R v VL

[2005] NSWCCA 301

CITATION:	R v VL [2005] NSWCCA 301
HEARING DATE(S):	2 May 2005
JUDGMENT DATE:	2 September 2005
JUDGMENT OF:	Grove J at 1; Hulme J at 2; Simpson J at 55
DECISION:	See paragraph 54

PARTIES:	Regina VL
FILE NUMBER(S):	CCA 2004/3164
COUNSEL:	Crown: J Bennett SC Applicant: M Dennis
SOLICITORS:	Crown: S Kavanagh Applicant SE O'Connor

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0465
LOWER COURT JUDICIAL OFFICER:	O'Reilly QC DCJ

- 1 -

2004/3164

GROVE J
HULME J
SIMPSON J

Friday, 2 September 2005

REGINA v V L

Judgment

1 GROVE J: I agree with Hulme J.

2 HULME J: The person identified above by the initials VL was, at relevant times, a juvenile. So were other persons who seem to have been involved with VL in the activities the subject of these Reasons. Section 11 of the Children (Criminal Proceedings) Act 1987 precludes such persons being described in a way that identifies them and accordingly it is convenient to use initials throughout these remarks.

3 On 18 May 2004, Judge O’Reilly sentenced VL and a co-offender LLM both of whom have sought to appeal against the sentences imposed. Both appeals were heard on the same day although at the request of their counsel, separately. A decision in LLM’s case will be delivered at the same time as this decision is handed down.

4 VL was sentenced in respect of 1 offence, viz:-

That on 10 April 2003 he did, without consent, take and detain John Lee with the intention of obtaining an advantage, to wit, cash moneys via an automatic teller machine, the said John Lee having occasioned actual bodily harm during being detained, while in the company of AD.

5 The offence arises pursuant to s86(3) of the Crimes Act 1900 and rendered VL liable to imprisonment for 25 years.

6 In sentencing VL in respect of this offence his Honour took into account 2 offences on a Form 1 of:-

(i) On 10 April 2003 the armed robbery of Dr Lee of mobile phones, a handheld computer, a wallet and money.
(ii) On 9 May 2003, being in possession of 0.7 grams of cannabis.

7 In imposing sentences Judge O’Reilly expressed himself as follows:-

“I fix a non-parole period of four years from 9 May 2003. He will be eligible for release to parole on 8 May 2007. I sentence him to a full term sentence of six years and I would invite Counsel to check these because I am notorious for poor mathematics – a full term of six years imprisonment from 9 May ’03, expiring 8 May ’09. Order that so far as possible, that the sentence be served in a juvenile detention centre.”

8 The 9th May 2003 was the date of the Applicant’s arrest. His Honour asked whether he needed to make a finding of special circumstances to comply with s19(5) (of the Children (Criminal Proceedings) Act)and was told by counsel appearing for the Crown “Only in relation to (LLM). (VL)is still under 18”. In the result no such finding in the case of VL was made. Neither did his Honour make any such finding in connection with s44 of the Crimes (Sentencing Procedure) Act. Indeed he made no reference to that topic at all. No counsel responded to the invitation to comment on his Honour’s maths.

9 The circumstances of the offence charged and the first offence on the Form 1 were as follows. (Although not in every respect verbatim, I have largely taken the account from Judge O’Reilly’s remarks on sentence and to which there was no challenge.):-

At about 9.10pm a car containing five offenders including LLM and VL drove into a car park next to a set of shops. A doctor John Lee who lived in a unit at the rear was standing near his vehicle talking on a mobile phone. Three males left the vehicle and approached Dr Lee, one pointing a knife at his chest and the other who was armed with a metal pole raised it at Dr Lee. One of the offenders demanded money.
Dr Lee was robbed of his wallet containing $20, a handheld computer and a mobile phone. One of the offenders removed a CD player and a second mobile phone from Dr Lee’s vehicle.
Dr Lee was told to sit in the back of his car. Three males including the prisoner VL also entered the car. An offender armed with a knife sat on one side of Dr Lee and an offender armed with a pole sat on the other. Another offender occupied the driver’s seat and drove from the car park. LLM followed in a separate vehicle.
Dr Lee’s car was driven to the rear of a supermarket near the Guildford Hotel. One of the offenders demanded Dr Lee’s PIN number to a Commonwealth Bank Account and also his National Bank Flexicard. Dr Lee provided the number. One of the men said to Dr Lee “if I don’t get at least $1,000 I am going to stab you”.
LLM, VL and another offender left the car park leaving a fourth to look after Dr Lee. The three returned a short time later. When this was occurring Dr Lee pushed one of the males and closed the door to his car. He got into the driver’s seat and tried to start it. Then one of the four men struck him on the side of the head. After a struggle with Dr Lee an offender took the ignition key and Dr Lee was struck to the head about six times by one of the men. One also said “you try one more and I cut you open.”
Three of the offenders got back into Dr Lee’s car and he was driven to McArthur Street Guildford. The other vehicle containing the rest of the offenders arrived a little later. Three males got out of Dr Lee’s vehicle and spoke to someone in the second vehicle. As this occurred Dr Lee turned off the ignition, took the key and made his escape.

10 The second offence on the Form 1 related to cannabis seeds found on the Applicant at the time of his arrest.

11 The subjective circumstances of VL are relevant to the determination of his appeal and it is convenient to refer to them now. VL was born on 1 June 1987. He was thus 2 months less than 16 at the time of the offence. On 4 April 2001 he was subjected to a 12 months probation order for an offence of aggravated robbery committed on or before 30 September 2000. On 16 August 2001 he was placed on a 9 months bond in respect of an offence of maliciously destroy or damage property committed on or before 10 October 2000. On 28 February 2001 he was placed on a 12 months bond for an offence of being carried, on or before 15 February 2001, in a conveyance taken without the consent of the owner. On 30 May 2002 he was the subject of a 31 days control order for a similar offence committed on or before 29 April 2002 and a 9 months bond for breach of recognisance.

12 On 26 August 2002 he was the subject of 2 control orders for 10 months including non-parole periods of 111 days for offences of breaking entering and stealing and a 3 months control order for being carried in a conveyance without the consent of the owner. On 2 December 2002, he was the subject of a 1 month control order for escaping or attempting to escape from lawful custody.

13 In summary, his criminal career commenced no later than September 2000 when he was 13 and 4 months, and between then and the time of commission of the offence presently the subject of consideration, when he was aged 15 and 10 months he had been dealt with by courts on no less than 6 separate occasions. On 3 of these occasions he had been given the benefit of probation or the like and on 3 he had been made the subject of control orders involving a total of some 5 ½ months in custody. He was on parole at the time of the offending the subject of the present appeal.

14 Four reports, dated 20 February, 23 February, 29 March, and 16 April 2004 from the Department of Juvenile Justice were before Judge O’Reilly. Only the first and last of these need be referred to here. Of Tongan extraction his parents separated in 1991, his father moving to the United States. His mother remarried in 1998 and the Applicant had a good relationship with his stepfather. The family moved to Australia in 2000. There were no behavioural or attendance problems during his primary education in New Zealand although there were difficulties, including petty thieving, outside the education system.

15 Following VL’s arrival in Australia he commenced year 7 studies at Birrong Boys High School but did not complete the year as he was truanting regularly and asked to leave. He has no employment history.

16 He has experimented with most of the usual illicit drugs but has not been addicted to heroin or cocaine. He commenced using tobacco and marijuana when aged about 9 and indicated that prior to his arrest he was consuming about 3.5grams of cannabis almost daily and was assessed as having a moderate level of dependence. He reported using amphetamines on about 15 occasions over the preceding 6 months but the author of the report considered there may well have been under reporting of his drug use.

17 The report recorded significant non-compliance with requirements of supervision by the Department and refusal to accept that supervision. However the report also said that his response to custody had been fair notwithstanding a number of negative incidents some of which led to court proceedings, refusal to follow instructions and altercations with other detainees. Nevertheless, the report also records that his behaviour in custody had improved over the previous months, that he was then participating in anger replacement therapy and participating well in the program. Testing suggested that VL experienced “relatively intense chronic angry feelings” and that departmental records – I infer from the past - indicated that he “responds well whilst in custody, possibly due in part to the enforcement of boundaries and limited personal choices”.

18 The report of 16 April 2004 recorded that he had been maintaining a consistently high standard of behaviour over the previous months, had attained the highest level of privilege available and that at the last staff assessment only two of fifty comments related to negative behaviour. VL informed the author of the report that he had re-enrolled in schooling.

19 A psychological report of 18 March 2004 from Duffy Barrier Robilliard reported the Applicant had left home in reaction to his mother’s discipline and gone to reside with LLM. Intelligence testing led to the conclusion that he had a mild intellectual disability. In a psychological survey the Applicant scored at the top of the average range on anti-social tendencies and his profile accorded with persons who are “immature, anti-social and lack perseverance in their work”. The author records that “in a small sample (of those who had been subjected to the survey), just less than half were successfully paroled and 50% had no further convictions after 4 years’ release.

20 Ms Duffy also remarked that the Applicant revealed a high probability of having a “substance dependence disorder” and that he seemed to be “well below average intelligence, susceptible to the influence of others” and had “A strong tendency to be easily swayed by the pervading attitudes of his social group”. She opined that he would be more vulnerable to exploitation or influenced by others in a gaol setting, rather than in detention.

21 A 17 April 2004 report from a departmental chaplain recorded that the Applicant was a pleasant cooperative resident lacking self-confidence, feeling isolated, vulnerable and one who is easily influenced. He was said to exhibit a genuine attitude and to have worked hard in trying to control his impulsive behaviour and in participating in a number of programs. The applicant had apparently been involved in plenty of incidents in 2003 but in 2004 there have been hardly any and then only minor. He was said to have made a “massive improvement”

22 Judge O’Reilly seems to have accepted the substance of these reports although later he remarked, when considering s21A of the Crimes (Sentencing Procedure) Act that, “As to mitigation, I think the only thing one can really look to on a common sense basis is the plea ... of guilty. I have taken that into account in arriving at the sentence with a reduction of twenty-five percent”.

23 The grounds of appeal advanced on behalf of VL are:

(i) The Sentencing Judge erred in taking into account the standard non-parole periods outlined in Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
(ii) The Sentencing Judge erred in regarding as an aggravating factor that the offence was committed in company.
(iii) The Sentencing Judge erred in regarding as an aggravating factor that there was “actual or threatened violence”.
(iv) The Sentencing Judge erred in failing to find as a matter of mitigation that the offence was not part of a planned or organised criminal activity.
(v) The Sentencing Judge erred in failing to give any consideration, or alternatively adequate consideration, to the issue of special circumstances.

Ground 1
The Sentencing Judge erred in taking into account the standard non-parole periods outlined in Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

24 As has been said, VL and LLM were sentenced in the one proceedings. LLM was dealt with for 2 charges, one the same as that faced by the Applicant and one pursuant to s98 of the Crimes Act. That offence is one of those to which, pursuant to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a standard non-parole period applies and, naturally, when considering the situation of LLM, his Honour referred to that topic. The offence for which the Applicant stood for sentence is not one to which the Division applies.

25 Nevertheless, when considering the situation of the Applicant his Honour said:-

“He has no direct relationship with the provisions of s44 (sic), Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act, in that there is no standard non-parole period apply (sic) but he is being sentenced on a matter which carries a maximum of 25 years.”

And later,

“I have taken some guidance from the standard non-parole periods in general terms but I have endeavoured to impose a sentence that will give him some hope for the future.”

26 In enacting Division 1 of Part 4 of the Crimes (Sentencing Procedure) Act, Parliament selected from the many offences created by or referred to in the Crimes Act a relative few for which to provide standard non-parole sentences. Parliament chose to make no reference to the other offences contemplated in the Crimes Act. It is not necessary to say that provisions dealing with one offence can never have a bearing on other offences, e.g. it may well be that one can see in the provisions of the Crimes Act dealing with sexual assaults a pattern which throws some light on how serious Parliament regards individual offences, but absent some obvious relationship it will be rare that statutory provisions dealing with one offence can be said to provide any assistance as to the proper sentence to be imposed in respect of another. I do not need to specify the offences in respect of which a standard non-parole period has been fixed but the offence of kidnapping created by s86 of the Crimes Act is so different from all of them that the non-parole periods and the other provisions of Division 1 of Part 4 provide no guidance to the determination of a sentence under s86. His Honour accordingly erred in the respect complained of in this ground.

Grounds 2 and 3
The Sentencing Judge erred in regarding as an aggravating factor that the offence was committed in company.
The Sentencing Judge erred in regarding as an aggravating factor that there was “actual or threatened violence”.

27 What his Honour said relevant to these grounds when dealing with VL was:-

“I should specifically deal with those (sic) s21A matters. The aggravating factors are – well there is the actual or threatened use of violence; weapons were used; there is a record of previous convictions; it was committed in company, and (VL) was I think, was on parole. So there are a number of aggravating factors.”

28 Later, when considering the situation of LLM, his Honour said:-

“And so far as he is concerned, I should also have regard to s21A and one has the threatened use, actual or threatened use of violence; use of a weapon in the hands of others; he has the criminal record; the offence was committed in company; yes he was also on a bond.”

29 The matters to which his Honour referred in these passages are matters listed in s21A as aggravating and it seems to me that that is how his Honour used them. Of course it was appropriate for his Honour to have regard to them but nowhere did his Honour qualify his regard to the matters he referred to as aggravating by reference to S21A(2) which expressly provides that “The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.”

30 Specified in the charge against VL was that the offence was committed in company. As that was an element of the offence charged, his Honour’s treatment of the fact that the offence was committed in company was therefore a breach of s21A(2). Ground 2 is made out.

31 However I do not take the same view in relation to Ground 3. The summary of the events which constituted the Applicant’s offence set out above indicates that there was actual or threatened violence in the pointing of a knife at Dr Lee’s chest and the presence and raising of a metal pole prior to Dr Lee being told to sit in the back of his car. The threat continued or was repeated when offenders, armed, sat either side of Dr Lee in the car. Later there was the threat, “If I don’t get at least $1,000, I am going to stab you”. There was actual violence when Dr Lee was struck to the head and after that another threat, “You try one more and I cut you open”.

32 There is no express reference to actual or threatened violence in the charge for which the Applicant was sentenced. Furthermore, although the words used in the charge were “take and detain”, the offence under s86 is constituted by either taking or detaining together with the other matters referred to in the section. Commonly of course the taking or detention of a victim will involve actual or threatened violence but it will not necessarily do so. For example, a victim may be simply locked in a room or vehicle. Thus neither actual nor threatened violence are made ingredients of the Applicant’s offence by reason of the expressions “take” or “detain”.

33 There was, of course, included in the charge against the Applicant an allegation that Dr Lee “having occasioned actual bodily harm during being detained”, words apt to reflect the circumstance of aggravation envisaged in s86(2) which provides:-

Aggravated offence A person is guilty of an offence under this sub-section if:
(a) the person commits an offence under sub-section (1) in the company of another person or persons, or
(b) the person commits an offence under sub-section (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

34 However there is nothing in this provision to require that the bodily harm be the result of violence or threats thereof and again I see no basis for concluding that the violence or threats thereof was made an element of the offence with which the Applicant was charged. Nor did violence or the threat of violence become an element of the offence within the terms of s21A(2) merely because in the circumstances of the particular case, the injury suffered by Dr Lee, which seems to have been redness and bruising, was caused by violence.

35 Thus I do not regard Ground 3 as made out.

36 What I have said is enough to dispose of these grounds. However particularly in light of the fact that in LLM’s appeal there was a ground of appeal that there was also error by his Honour in the passages quoted above in regarding the Applicant’s record of previous convictions as an aggravating feature and that ground has been upheld, I should say more.

37 Included in the list of s21A matters his Honour regarded as “aggravating factors” he included “a record of previous convictions”. That an offender has such a record is referred to in s21A(2)(d) as an aggravating factor. However, s21A(4) provides:-

“The court is not to have regard to any such aggravating of mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.”

38 It is clear law that, while a prior criminal record is relevant in sentencing in that it may deprive an offender of leniency to which he might otherwise be entitled or indicate that more weight is to be given to retribution, personal deterrence and protection of the community, such a record does not aggravate an offence - R v Shankley [2003] NSWCCA 253 at [31]; R v Johnson [2004] NSWCCA 76 at [33] et seq; R v Wickham [2004] NSWCCA 193 at [24]. Although his Honour’s error was undoubtedly contributed to by the misleading and inappropriate specification in s21A(2) of a record of previous convictions as one of the “aggravating” factors to which a sentencing judge must have regard, the passages quoted from the remarks on sentence indicates that his Honour breached the terms of s21A(4).

39 In summary, Ground 2 has been made out but Ground 3 has not. There is a further error in the respect referred to in the immediately preceding paragraph.

Ground 4
The Sentencing Judge erred in failing to find as a matter of mitigation that the offence was not part of a planned or organised criminal activity.

40 So far as is presently relevant Section 21A(1) and (3) of the Crimes (Sentencing Procedure) Act provides that:-

“(1) In determining the appropriate sentence for an offence, the Court is to take into account the following matters:-
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence…
(3) The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:-
(a) …
(b) the offence was not part of a planned or organised criminal activity,
(c) …

41 In his consideration of the offence and of the Applicant’s part in it, his Honour said no more than I have set out above. That account is a reasonably complete summary of such of the evidence before his Honour as dealt with the commencement of the offending. In particular, no evidence was given by, or called on behalf of the Applicant as to the circumstances leading to the commission of the offence.

42 In these circumstances, there was no basis upon which his Honour could reach the conclusion that the offence was not a planned or organised criminal activity. Of course, it may well be that one should conclude that Dr Lee’s involvement was fortuitous but the manner in which he was approached and what occurred thereafter certainly raises as a reasonable possibility that the Applicant and his co-offenders were on the lookout for someone to rob. Section 21(3) has been phrased in terms of mitigating factors. Parliament can be expected to have known, when it enacted the subsection in the terms it did that offenders carry the onus of establishing matters of mitigation and in the circumstances I see no error in his Honour failing to make the finding which is the basis for this ground of appeal.

Ground 5
The Sentencing Judge erred in failing to give any consideration, or alternatively adequate consideration, to the issue of special circumstances.

43 Counsel for the Applicant addressed his Honour, albeit briefly on the topic of special circumstances. Counsel for LLM had done so at greater length. The Applicant’s youth and matters mentioned in the reports to which I have referred required that consideration be given to the issue of the relative length of the non-parole and total term of the Applicant’s sentence and to the topic of special circumstances which s44(2) of the Crimes (Sentencing Procedure) Act requires be found if the balance of a term of imprisonment ordered exceeds one-third of the non-parole period. In that regard the subsection speaks with unmistakable clarity:-

“(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).”

44 In ordering that the Applicant’s sentence should be for a non-parole period of 4 years and a total term of 6 years, without deciding that there were special circumstances and recording the reasons for that decision his Honour clearly breached s44(2). Because of s44(3), that error did not invalidate the sentence but the error and the clear failure to refer in his remarks to the relative length of the non-parole and total term of the Applicant’s sentence and to the topic of special circumstances when counsel had addressed on it demonstrate that the sentencing proceedings before his Honour miscarried also in the respects the subject of this ground of appeal.

45 The Crown submitted that the fact that his Honour fixed a balance of term at 2 years compared with a 4 years non-parole period indicated that this was not so and that one should infer that his Honour did in fact consider the topic. I disagree. I think the clear inference is that his Honour simply erred in elementary mathematics – an inference confirmed by other mathematical errors made when sentencing LLM.

46 Involved in that conclusion is the further conclusion that the 2 years balance of term which his Honour ordered was a mistake. Having fixed – firstly, as required by s44 of the Crimes (Sentencing Procedure) Act – a non-parole period of 4 years, the only matter of mathematics that there was to check was the application of s44(2) of that Act. The correct application of that sub-section to the 4 year period specified would have resulted in a balance of term of 1 year and 4 months and a total sentence of 5 years and 4 months.

47 I should perhaps add, before I leave this ground, that the response by the Crown Prosecutor when Judge O’Reilly asked whether a finding of special circumstances was needed to comply with the requirements of s19 of the Children (Criminal Proceedings) Act was also wrong. Under sub-section (3) of that section, the need for a finding of special circumstances (where appropriate) applies in the case of offenders who will exceed 18 years of age while imprisoned, not 21.

Conclusion

48 The Applicant has established errors in the respects the subject of Grounds 1, 2 and 5 and the further error to which I adverted when considering Grounds 2 and 3. Although the Applicant’s counsel did not rely on the further grounds of appeal relied on by LLM, despite presumably being aware of them, it would not be appropriate for this Court to ignore them had they been upheld. However they were not. Accordingly, subject to the application of s6(3) of the Criminal Appeal Act, this appeal must be allowed. So far as presently relevant that sub-section provides:-

“… the Court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal.”

49 Subject to 2 matters, I am not of the opinion some less severe sentence was warranted and should have been passed. The objective seriousness of his offence does not argue for a lesser sentence. While at liberty the Applicant had either not learnt proper standards of conduct or not learnt sufficient self-control to adhere to them or to resist the influence of his peers. Opportunities given to him to remain at liberty were not taken and short periods of incarceration had not worked by way of sufficient inducement to desist from criminal activity. The Applicant is not to be again punished for his earlier offending but, set against the background of it and its consequences, the offence the subject of the present appeal demonstrates that the Applicant is a recidivist in respect of whom considerations of personal deterrence and need for rehabilitation, including the learning of standards of behaviour and self-control necessary for life in civilised society, loom large. There is no reason to think that, within reasonable limits, either of these purposes of sentencing will be furthered by a shorter rather than a longer period in custody, at least if that custody is in a Juvenile Detention Centre rather than an adult gaol.

50 Considerations of general deterrence, retribution and protection of the community (within the limits to which effect can be given to that consideration – see Veen v R (No 2) (1987-1988) 164 CLR 465 at 477 also argue for a substantial sentence. While one must not forget the Applicant’s youth and other subjective factors, it must not be forgotten that the offence against Dr Lee was serious and one for which the maximum penalty is 25 years and that the threats of violence very high. So were the risks. Experience in the courts shows very clearly how easily, in circumstances of stress and adrenaline, unsheathed knives come to inflict serious injury or death.

51 A comparison with this Court’s guideline in R v Henry (1999) 46 NSWLR 346 reinforces this conclusion. In that case the Court indicated, as a guideline for cases of armed robbery having the characteristics there described (at 380), a sentence falling between 4 and 5 years in its total term was appropriate. Although there are obvious differences between the circumstances envisaged in that case and the offence involving Dr Lee, most of those differences are not to the advantage of the Applicant. He has a substantial criminal record, and the offending behaviour went on for appreciably longer than the typical armed robbery contemplated in that case as, I have no doubt, did the fear imposed on the victim. To be taken into account with the kidnapping was also the actual robbery of Dr Lee. The Applicant’s offence carries a maximum penalty of 25 years while that under consideration in R v Henry rendered the offender liable for only 20 years imprisonment.

52 However, I said that my conclusion was subject to 2 matters. One of these is the mathematical error Judge O’Reilly made in proceeding from a non-parole period of 4 years to a total term of 6 years. While I do not regard either the non-parole period and full term set by his Honour as excessive such that, on that ground, a less severe sentence should have been passed, it would be quite unjust that the Applicant’s sentence be 8 months longer than it otherwise would have been because of that error. In these circumstances the full term of the Applicant’s sentence should be reduced to 5 years and 4 months.

53 The Applicant’s youth and the matters referred to in the reports to which I have referred clearly establish the existence of special circumstances both for the purposes of s44 of the Crimes (Sentencing Procedure) Act and s19 of the Children (Criminal Proceedings) Act. The Applicant is clearly someone who is likely to need supervision on parole for more than 16 months and I favour extending the balance of his sentence for 6 months at the expense of the non-parole period. He is also someone who should be kept in a Detention Centre rather than an adult gaol until the non-parole period of his sentence concludes which should be on 8 November 2006 which will be when he is still less than 19½ years old.

54 The orders which the Court should make are:-

1. Grant leave to Appeal
2. Allow the Appeal
3. Quash the sentence imposed by Judge O’Reilly on the Applicant on 18 May 2004.
4. In lieu thereof, sentence the Applicant to imprisonment for a non-parole period of 3 years and 6 months commencing on 9 May 2003 with a balance of term of 1 year and 6 months.
5. Record as the date upon which it seems to the Court that the Applicant shall be eligible for parole, 9 November 2006.
6. Order pursuant to s19 of the Children (Criminal Proceedings) Act that the custodial portion of the Applicant’s sentence be served as a juvenile offender.

55 SIMPSON J: I agree with Hulme J.

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