Regina v Brown

[2000] NSWCCA 548

CITATION:	Regina v Brown [2000] NSWCCA 548 revised - 7/02/2001
FILE NUMBER(S):	CCA 60512/2000
HEARING DATE(S):	8 December 2000
JUDGMENT DATE:	8 December 2000
PARTIES :	Crown - Respondent Harold BROWN - Applicant
JUDGMENT OF:	Simpson J at 1; Dowd J at 31

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0192
LOWER COURT JUDICIAL OFFICER :	Blanch CJ/DC

COUNSEL :	Mr L B Lamprati - Crown Mr P J D Hamill - Applicant
SOLICITORS:	S E O'Connor - Crown D J Humphreys - Applicant
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Children (Criminal Proceedings) Act 1987
CASES CITED:	R v Fernando 76 A Crim R R v Karhani, unreported 14 October 1998 per Greg James J
DECISION:	Leave to appeal granted, the sentence imposed be quashed. In substitution the applicant be sentenced to imprisonment for a period of four years, with a non-parole period of fifteen months, the sentence to commence on 27 January 2001. Order directing that the whole of the sentence be served in a detention centre.

IN THE COURT OF
CRIMINAL APPEAL

60512/00

SIMPSON J
DOWD J

Friday 8 December 2000


REGINA v Harold BROWN

Judgment

1 SIMPSON J : On 2 June 2000 the applicant entered a plea of guilty to a charge of aggravated break enter and steal committed by him, in company with others, on 18 November 1998. S112(2) of the Crimes Act 1900 prescribes a maximum penalty of twenty years’ imprisonment where a person convicted under the section is an adult or is, for the purposes of sentencing, to be treated as an adult. The applicant asked that a further count of breaking and entering a dwelling house with intent to commit a serious indictable offence be taken into account pursuant to s 21 of the Criminal Procedure Act 1986.

2 The applicant was born on 4 May 1981 and was seventeen years of age at the time he committed the offence. He was, accordingly, a "child" within the meaning of the Children (Criminal Proceedings) Act 1987 (“the Act”). He was arrested and charged on 28 September 1999, when he was still under the age of twenty-one years.

3 Accordingly, Division of Pt 2 of the Act applied. As the offence to which the applicant pleaded was not a serious indictable offence, as defined in s 3 of that Act, the judge had the option of dealing with the applicant according to law (that is in accordance with sentencing procedures applicable to adult offenders), or in accordance with the procedures prescribed for the Children's Court by Pt 3 of the Act.

4    His Honour elected to deal with the applicant according to law and imposed a term of imprisonment for four years with a non parole period of two years. He specified that the sentence was to commence on 27 January 2001. This was because the applicant was already subject to a sentence imposed by the Nowra Local Court in relation to an escape from lawful custody.

5    It will be necessary to refer again to that offence, together with other offences the applicant has committed and sentences that have been imposed upon him.

6 The sentencing judge was asked, but declined, to make an order pursuant to s19 of the Act directing that the whole, or, alternatively, part of the term imposed be served in a detention centre. It will be necessary also to return to this matter.

The facts of the offence

7    During the evening of Wednesday 18 November 1998 the applicant with a female, VM, and two male co-offenders was outside a house in Anzac Parade at La Perouse. The occupants of the house were a sixty-four year old woman, Ms Marie Zoccoli, her daughter Sandra Deroit, and Ms Deroit's four year old daughter, Chloe. VM asked Ms Zoccoli if she had any Pepsi and Ms Zoccoli said she had not.

8    Two of the men, including the applicant, put on balaclavas to conceal their faces. Ms Zoccoli was pushed and punched to the face and body numerous times, fell into the garden, and when she rose, was punched again. It is not clear which of the offenders punched and pushed her and it does not matter. All were involved in the attack. The applicant produced a small dark semi-automatic pistol (which may have been a replica or toy) and threatened to shoot Ms Zoccoli. Ms Deroit ran to assist her mother and was in turn assaulted and pushed to the ground. Both women ran into the house and closed the front door. One of the offenders, holding a Jim Beam bottle, smashed a door window pane and gained entry to the house and all offenders entered. One of them demanded "the bag". Two of the offenders ran upstairs. The applicant threw objects around the house. VM and one of the men gained possession of Ms Deroit's handbag and a cordless phone and all ran from the house. Some neighbours gave chase but desisted when one of the offenders threatened to shoot. Although police received information that the applicant was involved in the incident at a relatively early stage, and he was positively identified by Ms Zoccoli on 15 January 199, he was not arrested or charged until 28 September 1999. He was interviewed but denied involvement in the offence.

Subjective circumstances

9 As noted above the applicant was seventeen years of age at the time of the offence, he has a lengthy criminal history. The most serious matters on his record are an offence of robbery in company in relation to which he was sentenced in March 1995, robbery in circumstances of aggravation and assault with intent to rob (April 1997), and aggravated robbery with wounding (August 1999). Some very compelling subjective material was placed before his Honour. This consisted of a most comprehensive background report prepared by Ms Judy Mullins, a social worker employed by the Department of Juvenile Justice; a short report of Dr Andrew Walker, psychiatrist, dated 12 June 2000; a psychiatric report of Dr Chris Rikard-Bell, a psychiatrist, dated 27 March 1999, and a clinical psychological assessment prepared by Dr Susan Hayes, clinical psychologist dated 22 July 1999. He is Aboriginal. Together, the reports disclosed that the applicant's background and history fell squarely within the profile of deprivation, disadvantage and neglect described by Wood J (as his Honour then was) in R v Fernando 76 A Crim R. 58. His childhood was described as having been marked by periods of parental neglect, alcoholism and exposure to inter-familial violence and family breakdown. He began smoking tobacco at the age of eight, then took up cannabis smoking which he stopped at the age of fourteen because his level of use was so high that he felt physically immobilised, violently ill, and paranoid in his thinking. He re-commenced use of cannabis three years later. He began drinking alcohol at twelve years of age, and, during the periods he has not been in custody was drinking all day and anything he could get his hands on. He drank until he could drink no more. He has also sniffed glue and petrol but has not done so in recent years. On being returned to custody, and deprived of alcohol he has experienced serious withdrawal symptoms. He has been assessed as having cognitive deficits. Indeed, Dr Hayes assessed him in the following way:

"In the communication domain Mr Brown is operating at a functional age of five years eight months, in daily living skills he operates at a level of nine years four months and in socialisation he is operating at a level of five years and eleven months."

10    He has been diagnosed as suffering from severe clinical depression and a severe anxiety disorder. Reference was also made to a particular traumatic event in which he was pinned down by another person who threatened to cut his throat with a broken beer bottle. Although initially he refused to discuss this matter, later he was prepared to do so. Ms Mullins thought this decision may have been sparked by the release from prison of the perpetrator.

11    Both Ms Mullins and Dr Hayes have been of the view that he is or has been a serious risk to himself and others. Dr Hayes regarded him, as at July 199, as a "significant risk for suicide". She considered that he needed psychological and psychiatric intervention as a matter of urgency.

12    In this respect the short report of Dr Andrew Walker is most material. On 12 June 2000 he wrote to Ms Mullins, he also recognising features of depression, as well as dissociative episodes related to previous trauma. Dr Walker noted that the applicant had formed a therapeutic relationship with Ms Mullins, and was therefore of the opinion that she would be best placed to report on his ongoing response to psycho-therapeutic management. He observed the importance of consistency in therapy. He thought it would be unfortunate if Ms Mullins therapeutic efforts were wasted by the applicant's arbitrary transfer.

13    The report of Dr Rikard-Bell was not in any significant respect different to those already reviewed.

14 The first challenge to the sentence concerns the refusal of the sentencing judge to order, pursuant to s 19 of the Act, that all or part of the sentence be served in a detention centre.

15 S19 is in the following terms:

"If a court sentences a person to whom this Division applies to a term of imprisonment in respect of an indictable offence, the court may, in respect of any person who is under the age of twenty-one years, make an order directing that the whole or any part of that term be served in a detention centre."

16    When he referred to this question the sentencing judge did so, on each occasion, in tandem with considering whether the applicant should be dealt with according to law. He said:

"The first question that I need to determine is whether in imposing this sentence I should deal with him according to law and whether any sentence should be served in a juvenile justice institution. He was born in May 1981 so he is now nineteen years of age and in January of next year when he is due to be released from his current custodial order he will be getting towards his twentieth birthday. He has been, so far, in a juvenile justice institution. The recommendation which was made last year when he was sentenced to the period of imprisonment of eighteen months minimum term was that it be served in a juvenile justice institution.
I take into account the very serious nature of this offence and I also take into account the fact that it was committed whilst on bail for another very serious offence and the whole of the prisoner's record. In my view, all of those factors lead to the conclusion that he should be dealt with according to law and without any recommendation that any sentence be served in a juvenile justice institution."

17 On behalf of the applicant it was submitted that his Honour could be seen to have been under what has been described as a common misapprehension about the effect of s19, that being that the effect of s19 is that, on attaining the age of twenty-one, an offender will be transferred from a detention centre to an adult gaol. That view was exposed as a misapprehension by this court in R v Karhani, unreported, 14 October 1998, per Greg James J with whom Levine J agreed. The extract from the remarks on sentence above would lend some support to the contention that his Honour held that (erroneous) view, but it is not entirely clear that he did. During the course of discussion, however, his Honour said this:

"...I was really directing my thinking at that if the sentence that I imposed is one that involves a non-parole period that is going to take him past his twenty-first birthday then he is going to be spending a part of the sentence, at the very least, in an adult institution and my understanding of it is that it's very much a matter for the authorities and very likely in the circumstances, bearing in mind his age in any event, to transfer him to an adult institution earlier."

18 This passage lends further support to the contention that his Honour misunderstood the power conferred on him by s 19. Counsel for the applicant then directed his Honour's attention to s 19 but the transcript which follows reveals that his Honour maintained the belief that the selection of the institution in which an offender aged over twenty-one serves a sentence is an administrative decision for the authorities concerned with the administration of Juvenile Justice and Corrective Services. A reading of s 19, and of Kaharni, shows this to be erroneous.

19 I am of the view that the extracts show that his Honour did operate under a misunderstanding about the effect of s19, but, in any event, if I were wrong about that, I would be of the view that, having regard to the subjective material to which I have referred, declining to make an order directing that the whole of the sentence be served in a detention centre was an erroneous exercise of discretion. In saying this I have particularly in mind the assessment of Dr Hayes which I have quoted, and the consistent fears that the applicant is at risk of self harm.

20    In my opinion the only order that was open in the circumstances was an order that the whole of any sentence be served in a detention centre.

21    The second matter argued on behalf of the applicant was that, because the non-parole period was accumulated, the result was a crushing sentence. The earliest the applicant would be eligible for release on parole, pursuant to the sentence imposed, is 26 January 2003. This is in respect of a sentence imposed in June 2000.

22 Reference was made to s6 of the Act which states the principles to be applied by a court exercising criminal jurisdiction with respect to children. However, it does not seem to me that s 6 contains anything that throws light upon the sentence appropriate to be imposed on the applicant in this case.

23    One thing that cannot be avoided is the extreme seriousness of the offence. The effect on the three victims should not be disregarded. Nor should the fact that it was committed whilst the applicant was on bail, and his lengthy criminal history is also a relevant factor.

24    Equally, the Fernando principles must not be overlooked and this is a case in which those principles are starkly prominent.

25    It is not, as has been said many times, the fact that the applicant is Aboriginal that brings the Fernando principles into play, it is the factual and historical background, the evidence of which I have already referred to.

26    In my view, significant factors in determining whether the sentence actually imposed was excessive are those I have mentioned, that is, the seriousness of the offence balanced against the very strong subjective circumstances.

27 For a young man, the sentence he will be required to serve is a lengthy one and while I am of the view that the non-parole period was, in any event, excessive, I am satisfied that the entire approach to sentencing was adversely coloured by the refusal to make a s19 order and, accordingly, it is appropriate that this Court re-sentence.

28    Against the possibility of re-sentence, this Court did receive some additional material. It is unnecessary to go into the detail of that material except to say that it discloses that, for a period of about eight weeks, the applicant was held in an adult prison.

29    This was to do with an additional charge that he faces, in respect of which bail was refused. He has, however, been returned to the Juvenile Justice Centre as of November of this year.

30    The order I propose, having regard particularly to the applicant’s youth and the length of the sentence is that leave to appeal be granted, the sentence imposed be quashed. In substitution the applicant be sentenced to imprisonment for a period of four years, with a non-parole period of fifteen months, the sentence to commence on 27 January 2001 and I would make an order directing that the whole of the sentence be served in a detention centre.

31 DOWD J: I agree. I would simply add that, at page 6 of his Honour’s remarks on sentence, his posited the two questions, that is s18 determination and the s19 determination, as one question and then answered both, the s18 examination and the s19 examination, as one question.

32    The factors involved in both of those determinations are quite different and disparate and should be dealt with separately and this is indicative of error.

33    I agree with the proposed orders.

34    SIMPSON J: The orders of the Court will be as I have proposed.

**********