argument for the application of the principle of parity in such circumstances:
“… amounts to this, that if a man commits a crime in conjunction with a juvenile he ought to be more leniently treated than if he had committed the crime alone or in the company of an adult, because the juvenile will necessarily receive special treatment. We think that proposition bears its own refutation on the face of it.”
[14][1971] 2 S.A.S.R. 255.
Nevertheless, allowing for these obvious differences and the limited bases for comparison as well as the known distinctions which can properly be made between Hall, Johnson and the appellant, as in Andrews, the disparity between their respective sentences appears stark. Had the appellant been only a few months younger, he almost certainly would have been dealt with in the Children’s Court and subject to the handing down of a maximum sentence of 3 years’ detention in a Youth Training Centre, that is, a possible period of incarceration of one-third of that actually imposed and which he would have served in significantly less onerous circumstances. It seems to me that in a situation of this kind, rather than attempting to make a comparison between the dispositions of these two offenders, as we have been urged to do, the focus of the enquiry must be placed upon the appropriateness of the sentence imposed on the appellant. Clearly many of the considerations which have resulted in the development of a separate juvenile justice system, and the balances of principle upon which it operates, may possess as much relevance six months, or, for that matter one day, after an offender attains 17 years as they did on the day before he reached that age. This, I believe, is well recognised and underpins the general approach of the courts to the sentencing of young persons, often leading to the moderation of sentences and the fixing of significantly lower non-parole periods than would be the case where a more mature individual was before the Court.
Turning then to the appellant’s personal circumstances, he is of aboriginal heritage and the second eldest of his mother’s four children. All were fathered by individual partners, none of whom had ongoing involvement in their lives. In a report prepared for the Youth Parole Board Meeting of 3 December 2001, officers of the Department of Human Services stated:
“Observations of the family unit indicated that it was a chaotic household, lacking formalised structures and defined roles. While all children received the basic necessities of life little apparent order existed. All relationships exhibited quantifiable strain, which often resulted in physical and verbal confrontations. Clearly lacking the ability to provide appropriate supervision and guidance, Dwayne’s mother and stepfather largely ignored the conflicts of the children, which they equated to their individual traits and inherent anger. Enduring their own relationship difficulties, it appears as though an inability to cope with the daily demands of raising several children, all of whom exhibited antisocial tendencies, effectively meant that the family was a unit in only the simplest of classifications.”
It was also stated, and accepted by the sentencing judge, that the appellant had been sexually abused as a child. The report indicates that he was abducted in 1996, but no detail is provided. The appellant is poorly educated, possesses few employment skills, has been diagnosed with attention deficit disorder and assessed as emotionally undeveloped. He has, perhaps unsurprisingly, engaged in excessive alcohol consumption, developed an addiction to drugs, and engaged in serious anti-social behaviour.
His Honour expressed grave doubts concerning the appellant’s prospects of rehabilitation, and viewed against a history of physical, emotional and educational deprivation, his criminal history and abuse of drugs, it is not difficult to understand how he reached this assessment. Yet the appellant is still very young and, in the view of the youth workers who provided reports, not necessarily beyond reach. Testing conducted by Elizabeth Warren, a forensic psychologist, indicated that he was, at least, within the average classification of formal intelligence and may well possess a capacity for substantially higher functioning.
The conduct in which the appellant engaged clearly warranted the imposition of a substantial custodial sentence. He actively participated in three separate attacks on particularly vulnerable victims for the purpose of robbing them. He supplied the vehicle and the weapons used. In the first of those attacks one of the victims suffered a quite serious injury. In view of his level of involvement in the commission of the various offences and a criminal history which involved two periods of youth training centre detention, a further such disposition would have been quite inappropriate. It does not follow however that sentences of the length imposed were called for in the case of this young offender. They fall, in my view, outside the range available to the sentencing judge in the circumstances. Further, as I have earlier indicated, the absence of any explanation in his Honour’s sentencing remarks for the very substantial proportion of the effective sentence which he directed that the appellant must serve before becoming eligible for parole necessitates, in the circumstances, not only the reconsideration of that period but also the head sentences to which it relates.
I would allow this appeal in part and set aside the sentences imposed in the court below. In lieu thereof I would substitute the following:
On each of counts 2, 3, 4, 5 and 6 – 4 years’ imprisonment.
I would direct that nine months of the sentence imposed on each of counts 3, 4, 5 and 6 be served cumulatively upon each other and upon the sentence imposed on count 2. This would create a total effective sentence of 7 years’ imprisonment in respect of which I would fix a non-parole period of 3 years and 6 months. I would confirm the sentence imposed in the Court below on count 7.
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