R v J L C-H

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v J L C-H [2004] NSWCCA 70

FILE NUMBER(S):
60305/03

HEARING DATE(S): 18 December 2003

JUDGMENT DATE: 22/03/2004

PARTIES:
J L C-H (Applicant)
Regina (Respondent/Crown)

JUDGMENT OF: Santow JA Hulme J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/71/0003

LOWER COURT JUDICIAL OFFICER: Bell DCJ

COUNSEL:
P Strickland (Applicant)
D Howard (Respondent/Crown)

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

CATCHWORDS:
SENTENCE - Application for leave to appeal against the severity of the sentence - whether sufficient weight given to applicant's youth - whether too much emphasis on general deterrence.

LEGISLATION CITED:
Crimes Act 1900, s61J
Criminal Appeal Act 1912 s6(3)

DECISION:
1. That leave to appeal against the severity of sentence be granted
2. After the applicant has had the opportunity to file any further evidence relied upon and the Crown to respond, there is to be a further hearing, limited to sentence only.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60305/03
SANTOW JA
HULME J
HIDDEN J
22 MARCH 2004

REGINA v J L C-H

Judgment

SANTOW JA:
INTRODUCTION
This is an application for leave to appeal against the severity of the sentence by a Notice of Appeal dated 8 August 2003 following a Notice of Intention to Appeal having been filed on 24 March 2003. I have had the advantage of reading the observations of Hulme J and agree generally with them.
It was accepted that material from the applicant going to the appropriate sentence, if leave to appeal were granted, would need to be provided in admissible form and that in any event the Crown would want then to be in a position to test that material. The parties would therefore agree a timetable in that regard such to come into play in the event only that leave were granted. For reasons developed below I consider that leave should be given. This is however still to leave the question of re-sentencing to be separately considered, recognising that the further evidence and its testing may ultimately lead this Court either to leave the original sentence undisturbed or substitute a lower sentence.
There are essentially two grounds advanced for the granting of leave to appeal. The first is that the sentencing judge failed to give sufficient weight to the applicant’s youth and placed too much weight on general deterrence. The second is that the sentence was manifestly excessive.
The essential facts are that the applicant pleaded guilty at the Cootamundra District Court on 26 December 2003 to one count of aggravated sexual intercourse without consent, the aggravating factor being the infliction of actual bodily harm on the victim, and asked the court to take into account two further charges of sexual intercourse without consent arising from the same incident. He had previously pleaded guilty in the Local Court on 17 December 2002 and had been committed for sentence.
The maximum penalty for the offence is 20 years imprisonment; Crimes Act 1900, s61J. He was sentenced on 26 February 2003 by Bell DCJ, taking into account the two matters on the Form 1. He was sentenced to 10 years imprisonment with a non-parole period of seven years, to date from 17 December 2002. The sentencing judge directed that the applicant was to remain in a children’s detention centre until attaining the age of 21 years. He was aged almost 18 years and 2 months at the time of sentencing. At the time of the offence he was 16 years 9 months of age.
The applicant’s plea of guilty was accepted as occurring at the earliest possible time. It can be inferred that as the full 25 per cent reduction to sentence was allowed, the sentencing judge must have concluded that a head sentence subject to that reduction that was appropriate in the circumstances should be 13 years 4 months. The end result was a sentence of 10 years imprisonment with a non-parole period of 7 years.
As I explained at the conclusion of the hearing, certain affidavit material concerning the applicant’s post-sentencing progress in prison was not admitted but by agreement replaced by admissible material to be filed subsequently under a timetable then laid down. We have concluded that we should first consider without that material whether leave to appeal would be granted against sentence. Only if such leave is given, would the actual sentence then need to be considered in light of that further material.
FACTUAL BACKGROUND
The sentencing proceeded on the basis of a Statement of Agreed Facts which the sentencing judge distilled in his remarks on sentencing; CB, 28 and following. What follows is a recital of the salient facts. It is taken largely from their summation by the respondent, supplemented where necessary.
The offence occurred in a shed in Young on 26 October 2001. The applicant was 16 years 9 months. The adult victim had been having consensual sex with the applicant and one other man. All three had been smoking marijuana and drinking bourbon and coke. However, whilst the accused was having sexual intercourse with the victim, he tried to insert his penis into her anus and she objected to this. The victim started to feel pain in her vaginal and anal area asked the accused to stop. Both the accused and the other men did stop at that time. Then the other man left, but returned to the shed to find the victim and the accused had resumed penile/vaginal sexual intercourse; this was consensual. However, the victim asked the other man to tell the accused to stop and again he did.
She then got dressed and left the room where the sex had been taking place. She went into the toilet. The applicant pursued the victim from the bedroom. He opened the closed toilet door and threw her onto the ground, wedging her head between the wall and toilet. She told him, “Don’t do this” but he inserted his penis into her vagina, then his fist. Whilst this was occurring she bit the accused on the penis. He threw her on her stomach and inserted his penis into her anus. She was “bleeding profusely and experiencing extreme pain to the anal/vaginal area”. He covered her mouth to prevent her pleading for him to stop and continued to anally penetrate her. When he finally desisted she could only walk and crawl to an aunt’s house for help.
The victim suffered bruising to her back, hips, shoulders, legs, knees, pelvis and arms, abrasions to her elbows and hips, soreness to the left side of her jaw, a loose tooth, lacerations to the anal area requiring suturing and a significant vaginal to perineum anal tear, comparable to a third degree tear after childbirth. She required intravenous morphine and surgery to repair the tear.
The victim described in her police statement signed on 29 October 2001 how the applicant made comments during the assault such as “You fuckin deserve it” (para 13) and “You asked for this” (para 14). She described the pain as “way worse” than when she gave birth (para 14). When she bit him on the penis to try to make him desist, “It just made him go harder and it hurt more and more” (para 14).
Dr Brown stated in his certificate dated 22 November 2001 that when the victim presented at Young District Hospital in the early hours of 27 October 2001, there was considerable blood staining on her T-shirt and trousers and dry blood on the lower part of her back and buttocks. There was slight swelling over her eyes (para 8). There was blood over the vulva, the labia majora and labia minora were swollen and distorted on one side, the labia was torn and this tear extended to the perineum. The anus and perineum were covered in blood. Internal examination of the vagina and rectum were impossible (para 9). Two days later she could only open her jaw 2½cm (para 23). Her perineal injuries were “severe” and “not compatible with normal vaginal intercourse (para 24).
Dr Larcombe stated in her certificate of 22 November 2001 that the victim’s injury was “significant” and “In nine years of obstetrics this injury was more extensive than any tear I have witnessed from childbirth” (paras 9-10).
A psychological report by Ms J Cohen dated 20 January 2003 tendered as a Victim Impact Statement stated that the victim experienced nightmares and flashbacks to the event, she reported to be significantly more anxious since the sexual assault and had become significantly restricted and avoidant in her lifestyle choices. She experienced chronic back pain. Her symptoms satisfied the criteria for posttraumatic stress disorder.
The applicant’s subjective features
The applicant had prior convictions for driving offences and contravening an apprehended domestic violence order. He received a twelve-month bond to be of good behaviour from the Worimi Children’s Court on 26 September 2001 for malicious damage and was directed to undertake alcohol and drug counselling and anger management. The applicant was in breach of this good behaviour bond when he committed the present offence.
A Department of Juvenile Justice report by Mr M Gilmore and Ms B Egan dated 24 February 2003 was tendered at sentencing and described the applicant as being generally compliant and well behaved in custody. That report was in evidence before us. However further updated material in the form of a “psychological report“ by a youth-worker, Danielle Castles, of the applicant’s progress and level of rehabilitation in prison was not admitted until prepared in revised form. This material is before us only in regard to sentence, if leave to appeal were granted, as also an affidavit with Pastor Martin Parish’s report of 15 December 2003 attesting to the applicant’s remorse and progress in rehabilitation. There is also an affidavit of the applicant attesting to his significant progress in various courses including HSC and as to various family and related matters about which he was concerned.
The applicant, according to the Juvenile Justice Report, was on the “Green Level”, that is the best behaviour award in the custodial centre. His behaviour in school was reported to be “excellent”. He had touched a female staff member inappropriately, but had ceased this behaviour when told to do so. He had no recollection of the incident, due he said to the “extreme” intoxication on the night from alcohol and “illegal drugs including marijuana and amphetamines”; CB 75.
The applicant and his mother had been subjected to years of repeated violence from her husband (his stepfather). He was assaulted on numerous occasions between 1996 and 1999 (CB, 76). His home background could only be described as appalling and he clearly lacked any proper male figure. The report (CB, 78) describes his childhood in these terms:
“Since 1998 to the present Jay has been unemployed and engaging in delinquent activities ranging from crime, illegal drug and alcohol abuse, marijuana use and associating with delinquent peers in Young and outlying areas. The above behaviours appear to suggest that Jay has been living a delinquent lifestyle for approximately five years with no positive direction in his life. It also appears that Jay’s anger management skills and problem solving abilities are below that of his peer age.
Jay’s primary caregivers throughout his childhood years have been his mother, his mother’s parents and to a lesser extent his stepfather Julian Hodge. It appears that Jay has been raised in a dysfunctional and violent family environment and has experienced significant traumatic events consisting of physical, emotional and psychological abuse throughout his formative childhood years. Jay reported that he resided with his grandparents on a spasmodic basis in Harden between the ages of four to nine years.”
The applicant was born in 1985 and had had only minimal contact with his biological father since discovering his identity in 2001 when he was aged 16. He discovered from his father that he has many half-siblings, aged older and younger than himself. This caused him shock and confusion. His contact with them has been limited as well. In 1999 he had a sexual relationship when aged 15 with a woman aged 30 and had fathered a daughter, who was three years old at the time of sentencing. He was having weekly contact with her prior to his incarceration. He had a good relationship with his mother. He had been taking prescribed medication for attention deficit hyperactivity disorder for approximately six years. He was expelled half way through Year 7 for a violent physical assault on the principal. He had been unemployed since 1998. It appeared that he had been living a “delinquent” lifestyle for the previous five years.
He demonstrated some capacity to feel empathy for the victim and some insight into the impact of his offending behaviour on the victim (CB, 82). He was prepared to engage in a Sex Offender Programme, a demanding programme, and wanted to attend counselling to address his drug and alcohol abuse and anger management issues (CB, 82).
Disposition of leave to appeal
I turn now to the two grounds relied upon by the applicant. The first is that the sentencing judge failed to give sufficient weight to the applicant’s youth and placed too much emphasis on general deterrence.
Before imposing a 10 year sentence with the 7 year non-parole period (the 10 year sentence being after deduction of 25 per cent for the plea of guilty) the sentencing judge made these observations:
It is also clear that as a young person that is a matter to be taken into account, but, as the Crown has referred the Court, it is said in the judgment of the Court in the decisions of R v AEM (Snr) (et cetera) at paragraph 97:
“It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation. See R v Dar unreported NSWCCA 2 October 1997; R v Mazzilli [2001] NSWCA 117. However important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society.”
The quotation then goes on to cite the judgment of Lee AJ in Nichols [1991] 57 A Crim R 391 at 395, which in effect says the seriousness of the crime requires that the principle of consideration of youth must give way in the public interest.
Mr Thorley has made a very earnest plea that the sentence for the young person should see the end of his incarceration with his twenty-first birthday. That would constitute a period of approximately four years. I am unable to accede to that submission. The seriousness of the assault upon the victim does not in any way, in my assessment of the matter, entitle the young person to such a short non-parole period under the new legislation …”
The statement by Lee AJ in Nichols [1991] 57 A Crim R 391 at 395 is not quoted verbatim by Bell DCJ nor in full. It is important that I quote the actual passage from Lee AJ’s judgment along with remarks so this can be compared to the sentencing judge’s paraphrase:
“On the other hand it needs to be remembered that in accordance with the decision of Regina v Dodd CCA unreported 4.3.91 there must always be a reasonable proportion between the objective seriousness of the crime and the sentence imposed. In serious crime, the Court must show its denunciation of the crime committed. The moral outrage of the community must be taken into account. This is a case in which those factors need to be considered. True it is however that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided. The most recent observations in regard to the sentencing of young offenders was a case of Regina v GDP Court of Criminal Appeal, 27 April 1991. However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must be in the public interest, give way.” [emphasis added]
It is important to appreciate that what is said in Nichols is not simply and without more that “the seriousness of the crime requires that the principle of consideration of youth must give way in the public interest”. Rather one needs to identify the point “at which the seriousness of the crime committed by [a young man] is of such a nature, is so great, that that principle [the consistently pointed out need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided] must, in the public interest, give way.”
The vice in the paraphrase employed by the sentencing judge is that he has, with respect, assumed that it is sufficient to point to a serious crime for the principle to be automatically overridden that one gives special consideration to young offenders and their rehabilitation.
The principle of giving special consideration to the youth of an offender has been long accepted in a number of cases. Thus in such C, S and T (NSWCCA, 12 October 1989, unreported) Gleeson CJ accepted a submission that “in sentencing young people … the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.”
R v AEM [2002] NSWCCA 58, in the passage from the joint judgment of Beazley JA, Wood CJ at CL and Sully J at [97] there is at the outset a reaffirmation of that principle, described as important. But that principle “cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society”. Sully J then cites the same passage from Nichols earlier quoted as well as a similar passage in Pham (1991) 55 A Crim R 128 where Lee CJ at CL said at 135:
“It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes…”
Those observations are the guiding principles to be adopted in the present case. Turning to its circumstances, it cannot be doubted that the present case warrants the description of a “serious” offence. The circumstances of violence, the injury suffered in the carrying out of the sexual attack and the injuries suffered as a result clearly point to the offence being a serious one. However, also to be weighed are the factors that preceded, which go to the degree of seriousness of the crime. Immaturity of the offender insofar as relevant, is not in any way to be discounted by the fact that the offender had fathered a child at the age of 15, this indeed pointing rather to the immaturity of the offender. There is also the fact that the rape was preceded by consensual sex though that is not to in any way excuse the appalling violence which accompanied the non-consensual rape that occurred subsequently.
Then there are subjective factors of a terrible home background and domestic violence of a continuing nature which clearly marked this immature young man, still only 16 years 9 months at the time of these offences. That immaturity is an important aspect of this case. In Hearne [2001] 124 A Crim R at para 22 ff, this Court considered the sentencing of young offenders and, in particular, what might be described as the tension between the desirability of rehabilitating the offender with the need to recognise the criminality of an offender who has committed a particularly serious crime. Addressing the principle involved, the Court said (at para 25):
“It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.”

In R v AEM itself, the offences were at the extremity of serious. There were not one but two victims each of whom were subjected to a series of sexual assaults over a four hour period of the most degrading kind by the three offenders who subjected the victims to physical violence and numerous death threats. Understandably the offences justified the Crown submission that they were at the upper end of the scale of severity.
In Nichols, there were multiple offences involving vandalism, theft, robbery with striking, armed robbery, threat to inflict grievous bodily harm with a knife with intend to have sexual intercourse and sexual intercourse without consent. The woman concerned was held for 2½ hours and was subjected to many depraved sexual acts and threats of violence to her and her son. The respondent was 17 years old at the date of the earliest offences and 19 years old at the date of the later offences. Again, the offences were multiple and at the upper end of the scale of severity.
The sentencing judge himself stated that: “I hesitate myself to classify this as within the worst case concept, but it is certainly in the very serious category”. After noting the submission on behalf of the defence, that this was a spontaneous incident following hours of consensual sexual and drunken activity and that “it was not a premeditated incident” he said this:
“It is clear that this was not a case of the young person and another male adult picking the female up off the street and pre-emptorally raping her. On the other hand, having engaged in a degree of consensual sexual activity, the victim did retire from the scene and was then pursued by the young person. That, I think, is a correct analysis of how the events developed.”
In such a context, the sentencing judge in the present case understandably dismissed any notion of a sentence of 4 years coincident with the period until the applicant would have reached his 21st birthday in a juvenile detention centre.
To sum up. The sentencing judge did not consider the degree of seriousness of the offence (beyond gauging it as being less than an offence of the gravest kind) for the purpose of determining whether deterrence and retribution should override the important principle of rehabilitation in sentencing young people. That does amount to error in the exercise of the sentencing discretion. In so concluding, I consider, consistently with what the trial judge did say, that this case, though serious, is recognisably outside the worst category; compare Veen v the Queen[No. 2] [1988] 164 CLR 465 at 477-8. I also note that there is some evidence, but importantly requiring further elaboration and testing, supportive of the rehabilitation prospects of the offender.
Should however the sentence be disturbed?
This is a question not now to be answered. It depends on further admissible evidence and its testing, assessed by reference to the well-settled principles set out below. That leave to appeal against sentence is granted does not necessarily mean that the sentence passed was manifestly excessive. That remains to be considered at a later stage.
Thus it will not be sufficient for the applicant to establish error before this Court would quash the subject sentence and impose a lesser one. It is necessary that this Court be satisfied that “some other sentence … is warranted in law and should have been passed”; see subs6(3) of the Criminal Appeal Act 1912; R v Simpson [2000] NSWCCA 534; (2001) 53 NSWLR 704 at [79] and [99-100].
This constraint is important. It is however conceptually distinct from the constraint upon substituting a lower sentence, where error is otherwise absent, on the ground solely that the sentence is manifestly excessive. That represents a higher threshold, not applicable here, before an appellate review would substitute a lower sentence or shorten the non-parole period.
Here, this Court does need to be satisfied in terms of s6(3) of the Criminal Appeal Act 1912, so that this Court “must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court but that some other sentence is ‘warranted in law’ ”, per Sully J in Simpson (supra) at [100].
ORDERS
I propose orders as follows:
1.That leave to appeal against the severity of sentence be granted.
2.After the applicant has had the opportunity to file any further evidence relied upon and the Crown to respond, there is to be a further hearing, limited to sentence only.
HULME J. The facts in this matter are set out in the reasons for judgment of Santow JA which I have had the advantage of reading. Accordingly, I can be relatively brief.
The offences committed by the Applicant were appalling. The sentence imposed, of 10 years imprisonment, including a non-parole period of 3 years after the allowance to which the sentencing judge referred of 25% for the Applicant’s plea, indicates that Judge Bell’s starting point must have been 13 years and 4 months or thereabouts. That is a high proportion of the statutory maximum laid down for his offence but once one has regard to the gravity of the offence and of the other offences committed at the same time and included on a Form 1 the sentence was, subject to the question of whether sufficient allowance was made on account of the Applicant’s youth, well within the range of his Honour’s sentencing discretion. Subject to that qualification, it was certainly not manifestly excessive.
To the significance of youth in the sentencing process I now turn. There are a number of points which should be made.
Youth does not supplant or make irrelevant any of the 5 principal purposes of punishment – general deterrence, deterrence of the offender, retribution, rehabilitation and protection of the community – see Veen v R (No 2) (1987-1988) 164 CLR 465 at 476. Rather does youth or its incidents bear on the weight to be given to one or more these various factors in the particular case. As was made clear in R v Hearne [2001] NSWCCA 37 at [25], where the immaturity of youth “is a significant contributing factor to an offence, then it may fairly be said that the criminality is less than it would be in the case of an adult of more mature years”. Demonstrably, in such a situation the weight to be given to retribution must be less. Commonly so should be the weight given to specific deterrence; other things being equal, the young tend to be more malleable and there would be some prospect that increasing maturity would itself lead to some moderation in criminality.
To these remarks I may add those of Gleeson CJ in C, S and T (Unreported, CCA, 12 October 1989) that “in sentencing young people … the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed”.
But equally there are times when the weight to be given to youth and its incidents may be overborne by other factors. Thus it was that Lee CJ at CL said in Pham (1991) 55 A Crim R 128 at 135:
"It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes …"
It is also a case of looking to see to what extent youth was a significant factor in the offending. Thus in R v Hearne at [27-28] the Court, after pointing out that the younger the offender, the greater the weight to be given to youth, went on to consider how youth may have impacted on various aspects of the offender’s conduct. In R v AEM [2002] NSWCCA 58 at [172] looked to the offender’s individual circumstances to see whether his youth played any role in diminishing his criminality.
R v Hearne was a case of murder. R v AEM was a case where a group of offenders had participated in multiple rapes of 2 girls over a period of some 4 hours during which time the girls were threatened at knifepoint and in other respects. Both were thus cases of very serious offending. The fact that in each case the Court looked to see the significance of youth to the offending demonstrates that it is not a case of disregarding youth in the case of serious or very serious offences but rather, of assessing its weight.
When Lee AJ said in Nichols (1991) 57 A Crim R 391 at 395 that:-
"True it is … that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided … However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must, in the public interest, give way."
his Honour was not suggesting that as soon as the principle of refraining from sending young offenders to gaol or dealing heavily with them gave way, their youth became irrelevant. All his Honour was saying was that, despite youth, there would be times when gaol or heavy punishment was required.
Furthermore, while I do not deny that an offender’s youth may have nothing to do with the commission of an offence, the mere seriousness of an offence is not an appropriate test for that. On the other hand, the seriousness of the offence is likely to be the principle determining factor in any conclusion that the interests of rehabilitation are overshadowed by other of the sentencing considerations.

The remarks of Bell DCJ where his Honour dealt with the significance of the Applicant’s youth are set out in the reasons of Santow JA and I need not repeat them. I agree with his Honour that, judged by those remarks, Bell DCJ erred in his approach to the topic of that youth.
What conclusions should one reach as to the significance, if any, of the Applicant’s youth to his offending? In addressing this question, there seem to me to be 3 principal considerations to bear in mind. The first is that at the time of the offence, 26 October 2001 he was a little more than 2 months shy of his 17th birthday. That degree of youth suggests that, at such a young age, immaturity of judgment in his indulgence of alcohol and drugs on the night or in his reaction to events was or may have been a factor which contributed to his offending.
The second is the nature of his offending and the extent to which it involved departure from the norms of civilised conduct, norms of which the Applicant must have been aware. Although he was expelled from 2 schools in years 7 and 8, he had had 6 years of public schooling which must have involved interplay with others and thus the recognition that others had legitimate interests and rights (although I do not suggest he would have put it in those terms). He had had a prior sexual relationship which apparently lasted for some time and his mother told the author of the pre-sentence report that appropriate sexual boundaries in the family home were always clearly defined. In R v AEM this Court took the view that youth played no role in the offending of an almost 19½ year old who held a knife to the throat of girl and gave her a choice of consenting to intercourse or being killed. The same approach presents itself for consideration in this case. Certainly, the extent of the imposition of the Applicant’s will and of his abuse of the legitimate rights of another person - imposition and abuse which even children are taught not to indulge in - argues against more than limited weight being given to youth and immaturity.
And in this regard it must not be forgotten that the Applicant has been before the courts for offences of violence. In 1997 he faced 3 counts of maliciously injuring other persons. The charges were dismissed but he was cautioned. In August 2001, he was sentenced to the rising of the court for breach of a domestic violence order – which must previously have been imposed for breaching the rights of others. Thus he could not have been ignorant of the rights of others and of the community’s and the law’s disapproval of interference with such rights.
The third is the Applicant’s upbringing. This is summarised in the Pre-sentence report in these terms
“It appears that (the offender) has been raised in a dysfunctional and violent family environment and has experienced significant traumatic events consisting of physical, emotional and psychological abuse throughout his formative childhood years.”
Although his Honour did not expressly say that he accepted these statements my impression from his remarks is that he generally accepted what the author of the report had to say. Indeed reference to the transcript of the proceedings before his Honour makes it clear that the Crown made no challenge to them.
Such an upbringing can only add weight to the view that the Applicant’s youth contributed to his offending. If in a person’s formative years, violence is the norm or, if not the norm, commonly employed in situations of conflict or frustration, it can not be surprising if the normal inhibitions on the use of violence are much less weighty. The situation is a fortiori in the case of someone young or immature.
Despite the second of the 3 factors to which I have referred, it seems to me that the Applicant was entitled to have some weight given to the factor of his youth in the determination of his sentence. Thus I agree that the case is one where leave to appeal should be given. In the particular circumstances of the case, the Crown agreed that the Applicant should have the opportunity of placing further evidence before the Court. Thus I agree with the orders proposed by Santow JA.
HIDDEN J: I agree with Santow JA.
**********

LAST UPDATED: 26/11/2004

[2004] NSWCCA 70

22 March 2004