R v T, JJ

[2012] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v T, JJ

[2012] SASCFC 62

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice David)

1 June 2012

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - CUSTODIAL ORDERS

The applicant applied for permission to appeal to the Court of Criminal appeal against his sentence after a single Judge of the Supreme Court of South Australia refused permission to appeal – the application and appeal were heard concurrently in the event that permission to appeal was granted.

The applicant pleaded guilty in the Youth Court to the charge of murder – T was 14 years old when the offence was committed and 15 years old when sentenced – the sentencing Judge imposed the mandatory sentence of life imprisonment, and fixed a non-parole period of 15 years.

The question for the Court was whether or not permission to appeal should be granted - the ground of appeal was that the non-parole period was manifestly excessive – the issue put into contention to support the ground of appeal was whether the following factors required a shorter non-parole period: the applicant was only 14 years of age at the time of the offence; the applicant pleaded guilty at an early stage; the applicant’s provision of two detailed statements to the DPP; it was a first offence; the applicant had a difficult childhood, both at school and at home; the applicant’s psychological condition; and the fact that the applicant had shown some signs of improvement during is time in detention.

Held: the case is sufficiently unusual, and the non-parole period is sufficiently substantial, to warrant consideration by the Court – after considering the relevant provisions of the Criminal Law (Sentencing) Act 1988 (SA), applied in the light of the relevant provisions of the Young Offenders Act 1993 (SA), and the relevant circumstances and the number of years determined by the Judge, it could not be said that the Judge’s decision was erroneous.

Application for permission to appeal against the non-parole period granted – appeal dismissed.

Young Offenders Act 1993 (SA) s 3, s 3(2a)(b)(ii), s 29(1), s 29(4); Criminal Law (Sentencing) Act 1988 (SA), referred to.
R v A, D (2011) 109 SASR 197, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"young offender"

R v T, JJ
[2012] SASCFC 62

Court of Criminal Appeal:   Doyle CJ, Vanstone and David JJ

1. DOYLE CJ:          T pleaded guilty in the Youth Court to a charge of murder.  When the offences were committed T was 14 years old.  He was 15 years old when sentenced.  The Judge imposed the mandatory sentence of life imprisonment, and fixed a non-parole period of 15 years.

2. T now applies for permission to appeal against the sentence on the ground that the non-parole period is excessive.  A single Judge of this Court refused permission to appeal.  T now renews his application for permission before this Court.  The application was heard on the basis that if permission to appeal is granted, the hearing of the application will be treated as the hearing of the appeal.

3. The appeal raises no issue of principle.  It poses the question of the appropriate non-parole period for T, a young offender, who has committed the serious offence of murder in circumstances of brutality.  Mr Muscat SC, counsel for T on appeal, does not argue that the Judge’s reasons for sentence disclose any error.  The complaint is that in all the circumstances the non-parole period is excessive.

   The Offending

4. T had just turned 14 years of age at the time of the offence.  He was in year 8 at school.

5. I will state the circumstances of the offence quite briefly.  What I say is taken from the remarks of the sentencing Judge.  There is no dispute about the facts as she found them.  The sentencing Judge did not go into all of the circumstances of the crime, although a good deal of material was before her.  The same material is before this Court.  Another person, W, is to stand trial on the same charge and that trial is scheduled to take place later in the year.  In these circumstances it is not appropriate to elaborate on the facts.

6. The sentencing Judge said that a particularly disturbing aspect of the crime was that the selection of Ms Kemppainen as a victim was random.  The Judge found that the victim was a complete stranger to T and that his sole motive for going to her house that night was his wish to kill someone.  While he was at Ms K’s house a glass sliding door at the back of her house was smashed with a concrete brick.  Shortly afterwards she was subjected to what the Judge described as a frenzied and relentless attack, initially with a knife and finally with a large brick.  She suffered multiple stab wounds to the head, face and neck, severe blunt force head injuries, multiple bruising and cuts and skull and facial fractures.  The Judge found that the premeditated, senseless and savage nature of the crime placed it at the very highest end of the scale of seriousness.

7. T was arrested and charged a few days later.  He began to make admissions early in the piece.  He pleaded guilty in the Youth Court, at an early stage.  He was committed for sentence in the Supreme Court. 

8. As I have said, Ms Kemppainen was the unfortunate victim of T’s wish to kill someone.  She was living her life in peace, until she crossed his path.  Her family has suffered grievously from the crime and its consequences.

   T’s Circumstances

9. The Judge was provided with a number of detailed reports for the purposes of fixing a non-parole period.  She had a report from a psychologist, and from three psychiatrists.  The Judge accepted the opinion of Mr Broomhall, who provided a very detailed report and also gave evidence before the Judge.  Mr Broomhall is a psychologist.  He identified several “key factors” relevant to an understanding of T’s background leading to his crime.  He said:

   It was unlikely in my opinion that any one of these following circumstances on their own would have been sufficient to drive [T’s] behaviour; it was the combination of each of these factors which provided accumulative impact and drove [T’s] behaviour in such violent means. 

   The first factor was T’s “neurocognitive profile”.  He commented:

   … [T’s] profile revealed intellectual deficits and most significantly, very poor ability to process competing attentional demands and consequence analysis.

   He next referred to T’s exposure to violence and aggression.  He commented:

   [T] sought to externalise anger onto other individuals leading to early development of attitudes of low empathy toward people outside of his family unit.

   The next factor was “bullying and poor social skills”.  He was referring here to T being bullied at school.  He said that this led to T having “little empathy for others who were outside his immediate social or family circles”.  He added:

   His anger often took on violent themes as he became older, partly in response to his attraction to violent material and pornography.

   The fourth factor was exposure to depictions of violence.  He said:

   While exposure to violent video games, violent movies and pornography is not sufficient in itself to create violent behaviour, continued exposure decreases emotional empathy and autonomic arousal leading to an ability to undertake behaviours and attitudes which would be classed as socially unacceptable, violent and aggressive.  Once again, the themes of emotional callousness, low empathy and objectification of individuals are seen. 

10. In relation to treatment and services made available to T at the training centre where he was held, he commented:

    Clearly, interventions offered to [T] need to be holistic; educational services to improve literacy and basic problem solving, practical living skills development, appropriate social engagement with staff and other residents.  From the psychological perspective it is imperative that the central focus of 1:1 intervention with [T] aim at developing empathy toward others, communication and problem solving which does not use aggression and violence.  Further, specific training cognitive functioning should be considered in [T’s] case.  Research suggests that Quantitative EEG and neurofeedback therapy shows significant results for significant cognitive and behavioural problems in children and adolescents.  Beyond this, recommendations for [T’s] rehabilitation should be reviewed every six months to comment on engagement, outcomes and further treatment needs.

    [footnote omitted]

11. Dr Raeside, a forensic psychiatrist, said that he agreed with Mr Broomhall “both diagnostically and in terms of future intervention”.  As to the future he commented:

    It may be, in terms of future adult functioning, that the time he spends in custody during his teens will prevent further worsening of his psychological problems.  Educational and training opportunities, appropriate adult supervision and intervention, and removal from negative peer activities in the community will be positive factors.  Of course his peers in custody will have their own difficulties and negative attitudes.  [T] may become involved in that subculture, but time will tell.  His intellectual impairment is obviously a limiting factor to his progress but can be assisted by structured support. 

    The Judge’s Reasons

12. The Judge outlined the circumstances of the offending, and the impact on Ms Kemppainen’s family.  She referred to the reports that she was given, and in particular to that from Mr Broomhall.  Having done so, she commented:

    In accordance with the law as laid down by Parliament, I am obliged to assume that you have the potential for rehabilitation which can be realised. However, as earlier mentioned, I must also take into account the question of community protection and that is a matter which causes me considerable concern.

    The Judge noted that T had pleaded guilty at the earliest opportunity and that he had began to express contrition for what he had done.  The Judge said:

    In reaching a decision as to an appropriate sentence, I have done the best I can to balance all relevant matters. However, as I place your crime at the highest level of seriousness, I consider that it is necessary to fix a substantial non-parole period, notwithstanding that even now you are only 15 years old. It is also clear that you require many years of treatment before one can have any confidence in the community being adequately protected against any further violent behaviour from you. As I mentioned at the outset of these remarks, the only sentence that I can impose for the crime of murder is imprisonment for life and I so order.

    The Judge would have fixed a non-parole period of 25 years, but reduced it to 15 years having regard to the plea of guilty and other matters identified by the Judge.

    Legislation

13. There is no suggestion that the Judge erred in principle. 

14. It was appropriate for the Judge to sentence T as an adult, as she did:  see the Young Offenders Act 1993 (SA) (“the YOA”) s 29(1) and s 29(4). Although the Judge sentenced T as an adult, she was obliged to fix the non-parole period having regard to the objects and statutory policies to be found in s 3 of the YOA. Relevantly, s 3 of the YOA provides:

    (1)The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.

    (2)The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:

    (a)     a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;

    (c)     the community, and individual members of it, must be adequately protected against violent or wrongful acts.

    (2a)In imposing sanctions on a youth for illegal conduct—

    (a)     regard should be had to the deterrent effect any proposed sanction may have on the youth; and

    (b)     if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth's conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—

    (i)the deterrent effect any proposed sanction may have on other youths; and

    (ii)the balance to be achieved between—

    (A)the protection of the community; and

    (B)the need to rehabilitate the youth.

    …

    These are all matters to which the Judge referred. The Judge’s approach accorded with the requirements of the YOA as explained in decisions such as R v A, D [2011] SASCFC 5; (2011) 109 SASR 197 at [56]-[60].

    Consideration of Appeal

15. Mr Muscat submits that certain factors called for and required a shorter non-parole period.  First, the circumstance that T was only 14 years of age when he committed the offence.  Second, his early plea of guilty.  Third, the provision of two detailed statements to the DPP.  Fourth, the circumstance that he had not previously committed any offence.  Next, T’s difficult childhood, both at home and at school, bearing in mind the many years of teasing and bullying to which he had been subjected.  He referred also to the factors identified by Mr Broomhall.  He relied also on the circumstance that T had shown some improvement during his time in detention.

16. The issue for this Court is whether it should grant permission to appeal to enable Mr Muscat to argue Mr Muscat to argue that the non-parole period is excessive.

17. In considering this question one must bear in mind the approach to sentencing a young offender outlined in R v A, D.  The provisions of the Criminal Law (Sentencing) Act 1988 (SA) are relevant, but are to be applied in light of the provisions of the YOA referred to above, in the manner indicated in R v A, D.  Arriving at an appropriate non-parole period is always difficult when a serious crime is committed by a young offender.  The decision is made all the more difficult in this case by T’s very young age, and by the nature of his crime.

18. Of course, all of the circumstances are relevant.  Many of them call for no further comment.  But I make these further brief points.

19. The non-parole period that the Judge fixed is well below the non-parole period that one would expect had T been an adult when he committed the crime.  The only relevance of this point is that there can be no suggestion that the end result suggests an error on the part of the Judge, as it would if the non-parole period approached that an adult offender would attract.  But I accept that one cannot reason in the other direction, and argue that simply because the non-parole period is substantially less, it must be right.

20. Mr Muscat is right to emphasise that T had no history of offending.  But when one bears in mind his very young age, and the seriousness of the crime, this is not a matter that can play a substantial part in the decision.

21. The random nature of the crime, and its brutality, are striking. The Judge was right to conclude that T has demonstrated that he is a threat to the community, and that the community requires protection from him. The Court must balance the protection of the community and T’s need for rehabilitation: see s 3(2a)(b)(ii) of the YOA. There is a prospect that T can be reformed, but one cannot be sure of this, and that the process is likely to be a lengthy one.

22. T’s early plea of guilty, and other matters alluded to by the Judge, support a substantial reduction in the non-parole period, but there can be no complaint about the reduction that the Judge made.  It was a substantial one, and a generous one.

23. In the end one has to consider the legislation, the relevant circumstances and the number of years determined by the Judge.  Arriving at the appropriate non-parole period is a matter on which minds can easily differ.  I am far from being persuaded that the Judge’s decision was in any way erroneous.  On any view of the matter, a non-parole period of this order was called for.

24. I would grant permission to appeal, on the basis that the case is sufficiently unusual, and the non-parole period is sufficiently substantial, to warrant consideration by the Court.  However, the appeal should be dismissed.

25. VANSTONE J:     I agree with the orders proposed by the Chief Justice and with the reasons he has written.

26. DAVID J:              I would grant permission to appeal but dismiss the appeal.  I agree with the reasons of the Chief Justice.