R v RMK - [2002] NSWCCA 414

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v RMK [2002] NSWCCA 414 revised - 18/02/2003

FILE NUMBER(S):
60230/02

HEARING DATE(S): 11/10/02

JUDGMENT DATE: 11/10/2002

PARTIES:
Regina
RMK

JUDGMENT OF: Sperling J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0021

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL:
R Herps (Crown)
HK Dhanji ( Applicant)

SOLICITORS:
SE O'Connor (Crown)
DJ Humphreys (Applicant)

CATCHWORDS:
Appeal against sentence - robbery whilst armed with an offensive weapon - young offender aged 15 years with favourable subjective features - same sentence passed upon co-offender - sentence reduced.

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted. Appeal allowed. Sentence imposed in the District Court set aside. Applicant is sentenced to imprisonment for 3 years to commence on 19 July 2001 and to expire on 18 July 2004 with a non-parole period of fifteen months to commence on 19 July 2001 and to expire on 18 October 2002 at which time he will be released on parole. Sentence to be served in a Juvenile Detention Centre.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60230/02
SPERLING J
BUDDIN J
11 October 2002

REGINA v RMK

Judgment

BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court for an offence of robbery whilst armed with an offensive weapon. The maximum penalty for the offence is imprisonment for 20 years. He also asked that a further offence of robbery in company, which took place during the course of the same incident, be taken into account. He was sentenced to a term of four years’ imprisonment with a non-parole period of 18 months to commence on 19 July 2001 which was the date of his arrest and when he went into custody. Because of the applicant’s age the sentence was ordered to be served in a Juvenile Detention Centre. The applicant was sentenced at the same time as a co-offender, whom I shall hereafter refer to as DA, who received exactly the same sentence.
The facts giving rise to this matter arose at about 9.20 pm on 14 July 2001 at which time a young Asian couple were sitting on a park bench in Burwood. They were approached by the applicant and his co-offender, DA. DA commenced a conversation with the two victims. He then asked both victims if they had any money. The female victim felt threatened and handed over $10. DA told her that it was not enough and that he wanted more. It was this incident which gave rise to the Form 1 matter of robbery in company.
DA then asked the male victim if he had any money. When he replied that he did not, both offenders then produced knives. DA put his knife to the victim’s face and said to him “Do you want do die? Give me money.” When the victim said that he did not have any money, DA cut the victim on the left cheek. DA then pointed the knife at the young man’s companion and said to the man “Is she your girlfriend? I can kill her, is that all right with you?” The applicant thereupon grabbed the young female victim around the shoulders and separated her from the male victim who remained with DA. He took her some 10 metres away.
The male victim then gave DA $80 in cash and showed him his wallet. DA then commenced to make stabbing motions towards the male victim’s stomach with his knife. As the male victim believed that he was going to be stabbed, he grabbed the knife with both of his hands. This caused lacerations to the victim’s hands. One of the wounds required three stitches to be inserted in his left finger. This aspect of the incident gave rise to a second offence on the Form 1. It is relevant to note that this offence related only to DA. Upon arrest, the applicant and his co-offender were interviewed by the police. The applicant made some limited admissions concerning his involvement in the offence although it would appear that both he and his co-offender each suggested that the other was the main offender.
There were a number of subjective matters placed before the sentencing judge which were capable of significantly reducing the otherwise appropriate penalty. First, the applicant was only 15 at the time of the commission of these offences. Secondly, he was, like his co-offender, a refugee from the Sudan from which country he had come with his uncle. His father had died and his mother, whom he is unable to contact, remained in the Sudan. Thirdly, he entered a plea at the first reasonable opportunity to the charge upon which the Crown ultimately proceeded. (It was only because a more serious charge had originally been laid that the matter was in the District Court rather than the Children’s Court.) Fourthly, he had no prior convictions (although he was subsequently dealt with in the Children’s Court in respect of other offences). Fifthly, there was evidence that the applicant had made significant steps towards his rehabilitation which was reflected in particular in his positive educational progress whilst in custody.
The sentencing judge was provided with two reports about the applicant from the Department of Juvenile Justice. Something of the unusual nature of his background can be gleaned from the following extract which appears in one of those reports:
RMK has refugee status along with some extended family members. He lived with his uncle in Khartoum from approximately five years of age. Prior to this RMK had lived with his mother in the south of Sudan, the site of the world’s longest running civil war. His experiences there are unknown. It is known however that his father died from lack of medical attention. It is also known that generally the south has been consistently exposed to daily bombing; abductions for the purpose of slavery; destruction of crops and villages and human rights abuses. The lack of information about RMK’s early years made it difficult to assess how much trauma he was exposed to, however it is fair to assume that the poverty, fear and stress of frequent attacks would have had a significant impact upon both RMK and his mother. It is however known that when living in Khartoum with his uncle, that RMK’s uncle was arrested on seven (7) separate occasions. Certainly these arrests would have been terrifying experiences with government forces breaking into the home. Human rights abuses are prevalent.
The sentencing judge was undoubtedly alive to the principles which are to be applied in respect of young offenders who commit crimes such as the one which is the subject of the present application. See R v GDP (1991) 53 A Crim R 112; R v Tran [1999] NSWCCA 109; R v TVC [2002] NSW CCA 325. In particular it may be noted that his Honour made a finding of “special circumstances” by reason of the applicant’s youth.
The applicant submits that he entertains a justifiable sense of grievance by reason of the fact that he received the same sentence as that which was imposed upon his co-offender, DA when their circumstances were such as to require differential treatment. As Brennan J said in Lowe v The Queen (1984) 154 CLR 606 “the imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust” (at 617). The applicant points to a number of matters which he submits should have resulted in his receiving a lesser sentence than that which was imposed upon the co-offender:
(i)           the fact that DA had the additional offence of malicious wounding to be taken into account for which some additional punishment was required. See R v Morgan (1993) 70 A Crim R 368; R v Bavadra (2000) 115 A Crim R 152;
(ii)          the fact that the co-offender played a more significant role in the commission of the offence which included his use of a knife to inflict injuries;
(iii)         the fact that DA was a year older at the time of the offences; and
(iv)         the fact that reports concerning DA’s progress in custody were less favourable than reports about the applicant, DA having been involved in “a number of episodes of violence and intimidation towards fellow inmates and staff.”
I am of the view that the applicant has made good his submission. Accordingly I have reached the conclusion, pursuant to s 6(3) of the Criminal Appeal Act 1912 that “some other sentence… is warranted in law and should have been passed.” I would also find that “special circumstances” exist by reason of the applicant’s youth, his favourable prospects for rehabilitation and the fact that this is his first custodial sentence.
I would propose the following orders:
1             Leave to appeal granted.
2             Appeal allowed.
3.            Sentence imposed in the District Court set aside.
4             The applicant is sentenced to imprisonment for three years to commence on 19 July 2001 and to expire on 18 July 2004 with a non-parole period of fifteen months to commence on 19 July 2001 and to expire on 18 October 2002 at which time he will be released on parole.
5             The sentence to be served in a Juvenile Detention Centre.
SPERLING J: I agree. The orders of the Court will be as proposed by Buddin J.
Mr RMK, we have reduced your sentence. We have made it less than it was. In particular, we have reduced the overall sentence to three years. You will be released at the end of the non-parole period, which we have reduced to fifteen months. So when you have served fifteen months, that is one year and three months, you will be definitely released from prison at that time. Do you follow?

RMK: Yes.

SPERLING J: Very good.

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LAST UPDATED: 18/02/2003