R -v- MSS

[2005] NSWCCA 227

CITATION:	Regina v MSS [2005] NSWCCA 227 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22/06/2005
JUDGMENT DATE:	22 June 2005
JUDGMENT OF:	Spigelman CJ at 30, 32; Hunt AJA at 31; Howie J at 1
DECISION:	Leave to appeal is granted but the appeal is dismissed. The non-parole period of 9 months is to expire on 21 January 2006 the date upon which the applicant is to be released to parole. The sentence expires in its entirety on 21 October 2006.

CATCHWORDS:	Criminal Law - Sentencing - Sentencing of a juvenile of sexual assault offence after conviction - no matter of principle.
LEGISLATION CITED:	Crimes Act 1900 - ss 61J, 66C Children (Criminal Proceedings) Act 1987 - ss 6, 17, 18(1A), 19 (1A), Div 4 Part 3
CASES CITED:	R v WKR (1993) 32 NSWLR 447 R v Palu (2002) 134 A Crim R 174
PARTIES:	Regina v MSS
FILE NUMBER(S):	CCA 2005/938
COUNSEL:	S. Bennett SC - Crown G. Wendler - Applicant
SOLICITORS:	S. Kavanagh - Crown S. Hopper - Applicant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0449
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ

2005/938

SPIGELMAN CJ
HUNT AJA
HOWIE J

WEDNESDAY 22 JUNE 2005

Regina v MSS

Judgment

1 HOWIE J: The applicant, a juvenile, was convicted after trial by a jury of a charge of having sexual intercourse with a child under the age of 16 years. This is an offence contrary to s 66C of the Crimes Act and in respect of which a maximum penalty of 8 years imprisonment is prescribed. Judge Ellis (the Judge) sentenced the applicant to imprisonment for 18 months to date from 22 October 2004, the date upon which sentence was imposed, and specified a non-parole period of 9 months to expire on 21 July 2005. The Judge directed that the sentence be served in a Juvenile Detention Centre. The applicant was granted bail in the Supreme Court on 21 December 2004.

2 The applicant seeks leave to appeal against the sentence imposed upon him on the following grounds of appeal:

1. That in all the circumstances the sentence imposed upon the applicant was manifestly excessive.

2. That the learned sentencing Judge erred in his discretion by sentencing the applicant according to law rather than pursuant to the provisions of Div 4 of Pt 3 of the Children (Criminal Proceedings) Act 1987.

3 The applicant stood trial with a co-offender, another juvenile, NZ who was aged 15 years and 4 months at the date of the offence. They were both indicted on a charge under s 61J of the Crimes Act being an offence of sexual assault in circumstances of aggravation, that being that they were each in the company of the other. The applicant was acquitted of that charge but found guilty of the alternative count under s 66C. NZ was convicted of the offence under s 61J and sentenced to imprisonment for 5 years with a non-parole period of 2 years 6 months. The conviction and sentencing of NZ have no relevance to the application for leave to appeal argued by the applicant.

4 The facts can be briefly stated. On 30 January 2003 the applicant, who was then aged 14 years 9 months, had agreed to meet a number of young persons at a local park to spend the night in celebration of the last day of the school holidays. Amongst the persons who gathered at the park was the complainant, aged 14 years 3 months. The complainant and the applicant were close friends as were the applicant and the co-offender NZ. However, the complainant had never met NZ before the gathering at the park. He joined the group sometime later in the evening.

5 The applicant drove to the park in his father’s vehicle notwithstanding that he was not a licensed driver and had not been given permission to take the vehicle. He brought with him three bottles of alcohol including one of Tequila that was consumed by the complainant and her girlfriend. As a result the complainant became well intoxicated. At a late stage in the evening the complainant said that she wished to go to the toilet and the applicant, accompanied by NZ, drove her to a service station. When they left the service station the applicant was driving with NZ in the front passenger seat and the complainant in the rear of the vehicle. After a short time, the applicant stopped driving and entered the rear of the vehicle next to the complainant. NZ then drove the vehicle around the neighbourhood streets.

6 While he was with the complainant in the back of the vehicle, the applicant assaulted her by digitally penetrating her vagina. The trial judge found that this act of intercourse occurred without the complainant’s consent. It was this act that gave rise to the charge for which the applicant was convicted and sentenced. A short time later NZ stopped the vehicle and he and the applicant swapped places. While in the rear of the vehicle NZ had penile intercourse with the complainant without her consent. It was in respect of this assault that NZ was convicted of the s 61J offence. A short time later the vehicle stopped and again NZ and the applicant swapped places. While in the rear of the vehicle the applicant got on top of the complainant but she was able to push him away and he desisted from further attempts to assault her. When they arrived back at the park the complainant, who was then in a distressed state, immediately made complaint about the conduct of the applicant and NZ. There was evidence that the applicant had admitted to some of his friends that he had sexually assaulted the complainant.

7 In the course of his remarks on sentence the Judge explained the different verdicts given by the jury against the applicant and NZ on the basis that, although the complainant was not consenting to the assault upon her by the applicant, the jury was not satisfied that the applicant knew she was not consenting. This finding was based upon evidence of their earlier friendship, the fact that the complainant had been flirting with the applicant during the evening and her intoxicated state.

8 At the time of sentencing the applicant resided with his father and two siblings. The applicant’s mother had died after a long fight against cancer in August 2001. The applicant’s parents immigrated to Australia from Saudi Arabia in 1985 and their three children were born in this country.

9 The applicant had no prior convictions but the Judge was not prepared to find that he was of good character by reason of misbehaviour at high school including allegations of violence and bullying other pupils leading him to be suspended on a number of occasions. His bad behaviour and consequential suspensions continued after he changed schools. The applicant was expelled from one high school in August 2002 after threats of violence made to a teacher. The applicant’s aggressive behaviour continued at the next school in which he was enrolled throughout May to September 2003 resulting in the applicant also being expelled from that school. The applicant’s misconduct had continued notwithstanding attempts by the school authorities to assist him with understanding and compassion because of the death of his mother.

10 The Judge found that the applicant and his father had colluded to keep this information from the Juvenile Justice officers reporting to the court upon the applicant and hence from the court itself.

11 In respect of this aspect of the applicant’s behaviour the Juvenile Justice officers reported:

Overall [the applicant’s] enlarged sense of self-entitlement, his habitual stretching and pushing of boundaries and his reluctance to accept instructions/directions from authority figures is a serious concern. [The applicant] appears to know how to work around his father when he has got himself into trouble in the past and [his father] hitherto has been inclined to believe his son’s account, when concerns are raised about him…

12 The applicant continued to deny the offence notwithstanding his conviction and was not willing to submit to sexual assault counselling. He stated to the Juvenile Justice officers, “I have nothing to address but if the court says I have to address the offending, I will, but if it is optional, I probably do not think I need counselling”. In light of this attitude the officers assessed the applicant as being in a medium to high risk category of re-offending. It was considered that the applicant was unlikely to be suitable for placement in a sexual assault counselling program by reason of his attitudes both to the offence and to authority manifested by his misbehaviour at school.

13 The Juvenile Justice officers preparing the report recommended that the applicant be placed on a “Griffith remand” under certain conditions as to his behaviour and with supervision by the Department of Juvenile Justice. Alternatively it was recommended that, if the court was considering a custodial sentence under the provisions of the Children (Criminal Proceedings) Act, the court might recommend release on conditions similar to those suggested as part of the “Griffith remand”. It is clear from the sentence imposed that his Honour chose neither of those options.

14 There are two grounds of appeal relied upon by the applicant. The first asserts that the sentence was manifestly excessive and the second that the Judge’s discretion to deal with the applicant at law miscarried. It is appropriate to deal with the second ground first.

15 An offence under s 61J alleging that the circumstance of aggravation was that the applicant was in company was a “serious children’s indictable offence” for the purposes of s 17 of the Children (Criminal Proceedings) Act: see the definition of “serious children’s indictable offence” in s 3 of that Act and note that the circumstances of aggravation alleged in the charge was under s 61J(c) and not s 61J(d). This meant that a juvenile charged with that offence had to be dealt with at law and not in accordance with Division 4 Part 3 of the Children (Criminal Proceedings) Act. However, the applicant was convicted of an offence under s 66C and that is not a “serious children’s indictable offence”. Therefore the Judge had a discretion whether to sentence the applicant at law or under the provisions of the Children (Criminal Proceedings) Act. That discretion was to be exercised having regard to the matters set out in s 18(1A) of that Act being:

(a) the seriousness of the indictable offence concerned,
(b) the nature of the indictable offence concerned,
(c) the age and maturity of the person at the time of the offence and at the time of sentencing,
(d) the seriousness, nature and number of any prior offences committed by the person,
(e) such other matters as the court considers relevant.

16 The Judge made it plain that he recognised that he had a discretion whether to deal with the application at law and that he was required to take into account the matters set out in s 18(1A) in exercising that discretion. After having referred to the decision of this Court in R v WKR (1993) 32 NSWLR 447, in which the exercise of the discretion was considered, the Judge stated (my underlining):

Having regard to those principles and the seriousness of the offence bearing in mind the maximum penalty of 8 years imprisonment, the role of this offender in procuring the motor vehicle and procuring and supplying alcohol to the complainant, the breach of trust and friendship of the complainant, the general circumstances of the offence, that there must have been some discussion or collusion between the offenders, that in all the circumstances it is appropriate that each offender be dealt with by the same court under the same sentencing regime so that sentences and convictions imposed properly reflect their respective criminality and that notwithstanding his youth, these were adult offences the gravity of which should be reflected by a Court dealing with the matter according to law.

17 It is submitted on behalf of the applicant that his Honour’s discretion miscarried because he took into account an irrelevant consideration being the issue of parity of sentencing regimes between the applicant and NZ in light of the fact that they had been convicted of distinctly different offences of distinctly different degrees of seriousness. In my view this challenge to his Honour’s reasoning is made good.

18 Although s 18(1A)(e) requires the court to take into account “any other matters as the court considers relevant” it was, in my view, not a relevant matter that the applicant’s co-offender was to be sentenced at law because the offence committed by him was a “serious children’s indictable offence” and, therefore, the judge had no discretion as to the manner in which he was to be sentenced. The applicant was entitled to have the judge apply his mind to the question of whether the applicant should be dealt with at law or not without having regard to the situation of the co-offender in light particularly of the marked difference between the offences for which they were to be sentenced. There was, with respect, no impediment upon his Honour properly reflecting their respective criminality in the offences committed by dealing with one of them at law and the other under the provisions of Div 4 of Part 3, if his Honour had concluded that it was appropriate to deal with the applicant under those provisions. Parity was not of major significance having regard to the different offences for which they were convicted. But in any event the principle of parity cannot be used to increase an otherwise appropriate sentence or to otherwise disadvantage an offender. It operates in an appropriate case to mitigate the sentence of an offender who has a legitimate sense of grievance.

19 In R v WKR, the case to which the sentencing judge referred as embracing the principles to be applied in the exercise of the discretion whether to deal with a juvenile at law, Hunt CJ at CL, with whom Campbell J agreed, stated at 451:

If the offence were a grave or serious one (albeit not one falling within the definition of a serious indictable offence), and if the offender standing for sentence were of such an age and maturity that he did not deserve the benefit of the special provisions in Pt3 Div 4 when being punished for such a grave or serious offence, the judge would be more likely to determine that he should be dealt with according to law rather than in accordance with Pt3 Div 4. Similarly, if it were appropriate that the offender standing for sentence should serve a custodial sentence in a detention centre plus a period on parole under supervision thereafter, or if he were not an appropriate person to be detained in a detention centre, or if for any other reason it were appropriate that he should serve a custodial sentence in prison rather than in a detention centre, the judge would be obliged to determine that he be dealt with according to law rather than in accordance with Pt3 Div 4.

20 In light of the material set out in the Juvenile Justice reports in relation to the applicant’s continuing denial of the offending, his lack of genuine interest in counselling, his poor attitude to authority, his relationship with his father and his consequential risk of re-offending it was, in my view, appropriate that the applicant be dealt with in a way that ensured that he spent a period on parole rather than simply be released at the end of any period of custody imposed upon him under the provisions of Div 4 Pt 3. Therefore, I am of the opinion that it was, and is, appropriate that the applicant be dealt with at law and, therefore, I would exercise the discretion in the same way as did the sentencing judge.

21 For substantially the same reasons I conclude that his Honour having correctly dealt with the applicant at law that the sentence imposed was not manifestly excessive. There is no argument advanced as to the findings of fact upon which the applicant was sentenced. The offence was a serious one notwithstanding the nature of the sexual intercourse and the fact that the applicant believed that the complainant was consenting. That belief had to be seen in the context that the applicant knew that she was intoxicated by reason of the alcohol he had provided. His Honour was not prepared to find that the offence was planned as an aggravating factor of the offending. He was, however, entitled to take into account that the offence was committed in company.

22 Section 6 of the Children (Criminal Proceedings) Act applied and, therefore, the Judge was required to take into account the principles for sentencing juvenile offences set out in that section. The Judge specifically mentioned the section and it is clear otherwise that he had regard to the provisions. For example s 6(c) states “that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption”. The Judge noted that the applicant had commenced an apprenticeship as a motor mechanic but that there was no evidence to suggest that a custodial sentence would terminate the apprenticeship rather than simply place it in abeyance. There is no challenge to that finding.

23 The Judge mentioned the fact that it would have been difficult for the applicant to come to grips with the death of his mother, but of course that had occurred in 2001 and the offence took place in 2003. Allowance for that fact could be made up to a point, but the offending had to be considered against the continued bad behaviour at school and the applicant’s attitude to the offending and to counselling in respect of it.

24 His Honour addressed at length in his remarks the approach to be taken in sentencing a young offender and the importance of rehabilitation even in a case of serious offending and especially when the offender was as young as the applicant. Having done so his Honour stated:

It is never easy to send a young person to prison. A court should not do so unless it is the only appropriate penalty. However, there are cases where not to do so would be to fall into appellable error and these in my view having considered many cases, all the objective factors and all the subjective factors are two such cases.

25 Complaint is made about the last sentence in that passage in the context that his Honour did not accept the two recommendations made in the Juvenile Justice report to which I have made reference: that there should be a “Griffith remand” or that his Honour should make a recommendation for release from custody on supervision. Once his Honour determined to deal with the matter at law the second recommendation had no utility. Nor in my view, given the material in the reports, was there any purpose to be served in remanding the applicant given the period that had already transpired since the offence; see R v Palu (2002) 134 A Crim R 174. There was nothing inappropriate in what his Honour said in that passage. He was merely trying to express the fact that he had considered all alternatives but that, in his opinion, a proper exercise of his sentencing discretion had to result in a custodial sentence.

26 This was a case where the Judge was met with a difficult sentencing exercise of balancing punishment for a serious offence on the one hand with the needs of a young offender on the other. It is an exercise where minds might legitimately differ as to the weight to be given to the various factors in the particular case and one where there is clearly no correct answer. Of particular significance in the present case was personal deterrence in light of the applicant’s attitudes expressed in the Juvenile Justice report and to which I have already referred. It should also be borne in mind that the applicant had to be sentenced on the basis that he pleaded not guilty and that there was no benefit to him from remorse or contrition.

27 I am not persuaded that it was not open to the Judge to determine that the appropriate course was to impose a custodial order and, having so determined, to impose the sentence that he did. It was important in that sentence to bring home to the applicant that his offending was a serious criminal offence and that it should result in the loss of his liberty albeit for a relatively short period of time. It is highly doubtful that any counselling or other assistance offered to the applicant would change his attitude generally or to the offence in particular, but a custodial sentence might at least ensure that he had second thoughts before seeking to take advantage of a female in a similar position to the complainant.

28 Although the applicant was 16 years at the age of sentence and his circumstances had changed since the offending, that fact alone or in conjunction with the other matters taken into account did not mean that his Honour erred in determining to impose a custodial sentence. Of course the applicant has been on bail for almost the entire period pending the appeal. But that is not a fact that this Court can take into account once it has determined that there was no error in the exercise of the sentencing Judge’s discretion.

29 In my view the challenge to the sentence fails but some variation needs to be made to the dates for the expiration of the sentence and the non-parole period by reason of the fact that the applicant was on bail from the 22 December 2004. Therefore, the orders I propose are that leave to appeal is granted but the appeal is dismissed. The non-parole period of 9 months is to expire on 21 January 2006 the date upon which the applicant is to be released to parole. The sentence expires in its entirety on 21 October 2006.

30 SPIGELMAN CJ: I agree.

31 HUNT AJA: I also agree.

32 SPIGELMAN CJ: The order of the Court is as indicated by Justice Howie.

**********

28/06/2005 - Edit error - Paragraph(s) 17 and 18