R v TJP

[1999] NSWCCA 408

CITATION:	R v TJP [1999] NSWCCA 408 revised - 09/12/99
FILE NUMBER(S):	CCA 60847/98
HEARING DATE(S):	1 December 1999
JUDGMENT DATE:	1 December 1999
PARTIES :	The Crown TJP
JUDGMENT OF:	Wood CJ at CL; Sully J; Simpson J

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70203/98
LOWER COURT JUDICIAL OFFICER:	Newman J

COUNSEL:	Crown: P.G. Berman Appellant: R. Burgess
SOLICITORS:	S.E. O'Connor T.A. Muprhy
CATCHWORDS:
DECISION:	Leave to appeal granted; Appeal dismissed; Sentence confirmed

- 8 -

IN THE COURT OF
CRIMINAL APPEAL

60847/98

WOOD CJ at CL
SULLY J
SIMPSON J

WEDNESDAY 1 DECEMBER 1999

REGINA v TJP

JUDGMENT

1   WOOD CJ at CL: The applicant was, on 9 November 1998, sentenced by Newman J to a minimum term of penal servitude for two years and eleven months, and to an additional term of three years for an offence of manslaughter, to which she pleaded guilty. A period of pre-sentence custody of one month was taken into account, so that the overall sentencing order was one of six years penal servitude. 2   She now seeks leave to appeal against that sentence upon four bases, namely that:

(a) insufficient weight was given to her subjective features, including her age, her limited intellectual capacity, her deprived background, the circumstance that she was affected by alcohol at the time of the offence, her plea of guilty, her contrition and her prospects of rehabilitation;

(b) she was not given any benefit for the assistance she provided to police in naming one of her co-offenders;
(c) there was a lack of parity in relation to the sentence imposed upon her co-offender, Peter James Wilson, a young man who was eighteen years of age at the time of the offence and who was sentenced by his Honour to a minimum term of four years and to an additional term of four years for the offence of manslaughter, to be served concurrently, with a fixed term of six months for an offence of stealing from the person;
(d) the sentence was manifestly excessive in the light of the subjective circumstances and her limited role in the killing.

3   The facts giving rise to the offence to which the applicant and Wilson pleaded guilty may be shortly noted. On Sunday evening, 7 February 1998, the applicant, Wilson and a third person, DK, were at Wilson's flat where they were drinking alcohol. In the early hours of the following morning they left the premises with the objective of robbing somebody. They came upon Ernest Coles, a 67-year-old man of slight build. He was sitting on a bench near an ATM, operated by the Commonwealth Bank in Taree, eating chips. Wilson brutally attacked him, punching him ten to fifteen times around the head. 4   Although the applicant gave varying accounts of her role in the fight and denied any involvement when first spoken to, she acknowledged when volunteering to be interviewed by police a few days later, that she had joined in kicking Mr Coles. Later she was to say that it was DK rather than she who kicked him. She sought to explain away her self-incriminating answers in the second record of interview upon the basis that she had wished to protect DK. That explanation his Honour did not accept, finding that she did in fact kick Mr Coles and that she was an active participant in the events which led to his death. 5   His Honour also found the purpose of the three offenders was to rob Mr. Coles, a finding supported by the three matters referred to by his Honour, namely, the location of the attack, the fact that the pockets of the deceased were turned out, and the fact that Wilson stole his brown leather coat. 6   The plea of manslaughter on the part of the applicant was accepted on the basis that she participated in an unlawful and dangerous act. The plea in relation to Wilson was accepted upon the basis that his attack constituted murder, but his culpability was reduced to manslaughter by reason of diminished responsibility, evidence having been provided by Doctors Strum and Neilson that he suffered from the condition of schizophrenia and was subject to an active episode of that illness on the night in question. 7   I turn to the four grounds of challenge.

Subjective Circumstances

8 It was the fact the applicant was sixteen years of age at the time of the offence and seventeen years of age when she appeared for sentence. She is of aboriginal extraction and comes from a family in which there are five children. There was some evidence before his Honour that her father had been violent towards her mother, although not towards her. She left school at fourteen, having been expelled. She had not gone any further with her education prior to her arrest. She had been abusing alcohol and cannabis since the age of eleven or twelve, depending on which version of the history given is to be accepted. 9 Each of these matters was expressly noted by his Honour, as were some other features relevant for her prospects of rehabilitation, which his Honour described as "encouraging". They related to the courses which she had undertaken at a TAFE college and at the Purfleet Community Youth Centre Association since her arrest and the ability she had demonstrated in the field of arts and craft. 10 His Honour disregarded her criminal record, which he described as minor, and expressly said that he took matters identified into account as special circumstances justifying a departure from the usual ratio between the minimum and the additional terms. 11 His Honour noted that he had taken into account the problems arising from her background, and in that regard had followed the observations which had been expressed by me in Fernando (1992) 76 A Crim R 58. His Honour also said he had taken into account the sentences passed by the Supreme Court in relation to "people of the age of both of the prisoners", clearly a shorthand reference to the principles concerning the sentencing of young offenders 12 So far as the applicant's case on appeal depends on his Honour not taking into account the circumstances mentioned above or the principles identified in Fernando concerning persons sharing similar backgrounds to the applicant, or the principles identified in GDP (1991) 53 A Crim R 112 and Gordon (1994) 71 A Crim R 459 concerning young persons, that case is not made good. 13 His Honour did not, however, expressly state whether any and if so, what weight had been given in the sentencing exercise to the applicant's plea of guilty or, for that matter, to the circumstances in which her confession was offered when she attended at Taree Police Station with her mother and participated in the second record of interview. 14 It is also the case that while his Honour drew to some extent on the contents of a report of Anita Duffy, he made no mention of the assessment made by her and also by Karen Clarke from the Department of Juvenile Justice that the applicant's general intelligence level lay in the borderline range, or that she had a tendency to be impulsive and influenced by others. 15 While failure to make reference to pertinent matters may sometimes indicate error: Boo Too (NSW CCA 16 July 1992, unreported), it does not necessarily do so: Astill (No 2) (1992) 64 A Crim R 289 and Campbell NSW CCA 20 October 1999, unreported). 16 I would doubt that his Honour, as a particularly experienced trial judge, overlooked these matters. However, in the absence of specific mention of the weight given to them, or of the fact of assistance next mentioned, the case is one in which I would be minded to give leave to appeal. 17 After making my own review of the material before his Honour as well as the additional material tendered before us today, which shows a continuation in the applicant's progress while in custody so far as she has taken steps to further her education and to participate in a variety of courses, including the Duke of Edinburgh Scheme, as well as having encountered and some recent sad losses and problems with her own family, I am not persuaded that any different outcome is justified by the subjective circumstances. 18 I observe that the applicant properly received the benefit of those circumstances insofar as his Honour saw it appropriate to adjust the proportion between the minimum and additional terms.

Assistance

19 It is true his Honour made no mention of the assistance provided by the applicant in relation to identification of a third defendant, DK, so that it is unclear whether he gave her any credit in relation to it, as would be required by s 442B of the Crimes Act. The value of the assistance was, however, dubious in view of the contradictory accounts given. Moreover, as events have turned out, the applicant refused to comply with the undertaking, that was offered at the time of her third interview, to give evidence against DK. As a consequence, although he was charged following that interview, he has since been discharged. 20 The absence of any reference to the assistance, and to the undertaking that was still on foot at the time when the applicant appeared for sentence, raises the possibility of error on the part of his Honour. The subsequent events however show that no miscarriage of justice was occasioned thereby. No case arises for any reduction of sentence on this account.

Parity

21 I am not persuaded there was any lack of parity with the sentence imposed in relation to Wilson. His Honour accepted that he was the principal aggressor and that the applicant was a lesser offender. Nevertheless, she took part in an attack which involved the death of an elderly man who was innocently going about his own business. His killing was properly described by his Honour as a very serious breach of the criminal law; Hill (1981) 3 A Crim R 397 at 402; Macdonald (NSW CCA, 12 December 1995). 22 The sentence imposed in relation to Wilson was significantly reduced because of the evidence concerning his mental state and because of the significant extent to which his responsibility was diminished by it. The evidence showed he had a long history of schizophrenia and when off medication he fell into difficulties. His Honour also accepted he was truly contrite for his offending on this occasion. 23 In his case the element of deterrence played relatively little part in the sentencing process for that reason. The same is not, however, the case in relation to the applicant, who, having behaved in a way that an adult might in committing a very serious offence, must expect some deterrent element to be included in her sentence: Pham and Ly (1991) 55 A Crim R 128. 24 In that regard I am firmly of the view that there should be a deterrent element reflected in a way that is obvious for all to see when young offenders are sentenced for offences involving group attacks on elderly citizens. The community is entitled to regard offences of that kind with particular abhorrence. Judges should ensure that sentences imposed on juveniles for that kind of offence are proportionate to the gravity of the criminality involved. 25 Although counsel for the applicant argued the appeal on the basis that Wilson was an adult while she was a juvenile, there was, in my view, insufficient difference in their ages to warrant any significant differentiation between them on that account. 26 There was a further circumstance that weighed against the applicant, in that she was subject to a recognisance at the time of the offence for an earlier matter of assault and robbery. Wilson had no prior conviction and he was neither on bail nor subject to any recognisance at the time of the events in question. 27 I am accordingly unpersuaded the applicant has any cause to feel aggrieved by the respective sentences imposed, as that test of parity has been explained in Lowe (1984) 154 CLR 606 and Postiglione (1997) 71 ALJR 875.

Excessiveness of Sentence

28   As foreshadowed earlier, it is appropriate to take into account the matters identified above along with an evaluation of the lesser role of the applicant in the killing and the extent to which she was affected by alcohol in determining whether the sentence, viewed overall, was manifestly excessive. 29   Reference to statistics in relation to the offence of manslaughter is of little value, given the wide disparity of circumstances that are encompassed in this offence: Maguire (NSW CCA, 30 August 1995) and Bloomfield (NSW CCA, 15 July 1990). Nevertheless, it is accepted by counsel for the applicant that eighty-eight per cent of offenders in this category of offence have received sentences requiring full-time imprisonment, and that the sentence imposed here falls within the mid-range for those offenders sentenced to imprisonment. That being the case, it is difficult, if not impossible, to argue that the statistics show her sentence to be outside the discretionary range. 30   The facts relating to the offence and extent of the applicant's participation in it, including her assertion that she asked Wilson to stop when she saw Mr Coles was bleeding profusely and later persuaded him to call the triple 0 number, do not lead me to the conclusion the sentence was excessive. The killing of a man in the course of a robbery is a most serious offence and, although the applicant may not have intended his death, she willingly joined in the attack by kicking an elderly and defenceless man while he was on the ground. She, along with the other two men, abandoned him on the footpath after the attack, even though he was obviously suffering from serious injuries. 31   Moreover, the effects of alcohol seem to have been relatively insignificant, in so far as she agreed in the record of interview that she was aware of what was going on and knew exactly what she was doing. 32   In all those circumstances, while I would grant leave to appeal I

would dismiss the appeal and confirm the sentence below .

33   SULLY J: I entirely agree.
34   SIMPSON J: I agree also.
35   WOOD CJ at CL: The order of the Court will be as I have proposed.

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