R v PB

[2008] NSWCCA 109

Reported Decision: 184 A Crim R 552

New South Wales

Court of Criminal Appeal

CITATION:	R v PB [2008] NSWCCA 109
HEARING DATE(S):	7/5/08
JUDGMENT DATE:	26 May 2008
JUDGMENT OF:	Bell JA at 1; Johnson J at 61; McCallum J at 62
DECISION:	1. Allow the appeal and quash the sentence imposed in the District Court 2. In lieu thereof, the respondent is sentenced to a non-parole period of three years and six months to date from 4 September 2007. The first date on which the respondent will be eligible for consideration for release on parole is 3 March 2011. The balance of the term of the sentence is three years and three months and will expire on 2 June 2014 3. Pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 order that the respondent serve the sentence of imprisonment as a juvenile offender until his 21st birthday.
CATCHWORDS:	CRIMINAL LAW – armed robbery with wounding - SENTENCING – Crown appeal - juvenile offender - patent error and insufficient weight to objective seriousness
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 (NSW) Children (Detention Centres) Act 1987 Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES CITED:	DB v R [2007] NSWCCA 27 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 DNN v R [2007] NSWCCA 27 Mason v R [2005] NSWCCA 403 R v AEM, KEM & MM Snr [2002] NSWCCA 58 R v Henry (1999) 46 NSWLR 346 R v Myers, Court of Criminal Appeal (unreported) 13 February 1990 R v Nahle [2007] NSWCCA 40 R v P [2004] NSWCCA 218 R v Pham & Ly (1991) 55 A Crim R 128 R v Stambolis [2006] NSWCCA 56 R v Tran [1999] NSWCCA 109 R v Way [2004] NSWCCA 131; 60 NSWLR 168
PARTIES:	Regina (Appellant) PB (Respondent)
FILE NUMBER(S):	CCA 2008/00000162
COUNSEL:	Ms L Wells (Crown) Ms C Loukas (Respondent)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) Aboriginal Legal Service (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0221
LOWER COURT JUDICIAL OFFICER:	Coorey DCJ
LOWER COURT DATE OF DECISION:	15/10/07

CCA 2008/00000162

BELL JA
JOHNSON J
McCALLUM J

Monday 26 May 2008

Regina v PB

Judgment

1 BELL JA: This is an appeal by the Director of Public Prosecutions against the inadequacy of the sentence imposed on the respondent on his conviction for an offence of armed robbery with wounding. The offence is provided for by s 98 of the Crimes Act 1900 (NSW) and carries a maximum sentence of 25 years’ imprisonment. It is an offence to which Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies. The standard non-parole period is seven years. The respondent was sentenced to a term of four years’ imprisonment comprising a non-parole period of 22 months with a balance of term of two years and two months.

The facts

2 The primary Judge made brief reference in his reasons to the facts of the offence, noting that they were detailed in the statement of the complainant, George Kayrouz. The following is a summary of the facts drawn from Mr Kayrouz’ statement and from the Judge’s reasons, which were not in issue at the sentencing hearing.

3 At around 6.30am on 26 August 2006 Mr Kayrouz, a 20 year-old apprentice carpenter, was seated in his vehicle, a Toyota utility, outside a construction site in Cope Street, Waterloo. He had been engaged to work at the site and he was waiting for it to open. A man named Wally who lived next door to the construction site came over to Mr Kayrouz’s car and the two men were talking.

4 A noisy group of at least four young men and two young women walked past Mr Kayrouz’s vehicle. Two of the young men “started rumbling with each other”. They were falling against the bonnet of the utility and Wally remonstrated with them, telling them that it was not their vehicle. At this point the respondent called out, “Do you want to staunch up do you want to be a hero … let’s get him.” The two who had been “rumbling” started walking towards Wally, who backed away. Mr Kayrouz opened the door of the utility to get out. He had his right leg out of the cabin when the respondent approached the vehicle and took hold of the door with both his hands, slamming it against Mr Kayrouz’s leg twice in quick succession. The driver’s window was open and the respondent punched Mr Kayrouz through it. The blow landed on his face. One of the young women called on the respondent to, “relax, stop it”, without success.

5 Mr Kayrouz had a Stanley knife, which he used for work purposes, in the leg pocket of his pants. The pocket was exposed because Mr Kayrouz’s leg was trapped outside the vehicle with the door jammed against it. The respondent took the Stanley knife and repeatedly stabbed at Mr Kayrouz with it. After a time it appeared that the respondent realised that the blade of the knife was not exposed. He opened it and then stabbed Mr Kayrouz to the right hand, the neck and the face. Throughout the assault he was demanding that Mr Kayrouz hand over his wallet. Mr Kayrouz reached into the storage compartment of the vehicle and took out his wallet and handed it to the respondent. The respondent then ran from the scene.

6 Mr Kayrouz sustained a cut to his right cheek, which was six centimetres long. It was an ugly wound that was sufficiently deep to require repair with skin glue. Dr Williams, a plastic surgeon, reported that there is no possibility of improvement by plastic surgical scar revision. Mr Kayrouz also sustained a laceration to the left side of his neck that was eight centimetres long and a laceration to the right hand that was two centimetres long.

7 The facial scar is prominent and disfiguring.

8 The respondent’s palm prints were identified on the utility and, several months after the assault, he was arrested and charged. Mr Kayrouz identified a photograph of the respondent from a display of photographs.

9 Mr Kayrouz prepared a victim impact statement, which was received in evidence, and he also gave oral evidence at the sentencing hearing. He was in shock at the time of the assault and after it he recalled being concerned about the amount of blood that he had lost. He was off work for two weeks as a result of the assault. On his return to work he was fearful about walking around the streets in Waterloo. Generally, he had lost trust in people and had become socially isolated. He was self-conscious about the scars to his face and neck. He had bad dreams, difficulty sleeping and flash-backs of the assault. The assault occurred close to Mr Kayrouz’s final apprenticeship exams. In the aftermath of it he had found it difficult to concentrate and failed one subject. At the date of the sentencing hearing he was repeating this subject.

10 The respondent’s plea of guilty was entered on the day on which the proceedings were fixed for trial.

11 Nineteen days before this offence the respondent was released on a bond, arising from his commission of a robbery, which was subject to the supervision of the Department of Juvenile Justice.

The subjective case

12 A report by a Ms Anderson of the Department of Juvenile Justice detailed the respondent’s background. He was aged 17 years and eight months at the date of the offence. He is an Aboriginal man who was born in Lismore and has an extended family living in that area. He is the oldest of five siblings. He has had only intermittent contact with his father. As a child he enjoyed a close relationship with his step-grandfather, who is a respected member of the Tabulam community. The family moved frequently and the respondent’s life from around the age of 14 was characterised by considerable instability. In the months leading up to the offence the family was homeless.

13 Ms Anderson reported that the respondent was extremely ashamed of his actions. He is a young person with a sense of loyalty to his family and strong attachment to his siblings. Since the offence he had been addressing his alcohol issues and had resisted his peers, who were engaging in anti-social behaviour. He had made a conscious effort to reduce his use of cannabis. Ms Anderson considered that he had insight into his previous offending and the social impact of it.

14 Mr Champion, a consulting clinical psychologist, interviewed the respondent in July 2007. Intelligence testing placed the respondent in the upper half of the average range, indicating that he has sound intellectual resources. Mr Champion said that the respondent presented with a history suggestive of conduct disorder, secondary to alcohol/cannabis abuse and “sub-cultural associations”. His substance abuse at the time of the offence seemed to have reached a serious level. He did not present as mentally ill, or as obviously seriously psychologically disturbed.

15 The respondent gave a history to Mr Champion that he had been drinking in a park with a group of others for about 12 hours before the offence. The group had been moved on from the park by the police not long before the offence. In Mr Champion’s opinion the primary treatment goal is to address the respondent’s abuse of alcohol.

16 Darren Ryan, a Juvenile Justice worker with South Sydney Youth Services (SSYS), also provided a report. The respondent had been accepted into the SSYS post-release support program in December 2006 and Mr Ryan had worked extensively with him and with Ms Anderson. The respondent had been punctual, attentive and well-mannered. He had worked as a volunteer with SSYS fixing and maintaining bicycles used by disadvantaged children. He had attended a training camp for young people and, as one of the oldest members of the group in various activities, had shown leadership. He had respected his bail conditions and the requests of those supervising him regarding attendance at appointments.

The grounds of challenge

17 The sentence is challenged on the ground of manifest inadequacy. In written submissions the Crown identified five aspects of the Judge’s reasons that are said to disclose patent error:

(i) Failing to have proper regard to the standard minimum non- parole period as a guide to the imposition of sentence and, in association with this, failure to assess where the offence fell within the range of objective seriousness;

(ii) Misapplication of the guideline judgment in R v Henry;

(iii) According undue weight to the use and prospects of rehabilitation of the respondent and to his plea of guilty;

(iv) Failing to have regard to the aggravating factor that the respondent was on a bond at the time of the offence;

(v) Giving undue weight to sentencing statistics that were tendered by defence counsel, which related to the offence of unlawful wounding with intent contrary to s 33 of the Crimes Act 1900.

(i) The failure to have regard to the standard non-parole period

18 His Honour’s remarks commenced with the observation that, “it is agreed between the parties that the standard non-parole period does not apply to this matter.” (ROS 1.4) This would appear to have been a reference to the Crown’s acknowledgment that, in light of the decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168, the standard non-parole period did not apply because the respondent was being sentenced on his plea of guilty.

19 In Way the Court explained that the standard non-parole period for an offence is to be taken as having been intended for a middle-range case where the offender was convicted after trial (at 184, [68]). The Court discussed the significance of the standard non-parole period sentencing in cases in which there has been a plea of guilty (at 192, [122] - 193, [130]). The standard non-parole period takes its place as a reference point or benchmark along with other aids. The Court observed (at [122]):

“In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty.”

20 The standard non-parole period can only serve as a meaningful reference point if an assessment is made of where the offence falls in comparison with an offence in the middle range of objective seriousness. Ms Loukas, who appeared for the respondent, acknowledged that the Judge had not, in terms, carried out such an assessment. She pointed out that his Honour had found that “this was a serious offence and was a terrifying experience for the victim” (ROS 2.4).

21 His Honour returned to the objective seriousness of the offence (at ROS 8.3). His remarks were made in the context of explaining why, notwithstanding the respondent’s successful progress towards rehabilitation, a sentence of fulltime custody was required. In my opinion, read as a whole, his Honour’s remarks do demonstrate that he paid no regard to the standard non-parole period because he considered that it had no application to a case in which the offender had pleaded guilty. This was an error. However, this would not found a successful appeal by the Crown if the sentence was nonetheless one falling within the range of discretion.

(ii) The Henry guideline

22 At the sentencing hearing the Crown’s written submissions contained the following propositions concerning the Henry guideline:

“1.2 R v Henry (1999) 46 NSWLR 346, dealt with s 97(1) (20 years) armed robbery (ie without wounding) matters after a plea of guilty, indicating a sentence of four to five years for the full term. The Henry guideline applies to the sentencing of children: R v SDM (2001) 51 NSWLR 530; TS NSWCCA 194 at para 32.
1.3 The Henry guideline does not directly apply, however it applies to a less serious class of offence. Henry indicates a low water mark for sentencing in the present case. Henry is available as a low water mark for non- Henry cases: Lesi [2005] NSWCCA 63 (robbery in company) at para 31. Stanley [2003] 233 (assault to rob in company (sic)) at para 14.”

23 The guideline promulgated in Henry is applicable to a category of case which the Court identified as having these features (at 380, [162]) :

(i) young offender with little or no criminal history;
(ii) weapon like a knife, capable of killing or inflicting serious injury;
(iii) limited degree of planning;
(iv) limited, if any, actual violence but a real threat thereof;
(v) victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) small amount taken;
(vii) plea of guilty, the significance of which is limited by a strong Crown case.

24 The Judge distinguished the guideline range from this case saying, “this young offender is in a different situation to Henry because in that case the offender was an adult. I also note that in Henry’s case there was some degree of planning for the crime.” His Honour appears to have overlooked the fact that this was an aggravated offence under s 98 which carries a higher maximum penalty than the maximum penalty for the guideline offence. The respondent was a juvenile, he was close to being an adult and, as the guideline makes clear, it is directed to young offenders. Among the cases considered by the Court in promulgating the guideline was R vTran [1999] NSWCCA 109 at [13]-[14], which concerned an 18 year old offender.

25 This was an offence that involved the infliction of significant physical injury. It was committed in company. The relevance of the Henry guideline to the sentencing of the respondent is that it states a range that is below the range that is appropriate for this offence.

(iii) The weight given to the respondent’s subjective case

26 In the Crown’s submission, the Judge erred in that he gave undue weight to the respondent’s admittedly strong subjective case. In the result the sentence failed to reflect the objective gravity of the offence. Towards the end of his remarks on sentence the Judge said:

“It would have been much easier for me to have sentenced this young man a couple of minutes after the commission of the offence or even a couple of days after the commission of the offence. The problem I have is that with a year plus having elapsed this young man has made a remarkable effort to rehabilitate himself and that is to his credit” (ROS 8.5)

27 As the Crown correctly noted, the emphasis given to rehabilitation as distinct from retribution and deterrence in the sentencing of young offenders is a principle that is subject to significant moderation in respect of young persons who commit violent adult crimes: R v Pham & Ly (1991) 55 A Crim R 128; R v AEM, KEM & MMSnr [2002] NSWCCA 58 at [97].

28 The Judge took into account the following circumstances which, on the respondent’s submission, mitigated the objective seriousness of the offence:

· There was no evidence that the offence formed part of a planned criminal activity to rob a person or persons;

· The respondent’s action in wounding and robbing the complainant could be seen as being spontaneous;

· The respondent was not armed at the time he approached the complainant;

· The weapon used in the wounding belonged to the complainant, who used it in connection with his work.

29 There is a measure of overlap between each of these factors. His Honour appears to have placed significant weight on the finding that the wounding was spontaneous. His Honour did not refer to the circumstances surrounding the wounding, which I have described at [5] above. It is true that the robbery was unplanned and that the respondent had not armed himself in advance. However, the wounding was deliberate and callous. The stab wounds to the neck and face were particularly serious features of the offending.

30 The Judge recorded the agreement of the parties that the plea of guilty had been entered at the first opportunity and that the respondent was entitled to a “full discount”. His Honour discounted the sentence by 25 per cent. The concession made by the Crown at the sentencing hearing was wrong. The plea was entered on the day fixed for trial in circumstances in which it appears that agreement had been reached between the parties that the respondent would plead guilty to an offence contrary to s 98 and not to the offence with which he had initially been charged. This did not make the plea one entered at the first opportunity. There was no evidence that the respondent had offered to plead guilty to an offence under s 98 at any time prior to the date fixed for his trial: R v Stambolis [2006] NSWCCA 56.

31 The Crown Prosecutor on the hearing of the appeal acknowledged that little weight might be given on a Crown appeal to a complaint that the sentencing Judge allowed a 25 per cent discount in circumstances in which the Crown’s stance at the sentencing hearing contributed to the error. In the Crown’s submission in the event the appeal succeeded it ought not to be bound by the concession. I accept that this is so.

(iv) The failure to take into account an aggravating factor

32 The Crown submitted that it was an error for the Judge not to have taken into account as an aggravating factor the fact that the respondent was on conditional liberty at the time of the offence in relation to an offence of a similar nature: s 21A(2)(j) of the Sentencing Procedure Act. In the course of summarising the submissions made by the Crown, his Honour did refer to the circumstance that the respondent had been placed on a bond for a robbery offence 19 days before the commission of this offence. He does not appear to have taken it into account as a circumstance of aggravation, which it was.

(v) The weight given to sentencing statistics concerning the offence of unlawful wounding.

33 In the course of the sentencing hearing defence counsel referred the Judge to the sentencing statistics maintained by the Judicial Commission of New South Wales in respect of juvenile offenders who had pleaded guilty to the offence of malicious wounding with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act. In his remarks on sentence his Honour said:

“He has referred me to the sentencing statistics in this matter from the Judicial Commissioner of New South Wales (sic) and I note that in a small sample of offenders the largest column of offenders received a non-parole period of two years for offences of robbery with wounding in situations where there was a plea of guilty and the offenders were under the age of eighteen years.” (ROS 7-8)

34 Ms Loukas submitted that nothing turned on the Judge’s reference to the statistics as being “for offences of robbery with wounding”, which, it was said, was a slip of the tongue. Defence counsel had made clear to the Judge that the statistics related to the s 33 offence, which is also an offence with a maximum sentence of 25 years and a standard non-parole period of seven years.

35 The Crown noted that the statistics for juvenile offenders who have pleaded guilty to a s 98 offence comprise only three cases and that in these instances the full terms ranged between five and seven years with non-parole periods of between three years and 42 months.

36 The statistics were handed up on the day that his Honour delivered ex tempore reasons. It may be that his Honour’s reference to them as statistics for the s 98 offence was an inadvertent slip. Nevertheless, there remains substance to the Crown’s complaint. Given that the statistics related to a different offence the assistance which they provided was of a much more peripheral nature than the remarks on sentence suggest his Honour attributed to them.

37 The Court was taken to a schedule setting out particulars of five cases involving offenders who had pleaded guilty to one or more offences under s 98. The first of these, FQ, New South Wales Court of Criminal Appeal, (unreported), 17 June 1998, can be put to one side; the offender was aged 14 years and different considerations apply to the sentencing of a child of 14 than to an offender aged 18 at the date of sentence and who was 17 years and eight months old at the date of the offence.

38 The remaining cases to which the Court’s attention was directed are summarised below:

· R v P [2004] NSWCCA 218. Aged 17 years. The offender had a record for robbery in company. In sentencing him for an offence involving the robbery of a stranger on a street, three related robbery offences were taken into account on a Form 1. The victim was slashed with a meat cleaver, causing laceration to the chin and wrist. A second victim was knocked unconscious by a co-offender. A sentence of 11 years with a non-parole period of six years was reduced on appeal to seven years three months, with a non-parole period of four years.

· Mason v R [2005] NSWCCA 403. Aged 18 years. The offender robbed a taxi driver, locking him in the boot of the vehicle. A male bystander investigating noise from the taxi was robbed and received a wound to the face. A seventeen year old male was robbed and struck with a beer bottle. All the offences were committed in company. The offender pleaded guilty to one offence under s 98 and two offences on a Form 1. The offender was Aboriginal and he was intoxicated at the time. He had experienced a traumatic childhood. An appeal against the severity of the sentence of eight years and six months’ imprisonment with a non-parole period of six years was dismissed.

· DB v R [2007] NSWCCA 27. Aged 16 years. The offender pleaded guilty to three offences under s 98 and 11 offences were taken into account on a Form 1. The offences involved the armed robbery of computer stores. They were committed in company. The owner/employees of the stores were tied up, threatened and struck. The weapons used in the offences included a pistol and a knife. The offender had a previous conviction for an aggravated robbery offence. The Court allowed an appeal against the severity of the sentence of 12 years and seven months’ imprisonment (non-parole period eight years). The Court substituted a sentence of 10 years’ imprisonment with a non-parole period of six years.

· DNN v R [2007] NSWCCA 27. The offender pleaded guilty to four offences under s 98. A further 19 offences were taken into account on a Form 1. The offender had a record for receiving and goods in custody. On appeal, a sentence of 16 years with a non-parole period of 10 years was reduced to a sentence of 12 years with a non-parole period of eight years.

39 The sample of cases is too small to identify a range. However, such assistance as they provide tends to support the Crown’s case.

40 Ms Loukas pointed to the powerful evidence of the respondent’s favourable rehabilitation in support of the submission that a sentence of four years was not so lenient as to bespeak error of the degree that would justify a successful appeal by the Crown: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at 340-341, [61]-[62]. She took the Court to the judgment of Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70], which contains a concise statement of the principles of restraint which govern the determination of Crown appeals.

41 The deliberate infliction of stab wounds to the face and neck and the fact that the offence was committed in company are features which support the Crown’s submission that this was an offence falling in the mid-range of objective seriousness of offences of this type. An aggravating factor was that the respondent was on a bond for an earlier robbery offence. In my opinion, the sentence of four years with a 22 month non-parole period was so inadequate as to be plainly unjust.

The discretion

42 The Court retains a discretion to refuse to intervene in a Crown appeal notwithstanding that error has been established. The Court received evidence concerning the respondent’s progress in custody on the basis that it would be taken into account on the question of discretion, as well as any re-sentencing.

43 In an affidavit sworn on 7 May 2008 the respondent said that shortly after being sentenced he had been taken to the Baxter Juvenile Justice Centre. While incarcerated in that centre he had attended school from Monday to Friday, studying English, Maths, Cooking, Art and Music. He had attended interviews with a psychologist on a weekly basis and completed a course in leadership. He was on a waiting list to undertake a bricklaying course. He had regular contact with Ms Anderson, his Juvenile Justice officer, and with his youth worker, Darren, from South Sydney Youth Services. He said that Ms Anderson and Darren encouraged him to stay away from detainees who were getting into trouble and that he refused to touch drugs and alcohol that he had been offered while in the Baxter facility. Earlier this year he had been told that he was on a waiting list to go to gaol. On 1 April 2008 he had been transferred to the John Morony Correctional Centre. The John Morony Correctional Centre is an adult gaol. He is sharing a cell with another person in that institution. He has not had any trouble with his cellmate. He spends a greater amount of the day locked in his cell than he did in the Baxter centre. It would appear that he is no longer attending school.

44 The respondent hopes to obtain work as a steel fixer on his release from custody and he is attempting to gain admission to courses in gaol that will give him qualifications in this field. He expresses his regret for his offence.

45 Darren Ryan, the Juvenile Justice worker attached to the South Sydney Youth Service, in an affidavit affirmed on 7 May 2008 describes his contact with the respondent while he was in the Baxter facility. Mr Ryan says that initially the respondent was uncomfortable in his unit in the Baxter facility because of tensions between other detainees. Shortly before his transfer to the John Morony Centre the respondent had settled and become focussed on gaining skills for his future. Mr Ryan sees great potential for the respondent to be a mentor for younger Aboriginal people. On the respondent’s release from custody the SSYS will continue to provide support to him.

46 At the date of sentencing the respondent, who was born in December 1988, was aged 18 years and 10 months. The Judge directed that the sentence imposed on the respondent was to be wholly served in a juvenile institution and, if possible, at the Baxter facility. His Honour stated, for the purposes of s 19(3) and (4) of the Children (Criminal Proceedings) Act 1987 (NSW), that in making this direction he had regard to the vulnerability of the respondent and to the availability of appropriate services or programs at the place at which he would serve the sentence.

47 The Crown made inquiries of the inmate classification section of the Department of Corrective Services concerning the reasons for the decision (despite the order made by the Judge) to transfer the respondent to an adult institution. Mr Stephens, State Co-ordinator of the Young Adult Offender Program, advised that the respondent had been transferred pursuant to an order made under s 28 of the Children (Detention Centres) Act 1987. Notable in Mr Stephens’ response to the request made by the Director of Public Prosecutions is the absence of an explanation of the reasons why the order was made.

48 Section 28 empowers the Director General by order in writing, made with the consent of the Commissioner of Corrective Services, to direct the transfer of an older detainee from a detention centre to a correctional centre. The respondent is an older detainee. There is no suggestion either that the respondent applied to the Director General seeking a transfer to a correctional centre or that his behaviour had been such as to warrant the making of an order transferring him. It may be that the order was one made under s 28(2A)(c), a provision which appears to confer a broad power to make such an order in respect of a person who is subject to control by reason of an order in force under s 19 of the Children (Criminal Proceedings) Act.

49 Ms Loukas submitted that in the exercise of discretion the Court would not intervene and increase the sentence imposed on the respondent in circumstances in which, as the result of an unexplained administrative decision, he has been transferred to an adult facility without access to the programs and services that the Judge considered he should have. The Crown Prosecutor submitted that the transfer did not relevantly bear on the exercise of the Court’s discretion not to intervene. One can envisage cases in which the failure to give full effect to the sentencing court’s intention expressed in an order made under s 19 might justify refusal to intervene on an appeal brought by the Crown. In the circumstances of this case I do not consider it should have that effect. This is because of the serious character of the offence, which requires the imposition of a significantly longer sentence of imprisonment.

50 The second consideration affecting the discretion not to intervene is the delay in bringing the present appeal. Sentence was imposed on 15 October 2007. By letter dated 19 November 2007 the respondent was advised that the Director of Public Prosecutions was giving consideration to an appeal against inadequacy of sentence and that he would be advised of the Director’s decision “as soon as possible”. There was a significant period of further delay before the notice of appeal was lodged on 9 January 2008.

51 In R v Myers, Court of Criminal Appeal (unreported) 13 February 1990, consideration was given to the significance of delay in the case of an appeal by the Crown. The Court said:

“There has, however, been some delay by the Crown in instituting the appeal. The sentences were imposed on 4 August. The respondent was informed by letter dated 17 August that the Crown was considering an appeal. The Notice of Appeal was not filed under 25 September and then not served until 1 November. The respondent was thus not made aware of the existence of the appeal for a period of almost three months. This Court has often exercised its discretion not to interfere with a manifestly inadequate sentence by reason of such delay: eg R v Colin McDonald ; DPP v Garnun ; R v Astell. The only explanation which has been put forward for the delay in the present case is bureaucratic inefficiency, mainly in the production of a draft transcript of the judge’s remarks on sentence, and then within the Police Department in serving the Notice of Appeal. That is not a sufficient explanation.
In the present case, the respondent had at least been speedily warned that a Crown appeal was being considered, although that would not alone excuse the delay which thereafter occurred. In the end, I would be prepared to interfere with the sentences in the present case only because there is no element of having to return the respondent to custody.”

52 In this case the delay is commensurate with that in Myers. We were informed that there had been some difficulty in obtaining the transcript of the Judge’s remarks on sentence, however it was not suggested that this justified the delay.

53 The Crown Prosecutor drew attention to the observations of Howie J in R v Nahle [2007] NSWCCA 40 at [41] to the effect that the discretion to refuse a Crown appeal in circumstances in which there has been delay is more likely to be exercised where the respondent has received a non-custodial or short custodial sentence, or where there has been significant prejudice caused to the respondent as a result of the delay. In the present case, the Crown Prosecutor pointed to the circumstance that the expiration of the non-parole period is August 2009.

54 In my opinion, the sentence so far fails to reflect the objective seriousness of this offence that it would not be appropriate to decline the Crown appeal in the exercise of discretion. It remains the case that the sentence to be imposed should be at the lower end of the available range of sentences: Dinsdale at [62].

Re-sentence

55 In re-sentencing the respondent I take into account the favourable subjective case advanced at the sentencing hearing, together with the respondent’s affidavit and Mr Ryan’s affidavit, which demonstrate the respondent’s continued progress in rehabilitation.

56 It is not appropriate for this Court to perpetuate the error with respect to the discount for the respondent’s plea of guilty. In my view, an appropriate discount is 15 per cent. The respondent’s youth and his prospects of rehabilitation are special circumstances which justify a departure from the statutory proportion between the sentence and the non-parole period so as to make provision for him to have a lengthy period under supervision. The overall sentence that I propose after the discount is one of six years and nine months’ imprisonment with a non-parole period of three years and six months.

57 The Judge reduced the non-parole period by two months to take into account a period of pre-sentence custody. The respondent was arrested on 27 September 2006 and was refused bail. He was released on bail on 7 November 2006 and remained on bail until the date of his sentence. There was thus a period of 41 days’ pre-sentence custody. Ordinarily an allowance for a period of pre-sentence custody is taken into account either by backdating the sentence or by a reduction in the term of the sentence. I propose that the sentence be backdated to commence on a date that will give the respondent full credit for the actual amount of time served in custody as a remand prisoner.

58 A question arises concerning whether a further direction should be made under s 19 of the Children (Criminal Proceedings) Act that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender. The respondent is now aged 19 years. The orders that I propose will have the effect that he will not be eligible for consideration for release from custody until he is aged 22 years. 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 as a juvenile offender after attaining the age of 18 years unless, inter alia, the Court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age. In determining whether there are special circumstances the Court may have regard to the degree of vulnerability of the person, the availability of appropriate services or programs at the place the person will serve the sentence of imprisonment and any other matter that it thinks fit: s 19(4).

59 The sentencing Judge took into account the vulnerability of the respondent and the availability of appropriate services or programs at the place that he was to serve the sentence in determining to make an order under s 19. I do not see a basis in the evidence to conclude that the respondent continues to be a person who should be housed in a juvenile detention centre by reason of his vulnerability. However, in my view there are special circumstances for him to be detained in a juvenile facility until he attains the age of 21 years arising out of the availability of services and programs that will assist him. The respondent is a young Aboriginal man of above average intelligence whose family circumstances over recent years have been unsettled. He has the capacity to benefit from the completion of the educational studies that he was undertaking at the Baxter Juvenile Justice Centre before the administrative decision was made to move him to an adult gaol. Furthermore, he was able to maintain regular contact with Ms Anderson and Mr Ryan while he remained at the Baxter facility. The guidance of these Juvenile Justice officers has been an important feature in his rehabilitation. It is desirable that that contact remain at least until he attains the age of 21 years. In these circumstances it is appropriate that the Court make a direction under s 19(1) in re-sentencing the respondent.

60 For these reasons the orders that I propose are as follows.

ORDERS

1. Allow the appeal and quash the sentence imposed in the District Court.

2. In lieu thereof, the respondent is sentenced to a non-parole period of three years and six months to date from 4 September 2007. The first date on which the respondent will be eligible for consideration for release on parole is 3 March 2011. The balance of the term of the sentence is three years and three months and will expire on 2 June 2014.
3. Pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 order that the respondent serve the sentence of imprisonment as a juvenile offender until his 21st birthday.

61 JOHNSON J: I agree with Bell JA.

62 McCALLUM J: I agree with Bell JA.

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