R v P - [2004] NSWCCA 218

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v P [2004] NSWCCA 218 revised - 11/11/2004

FILE NUMBER(S):
60236/04

HEARING DATE(S): Monday 28 June 2004

JUDGMENT DATE: 30/06/2004

PARTIES:
Regina
CP

JUDGMENT OF: Ipp JA Hulme J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0634

LOWER COURT JUDICIAL OFFICER: Urquhart DCJ

COUNSEL:
Crown: G Rowling
Applicant: J Stratton SC

SOLICITORS:
Crown: S Kavanagh
Applicant: S O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
See paragraph 55

JUDGMENT:

- 17 -

IN THE COURT OF
CRIMINAL APPEAL

60236/04
IPP JA
HULME J
HISLOP J

Wednesday 30 June 2004

R v P

Judgment

IPP JA: I agree with Hulme J.
HULME J: On 27 February 2004 Judge Urquhart sentenced the abovenamed Applicant in respect of two offences. The first was that on 27 March 2003 at Rozelle, while armed with offensive weapons, namely a meat cleaver and baseball bat he robbed Oliver Cowdrey of a wallet and its contents and immediately after the robbery wounded Mr Cowdrey. In respect of this offence the Applicant was sentenced to imprisonment for a non-parole period of 6 years commencing on 27 March 2003 together with a further term of 5 years.
The second offence was that on 27 March 2003 at Paddington being armed with offensive weapons, namely a meat cleaver and a baseball bat the Applicant robbed Jason Marlatt of a watch and a wallet and its contents. In respect of this offence the Applicant was sentenced to imprisonment for a non-parole period of 3 years also commencing on 27 March 2003 together with a further term of 3 years. His Honour directed that the term of each sentence be served in a detention centre until the Applicant attained the age of 19 years and 2 months, an event which will occur on 7 July 2004.
The first of these offences arises under s98 of the Crimes Act and carries a maximum penalty of imprisonment for 25 years. The second arises under s97(1) of that Act and carries a maximum penalty of imprisonment for 20 years.
In imposing the sentence on the first of these offences, Judge Urquhart took into account three further offences. Two were of armed robbery contrary to s97(1) of the Crimes Act. The victims were with Mr Cowdrey at the time he was robbed and in each case the property stolen was a wallet and its contents. The third offence on the Form 1 was also contrary to s97(1) of the Crimes Act and was of assault with intent to rob whilst armed. The victim of this offence was with Mr Marlatt when the latter was robbed.
The circumstances of the offences were:-
At about 8.30pm, Mr Cowdrey and two other victims were in the street when approached by the Applicant and two co-offenders Messrs JAN and Tobar. Mr JAN was armed with a baseball bat and the Applicant with a meat cleaver. The Applicant approached Mr Cowdrey, placed him in a headlock and pushed the meat cleaver against Mr Cowdrey’s throat saying “give me your wallet.” Mr Cowdrey did so. The wallet contained $300 and some personal items.
Mr Tobar robbed one of the other men. All three victims were ordered to face a fence and not move. Mr JAN patted one of the victims down and then Messrs Robar and JAN started to run away.
The Applicant who was then more or less behind Mr Cowdrey slashed at him with the meat cleaver a blow which resulted in a deep laceration to his chin area requiring 16 stitches and a 10cm long laceration to his right wrist extending down to the bone. The Applicant then fled and the three offenders left the area.
At about 8.45pm that evening Mr Marlatt and another victim were walking along a street in Paddington when the Applicant and his co-offenders approached them. Mr JAN pushed his baseball bat into Mr Marlatt’s chest and shoulder until the latter was leaning against a car. Demand was made for Mr Marlatt’s possessions and at this time the Applicant produced the meat cleaver, held it to Mr Marlatt’s throat and threatened to cut him. Mr Marlatt handed over his wrist watch and the Applicant removed Mr Marlatt’s wallet from his jeans.
At this stage Mr Marlatt’s companion called out and the Applicant started to walk towards him swinging the meat cleaver. At this time Mr JAN swung the baseball knocking Mr Marlatt to the ground unconscious.
The assault on Mr Marlatt’s companion was the third item on the Form 1.
The Applicant was arrested on the day of his offences and has been in custody since. On that day the Applicant commenced drinking at about 10.30 am and was intoxicated when he committed the offences. Because of a fight he had had with his girlfriend he was angry and when asked during the course of the sentencing proceedings why he struck Mr Cowdrey with a meat cleaver he said in evidence “there was a lot of anger inside of me”. The Applicant’s reason for committing the offence against Mr Marlatt was “just for the need of money I guess”.
Turning to other matters, the Applicant was born in Chile on 7 May 1985 and migrated to Australia with his parents in about 1990. He has had a stable and supportive upbringing within a caring and extended family. His Honour accepted that family support would continue. It appears that in about 1997 when he commenced High School there were changes in his behaviour towards fellow students and teachers at school and fighting and truancy which led to regular disciplinary action including short term and long term suspensions. The Applicant left school in year 10 without obtaining the School Certificate.
In April 2002 he was placed on probation for 12 months for an offence of taking and driving a conveyance without the consent of the owner. Notwithstanding this probation, he apparently committed an offence of robbery in company in October 2002 for which, in December of that year, he was ordered to perform 75 hours of community service.
Since going into custody the Applicant has undertaken some schooling but in July 2003 he assaulted a teacher. He was subsequently suspended, charged and placed on a 12 month good behaviour bond. However, it seems clear that he can re-commence the schooling if he remains at the detention centre.
The topics of the Applicant‘s past, the circumstances leading to his offending and his rehabilitation are ones which merit further attention. They were the subject of unusually lengthy reports from Ms Gowan and Mr Manolopoulos of the Department of Juvenile Justice, a report from Ms Mondtigny-Vivien, an AOD counsellor of that Department and a psychiatric report from Dr Westmore. The Applicant gave evidence on sentence and affirmed the accuracy of the information he had given these persons.
Ms Mondtigny-Vivien’s report recorded what can only be described as an extraordinary degree of drug and alcohol use for someone as young as the Applicant, that use commencing at the time the Applicant was about 12 or 13. During the 6 months preceding his arrest, when he was 6 weeks short of his eighteenth birthday, his alcohol intake extended regularly to a daily intake of half to one case of beer and half a bottle of spirits, i.e. up to the equivalent of about 50 drinks a day. One test directed to ascertaining the severity of alcohol dependence and which was administered indicates a high level of dependence on alcohol when the subject scores 20 or higher. The Applicant scored 32. At various times he has used methylamphetamine, ecstasy, heroin, cocaine and valium. Ms Mondtigny-Vivien’s report also records, unusually, the cessation of use of a number of these drugs during this period. His withdrawal symptoms after arrest seem to have related to only alcohol.
It is unnecessary for the purposes of these reasons to attempt to summarise all of the extensive information contained within the other reports. They refer to a deal of anti-social and inevitably self-damaging behaviour on the part of the Applicant prior to his arrest, significant attitudinal and other ongoing problems, for example, anger and limited coping strategies. It seems that prior to his offending the Applicant experienced significant depression and may well have made one or more attempts at suicide. It would seem that the Applicant has, as an incident of the company he chose, witnessed a considerable degree of violence, including stabbings. His parents raised as a significant theme, the influence on him of his peer group. Mr Manolopoulos referred to a number of factors which in combination created a significant risk of the Applicant re-offending. Dr Westmore said the risks in this regard depended on the Applicant’s ability to refrain from drug and alcohol use and break away from his previous social network.
It appears that the Applicant, while in custody, has acknowledged a number of his problems and has actively sought out and pursued professional assistance. A departmental psychologist has assessed the Applicant as amenable to counselling. Both Ms Gowans and Mr Manolopoulos indicate that the Applicant made some positive progress in realising the effects of his actions. Mr Manolopoulos said that the Applicant impressed as possessing a number of very important personal qualities that “if harnessed and used appropriately, could make him a useful member of the community”.
In addition to further education, participation in anger management and drug and alcohol programs remain available to the Applicant in the Juvenile Justice Detention system. Judge Urquhart concluded “that there is potential for rehabilitation which is to be viewed with some optimism”. His Honour accepted that the Applicant was contrite….
Dr Westmore said he was optimistic about the Applicant’s potential for rehabilitation but whether he achieved that potential would depend upon the fundamental choices the Applicant made about his future life. Dr Westmore went on:-
“The time he has already spent in juvenile detention does appear to have had some positive impact on him from a psychological perspective. I would have very serious concerns about his physical and psychological well-being should he be transferred to an adult prison. In such a setting he is likely to mix with hardcore prisoners who will have a negative impact on him psychologically.
… He is intelligent enough and insightful enough to understand he has choices and he has I think a good understanding of the possible outcomes of the various choices he might make about his future and his life.”
During the course of his remarks on sentence, Judge Urquhart correctly recognised that the first of the Applicant’s offences was one to which Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 applied. Directing attention to that division his Honour said, inter alia:-
“(there is) a standard non-parole period of 7 years for the offence of armed robbery with wounding. On behalf of the offender CP it was submitted that standard non-parole periods only apply to a sentence that follows after a verdict of guilty at trial and does not apply to a sentence that follows after a plea of guilty. I do not accept that submission.”
Later after saying that the Applicant’s pleas of guilty and remorse gave rise to a discount of 30% on each sentence his Honour remarked:-
“As to the offender CP it was he who effected the wounding of Mr Cowdery using the meat cleaver and in the course of that struck him from behind. It was a particularly aggressive and cowardly act. As with the other offender I consider that the pleas of guilty and his remorse give rise to a discount of 30% on each sentence. So far as the standard non-parole period of 7 years for the armed robbery with wounding be concerned I consider this particular offence to be far more serious than the armed robbery with wounding committed by the offender JAN against Mr Martlatt. The objective facts which I mentioned earlier in these reasons reflect my view in that regard.
Had the offence been committed by an adult and not a juvenile, I would have thought that the standard non-parole period was perhaps insufficient. Given the age of this offender, however, and the necessarily long road to rehabilitation and, without being blind to the prior robbery offence, taking into account the three offences which I do take into account, they being set out on the Form 1 document, I have concluded that in balancing those matters, the standard non-parole period should be shortened by 1 year to 6 years and that the balance of the term should be 5 years.
… After careful consideration I have concluded that concurrent sentences are appropriate also for this offender.”
His Honour then went on to impose the sentences and make the order that they be served in a detention centre which I have set out at the beginning of these Reasons.
Earlier his Honour had noted that, correctly in his view, the Crown had conceded that the Applicant had made out a case for “special circumstances”.
Four grounds are urged in support of the appeal:-
(i)His Honour erred in treating the standard non-parole period as the standard non-parole period for sentence after a plea of guilty.
(ii)His Honour did not take into account the finding of special circumstances in determining the non-parole period.
(iii)The sentence imposed by his Honour was manifestly excessive.
(iv)His Honour erred in limiting the order under s19 of the Children (Criminal Proceedings) Act to the effect that the Applicant should serve his sentence in a detention centre only until the Applicant was 19 years 2 months.
Ground (i)
At the time the Applicant was sentenced, Part 1A of Division 4 of the Crimes (Sentencing Procedure) Act had only recently come into operation. His Honour did not have available to him the exposition of the effect of that Part provided in R v Way [2004] NSWCCA 131.
It is unnecessary for the purposes of this appeal to enlarge upon that exposition. It is sufficient at this stage to observe that among the Court’s conclusions was that the period specified in the division – in the case of an offence under s98, 7 years – “should be understood as having specified for sentences imposed for mid-range cases after conviction at trial”. His Honour’s conclusion to the contrary must therefore be regarded as wrong and the Applicant has established that the sentencing proceedings in respect of the robbery with wounding offence miscarried.
Ground (ii)
In support of the second ground of appeal, counsel for the Applicant drew attention to the passage quoted above commencing with the words, “As to the offender CP” and submitted this led to the conclusion that his Honour had regarded the finding of special circumstances as permitting an extension to the balance of the term, rather than permitting a variation to the ratio between the non-parole period and the balance of the term.
Except insofar as one may so infer from the fact that the total length of the sentence imposed on the first offence is 11 years, nowhere in his Honour’s remarks on sentence is there any apparent consideration of what the total length of the sentence should be. Furthermore, his Honour seems clearly to have thought that, when all matters were taken into account, the Applicant’s criminality was not deserving of a non-parole period longer than the standard non-parole period of 7 years. If there were added to that period a further term which did “not exceed one-third of the non-parole period”, a total sentence of only 9 1/3 years would result. His Honour provided no reasons why the Applicant’s sentence should be longer than this.
Notwithstanding the temptation, provided by the terms of s44 of the Crimes (Sentencing Procedure) Act, to think that his Honour’s approach of fixing the non-parole period and then independently fixing the balance of the term is the correct approach, in fact it is not. That was decided in R v Moffitt (1990) 20NSWLR 114 at 134 in respect of earlier legislation but in R v Way the court indicated that R v Moffitt should be followed in relation to the current wording of s44.
In the result it seems to me that the irresistible conclusion is that his Honour did not take into account his finding of special circumstances as a factor in setting the non-parole period for the robbery with wounding charge. The decisions to which I have referred indicate that he should have. Again error is established.
However it is not possible to arrive at the same conclusion in relation to the second charge. On that charge the sentence imposed included a non-parole period of 3 years and a further term of 3 years although there was no explanation as to how his Honour arrived at the relativity between these periods.
Absent a finding of special circumstances the non-parole portion of a 6 year sentence is required to be 4½ years, so it is clear that his Honour has made a substantial variation. It is thus impossible to draw the inference necessary to uphold this ground of appeal in respect of the armed robbery charge.
Ground (iii)
The third ground of appeal, as has been said, is that the sentence imposed by his Honour was manifestly excessive. It may be inferred that the ground was intended to refer to both sentences. The conclusions at which I have arrived mean that it is unnecessary to consider this ground in relation to the robbery with wounding count. However in relation to that count, the question still arises under s6(3) of the Criminal Appeal Act whether “some other sentence, whether more or less severe is warranted in law and should have been passed”.
That question should be answered in the affirmative. A total sentence of 11 years for the robbery with wounding offence, after allowing a discount of 30% to which Judge Urquhart said the Applicant was entitled on account of his pleas and remorse, leads to a starting point of 15½ or 16 years. This is about two thirds of the maximum penalty of 25 years provided by the section of the Crimes Act against which the Applicant offended. Although his offence was bad, it was a long way short of a “worst case” which could arise under the section, i.e. one involving much more premeditation, much more money at stake and substantially greater injuries. And that comparison takes no account of the Applicant’s youth.
Furthermore, 15½ or 16 years is also substantially more than the total sentence indicated by the standard non-parole period of 7 years for an offence under s98 specified in Part 1A of Division 4 of the Crimes (Sentencing Procedure) Act for an offence in the middle range of objective seriousness. As has been said, if there were added to the 7 years non-parole period a further term which did “not exceed one-third of the non-parole period”, viz the normal further period contemplated by s44 of the Crimes (Sentencing Procedure) Act a total sentence of 9 1/3 years would result. There is no adequate reason for the disparity.
There are some other matters to which reference should be made. Some, for example motivation and the Applicant’s mental state at the time, were regarded in R v Way as bearing on the “objective seriousness” – as those terms are used in Part 1A - of the offence. Such factors as are relevant here – the Applicant’s anger, need for money and self-induced intoxication do nothing in the circumstances of this case to ameliorate his offending.
Among the other strictly subjective considerations, those which stand out are the Applicant’s pleas and his youth. I have said sufficient in relation to the first of these.
I confess that my initial reaction was to give the topic of the Applicant’s youth relatively little weight. As was said in R v Hearne [2001] NSWCCA 37 at [25-28] part of the rationale for making an allowance for an offender’s youth is the immaturity which is generally an incident of that state but that “it takes no great maturity to appreciate in the course of planning for example, an armed robbery or other instance of violence that such activities infringe the rights of others in a way that no civilised society can tolerate”. After all, children at kindergarten or primary school are taught not to take things from others by force.

Further reflection however has led me to the view that recognition must be afforded to the age at which the Applicant’s life, to use a colloquialism, went off the rails. It was at an age where there is a deal of immaturity and in a manner such that immaturity was almost certainly a major contributing factor. It is not difficult to see the likely snowballing effect of the values, lifestyle and company he then chose.
Thus, although the gravity of the Applicant’s offending was so obvious that even he, in an intoxicated state, should have been able to realise and avoid it, and accordingly his youth is not entitled to the significance it might have had in other circumstances, it still seems to me that appreciable weight must be given to the general principle, quoted in GDP (1991) 53 A Crim R 112, 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”
As has been said, his Honour allowed a discount of 30% for the Applicant’s remorse and pleas, a term by which I understand his Honour to have been referring to the utilitarian value of the pleas of guilty. I prefer to deal separately with the topics of the utilitarian value of pleas of guilty and remorse separately. It was conceded that the Applicant had pleaded guilty at the first available opportunity and accordingly, an appropriate allowance for the utilitarian value of the pleas is 25%.
As did Judge Urguhart, I take the view that the case is not one where the standard non-parole period should be imposed. My reasons for this conclusion lie principally in the Applicant’s plea and his youth and, to a lesser extent because of the existence of special circumstances which justify a longer non-parole period than one third of the appropriate non-parole period. I turn then, as R v Way at [121] should occur, to normal sentencing practice. Notwithstanding the order of events envisaged by s44(1), I record that in my view an appropriate starting point for the determination of the sentence appropriate to the offence of robbery with wounding is 9 years. That period should be reduced by 25% on account of the Applicant’s plea. Thus the total sentence for this offence should be 6¾ years imprisonment.
I make it clear that in so concluding I have taken into account the 3 offences on the Form 1 although in the circumstances of this case, I have not given them much weight. Those offences occurred as part of the criminality pursuant to which the offences charged were committed and their seriousness was less. Furthermore, they do not seem to me to add anything significant to the need for personal deterrence and retribution in this case – see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518 at [42].
I have also taken into account the content of affidavits, admitted on the usual basis in the Applicant’s appeal, and the variety of matters referred to in s21A of the Crimes (Sentencing Procedure) Act. I do not regard it as necessary to deal with these seriatim. Those of present appreciable significance are referred to in these reasons or in Judge Urquhart’s remarks on sentence.
It remains necessary to consider the complaint that the sentence in respect of the offence of armed robbery was manifestly excessive. Upon the assumption the period of 6 years imprisonment imposed for this offence was arrived at after a discount of 30%, his Honour’s starting point must have been 9 years.
In R v Henry (1999) 46 NSWLR 346, this Court set down as a guideline, that for an offence answering the description there detailed, a sentence of 4 to 5 years imprisonment was appropriate. Upon the basis that the guideline assumed a late plea of guilty – see R v Thomson and Houlton (2000) 49 NSWLR 383 at [161] - for which a discount of 10% is normally allowed - see R v Thomson and Houlton at [152-156], one may infer that the starting point must have been about 4½ to 5½ years.
In the commission of the offence against Mr Marlatt, the fact there were 3 offenders, the presence of 2 weapons and the Applicant’s holding of the meat cleaver to Mr Marlatt’s throat puts the objective characteristics of this offence at a level higher than the example given in R v Henry. Furthermore, the sentence imposed must have reflected to some extent the aggravating circumstance of one offence on the Form 1, an offence involving further property taken and, more significantly, another victim.
In that all that R v Henry sought to do was provide a guideline, it is implicit that a starting point higher than 5½ years for an offence falling precisely within the circumstances used as an example in that case is not inappropriate or wrong. I confess that once allowance is made for that fact, and the additional seriousness in the offence against Mr Marlatt, my mind has vacillated on the question of whether a starting point of 9 years can be regarded as manifestly excessive or outside the legitimate range of Judge Urquhart’s sentencing discretion. Ultimately, the conclusion at which I have arrived is that the sentence imposed on the second count was outside that range. In arriving at that conclusion I am influenced particularly by the fact that, because the Applicant’s irresponsible behaviour started as early as it did, his youth is entitled to more weight than is normally given to the youth of offenders of his age.
Having reached that conclusion, it becomes necessary for this Court to set an appropriate sentence for this offence. Although I would not regard this at the top or bottom of the range, I would use as a starting point 7 years. After an allowance of approximately 25% for the Applicant’s plea, the sentence I would propose for this offence is 5 years. To reflect what Judge Urquhart did, I would divide this period equally into a non-parole and additional term.
Judge Urquhart made the sentence he imposed in respect of the offence against Mr Marlatt fully concurrent with that imposed on the more serious charge. Having regard to the fact that the second offence was committed half an hour or so later and in a different suburb and on another victim, that was not appropriate and while the principle of totality makes some concurrence necessary, there should have been some additional punishment for the second offence. The commencing date in the case of the offence against Mr Marlatt was 27 March 2003. In my view the commencing date for the robbery with wounding offence should be 6 months later.
That means the Applicant’s effective sentence will be 7 years and 3 months. The concession and finding of special circumstances – a conclusion which the fact of accumulation of sentences reinforces - means that the effective non-parole period should be less than ¾ of this. In my view it should be 4 years.
Ground (iv)
I turn then to the fourth ground of appeal namely the limit his Honour placed on his direction that the Applicant’s sentence be served in a detention centre, viz. only until he was 19 years and 2 months old.
Although his Honour referred to the fact that the Children (Criminal Proceedings) Act 1987 precluded a sentence of imprisonment extending beyond an offender’s 18th birthday being served in a detention centre unless certain matters were satisfied he provided no reasons for the limitation he imposed beyond saying that the period prior to him attaining the specified age would “provide a buffer period before his transfer to (an adult) jail and will help to deal with the concerns expressed by Dr Westmore.” His Honour had earlier said that there were special circumstances for the Applicant to continue in a Juvenile Detention Centre.
The limitations imposed by the Children (Criminal Proceedings) Act are:-
“19(1)If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or part of the term of the sentence of imprisonment be served in a detention centre.
(2)A person is not eligible to serve a sentence of imprisonment in a detention centre after the person has attained the age of 21 years, unless:
(a)in the case of a sentence for which a non-parole period has been set – the non-parole period will end within 6 months after the person has attained that age,
or
(b)in the case of a sentence for which a non-parole period has not been set – the term of the sentence of imprisonment will end within 6 months after the person has attained that age.
(3)A person who is sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve a sentence of imprisonment in a detention centre after the person has attained the age of 18 years, unless:
(a)the sentencing court is satisfied that there are special circumstances justifying detention of the person in a detention centre after that age, or
(b)in the case of a sentence for which a non-parole period has been set – the non-parole period will end within 6 months after the person has attained that age, or
(c)in the case of a sentence for which a non-parole period has not been set – the term of the sentence of imprisonment will end within 6 months after the person has attained that age.
This subsection is subject to subsection (2).
(4)In determining whether there are special circumstances for the purposes of subsection (3), the court may have regard to the following matters:
(a) the degree of vulnerability of the person;
(b)the availability of appropriate services or programs at the place the person will serve the sentence of imprisonment,
(c) any other matter that the court thinks fit.”
The Respondent’s date of birth of 7 May 1985 and the fact his sentence commenced on 27 March 2003 means that he will have served only 3 years and 6 weeks by the time he is 21. In light of the provisions of s19(2) and the length of the sentence I propose, it is inevitable therefore that he will have to serve some of his non-parole period in an adult prison. Thus it is not possible to give full operation to Dr Westmore’s views.
Although the reports which are in evidence did not direct specific attention to the extent of the services of programs which are available in a detention centre or in a gaol, those reports do make it apparent that in a detention centre there are programs of appreciable benefit to the Applicant. The Court can take judicial notice of the fact that the programs and services in an adult gaol are significantly less than in a detention centre.
54 The reports to which reference has been made lead me to the conclusion that the Applicant has still a long way to go and the more counselling and assistance he receives the better his prospects of rehabilitation. In these circumstances, it seems to me that Judge Urquhart’s order that the Applicant serve his sentence in a detention centre until he is 19 years and 2 months should be quashed and in lieu thereof it be ordered that he serve his sentence in a detention centre until he is 21 years old. I am satisfied that “special circumstances justifying detention in a detention centre” exist.
Accordingly I would propose the following orders:-
1. Grant leave to appeal.
2. Allow the appeal.
3.Quash the sentences and order under s19 of the Children (Criminal Proceedings) Act made by Judge Urquhart on 27 February 2004.
4.In respect of the second count, of armed robbery, the Applicant is sentenced to imprisonment for a non-parole period of 2 years and 6 months commencing on 27 March 2003 and a further term of 2 years and 6 months commencing on 27 September 2005.
5.In respect of the first count, of armed robbery with wounding, the Applicant is sentenced to imprisonment for a non-parole period of 3 years and 6 months commencing on 27 September 2003 and a further term of 3 years and 3 months commencing on 27 March 2007.
6.Order, pursuant to the provisions of s19 of the Children (Criminal Proceedings) Act 1987, that the term of each sentence be served in a detention centre until the Applicant attains the age of 21 years.
HISLOP J: I agree with Hulme J.

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LAST UPDATED: 11/11/2004