R v R & K

[1999] QCA 115

99.115

COURT OF APPEAL

de JERSEY CJ
PINCUS JA
FRYBERG J

CA No 2 of 1999 CA No 3 of 1999

THE QUEEN
v.

R and K

BRISBANE

..DATE 12/04/99

JUDGMENT

1. PINCUS JA: These applicants were convicted in the Supreme Court of offences committed, as to R, in January 1998 and, as to K, for offences committed in that month and also at the end of December 1997.

[2] When the offences were committed, K was 15 years of age and R somewhat short of 17 years of age. The Judge sentenced both applicants as children. In R’s case that was done because of the provisions of section 104 and 105 of the Juvenile Justice Act 1992.

[3] Each of the applicants was sentenced to various terms of detention under section 121 of the Juvenile Justice Act 1992 and, in each case, the longest sentence was four years with an order for release after having served two years. Each of the applicants also was sentenced to some three year sentences.

[4]           The four year sentences were imposed in respect of an offence of burglary whilst armed with an offensive instrument, an offence which these applicants committed against a Ms Young on 19 January 1998. R was also convicted of an offence of causing grievous bodily harm to Ms Young. K was tried on a charge of doing grievous bodily harm to Ms Young but found not guilty. He was convicted on an alternative count of unlawfully assaulting Ms Young and thereby doing her bodily harm, being then armed with an offensive instrument. In relation to the charges involving violence against Ms Young, R was sentenced to three years' detention with an order for release after two years, and K received the same sentence in respect of that matter. Each applicant was also sentenced in respect of other offences, and it will be necessary to say something further of them.

[5] It is, however, a convenient course to begin by discussing the offences each committed
against Ms Young. So far as R is concerned, these offences are plainly those which
are most serious. They were committed on the night of 2 18/19 January 1998 when
the applicants, together with a youth called P, went to Urangan to commit breaking
and entering offences, R being, as K knew, armed with a sharpened screwdriver. The
three committed a number of burglaries on that night, K acting as a lookout. The 30
burglary of Ms Young's caravan was initiated while she was sleeping inside. I take the
account of what happened from the outline filed on behalf of R. The applicant
removed a flyscreen to the complainant's caravan using the sharpened screwdriver.
Once inside, he was seen by the complainant, who got out of bed and grabbed him. In
the struggle, the complainant was stabbed five times before the applicant escaped.
One of the stab wounds perforated the bowel, causing bowel contents to escape and
resulting in peritonitis.

[6]           It is necessary to add that, as the Judge said in his reasons for sentence, Ms Young underwent urgent abdominal surgery resulting in her being left with scars on her abdomen and around her chest; apparently some ribs were cut. Although her life was in danger for some time, she survived. There is a victim impact statement from Ms Young which can be briefly summarised, although in doing so I do not intend to minimise the effects the attack had on her. She has become extremely nervous, does not go out at night, not even to the caravan park toilet, and she finds it hard to trust anyone. She has lost a lot of weight as a result of her injuries, has difficulty in eating and cannot wear a bra because of her injuries. She finds it painful to stretch her arms, she is sore on the left side, is under psychiatric care and takes medication daily to prevent panic attacks. She describes herself as permanently scarred both mentally and physically, says she cries a lot of the time and becomes very depressed.

[7]           For the attack on Ms Young, R was charged with attempted murder but on trial he was acquitted of that charge and was, as I have mentioned, convicted of grievous bodily harm. The Judge therefore had to sentence R on the basis that he did not intend to kill nor to do grievous bodily harm but the fact remains that he repeatedly stabbed this woman and one of the wounds could well, but for prompt and extensive surgical intervention, have caused her death.

[8]           Leaving aside altogether the other offences which were committed by R, it appears to me that no serious complaint could be made by R of an order for detention for four years. Some might think that the treatment of the applicant was not ungenerous because the Judge made an order making him at liberty to depart from detention after two years. It was argued on R’s behalf that he had a very difficult upbringing and that he had no previous offences these facts are both so - but it seems to me, particularly if one takes into account that R was guilty of a number of other burglaries committed on the same night, that his case for reduction of sentence is hopeless. But I should not leave his case without noting that, according to the pre-sentence report, he did not regard himself as responsible for his behaviour which he tended to minimise and he displayed limited affect, by which is meant he did not display much feeling or sympathy.

[9]           In my opinion, it is plain that R’s application must be dismissed.

[10]         I turn now to the application made by K which raises some difficulties. The circumstances differ from R's in a number of ways. K was the younger offender. He had some prior convictions. He was sentenced for more offences than was R and he acted as lookout while R was inside committing the burglaries, particularly while he was grievously wounding Ms Young. K was, as I have mentioned, 15 when the offences were committed, having been born on 4 October 1982.

[11]         In February 1997, about ten months before these offences were committed, he was convicted of four offences of wilful destruction in the night-time and one of break and entering with intent. The penalty was community service which was performed satisfactorily.

[12]         Some weeks before the offence was committed with R, K and two others committed two burglaries, in relation to each of which he was the lookout; but on one occasion K went in after the others were gone and took some property. The total value of the property taken at the two places was $6,700 of which only $2,000 was recovered.

[13]         As to the offences of 18 and 19 January 1998, I have already explained that involving Ms Young. There were six houses broken into prior to the Ms Young Offence. On each occasion K remained outside to act as a lookout. The value of unrecovered property was $1,585 and in addition some compact discs.

[14]         There is a further offence to be mentioned and that was committed by K alone, two days after the burglaries just discussed. K, believing that a boy aged 13, who was living in the same residence, had broken a stereo system punched him, hit him with an ornament, threatened him with a knife and kneed him in the face knocking out two teeth. Like R, K was said to have a poor upbringing.

[15] The Judge, in comparing R and K remarked that “In respect of those offences
committed on the night of 18 January it seems to me that you are each equally
culpable." In my respectful opinion, that is not so. For, as I have pointed out more
than once, K was merely the lookout; R was the person who so seriously injured Ms
Young. There is no suggestion that K was party to any preconceived plan to attack Ms
Young, although he knew R had the sharpened screwdriver. The case is therefore on
the face of it one in which, in my opinion, the parity principle suggests that His
Honour was in error; in particular as I have suggested, His Honour's view that in
respect of the offences of 18 and 19 January the two were equally culpable is, in my
opinion, insupportable.

[16] A difficulty arises because of what seems to me to be an error on the part of His Honour in not giving sufficient weight to the provisions of section 108 of the Juvenile Justice Act 1992. What His Honour did, in relation to the four year sentences, was to order release after serving two years and that applied in respect of both R and K . As to the three year sentences His Honour also made an order for release, after two years.

[17] What section 188(1) says so far as relevant is as follows:

"Unless a Court makes an order under subsection (2) a child sentenced to serve a
period of detention must be released from detention after serving 70 per cent of the

period of detention.

(2) A Court may order a child to be released from detention after serving 50 per
cent or more and less than 70 per cent of a period of detention if it considers
that there are special circumstances, for example, to ensure parity of sentence
with that imposed on a person involved in the same or related offence."

[18] There is no discussion, in His Honour's lengthy reasons for sentence, of the requirement which I have mentioned; but Mr Shanahan has drawn our attention to a passage which, according to his submission, was intended to pay respect to the provisions of section 188. I will read the passage. His Honour said:

"It's true that both of you have pleaded guilty to a large number of offences and
when I come to sentence you I propose to reflect those pleas by a
recommendation or an order that you be released from detention earlier than
otherwise would have been the case."

[19]         What His Honour did, then, was to order release from detention after having served 50 per cent of the four years and having served 66 and two-thirds per cent of the three year detention sentences.

[20]         It is my respectful opinion that if mere pleas of guilty are to be regarded as special circumstances then in the vast majority of cases which come before the Courts there will be special circumstances. That is a conclusion to which one could come only by giving a rather eccentric meaning to the word "special". Special implies something out of the ordinary, whereas pleas of guilty are the ordinary course of events.

[21]         It is my opinion therefore that in dealing with the case of K His Honour was in error, both in holding, as His Honour did, that K was equally culpable with R as to the offences of 18/19 January and in finding, if that was His Honour's view, that special circumstances were constituted by the pleas of guilty which K entered. The same error affects the sentencing of R; but since there is no appeal by the Crown, it is not necessary to do anything about that. But we must in my opinion re-sentence K; expressing our own view of what would have been the proper sentence if His Honour had not made those errors.

[22] There were, in relation to K, sentences of four years detention and three years detention and in each case the order for release was after two years. In my view the pleas of guilty do not constitute special circumstances within the meaning of section 188 and whatever order we make should not be accompanied by an order for early release. It is my opinion that the proper course is to reflect the pleas of guilty by reducing the head sentences. I would reduce the sentences of four years and three years imposed upon K to sentences of two years and six months.

[23] I would also set aside the order that the applicant K be released after having served two years. The consequence would be that section 188(1) would have its effect and K will become entitled, if that becomes the Court's order, to release after having serving 70 per cent of the sentences of two years and six months.

[24]         Those are the orders which I propose.

1. THE CHIEF JUSTICE: I agree with the reasons expressed by Mr Justice Pincus and with the orders he proposes.

2. FRYBERG J: The learned trial Judge in giving his reasons for sentence said:

   "In respect of those offences committed on the night of 18 January it seems to
   me that you are each equally culpable."

[27]         Those offences consisted of a series of break and enters the offences described in more detail by Mr Justice Pincus. In each of them the applicant K acted as lookout and the applicant R entered the premises and took property or did the other acts constituting the offences.

[28]         It was probably an error to say in those circumstances that the two applicants were equally culpable. It does not seem to me a major error when one looks at it in terms of the comment's relationship to all of the events of the night.

[29]         In relation to the applicant R I agree with Mr Justice Pincus. Indeed I would be inclined to think that he has escaped remarkably lightly in all the circumstances. The question is what effect should the error in relation to equal culpability have on the sentencing process.

[30]         In my judgment the sentences which have ultimately been imposed on the two applicants are not disproportionate. I say that partly for the reason which I have already expressed (that it seems to me the sentence imposed on R was probably too low) but also because I do not see a lack of parity between the sentences imposed on the two applicants.

[31]         R was sentenced as if he had pleaded guilty. K on the other hand, went to trial. It is true that he went to trial only on an aspect of aggravation in relation to the offence but nonetheless he was not entitled to the credit which is given to a person who pleads guilty. His Honour expressly said that he was giving such credit to R.

[32]         Second, R had no previous convictions and no other offences to be dealt with on the occasion of the sentencing. K, on the other hand, did have previous convictions and was also sentenced for other offences including a serious assault on a 13-year-old boy.

[33]         Thirdly, the two participants went about their business on the night of 18 January with equal indifference to the effects which their activities would have on the occupants of the premises which they entered and in circumstances where it might be expected that there would occupants there at the time of the entry.

[34]         The effects which have been summarised by Mr Justice Pincus on Ms Young were entirely predictable and were effects for which K seems to have shown little understanding or remorse. In the sentence which was imposed, these factors which differentiate the position of K from R were taken into account.

[35]         I have considered Mr Shanahan's submission that K was convicted of a lesser offence in relation to Ms Young than was R and was somewhat younger than R, and the other matters of distinction between the two to which he has drawn attention. In my judgment, they do not demonstrate that the sentences imposed breached the parity principle, if it is a principle, or that the sentence imposed on K was manifestly excessive.

[36]         I would point out that the outcome reached by my learned colleagues will be that K will serve three months fewer than otherwise he would serve, and will thereafter simply lack the sanction which could be imposed under section 191 of the Act. That does not seem to me a desirable thing for a young person, nor does the net effect on the practical difference of the operation of the sentence in my judgment warrant the intervention of this Court.

[37] In relation to what has been said about special circumstances and the interpretation of section 188 of the Juvenile Justice Act, I agree with what has been said by Mr Justice Pincus. I would refuse the applications.

1. THE CHIEF JUSTICE: The application by R is refused. The application by K is allowed and his appeal allowed with the sentences being varied and imposed as indicated by Mr Justice Pincus.