Regina v R.A.F.

[2000] NSWSC 672

CITATION:	Regina v R.A.F. [2000] NSWSC 672
FILE NUMBER(S):	SC 70079/98
HEARING DATE(S):	18/06/99 23/06/99 5/05/2000 19/05/2000 26/05/2000 22/06/2000 4/07/2000
JUDGMENT DATE:	4 July 2000
PARTIES :	Regina R.A.F.
JUDGMENT OF:	Sully J

COUNSEL :	T. Macintosh - Crown P. Winch - R.A.F.
SOLICITORS:	S. E. O'Connor - Crown Legal Aid Commission of NSW - RAF
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987
DECISION:	Sentenced to imprisonment for 2 years and 37 weeks to date from 4/7/00. Fixed by reason of special circumstances non-parole period of 1 year and 11 weeks to date from 4/7/00; Order pursuant to s.19 of the Children (Criminal Proceedings) Act that the whole of the sentence be served in a detention centre.

SUPREME COURT OF
NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

4 July 2000

70079/98 - REGINA v R.A.F

ON SENTENCE

1 HIS HONOUR: Before the Court is a young person, RAF, with whom the Court dealt initially on 23 June 1999. On that occasion the Court made an order pursuant to s 558 of the Crimes Act 1900 (New South Wales) that the young person be released upon her entering into a recognizance particularly conditioned. That penalty was imposed in respect of an offence admitted by the young person of having been an accessory after the fact to a murder. 2 On 23 June 1999 the Court published formally written remarks on sentence. They speak for themselves as to the nature and the incidents of the murder, and of the accessorial offence of the young person; and of the considerations which persuaded the Court to grant the recognizance in lieu of a full-time custodial sentence. 3 For a short time after 23 June 1999 the young person co-operated in the ways required of her by the conditions of the recognizance. Sadly, she did not persevere in that course of conduct. Her failures to comply with the conditions of her recognizance caused her to be formally breached, and she was brought before this Court on 26 May of this year. The recognizance was revoked, and she was formally convicted. 4 The further consideration of proceedings in respect of the said conviction were adjourned to 23 March 2001, and the young person was granted, pursuant to s 11(1) of the then recently enacted Crimes (Sentencing Procedure) Act 1999, bail conditioned in ways which are set out in the file copy of the judgment formally delivered on 26 May. 5 It is to be observed that the Court took that course in May last year essentially because Major Harman of the Salvation Army, and Mrs Christine Latu, a Juvenile Justice officer principally concerned in the past with the young person, had gone to a great deal of trouble in order to arrange a full-time residential rehabilitation programme for the young person. Once again, sadly, the young person did not take proper advantage of that opportunity. Her breaches in that regard are what have brought her back before the Court today. 6 Today the Court has received and admitted and marked as Exhibit 1 on sentence three reports. One of them is a very lengthy report provided by Dr C.A. Canaris. That report canvasses from the point of view of a specialist forensic psychiatrist the considerations which might be thought to explain the past behaviour of the young person and to give reliable guidance as to what ought now to be done in connection with her case. 7 The appropriate starting point is a reminder that the young person now stands for sentence not by way of punishment for her breaches earlier referred to, but by way of punishment for the principal offence to which she pleaded guilty in 1999. That sentence has to be settled in accordance with the ordinary sentencing principles. That is to say, it has to be settled in a way which brings to proper account all relevant objective and subjective matters. 8 The relevant objective matters seem to me to be as follows: 9 The murder in question was a particularly callous crime. Its background and incidents are sufficiently described in the remarks on sentence delivered on 23 June 1999 and need not now be repeated in detail. Granting, as must of course be done, that there are important questions of degree properly to be considered in connection with accessorial offences, it is, I think, important to make clearly and with a proper emphasis the point that any deliberate acts designed to suppress the prompt bringing to justice of a murder constitute themselves a serious breach of public order and of public justice. No doubt those considerations of high public policy inform the view of the Legislature, as expressed in the relevant provisions of the Crimes Act, that the statutory maximum penalty for the offence of being an accessory after the fact to a murder is a sentence of imprisonment for 25 years. 10 In the present particular case it has to be acknowledged that the young person's offending behaviour falls within a small compass which is adequately described in the earlier remarks on sentence and which need not now be repeated. It could not fairly be said that the young person's offence is by any means the worst kind of case of the offence in question; but even so, and as I have said, it must be viewed objectively as a serious breach of public order and of public justice. 11 The relevant subjective matters are put simply:

(1) The youth of the young person. She is now aged 18 as of the first of this month.

(2) She has an infant son named Andrew Jessup who is now aged 18 months. The young person seems to have a genuine maternal concern for the infant; and some proper opportunity to continue in her natural nurturing role in connection with the infant's development seems to offer, on the basis of the available evidence, a real vehicle for the future rehabilitation of the young person.

(3) The young person has had in the past, beyond doubt, a serious drug abuse problem. It is very difficult to judge to what extent she has really bested that problem. I think the best that can be said on the available evidence is that there is reason to think that she wishes to keep on top of the problem; and that given some proper and appropriately structured, support and encouragement there is reason to think that she can, in fact, break completely from that habit.

4) The young person's general and social history as it appears from the very careful and thorough canvass made by Dr Canaris makes sad reading. It is not necessary, I think, to canvass the fine detail of the history as set out in Dr Canaris' report. It suffices to say that I see no reason why I should not accept what is there stated, and I do accept it.

12 The thrust of Dr Canaris' report, as I have read and understood it, is that, particular drug related problems apart, there is reason to think that the young person, if given the kind of structured and appropriate support of which I have earlier spoken, can be in a more general sense rehabilitated back into the general community as a good and useful member of it. It need hardly be said that it is in the interests of the community as well as in the interests of the young person herself and of her little son that that should happen, if it is at all possible. 13 In attempting to bring the forgoing objective and subjective matters into just and sensible present balance it is useful, I think, to restate in such a case as the present one the proposition, well-established by authority in the Court of Appeal, that sentencing is essentially a process that involves a combination of experience and intuitive judgment, and that it is not a process which lends itself either in its exercise, or in its subsequent analysis, to any bare mathematical or arithmetical approach. That proposition remains generally true notwithstanding that the giving of effect to it in such a case as the present one involves a serious attempt to give effect to the principles of public policy which are specified in s 6 of the Children (Criminal Proceedings) Act 1987. I have in mind in the present case what is said in para (c) of s 6. 14 I have come to the view that this is a case in which justice would be done if a head sentence of three years was set and then divided equally as between a non-parole period and a period during which the young person might be entitled to parole. Such an apportionment is not permissible in the absence of a finding of special circumstances. I do not hesitate to find them; and I base the finding in essence upon what is said in Dr Canaris' report to which I have more than once already referred. If what is said in that report is broadly accepted, then it could not be sensibly disputed, as it seems to me, that this young person requires, if ever an offender did, an extended period of post-custodial supervision, support and encouragement in order to maximise the prospects of her complete rehabilitation back into the general community. 15 It would be prudent, I think, to note, given the regime established by the Crimes (Sentencing Procedure) Act 1999, that I have given consideration as required by various provisions of the Act to the appropriateness of imposing in the present case a sentence of some other kind than a sentence of full-time custody. Given the history of this matter as I have earlier narrated it, I have no doubt that this is a case in which it would be wholly inappropriate to deal with the present particular offender otherwise than by some properly principled sentence of full-time custody. 16 I have been informed that the young person has been in custody in connection with the offence for which she is now to be sentenced for a period of three months and two weeks, which I will treat as 15 weeks. She is, of course, entitled to credit for that period already served in relevant custody. To give her that credit entails the reduction of the proposed head sentence of three years to a sentence of two years and 37 weeks, which I will date so as to commence on and from today. A similar adjustment must be made for the proposed non-parole period and that adjustment will entail its reduction from one year and 26 weeks to one year and 11 weeks, which period also I will date so as to commence today. 17 Please stand up. In connection with the offence which you pleaded guilty to of which you have been convicted, you are sentenced to imprisonment for two years and 37 weeks to commence today. 18 I fix a non-parole, that is to say, a minimum period which you must serve, of one year and 11 weeks, which I also will date from today. 19 I order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that the whole of the sentence imposed for the present case is to be served in a detention centre. 20 I direct that the Registrar of the Court provide urgently to the Director-General of Juvenile Justice a copy of Dr Canaris' report of 3 July 2000. 21 I make the following recommendations to the Director-General:-

(1) That effect be given, if at all possible, to the s 19 order by enabling the young person to serve her non-parole period at the Yasmar Detention Centre.
(2) That a copy of the report of Dr Canaris be kept at all times with her custodial file.
(3) That she be afforded every opportunity consistent with proper prisoner discipline and administration to continue her education and to take advantage of such other counselling and support services as are detailed in Dr Canaris' report.
(4) That she be afforded every opportunity consistent with proper prisoner discipline and administration to have regular maternal access to her infant son Andrew Jessup.

22   The exhibits may be returned.

Is there anything else that you want to be heard on, Mr Winch?
WINCH No, nothing for me, thank you, your Honour.
McINTOSH: Just one very brief matter, for abundant caution. If your Honour was minded to revoke the order that the young person is to be brought back before the Court on 23 March. That is essentially an order which is still extant.

HIS HONOUR: For more abundant caution, I formally vacate the order made on 26 May last for the attendance before the Court on 23 March 2001 of the young person.

I formally revoke as well the conditions of bail that were granted on that earlier occasion.

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Last Modified: 09/26/2000