R v Teoka

[2004] NSWCCA 373

CITATION:	R v Teoka & Ors [2004] NSWCCA 373
HEARING DATE(S):	16/10/04
JUDGMENT DATE:	1 November 2004
JUDGMENT OF:	Grove J at 1; Buddin J at 2; Hoeben J at 3
DECISION:	Leave granted and appeals allowed.
CATCHWORDS:	Parity of sentences, age of offenders, relative culpability, lack of remorse
LEGISLATION CITED:	Children's (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Henry (1999) 46 NSWLR 346 R v Voss [2003] NSWCCA 182 R v Weldon & Carberry (2002) 136 ACrim R 55
PARTIES :	Tyrone Teoka - Applicant Aaron Glen Lloyd - Applicant ADM - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2004/1769; 2004/1883; 2004/1709
COUNSEL:	Ms D Woodburne - Crown Mr R Hulme SC - Applicant Teoka Mr RJ Button - Applicant Lloyd Mr H Dhanji - Applicant ADM
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions - Crown S O'Connor, Legal Aid Commission - Applicant Teoka S O'Connor, Legal Aid Commission - Applicant Lloyd Giddy & Crittenden - Applicant ADM

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/1139 03/11/0252 03/11/1139
LOWER COURT JUDICIAL OFFICER :	Hosking DCJ

2004/1769
2004/1883
2004/1709

GROVE J
BUDDIN J
HOEBEN J

Monday, 1 November, 2004

REGINA v Tyrone TEOKA

REGINA v Aaron Glen LLOYD

REGINA v ADM

Judgment

1 GROVE J: I agree with Hoeben J.

2 BUDDIN J: I agree with Hoeben J.

3 HOEBEN J: Each applicant seeks leave to appeal from sentences passed by his Honour Judge Hosking SC in relation to an offence contrary to s96 of the Crimes Act 1900 in that they on 26 July 2002 at Caringbah did rob Cameron White of a wallet containing personal cards and a sum of money, the property of Cameron White, in circumstances of aggravation, namely, that at the time of the robbery they did use corporal violence on him thereby inflicting to him grievous bodily harm.

The maximum penalty for this offence is 25 years imprisonment.

4 On 7 July 2003 the applicants Lloyd and Teoka were arraigned before a jury panel in waiting in relation to that indictment and an alternative charge under s35(2) of the Crimes Act that they did in company maliciously inflict grievous bodily harm upon Cameron White. Mr Lloyd pleaded not guilty to each of those charges. Mr Teoka pleaded not guilty to the s96 charge, but guilty to the s35(2) charge, which the Crown did not accept in satisfaction of the indictment.

5 Thereafter a jury was empanelled, evidence was given by a number of eye witnesses, including the victim Cameron White. On the third morning of the trial, Mr Lloyd entered a plea of guilty to the s96 charge of aggravated robbery and that same afternoon, Mr Teoka did likewise.

6 Messrs Teoka and Lloyd came before his Honour Judge Hosking for sentence on 21 November 2003. Mr Teoka was sentenced to imprisonment for a total term of 10 years with a non-parole period of 6 years, both those terms to commence on 6 April 2003. Mr Lloyd was sentenced to imprisonment for a total term of 10 years and 9 months with a non-parole period of 6 years and 9 months, both of those terms to commence on 4 December 2002.

7 The applicant, ADM, was arraigned on an indictment containing the same charges to which he pleaded not guilty. His trial commenced before Judge Christie QC and a jury on 24 February 2003 and continued until it was aborted on 27 February 2003. The applicant’s retrial was due to commence on 7 July 2003 and was to be a joint trial with Messrs Teoka and Lloyd. On 2 July 2003 ADM indicated his intention to plead guilty to the s96 charge.

8 ADM appeared for sentence on 11 September 2003 before his Honour Judge Hosking. ADM was sentenced to imprisonment for a total term of 11 years, with a non-parole period of 7 years, both those terms to commence on 7 August 2002. Because ADM was studying for his school certificate, his Honour directed that ADM should serve his imprisonment in a juvenile detention centre until 31 December 2003, following which he was to be transferred to an adult correctional facility.

Factual background

9 The facts were comprehensively set out by his Honour in his remarks on sentence in relation to ADM.

Late on the evening of 26 July 2002, Mr White was crossing an oval in the Caringbah area when he heard a yell and footsteps behind him. He turned and held up his wallet. He was confronted by three men, one of whom was standing directly in front of him. It was that person who punched him on the left side of the face, knocking him to the ground.

10 While on the ground, Mr White was repeatedly punched and kicked in the head by the three applicants. While this was going on, one of the applicants asked where his wallet was and on being told, removed it from Mr White. Mr White continued to be punched and kicked until he lost consciousness. The applicants then ran off.

11 It was subsequently established that Mr Teoka had initiated the attack, but that ADM had removed the wallet. ADM subsequently divided the contents of the wallet when he and the other applicants went to a unit where some female friends resided. All of the offenders had blood on their hands and shoes and Mr Teoka had blood on his trousers.

12 The attack was a particularly savage one. Mr White was left unconscious, or barely conscious, in a pool of his own blood on the oval where he had been attacked. He was subsequently taken to the Sutherland Hospital where he was admitted for treatment. His injuries were such that he was unable to speak or open his eyes. The photographs taken at the hospital show that Mr White was severely beaten and barely recognisable.

13 Mr White remained in hospital for a number of days. He sustained fractures to his skull, fractures under and in between his eyes and severe swelling to his eyes and face. There was bleeding for a number of days into his eye balls, he had many lacerations to his head, bruising all over his head and a number of chipped teeth.

14 The effects of the attack were permanent. Mr White was left with a sunken left eye socket, double vision, teeth sensitivity and difficulties in reading. He developed psychological sequelae including sleeplessness, fatigue, quickness to anger, together with nervousness and lack of trust when confronted by a group of strangers. He was out of work for seven months.

Subjective features

Mr Teoka

15 Mr Teoka was born on 16 August 1979 and was therefore almost twenty three as of the date of the offence. He had been convicted of two offences of assault occasioning actual bodily harm in March and May 1997. He was convicted of common assault in February 2001 and had been charged with common assault on 26 May 2002. He was on bail in relation to that matter when this offence occurred.

16 It was clear from the statements of persons in the unit to which the applicants returned following the offence (and his Honour so found) that Mr Teoka genuinely regretted what he had done and expressed remorse. He was, however, the person who commenced the attack on Mr White.

17 Mr Teoka came to Australia with his mother and younger brother when he was nine. His parents separated when he was five and he found adjustment to life in a new country somewhat difficult, but ultimately settled down when he gained acceptance through rugby league football.

18 Mr Teoka achieved his school certificate and after leaving school was either engaged in fulltime employment or in professional football until becoming unemployed in the months prior to the offence.

19 In the six months before the offence a number of stressful events impacted on Mr Teoka. These are best set out in the report of Ms Ryder, a psychologist, who provided a report on him.

“Tyrone formed a relationship with Peta about five years ago. They planned to have a family, and their son Corey was born on 22 March 2000. Tyrone described their relationship as “good” saying they fought infrequently. Unfortunately, Tyrone’s relationship with Peta’s mother was “rocky” because his mother distrusted “Kiwis” due to Peta’s abusive ex-boyfriend who was also born in New Zealand.
Peta’s mother died in January 2002. This was a very difficult time for the couple, and then they found that they were expecting their second child. Tyrone said “we thought things were looking up for us, we’d been going out and buying stuff (for the baby). Then Peta starting bleeding, and we got it checked out, and the doctors kept saying it was normal, so we went home and she just kept bleeding and bleeding.” Peta’s father then died ten weeks after Peta’s mother had died. This was a terrible shock to Peta and Tyrone. Tyrone said “After their deaths (Peta’s parents), Peta was a mess. It was even worse, for all of us … we ended up losing the baby … our relationship just went down ever since.” After a series of fights, Peta left Tyrone, taking their son Corey.
Tyrone said “After that, I just didn’t care, after that. I quit my job. I just started hanging around the bad crowd, just drinking. They (the bad crowd) didn’t work either, they just smoked cannabis and drank every day …”.

20 Mr Teoka gave evidence before his Honour. In the course of that evidence he said:

“Everything just got too stressful for us with everything that happened. We broke up and then she moved out and took my son and then I just started drinking more then.”

21 Ms Ryder reported that although Mr Teoka had commenced drinking alcohol at the age of sixteen, his consumption had increased markedly in the months before the offence. His previous assault convictions arose from excessive alcohol consumption as well as anger management issues.

22 Even before sentencing, Mr Teoka had taken advantage of counselling and educational programs available at the Metropolitan Remand and Reception Centre, including an anger management course. He had undertaken drug and alcohol counselling. Ms Ryder appeared to be optimistic as to Mr Teoka’s prospects of rehabilitation provided he received adequate supervision and support on his release.

Mr Lloyd

23 Mr Lloyd was born on 27 April 1984 and was eighteen at the time of the offence. His previous convictions included two offences of robbery in company in May 2001, larceny and steal from a dwelling house in November 2001. At the time of the offence, he had been charged with common assault, affray, hinder police, possessing stolen goods and possessing a prohibited drug. Mr Lloyd was on bail for those matters when the offence occurred and was subsequently convicted in relation to them on 30 September 2002.

24 His Honour was inclined to the view that Mr Lloyd was remorseful for what he had done, although that remorse (unlike Mr Teoka) was expressed some considerable time after the offence. Mr Lloyd was so intoxicated at the time of the offence that he had little recollection of it. There was no doubt that he actively engaged in both punching and kicking Mr White.

25 Mr Lloyd’s upbringing was an unfortunate one. He lost his mother at the age of three and his father was a criminal who spent extended periods in gaol. He lived with a paternal grandmother until she died when he was eleven years old. Thereafter he lived with various relatives until being made a ward of the State at the age of fourteen. He was physically abused by one of those relatives. He was expelled from school at about the age of fourteen and had not been engaged in any employment by the time he came to be sentenced.

26 Ms Perry from the Probation and Parole Service reported that Mr Lloyd had commenced smoking cannabis at the age of thirteen, drinking alcohol at the age of fifteen and inhaling cocaine at the age of fifteen or sixteen. Ms Perry concluded that Mr Lloyd was “a young man who has turned to alcohol and other drugs as a form of solace and a coping mechanism for his unresolved grief issues and subsequent unfortunate life experiences.” His Honour accepted this.

27 Mr Lloyd gave evidence in the sentencing proceedings. He referred to the beneficial effect of counselling that he had received on remand in relation to anger management and the abuse of alcohol and drugs.

ADM

28 ADM was born on 19 May 1985 and was seventeen years and two months at the date of the offence. He had been convicted of a robbery offence on 12 March 2002 and was subject to a Community Service Order for 200 hours at the time of this offence.

29 ADM was interviewed by the police on two occasions in August 2002. The transcript of those interviews can only be described as chilling. ADM showed no remorse. It is clear from those statements and from statements of persons in the unit to which ADM returned following the offence that he took a feral delight in, or as his Honour put it “gloated and laughed” about what he had done.

30 Whereas the intention of the other applicants was to assault Mr White, the specific intent of ADM was to assault and rob him.

31 A substantial quantity of documents was tendered on behalf of ADM, including reports of Dr Lucas a psychiatrist, Dr Granger a psychologist, a school counsellor and of Ms Kemp, a senior counsellor from the Department of Juvenile Justice. There were also testimonials from persons who knew ADM as to his good character.

32 From the report of Dr Lucas it would seem that ADM came from a supportive family, although he had a lengthy history of learning problems and disturbed behaviour. He left school and home at fourteen with problems associated with alcohol and drug abuse and fighting. He started smoking cannabis at thirteen and that consumption continued on a daily basis up to the offence. This was apparently financed by illegal activities, although he only had one previous conviction.

33 Dr Lucas noted that ADM began fighting “properly” at age thirteen. He enjoyed fighting. The objects of his fights were enemies, sometimes police or security guards or bouncers. The diagnosis by Dr Lucas was variously “attention deficit disorder”, “hyperactivity disorder” and “oppositional defiance disorder”.

34 The report of Ms Kemp was of only limited value since on important issues, ADM had not told her the truth eg that he had kicked Mr White and that he had robbed him.

35 The conclusion of Doctors Lucas and Granger was that if rehabilitation of ADM were to be achieved, he would need to be very closely supervised indeed.

Remarks on sentence
Mr Teoka

36 Despite the lateness of the plea of guilty, his Honour allowed a discount of 20% for the guilty plea. In due course his Honour applied that discount to a sentence of 12 years 6 months.

37 His Honour analysed the culpability of the three applicants and determined that it was similar, although he thought ADM was more culpable than the other two. His Honour noted that Mr Teoka was the first of the applicants to set upon Mr White and knock him to the ground. He thought Mr Teoka may have punched and kicked Mr White more than the other two because his clothing had more blood on it. When he approached Mr White, his intention was to “bash him” rather than to rob him.

38 Having carefully examined the evidence his Honour concluded that on the night of the offence, Mr Teoka experienced real remorse for what he had done to Mr White.

39 In considering the objective seriousness of the offence his Honour noted that the legislature had fixed a maximum penalty of 25 years. His Honour assessed the offence as “very high on the scale of seriousness for this kind of offence even though … not in the very worst category”. His Honour characterised the attack as pitiless and savage involving a high level of gratuitous violence and cruelty. The offence required a large measure of personal deterrence and general deterrence as a warning to others who might harbour thoughts of similar attacks.

40 In considering the application of s21A of the Crimes (Sentencing Procedure) Act 1999 (the Act) his Honour noted that the offence involved “the actual use of a considerable degree of violence”. His Honour noted that Mr Teoka did have a criminal record but there was a gap between 1997, 2001 and 2002 in relation to those offences. This offence was committed while Mr Teoka was on bail. The offence was committed in company and considerable physical and emotional injury was caused to Mr White.

41 By way of mitigating factors, the offence was not part of a planned or organised criminal activity and in relation to Mr Teoka, there were very real prospects for rehabilitation. There was genuine remorse on the part of Mr Teoka which had arisen soon after the offence. Until the series of traumatic events affecting his partner’s family and his relationship with his partner, he had been in regular employment and had performed a significant amount of work over the years. His Honour noted that upon his release, Mr Teoka intended to go back to his old place of work and to try to make it up to his young son whom he felt he had let down. The prospects of successful rehabilitation were good.

42 Because of the subjective issues which had been identified, his Honour found special circumstances. His Honour noted that Mr Teoka had given himself up to the police. Although he had prior convictions for violence, Mr Teoka was not “usually what he described as a ‘kicking person’”. Mr Teoka acknowledged that he had an alcohol problem.

43 In spite of the fact that Mr Teoka was older than the other applicants, and despite the fact that he instigated the attack, his Honour assessed Mr Teoka as being slightly less culpable than ADM. Taking those matters into account, his Honour sentenced Mr Teoka to a total term of 10 years with a non-parole period of 6 years. In doing so, his Honour said:

“I have compared the sentences in a number of other cases to the present one. I have been assisted in particular by the decision of the Court of Criminal Appeal on a Crown appeal in the case of R v Weldon and R v Carberry [2000] NSWCCA 475 which in my view is a generally similar case but recognising that no two cases are identical. That being a Crown appeal, in my view set the benchmark for the lower end of the scale. According to the facts of those cases, I have found those cases helpful by way of comparison in setting these sentences.”

Lloyd

44 His Honour allowed a discount of 15% for the guilty plea. It is not clear why his Honour differentiated between Mr Lloyd and Mr Teoka. Both pleas were late and if anything that of Mr Lloyd was somewhat earlier than that of Mr Teoka in that it was entered on the morning of the third day. His Honour applied that discount to a sentence of 12 years 6 months.

45 His Honour took into account the same objective and aggravating features of the offence as were referred to in relation to Mr Teoka. In the case of Mr Lloyd, he also was on bail when this offence occurred. Despite his younger age his criminal record was worse than that of Mr Teoka.

46 In relation to mitigating factors, his Honour was inclined to the view that Mr Lloyd was also remorseful for what he had done, although those feelings of remorse did not arise as early as those of Mr Teoka. His Honour had regard to his unfortunate childhood and upbringing in that he was deprived not only of material possessions, but of a loving and secure environment and parental guidance that most people in the community enjoy. Taking this into account and also Mr Lloyd’s expressed intent to rehabilitate himself, his Honour found special circumstances. He was of the opinion that Mr Lloyd would require a long period on parole to address the rehabilitation issues. He would need to deal with his alcohol and drug abuse problems and control his anger.

47 His Honour thought the level of culpability of Mr Lloyd was less than that of ADM, although he had a more serious criminal history. He was young like ADM, being only just over eighteen at the time of the offence. Unlike ADM he did not instigate the robbery aspect of the offence but did take a significant part in the physical beating of Mr White and afterwards accepted his share of the proceeds of the robbery.

48 After applying a 15% discount, his Honour sentenced Mr Lloyd to imprisonment for 10 years and 9 months with a non-parole period of 6 years and 9 months.

ADM

49 As indicated, ADM was the first of the applicants to be sentenced by his Honour, that taking place on 12 September 2003. It was when sentencing ADM that his Honour fully reviewed the factual background to the offence and its consequences for Mr White.

50 Because of the utilitarian value of the plea of guilty, albeit after an aborted trial, his Honour allowed a discount of 15%. His Honour applied that discount to a sentence of 13 years. As with Mr Lloyd, it is not clear why ADM received a lesser discount for his plea of guilty than Mr Teoka in that the circumstances in which the plea was entered seem to be similar.

51 His Honour’s observations as to the objective seriousness of the offence and aggravating features were the same as those made in respect of Messrs Teoka and Lloyd, although ADM had only one significant prior offence. It was in relation to ADM that his Honour noted that the criminality of the violence in this offence far outweighed the theft aspect. By way of mitigation, ADM was the youngest of the applicants being seventeen years and two months of age when the offence occurred.

52 Subjectively, his Honour reviewed the psychiatric, psychological and other reports provided on behalf of ADM and had regard to his early abuse of cannabis and alcohol and his enjoyment of fighting. His Honour specifically rejected ADM’s claim that he was genuinely remorseful for what he had done and rejected some favourable conclusions made by Ms Kemp.

53 Although Mr Teoka had initiated the attack, his Honour found that ADM had initiated the robbery element and that ADM had lost no time in becoming involved in the assault element of the offence. His Honour found that ADM had punched and kicked Mr White and stomped on his head while he was on the ground.

54 His Honour was not convinced that ADM would not re-offend unless he was in custody or perhaps on parole or unless he underwent a major change in attitude. Nevertheless, even with his lack of remorse taking into account his age and that this was the first time ADM had been in custody, his Honour found special circumstances justifying a departure from the normal sentencing ratio between the head sentence and parole period. ADM would need support when he was released from imprisonment to deal with his various psychological, alcohol and drug problems.

55 His Honour found ADM to be more culpable than either Messrs Teoka and Lloyd and for that reason, his Honour used as his starting point a sentence of 13 years before applying the 15% discount for the early plea. ADM was sentenced to a total term of imprisonment of 11 years with a non-parole period of 7 years.

Appeal
Teoka

56 The first ground of appeal was that his Honour had relied upon an ingredient of the offence as an aggravating factor, contrary to the provisions of s21A(2) of the Act. The submission was that his Honour’s reference to “the actual use of a considerable degree of violence” involved such an error.

57 In response the Crown submitted that his Honour did not have “additional regard” to that factor. What his Honour did was no more than to focus on the high level of gratuitous violence and cruelty involved in the crime. This was an approach authorised by this Court in R v Way [2004] NSW CCA 131 at [106-7]. I agree. This challenge to his Honour’s judgment is not made out.

58 The second ground of appeal was that the sentence was manifestly excessive. Essentially two arguments were relied upon. The first was that his Honour had erred in attributing to Mr Teoka a greater contribution to the violence visited upon Mr White than to the other two applicants. It was pointed out that initially his Honour had found that it was impossible to determine the contribution of each of the applicants to Mr White’s injuries but that later in the remarks on sentence based on the amount of blood on his clothing, his Honour had made that attribution to Mr Teoka.

59 It is correct that when summarising his conclusions on sentence in relation to Mr Teoka his Honour did say that Mr Teoka had “struck Mr White more times than the others did”. An examination of the context in which that remark was made, makes it clear that his Honour regarded the contribution of each of the applicants in the violence of the assault as equal and that this aspect does not seem to have influenced his Honour. Of more importance, as his Honour pointed out, was the fact that Mr Teoka had initiated the attack upon Mr White.

60 The second argument was that his Honour’s reliance upon the decisions in R v Weldon and Carberry ( 2002) 136 A Crim R 55 demonstrated error. It was submitted that there was no real similarity between the facts in that case and the facts of the offence under consideration. The offenders in that case were older, the offence was planned, it involved greater criminality and the sentence was imposed as a result of a successful Crown appeal. If his Honour relied upon that case as demonstrating the “benchmark for the lower end of the scale” he was in error in doing so.

61 His Honour does seem to have found some degree of similarity between the decision in Weldon and Carberry and the facts of this case. His Honour also seems to have placed some reliance upon that case as providing guidance as to the sentences which he should impose. To the extent that his Honour did regard the decision in Weldon and Carberry as being similar to the present offences, he was in error. That, however, does not end the matter.

62 The crucial question is whether it has been established that the sentence imposed on Mr Teoka was unreasonable and was so manifestly excessive that this Court ought intervene. In my opinion, that has not been established.

63 His Honour’s approach was logical and meticulous. He used as his start point the objective seriousness of the offence and referred accurately to its aggravating and mitigating features, including the serious and permanent detriments suffered by Mr White. He then carefully enumerated the subjective considerations which favoured Mr Teoka, in particular his almost immediate remorse for what he had done. Taking all those matters into account, he then fixed on a sentence which although heavy, was certainly within the range and was available to him in the exercise of his sentencing discretion.

64 I am not persuaded that the sentence imposed by his Honour on Mr Teoka was manifestly excessive. The only change which should be made to his Honour’s sentence is that which was agreed to by the Crown in that a wrong commencement date for the sentence had been provided to his Honour. I would allow the appeal but only to the extent of inserting as the commencement date of the sentence 6 February 2003.

Lloyd

65 In relation to Mr Lloyd it was submitted that his sentence was manifestly excessive and that to the extent that his Honour had used the decision in Weldon and Carberry his Honour was in error.

66 I have already dealt with the use made by his Honour of the decision in Weldon and Carberry.

67 In addition, six specific considerations were relied upon as indicating that the sentence was manifestly excessive. These were:-

(i) The robbery element was an afterthought and Mr Lloyd’s involvement was that he shared in the proceeds.

(ii) At the time of the offence he was eighteen years and three months old.

(iii) He had a very poor start in life and his reaction to that was anger.

(iv) He had been abusing alcohol and drugs for many years and particularly on the night of the offence which explained but did not excuse the senseless attack.

(v) The sentence imposed was at the very top of the range for an eighteen year old who had pleaded guilty to the offence.

(vi) The sentence imposed was out of step with the approach in R v Henry (1999) 46 NSWLR 346.

The submission was that the combination of these factors indicated that the sentence imposed on Mr Lloyd was manifestly excessive.

68 All of these matters were specifically referred to by his Honour and taken into consideration when his Honour fixed Mr Lloyd’s sentence. They were not looked at in isolation but were taken into account as a cohesive whole. If these were the only factors to be considered, I would not be inclined to intervene.

69 The question of parity of sentence was also raised on behalf of Mr Lloyd. The reasons why Mr Lloyd should have a sense of grievance in the light of the sentence imposed on Mr Teoka, was because culpability was found to be almost equal as were rehabilitation prospects but most importantly, Mr Lloyd was five years younger than Mr Teoka. Although his Honour’s assessment of the subjective features of Mr Teoka was generally more favourable than those for Mr Lloyd, the distinction was at best only a fine one.

70 The difference in sentence between Mr Lloyd and Mr Teoka was because Mr Teoka had the advantage of a 20% discount for an early plea, whereas Mr Lloyd had been given 15%. As indicated earlier, the reason for this difference is not clear. His Honour foreshadowed an explanation but in the event did not give one. It would seem that the difference in discount was based on the fact that Mr Teoka had pleaded guilty to the alternative charge pursuant to s35(2) of the Crimes Act. That does not seem to me to be a sufficient reason for a difference of 5% in the discount given by his Honour for the pleas of guilty.

71 In my opinion, the application for leave to appeal by Mr Lloyd should be granted and the appeal allowed. He should be given the same sentence as Mr Teoka. Even allowing for the more favourable view which his Honour took of Mr Teoka’s subjective circumstances, the general level of responsibility for the offences by Messrs Lloyd and Teoka was the same and Mr Lloyd because of his age would have a justifiable sense of grievance that his sentence was 9 months longer than that of Mr Teoka.

ADM

72 Three grounds of appeal were relied upon. The first was that although sentencing “at law” s6 of the Children’s (Criminal Proceedings) Act 1987 applied to the applicant, his Honour did not have regard to it. Reliance was placed upon the fact that his Honour made no specific reference to s6 of that Act.

73 Section 6 provides:-

“6. 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.”

74 In reply the Crown submitted that the offence to which ADM pleaded was a “serious indictable children’s offence” for the purposes of the Children’s (Criminal Proceedings) Act 1987 so that by reason of s17 of that Act, ADM was to be dealt with “according to law” and not as if he was being dealt with in the Children’s Court.

75 While his Honour did not refer in terms to s6 of that Act, it is quite another thing to conclude that his Honour must have disregarded the provision. That his Honour made a specific direction that ADM be allowed to complete his school certificate in a juvenile facility is an implicit indication that his Honour did have regard to s6.

76 The Crown also submitted that there was nothing in his Honour’s approach to ADM which did not comply with the requirements of s6. In that regard the Crown relied upon what was said by this Court in R v Voss [2003] NSWCCA 182 at [12-14]:

“12. It can be observed that subsection (e) does not mandate a lesser sentence than that which would be imposed upon an adult for an offence of the same kind.
13. The essence of the applicant’s submission was expressed in a contention that in resolving a necessary tension between moral culpability for an offence and the objective gravity of it, the learned sentencing judge erred in failing to give proper or sufficient weight to the applicant’s age and immaturity.
14. It was recognised that there were applicable authorities concerning the approach to be taken in such cases. A young offender who conducts himself “as an adult” or engages in “grave adult behaviour” will have less weight given to those principles and more weight given to the objective seriousness of the offence …”

77 I agree. It is not established that his Honour had no regard to s6 of that Act. In any event, there is nothing in his Honour’s approach to ADM which was in conflict with the requirements of s6 as they have been interpreted by this Court. I would reject this ground of appeal.

78 The next ground was that his Honour erred in the application of the principle of parity. This was based on two considerations. Firstly, that his Honour had failed to have due regard to ADM’s age, even though it was accepted on behalf of the ADM, that he had engaged in “grave adult behaviour”. The relevant consideration in relation to age was lack of maturity. Whereas an older person might well appreciate the seriousness and consequences of an act, a young person might not do so even where that young person is seventeen years and two months of age.

79 In support of this ground it was also submitted that insufficient regard had been paid to ADM’s considerably lesser criminal record and the fact that he was not on bail (as were the other two applicants) at the time of the offence. It was of course true that ADM was subject to a Community Service Order at the time of the offence. The actions of ADM were characterised as those of a young person who joined in the attack led by an older person ie Mr Teoka.

80 In the course of argument it was also submitted that his Honour’s finding as to the lack of remorse and callousness on the part of ADM was not open to him and was not based on sound reasoning. Even if it were open for such an argument to be put on behalf of ADM, I would reject it. His Honour’s finding as to lack of remorse against ADM was based on substantial evidence and was certainly open to him.

81 In the alternative, in relation to the question of lack of remorse, it was submitted on behalf of ADM that this was also an area where his Honour had failed to have due regard to ADM’s age. It was submitted that such matters as contrition and remorse are the product of maturity and life experience.

82 Given that ADM was almost an adult at the time of this offence, it is difficult to accept that his cruel and callous conduct can be entirely explained by his age. However, it may provide some explanation for what is otherwise entirely unexplainable to normal thinking persons.

83 For the reasons set out in the case of Mr Lloyd, even taking into account the findings of his Honour in relation to lack of remorse by ADM, there is a basis for the complaint that greater allowance should have been made for the age of ADM and that ADM would have a justifiable sense of grievance when looking at the sentences imposed on Mr Teoka and on Mr Lloyd.

84 Even taking into account his young age, does not, in my opinion, entitle ADM to a lesser sentence than either Mr Lloyd or Mr Teoka but at most to the same sentence. In the case of ADM, I would grant leave to appeal and allow the appeal and I would impose the same sentence as was imposed on Mr Teoka.

85 Accordingly, the orders which I propose are as follows:

R v Teoka

1. Grant leave to appeal and allow the appeal.

2. Sentence imposed by Hosking DCJ on 21 November 2003 is confirmed.

3. The applicant is sentenced to a period of imprisonment for a total term of 10 years with a non-parole period of 6 years, both of which terms are to commence on 6 February 2003 and the non-parole period is to expire on 5 February 2009. The applicant is eligible to be considered for release on parole at the expiration of the non-parole period.

R v Lloyd

1. Grant leave to appeal and allow the appeal.

2. Sentence imposed by Hosking DCJ on 21 November 2003 is quashed.

3. The applicant is sentenced to imprisonment for a total term of 10 years with a non-parole period of 6 years, both of which terms are to commence on 4 December 2002 and the non-parole period is to expire on 3 December 2008. The applicant is eligible to be considered for release on parole at the expiration of the non-parole period.

R v ADM

1. Grant leave to appeal and allow the appeal.

2. Sentence imposed by Hosking DCJ on 12 September 2003 is quashed.

3. The applicant is sentenced to imprisonment for a total term of 10 years imprisonment with a non-parole period of 6 years, such terms to commence from 7 August 2002 and the non-parole period is to expire on 6 August 2008. The applicant is eligible to be considered for release on parole at the expiration of the non-parole period.

**********

Last Modified: 11/29/2004