Regina v JPW

[2006] NSWCCA 294

CITATION:	Regina v JPW [2006] NSWCCA 294
HEARING DATE(S):	1 September 2006
JUDGMENT OF:	Spigelman CJ at 33; McClellan CJ at CL at 34; Sully J at 1
EX TEMPORE JUDGMENT DATE:	09/01/2006
DECISION:	Crown appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
PARTIES:	Regina JPW
FILE NUMBER(S):	CCA 2006/964
COUNSEL:	P. Ingram - Crown T. Game SC - Respondent
SOLICITORS:	K. Kavanagh - Crown S. O'Connor - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/61/0065
LOWER COURT JUDICIAL OFFICER:	Kirkham DCJ

2006/964

SPIGELMAN CJ
McCLELLAN CJ at CL
SULLY J

1 September 2006

REGINA v JPW

NON-PUBLICATION ORDER RELATING TO THE NAME OF THE OFFENDER AND ANY PARTICULAR WHEREBY THE OFFENDER MAY BE IDENTIFIED

Judgment

1 SULLY J: Before the Court is a Crown appeal against what is asserted to have been the manifest inadequacy of a penalty imposed upon a particular juvenile offender to whom I shall refer only as JPW. There is to be no publication of the actual name of that offender or of any other material apt to identify him.

2 The background facts are straightforward.

3 On 16 September 2004 there was a fracas at a shopping complex in Orange. The fracas was triggered by an attempt on the part of a uniformed security guard, who was then employed at the shopping centre, to apprehend a young friend of the respondent, that young friend having been caught in the act of stealing goods from one of the shops in the shopping centre. The respondent was standing nearby when the fracas broke out. Closed circuit television coverage suggested that the respondent had watched for a period of about thirteen seconds and had then entered the fray in aid of his friend. In the course of so intervening, the respondent kicked the uniformed security guard to the head intending thereby to assist the friend to avoid apprehension by the guard.

4 What the respondent then had devastating consequences for the guard. He suffered severe facial and cranial injuries. He was hospitalised for three days in Orange and was then flown to Sydney and hospitalised for two days in the intensive care unit at Baulkham Hills Hospital and for a further eight days in the ordinary wards of that hospital. He was prescribed medication and he has been told that he may have to use medication for the remainder of his life. He has suffered ever since his discharge from hospital from a number of serious post traumatic disorders. They include, very understandably as I think, stress and anxiety, disturbed sleep patterns, some short term memory loss, recurring headaches, a sharply reduced capacity for sustained physical exertion and a deterioration in his temperament and in his capacity to deal normally with his family responsibilities and with his general social contacts and relationships.

5 The respondent was prosecuted upon an indictment containing two charges laid as alternatives. The first and more serious charge was one of having maliciously inflicted grievous bodily harm with intent to prevent lawful apprehension of the respondent’s friend. The second, and alternative, charge was one of having maliciously inflicted grievous bodily harm.

6 The former charge is one of a contravention of s 33 of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for twenty-five years. It is an offence embraced by the scheme of statutory non-parole periods that was inserted into the Crimes (Sentencing Procedure) Act 1999 (NSW) by the provisions of Division 1A of Part 4 of that Act, the relevant prescribed statutory non-parole period being one of imprisonment for seven years.

7 The respondent, upon his arraignment, pleaded not guilty to the s 33 charge and pleaded guilty to the s 35(1)(b) charge. The Crown refused to accept the plea of guilty in full discharge of the indictment and the respondent was put accordingly upon his trial by a jury. The jury found him guilty of the s 33 charge. In due course he stood for sentence for that offence. He was formally convicted and was thereupon dealt with pursuant to s 9 of the Crimes (Sentencing Procedure) Act. Sentence was formally deferred and the respondent’s release was ordered forthwith upon his entering into a bond to be of good behaviour for a period of three years commencing on 11 April 2006, the date of sentence. The bond requires the respondent to appear for sentence if called upon to do so by reason of any breach of any of the conditions of the bond. The other conditions of the bond as set by the sentencing Judge are:

(1) To be of good behaviour. This means, put simply, to refrain from committing any further offence great or small.

(2) To inform the relevant Court registry of any change of residential address and to do so within seven days of any particular such change.

(3) To accept the supervision and guidance of and to comply with all reasonable directions of the Probation and Parole Service. Such supervision is to continue for such a period as the Probation and Parole Service considers necessary. The requirement to obey reasonable directions is amplified further in the actual condition, but that degree of detail is not at present relevant. The same applies to the stipulated time and place of the first reporting to the Probation and Parole Service.

8 It is against the asserted inadequacy of this penalty that the Crown has brought the present appeal.

9 It is convenient to note at this point that the respondent was born on 8 March 1989. He was aged, therefore, fifteen and a half years as at the date of the offence, a little over seventeen years as at the date of sentence and he is aged as of today all but seventeen and a half years.

10 It is trite that the sentencing Judge had to formulate a penalty that brought into a reasonable overall balance both the objective criminality of the respondent’s s 33 offence and any demonstrated relevant subjective circumstances of the respondent’s individual situation.

11 As to objective criminality, it could not be sensibly gainsaid in my opinion that the respondent’s offence was a very serious one. The sentencing Judge, as I read his Honour’s remarks on sentence, thought that the objective criminality of the offence was mitigated by the age of the respondent and also by what his Honour saw as having been, “the spur of the moment reaction to what - (the respondent) - saw happening”.

12 Looking for the moment only at objective criminality, I would respectfully differ from his Honour on both counts. Age is not a cloak of convenience behind which a juvenile aged fifteen and a half years can occasion with malice and with unlawful intent, grievous bodily harm to another. To suggest otherwise sends an inappropriate message, and in my own view a dangerously inappropriate, message to the relevant juvenile age group. As to acting on “the spur of the moment”, it seems to me to be fair to say that the respondent might not have reflected for very long before joining in the fracas, but neither did he join in without any thought at all.

13 As to subjective circumstances, it can be allowed at once that there was placed before his Honour credible evidence, which his Honour was entitled to accept and did in fact accept, of particularly strong circumstances favourable to the respondent. To identify them and to identify with them the difficult sentencing exercise that they entailed, it suffices to quote from paragraph 26 of the remarks on sentence.

“I have a difficult sentencing task. I am to impose sentence on a juvenile offender who was a person of unblemished character for a serious offence which caused an innocent man who was performing the duties of his employment, substantial injuries which have left him with substantial disabilities, when one year six months have passed since the offence during which time the offender has matured, obtained employment, commenced an apprenticeship and has not committed another offence”.

14 Later in that paragraph, his Honour exposes as follows the essence of the process of reasoning which led his Honour to conclude that a s 9 bond struck the correct balance of objective criminality and of subjective circumstances.

“I consider that the rehabilitation of a juvenile offender is a major if not the paramount factor to be taken into account together with the other factors in determining an appropriate sentence. I consider that both the community and offender benefit from the rehabilitation of a juvenile offender. I realise the (the victim) has suffered substantially and will continue to do so but I cannot see that any good would be done by sentencing the offender to imprisonment albeit to be served in a juvenile detention centre. Therefore I intend to defer passing sentence on the offender”.

15 If the penalty chosen by his Honour is manifestly inadequate, the reason cannot be found, in my opinion, in what his Honour is recorded as actually having said in the quoted material. It seems to me that this case is in the end not really one of patent error, but rather one of latent error.

16 His Honour says at paragraph 24 of the remarks on sentence that, “General deterrence is important being something that cannot be ignored or undervalued”, a proposition that is with respect, impeccable. I would not go so far as to say that giving the present respondent a s 9 bond evidences on its face a simple ignoring of general deterrence but it seems to me to be an inescapable conclusion that the s 9 bond evidences on its face a serious undervaluing of that element.

17 On that basis alone, the Crown case ought in my opinion to succeed unless there is some powerful discretionary consideration to the contrary. I shall return presently to that aspect of the appeal. Before doing so there are three further matters calling for consideration.

18 First, his Honour concluded that the respondent’s case fell below the midrange point apt to attract the statutory minimum non-parole period of imprisonment for seven years. His Honour was required by the relevant statute to identify the factors that his Honour saw as justifying that conclusion, doing so by reference to and only to, the various aggravating and mitigating factors that are stipulated in s 21A of the Crimes (Sentencing Procedure) Act.

19 His Honour does not say so in terms, but I would read para 23 of the remarks on sentence as conveying, when read fairly in context, that his Honour could identify only one relevant aggravating factor of the fourteen such factors that are listed in s 21A(2): whereas his Honour could identify eight of the relevant mitigating factors of the thirteen such factors that are listed in s 21A(3).

20 In my respectful opinion his Honour was entitled to make those findings and to reason from them to the conclusion that a non-parole period of imprisonment for seven years could not be justified in the respondent’s particular case.

21 Secondly, that conclusion did not leave his Honour with a stark choice between some full time custodial sentence and a s 9 bond. A sentence of imprisonment to be served by way of periodic detention was certainly in my opinion, a legitimate sentencing option as was a sentence of imprisonment wholly suspended pursuant to the provisions of s 12 of the Crimes (Sentencing Procedure) Act. His Honour does not discuss these options in the remarks on sentence but his Honour’s judicial experience is such that I would not presume to infer that his Honour simply overlooked them. What I would say with all due respect is that it is not clear to me why his Honour, assuming that he adverted to those options decided to reject them in favour of the s 9 option.

22 Thirdly, it is trite that the framing of a proper sentence in a case which exhibits both serious objective criminality and weighty subjective considerations cannot allow the latter factors simply to overwhelm the criminality so that in terms of practical outcome that criminality is insufficiently recognised. In my opinion a fair reading overall of the remarks on sentence when matched with the practical outcome, indicates that error.

23 In my opinion therefore, the Crown appeal is entitled prima facie to succeed. As a matter of discretion I would not reflect that success in any form of sentence of full time custody. That is so because there is before the Court in connection with any re-sentencing a report dated yesterday from the relevant officers of the Department of Juvenile Justice. That report vouches for the fact that the respondent has complied not only with the bare letter, but more importantly with the spirit, of the conditions of his bond. It would be in my opinion wrong to send this respondent into full time custody thereby almost certainly undoing the ongoing rehabilitation to which he seems to be seriously committed.

24 In saying that, I acknowledge as I believe should be done frankly, that there are many people in the community, and by no means confined to the more overwrought elements in the mass media, who would take the view that the respondent ruined someone else’s life, and has no just grievance if his own life is ruined in its turn. To that view I would respond by saying simply that it will be a sad day, and a dangerous one, for all of us when that kind of vindictiveness replaces the principled objectivity that is rightly expected of the Courts, and emphatically so of the Courts of criminal jurisdiction.

25 There then remain three possible ways of dealing with this case. The first is to replace the bond with a sentence of imprisonment ordered to be served by way of periodic detention. The second is to replace the bond with a sentence of imprisonment wholly suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act. The third is to substitute for the present three year term of the bond, an extended term.

26 Periodic detention, assuming that it is available at all, has some practical problems in this case. It would require that there first be determined a sentence of imprisonment, no consideration being given until after the proper formulation of the sentence to the question whether the sentence either could or should be served in some other way than that of full time custody. Were a sentence properly determined to be one in excess of imprisonment for three years then periodic detention would in any event be unavailable. Assuming that a proper sentence did not exceed three years and that periodic detention was otherwise properly available in principle, then the Court would require a particular report as to the availability of the appropriate facilities. That would not take necessarily any extended time, but it would take some time, and the present appeal would have to be left in limbo until the report was to hand.

27 Even were the appropriate facilities in hand, there would remain the very real practical consideration that the administration of the periodic detention, something done wholly without reference back to any Court, could well entail the practical supervision of the respondent for a period much less than that set by this Court. There is the further consideration that the serving of even periodic detention could well bring this respondent back into the bad type of peer group from which he seems to have succeeded in detaching himself.

28 A suspended sentence has in my view some real advantages in the present case. It would not interfere peremptorily with the respondent’s ongoing rehabilitation; and it would send into the respondent’s peer group a message having some real sting in its tail. The downside is that a suspended sentence order cannot be made properly unless and until a proper sentence has been determined without reference initially to the question how the sentence is to be served and unless that sentence proves to be one not exceeding imprisonment for two years.

29 Were a sentence of two years to be now passed and then wholly suspended, the burden of the sentence would be wholly spent at the end of two years rather than at the end of three years as the current bond entails.

30 The expedient of substituting in the present bond a term greater than the current three years has also some superficial attraction. It would not be permissible under the terms of s 9 itself to substitute in the current bond a greater term than one of five years. I would not myself regard that level of substitution as merely tinkering, but I cannot see, as at present advised, what realistic improvement in supervision would be achieved. If three years of supervision and of required unblemished behaviour cannot effectively rehabilitate the respondent then a formal extension from three years to five years is in truth little, if anything, more than a cosmetic gesture.

31 I have found the resolution of this appeal extraordinarily difficult. I abhor any crime of violence, and my initial reaction was that in the respondent’s case a s 9 bond simply could not be allowed to stand. I continue to be of the view that the bond was inappropriately lenient. The question then becomes whether this Court, in the exercise of its own discretion should, in the events which have happened set it aside. For the reasons given, I am unpersuaded that the Court should so intervene.

32 I would dismiss the Crown appeal.

Addendum to Judgment of Sully J

My judgment as recorded above was delivered ex tempore. The short concurrence of the Chief Justice followed at once. I acknowledge the correctness of the point made by the Chief Justice in connection with s.66(1)(a) of the Crimes (Sentencing Procedure) Act . My principal judgment should be read down accordingly. I apprehend, however, that the basic reasoning of the principal judgment remains intact even after that reading down has been incorporated into it.

33 SPIGELMAN CJ: Subject to one observation I agree with Sully J, both with his reasons and with the order he proposes. My reservation is with respect to his Honour’s analysis of the periodic detention option. Pursuant to s 66(1)(a) of the Crimes (Sentencing Procedure) Act 1999, a periodic detention order may not be made with respect to a person under the age of eighteen years. Accordingly that option would not be available for that reason, in addition to the matters to which his Honour refers.

34 McCLELLAN CJ AT CL: I agree with Sully J and with the additional observations of the Chief Justice.

35 SPIGELMAN CJ: The order is as indicated by Sully J.

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