R v LNT - [2005] NSWCCA 307

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v LNT [2005] NSWCCA 307

FILE NUMBER(S):
2005/737

HEARING DATE(S): 9 August 2005

JUDGMENT DATE: 08/09/2005

PARTIES:
Crown
LNT

JUDGMENT OF: Simpson J Johnson J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0359

LOWER COURT JUDICIAL OFFICER: Acting Judge Kinchington QC

COUNSEL:
Applicant : A Francis
Respondent: P Miller

SOLICITORS:
Applicant: S E O'Connor
Respondent: S Kavanagh

CATCHWORDS:
Criminal Law
Sentencing
manifestly excessive
misuse of aggravating factors
special circumstances
young offenders
whether offender should be treated as an adult
principles of sentencing minors and juveniles

LEGISLATION CITED:
Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999

DECISION:

Leave to appeal be granted;
Appeal allowed and the sentence of his Honour Acting Judge Kinchington QC imposed on 17 September 2004 be quashed.
The applicant be sentenced to a term of imprisonment of seven years to commence on 3 October 2003 and to expire on 2 October 2010 with a non-parole period of 4 years to commence on 3 October 2003 and to expire on 2 October 2007;
It is directed, pursuant to the terms of s.19 of the Children (Criminal Proceedings) Act 1987 that the whole of the term of the sentence of imprisonment be served as a juvenile offender.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2005/737
SIMPSON J
JOHNSON J
ROTHMAN J
8 September 2005

REGINA v LNT

Judgment

SIMPSON J: I agree with Rothman J.
JOHNSON J: I agree with Rothman J.
ROTHMAN J: This matter comes before the Court as an application for leave to appeal and, to the extent successful, an appeal against the severity of sentence imposed upon the applicant by his Honour Acting Judge Kinchington QC of the District Court of New South Wales at Sydney on 17 September 2004. Because the applicant and the victim are minors, there are statutory prohibitions on the publication of their names or anything that might identify them.
The applicant pleaded guilty to an offence namely:
That on 2 October 2003 at Sydney in the State of New South Wales she maliciously wounded [the victim], with intent to do grievous bodily harm – contrary to s.33 of the Crimes Act 1900 (maximum penalty 25 years).
His Honour’s sentence was imprisonment for a term of 7 years and 6 months to date from 3 October 2003 and expire on 2 April 2011 with a non-parole period of 5 years to commence on 3 October 2003 and to expire on 2 October 2008. His Honour also ordered that the term of imprisonment be served in a juvenile detention centre “for as long as that is practicable”.
The applicant was born on 21 September 1986 and, as already mentioned, was, at the date of the offence, and at the date of sentencing, a minor and, therefore, required to be dealt with under the terms of the Children (Criminal Proceedings) Act 1987.

Facts

On the afternoon of 2 October 2003, the applicant, together with an older sister and a 14 year old friend, attended the Galaxy World Fun Parlour in George Street, Sydney and spent some time in the pool table area on the first floor. The victim, who was 15 years of age, was also in that area with several friends. Some tension developed between the two groups of young people for an unknown reason. It appears that the only words that were uttered during the heightened tension came from the young friend, referred to above, who swore at the victim’s group in Vietnamese. She also made a gesture with her middle finger, which was interpreted as conveying the same message as the Vietnamese expletive.
The victim’s group decided to leave the premises. They walked north on George Street towards the Town Hall train station. The victim, who was walking a metre or so behind her friends, turned towards the applicant and other girls and raised her finger in an identical gesture to that which had previously been made by the applicant’s friend. She then turned around and continued to walk towards the train station.
The events after that were captured by a closed circuit television, the tape of which is in evidence before the Court.
The applicant ran after the victim. She caught up with her near the Footlocker Store at the entrance to the Town Hall Arcade. She grabbed her hair from behind and swung her body around so that they were facing each other. She then started to strike the victim with decisive downward motions. Within a few seconds, the applicant’s older sister and friend arrived at the scene. They both grabbed the victim. The victim pulled out two “fighting sticks” that she carried in the pocket of her jacket. She used the sticks to defend herself but was overpowered by the three attackers who at various times restrained and punched her. One of the sticks fell to the ground. The victim could not see out of one eye due to the accumulation of blood in it.
From the CCTV footage, it can be seen that at one point, the applicant moved about a metre away from the victim and the co-offenders, in order to pick up something from the floor. The item that she picked up was a knife that, it seems, she had obtained from another’s handbag and had been using before it was dropped. The evidence is that the applicant was, prior to being informed by the owner of the knife of its presence in the handbag, unaware of its existence. She then returned to the other three and continued to strike the victim with decisive downward motions. A male friend of the victim rescued the victim from the attack. Even while he was trying to pull the victim away, the three co-offenders were variously holding onto her and striking her at every opportunity.
The victim’s friends rushed her to safety inside the ticket barrier at Town Hall Train Station. Railway guards followed them onto a platform where first aid was administered. A short time later, police arrived. They found clumps of hair and drops of blood in a trail leading from the arcade entrance to the train station barrier.
The victim was taken by ambulance to the Royal Prince Alfred Hospital where her injuries were documented as:
3 x 2.5 cm lacerations to the scalp.
1 x 6 cm laceration to the left breast.
2 x lacerations to the face
The lacerations were stitched. There were 15 sutures to the left breast, 11 to the scalp and 10 to the face. Photos of the injuries shortly after the attack, shortly after the stitching, and as at 2004 were before the Court.
The police were able to identify the three offenders by studying the CCTV footage. Around 10 pm the following night, 3 October 2003, police arrested the three females in George Street, close to the scene of the attack. They were dressed in the same clothing that they had worn the previous day.
When the older sister was asked if she knew why she had been arrested, she answered:
“Well, me and my friends were in Galaxy World and this girl stuck her finger up at us and my friend went to her and I think they got into a fight.”
The applicant produced false identification in a name other than the applicant’s which “showed” that she was 22 years of age. The identification in fact related to one of the applicant’s other sisters. As a result of the production of that false identification, the applicant was treated as an adult until her true identity was established four months later.
As a consequence of the treatment of the applicant as an adult, she participated in a lengthy electronic interview. The older sister also participated in an electronic interview and made a handwritten statement and diagram of the knife. The knife has not been found.
According to the applicant in that interview, after the victim made the gesture with her finger at the three girls, the applicant said to her sister and friend: “Let’s go”. She ran towards the girl. The other co-offenders followed her. The applicant described her state of mind as she ran after the victim as being “pissed off” with the victim’s actions and that on running towards the victim she was thinking:
“I don’t know, just hit her so she learns her lesson … as I was walking towards her [my friend] said there is a knife in the bag. And I wasn’t thinking I just grabbed it.”
The applicant said that she was not aware that the knife was in the bag before she was alerted to it by her friend. She took hold of the knife in her right hand, ran towards the victim and her intention was “to hurt her and make her regret it”. She stated that she cut the female several times and that she recalled cutting her to the back of the head while the other two “had her down”. She estimated to the police that she swung the knife at the victim more than five times. After seeing the CCTV footage of the incident, she agreed that she in fact stabbed the girl up to 15 times, but more accurately it would be fair to say that she attempted to stab her up to 15 times, only some of which connected. She described her feelings about the incident to the police as:
“Bad … because she didn’t deserve it because she didn’t do nothing to me.”
The applicant’s friend pleaded guilty to “malicious wounding” in the Children’s Court. She was sentenced to perform 75 hours’ community service. The victim has been left with a prominent scar on the left breast.
His Honour Kinchington ADCJ dealt with the sentence of the applicant and the sister together. The sister pleaded guilty to the charge of malicious wounding. His Honour took into account, in relation to the applicant, that following her interview she was charged and remanded in an adult gaol for some four months because of her false identification and was, after the four months, transferred to a Juvenile Justice Centre upon the discovery of her true identity and age. His Honour recited the facts and then made some comments about the inappropriateness of the applicant’s friend being dealt with in the Children’s Court and the complete inadequacy of the sentence imposed by the Children’s Court. In relation to the applicant, the sentencing judge recited some subjective circumstances and allowed a 20% discount for the utilitarian value of the plea of guilty. It should be said in relation to that discount that the sentencing Judge took the view that the plea of guilty was not entered at the earliest of opportunities, however, he took into account, it seems, that there were negotiations between the legal advisors of the applicant and the Crown as to the charge to which she should plead. His Honour does not seem to have taken into account the express admissions that were made on 4 October 2003 in the interview with the police which, immediately after the criminal conduct, unreservedly accepted responsibility for the criminal conduct.

Grounds and Submissions

The appeal raises one ground, namely, that the sentence is manifestly excessive. Within that ground two (2) more detailed challenges are made: the misuse of the aggravating factor described in s.21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999; and that proper regard was not had to the provisions of s.6 of the Children (Criminal Proceedings Act) 1987.
In his remarks on sentence, his Honour Acting Judge Kinchington ADCJ, after reciting the facts, rebuked the Crown for allowing the younger co-offender to be dealt with by the Children’s Court where she received 75 hours of community service as the sentence for her participation in the assaults before the Courts.
When the subjective material in relation to the applicant was dealt with by his Honour below, he recited a number of factors that, no doubt, he took into account. I extract the comments of his Honour below:
“This offender is a young single mother who will turn 18 later this month, having been born on 21 September 1986. She is the youngest of six children in a Vietnamese family which settled in Australia in 1988. At the time of her arrest, she resided with her parents and one of her sisters who was her co-offender here. She is the mother of a 20-month old daughter who is presently being cared for by her mother and her co-offender sister in the family home in Villawood.”
His Honour then refers to the applicant’s relationship with her father and her mother, her tendency as a young girl to have a strong personality and to lose her temper. His Honour below also refers to a change in personality that occurred at or about the time that the applicant commenced use of illicit drugs. That time also coincided with problems in the family between her mother and father. The sentencing Judge referred, also, to the applicant’s steps towards her own rehabilitation and to the report by a Psychologist and Psychiatrist and the Juvenile Justice Report. While the sentencing judge refers to the provisions of s.54A to s.54D of the Crimes (Sentencing Procedures) Act 1999 and their applicability, his Honour does not refer at any stage of his remarks to the provisions of s.6 of the Children (Criminal Proceedings) Act 1987 and the well known principles to be applied in the sentencing of children and young offenders. In that regard, the following comments of the sentencing judge should be noted:
“To my mind, the degree of severity displayed by the offender … should be assessed as falling slightly in excess of the mid-range of severity for this type of offence. In making this assessment, I have taken into account, among other matters, firstly the actions of the offender …; I have made allowance for what Dr Nielssen said in his report … and in doing so I have made allowance for the factors mentioned by Dr Nielssen to which I have previously referred. I have also considered secondly the material contained in the victim impact statement. Thirdly, the extent of and nature of the injuries sustained by the victim as I have displayed in the photographs that have been placed before me in these proceedings and the medical reports which relate to them. Fourthly, that the attack on the victim was, in my opinion, unprovoked and unnecessary, although I recognise it was a spontaneous act rather than a premeditated act. However, that attack only ceased when the victim, in effect, was rescued from the assault being rained upon her by her assailants.
The physical harm that was occasioned to the victim is also a significant factor. While it probably will not have any lasting effects, although I note I think there is still some scarring evidence to the victim, it is the psychological damage that was done to her, that will impact upon her for some time into the future. …
In all the circumstances of this case and bearing in mind the concepts of specific and general deterrence as the latter is concerned, taking on board the comments of Justice Hulme in [R v P] it seems to me that the objective criminality displayed by the offender requires me to subject her to a custodial sentence of some severity in order to bring home to her and to the community, that our streets are places in which we should be able to walk … .”
His Honour then referred to the Crimes (Sentencing Procedure) Act in two respects, that is s.21A and Division 1A. While his Honour from time to time mentioned, in passing, “the age of the offender”, he did not at any stage deal with the effect that age would have on the principles that his Honour adopted in relation to the sentencing. His Honour said after referring to the age and the discount on sentence:
“And also bearing in mind the concepts of special and general deterrence to which I have already referred and the principles of parity of sentencing, bearing in mind that one of the co-offenders was dealt with in the Children’s Court. However in this latter regard I do not think that concept is of any great relevance in these proceedings because the nature of the sentence, that young person faced was one of malicious wounding and not the more serious offence that this offender faces in these proceedings.”
He referred to the necessity to impose an adequate punishment on the applicant which “will appease the community’s abhorrence of this type of offence.”

Use of Violence as an Additional Aggravating Factor

Section 21A of the Crimes (Sentencing Procedure) Act, provides, after the aggravating factors contained in the Act are listed, that the Court “is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.” In the remarks on sentence, the sentencing judge expressly treats as an aggravating factor in the commission of this offence that the offence “involved the actual or threatened use of violence” and was therefore an aggravating factor pursuant to the terms of s.21A(2)(b). The charge before the Court, as has been stated, is for malicious wounding with intent to inflict grievous bodily harm. An essential element of that charge is that it involves the actual use of violence. In those circumstances, any additional regard paid by the sentencing judge to the use of violence, or its threatened use, as an aggravating factor on sentence would be contrary to the provisions of s.21A and contrary to the principles applicable to sentencing. It is, in effect, a double counting of the use or threat of violence. The legislature has established, in the Crimes Act, a maximum penalty which reflects its assessment of the seriousness of the offence in question bearing in mind that an essential element of it is the actual use of violence. To use that factor, once more, as an aggravating factor in the sentence to be imposed, is to double count an important issue and is contrary to the prohibition contained in s.21A(2).

Sentencing Young Offenders

The other aspect agitated on behalf of the applicant, which, counsel for the applicant submits, renders the sentence imposed excessive, is that proper regard has not been paid to the principles associated with the sentencing of juvenile offenders and particularly the principles embodied in s.6 of the Children (Criminal Proceedings) Act 1987.
The Court has, on a number of occasions, set out the principles which govern the sentencing of young offenders. In R v MA [2004] NSWCCA 92 Dunford J, with whom Studdert & James JJ agreed, said:
“[28] It is true that in the case of young offenders, there is generally greater emphasis given to rehabilitation and less to deterrence than in the case of adult offenders, but that depends in part on the age of the young person and the circumstances of the offence; and there comes a point at which the seriousness of the crime committed by a young offender, particularly if a crime of violence is so great that the special attention normally given to rehabilitation in the case of young offenders must give way and greater emphasis given to punishment and deterrence. The relevant principle was summarised in the joint judgment of this Court in R v AEM Snr & Ors [2002] NSWCCA 58 at [97] – [98] as follows:
‘It is well accepted that in the case of youth, general deterrence and public denunciation usually pay a subordinate role to the need to have regard to individual treatment aimed at rehabilitation. … However, important as that principle is, it can not defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way in which an adult does, can it stand in the way of the need to protect society.’
And their Honours quoted what had been said by Lee AJ in R v Nichols (1991) 57 A Crim R 391 at 395 as follows:
‘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 the principle must, in the public interest, give way.’
[30] … Growth from child to adult is a gradual process and for general sentencing purposes, there is no significant difference between a person shortly under 18 years and a person shortly over that age … .”
R v MA was a judgment of this Court on a Crown appeal against sentence imposed for manslaughter in which the circumstances were that the accused shot and killed an unarmed person who was drunk and acting “obnoxiously”. The principles there set out do not detract from the position that juvenile offenders are sentenced on a basis that may be different to adults and, in the case of minors, under a statutory scheme that includes the qualifications contained in the Children (Criminal Proceedings) Act 1987. In every case, it is a question of balancing deterrence, retribution and protection of the community, on the one hand, and rehabilitation, on the other. In the case of juvenile offenders, rehabilitation generally plays a far more significant role than it does in the case of mature adults. Of course, “where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity” (R v Gordon (1994) 71 A Crim R 459 at 469), the youth can expect to be treated in the same way as an adult. But the fact that “a crime of considerable gravity” has been committed does not, in and of itself, necessitate a finding that the youth has conducted himself “in the way an adult might conduct himself”. In each case it is a question of bearing in mind the subjective circumstances of the offender, the principles in the Children (Criminal Proceedings) Act and balancing rehabilitation on the one hand with deterrence and punishment on the other. Deterrence has a significant role to play, even with youth, especially persons approaching the age of 18, or older, but its role as one of the purposes of punishment (see s.3A Crimes (Sentencing Procedure) Act 1999) must be qualified by an assessment of the capacity of the younger offender to be rehabilitated and the importance of rehabilitation in the case of such offenders.

The principles expressed in R v MA are of long standing and, depending upon the age and any other disability of the offender in question, have been applied with varying effect in a number of judgments. Reference should be made to, inter alia, R v Pham and Ly (1991) 55 A Crim R 129; R v WKR (1993) 32 NSWLR 447; R v Bus (CCA, unreported, 3 November 1995); R v AEM [2002] NSWCCA 58; R v AD [2005] NSWCCA 258. The principles espoused in those cases were recently summarised in this Court in R v AN [2005] NSWCCA 239. In that last mentioned case, Howie J (with whom James J and I agreed) said:
“[53] The full passage from Bus … is as follows (my emphasis):
‘… it is obvious that the relevance of the principles stated in s.6 [of the C(CP) Act] to which individual case depends to a very large extent upon the age of the particular offender and the nature of the particular offence committed. An offender almost 18 years of age cannot expect to be treated according to law substantially differently to an offender just over 18 years of age. In both cases, the youth of the offender remains very relevant. Rehabilitation plays a more important role and general deterrence a lesser role. But that principle is subject to the qualification that, where a youth conducts himself in a way an adult might conduct himself and commits a crime of considerable gravity, the function of the Courts to protect the community requires deterrence and retribution to remain significant elements in sentencing him. …’
[54] … One of the most frequently cited decisions stating this approach is R v Pham and Ly … where the relevant offender was aged 17 years and 8 months. In that case Lee J said at [135] (my emphasis):
‘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 … ‘
[55] In R v WKR … Sully J stated:
‘ If in a particular case, a crime has been committed and it is a crime which is, in its nature and incidents, an adult crime rather than a crime which can be conceptualised sensibly as deriving from the offender’s “… state of dependency and immaturity …” then that factor is, in my opinion, a strong warrant for the exercise of the relevant discretion in favour of dealing with the offender according to law. The graver the crime the greater the warrant …
In order to fix a fair and objective view of the true level of personal responsibility of a particular offender, it will be appropriate to consider, as well, whether the nature and incidents of the crime, and the personal circumstances otherwise of the offender, are such that the offender should be allowed to shelter behind the accident of age so as to have the quite extraordinary advantages, in terms of penalty, that flow from the application of Division 4 of Part 3 of the [Children (Criminal Proceedings) Act].’
[56] A more recent example of this approach being adopted in sentencing young persons for serious crimes is to be found in R v AEM … where the two youngest offenders were aged 16 years and 10 months and 16 years and 3 months at the time of the offending. There the court said at [97], before quoting the … passage from Pham and Ly:
‘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 … However, important as that principle is, it can not defeat the primary purpose of punishment nor, in circumstances were young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society.’
[57] It is obvious that chronological age can not be the determining factor in deciding how much weight should be attributed to general deterrence and I do not believe that the cases espousing the approach adopted in Bus consider either the age or the acts of the offender in isolation without having regard to the mental state and circumstances of the offender at the time of the offending. In cases where this approach has been adopted for sentencing younger offenders there is nothing about the offending or the offender, other than age, that makes it inappropriate to treat the offender as if he or she were an adult.”
It should be borne in mind that R v AN concerned a very young juvenile at the date of the offence who also suffered a mental disability. Here the minor was 17 years old at the time of the offence and, therefore, generally not to be treated in the same way as a child of 13 years.
In the sentencing of a particular offender, it is unnecessary for a sentencing judge to set out all of the cases which have dealt with the principles. Further, it is unnecessary for the sentencing judge to deal at length with the balancing exercise dictated by the principle or whether, because of the findings of fact, the offender should be treated as an adult in all respects. However, the absence of any remark that the offender is being treated, if it be the case, in all respects, as an adult, is, to say the least, problematic. Further, if the references to age of the applicant by the sentencing judge were intended to be the consideration of the applicability of the principles relating to child offenders, one would expect some mention of the process.
The absence of any reference to the principles associated with the sentencing of young offenders in the remarks on sentence is sought to be countered by the Crown submission that the principles were put to his Honour by counsel for the applicant below and, quite separately, that his Honour did refer to the age of the applicant. The mere fact that his Honour was addressed on the principles associated with the sentencing of young offenders, but did not refer to them or to the fact that he had taken them into account, does not, of itself, suggest that his Honour did take account of such principles. Indeed on being addressed on the principles, his Honour remarked that s.21A refers to age which, to the extent one can take into account exchanges in transcript, suggests that the manner in which the age of the applicant was taken into account was as a mitigating factor under s.21A(3) of the Crimes (Sentencing Procedure) Act 1999 without embarking upon an analysis whether different principles might need to be considered. The sentencing judge at a later part of the transcript receives a further submission as to the operation of s.6 of the Children (Criminal Proceedings) Act but predominantly in the context of whether an order is required to be made under s.19 of that Act.
His Honour was referred to the passage in R v P [2004] NSWCCA 218 at [37] which included a passage as to the importance of rehabilitation in sentencing young people and the lower level of importance of general deterrence. However, his Honour’s consideration of that passage dealt with other aspects rather than the weighing of those considerations in the sentencing of young people.
An analysis of the remarks on sentence does not indicate any consideration by his Honour of the principles associated with sentencing minors or juvenile offenders, or whether such principles ought, or ought not, be applied.
His Honour below referred to the provisions of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act and in particular that s.54D prescribes a standard non-parole period of seven (7) years for an offence under s.33 of the Crimes Act. His Honour allowed a discount of 20% for the plea of guilty and other associated factors. If the 20% were arithmetically applied to the seven year standard, one arrives at a non-parole period of five years and seven months. His Honour made the finding that the degree of severity of the crime was one which should be assessed as “falling slightly in excess of the mid-range of severity for this type of offence.” There may be differences, given the seriousness of offences that are within the description in s.33, with that assessment, but it is not one with which, on appeal, I would cavil.
The statistical information available to the court and attached to the Crown submission deals with offences under s.33 of the Crimes Act and does not differentiate sentences on a plea of guilty or for young offenders. Even so, a sentence of seven years, with a five year non-parole period, imposed by the sentencing judge in this matter lies just below the middle of the statistical range of sentence for this offence. Once one has regard to both the plea of guilty and the other subjective factors that were considered, it follows that the factors associated with the principles of sentencing of children that necessitates increasing the importance of rehabilitation, have not been appropriately taken into account. There is a necessity, at least, to give consideration to whether rehabilitation is of greater significance and whether less importance should be given to deterrence and punishment; and the failure so to do discloses error. The circumstances of this applicant warrant a greater emphasis on rehabilitation than was given and the sentence, as a consequence, is excessive. Another sentence is warranted.
There are special circumstances which warrant a departure from the statutory ratio between non-parole period and the remainder of sentence. Those special circumstances include a number of factors to which reference has already been made and also include the psychologist’s and the psychiatric report tendered in the proceedings on sentence. Dr Nielssen had this to say of the applicant:
“At the time of the offence [the applicant] was experiencing the after-effects of intoxication with stimulant drugs, which she associated with severe mood swings, irrational anger, a tendency to misinterpret events and vague perceptual disturbances in the form of voices heard inside her head and mistaking strangers for people with whom she is familiar. From the history elicited, I do not believe [the applicant] was affected by a defect of reason in the form of delusional belief regarding the victim. However, her association of the victim with the memory of her father’s girlfriend probably increased her sense of grievance.
[The applicant] has an alarming history of aggression that appears to be strongly associated with mood states induced by her abuse of stimulant drugs. Hence, some form of ongoing drug counselling and supervision of abstinence from drug use is recommended as part of her rehabilitation. Abstinence from stimulant drugs should also be a condition of her resumed responsibility for the care of her child.”
Part of the above comment, amongst other things, relates to an earlier history and her reaction to marital issues between her father and mother. That which is clear from the psychiatrist’s report is that the offence in question was an immature response coupled with the effects of abuse of drugs and alcohol. There is evidence that, at that time, she considered herself “possessed by a devil” which reflected the view that her father had urged upon her. It is noteworthy that despite a history of drug use and aggressive behaviour, the applicant has no prior criminal record. The processes of the criminal justice system, which may assist in her rehabilitation, are being brought to bear in her case for the first time. This is a significant factor in assessing the weight to be given to rehabilitation in this case.
Since the time of the offence there has been demonstrable rehabilitation which, on the evidence before me, has, at least until the time of the appeal, been successful.
Given the subjective circumstances there is good reason to emphasise the chances of rehabilitation which seem particularly positive. Notwithstanding that emphasis, it must be stressed that, even in relation to young offenders, such as the applicant, an offence of this kind is particularly reprehensible. People are entitled to walk the streets, or attend public venues, without being attacked. There is a need, even in relation to offenders of this age, to provide punishment and a real deterrence to conduct of this kind.
In the circumstances I propose that the following orders should be made:
(i)Leave to appeal be granted;
(ii)Appeal allowed and the sentence of his Honour Acting Judge Kinchington QC imposed on 17 September 2004 be quashed.
(iii)The applicant be sentenced to a term of imprisonment of seven years to commence on 3 October 2003 and to expire on 2 October 2010 with a non-parole period of 4 years to commence on 3 October 2003 and to expire on 2 October 2007;
(iv)It is directed, pursuant to the terms of s.19 of the Children (Criminal Proceedings) Act 1987 that the whole of the term of the sentence of imprisonment be served as a juvenile offender.
I note that the applicant will turn 21 years of age on 21 September 2007. The express intent of the order in paragraph 44 (iv) above is that the applicant will not be transferred to an adult prison on her 21st birthday but that she will continue to serve her sentence as a juvenile offender until she is eligible for release on parole on 2 October 2007 (see s19 (2)(a) Children (Criminal Proceedings) Act 1987).

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LAST UPDATED: 09/09/2005