Regina v JCM

[2003] NSWCCA 151

CITATION:	Regina v JCM [2003] NSWCCA 151
HEARING DATE(S):	28 May 2003
JUDGMENT DATE:	28 May 2003
JUDGMENT OF:	James J at 1; Smart AJ at 2
DECISION:	(1) Leave to appeal against sentence granted (2) Appeal allowed, sentence quashed (3) In lieu of the sentence imposed the applicant is sentenced to imprisonment for three years commencing on 8 April 2002 with a non-parole period of twenty months expiring on 7 December 2003 on which date the applicant is to be released on parole.
CATCHWORDS:	Attempted armed robbery - parity - need to look at what each of two co-offenders did and culpability of each - incorrect assessment of facts and application of principle
LEGISLATION CITED:	Nil
CASES CITED:	Henry, 1999 46 NSWLR 346 Lowe v The Queen (1984) 154 CLR
PARTIES :	Regina v JCM
FILE NUMBER(S):	CCA 60077/03
COUNSEL:	(A) P M Strickland (C) D Frearson
SOLICITORS:	(A) P M Strickland (C) S E O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/1315
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

IN THE COURT OF
CRIMINAL APPEAL

60077/03

JAMES J

SMART AJ

Wednesday, 28 MAY 2003

Regina v JCM

CLOSED COURT

JUDGMENT

1. JAMES J: I call upon Smart AJ to give the first judgment.

2. SMART AJ: JCM, a juvenile, seeks leave to appeal against the asserted severity of a sentence of imprisonment of four years with a non-parole period of twenty months after being found guilty by a jury of an assault with attempt to rob whilst armed with a dangerous weapon, namely a shortened rifle. The maximum penalty for such an offence is twenty-five years. The sentence was challenged on the grounds of parity and being manifestly excessive.

3. The judge made the following findings:

"The charge arose out of a cowardly attack upon a young Nigerian man who was standing on the railway bridge at Fairfield railway station at about 11.30pm on Sunday 27 May 2001. He was approached by JCM’s co-offender, one TVC, who carried a knife and a shortened loaded firearm. The victim was threatened with both the knife and the rifle with the object of persuading him to part with his mobile phone. The victim resisted and was then approached by JCM who had been standing a short distance away monitoring the progress of the robbery and the movement of members of the public on the platforms below. JCM reinforced to the victim the threat made by TVC saying ‘Hand over the phone or I will shoot you’.

That was in fact the allegation made by the Crown at trial. JCM maintained at trial and maintains on sentence that he in fact said to the victim ‘Hand over the phone or he will shoot you’.

Despite this dispute on the facts the objective gravity of the offence is in my view hardly ameliorated by that distinction. The victim struggled with TVC and ultimately got the upper hand where upon JCM withdrew from the vicinity and ultimately made off. “

4. At the time of the offence the applicant was aged fifteen years ten months having been born on 13 July 1985 and TVC was aged 15 years three and a half months having been born on 9 February 1986. The applicant relied on the following extract from the summing up as a basis of the Crown case against him:

“The Crown brings the principal charge on the basis that the accused agreed with TVC and others to rob the victim and that when he participated in that robbery, this is the Crown case, he was aware that TVC was armed with a shortened rifle, that the accused was present, ready and willing to assist him in robbery and that he did assist in the robbery by threatening the victim and by keeping watch on TVC’s behalf while TVC was engaged in the robbery.”

5. The applicant also referred to portions of the evidence. The victim gave evidence that he was speaking to his girlfriend on his mobile phone when TVC said to him: ‘Man give me your phone’ and he, the victim, replied: ‘I am using it’ and kept talking on the phone. TVC then said: ‘Give it to me or I fucking stab you’ and pulled out a knife from the sleeve of his jacket and put it back. The victim remonstrated with TVC who said ‘Give me the phone or I shoot you’. TVC opened up his jacket and showed him ‘something that was hanging off his waist’. The victim said that when TVC showed him the gun he lifted it out and made the sound of clicking the gun. The victim said to TVC: ‘If you take the phone what am I going to using’. TVC called one of the two guys who were standing at the other end (of the bridge). The applicant walked up to them and said to the victim: ‘Man give him the phone, I fucking shoot you myself’. After the applicant said these words he went back to his position. The victim further remonstrated with TVC who said: ‘I don’t care just give me the fucking phone’. At this point TVC was holding the knife. The victim then went to give the phone to TVC. TVC reached out for the phone and then the victim kicked him. TVC chased him with the knife, the victim turned around before he came to the stairwell and confronted TVC. The victim reached out for the knife but grabbed the sharp end of the knife and his fingers were sliced. The victim said as the other three guys started to come towards him he screamed out: ‘If you come here I’ll kill all of you, all of you’. The other three males (including the applicant), ran away. The victim wrestled TVC to the ground, grabbed his gun and hit him. A security guard approached the victim and assuming that he was the attacker ordered him to drop the gun. In disgust the victim threw the gun on the ground and the gun discharged. The applicant told the police that he said to the victim: ‘Just give me the phone you now (sic) or else he’s going to shoot you’. In cross-examination the applicant stated that he said to the victim: ‘Just give him the phone or he’ll shoot you’.

6. The applicant also placed reliance on the following evidence which he gave at the trial:

(a) Whilst he was standing on the stairway leading from the platform to the bridge which joined the railway platforms, TVC approached him and said: ‘they - the guy - wants us to roll the guy on the bridge’. The first guy was a reference to a third man who accompanied the applicant and TVC. The second guy was the victim. The applicant stated that he told TVC: ‘I am not going to do it, if you want to do it you can do it yourself’.
(b) He did not want the victim’s phone as he had his own mobile phone with him that night.

(c) As to his motives:


“Q. Why did you go up to the victim and tell him, ‘give me the phone or he’ll shoot you?’
A. I was ..(not transcribable).. I was scared and I wanted to go home and...

Q. You were scared and you wanted to go home? A. Yes and - because like I - because like I, like I you know [TVC] is like friend and because I know I didn’t want like to look bad in front of him that’s why.

HER HONOUR: Q. You didn’t what, sorry, to look bad in front of [TVC].
A. Yeah like he made me feel bad in a way.

Q. Who did?
A. [TVC].

Q. So you didn’t want to look bad in front of [TVC] so you went up and said what you said to the victim?
A. Yeah because like I thought like he was really going to grab something and hit him the guy that’s why.

GASSICK: Q. You what, could you repeat that?
A. Because I thought he wanted to hit really wanted to hurt the guy that’s why I got, I thought like if I make him just give him the phone he would - he would just go something instead of just grabbing the guy or shooting him or something.

Q. You were concerned that [TVC] may in fact actually use that gun?
A. Yes.”

7. The applicant submitted that the judge had not stated whether she accepted or rejected his evidence on the foregoing matters. From the terms of the judge’s earlier remarks I would hold that she accepted the victim’s evidence that the applicant had stated he would shoot the victim. However in her view it made little difference if the applicant had said that TVC would shoot the victim. A threat was still being made. To the victim it did not matter much whether TVC or the applicant was going to do the shooting. The judge was trying to inject an element of realism into the consideration of the extent of the applicant’s criminality. Having regard to the way the Crown case was left to the jury the verdict of guilty involved the acceptance of the victim’s version of events. See, for example, SU 20 and 29.

8. The applicant also relied on the explanation he gave to the psychologist (Miss A Robilliard) of his motives:

“ [He] admitted that he approached and threatened the victim and provided two reasons for doing so. Firstly because TVC had placed so much pressure on him to become involved in the robbery, [he] felt that he would be considered ‘a dog’ if he did not participate and would risk losing a friend as a result. Secondly, [he] indicated that he was aware that TVC was armed and felt that my threatening the victim he was also warning him to comply or risk harm.”

9. The applicant submitted that the judge had neither accepted nor rejected his explanations. They were not convincing and did not assist the applicant except perhaps minimally. The psychologist has written that the applicant views his role in the offence as secondary to that of TVC. She has also written that the applicant:

“… admits to his involvement in the offence and [he] maintains that he had not intended to be involved but rather became involved at a later stage after finding himself at the scene of the robbery. [His] explanation for his involvement centres around his desire to fit in with his peers. …”

10. In his discussions with a juvenile justice officer the applicant admitted his involvement in the offence as detailed in the police facts.

Subjective features

11. The applicant was born in Peru. He is the elder of himself and his sister. He lived with his parents and his sister until his parents separated when he was aged about six years. He described his upbringing as normal and materially and emotionally stable. His mother brought him and his sister to Australia, the family arriving on 3 September 1996. He is now an Australian citizen. His mother had worked very hard to support the family and provide a home. She has undertaken full time employment which has until recently led to her absence from the family home up to seven days a week from early in the morning until late in the evening. A cousin, Susanna, who is some years older than the applicant, has provided a measure of supervision and support. The English language skills of the offender’s mother are limited and this has tended to place Susanna in a de facto parental role. The offender maintains a strong and close relationship with his mother.

12. The judge thought that the absence of parental supervision perhaps went some way towards explaining a tendency on the part of the offender to be easily led. This was coupled with a quiet submissive and unassertive personality and a difficulty with inter-personal relationships due to fear of rejection.

13. Objective testing by the psychologist placed the applicant’s intellectual functioning at the lower end of the average range. The applicant experienced difficulty in his early years in Australia owing to his isolation and lack of English language skills. He attended St John’s Park High School from year 7 to year 10 but was asked to leave because of fighting with other students. He transferred to Fairfield High School at the beginning of 2001. When he was placed in custody following this offence he ceased his formal schooling. However, he returned to the Canley Vale Tutorial Centre to complete the last term of 2001 but left in early 2002.

14. The judge noted that general deterrence and retribution were important in the present case. She paid special attention to the youth of the applicant. She took as a starting point, absent subjective factors, a term of four to five years, as laid down in Henry. She had regard to the judgment of this Court in TVC and to considerations of parity. She found that special circumstances existed in the applicant being a young person with no prior criminal history facing a full time custodial sentence for the first time. I agree that there were special circumstances for the reasons given by the judge. She noted that this Court thought that the early plea of guilty of TVC warranted a discount of twenty per cent.

Parity

15. TVC pleaded guilty of the offence at an early opportunity. He was sentenced in the District Court to imprisonment for four and a half years with a non-parole period of two years. This Court on appeal reduced his sentence to three years with a non-parole period of eighteen months. The Court held that insufficient allowance had been made for the youth of the offender, there being good prospects of rehabilitation. This was the error which enabled the Court to intervene.

16. The applicant concentrated on these passages from the judge’s remarks:

“Whilst the psychologist’s report, as I said, explains or rather attempts to explain the commission of this offence in the course of his association with TVC and whilst the offender’s counsel has in the course of submissions made on sentence stressed the fact the offender stands to be sentenced for his lesser role in the commission of the offence, I have been persuaded ultimately to treat the offender consistent with the principles of parity as equally liable for the commission of this offence as TVC. While it is true to say it was not the offender who approached the victim, it was not the offender who produced the knife or the firearm and it was not the offender who at least on the evidence before me can be said to have instigated the offence. The principle that participants in a joint criminal enterprise are equally” - then a word is left out but I would insert liable - “liable for the acts and declarations of the other participants is one that compels that result”. And, “There is very little to distinguish between the offender from TVC apart from the fact that TVC pleaded guilty and enjoyed the application of a discount which reflected that plea.”

Reference is also made to an observation of the judge in argument, namely:

“At the end of the day I don’t know that it matters all that much, does it? Because this is a joint criminal enterprise so you have to sheet home liability equally to those who participate”.

17. That comment followed on submissions from counsel for the applicant as to the different roles of TVC and the applicant. The applicant submitted that he was less culpable than TVC and played a lesser role in the events and that the judge’s approach was not sustainable on the evidence. I am persuaded that this is so. I have not overlooked the Crown’s submission that while the conduct of each was different, culpability was equal. I do not agree.

18. The applicant contended that the sentence evinces legal error relying on Lowe v The Queen (1984) 154 CLR 606. Lowe was a case of armed robbery of a service station by two co-offenders one of whom kept watch while the other carried out the robbery with a spray gun which was used in such a way to make it appear that it was a firearm. At page 609 Gibb CJ stated:

“The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should if other things are equal receive the same sentence, but other things are not always equal and such things as the age background and previous criminal history and general character of the offender and the part which he or she played in the commission of the offence have got be taken into account”.

19. Dawson J stated at page 623:

"Obviously, where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for”.

20. Mason J at page 614 and Brennan J at page 617 made similar statements or impliedly agreed with those statements.

21. The Crown submitted that, read in context, the judge’s comment regarding the principle of joint enterprise was not intended as a statement of universal application but was made with reference to the circumstances of this particular case, the principal circumstance being that both made a direct threat to the victim. The result was that the victim was confronted with the combined threat. The applicant’s threat was one of encouragement to the co-offender as well as intimidation regardless of suggested motivation.

22. The Crown submitted that Lowe’s case required a comparison of the conduct of each participant to be taken into account but it did not follow that any difference in conduct must necessarily affect the level of criminality in joint crimes. I agree. The applicant did not submit to the contrary.

23. While judicial comments have to be read in the light of the facts of the particular case, the judge does seem to be saying in the passage quoted that the general principle she has mentioned compels the appellant to be treated as equally liable for the offence. While it is true that the applicant came up to the victim and TVC on being summoned, made one threat and retired, TVC made a series of threats and produced both the knife and the gun in close proximity to the victim. The conduct of TVC was more aggressive and more menacing. He carried the knife and the shortened loaded firearm, displayed them to the victim and cocked the gun. TVC conducted the whole of the hold-up. The applicant’s role and culpability were of a lesser order.

24. As the judge noted, TVC instigated the offence, approached the victim, threatened the victim with the knife and then threatened to shoot the victim and inflicted violence on the victim. TVC called the applicant over. TVC managed and directed the proceedings on the evidence in this trial. I have not overlooked that in the remarks on sentence of Kinchington DCJ in the case of TVC, the factual basis was different and he did not hold that TVC was in fact the controller of the operation. This Court has to proceed on the evidence which has emerged in this case.

25. The applicant has established error. This is not a case where it could be said that no lesser sentence was warranted. There is a further point; it is not clear why, in respect of three months pre-sentence custody, the judge deducted this period from the non-parole period but not the sentence as a whole.

Sentence allegedly manifestly excessive

26. The applicant relied on the same arguments as he had advanced under his parity submissions. In view of the conclusion just reached it is unnecessary to deal with this second ground.

27. A difficult re-sentencing exercise arises. The subject offence was a very serious one. On the one hand the appellant pleaded not guilty and so is not entitled to a discount for an early plea. In TVC’s case this Court said that a discount of about twenty per cent was warranted. On the other hand the role and culpability of TVC were greater. Both TVC and the applicant had no criminal record. Both had supportive families and there appeared to be good prospects of rehabilitation. The applicant has returned to his studies in gaol. Overall both youths had favourable subjective features. On the hearing today the applicant has tendered very favourable reports from the gaol and educational authorities on his progress in gaol. He is pursuing his studies and has achieved good results. He seems to be endeavouring to equip himself for a future career.

28. The appropriate sentence for the applicant is one of imprisonment for three years but the sentence should be backdated by an additional two months twenty-three days which I would round off to three months as the judge did as to the non-parole period, being the time spent in custody from arrest until the applicant was granted and entered bail. The judge initially started with a non-parole period of two years.

29. The non-parole period of twenty-one months fixed by the judge was stated by her to include an allowance of three months for the time spent in custody prior to 8 July 2002. By shifting the date of commencement of the sentence back by three months, the applicant attains a further effective reduction in his non-parole period of that time. Additionally, I would reduce the non-parole period by a further month to twenty months. Effectively this results in the non-parole period being reduced by four months.

30. I propose the following orders:

(1) Leave to appeal against sentence granted.

(2) Appeal allowed sentence quashed.

(3) In lieu of the sentence imposed the applicant is sentenced to imprisonment for three years commencing on 8 April 2002 with a non-parole period of twenty months expiring on 7 December 2003 on which date the applicant is to be released on parole.

31. JAMES J: I agree with the judgment of Smart AJ. The orders of the Court will be as proposed by his Honour.

32. SMART AJ: Could you just check the maths?

33. STRICKLAND: In my submission that’s correct.

34. JAMES J: Mr Crown, you agree? Right. I repeat the orders of the Court will be as pronounced by Smart AJ.

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Last Modified: 06/05/2003