Regina v HN

[1999] NSWCCA 72

CITATION:	Regina v HN [1999] NSWCCA 72 revised - 13/08/99
FILE NUMBER(S):	CCA 60192/98; 60506/98
HEARING DATE(S):	14 April 1999
JUDGMENT DATE:	14 April 1999
PARTIES :	Regina v HN
JUDGMENT OF:	Grove J at 1; Kirby J at 20

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0819; 98/11/0096
LOWER COURT JUDICIAL OFFICER:	McGuire DCJ; Blanch DC/CJ

COUNSEL:	L.M.B. Lamprati (Crown) A. Martin (Applicant)
SOLICITORS:	R. Gray (Crown) T.A. Murphy (Applicant)
CATCHWORDS:	Criminal Law and Procedure - Juvenile - Sentence According to Law - Serious Offences - High Degree of Culpability - Availability of Rehabilitation Programmes - No Error in Assessment of Penalty Manifest
DECISION:	Appeals dismissed

IN THE COURT OF
CRIMINAL APPEAL

60192/98
60506/98

GROVE J
KIRBY J

Wednesday 14 April 1999

REGINA v HN
REGINA v HN

JUDGMENT

CLOSED COURT

1 GROVE J: These are applications for leave to appeal in respect of sentences imposed in the District Court respectively by McGuire DCJ and Blanch DC/CJ.
2 It is important to bear in mind the jurisdiction of this Court specified by s 6(3) of the Criminal Appeal Act in that in an appeal against sentence the Court, if it is of opinion that some other sentence whether more or less severe is warranted in law should have been passed, shall quash the sentence and pass such other sentence in substitution therefor. This is a case in which that statutory prescription should be borne in mind.
3 The first offence in time occurred on 13 May 1997 at about 3.20pm on Tuesday 13 May 1997. The complainant, a school student had finished school at Canterbury and with another friend went to the railway station in order to travel home. They were sitting on a seat. Without any warning whatsoever and without engaging in conversation, the applicant placed his left arm around the complainant's head, firmly held it in a headlock. As he did this, with a sharp bladed knife, he stabbed the complainant in the back of his neck and demanded the complainant's wallet and keys. He firmly held the neck as well as the knife. The victim was in extreme pain and called out to release the grip and remove the knife. This and other calls for help were ignored by the applicant and went unanswered by bystanders.
4 The applicant maintained the knife in the wound for some five minutes and continued to demand the wallet and keys. In extreme pain and in desperation to stop his agony, the victim took hold of the blade of the knife, he attempted to twist the blade of the knife and suffered lacerations to his fingers and it was only when a train arrived on the platform that the grip was released.
5 Those circumstances are substantially confirmed by the applicant in a video taped interview held sometime after his arrest.
6 Whilst on bail in respect of that matter, the offence occurred in relation to which the applicant was dealt with by Blanch DC/CJ. On 16 December 1997 when the victim was walking at 1.30 in the afternoon in a street in Newtown, he was approached by the applicant who asked him what he had in his pocket. The applicant then stepped in front of the victim and demanded a wallet. He continued to block the victim's path and when that person attempted to pass him, the applicant struck him a blow to the right side of the head and told him that the next blow would knock him out. Unfortunately for the applicant, two plain clothes police constables were in the area and he was then arrested.
7 In respect of both of these matters, the applicant was dealt with according to law. It was mandatory for McGuire DCJ so to deal with the offence of being armed and assaulting with intent to rob with wounding. Blanch DC/CJ concluded that it would be quite artificial dealing with the applicant subsequently to seek to deal with him other than according to law.
8 The respective consequences were that McGuire DCJ sentenced the applicant to penal servitude consisting of a minimum term of three years and three months with an additional term of two years and six months. He directed however that the sentence was to be served in a juvenile detention centre until the applicant reached the age of twenty-one years. The applicant at the time of the offences was very young indeed, having been born on 10 February 1982.
9 When the applicant appeared before Blanch DC/CJ, his Honour gave express consideration as to whether concurrency of sentence was appropriate. He came to the conclusion that it was not. He imposed a sentence of penal servitude for six months which he accumulated upon the minimum term specified by McGuire DCJ. He then specified an additional term of two years and six months, that is to say, an additional term identical to that which was part of the sentence division ordered by McGuire DCJ. Blanch DC/CJ also ordered that the sentence upon the applicant was to be served in a juvenile justice centre.
10 Two issues have been raised substantially on behalf of the applicant in this Court. The second issue which it is convenient to deal with first and briefly, arises out of a remark by McGuire DCJ who was aware of the pending charge ultimately dealt with by Blanch DC/CJ that he thought it likely that any further sentence would be served concurrently. As I have recorded, Blanch DC/CJ directed that there be a relatively short cumulative sentence. Indeed his Honour pointed out that the sentence which he was imposing was much less than the offence deserved but he was taking into account the other sentence that the applicant was already serving. He noted that the offence with which he was dealing had been committed whilst on bail.
11 It was argued that if the applicant had been dealt with by the one judge it could be assumed that there would be a concurrency of sentence and that therefore, by accident as it were, the applicant had been exposed to and received an accumulation of sentence. I would reject that contention. It does not follow that, if McGuire DCJ was dealing with both matters for example, the total term imposed by him for both offences would have been as short as that which he imposed for the single offence.
12 In any event, no judge could bind the action of a subsequent judge obliged to deal independently with a matter regularly before him. As I have recounted, Blanch DC/CJ gave explicit attention to the question of concurrency of sentence and any view of McGuire DCJ was really irrelevant to the subsequent judge's independent exercise of sentencing discretion. I see no error in it and I would reject that argument.
13 The principal thrust of argument on behalf of the applicant has been that it is asserted that both judges were misinformed in relation to the availability of rehabilitative supervision by juvenile justice officers upon the applicant's potential release from custody. It is pointed out that if the applicant has reached the age of eighteen, he will be released from custody under the supervision of the adult probation and parole service, whereas there are remarks in their Honours' sentences which indicate that they specifically believed that he could be supervised by officers of the Juvenile Justice Department. Therefore it is argued that there is an unintended interruption to a continuing rehabilitative process about which their Honours had been misinformed.
14 It is apparent that the applicant will not be eligible for supervision if released after the age of eighteen by the Juvenile Justice officers. Nevertheless the misinformation to the respective judges does not in my view touch upon any error in their assessment of sentence. It is true that the courts, when dealing with young offenders, regard rehabilitation as a principal and most important aspect. Nevertheless that cannot be permitted to overwhelm the need for appropriate punishment. Still less does a particular form of available possible rehabilitative assistance operate so as to impute error to sentences which are otherwise well within the range of the sound exercise of discretion.
15 The short facts which I have related give some idea of the seriousness of these offences.
16 Part of the evidence before McGuire DCJ included the transcript of the interview with the applicant. It showed an absence of remorse and indeed an apparent failure to grasp the seriousness of what he had done. The effect upon the victim in relation to the first matter must have been extreme.
17 These sentences are manifestly far less than would have been imposed upon an adult offender upon similar charges.
18 I am entirely unpersuaded that any error has been demonstrated, nor am I persuaded that any other sentence should properly have been imposed. Therefore in terms of the duty expressed in s 6 of the Act, the appeal should be dismissed.
19 I would propose that the applications for leave to appeal be granted but in each instance the appeals be dismissed.
20 KIRBY J: I agree.
21 GROVE J: The orders of the Court therefore will be as I have proposed.

**********