R v SB - [2005] NSWCCA 76

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v SB [2005] NSWCCA 76

FILE NUMBER(S):
2004/3011

HEARING DATE(S): 7 March 2005

JUDGMENT DATE: 07/03/2005

PARTIES:
SB (Applicant)
Regina (Respondent)

JUDGMENT OF: Spigelman CJ Grove J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0014

LOWER COURT JUDICIAL OFFICER: Hock DCJ

COUNSEL:
A Francis (Applicant)
DC Frearson SC (Respondent)

SOLICITORS:
S O'Connor - Legal Aid Commission (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
SENTENCING
Parity principle
Co-offenders sentenced for same period
Whether differing subjective features of the Applicant caused sentence to offend the parity principle

LEGISLATION CITED:
Crimes Act 1900: s93G(1)(b), s97(2), s154A.
Crimes (Sentencing Procedure) Act 1999: s3A(d), s21A(3)(g)-(i)

DECISION:
1. Leave to appeal granted 2. Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2004/3011
SPIGELMAN CJ
GROVE J
BELL J
Monday 7 March 2005

REGINA v SB

Judgment

SPIGELMAN CJ: The Applicant seeks leave to appeal against the sentences imposed on him by her Honour Judge Hock in the District Court sitting in Sydney.
The Applicant had pleaded guilty to three charges:

One count of robbery armed with a dangerous weapon: Crimes Act 1900, s97(2), maximum penalty imprisonment for 25 years.
One count of discharge firearm in a public place: Crimes Act 1900, s93G(1)(b), maximum penalty imprisonment for 10 years.
One count of take and drive conveyance without consent of owner: Crimes Act 1900, s154A, maximum penalty imprisonment for 5 years.

A further three associated offences were taken into account on a Form 1, namely robbery whilst armed with a dangerous weapon, robbery whilst armed with an offensive weapon and custody of a firearm in a public place.
The Applicant pleaded guilty to all charges at the Bidura Children’s Court on 13 January 2004. Her Honour imposed fixed terms of imprisonment of three years and 12 months, respectively, for Counts 2 and 3, and a term of imprisonment of six years and six months with a non-parole period of three years and six months on Count 1, taking into account the Form 1 offences. All sentences were concurrent, to commence on 24 September 2003. The non-parole period was ordered to be served in a Juvenile Detention Centre.
The Applicant was sentenced at the same time as a juvenile co-offender, BH, who pleaded guilty to exactly the same charges, with the same matters to be taken into account on the Form 1. The only issue raised on this application is an issue of parity.
Ms A Francis, who appeared for the Applicant, submitted that her Honour erred in imposing sentences on the Applicant identical to those she imposed on the co-offender. Ms Francis submitted that although the objective gravity of the offence was the same in each case, the subjective features of the Applicant were much stronger than those of his co-offender and, accordingly, sentences in identical terms gave rise to a legitimate sense of grievance and offended the parity principle.
The factual background of the offences was set out by her Honour in her remarks on sentence in the following terms:
“… at about 2.40am on Wednesday 24 September 2003 the offenders, both aged seventeen entered the Orchard Tavern, licensed premises at Chatswood. [SB] was in possession of a loaded silver .22 calibre pistol. [BH] was armed with a knife. [SB] had his face disguised with a balaclava and [BH] wore a baseball cap and a yellow bandanna.
The offenders went into the main bar area of the tavern. One of them yelled out ‘Get down on the floor, get on the floor, this is a robbery’. The gun was brandished by [SB] and held at the back of the head of the security officer Mr Pohe. There were about five staff members and approximately ten customers in the area, who immediately dropped to the floor as instructed. The manager Mr Michael Kirk was taken at gunpoint to the safe by [SB] who filled the bag with coins and notes. He then asked where the rest of the money was and was told it was in the poker machines in the gaming area. They moved to that area and on the way [SB] took a surveillance tape which recorded the events. I have viewed that tape.
In the gaming area a number of poker machines were opened by Mr Kirk and the money collected by [SB]. At some stage [BH] took the gun and held it at the back of the barman, Mr Benjamin Smith’s head almost touching it, thereby forcing him to open the till and remove the money. This is the first matter on the Form one. During the robbery a Mr J Kim was robbed at knifepoint of a mobile phone. This is the second matter on the Form one. As they left the premises [BH] discharged one round from the pistol and the bullet lodged in the ceiling. This is the second charge.
While the robbery had been in progress, unbeknown to the offenders, staff members and patrons had managed to alert the police who were present in Orchard Street when the two offenders left the tavern. They tried to make their escape in a car which had been stolen from Homebush after 10.50pm on 23 September 2003. This is the third charge.”
Her Honour identified a range of relevant factors concerning the objective gravity of the offence in the following terms:
“Aggravating features of the first offence are the large number of people terrorised and placed in fear of their lives, the fact that the weapon was loaded and discharged, the fact that the robbery was committed in company and the evidence of planning involved, including the use of a stolen car. In addition, both offenders were on probation at the time of the commission of these offences which is a further aggravating feature in each case.”
Her Honour also observed:
“I am completely unimpressed by the submission that is was unlikely that the discharge of the weapon into the ceiling would have hurt anyone. To take a weapon, loaded with eight rounds indicates a preparedness to use it as did in fact eventuate, with fortunately no injury to any civilian. Similarly [BH's] evidence that he was scared and did his best to keep the people calm displays in my view an astonishing lack of insight into his responsibility for exposing innocent members of the public to what research has found, unsurprisingly, to be perceived as a serious life threatening incident which not infrequently results in grave and continuing psychological consequences for the victims.”
As it is the comparative significance of the subjective features which are the focus of this appeal, I will set out in full her Honour’s consideration of those subjective features:
“I turn to consider matters subjective to each offender. [BH's] date of birth is 23 July 1986 and he is therefore now seventeen years and nine months old. He had only turned seventeen two months before he committed these offences. He is the fourth of seven children, all of whom live in the family home with their mother and father. His family is supportive of him and he is the only child who has had problems with the law. These appear to have begun at about age thirteen when he began to smoke cannabis. His use escalated to daily smoking by age fourteen and fifteen. He progressed to using amphetamines and Ecstasy. His schooling suffered and he was asked to leave several high schools because of his disruptive behaviour. Dr Olav Nielssen forensic psychiatrist assessed his intelligence to be in the normal range. His psychiatric diagnosis was that the offender had conduct disorder, substance abuse disorder and pathological gambling. He assessed the offender to be ‘capable of participating in learning based rehabilitation programs and education. Further counselling for substance abuse and gambling and also to promote personal maturity is recommended. His prospects of adapting to a law abiding way of life are also likely to be improved by vocational training whilst in custody’. Dr Nielssen also expressed the opinion that [BH’s] prognosis was guarded in view of his record. The offender said in evidence, which I accept, that he was affected by alcohol and cannabis at the time of this offence. I do not however accept his evidence that he did not know how serious these matters were at the time he committed these offences.
In respect of the criminal histories of each offender, it is difficult to accurately determine all the offences for which each offender has been dealt with previously as they have been dealt with by the Children’s Court. However, it is clear on the material before me that [BH] has been involved with the Department of Juvenile Justice since 2000 when he was only thirteen years old. He was first remanded in a detention centre in 2002 at age fifteen. He left the country whilst subject to a probation order and unfortunately it seems his family deliberately misinformed the juvenile justice officers as to his plans. The Department was not expecting him back until December 2003 and his supervision was suspended. Clearly he came back earlier than expected and these events in September 2003 brought him to the attention of the authorities yet again. His response to custody since his arrest has been poor. However, the background report of his juvenile justice officer is not entirely bleak. He expressed this opinion at p 6. ‘Given [BH's] personality and leadership qualities he has the potential and the ability to succeed should he focus on pro-social goals’.
Turning now to [SB]; he was born on 9 March 1986 and was therefore seventeen and a half at the time of this offence and is now over eighteen. He too comes from a close and supportive family and he is the youngest of four children. He was educated to year nine and also had difficulties making the transition to high school He was working as a panel beater prior to being remanded in custody and his employer said he was a hard worker and that he would have a job available to him once he was released. Like his co-offender, [SB] has a history of substance abuse. He began smoking marijuana at the age of fourteen and progressed to ecstasy at age fifteen. About a month before these offences he began to use crystal methamphetamine (ice) on a daily basis. He said in evidence, which I accept, he was affected by this drug at the time of the robbery. Since being remanded in custody his conduct could fairly be described as exemplary. He is studying for Year ten and has attended all classes that he possibly can and has made excellent progress.
I heard from his juvenile justice officer Mr Cornell that he has recognised when he needs assistance with anger management and has referred himself for counselling when he feels stressed. Mr Cornell said in evidence that [SB’s] unit manager described him as a leader and a mentor to younger boys. He has been willing to participate in individual and group counselling to address his offending behaviour, for example drug use, gambling and negative peer group. His psychologist said ‘His willingness to address these issues demonstrates a level of responsibility for his actions and a motivation to change his lifestyle to one that is free of drugs and crime (see p 5 of the Juvenile Justice background report). He has also re-embraced his religion from which he derives guidance and comfort.
His involvement with the Department of Juvenile Justice dates back to July 2001. Over the two year period before he committed this offence he had been subject to several orders for intervention of the service including probation and community service orders. Prior to his present incarceration he recognised that his response to supervision had been poor. As previously noted this is in marked contrast to his present attitude to the assistance available to him.”
Her Honour also said:
“In the case of the offender [BH] the special circumstances are the availability of appropriate services and programs in the juvenile justice system and his potential for leadership if he avails himself of this opportunity. While at this stage in my view his prospects for rehabilitation are more guarded than [SB’s] he should be given a further opportunity to avail himself of the intensive assistance provided by the juvenile justice system. Such a course is in the interest of the community and the offender. I have hesitated in [BH’s] case due to the ambivalent reports prepared in respect of him and his disruptive conduct from time to time so far. Should he choose not to take advantage of this course and becomes a disruptive influence in the juvenile justice system rather than using his personal qualities for good, he must anticipate that the power to remove him under s 28 of the Children (Detention Centre Act 1987) to which counsel drew my attention would be exercised.”
Her Honour also said:
“I find special circumstances in each case, namely the offender’s age and the likelihood that each would benefit from a longer period of supervision to foster his rehabilitation.”
Ms A Francis submitted that the sentencing judge did not make any distinction between the objective criminality of the offenders and, in that regard, the Applicant did not contend that the sentencing judge fell into error. However, her Honour’s findings that BH had responded poorly since his arrest was in direct contrast with the Applicant’s rehabilitation and change in attitude. Ms Francis submitted that the sentencing judge did not explain why the subjective features which she found in the case of the Applicant, but not in the case of the co-offender, did not lead to a greater degree of leniency, particularly with respect to the imposition of a non-parole period. Ms Francis submitted that a number of provisions of the Crimes (Sentencing Procedure) Act 1999 which were applicable to the Applicant were not applicable to the co-offender particularly:
“21A(3) …
(g)          the offender is unlikely to re-offend,
(h)          the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
(i)           the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other matter, … ”
On this basis the Applicant had a justifiable sense of grievance with the consequence that the exercise of discretion by her Honour miscarried and that this Court should intervene.
The Crown in its submissions drew particular attention to her Honour’s express recognition that the progress of the two offenders towards rehabilitation was not identical. The Crown emphasised that her Honour did, however, equate their future prospects in the following passage which, I repeat:
“While at this stage in my view (the co-offender’s) prospects are more guarded than (the Applicant’s) he should be given a further opportunity to avail himself of the intensive assistance provided by the juvenile justice system.”
The Crown also drew attention to the fact that there was the Juvenile Justice Background Report relevantly indicating that at an earlier time the co-offender’s response to the supervision was positive, that he had made some attempts to stay out of trouble and that he appeared to have recognised difficulties created for him and was ready to address the issues. The Crown also drew attention to the fact that in the past, i.e. before the current custodial period, the Applicant had not shown consistently positive responses to a process of supervision.
The Crown submitted that all of the provisions of the Crimes (Sentencing Procedure) Act 1999 did apply to both offenders, but that they applied in somewhat different ways. Specifically, the Crown submitted that the co-offender did have reasonable prospects of rehabilitation, although his progress in that regard may not have been as advanced as that of the Applicant. The Court, the Crown submitted, must be concerned with promoting future rehabilitation of the offender as s3A(d) of the Crimes (Sentencing Procedure) Act 1999 sets out. This factor is particularly significant when offences are committed by juveniles (R v GDP (1991) 53 A Crim R 112).
The Crown submitted that the most important subjective feature in the present case was the youth of both offenders. It submitted that the differences in their rehabilitative prospects were not such as to warrant different sentences. The Applicant’s past progress towards rehabilitation whilst in custody did not, it was submitted, necessarily offset the co-offender’s potential to achieve rehabilitation.
In my opinion, her Honour outlined the relevant issues in considerable detail. Her reasons are factually correct and reasonably balanced. However, she did equate the prospects of rehabilitation of the two co-offenders in general terms.
The two particularly significant elements in the exercise of the discretion, going to the subjective features of the two offenders, were those identified by Ms Francis, particularly s21A(3)(g) and s21A(3)(h). The third matter to which Ms Francis referred was the manifestation of remorse in s21A(3)(i). I do not see that there is any material difference between the two offenders in this respect.
It was open to her Honour to find that each of the offenders was unlikely to re-offend and that each of the offenders had good prospects of rehabilitation. It is true that, at least with respect to the immediately preceding period, the Applicant had shown a greater responsiveness to his offending history, and one could say that, on the basis of that experience alone, he had manifested up to that point of time a degree of rehabilitation that had not been manifest by the co-offender. As the Crown pointed out, with respect to a previous period, the situation of the two co-offenders was, in fact, the reverse, i.e. the co-offender had shown greater prospects of rehabilitation than the Applicant. In neither case did such prospects as were then displayed prove to be accurate, as the offences now before the Court indicate.
The process of making a predictive judgment about future offending and prospects of rehabilitation is always a difficult one. The judgment that her Honour made, that in that respect the two offenders were to be assessed on a basis of comparative equality was, in my opinion, a judgment that was open to her Honour to make. In those circumstances, I do not believe that the parity principle has been offended or that the Applicant now before the Court has a legitimate sense of grievance in accordance with the authorities.
In my opinion leave to appeal should be granted, but the appeal should be dismissed.
GROVE J: I agree with the orders proposed by the Chief Justice and the reasons which he has given.
BELL J: I also agree.
SPIGELMAN CJ: The orders will be as I have indicated.

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LAST UPDATED: 08/04/2005