R v LBK

[2001] NSWCCA 248

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v LBK [2001]  NSWCCA 248 revised - 4/07/2001

FILE NUMBER(S):
60704/99

HEARING DATE(S):   18 June 2001

JUDGMENT DATE:    18/06/2001

PARTIES:
Regina v LBK

JUDGMENT OF:       Simpson J Smart AJ    

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):           99/11/0355

LOWER COURT JUDICIAL OFFICER:       Shadbolt DCJ

COUNSEL:
(A)   R Burgess
(C)   M C Grogan

SOLICITORS:
(A)   D J Humphreys
(c)    S E O'Connor

CATCHWORDS:
Sentencing - reception of fresh evidence which could affect the result - applicant an infant with no family or guardian support - very serious break enter and steal in circumstances of special aggravation - appropriate sentence for a 16 year old

LEGISLATION CITED:

DECISION:
Leave to appeal granted - appeal as to terms of sentence dismissed - whole of the time the applicant is required to spend in custody should be spent in  Juvenile Detention Centre.  Non-publication order

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL  

60704/99

SIMPSON J

SMART AJ

Monday 18 June 2001

NON PUBLICATION ORDER

R             v               LBK

JUDGMENT

1    SMART AJ: The applicant is a juvenile.  Accordingly this Court should make an order that he be known as LBK, and that nothing be published which would disclose or tend to disclose his identity.

2    He seeks leave to appeal against the severity of a sentence imposed upon him in the District Court comprising a minimum term of three years and an additional term of three years in respect of an offence of on 29 May 1999 breaking entering and stealing in circumstances of special aggravation namely, inflicting grievous bodily harm on the victim, the owner of the home invaded.

3    At the time of the offence the applicant was aged 16, having been born in early 1983.  Having regard to the gravity of the particular offence the judge correctly sentenced the applicant according to law.

4    The applicant broke into the victim's home to steal. He searched through the house and gathered a number of items in a bag preparatory to leaving.  The applicant was surprised by the owner who returned to find his front door barricaded against him by his lounge.  The owner pushed the door open, switched on some lights and called out.  The applicant and the owner confronted each other.  A struggle ensued. This struggle moved into the bathroom where the applicant punched the owner in the mouth and then entered the loungeroom where the applicant struck the owner several times about the body with a recorder.  The struggle next moved into the bedroom.

5    The applicant picked up a four inch bladed knife positioned for such an eventuality, and threatened the owner forcing him to retreat into the loungeroom.  During the retreat the applicant stabbed the owner several times around the chest, arms and leg.

6    There was a further struggle over the bag during which the applicant slashed at the owner's hands.  The struggle moved outside the house with the owner calling out for help. The applicant released the bag and ran off.

7    The owner was treated by two ambulance officers on the steps of his home, and then taken to St George Hospital.  He responded to fluid resuscitation.  He received a small puncture wound above the left breast plate requiring three sutures. This wound had apparently deflated his left and right lungs.  A chest drain had to be placed to his left chest.

8    There was a slash wound to the right arm above the elbow requiring  four sutures, a puncture to the sternum requiring three sutures, and a wound on the left lower chest requiring two sutures.  He also received a split bottom lip.  A tendon was severed on his left hand thumb, and there was a deep laceration on the left finger requiring sutures.  Both of these later injuries required microsurgery which was carried out on 30 May 1999, the day after admission to hospital.

9    The owner was discharged from hospital on 1 June 1999. The owner has suffered continuing disabilities and pain with his left hand. It appears to have been left permanently weakened.  The psychological effects will be with the owner for a long time.

10  The applicant's record of interview reveals a person with a very distorted set of values.  He appears to have thought that the owner should have let him leave with the bag including the money he had taken. If the owner had done so he would not have been attacked and injured.  The applicant described himself as having in effect gone beserk when the owner struggled with him, and would not let him take the bag.

11  The answers given by the applicant in his record of interview are, as the judge rightly said,  chilling.

12            The judge recorded that the applicant had pleaded guilty and had related the circumstances of the offence with candour in his record of interview. He made the fullest admissions as to what he had done, as to losing his self control, and as expecting to be allowed to leave with the goods he had stolen.

13            He revealed how he had first broken into a caravan behind the house and taken a pair of scissors and a knife. The applicant described himself as being very angry.

14            The judge had regard to the applicant's record.  It began in April 1998 when he was dealt with for some eight offences including dishonesty offences, three counts of break enter and steal, and escaping lawful police custody.

15            In October 1998 he was dealt with for dishonesty offences.  In March 1999 he was sentenced for breaking entering and stealing.  He was placed on probation and subjected to control orders.

16            Post the subject offence he has been dealt with for dishonesty offences, malicious damage to property and common assaults.  He was subjected to control orders for six months, one month and 14 days which are covered as to time by the sentence imposed by the judge.

17            At the time the offence was committed the applicant was on bail and on probation.  The judge relied on the report of Mr J Dennis, Juvenile Justice Officer for details of the applicant's background. He is the eldest of three surviving brothers, a fourth brother having died when a few months old. The applicant has three half sisters born to his mother.  His father has died since he has been in custody.

18            The family was very dysfunctional and his childhood was one of deprivation.  He experienced the feeling that his mother did not care about him sufficiently.

19            The judge said:

"[The applicant] was made a State ward at six, and has been in and out of care since that time.  He was placed in foster care in 1992 but asked to be removed because of abuse.  Another placement broke down and he lived at a Barnardo cottage till he returned to his mother.    How much of all this resulted from a reaction to his behaviour and how much from the mismanagement of those who had his care is not clear.  But what is clear is he had a history of violence and acting out which makes any placement difficult.  His education is as checkered as his placement. He left of his own volition in year 8.  He had three or perhaps five months as an apprentice painter until he was either retrenched or sacked according to which report I accept.   At Cobham his behaviour has been according to the report, and I quote, 'less than ideal'.  He is regarded as demanding and becomes abusive when he does not get his own way.  However this report was dated 2 July 1999, and I am aware that things have changed for the better since then.

His reasons for the offence are variously stated by him as a need for money to repay his Mum for the imminent loss of her surety as he intends to abscond.  He exhibits little or no insight into his criminal behaviour and its effect on others.  To say his remorse is limited … is to strain the English language.  It appears to be non existent".

20            The judge had regard to the first report of Ms J Devlin, a consultant psychologist.  She set out at some length the background of the applicant, and administered a number of tests. She thought that he exhibited some remorse.  She wrote, 

"(He) has had an upbringing characterized by poor attachments, unpredictability, lack of caring or sense of belonging and abuse.  Moreover, he did not have the kind of experiences that might enable the development of a healthy sense of self and adaptive coping skills. He seemed to have reacted to these circumstances in a similarly chaotic manner and presents a confused and contradictory demeanour and view of the world.  He perceives everyone in his life to have let him down or abandoned him and it would be hard to disagree with his position in this regard.  As a result, he is reluctant to form new attachments, is highly mistrustful of people and vigilant to threat, and presents a tough exterior.

He is intelligent and articulate, but appears to have poor impulse control, is easily bored and distracted and has little direction.  However, he is very angry about his circumstances, likely much more than he will admit, and this seems to have resulted in an exacerbation of his 'short fuse' and a diffuse underlying propensity to sort out his differences by aggressive means.  Perhaps of most concern are the test results and self-report which indicate that he has a tendency to demonstrate dissociative behaviour under stressful conditions, such as those which have similarities to previous traumatic incidents (eg abuse).  This presents a somewhat dangerous outcome when occurring in combination with his anger and poor impulse control".

21  Ms Devlin set out the factors which were against successful rehabilitation and those which favoured successful rehabilitation.  The judge repeated her summary.

22            Ms Devlin further wrote:

"He is considered to have symptoms of post traumatic stress and a depressive illness.  The latter being nevertheless atypical in presentation (as is common in children.).  It is respectfully submitted that resolution of the grief and anger associated with his life experiences to date should form the corner stone of his rehabilitative effort if it is to offset the potential for future offending.  I also suggest that his age, unfortunate upbringing and associated failure of substituted care and child protection systems might be taken into account in this regard".

23  In the course of his sentencing remarks the judge noted some favourable reports since the applicant had been in custody on remand.  He regarded these as encouraging.  The judge took into account the need for condign punishment for a very serious offence and the desirability of the rehabilitation of a young offender.  The judge found that the journey to rehabilitation would be long, but it had commenced.  The applicant had taken the first faltering steps.

24             The judge continued:

"His behaviour has improved.  With more counselling and anger management he may well gain insight sufficient to control his violent impulses.  He may pursue his interests and gain some work skills and further education which in turn will improve his self image.  He may learn from sensible staff that it is not necessary to be violent to avoid feelings of powerlessness.  He may learn in the course of time that empowerment comes through other features of the human condition and that violence only serves to acknowledge the loss of power".

25            The judge correctly found special circumstances arising from considerations of rehabilitation.

26  At the time of her first assessment Ms Devlin considered the applicant's condition to be consistent with the development of Oppositional Defiant Disorder/Conduct Disorder, pursuant in part to the considerable adversity he had experienced during childhood.  On the hearing of this appeal the applicant sought to lead further evidence.

27  In sentencing a lad who was 16 years old when he committed a very serious offence it was important to know the underlying causes and his background.

28            The materials before the judge as  appears from what I have said, suggested that the applicant came from a dysfunctional family.  He was rebellious, unwilling to accept authority and very hard to handle but this may well have been due to the deprivations he suffered and the lack of care which he experienced.

29            Since the sentencing hearing further material has come to light.  The report of 3 February 1997 from Mr J Anderson, a consultant psychophysiologist specialising in meuroscience psychological services, expressed the view that the applicant's current impulsive behaviour was most likely due in part to an Attention Deficit Hyperactivity Disorder of the combined type.  It was recommended that the applicant be referred to a pediatrician specialising in development behavioural disorders.  That does not seem to have happened.

30            On 27 November 2000, some seventeen days after sentencing, the applicant was seen by Dr C J Lennings, a highly qualified and experienced psychologist.  Dr Lennings wrote that the applicant's performance on the tests administered revealed a general pattern consistent with someone who had diffuse but subtle neurocognitive deficits affecting memory and attention.  Dr Lennings thought that the applicant had been severely affected by his past and, additionally, suffered from significant areas of cognitive impairment consistent with an earlier diagnosis of Attention Deficit Disorder.  He added that the applicant's cognitive deficit of impulsivity, lack of self reflection and self awareness and reduced consequential thinking were probably contributory to the offence.

31  The further report of 1 February 2001 of Ms Devlin accepts that these other reports offer a plausible explanation for the applicant's conduct, but she warned against the tendency to over diagnose Attention Deficit Hyperactivity Disorders.  A study of the reports reveals that considerations of some complexity arise.

32            Counsel for the applicant submitted that the material was significant.  She pointed out that the applicant's solicitor only became aware of a report indicating a diagnosis of ADHD on the morning of the hearing. That report contained passages which were highly objectionable from the applicant's point of view.  It could not be tendered by the applicant.  The parties wished to finalise the matter.  The solicitor made a decision on the spot to proceed without the report.

33            In the circumstances which prevailed, and with hindsight, it may well have been  better for the solicitor for the applicant to have sought an adjournment and had the matter further investigated.  That did not happen.  Counsel for the Crown submitted to this Court that the solicitor for the applicant was aware at sentencing that there were possible attention problems.  He further submitted that the material did not amount to fresh evidence under any of the conventional tests.  He also submitted that the material would not have had any impact.  There is much substance in the submissions of counsel for the Crown.  However, the material was capable of having an impact and founding a submission for a reduced sentence.

34  I regard this case as special and in one sense unique.  The applicant was, at the time of sentencing, some 16 years of age.  He had had a very limited education, having left school in Year 8.  He had no support from an  appropriate adult.  His mother had provided a damaging statement to the police in respect of him.  Thus  the situation arose of a lad aged 16 with no adequate support having to give instructions.  He would have had no idea what was important.

35            In R v Smith (1987) (44 S ASR 487 at 488) King CJ said:

"The proper purpose of fresh evidence on appeal against sentence is to bring before the Court facts which were in existence at the time of the imposition of the sentences that were not known by the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light".

36  That applies to the present case.  The further evidence should be admitted so as to prevent a miscarriage of justice in respect of an infant.

37            There is some further material in Dr Lennings report.  At pp4-5 he expressed the view that the applicant continued to feel angry and upset about his past, but had no effective way to deal with the issues his past threw up.  He continued:

"He is an angry young man prone to impulsive behaviour although his attention span fluctuates and can be good for some period.  His ability to concentrate on some tasks with me was good but he did need encouragement to complete tasks that were difficult and was prone to give up if allowed to do so, and although he most probably suffered from Attention Deficit Disorder, even if its effects had moderated somewhat now and severe child abuse, he has not developed a significant abuse problem.

[The applicant] is a young man who does show significant areas of cognitive impairment consistent with an earlier diagnosis of Attention Deficit Disorder.  [He] did reveal a fluctuating ability to concentrate in the assessment but nonetheless his non intellective cognitive processes are uniformly depressed other than the capacity for recalling complex variable figures.  He continues to show behaviours that are also associated with conduct disorder and the degree of anger he shows could as much be a product of the unresolved traumas of his life,  as an adoption of the antisocial lifestyle he has fallen into".

38  Dr Lennings further expressed the view that treatment would involve both behavioural counselling and most probably a trial of medication.  He thought that it was highly likely that the applicant would be one of the 40 per cent of young  people who mature out of Attention Deficit Disorder.

39  The importance of the further material is that it indicates a further significant reason which would help to explain, at least in part, some of the behaviour of the applicant.  The conditions of AAD and ADHD are disorders of some consequence.

40  After this review of the psychological material, I turn to the criticisms made of the judge's reasons.  It was submitted the judge had given little or no weight to the plea of guilty.  He did not discuss the matter at length, but he recorded the plea of guilty at the commencement of his judgment.  It was contended that the judge had taken too stern a view about the applicant's lack of contrition and remorse, and that he had seriously understated it.  The judge relied substantially on the applicant's answers in his record of interview.  He had before him various reports which mentioned expressions of remorse.  The applicant did not give evidence  so that the judge was unable to assess the position having regard to evidence given by the applicant. It was open to the judge to take the views that he did about remorse and contrition.

41            It was submitted that six years was manifestly excessive and that a sentence of this length gave insufficient weight to the plea of guilty and the presence of contrition and remorse.  The applicant relied on his age and the importance of rehabilitation with a young offender.  The judge was conscious of the age of the applicant and indeed he sought to balance in a sensible way the age of the applicant and the gravity of the offences.

42            Some reliance was placed on statistics from the Judicial Commission.  Three points should be made.  First, the sample was small.  Secondly, there was no breaking up of the sample to show what the facts in individual cases were.  Thirdly, there were quite a few sentences about the level of that given to the applicant.

43            It was submitted that the sentence imposed on the applicant was more appropriate to that which should be imposed upon an adult.  The real difficulty in this case lies in the gravity of the attack which took place after the applicant had broken and entered the owner's home and stolen the goods.  The extent of the injuries suffered by the owner and the frenzied stabbing attack upon him, lead to the conclusion that the sentence imposed by the judge was well within the permissible range.  The applicant's failure to desist and his continuing attack upon the owner require stern punishment, making full allowance for the youth of the applicant.

44  The applicant's submissions that the whole of the sentence which the applicant is required to serve in custody should be spent in a Juvenile Detention Centre is correct.  He should not be required to serve any part of it in an adult gaol.

45  Accordingly I propose that leave to appeal be granted, that the appeal as to the terms of the sentence be dismissed, but that it be ordered that the whole of the time  that the applicant is required to spend in custody should be spent in a Juvenile Detention Centre.  There should be a non-publication order as outlined at the start of these reasons.

46  SIMPSON J: I agree with the orders proposed.  I only wish to add something about the admission of the fresh evidence.  In R v Goodwin (1990) 51 ACR 328, Hunt J with whom Grove J agreed, formulated or restated the three pronged test with respect to the admissibility of fresh evidence on a sentencing appeal. The second and third of those concerning the knowledge of the offender or his or her legal advisers at the time of sentencing, are here adequately met. The reasons for the non presentation of the fresh evidence before the sentencing judge have been explained in the reasons for judgment of Smart AJ. If nothing else the non presentation of that evidence can be attributed to the youth of the applicant and the lack of access to adequate medical advice and assessment at the time of sentencing.

47  The real question concerning the admissibility of fresh evidence is whether the applicant can bring himself within the first of the tests stated, that is whether the material sought to be relied upon is of such significance that the sentencing judge may have regarded it as having a real bearing on his decision.

48  Having heard the argument I was satisfied that the evidence was of that character, but that, it seems to me, if unexplained may give rise to the perception of an anomaly, having regard to the orders proposed and my agreement with them.  So I wish to make the specific observation that the fact that the evidence may have had a bearing on the sentencing judge's decision does not mean that it would necessarily or even probably have resulted in the imposition of a lesser sentence.  Even if the conclusion that it came within that category did have that consequence, it further does not have the necessary consequence that this Court would, if resentencing, impose a lesser sentence.

49            The seriousness of this offence and all the surrounding circumstances have been fully exposed in the judgment of Smart AJ.  I am of the view that the sentence imposed, even if the sentencing judge had had available to him and had regard to the fresh material, would not have been any different. For those reasons I agree with the orders proposed.  The orders of the Court will be as proposed by Smart AJ.

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LAST UPDATED:      04/07/2001