R v SDM

[2001] NSWCCA 158

Reported Decision: 51 NSWLR 530
127 A Crim R 318

New South Wales

Court of Criminal Appeal

CITATION:	Regina v SDM [2001] NSWCCA 158 revised - 8/05/2001
FILE NUMBER(S):	CCA 60191/00
HEARING DATE(S):	21 March 2001
JUDGMENT DATE:	4 May 2001
PARTIES :	Crown - Respondent SDM - Applicant
JUDGMENT OF:	Giles JA at 1; Wood CJ at CL at 4; Simpson J at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/71/0057
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

COUNSEL :	R D Cogswell SC with Ms B Baker - Crown A Haesler - Applicant
SOLICITORS:	S E O'Connor - Crown D J Humphreys - Applicant
CATCHWORDS:	Criminal law - sentencing - armed robbery - juvenile - whether manifestly excessive - whether Henry [1999] 46 NSWLR 346 guideline applicable to juvenile offenders - Children (Criminal Proceedings) Act 1987.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987
CASES CITED:	R v Henry [1999] 46 NSWLR 346 Jack Sua [2000] NSWCCA 94, unreported, 23 February 2000 RLS [2000] NSWCCA 175 Douglas NSWCCA 11 December 1998 Lattouf NSWCCA 12 December 1996 Kable (1995) 36 NSWLR 374 Karacic 2001 NSWCCA 12 R v Ngui and Tiong (2000) 111 A Crim R 593 Walters and JB (2001) NSWCCA 121 Tran (1999) NSWCCA 109 Townsend & Cooper NSW CCA 14 February 1995 Biggs NSWCCA 5 March 1997 Kama [2000] NSWCCA 23, 110 A Crim R 47 GDP (1991) 53 A Crim R 112 Sharbon NSWCCA 5 December 1991 Wilkie NSWCCA 2 July 1992 R v Pham and Ly (1991) 55 A Crim R 128 R Hearne [1999] NSWCCA 605 R Hearne [2001] NSWCCA 37
DECISION:	Leave to appeal granted, appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60191/00
GILES JA
WOOD CJ AT CL
SIMPSON J


4 May 2001
REGINA v SDM

Judgment

1    GILES JA: I have had the benefit of reading the judgments of Wood CJ at CL and Simpson J in draft.

2    I agree with the observations of Wood CJ at CL in relation to R v Henry (1999) 46 NSWLR 346. In agreement with both their Honours, having regard to the guidelines in R v Henry and the principles particularly applicable in the sentencing of young offenders including those who are in law children, I am not persuaded that the sentence imposed on the appellant was excessive.

3    I agree that leave to appeal should be granted and the appeal should be dismissed.

___________

4    WOOD CJ at CL: In my view the sentence imposed in this case was within a proper range of sentencing discretion, taking into account the objective seriousness of the offence, the subjective circumstances of the applicant, and the special sentencing considerations applicable to young offenders. In this regard I agree with the reasons of Simpson J, and with the orders which she has proposed.

5    It is appropriate to say something more in relation to the applicant’s submission that the guideline judgment in Henry (1999) 46 NSWLR 346 applies only to adult offenders. Support for that proposition was said to lie in the judgment of Hidden J, with whom Carruthers AJ agreed in Jack Sua [2000] NSWCCA 94, where his Honour said:

“Passing reference was made to the guideline judgment in R v Henry & Ors but it does not appear that much assistance is available from that case. I take the guidelines to be applicable to adult offenders and not to embrace the special facts governing the sentencing of children. The principles governing the sentencing of children are well known. I am well aware that the special consideration which might be afforded to persons under the age of eighteen for the purpose of sentence might be qualified where the offence involved is a particularly serious one: that is, a crime which might appropriately be characterised as grave adult behaviour. “

A similar assumption appears to have been made by Hulme J, with whom Carruthers AJ again agreed, in RLS [2000] NSWCCA 175.

6    Each of these decisions was made by a bench comprising two judges of this Court, but in neither case does it appear to me that the point was intended to be dealt with in a considered way so as to constitute a post script to Henry, or as a qualification of the guidelines there pronounced.

7    If the effect of these decisions was to construe Henry in a way that would entirely exclude its application to juvenile offenders, ie those who qualify as a “child” within the meaning of the Children (Criminal Proceedings) Act 1987, S 3(1), then that approach would, in my view, have been inappropriate, having regard to the nature and purpose of a guideline judgment. Such judgments are not to be regarded as equivalent to statutory instruments, which invite interpretation or which bind Judges strictly within their terms, and from which there can be no departure. As this Court has made crystal clear (e.g. Douglas NSW CCA 11 December 1998, Henry per Spigelman CJ at para 29; and Jurisic per Spigelman CJ at para 15), guideline judgments do not have the force of statute law, and they are not to be treated, for example, as the equivalent of mandatory sentencing legislation.

8    One of their advantages is to avoid the vice attached to such form of legislation which can, in individual cases, lead to great injustice, and which conflicts with the well recognised principle that “if justice is not individual, it is nothing” per Mahony JA in Lattouf NSWCCA 12 December 1996 and in Kable (1995) 26 NSWLR 374 at 394.

9    Recently, in Karacic 2001 NSWCCA 12, Spigelman CJ, when confirming the indicative nature of such judgments, said:

“Nevertheless they are appropriate indicators, or to use the words of Winneke P [in R v Ngui and Tiong (2000) 111 A Crim R 593 at 13] a “sounding board” or a “check” so that in circumstances such as the present, the court does not fail to consider the level of sentences that have been found to be appropriate in the general run of similar cases, whilst taking into account the differences between the circumstances of the individual case and those of previous cases.”

10    What such judgments are intended to provide are benchmarks for particular kinds of offence, by way of guidance, while preserving the application of proper sentencing principle which is of general application, including that referrable to children, or to those suffering from some form of mental incapacity, that might reduce the need for the sentence to reflect factors of deterrence, while requiring greater attention to be given to the interest of rehabilitation.

11    Similarly, the principles relevant to matters such as parity, assistance, mercy in the case of offenders at the crossroads, the burdensome effect of a sentence that has to be served upon strict protection or by a person suffering from significant ill heath or physical disability, delay, entrapment and duress, the offer of a plea in the absence of a strong Crown case, the commission of an offence while on conditional liberty, and so on remain applicable, and are properly to be taken into account when reference is made to a guideline judgment.

12    The fact of their application, and the way in which they are taken into account in the sentencing order that is pronounced, do need to be spelled out, otherwise a risk arises of attracting an appeal. Nevertheless, they remain as applicable to cases falling within the ambit of a guideline judgment, as they do to offences which are not the subject of a guideline.

13    To engraft onto a guideline judgment exceptions for particular categories of offender, or for cases where particular aspects of sentencing principle attract special consideration, is to misapply them and to elevate them to statutory instruments.

14    If that was the intended effect of Sua and RLS in relation to Henry, then I would express my disagreement with those decisions. There is nothing in Henry which would provide any direct, ie express support for the view that it was not intended to apply to children, ie subject to the qualification which I have mentioned. Indeed, at para 162, Spigelman CJ included the expression “young offenders” among the characteristics of the category of cases which was “sufficiently common for purposes of determining a guideline”; and at para 170, his Honour expressly noted that, among the factors which might mitigate a sentence below the indicative range was that of “youth”. Although of limited assistance, it may be noted that of the cases cited in Henry, only one (Nguyen NSW CCA 14 April 1994) involved an offender under eighteen years. So far as the researches of Counsel show, the issue which now arises has not emerged for consideration in this Court save in relation to the appeals of Walters and Blackman (2001) NSWCCA 121.

15    It is by no means clear that an exception to Henry was intended in Sua and RLS, as distinct from an acknowledgment of the existence of the guideline, and the making of an allowance for the special circumstances applicable to those who are children at law, i.e. those who are aged under eighteen years.

16    There will always be cases where little allowance needs to be made for this fact, e.g. when the offence is one where the offender conducted himself or herself like an adult: Tran (1999) NSW CCA 109 and Townsend & Cooper NSW CCA 14 February 1995; or where there is a pattern of serious repetitive offending: Biggs NSW CCA 5 March 1997; or where the offender is close to legal adulthood and properly to be regarded as mature: Nguyen.

17    Equally, there are cases where the converse is true and where special allowance will need to be made for the offender’s emotional immaturity: Kama 2000 NSWCCA 23, or for his or her deprived background, and so on.

18 Furthermore, in cases dealt with according to law, it still remains necessary for the Court to have regard to the principles set out in s6 of the Children (Criminal Proceedings) Act 1987, which were considered in GDP (1991) 53 A Crim R 112: See also Sharbon NSWCCA 5 December 1991, and Nguyen at p6, per Blanch J.

19    Accordingly, so far as it was submitted in this appeal, that the existence of this provision meant that Henry could not apply otherwise than to adult offenders, even where the case was one that, by force of the Act, was required to be dealt with at law, I am unable to accept that proposition. To a considerable degree s6 reflects general sentencing principle applicable to young offenders, e.g. in relation to the subordination, in general, of punishment and general deterrence to the need to foster rehabilitation: Wilkie NSW CCA 2 July 1992, and GDP.

20    That consideration, and the other matters identified in this provision, can equally well be allowed for, along with all the other aspects of sentencing policy and principle relevant to young offenders, particularly those who were children at the time of offending, within the ambit of a guideline judgment.

21    I would similarly grant leave to appeal but would dismiss the appeal.

**********

SIMPSON J :

22    On 7 March 2000, in the District Court at Wagga Wagga, the applicant pleaded guilty to a charge of armed robbery in relation to an offence committed on 28 March 1999. Because of the applicant’s age at the time of the offence (thirteen days short of seventeen years) the provisions of the Children (Criminal Proceedings) Act 1987 (“the Act”) were, for sentencing purposes, applicable.

23 On 9 March 2000 Judge Shillington sentenced the applicant to a total term of imprisonment of four and a half years which he divided into equal minimum and additional terms. Pursuant to s 19 of the Act he directed that the whole of the sentence was to be served in a detention centre.

24    The applicant seeks leave to appeal against the severity of the sentence. The ground advanced in support of the application was that the sentence was, in the circumstances, manifestly excessive. Heavy reliance was placed upon the applicant’s age and his personal circumstances.

The offence

25    During the evening of 28 March 1999, the applicant, in company with four others, drove to a general store of which a middle aged couple, John and Clara Jones, were the proprietors. While two of the men remained in the car, the applicant and two others entered the store. One of them was armed with a single barrelled shotgun, and another with a golf club. All wore balaclavas.

26    Both the gun and the golf club were used to threaten Mr and Mrs Jones. They were ordered to open the cash register, and the men escaped with about $270 in cash, three gold rings valued at $210, and cigarettes of a total value of $544. Both Mr and Mrs Jones were understandably very frightened by the experience.

27    Although it was the Crown’s contention that the applicant was the offender in possession of the gun, Judge Shillington was unable to make a finding of fact to the requisite standard to that effect. He, however (correctly in my view), regarded that as of little significance in the sentencing exercise. He was satisfied that the applicant knew that a robbery was to take place and that a weapon would be used.

28    The applicant gave evidence which his Honour apparently generally accepted as truthful. He said that shortly before the robbery he had drunk six to eight beers and had, for the first time in his life, used heroin. Both the alcohol and the heroin had been given to him by one of the co-offenders, Kevin Carrick, who was then thirty-five years of age. The applicant said that there had been some discussion among the co-offenders about the commission of the robbery, but that he had been asleep and that after he had woken up he had been physically ill. He knew that the gun had been stolen from a neighbour’s home but said that, to his knowledge, it was unloaded. The balaclavas had been supplied by Carrick. He said that he had very little recollection of the events. He expressed regret and shame for his participation and an intention to rehabilitate himself and never use heroin again.

• • •

29    There was some support for the applicant’s claimed contrition. From the date he was charged (1 April 1999) until 10 January 2000, he maintained an intention to plead not guilty. He was released on bail on 13 April 1999. On 10 January 2000 he decided to change his plea to one of guilty and also to ask that his bail be revoked, and he accordingly surrendered himself on that day. The only source of this information was a Background Report prepared for the court by the Department of Juvenile Justice, which was accepted by the Crown as accurate. The Department of Juvenile Justice report also contained the information that, in about January 2000, the applicant committed an offence of break enter and steal.

30    There was other subjective material, again drawn largely from the Background Report. The applicant was born on 9 April 1982, and was almost seventeen years of age at the date of the offence, seventeen years and eleven months at sentencing. He had an insignificant criminal history, extending only to a charge of receiving stolen property and one of common assault, which were dealt with together in the Children’s Court in 1998. He was placed on probation for eighteen months.

31    The applicant has had a disturbed family life, his parents having separated when he was about five years of age. He has little contact with his father, to whom he harbours some resentment. Since the separation his mother has entered into at least two successive relationships. One of her partners became something of a father figure to the applicant, but his mother’s relationship with that man has since terminated. He bears some animosity to his mother’s current partner.

32    The applicant has an older sister, to whom he is close, and two younger brothers. His mother’s care for the family has been unstable, and, from an early age, the applicant and one of his brothers have been left to find their own accommodation. He left school shortly after turning fifteen and has had some casual employment, but the temporary nature of his domestic arrangements has made continuous employment difficult. He was described by the Juvenile Justice officer as “anxious and depressed”.

33 In R v Henry [1999] NSWCCA 111; 46 NSWLR 346 this court promulgated a guideline sentencing regime in relation to armed robbery. The sentence there proposed was expressed to apply in cases that fell into a broad category of cases with identifiable common features. Those features were stated as:

“(i) Young offender, with no or little 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.” (para 162, p 380)

The guideline sentence promulgated in respect of offences falling generally into the category described was a fulltime term of four to five years.

34    All four co-offenders pleaded guilty to the same charge as the applicant and were sentenced by Judge Bellear on 27 August 1999. Judge Bellear adopted the Henry sentence as the starting point in his sentencing exercise. As will appear, that is a matter of some significance in this application. The sentences Judge Bellear ultimately imposed on the co-offenders, were, however, adjusted according to the circumstances of each individual case and each individual offender, and, in some cases, departed quite widely from the four to five year Henry term. It is convenient here to note the sentences Judge Bellear imposed:

CSO was aged seventeen at the time of the offence. He was sentenced to a term of two years, made up of a minimum term of nine months and an additional term of fifteen months. Although it does not appear from the remarks on sentence, the transcript reveals that he had undertaken to give evidence against the co-offenders.

John Colin Osborne was aged twenty-three at the time of the offence. He was sentenced to a term of two and a half years, made up of a minimum term of eighteen months and an additional term of twelve months. He also provided assistance to the authorities and the sentence which would otherwise have been imposed was reduced by approximately 40 percent.

Kevin Carrick was aged thirty-five. He was sentenced to a term of five years and nine months, made up of a minimum term of three years six months and an additional term of two years three months.

BQ was aged sixteen and four months. He was sentenced, as was the applicant, to a term of four and a half years divided into equal minimum and additional terms.

35    In sentencing the applicant Judge Shillington did not refer directly to Henry. He did, however, expressly conclude that he should impose upon the applicant a sentence of the same effect as that imposed by Judge Bellear on BQ (although he also observed that, as the applicant was a juvenile, ordinary questions of parity were of no real relevance) and this is the sentence he did impose. It is evident, therefore, that, although unexpressed, the Henry guideline explains the sentence his Honour selected. It was derived from Judge Bellear’s sentence which was in turn expressly derived from Henry. It is, moreover, in total, the midpoint on the range specified in the guideline.

36 The offence the applicant committed was, by application of the definition in s 3(1) of the Act, a “serious children’s indictable offence”. That is so because it is punishable, pursuant to s 97(1) of the Crimes Act 1900, by penal servitude for twenty-five years. Pursuant to s 17 of the Act it was necessary for the applicant to be dealt with “according to law”. This meant that the broad sentencing options relevant to the sentencing of children for which provision is made in Part 3 of the Act were unavailable. It did not, however, exclude the application of the principles stated in s 6 of the Act (see below), although those principles are to be applied in the light of all relevant circumstances, including, of course, the seriousness of the crime for which the offender is being sentenced. The principles stated are not such as to dictate a particular result in any given case. In particular, principles (c) and (d) could not, in this case, operate to avoid the imposition of a full time custodial sentence.

The application

37 The principal argument advanced on the application was that, having regard to the applicant’s age, the Henry guideline was inapplicable. Counsel for the applicant placed particular reliance upon two previous judgments of this court. In R v Jack Sua [2000] NSWCCA 94; unreported, 23 February 2000, the applicant had been found guilty by a jury of an offence of armed robbery committed when he was just short of seventeen years of age. Hidden J, with whom Carruthers AJ agreed, said:

“Passing reference was made to the guideline judgment in R v Henry and Ors (46 NSWLR 346), but it does not appear that much assistance is available from that case. I take the guidelines to be applicable to adult offenders and not to embrace the special facts governing the sentencing of children. The principles governing the sentencing of children are well known.”

38 In R v RLS [2000] NSWCCA 175; unreported, 1 May 2000, the applicant had pleaded guilty to a number of armed robbery offences, all committed when he was sixteen years of age. Referring to Henry, Hulme J, with whom Carruthers AJ also agreed, referred to Henry and then said:

“I acknowledge that the applicant is of a younger age than contemplated in the guidelines.”

39 Counsel for the applicant also drew attention to particular provisions of the Act. These included s 6, which bears the heading “Principles Relating to the Exercise of Criminal Jurisdiction”(in relation to children). A child is defined in s 3 as a person under the age of eighteen years. The principles are stated in s 6 as:

6. Principles relating to the exercise of criminal jurisdiction

A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.

40 One matter on which the parties joined issue may now be disposed of. That concerned whether the Henry guideline was intended to apply to offenders who, by reason of their age, are “children” within the meaning of the Act. Counsel for the applicant argued that the Henry guideline was not intended to, and does not, apply to juvenile offenders. Senior counsel for the Crown argued that, because the guideline specifically incorporated youthfulness as one of the features in the category to which it is expressed to apply, it should be taken to have been intended to encompass “children” as defined in the Act. In my opinion the Crown argument elevates the use of the phrase “young offender” beyond what was intended. As I interpret the judgment, the phrase “young offender” was not intended to include “children” so defined. Support for that view is to be derived from the fact that of the seven offenders whose cases were considered in conjunction with the guideline, only one was a “child” within that definition. All others were young adults. It was offenders in this latter category to whom the consideration of the court was principally directed. The reference to “young offender” has nothing to do with “children” as it appears in the Act. That does not mean that the guideline is of no relevance to offenders under the age of eighteen years. Like all guideline judgments, Henry is to be applied flexibly. There will be cases in which greater weight is to be given to particular facts. For example, a plea of guilty where the Crown case is not strong will attract a greater discount than may otherwise be the norm.

41 The youth of an offender may also, in particular circumstances, attract a measure of leniency not extended to older offenders. In this regard it is necessary to bear in mind the well established principle that offenders who engage in very serious crimes, or crimes more commonly associated with older individuals, may forfeit all or some of their claims to leniency: R v Pham and Ly (1991) 55 A Crim R 128.

42    When it is remembered that the guideline sentence promulgated in Henry is non prescriptive and has inbuilt a high degree of elasticity, the applicant’s argument, it seems to me, evaporates. The youth of an offender is a relevant factor in the sentencing consideration, to be given the appropriate weight, together with all other relevant factors.

43 To the extent that it may be thought that the court either in Sua or RLS intended to exclude the application of guideline sentences (whether in relation to offences of armed robbery, or any of the other offences which have been the subject of guideline judgments) to children, I respectfully consider them to have overstated the position. It is, in any event, to be borne in mind that each was a judgment of a bench of this court constituted by two judges in accordance with s 6AA of the Criminal Appeal Act 1912, sub s 2 of which envisages that disputed issues of general principle will not be decided by the court so constituted. In my opinion neither of the benches in question intended to state any general principle as to the applicability or non-applicability of guideline judgments to juvenile offenders and should not be read as having done so.

44    I am, accordingly, satisfied that no error in principle has been demonstrated by reason alone of the fact that, in an indirect way, the sentence imposed on the applicant derived from the Henry guideline.

45    That does not finally dispose of the application. On behalf of the applicant it was submitted that, even taking Henry as a starting point, the weight given to certain mitigating factors was inadequate. These factors were identified as the applicant’s youth, his level of involvement in the planning of and preparation for the offence, his guilty plea and the circumstances in which it came to be entered, and the remorse that was evident from those circumstances. The fact that the guideline extends the sentencing of children does not mean that it would not be proper in appropriate cases to impose a sentence below the range stated.

46 The pre-Henry authorities that are directed to sentencing of young offenders are readily adaptable to the application of guideline judgments. The principles have been so frequently stated that little is to be gained from further exposition: youth is a factor that may operate to reduce the emphasis to be placed on considerations of general deterrence and retribution; but that principle itself is counterbalanced where the offence is one more commonly expected of an adult offender: Pham and Ly; R v Hearne [1999] NSWCCA 605 at para 76, and the cases there cited; R v Hearne [2001] NSWCCA 37, and the cases there cited.

47    Armed robbery is classically an offence of the kind in which the leniency otherwise attracted by youth may be diminished. The applicant could therefore gain little comfort from his youth in this sentencing process.

48    I have mentioned above the circumstances of the applicant’s involvement, his prior almost clear record, and the circumstances in which he entered his plea of guilty. These are matters that were expressly taken into account by the sentencing judge; there is nothing in the remarks on sentence to suggest that they were given inadequate weight. The thrust of the submission made on behalf of the applicant was that, from the ultimate sentence itself, it should be inferred that insufficient attention was given to one or more of these factors.

49    Having considered all of these matters, I am unpersuaded that such error has been demonstrated. In my opinion the sentence was, in all the circumstances, fairly heavy, but not outside the range of the sentencing discretion legitimately available. I would grant leave to appeal but dismiss the appeal.

**********