R v TR

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v TR [2004] NSWCCA 187

FILE NUMBER(S):
60065/04

HEARING DATE(S): 11 May 2004

JUDGMENT DATE: 01/07/2004

PARTIES:
Regina (Respondent)

TR (Applicant)

JUDGMENT OF: Dunford J Adams J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/0027

LOWER COURT JUDICIAL OFFICER: Ducker DCJ

COUNSEL:
B Knox SC (Respondent)
A Francis (Applicant)

SOLICITORS:
S Kavanagh (Respondent)
S O'Connor (Applicant)

CATCHWORDS:
Sentence appeal
maliciously inflicting grievous bodily harm
applicant part Pacific Islander
provocation by racist remarks
inappropriate questioning by sentencing Judge
minor
effect of delay
parity of sentencing

LEGISLATION CITED:
Crimes Act 1900 ss33, 35(1)(b)
Crimes (Sentencing Procedure) Act 1999 s44
Crimes (Sentencing Procedure) Amendment (Standard Minumum Sentencing) Act 2002
Criminal Appeal Act 1912 s6(3)

DECISION:
By majority, appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60065/04
DUNFORD J
ADAMS J
HOWIE J
THURSDAY 1 JULY 2004

REGINA v T R

Judgment

DUNFORD J: In this matter I have had the opportunity of reading in draft form the judgment of Adams J where the facts of the matter are fully set out.
Initially, in documents filed prior to the hearing, the applicant relied on only one ground of appeal namely
1. The sentence imposed upon the applicant gives rise to a justifiable sense of grievance when compared with the sentences imposed upon the co-offenders.
However, following discussion during the Submissions, the applicant was granted leave to file additional grounds of appeal together with written submissions with the right reserved to the Crown to reply to such written submissions. Further Grounds of Appeal was subsequently filed as follows:
2. The sentencing proceedings miscarried as a result of the conduct of the sentencing judge in questioning the witness, Dale Anthony Jones.
3. The sentencing judge erred in failing to have proper regard to delay.
4. The sentencing judge erred in taking into account an irrelevant consideration, namely, the prospect of the applicant being found guilty of a more serious offence.
5. The sentencing judge erred in his application of s 44(1) of the Crimes (Sentencing Procedure) Act, 1999 in that he gave consideration to the non-parole period before giving consideration to the total term.
6. The sentencing judge erred in failing to properly take into account the applicant’s mental condition.
7. The sentence was in all the circumstances, manifestly excessive.
It is convenient to deal with each of the grounds in turn.
On the question of parity, I agree generally with the remarks of Adams J except that, the learned sentencing judge having made a limited adjustment to the sentence of the applicant on this account, I would not make any further allowance in this regard.
As to the second ground of appeal, the questions and comments of the learned sentencing judge to which exception is taken are set out in the judgment of Adams J. The context in which the questions were asked was that Mr Jones, a Youth Worker with the Gold Coast Youth Service in Miami, Queensland, from whom the applicant had been having anger management counselling since the offence, gave evidence that the applicant had told him that he had only limited memory of the events of the night in question, that there had been some racial slurs made, that he reacted and there was some violence between himself and another person, and that the other person ended up getting quite hurt (T 14).
His Honour was apparently concerned that often persons involved in violent assaults claim to be unable to remember the events in question, and on other occasions claim that they were provoked by racial slurs, when this may not in fact be the case. As noted by Adams J, at that stage of the proceedings, the judge was not aware that the applicant was the only one of the group who was of darker complexion and he regarded with considerable cynicism the claim that the victim would make racist comments to a group of apparently aboriginal persons when he was out- numbered by them.
These were proper matters for his Honour to explore, but unfortunately, he went further and asked Mr Jones a number of questions which related to Mr Jones’ personal views of racist slurs, which were irrelevant and some of the questions suggested that his Honour was minimising the significance or offensiveness of racist slurs, particularly when directed at Aborigines or other persons with darker skin.
The questions were insensitive, unfortunate, tactless and inappropriate, and should not have been asked; but I am not satisfied that they amounted to bias or affected the sentence ultimately imposed. I say that because after hearing and reading all the evidence, his Honour said (RoS 13):
“I have not previously referred to the question of the alleged racial comment. I should preface what I am about to say by recording that the present offender was the only one in the group with a dark complexion, that is dark skin. It does appear from a number of sources in the evidence that the victim was making remarks about “blacks”, which would have been hurtful and annoying to the offender. This may have provided some provocation, but not anything like what did happen”.
And later at (RoS 15) his Honour said:
“I take into account the provocation which is said to have been made. Apparently Mr Williams pronounced himself to be a Nazi, who hated black or coloured people, words to that effect. Miss Williams seems to be of the view that he would not have said anything like that, but I think it is quite possible that he did. I am not saying for certain that he did, but I believe that the offender ought to receive the benefit of any doubt in that area”.
I should add for completeness that there was no reference in the evidence of Mr Jones or in his Honour’s questions to the victim claiming to be a Nazi. In my view, ground 2 has not been made out.
As to the delay in the sentencing process of the applicant, I agree with Adams J, although in some respects the delay operated to the applicant’s advantage in that he was able to demonstrate good prospects of rehabilitation. In particular, he had reduced his excessive alcohol and cannabis use to occasional social occasions, undertaken counselling particularly for anger management with Mr Jones over a period of some 18 months and had endeavoured to obtain employment. He was described by his sister as “a different person”. On the other hand, he had the uncertainty of the court case hanging over him for an excessive period and this led to difficulty sleeping and bad dreams (Dr Roland’s Report at p 5).
In relation to ground 4, I agree with Adams J that this ground has been made out. In the passage immediately following that quoted by Adams J, his Honour went on to say, “It seems the principal basis for the accepting of the plea was the doubts that may have been introduced into the case by the evidence of the intoxication of the offender at the relevant time”. This assumption appears to have been correct (see Supplementary Submissions by the Crown para 19), but his Honour expressly said that the real prospect of the applicant being found guilty on the more serious charge was “a reality which had to be considered”. The conclusion is inescapable that his Honour did accordingly take that matter into account, and wrongly so.
As to ground 5, s 44 as it stood prior to the amendments effected by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 and in the form which applied in respect of offences committed before 1 February 2003 was as follows:
(1) When sentencing an offender to imprisonment for an offence, a court is required:
(a) Firstly, to set the term of the sentence, and
(b) Secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2) The non-parole period must not be less than three-quarters of the term sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record for its reasons for that decision.
In respect of offences committed on or after 1 February 2003, the Act now provides:
(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
It would appear that his Honour in first considering the non-parole period and then the additional term had in mind the procedure appropriate for offences committed after 1 February 2003 in respect of an offence committed prior to that date (30 March 2001). However, he then went on and fixed the head or overall sentence of 3 years 6 months followed by the non-parole period. This was the appropriate sequence in imposing the sentence in respect of this offence committed when it was.

It was submitted in the applicant’s further written submissions that expressing the sentence the way he did presumably led to the imposition of a longer total term and possibly led to the imposition of a longer non-parole period. I can see no basis for this submission particularly when one has regard to the substantial reduction of the non-parole period compared to the ratio prescribed by s 44(2) in the absence of special circumstances. This ground is not made out.

In relation to ground 6, although his Honour referred to the applicant’s unfortunate childhood, dysfunctional family and neglect (RoS 13), his youth and immaturity (RoS 14), he made no specific reference to his Depression or Post-traumatic Stress Disorder as diagnosed by the psychologists, Dr Roland and Dr Stoker. The authorities establish that mental illness or intellectual incapacity may render an offender an inappropriate vehicle for general deterrence or reduce its significance; but serious and all as the applicant’s condition was, the cases where this principle has been applied are generally cases where the disability is more serious than in the present. It is nevertheless a matter to be taken into account in considering the overall picture.
Although not the subject of a specific ground of appeal, reference should also be made to the applicant’s youth. It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation, but that principle is qualified where young persons conduct themselves in a way an adult does and commit crimes involving violence or of considerable gravity: R v Tran [1999] NSWCCA 109 at [10], R v AEM Snr & ors [2002] NSWCCA 58 at [97]-[98], and cases therein cited.
The type of gratuitous violence inflicted on the victim in this case is the very type of offence which is unfortunately far too prevalent amongst youths of the then age of the applicant and slightly older, particularly when affected by intoxicating liquor; and it is such persons who particularly need to be deterred from such offences.
Whilst on account of his age, his background and his psychological problems, rehabilitation assumed a greater importance than might otherwise have been the case, I do not regard this as a case where due significance should not be given to the elements of general deterrence and public denunciation of the offence.
Finally, it was submitted that the sentence was in all the circumstances manifestly excessive. I do not believe that it was. After one makes allowance for all the applicant’s subjective circumstance including his lack of prior convictions, his age at the time, the racist remarks directed at him, his dysfunctional upbringing and psychological problems, the delay in the resolution of the matter and his attempts at rehabilitation in the meantime, this was still a very serious matter. It involved three youths acting in company, attacking and bashing another youth almost insensible with blows to the heard, knocking him to the ground and stomping on him whilst he was defenceless on the ground. In particular, the applicant punched the victim in the face, punched and kneed the victim, who then fell to the ground, stomped on his head with both feet on about four occasions and then swung a chain at the victim’s head, striking him numerous times whilst he was on the ground. A photo of the chain can be seen in photograph 13 at p 103 of the Appeal Book. The group then walked away leaving the victim with serious injuries.
He was taken by ambulance in a semi-conscious condition and with lacerations to his forehead and scalp to Tweed Heads Hospital and then transferred to the Gold Coast Hospital Intensive Care Unit where he required a ventilator and ongoing supportive care for a long period. After that he required a tracheostomy, naso-gastric tube feeding, extensive physiotherapy and occupational therapy. He suffered memory loss, headaches, difficulty sleeping, and permanent blindness of the right eye. At the time of sentencing, some 2 ½ years after the accident, he was still suffering residual neurological deficits including postural dizziness and unsteadiness when he walked, he was unable to control his anger and was still becoming uncooperative and slightly abusive in situations such as having to queue, waiting for interviews etc. He was easily frustrated and had an extremely poor concentration level. His general practitioner considered he would require very long term treatment for the injuries he had received.
The learned Sentencing Judge was correct when he said, “the life of the victim has just not been blighted, it has been irrevocably altered”. There were a lot of matters in the applicant’s favour including his youth, his remorse, his unfortunate upbringing, his lack of other convictions, his pre-sentence attempts at rehabilitation, which attempts have continued whilst in detention since the sentence was passed; but bearing in mind that the maximum penalty for the offence to which the applicant pleaded guilty was imprisonment for 7 years and allowing a discount in the vicinity of 15 percent for the utilitarian value of the plea of guilty, I do not regard a head sentence of 3 years and 6 months as manifestly excessive, nor do I regard as manifestly excessive a non-parole of slightly less than half of that, his Honour having, quite properly, found special circumstances.
I would therefore propose that the application for leave to appeal be granted but that the appeal be dismissed.
ADAMS J: On 28 July 2003 the applicant pleaded guilty to maliciously inflicting grievous bodily harm upon one Christopher Williams on 30 March 2001 at Tweed Heads. He was sentenced on 6 August 2003 to a term of three years and six months imprisonment to commence on 6 August 2003, with a non-parole period of one year and eight months, with an order that the sentence was to be served in a juvenile justice institution.
As at the date of the offence the applicant was about sixteen and a half years of age, although he was just nineteen when he came to be sentenced. He was interviewed by police a short time after the offence, which he in substance denied. Some time later, the applicant was charged by summons with an offence under s33 of the Crimes Act 1900, which carried a maximum penalty of twenty-five years’ imprisonment. One consequence of this was that it could not be dealt with except on indictment. I will relate the facts shortly but I should say that the laying of the charge under s33 was fully justified although, ultimately, the Crown accepted a plea of guilty to an offence under s35(1)(b) of the Act (carrying a maximum term of seven years) in full discharge of the indictment.
Committal proceedings were conducted in the Children’s Court on 14 February 2003 and the appellant was committed for trial on that date to the District Court.
The facts found by the learned sentencing judge are as follows. The victim, Christopher Williams, who was then almost nineteen years old and his friend, XY (not named because of her age) then aged fifteen years, went to Coolangatta to see a friend. AB, who had turned sixteen the day before the offence, and CD, then aged fourteen and whom XY knew from school, were standing with the applicant and some others on a street corner. AB asked XY for a smoke and she gave him a cigarette. CD’s request for one was refused, XY telling him that he was too young. Williams gave AB a can of bourbon. AB opened the can and passed it around to CD and his other friends, including the applicant and another boy. The applicant, as well as the other young persons, had already drunk a substantial quantity of alcohol and were already well intoxicated.
Not surprisingly, the accounts of the fight that shortly after ensued varied from witness to witness. Nothing turns on this. XY said that the applicant walked up to Williams and, when the latter went to shake his hand said, “I had better not shake it with this hand, as I have blood on it”. XY did not notice any blood but she did see that the applicant’s hand was wrapped in a large linked chain apparently ready to be used as a weapon. XY felt intimidated and said to the applicant and his companions that she and Williams were leaving. CD asked her to stay but she declined. He asked her where she and Williams were going. She said, “To Coles”. After another short conversation XY and Williams started to walk on. The group of boys including the applicant followed them. XY and Williams stopped to let them go past but CD put his arm around XY and, with some but mild force, caused her to continue walking. They all started walking. Shortly afterwards XY, who was just ahead of Williams heard someone say, “Fuck you” and saw the applicant strike Williams to the neck with a “stiff arm”. AB and CD also saw this blow but AB had first punched Williams in the face and the applicant’s blow to his neck was the second. Whether or not they had earlier agreed to assault Williams, from this point the applicant and at least some of the others had the common intention of attacking Williams. XY said she saw the applicant also punch Williams in the face, that AB held him by the collar and tore it and then that AB, CD and the applicant punched and kneed Williams who fell to the ground. XY grabbed hold of AB’s jumper and pulled him away from Williams. The applicant may have turned around at this point and thrust his elbow into XY’s left eye and punched her in the chest, knocking her to the ground, but no charges were brought for these alleged assaults. The applicant then returned to Williams, who was still on the ground, stomping on his head with both feet about four times and, despite XY’s attempts to push him away, kicked him in the ribs about three times. XY punched AB in the head and placed herself between him and Williams to try to protect him. AB kicked her to the legs and she saw the applicant with the chain in his right hand, hitting Williams a number of times in the head. XY, showing considerable courage, tried to grab the chain and kicked the applicant on the hip. The applicant then walked away with the others, leaving Williams on the ground with serious injuries.
The ambulance arrived shortly after. The officers found Williams had reduced consciousness and responded only to pain. He had lacerations to his scalp and significant right-sided swelling and contusions to his eye. He was eventually taken to the Gold Coast Hospital Intensive Care Unit and South Queensland Base Hospital. Williams remained on ventilator support and had on-going supportive care for a prolonged period. His injuries required insertion of a tracheostomy after several attempts at weaning him from the ventilator. When he was eventually transferred to the general ward he required naso-gastric tube feeding, extensive physiotherapy and occupational therapy. On 23 May 2001, the neurosurgical Registrar at the Gold Coast Hospital summarised the victim’s condition as follows –
“In summary Christopher has sustained moderate to severe neuro-cognitive deficits which have potential for further improvement over the next 12 to 18 months and possibly permanent blindness in his right eye.”

In August 2002 the victim’s neurologist reported that the victim demonstrated almost complete blindness in the right eye with appreciation of light only, memory impairment in respect of the assault and the immediately preceding hour, and complaints of forgetfulness, dull headaches, nightmares, difficulty sleeping and a tendency to be easily angered. The doctor suggested he might be suffering from post-traumatic stress disorder and suggested psychological assessment and management. In August 2003, his general practitioner condidered that the victim also suffered residual blurriness and slightly poor vision in his left eye, residual postural dizziness, especially when standing up from a seated position, unsteadiness when he walked and an extremely poor concentration span. He was of the view that Williams would require very long term treatment for the injuries he suffered.
The learned sentencing judge accepted that the victim, before the assaults commenced, had made remarks about “blacks” which, in his Honour’s words “would have been hurtful and annoying to the applicant” (whose father was a Scotsman and mother was a Pacific Islander) and the only person present to whom the remarks could have been directed. As I understand it, his Honour’s findings in this regard were derived from statements by the applicant to police, psychologists and others to the effect that Williams said he was a Nazi and hated blacks, adding that he intended to “shove Trent’s head up his backside”. His sister said –
“I asked what drove him to it and how could he do it, how could he do something like that and his reaction to me – he kept his head down all the time and he was crying…he said, “I snapped sis, I didn’t know what I was doing, I just snapped” and that’s the only reaction. I’ve never asked him anything else about it.”
At the same time, it should be noted that the applicant did not try to justify to his sister what he had done or give any particular reason for his conduct. The applicant’s paternal grandmother also gave evidence for him, saying, amongst other things, that his mother died when she was only thirty-eight or thirty-nine years’ old, that this had a traumatic effect on the applicant (who was then only nine) and, very relevant in the present context, that his step-mother “was not very keen on coloured people” (an obviously euphemistic expression) and, as she believed, showed this by “picking” on the applicant. Both the applicant and his sister told Dr Roland (psychologist) that their stepmother was “very racist in her attitude towards black people” and had physically abused him. (I note that this was not said by the applicant to the other psychologist to whom he was referred but that interview took place with his father present). Dr Roland opined (and this seems a reasonable opinion to me) that “it appears...[the applicant] has experienced racial vilification from his stepmother and he has developed sensitivity to this since that time”.
I am very troubled by some inappropriate remarks made by the learned sentencing judge during the evidence of Mr Dale Jones, a counsellor attempting – with some success, he thought – to help the applicant with controlling his anger. Mr Jones said that the applicant told him that he remembered being involved in the fight but that he only recalled “bits and pieces of it’. He was asked by the prosecutor whether he got the impression that the applicant was feigning memory loss to conceal his true role and replied that he did not believe so. The learned sentencing judge then asked –
“Q.         But did you make any allowance for the fact that children – if you want to think of him as a child – habitually, if they cannot excuse what they’ve done, say they didn’t do it or they can’t remember…And it is also an excuse widely used by people who’ve committed violent crimes. Did you look into the question as to whether or not you could rely on the version he gave you?
[Mr Jones then responded at length, in substance saying that he had no reason to doubt what the applicant told him and that, at all events, it was important for him, in his role, to be non-judgmental.]
His Honour continued –
Q.           For instance, would you turn your mind back to when he said there was a racial slur made upon him, as to who many of the other young people with whom he was, may have been Aboriginal or coloured and how likely it would be that a person such as Mr William would make such a statement, if a number of other persons there were coloured persons?
A.           I don’t care whether – I mean, racial slurs and racial comments, I don’t believe should be made to – to any person. I think different people have different ways of reacting. I wish that all people could control their emotions and reactions.”
I interpolate here that it is clear that his Honour had not yet been informed that the applicant was the only person present to whom any remark about “blacks” could have been directed. The questions about why Williams might make such a statement seem to reflect his Honour’s view, as he commented, that ”Mr Williams, unfortunately in many ways, set out to try to impress these younger youths by what might be called ‘big-noting’ himself, at least in the eyes of the applicant and some of his companions”. Since the only reported remarks made by Williams involved his claim to be a Nazi and his hatred of “blacks”, one gets the unfortunate impression that his Honour considered that, somehow, these comments were less blameworthy or provocative because they were attempts to impress. Aside from the fact that there was no evidence which justified this inference as to Williams’ motives, it in no way qualified their virulently racist character. In the context, they expressed extreme contempt for the appellant and could not but be provocative. Plainly, they did not justify or excuse the serious assaults that ensued but they were nevertheless themselves repellent, offensive and inexcusable.
Unfortunately, the learned sentencing judge continued this line of questioning –
“Q. But do you not find that, in many instances those who claim to be affronted by racial slurs do so on the basis that it is somehow inferior to be called black? That they think there is something wrong about being called black? Isn’t that an inherent slur?”
As I understand it, this question is intended to suggest that those who are affronted by racial slurs are themselves implicitly racist, since they would only discern a slur if they thought being say, black, were indeed inferior. This suggestion is both preposterous and offensive. If his Honour indeed had this view, he certainly should not have expressed it, least of all from the Bench of the District Court. Mr Jones gamely answered –
“A.         I think that if any Aboriginal or indigenous person is called [a name] with a racial slur, I – I don’t believe that is a correct way of addressing a person. I think if anyone was using these racial slurs they need to be thinking about the way they are acting, the way they take other people into judgment -
Q.           Well, you see, how would you feel if an Aboriginal person called somebody for instance, “You white bastard.” Who would you react to that situation?
A.           As I said, sir, I don’t believe that anyone should be allowed to make racial slurs upon any person…
Q.           But don’t – don’t you think that words actually take their meaning from what they are describing?
A.           Sometimes, unless they are extremely racial.
Q.           So to call somebody vertically challenged, for instance is only to say that they’re short, not tall and how – how it is less affronting to be called vertically challenged, than to be called short, or to be – I suppose – avoirdupois challenged if you’re skinny. Is that any more insulting?
A.           When I – when the words are more derogatory then – those words you used, I think so.
Q.           But the pejorative nature of these things is what matters, not the words that he used, don’t you think?
A.           I just don’t – I don’t feel the words that I guess are passed around through our community to indigenous people or to any people when – the racial slurs that are thrown around, I don’t believe they an excuse for evidence (sic) --
Q.           But you see, one thing you find in the courts is, that is an excuse on some occasions – I don’t have the slightest doubt that there are racial slurs made, but there is also a temptation for somebody who’s in trouble with the law to give that as a reason when it’s not true and those are the things that the court has to consider. I know that you are not performing the same function, but these things need to be looked at fairly deeply. Anyway, thank you, I think that the work you’re doing is admirable and I’d like to think that something could be done for this young man in the long run.”
The suggestion that there is no real difference in offensiveness between being pejoratively called a white by (as I understand it) a black man and being called a black by a white man disregards even the most facile understanding of black/white relationships in this country over the past two and a quarter centuries. There is obviously a vast difference between the insulting offensiveness of these words. In this country, Europeans, considered as a group, have never been treated as inferior, mistreated, despised and pitied in the way that is part not only of the history but also of the contemporary experience of many Aboriginal and other non-white people. The suggestion that Europeans might feel equally offended by being called – in a pejorative sense – white as an Aboriginal or non-white person might feel if called black in the same sense is to trivialise the grave moral culpability of racism and the enormous suffering it has inflicted. What is more, in the present case, the claim of the applicant was that the victim said that he was a Nazi and hated blacks. The sense of such a statement, if used, is completely unambiguous: it was a contemptuous, derisory and insulting dismissal of the applicant’s worth as a human being.
The colloquy between the sentencing judge and Mr Jones was entirely inappropriate. Mr Jones’ views on racism were irrelevant. He made it clear that his only source for believing that the applicant had been the object of racial slurs on the occasion in question was what the applicant had told him. None of the questions asked by his Honour explored the question whether Mr Jones’ belief was justified or otherwise, none would have assisted his Honour to determine whether the applicant had told Mr Jones the truth. They were irrelevant and should have been objected to by both counsel.
It is not, perhaps, surprising, that his Honour commented in his reasons for sentence –
“Even if Mr Williams’ behaviour was somewhat irritating to the youths in this group, there was nothing to stop them from walking away from them.”
I have already mentioned that his Honour considered that the victim’s racist remarks “would have been hurtful and annoying to the applicant” (emphasis added), which implies that he accepted that the comments were, indeed, made. Whilst, as I have already said, I entirely accept that the applicant’s behaviour could not possibly be excused or justified by the provocative language of the victim, it seems to me to provide significant support for his claim that he lost control and that to describe them as “hurtful and annoying” considerably understated their true character, especially when the applicant’s personal sensitivity is taken into account. In the context of the applicant’s state of mind, it is important to bear in mind that the acceptance by the Crown of the plea in discharge of the indictment acknowledged that the applicant should not be sentenced upon the basis, nor did the Crown allege, that he had deliberately inflicted grievous bodily harm on the victim.
I am unable to avoid the conclusion that the learned trial judge unjustifiably minimised the objective offensiveness of the racist statements made by the victim and their likely effect on the applicant and his Honour’s apparent reasons for doing so were inappropriate. In the circumstances, this Court is required to sentence afresh.
The applicant submits that the learned trial judge erred in taking into account an irrelevant consideration, namely, the prospect of the applicant being found guilty of a more serious offence had the matter gone to trial. This ground arises out of the following statement by his Honour in the course of giving reasons –
“In short, in objective terms, this was an extremely unpleasant offence. Had the matter gone to trial, in my view, there would have been some real prospect that the applicant would have been found guilty of the more serious first count. This is not a criticism of the prosecution for taking the plea, it is merely a reality which has to be considered.”
I am unable to see how the prospect of conviction – even if “real” – for a more serious offence that carried a maximum penalty over three times greater than that for which the applicant came to be sentenced and which the Crown had decided not to litigate is a material consideration in sentencing the applicant for the offence to which he had pleaded guilty. The learned trial judge was not privy to the matters taken into account by the Crown Prosecutor, which may well have significantly qualified the apparently strong case demonstrated by the papers nor, in my respectful opinion, was it desirable for his Honour to speculate about the matter, let alone treat it (as it appears that he did) as adverse to the applicant. In my view, this ground is made out.
The applicant’s sister gave evidence about the changes she had noticed in the applicant since the offence. She said that he lived with her from time to time, that he had stopped drinking and spends much of the time looking for work, in the gym or reading, “just basically things that he’s never done before this incident”. She said that he had managed to obtain an offer of work as a builder’s labourer. He had been undertaking anger management counselling which, to her observation, had helped him in this area of his life. She said, “He’s just a different person”. Asked about what the applicant had said about the offence, she said –
“Oh, he says – just how he can’t believe he’s done it and he feels sorry for him. He can’t believe – like back then – how stupid, you just don’t think of the consequences, you don’t think of anything and now he’s just like – he just wants to know how the boy is, he keeps talking about him, wants to know just – he even was talking about writing a letter to him to give to you guys just to say, ‘I’m sorry’. He’s – I don’t know, all the remorse he’s got and for someone to have that much remorse on a crime that they did, its just – you know he’s feeling bad for the boy.
HIS HONOUR: Q. All the remorse in the world won’t cure brain damage?
A. Still won’t, yes I understand that, your Honour and I keep saying that.”
Mr Jones confirmed both the applicant’s remorse and a significant change for the better in his activities and attitudes. His paternal grandmother confirmed the evidence of his sister about the very unfortunate attitude and conduct of the applicant’s stepmother towards him. It was also her opinion that she did not provide, so far as the grandmother could see, appropriate guidance, love and care for him. She also had noted the changes for the better to which the other witnesses had referred.
The applicant was seen by Mr Stoker (February 2002) and Dr Roland (July 2003), Clinical Psychologists, and a Juvenile Justice Officer (May 2003), each of whom provided reports to the court. They obtained a detailed history which was largely corroborated by interviews with others. I do not intend to deal with each of these reports separately. Overall, they demonstrate a markedly dysfunctional family and upbringing, with a mother who suffered bi-polar disorder, panic attacks and hypertension and a violent father. He was sexually abused once when he was fifteen. He was a poor student with poor literacy skills and behavioural issues and had been asked to leave school in Year 9 or be expelled. He had short periods of casual employment as a trolley boy and a labourer. Intelligence testing showed that the applicant had Normal Verbal Intelligence but Dull Performance Intelligence (in the bottom 16% of the population). He was both anxious and depressed. Mr Stoker thought that the applicant had suffered from Chronic Post-traumatic Stress Disorder since the sexual molestation. He had a problem with alcohol and marijuana use, though this had improved considerably. Dr Roland agreed that the applicant had symptoms of Post-traumatic Stress Symptoms but ascribed them also to the abuse from his stepmother and probably his father. The Juvenile Justice Officer accepted also that the applicant might have been psychologically impaired at the time of the offence. All reported expressions of remorse.
It is important to add that the applicant was a first offender.
A most significant factor in this case, as it seems to me (and a matter not adverted to by the learned sentencing judge) is the very lengthy delay between the offence and sentence: Blanco (1999) 106 A Crim R 303; R v Schwabegger [1998] 4 VR 649 at 659 (approved in R v Gay [2002] NSWCCA 6). Following his interview by investigating police on 31 March, a summons was issued against the applicant, returnable 22 October 2001. There were many adjournments in the Children’s Court until his committal for trial on 14 February 2003. His two co-applicants gave evidence for the prosecution, having been dealt with on 20 September 2002 and given undertakings to give evidence. AB, the elder of the two, was convicted of maliciously inflicting grievous bodily harm and common assault, whilst, in respect of CD the offences were proved but no conviction entered. Both were released on probation. It seems fairly obvious that much of the delay in the applicant’s case was the time that it took to dispose of the proceedings against AB and CD so that they could give evidence against the applicant. Following his committal for trial to the District Court a number of adjournments occurred, some at the appellant’s instigation and none opposed by him. However that may be, a delay of almost two and a half years following the offence, when his involvement was known almost immediately, is grossly excessive, especially when his age is take into account: The difference between a sixteen year old and a nineteen year old is not to be judged by mere arithmetic. This is a significant consideration in the applicant’s case, which is underlined by his substantial intervening rehabilitation.
For the purposes of this appeal a thorough report on the applicant’s progress under juvenile detention has been provided to this Court. The report contains the following –
“In summary, [he] presents as a motivated and generally mature young man. He is polite and respectful to staff and peers. It is evident that his period in custody has provided a salutary experience for him. He is a good role model for the younger boys in the centre. Acema [Education and Training Unit] has a wide range of age groups, a great many of them of a much younger age than Trent. Trent is extremely good at assisting other detainees with routines and information to support them in their ‘settling in’ period. He is particularly good with young people who have difficulty coping with the custodial setting...”
Furthermore, the Officer reports that, during a serious disturbance at Acema at the end of December 2003, the applicant’s conduct (which I will not describe in any detail) was exemplary and confirmed to a marked degree the extent of his rehabilitation. He has also made considerable progress in his education endeavours, and is considered to be a “reliable and trustworthy student”, well liked by staff.

It is unnecessary to cite authority for the proposition that, in respect of applicants of the applicant’s age – especially the age at which he committed the present offences – rehabilitation assumes a major place amongst the relevant elements of the sentencing process. This must be especially the case, in my view, when the other psychological issues to which I have referred are present. These factors also constitute significant mitigation (cf R v Israel [2002] NSWCCA 255, especially per Spigelman CJ at [23]). I would not, with respect, differ with the view expressed emphatically by the learned sentencing judge to the effect that extreme violence by young persons such as the applicant is frightening and must be deterred but the applicant’s troubled history and the psychological damage that it entailed reduced the appropriateness of using the occasion of punishment of his criminal behaviour as an instrument of general deterrence.
The applicant submitted that his sentence did not reflect a fair comparison with the sentences imposed on his co-applicants. The learned sentencing judge said that, although he did not consider that there was relevant issue of parity, he thought it right to lessen the sentence that he otherwise would have imposed on the applicant because of the very lenient way in which the co-applicants had been dealt with. In my respectful view, his Honour was correct in giving only a limited adjustment to the sentence of the applicant under this head: the co-applicants were younger – in one case, much younger – than the applicant; the applicant was overwhelmingly the principal applicant and the only one armed with a weapon; the co-applicants admitted their involvement from the beginning; they agreed to give and in fact gave evidence for the prosecution; and they were dealt with in the Children’s Court. The sentence which I propose, however, does make some allowance by reference to the disposition of the co-applicants’ cases.
In dealing with the applicant’s subjective circumstances, I have not overlooked the dreadful and permanent injuries suffered by the victim. However, the Court is bound by the law to proceed on the basis that, although the violence was intentional, the applicant did not intend to cause grievous bodily harm. No doubt retribution and denunciation are significant elements of sentencing, especially in cases that involve the infliction of serious injury, but other long-standing considerations of public policy which form part of sentencing law must also be applied and are significant in the circumstances of the present case.
It is obvious from what I have already said that special circumstances are present that justify departure from the statutory calculus in s44 of the Crimes (Sentencing Procedure) Act 1999. Moreover, the applicant should also have the benefit of the utilitarian discount for his plea of guilty which, though it was given on the day set down for trial, had been offered at a much earlier date. Although the learned sentencing judge referred to this matter, he did not make any express allowance for it. I would not be prepared to find that his Honour did not give a discount as, in the circumstances of this case, was required by R v Thomson and Houlten (2000) 49 NSWLR 383, but I cannot understand why it was not quantified in accordance with the emphatic encouragement expressed by the Chief Justice at 49 NSWLR [160]. The omission to do so undermines the significant public policy considerations which were foundational to the Court’s decision. On the assumption that a discount under this head of the order of fifteen per cent was justified (the minimum, in my view), it appears that the starting point for the overall sentence imposed, after taking all subjective matters into account, was about four years and two months.
In my view, a lesser sentence “is warranted in law and should have been passed”: s6(3) Criminal Appeal Act 1912. Accordingly, I would propose that the applicant’s sentence be quashed and that there be substituted, a head sentence of two years and ten months commencing on 6 August 2003 and expiring on 5 June 2006, with a non-parole period of one year and two months expiring on 5 October 2004. This sentence results from a utilitarian discount of about halfway between the suggested range of ten and twenty-five per cent. I would order that the sentence be served in a juvenile justice institution that the applicant be released on parole on the expiration of the non-parole period and be placed under the supervision of the Adult Parole and Probation Service.
HOWIE J: I have received the benefit of reading in draft both the judgments of the presiding judge and Adams J. I find the matter a difficult and troubling one.
The offence was obviously very serious by reason of the injuries suffered by the victim and the ferocity of the attack inflicted upon him by the applicant. The use of the chain was an aggravating feature. No provocation on the part of the victim could justify or warrant such a response or excuse such serious injuries. The sentencing exercise was made particularly difficult because of the age of the applicant, his deprived upbringing and his efforts at reform since the commission of the offence.
In a case where there are such compelling factors both in favour of condign punishment and in favour of mitigation, the sentencing judge has an unenviable task. In the absence of error, I would need considerable persuasion that the discretion miscarried where legitimate outcomes could vary markedly on the basis of what weight is given to the competing aspects of punishment arising from the objective facts, on the one hand, and the subjective material placed before the sentencing judge, on the other.
The sentence was clearly a severe one having regard to the personal circumstances of the applicant. In such a case I believe it is important that a sentencing judge quantifies the discount given for a plea of guilty so that the offender can believe that he received a genuine benefit for the plea and that this Court can be confident that the starting sentence before the discount was applied was within the legitimate range. There can be some scope for scepticism about the impact of a plea where the quantum of the discount is not nominated and the sentence imposed is such that it is difficult to understand what starting sentence was chosen before the discount was applied. That is the position in the present case.
Further, I do not understand why this Court should be left to speculate about discounts and starting points in a case where a sentencing judge has determined upon a sentence, which is on any view, a severe one but without condescending to indicate the value of the discount given for the plea. I am not to be taken as suggesting that a judge should always specify the discount in percentage terms: the authorities do not require that degree of particularity in every case. In many instances the appropriate discount will be obvious and a few percentage points one way or the other is not likely to have such an impact on the sentence that it would warrant interference by this Court. But in a case such as the present, where minds might differ about what discount is appropriate and how severe the starting sentence should be, it is unhelpful, to say the least, for the judge not to make his reasoning transparent at least to this extent.
As to the particular grounds of appeal, with respect I adopt the conclusions of Dunford J. I believe that only one of them has been made out, being his Honour’s reference to the more serious offence abandoned by the Crown. It was completely inappropriate as well as irrelevant for the sentencing judge to muse about the reasons for the Crown accepting the plea of guilty to the s 35 offence or the likelihood or otherwise of a conviction for the more serious offence.
So far as ground 2 is concerned, I do not believe that error can be imputed from his Honour’s questioning of the witness, Mr Jones, on the subject of racial slurs. That is not to suggest that what his Honour said could be in any way condoned and its inappropriateness should be manifest to any person who reads the portion of the transcript set out in the judgment of Adams J. But the unescapable conclusion is that, so unreasonable was the response of the applicant to the provocation and so severe was the consequence of the applicant’s assault upon the victim, little weight could be given to the fact that the applicant was provoked in order to lessen the denunciatory and retributive aspect of the sentence. I agree with Dunford J that the second ground fails.
In respect to ground 3 I agree that the delay from offence to sentence was an important matter to be taken into account and yet the remarks do not refer to it. Frequently the failure to take into account a particular factor relevant to the imposition of the sentence under consideration can only be assumed from the length or nature of the actual sentence imposed, because the failure to mention a relevant factor does not always lead to an inference that the judge had no regard to it. But delay was such an important consideration in the present case that his Honour was obliged to make some reference to it and its impact upon the appropriate sentence. Again, as with the failure to state the discount for the plea, the failure to mention a mitigating factor assumes more importance than might otherwise be the case where the sentence imposed is indisputably a severe one.
As Adams J has noted, delay cannot be considered in terms simply of years, months and days in a vacuum without a consideration of the delay in the circumstances of the particular case and its likely impact on the particular offender before the court. The substantial delay in this matter does not appear to have been a result of some act that should be attributed to the applicant. In light of his young age, it can be assumed that delay of the order of that in the present case, nearly two and a half years, had a greater impact upon the applicant than it might have had in the case of an older person or one with an extensive criminal record.
However, this was by no means a stale crime, cf R v Todd (1982) 2 NSWLR 517. The delay was to some extent a result of the fact that the applicant was defending the charge and the Crown had to await the outcome of the proceedings against the co-offenders, although the applicant had indicated to the Crown in April 2003 his preparedness to plead guilty to the s 35 offence. There was evidence as to the deleterious impact of the delay in the proceedings upon him. The fact that he had taken the opportunity to reform and rehabilitate himself was a relevant consideration, notwithstanding that it may have been to his advantage. Although the delay was not as gross as in some other cases, such as the nine years in Todd, it has to be seen in the circumstances of the particular case, especially the age of the applicant and the fact that he had no prior criminal record. The applicant, as a matter of fairness, was entitled to have the sentencing court take into account the delay as a mitigating factor or at least indicate that it had done so.
Error having been shown this court must re-sentence the applicant unless it can conclude that no other sentence is warranted. It is at this point that the matter becomes a difficult one to resolve, even having regard to the material placed before the Court for the purposes of resentencing. I am conscious of ensuring that the sentence, especially the non-parole period reflects the need for denunciation and retribution if not general deterrence.
Ultimately and with some hesitation, I have formed the view that the appeal should be dismissed. I do not believe that a lesser sentence is warranted. In particular the non-parole period is the least sentence the applicant could be required to serve that would adequately reflect the purposes of punishment in this case. Like Dunford J, I acknowledge the strength of the matters in favour of the applicant. And I agree with Adams J that there were significant aspects of the sentencing proceedings and the sentencing remarks that were inappropriate and undermine the confidence that I would normally be prepared to give to the resolution of such a difficult sentencing exercise by an experienced judge.
However, the objective seriousness of the offence called for a salutary sentence notwithstanding the strong subjective material that warranted a compassionate and understanding approach to the sentencing of the applicant. I believe that the sentence imposed has achieved that balance notwithstanding the valid criticisms that can be made of the route followed by the sentencing judge to arrive at that destination. Any lesser sentence would unjustifiably tip the balance too far in favour of the applicant.
I agree with the orders proposed by Dunford J.
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LAST UPDATED: 02/07/2004

[2004] NSWCCA 187

1 July 2004