Regina v A.S
[2006] NSWCCA 309
•22 September 2006
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v A.S [2006] NSWCCA 309
FILE NUMBER(S):
2006/1356
HEARING DATE(S): 7 September 2006
DECISION DATE: 22/09/2006
PARTIES:
Regina
A.S
JUDGMENT OF: Mason P Sully J Latham J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 05/11/1078
LOWER COURT JUDICIAL OFFICER: Walmsley DCJ
COUNSEL:
W. Dawe QC - Crown
C. J. Smith - Defendant
SOLICITORS:
S. Kavanagh - Crown
R. Shamas - Defendant
CATCHWORDS:
LEGISLATION CITED:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
DECISION:
Crown appeal allowed. Sentences at first instance quashed
Re-sentenced as per page 24 of judgment
Order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that the whole term be served in a juvenile institution
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2006/1356
MASON P
SULLY J
LATHAM J22 September 2006
REGINA v A.S
Judgment
[THERE IS TO BE NO PUBLICATION OF THE NAME OF THE RESPONDENT TO THIS APPEAL OR OF ANY OTHER MATERIAL FROM WHICH HIS IDENTITY MIGHT BE ASCERTAINED]
Introduction
MASON P: I agree with Sully J.
SULLY J: Before the Court is a Crown appeal brought against the asserted inadequacy of sentences passed upon a juvenile offender to whom I shall refer only as A.S. The sentences were passed on 21 April 2006 in the Sydney District Court.
A.S was presented before the District Court on 9 March 2006 and upon an indictment containing two counts.
Count 1 charged A.S with having assaulted, on 23 May 2005, a named victim with intent to rob her, A.S being then armed with an offensive weapon, namely a knife, and he having at the time of the assault inflicted upon the victim grievous bodily harm. Such an offence contravenes section 98 of the Crimes Act 1900 (NSW) and attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. The offence attracts as well the operation of the scheme of standard minimum non-parole periods for which provision is made by Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That scheme provides, in the case of a section 98 offence, a standard non-parole period of imprisonment for 7 years.
Count 2 charged A.S with having robbed, on 23 May 2005, from the person of another named victim. Such an offence contravenes section 94 of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 14 years.
A.S pleaded, upon arraignment, guilty to both counts. He asked that there be taken into account in connection with his sentencing a number of additional offences, and that was done pursuant to the relevant provisions of Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act. There were before the sentencing Judge, in addition, three further matters brought to the District Court pursuant to Court Attendance Notices.
Because of the number of offences, both indicted and additional, which were thus required to be considered by the learned sentencing Judge, it is useful to collate the following particulars respecting those offences:
| Item | Offence | Date of Offence | Statutory Maximum Penalty |
| 1 | Conspiracy to commit an armed robbery Crimes Act 1900 (NSW) s 97(2 | 2.3.05 | Imprisonment for 25 years |
| 2 | Robbery with wounding: [do] s 98 – Count 1 in indictment | 23.5.05 | [do] Standard non-parole period: imprisonment for 7 years |
| 3 | Robbery from the person: [do] s 94 – Count 2 in the indictment | 23.5.05 | Imprisonment for 14 years |
| 4 | Assault – [do] s 61 | 24.5.05 | Imprisonment for 2 years |
| 5 | Assault occasioning actual bodily harm - [do] – s 59 | 24.5.05 | Imprisonment for 5 years |
| 6 | Robbery in company [do] s 97(1) | 17.6.05 | Imprisonment for 20 years |
| 7 | Resist arrest [do] s 58 | 27.6.05 | Imprisonment for 5 years |
| 8 | Intimidate police officer in execution of his duty – [do] –s 60(1) | 27.6.05 | [do] |
| 9 | Offensive language - Summary Offences Act 1988 (NSW) s 4A | 27.6.05 | Six penalty units |
| 10 | Drive a motor vehicle while unlicensed - Road Transport (Driver Licensing) Act 1998 (NSW) s 25(2) | 1.9.05 | Imprisonment for 18 months |
| 11 | Malicious wounding - Crimes Act s 35(1)(a) | 5.10.05 | Imprisonment for 7 years |
| 12 | Assault police officer – [do] – s 58 | 5.10.05 | Imprisonment for 5 years |
| 13 | [do] | 5.10.05 | [do] |
Note: of the 13 itemised matters, items 1, 4, 5, 6, 7, 8, 9 and 13 were dealt with on a Form 1 and were taken into account in connection with the sentencing on Count 1 of the indictment – see item 2.
Note: items 10, 11 and 12 were the items brought into the District Court pursuant to Court Attendance Notices.
It is useful to note, next, some details respecting the respondent’s age and his bail history.
As to age, the respondent was born on 21 October 1990; he was aged, thus, a little more than 14 years 5 months at the date of the first of the 13 itemised offences and he was aged within 16 days of his 15th birthday as at the time of the last in sequence of those itemised offences; he was aged 15 years 6 months at the date of sentence; and he is at present aged almost 16 years.
As to bail history, the respondent was at liberty on conditional bail from 2 March 2005 until 13 October 2005. During this period of conditional liberty on bail the respondent committed the offences comprising items 2 – 13 both inclusive in the above table. The respondent was returned to custody on 13 October 2005 and remained in custody until 21 November 2005. He was again released on conditional bail on 22 November 2005 and remained at liberty accordingly until 26 January 2006. He was re-arrested on 26 January 2006 for breach of a bail condition, and thereafter he was in custody, bail refused, until he stood for sentence on 21 April 2006.
11 The sentences passed at first instance were as follows:
| Count 1, (and taking into account 8 matters on a Form 1): | Non-parole period of imprisonment for 2 years with a balance of term of 1-1/2 years |
| Count 2: | Imprisonment for a fixed term of 6 months |
| Court Attendance Notice – malicious wounding: | Imprisonment for a fixed term of 9 months |
| Court Attendance Notice – assault police: | Imprisonment for a fixed term of 3 months |
The sentences thus set by the learned sentencing Judge were arranged by his Honour into a structure, the dating of which entailed an overall non-parole period of imprisonment for 2 years and 9 months with an overall balance of term of 1 year 6 months. His Honour ordered that the entire term be served as a juvenile offender.
Facts and Objective Criminality
It is convenient to begin by quoting paragraphs 4 – 22 inclusive of the remarks on sentence:
“4. The Crown tendered some agreed facts which were part of exhibit A. I shall set out some facts, starting with the first matter on the Form 1 as it is the first in time. In short, on 2 April 2005, with two others, he conspired to rob a pizza driver of cash and food. A call was made to the pizza parlour, and an order placed for delivery of pizzas. He, with two others, waited. But the staff at the store became suspicious. They contacted police. The pizzas were taken to the nominated address, the driver being followed by police. The offender however saw a police vehicle drive down the street, thought he had been set up, decided not to stay, so left the scene.
5. The other two were arrested at the scene. The offender was arrested nearby. He was cautioned, and participated in a record of interview in which he confessed that he and the two others had decided to rob a pizza driver. They had been playing with a replica pistol earlier in the evening and there was then an agreement made to commit the unlawful act of robbery. He was given bail, with, among other conditions, that he reside at his parents’ home.
6. On 23 May there occurred the two matters on the indictment. This is the first. At about 10 am the victim of the offence, a sixty-three year old lady, was shopping at Lakemba CBD with her grandson, who was sitting in a stroller. During the course of her shopping she bought a toy for her grandson. At about 12.10 she was walking back to her home along Croydon Street, Lakemba. Her grandson was asleep in the stroller. The offender approached her from behind and stood in front of her, holding a five centimetre bladed knife above his waist, pointing the knife towards her.
7. He said “Give me the money”. She said, “Why?” He said “give me the money. I have a knife”. He then walked to her side and stabbed her in the right upper arm with the knife. She attempted to get her wallet from her handbag to give him, but as she did this he stabbed her again in the mid-back region. She felt a sharp pain and her legs gave way. This blow, it later transpired, partially severed her spinal cord.
8. He then pulled on the strap of her handbag, which was still attached to the stroller in which the baby was asleep. His victim fell on top of the pram. The offender grabbed the handle of the stroller and pulled it towards himself. She then grabbed the wheels of the stroller. The victim was pulled along for a short distance. The baby woke up. The victim screamed out for help. The offender ran away.
9. The victim was later found to have what was called hemisection of the spinal cord, normal power and sensation in the upper limbs, no movement or reflexes in the left leg and reduced sensation in the right lower body. Prior to the incident, she could walk unassisted. Since then she has been receiving treatment. She now has partial movement in her right leg. She can walk with the assistance of a walking frame but mainly gets around in a wheelchair. She is left with scarring.
10. This is the second matter on the indictment. Some minutes after the above event, the offender approached another victim. She was also walking in Lakemba. He pulled on the strap of her handbag. She started screaming and felt pain in her left shoulder and arm. The strap of her handbag broke. The offender ran away with her handbag. It contained an amount of money, a necklace, some religious pendants, earrings and other items.
11. Various members of the public went to assist both victims.
12. Two further matters on the Form 1 involve an assault and an assault occasioning actual bodily harm, both of which occurred the next day. The victim of the second matter on the indictment was with her husband. She recognised the offender as her assailant from the previous day and told her husband. The offender approached them and spoke to them in Arabic. He grabbed a fold-out knife from the right side of his pocket and pushed the husband of the victim of the previous day’s offence back against the car. That caused him to hit his head. During the course of this incident, the victims attempted to call police. But they were not able to, because of their poor English.
13. The police spoke to the offender on 16 August. There was then forensic examination of various items of property. A fingerprint examination of a shopping bag with the victim of the first offence on 23 May identified a fingerprint of the offender’s left little finger, Police then went to his home in October. He was offered the opportunity for, but did not take part in, an identification parade.
14. The next matter on the Form occurred on 17 June. It involved an incident at Kings Cross. The offender was with several others. A passer-by had a mobile phone. They approached him. One of the group grabbed his jumper and demanded the phone whilst he was surrounded by the others. The offender noticed a digital camera in his pocket and, mistaking it for a phone, demanded that he give it to him. One of the group reached into the victim’s pocket and removed the camera, giving it to one of the other offenders. Another offender took money from the victim’s pocket. The offender and the others were charged that night and given bail. There were 3 other Form 1 matters on 27/6/06.
15. The section 166 matter is this. On 1 September 2006 the offender drove without a licence in Campsie. He was stopped by police. He said that he had never had a licence to drive.
16. The next matter for sentence occurred as follows. On 4 October he went into a supermarket in Lakemba. He had previously been banned from the store. He was asked to leave. He had an argument with the proprietors. He walked towards the cashier. He was told he could buy something but that he should not come back again. He left, having sworn at the cashier in a most offensive way. He was followed outside by the store manager. There was an argument outside. The offender produced a small, curved knife about five centimetres long. He held it in from of his body for a short time while talking to the store manager. At one point the victim was in physical contact with the offender.
17. The store manager left. He later realised that he had suffered a laceration to the left side of his back. He had treatment at Canterbury Hospital, where there was found to be a wound on the posterior auxiliary line of the eighth rib. Fortunately, it did not puncture the lung. The offender was taken from the scene. This event was witnessed by an off-duty police officer.
18. The offender was arrested. In the course of the arrest he assaulted two constables, Constable Volpe and Constable Johnson. So far as the first assault is concerned, it is said that he continually thrashed about with his body, arms and legs in an attempt to get free and grabbed Detective Volpe in the groin area, causing him immediate pain and discomfort. In the same incident he kicked out towards Detective Johnson, striking him in the groin and leg region several times. As to those two matters, the first is the remaining matter for sentence. The assault on Constable Johnson is included on the Form l.
19. I asked the Crown to identify any factors which were said to be aggravating in the sense used in 21A(2) of the Crimes (Sentencing Procedure) Act. The two offences on the indictment were, it would seem, carried out while he was on bail. The other offences also occurred whilst he was on bail. There was some debate about section 21A(2)(g) in relation to the first matter on the indictment, but ultimately the Crown disavowed that as an aggravating factor because grievous bodily harm was a component of the offence. I find, then, beyond reasonable doubt, that the offender was on conditional liberty at the time when he committed all matters for which I am to sentence him.
20. The offender pleaded guilty to all matters. He had no criminal record before the first offence. This is his first time in custody. He was fourteen years of age at the time of the offences and is now fifteen. The matters were committed to the District Court on 1 November. The Crown did not concede that he pleaded guilty at the earliest opportunity, but ultimately he did enter pleas on 9 March 2006. I am satisfied that, given his youth and what I am satisfied constituted serious mental problems and his lack of mental acuity, it was reasonable for there to be investigation of his mental state and that he did plead guilty to these offences at a very early opportunity.
21. The Crown tendered a victim impact statement from the victim of the first offence, namely, the lady who was rendered, at least temporarily, partially paraplegic. I have read her statement and I have had regard for it. In doing so, I bear in mind the principles for the use of such a statement discussed by Sperling J in R v Slack [2004] NSWCCA 128 at paragraphs 58 to 62.
22. The unfortunate victim of the attack the subject of count 1 in the indictment spent months in rehabilitation, became dependent on relatives to feed, clothe and bathe her and take her to the toilet and was for a lengthy time confined to a wheelchair. She still walks, as I have noted, with the aid of a frame. For her, the outcome of the offence is appalling and sad.”
The description contained in paragraph 12 of his Honour’s remarks on sentence needs to be supplemented by the following additional facts taken from the police statement of facts tendered at the sentencing proceedings.
The respondent approached the two victims while they were still seated in their car. He said to both persons in Arabic: “Why are you looking at me?”; and he thereupon thrust his open right hand towards the female victim causing her to lean back so as to avoid being hit by the palm of the respondent’s hand.
The male victim then got out of the car and the respondent walked over to him. The respondent and the male victim then had a verbal exchange in Arabic, and during the course of it the respondent said: “If you are really Lebanese, you should speak to me and not the police. I am local and I have boys who will cut you apart by knives”. It was then that the respondent took hold of a fold-out knife from the right side pocket of his hooded top and pushed the male victim back towards the car causing the victim to hit his head on the car. The respondent then grabbed the male victim by the throat with his left hand, holding in his right hand and against the victim’s waist, the fold-out knife. The respondent said to the male victim in Arabic: “If you don’t get in your car I will kill you right now”.
The concluding sentence of paragraph 14 of his Honour’s remarks refers to three other Form 1 matters “on 27/6/06”. According to the actual Form 1, (see appeal papers at page 46), the correct date is 27/6/05.
Paragraph 15 of his Honour’s remarks on sentence refers to 1 September 2006 as the date of the offence of unlicensed driving. The actual section 166 certificate is reproduced at page 47 of the appeal papers. It is dated 30 March 2006 and gives as the relevant date 1 September 2005.
The three additional Form 1 matters to which his Honour refers in the concluding sentence of paragraph 14 of the remarks on sentence are the matters which I have itemised as items 7, 8 and 9. The relevant facts will be found at page 46 of the appeal papers. It is not necessary to re-state the entirety of the appallingly crude language used by the respondent on the occasions there summarised; but it is relevant to note that in connection with the offence itemised above as item 8 the respondent, while in the dock at the police station, said to the nearby police: “I know how to find where you live. I’ll follow your car, you wait! I’m going to get a knife and put it through your fucking throat”. The respondent then “raised his hand to below his jaw and made a cutting gesture across his throat”.
Relevant Subjective Features of the Respondent’s Case
Once again, it is convenient to take these from the remarks on sentence:
“23. The offender gave evidence before me. He says he has three brothers and two sisters. He went to school in Lakemba. He was suspended many times. He had trouble learning. He only had a few weeks in high school. His doctor diagnosed attention deficit syndrome – or disorder. He left school when he was thirteen. He had a short trip to Lebanon and then returned to Australia and worked for an uncle for a few weeks.
24. He used drugs – cocaine, marijuana, ecstasy – commencing his drug use from the age of about thirteen and was drug affected, he says, on the day of the events covered by the two counts on the indictment. He told me that he was very sorry for the victim of count 1 and his counsel, through him, tendered a letter which he had prepared in custody, and which confirmed that. I accept that he does feel sorry for the victim. He said as to the malicious wound charge relating to the incident in the shop that he was very angry that he had been barred from the shop and felt that he had been mistaken for someone else.
25. Since he has been in custody he has been given Ritalin for his attention deficit problems. He has also been given medication for psychiatric problems. Since in custody he has attended school and he has done much better than ever before. He says he has not been teased as much, teasing having been a feature of his early schooling. He says he would like to remain in those classes. He intends doing a TAFE course, he says, after the Year 10 Certificate which he would like to do, and then get himself involved in paving work. Until he went into custody he had a girlfriend of apparently long standing.
26. He denies recalling stabbing the victim in count 1 or of his involvement in the second count on the indictment. I am satisfied that because of his consumption of drugs, and his lack of mental acuity, his memory for that day has been affected. He says that at the time he mixed with older boys and they supplied him with drugs.
27. His mother gave evidence. She said that there were problems with him and his behaviour from an early age. Indeed, she said that he had been expelled from kindergarten and that he had always had trouble since he had been a very small boy. She started taking him to doctors from the time he was in kindergarten. She said he had been prescribed Ritalin after the offences and since then she had seen a very great improvement. She described it as ‘a lot of difference’. In fact, she said she was ‘shocked’ to see him settling now at school. I took her to mean that it was contrary to anything she had ever seen before and that she was very happy with the apparent progress he had made.
28. She and her husband have made plans to move from Sydney to get him away from bad influences once he is free to be taken away from Sydney. The idea is that he does not get back into the company of those with whom he was spending time when he committed these offences.
29. From exhibit 2 it is apparent that he has engaged in a number of courses, and done them successfully, while in custody. Exhibit 4 is the written apology to which I earlier referred.
30. He was seen by a forensic psychiatrist, Dr. Westmore. Dr. Westmore concluded that he is of compromised intelligence and that he qualifies for the diagnosis of mild mental retardation. Dr. Westmore had some documents which I was not given, but I did not take that to reflect adversely on any benefit I could gain from his report. Dr. Westmore could see no clear psychiatric reason why he had memory difficulties for some of the offences.
31. His prognosis from the psychiatric and forensic perspective, he said, should be considered cautiously. He said that the offender represents a very serious psychological and social problem.
32. Another psychiatrist, Dr. Canessa, diagnosed “schizoform psychosis/schizophrenic illness which requires ongoing treatment”.
33. Psychiatrist Dr. Redmond said that the offender has ‘conduct disorder’. He said that there is a question mark over the diagnosis of attention deficit disorder.
34. The offender saw a psychologist at the request of his solicitors. The psychologist is Mr. Jacmon. He tested the offender’s IQ. According to Mr. Jacmon this was “at the lowest level of the norm”. He said that there was a significant impairment in his intellectual ability. He noted severe deficits in memory. Clearly the offender has major mental deficits. Mr. Jacomon says, however, that the offender is susceptible to positive reinforcement. So that he has some potential to learn more appropriate life skills.
35. The Juvenile Justice report notes that he is illiterate but tried his best to communicate properly with the authors of the report. The authors contacted the Cobham centre psychologist who reported that he had settled well in custody, that his behaviour had improved considerably and that whereas he had initially engaged in self harm behaviour, that had ceased. They concluded that the offences were likely to have resulted from drug misuse and poor mental skills – or poor mental health.”
The True Issue for Present Determination
The Crown submissions offer various criticisms of the sentences passed at first instance, but all of those criticisms are made in general terms and by reference to the end result reached by the learned sentencing Judge rather than by reference to particular things said or to particular findings made by his Honour.
This is, in my opinion, readily understandable because the remarks on sentence themselves, read fairly as a whole, do not seem to me to say in terms anything which can be said to be obviously erroneous in principle.
It follows that the real gravamen of the Crown case is that the end sentencing result actually achieved is on its face so plainly inadequate when matched with the given findings of facts, both objective and subjective, as to demonstrate convincingly that although the primary Judge’s process of reasoning as actually expressed in the remarks on sentence cannot be faulted in principle, something must nevertheless have miscarried in that process for so obviously inadequate a result to have been reached.
The Determination of that Issue
Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) states a number of “purposes for which a court may impose a sentence on an offender”. Those stated purposes are :
“(a)To ensure that the offender is adequately punished for the offence,
(b)To prevent crime by deterring the offender and other persons from committing similar offences,
(c)To protect the community from the offender,
(d)To promote the rehabilitation of the offender,
(e)To make the offender accountable for his or her actions,
(f)To denounce the conduct of the offender,
(g)To recognise the harm done to the victim of the crime and the community.”
No doubt it is relevant, when considering in any given case how those purposes are to be given effect, to have in mind the following well known observations of Mason CJ, Brennan, Dawson and Toohey JJ in their joint reasons in The Queen v Veen (No. 2) (1988) 168 CLR 465 at 476:
“The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in opposite directions.”
No doubt the section 3A “purposes” can point at opposite directions in any particular case, and plainly do so, in my opinion, in the present case. That notwithstanding, the “purposes” must all be taken into account, at least to an extent that is fairly related to the facts of the given case. The opposing tendencies as between or among two or more of the statutory “purposes” must be accommodated by an intuitive synthesis based upon what the joint reasons in Veen No. 2 describe as “a judgment of experience and discernment”.
Exactly the same points need to be made in connection with any tensions existing in a given case between the section 3A “purposes” and the “principles” which section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) requires to be taken into account “in exercising criminal jurisdiction with respect to children”. Those “principles” are:
“(a)that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them;
(b)that children who commit offences bear responsibility for their actions but, because of their stated dependency and immaturity, require guidance and assistance;
(c)that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption;
(d)that it is desirable, wherever possible, to allow a child to reside in his or her own home;
(e)that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.”
In the case of the present respondent the principled reconciliation of the cited “purposes” and “principles” and of all the other well established common law principles of sentencing, entails the starting point of this simple and indisputable proposition: over a period of 7 months in 2005 the respondent committed thirteen distinct breaches of the law, four of which, (items 1, 2, 3 and 6), were offences of significant violence, any one of which attracted a statutory maximum penalty of imprisonment ranging from 14 years to 25 years. To that commencing proposition there need to be added these further propositions:
[1]Of the remaining nine offences, a further six involved violence of varying levels of objective gravity, but, in all six cases, more than insignificant violence.
[2]Of the thirteen offences, twelve were committed by the respondent at times when he was at liberty on bail.
[3]The unlicensed driver offence was committed by the respondent admittedly in the knowledge that so to drive breached his then current bail conditions.
[4]The offence of assault occasioning actual bodily harm, (item 5), was accompanied by very ugly language and conduct.
There was, no doubt, a significant subjective case to be put for the respondent to the sentencing Judge; but it was essential that his Honour not allow the persuasiveness of that case simply to swamp the relevant objective criminality. In my opinion that objective criminality was of a very high order. It was expressed in language and in conduct that were contemptuous of the victims, contemptuous of public order and safety, and, overall, thuggish.
As I have acknowledged, there was put to the learned sentencing Judge a strong subjective case. His Honour’s consideration of that case, and his Honour’s relevant findings and reasoning, have been earlier herein quoted.
Balancing fairly the foregoing objective and subjective factors seems to me to have entailed a sensible, practical balancing out of the following competing considerations:
[1]The respondent was undoubtedly a young offender, both when he committed the various offences and when he stood for sentence. It is, however, trite that youth does not simply and routinely expunge any and every other relevant consideration. The respondent, young though he was, knew what he was doing; knew that what he was doing was unlawful; and seems to have regarded physical violence, including the serious use of a knife, and threats of physical violence, as unremarkable incidents of getting what he wanted.
[2]The respondent, to borrow from Dr. Westmore, represented when he stood for sentence “a very serious psychological and social problem”. His psychiatric and psychological profiles seemed to Dr. Westmore to require caution in prognosis. The report, generally sympathetic, of Mr. Jacmon, a specialist psychologist, remarked upon the respondent’s perceived “lack of conceptual, social and practical skills to live as a functioning member of society”.
[3]The combined effect of factors 1 and 2 was to bring very much to the fore the imperative need of the general community for protection; and the fundamental entitlement of the general community to have the fullest proper measure of that protection.
[4]The material available in connection with the respondent’s sentencing indicated an unusual situation in that it was quite clear that the respondent, while at large in the community, was simply out of control. He was drug-addicted and had been so for some time. He was not responsive to any structured regime of medication. His associates were a bad influence. He was unresponsive to any attempt to discipline him; and he appears to have had no real sense at all of self-discipline. By contrast, however, he had responded positively to the enforced structure and discipline that had been provided for him while in custody. He presented, therefore, as somebody with prospects of rehabilitation, provided that he was held for an appropriate time to a structured, disciplined, drug-free and properly medicated regime.
[5]The respondent’s demonstrated psychiatric and psychological deficits made it necessary to take a carefully tempered approach to the related issues of general and special deterrence; but there was, even so, some legitimate scope for the principled recognition of those factors.
In order to reach a sound conclusion upon the question whether the sentences passed at first instance ought to be accepted, conformably with the principles previously herein discussed, as within the range of a sound sentencing exercise, sight must not be lost of the principles clearly established by the decision of the High Court of Australia in Pearce v The Queen (1998) 194CLR 610. That is especially so in a case where there are thirteen separate matters calling for appropriate punishment.
If the Pearce requirement that each offence be first considered as a stand-alone offence be implemented in connection with the sentences now being reviewed, then in my opinion the following propositions are correct:
[1]The sentence passed upon count 1, but taking into account the Form 1 matters, should have attracted initially a non-parole period in the order of 5 years with a balance of term in the order of 2 years. Given the number of offences to be punished, and given that all of those offences involved some measure of actual or threatened violence, a sentence of that order was called for even allowing for the discount of 25 per cent for the guilty pleas and even allowing, also, for the other mitigating factors found by the learned sentencing Judge.
[2]The sentence passed upon count 2 should have attracted initially, and even after the aforesaid allowances, a non-parole period in the order of 2 years with a balance of term in the order of 8 months.
[3]The sentence passed upon the Court Attendance Notice for malicious wounding should have attracted initially, and even after the aforesaid allowances, a non-parole period in the order of 12 months with a balance of term of 3 months.
[4]The sentence passed upon the Court Attendance Notice for assaulting a police officer in the execution of his duty should have attracted, and even after the aforesaid allowances, a sentence of not more than 6 months passed as a fixed term.
The carrying out of the second phase of the Pearce requirements: that is to say, the arrangement of the appropriate initial sentences into a final structure apt to recognise appropriately the principles of totality and of proportionality, could have entailed any of a number of actual outcomes. I would myself have favoured passing first the suggested sentence on count 2; and then passing the suggested sentence on count 5 dating it so as to commence 1 year after the commencement of the count 2 sentence. I would have thought it appropriate to pass the sentences suggested in propositions 3 and 4, but to have made them concurrent with the sentence passed on count 2. Such an approach would have yielded a total non-parole period of 6 years and an effective balance of term of 2 years. I would have made no further adjustment as between non-parole period and balance of term; first, because an effective non-parole period of less than 6 years would not, in my opinion, have reflected appropriately the overall criminality of a continuum of violent, and in some instances very violent, offending; and secondly, because if a properly structured custodial regime of 6 years’ duration could not effectively rehabilitate this respondent, then a longer parole period than one of 2 years would not be likely to make an appreciable difference for the better.
The suggested sentences which I have set out are not intended to be lapidary. They are intended, rather, to illustrate the extent to which, as I respectfully believe, the sentences passed at first instance are manifestly inadequate to punish justly the relevant criminality of the respondent.
In my opinion, therefore, the Crown has established a clear prima facie entitlement to have this Court intervene and re-sentence the respondent.
Should this Court proceed to Re-sentence?
There are, broadly speaking, three bases upon any one of which the Court would have, and in a proper case would exercise, a discretion not to intervene notwithstanding that the Crown had established manifest inadequacy.
There is, first, the case in which the delay in instituting and/or in prosecuting the Crown appeal has been such as to enliven that discretion. The present appeal is not, in my opinion, within that category.
There is, secondly, the case in which the difference between the sentence(s) passed at first instance and the sentence(s) which this Court would now entertain is so small as to amount to tinkering. The present appeal is not, in my opinion, within that category.
There is, thirdly, the case in which there is evidence of events occurring between the sentencing at first instance and the disposal of the Crown appeal; and those events might be thought to require that, in the interests of justice overall, this Court should as a matter of discretion refrain from increasing the particular respondent’s sentence(s).
The respondent in the present appeal seeks to defeat the appeal by having recourse to such further evidence.
Five affidavits have been tendered by the respondent on the issue of discretion.
There is, first, an affidavit annexing a report by Dr. J. Canessa, a Staff Specialist Forensic Psychologist with Juvenile Health. It will suffice to quote the following proportion of the report:
“(The respondent’s) period in custody has been both beneficial and detrimental to rehabilitation. In stating that, it has been beneficial in that he has been diagnosed, and treated, he has abstained from illicit mind altering substances, he is attending school and is addressing his offending behaviour. However it has been detrimental in that he has poor peer support and has been stigmatised and assaulted by other detainees and has little contact with his family which is his main support to ease his distress. Additionally, in order to continue to improve his mental state (the respondent) will continue to require psychiatric medication indefinitely. Due to his treatment resistance, it is highly likely he will need to be trialled on Clozapine. This medication has multiple potentially life threatening side effects that need daily monitoring. Hence it cannot be commenced in the current corrections environment. Incarceration may preclude access to this treatment. Continued psychotic symptoms and associated deterioration in his mental state will delay all areas of rehabilitation.
In order to maintain optimal functioning and decrease risk of re-offending and the risk of violence to others in the community on release, I recommend the following management plan for (the respondent).
1.He should continue to be managed by an experienced psychiatrist.
2.He should continue to take medications as prescribed by the treating psychiatrist.
3.He requires intensive community monitoring and engagement in regular treatment reviews.
4.He should abstain from all illicit substances, as these are likely to exacerbate his psychosis.
He should be monitored by the use of random urine drug schemes.
5.In the event of any deterioration of mental state or aggressive behaviour, there should be a low threshold for a schedule and admission to a high secure psychiatric facility.”
There are two further affidavits of the respondent’s solicitor. They detail various aspects of the respondent’s progress while in his present custody. An attachment to one of the affidavits is a report from the Clinical Manager of the Juvenile Justice Centre at which the respondent is at present detained. A further attachment to the same affidavit is a copy of a hand-written letter addressed by the respondent himself to this Court.
The report of the Clinical Manager contains the following observations:
“(The respondent) is progressing well within the Robinson programme. He actively engages in unit weekly reviews, development and monitoring of behavioural goals and individual counselling with the author. Behavioural goals focus on his socialisation and interactions with others, avoidance of negative peer dynamics and participation in programmes. (The respondent) has sustained long term behavioural stability and established strong supportive networks with staff in assisting him manage his paranoia.
Individual counselling has focused on his maintaining his mental and emotional well-being, drug related issues, management of aggressive impulses, violence related distortions and anxiety and affect regulation. (The respondent) has progressed well in his self management and monitoring of feelings related to aggression and violence. He has been able to “place himself in others’ shoes” and display sensitivity, empathy and remorse over his offence. Over the past three months, he has displayed significant guilt over his actions and has revealed increasing insight into the seriousness of the matter. (The respondent) questions himself with “what if that was my Nan?” in generating feelings of remorse and enhancement of insight. (The respondent) has disclosed she prays for the victims’ wellbeing and health on a daily basis.
(The respondent) requires ongoing therapeutic assistance in anxiety and mood regulation. He occasionally experiences “emotional flooding” and requires intensive contact with the author in reducing the intensity of his anxiety, thought rumination and intrusions. (The respondent) also requires ongoing assistance with drug related issues but has increased insight into cues/triggers and personal vulnerabilities that risk him relapsing into drug taking behaviour.
Overall, (the respondent) is progressing very well within the Robinson programme. The supportive network of staff, teachers, his family visits and therapeutic consultation has improved (the respondent’s) insight into violence related distortions and assisted in his management of aggressive impulses. He is actively working towards achieving long term therapeutic goals.”
The respondent’s own letter expresses remorse for the effects upon the victims of his offences, with particular reference to the victim of the count 1 offence. The letter speaks of the respondent’s attempts to resolve his previous behavioural problems. The letter is simple, clear and coherent. There is no reason to think that its contents are other than authentic and genuine.
The respondent, in addition to that letter, has made an affidavit in which he describes aspects of his present regime and their beneficial effects upon him. The tone of the affidavit is generally optimistic. The affidavit describes some continuing problems; but it describes, also, what the respondent perceives to have been real progress towards his ultimate rehabilitation. There is, once again, no reason to think that the contents of that affidavit are other than authentic and genuine.
There is, finally, an affidavit from the respondent’s mother. It repeats some of the evidence given by her to the sentencing Judge. It speaks, also, of what the mother sees as having been “an amazing transformation since he has been in custody and received psychiatric attention and proper treatment”. The affidavit speaks, importantly, of continuing family support for the respondent both during his imprisonment and thereafter.
This additional material presents this Court with a situation calling for a difficult balancing of public protection and personal rehabilitation. If it be accepted that the sentencing outcome at first instance is as inadequate as I perceive it to be, then there is a very powerful case, and ultimately in my view an irresistible one, for some intervention by this Court in order to vindicate the proper application of the section 3A “purposes” earlier herein cited. At the same time there is a need to proceed with some sensitivity so as not to disrupt unfairly such progress as the respondent seems to be making. Those competing objectives can be reconciled fairly, in my opinion, by this Court’s now re-sentencing the respondent, but doing so in a way that gives him a distinctly more lenient result than I believe he should have had at first instance.
The re-sentencing which I propose will have the effect of passing sentences structured so as to produce an overall non-parole period of 3 years and 9 months and an overall balance of term of 1 year. In adopting that structure I have considered the question of “special circumstances”. In my view an overall non-parole period of less than 3 years and 9 months would be inadequate, for the reasons previously herein discussed; and a balance of term of more than 1 year would have no discernible advantage. The plain fact is that if this respondent cannot be rehabilitated by a structured regime enduring for 3 years and 9 months followed by a year’s professional monitoring, then an adjustment of a few months to the balance of term is essentially pointless.
Orders
I propose, therefore, the following orders:
(1) Crown appeal allowed. Sentences at first instance quashed.
(2)In lieu, re-sentence the respondent as follows:
On count 2 of the indictment: to imprisonment for a non-parole period of 1 year to commence on 21 December 2005 and to expire on 20 December 2006, with a balance of term of 4 months to commence on 21 December 2006 and to expire on 20 April 2007
On count 1 of the indictment and taking into account the Form 1 matters: to imprisonment for a non-parole period of 3 years to commence on 21 September 2006 and to expire on 20 September 2009 with a balance of term of 1 year to commence on 21 September 2009 and to expire on 20 September 2010.
On the charge of malicious wounding, the subject of a Court Attendance Notice: to imprisonment for a non-parole period of 1 year to commence on 21 December 2005 and to expire on 20 December 2006 with a balance of term of 4 months to commence on 21 December 2006 and to expire on 20 August 2007
On the charge of assault a police officer, the subject of a Court Attendance Notice: to imprisonment for a period of 3 months to commence on 21 December 2005 and to expire on 20 March 2006
[The total thus set is one of a non-parole period of 3 years 9 months commencing on 21 December 2005 and expiring on 20 September 2009 with a balance of term of 1 year commencing on 21 September 2009 and expiring on 20 September 2010]
(3)Order pursuant to section 19 of the Children (Criminal Proceedings) Act 1987 that the whole term be served in a juvenile institution.
LATHAM J: I agree with Sully J.
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LAST UPDATED: 22/09/2006