SB v The Queen

[2015] NSWCCA 31

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	SB v R [2015] NSWCCA 31
Hearing dates:	20 February 2015
Decision date:	09 March 2015
Before:	Hoeben CJ at CL at [1]; R A Hulme J at [2]; Davies J at [70]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal – appeal against sentence –take and detain child – reckless wounding – where offender under 18 at time of offences – where offender suffers from mild intellectual disability – offender dealt with according to law - proper regard had to offender’s mental condition – sentence not manifestly excessive – no error in reference to standard non-parole period
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Category:	Principal judgment
Parties:	SB (Applicant) Regina (Respondent)
Representation:	Counsel: Mr D Barrow (Applicant) Ms N Williams (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):	2013/154394
Decision under appeal	Court or tribunal: District Court Date of Decision: 21 February 2014 Before: Wells SC DCJ File Number(s): 2013/154394

Judgment

1. HOEBEN CJ at CL: I agree with R A Hulme J.

2. R A HULME J: SB (“the applicant”), who is a juvenile who cannot be identified because of the provisions of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), applies for leave to appeal in respect of sentences imposed upon him by her Honour Judge Wells SC in the District Court at Lismore on 21 February 2014.

3. The applicant pleaded guilty in the Local Court and was committed to the District Court for sentence in respect of an offence of take and detain child with the intention of removing and keeping the child from the lawful control of her parent, contrary to s 87(1) of the Crimes Act 1900 (NSW), and reckless wounding, contrary to s 35(4) of that Act. The maximum penalties for these offences are imprisonment for 10 years and 7 years respectively.

4. In sentencing the applicant for the first of these offences her Honour took into account, at the applicant’s request, six further offences listed on a Form 1 document. They were offences of assault and armed with intent to commit an indictable offence committed on 26 April 2013, and offences that were associated with the primary offence, namely armed with intent to commit an indictable offence, face blackened/disguised with intent to commit indictable offence, larceny and assault occasioning actual bodily harm committed on 17 May 2013.

5. The learned judge imposed a sentence of imprisonment for 3 years 9 months with a non-parole period of 2 years for the take and detain child offence and imprisonment for 1 year 6 months for the reckless wounding offence. Both sentences were specified to commence on 17 May 2013, the day of the applicant’s arrest.

Facts

6. The facts relating to the offences for which the applicant was sentenced are better understood in the context of some earlier offences. There was no dispute at the hearing of the application as to the facts in relation to any of these matters. I have drawn the following primarily from the written submissions of Ms N Williams, counsel for the Crown.

Ballina High School knife incident on 12 October 2011

7. On 11 October 2011 the applicant had an altercation with another student at school. He became upset and agitated. This was observed by the victim, the Deputy Principal, who calmed him down and contacted his carer. However, the applicant walked out and left the school grounds.

8. The applicant went home that night and, after having “words” with his carer, he packed a bag and left. He was later found by police and taken to another foster carer for the night.

9. The following morning the applicant returned to school. His carer had contacted the school and spoken with the Deputy Principal about the applicant’s actions the previous night, resulting in the Deputy Principal leaving his office to check on the applicant. He found the applicant exiting a classroom, slamming a door, and kicking bins as he walked away. The Deputy Principal tried to talk to him but he replied, “don’t fucking talk to me, I’m sick of school”. He walked away, “slamming doors open” as he left the building and then exited the school grounds.

10. Soon after this the Deputy Principal saw the applicant return to the school grounds and he was carrying a large kitchen knife. He was asked to stop but he continued across the oval carrying the knife in his right hand. He was following his brother and then left the school grounds before returning through a car park. He was again requested to stop, but would not, and he showed the Deputy Principal the knife blade which had some blood from his own hand on it. He then ran into a school building and walked towards a teacher with the knife. There were students in the classroom at the time. The Deputy Principal followed but the applicant turned to him, raised the knife, and told him, “get out or I’ll stab you”. The applicant proceeded to close some doors, he went down some stairs and again raised the knife towards the Deputy Principal. The police attended and arrested the applicant when he surrendered on the school oval. During the course of these events the school had to be placed into “lockdown”.

11. On 1 March 2012, the Ballina Children’s Court placed the applicant on probation for 18 months for the offences of common assault, harass/intimidate school staff member and custody of a knife at a school. He was subject to those probation orders at the time of the following events, including the index offences.

Incident at the applicant’s home on 26 April 2013

12. The victim in relation to this matter was the applicant’s older brother. They had not spoken to one another for 18 months but had recently rekindled their friendship. The brother and his two sons, aged 6 and 7, visited the applicant at his Ballina home on 26 April 2013.

13. That afternoon, when the victim went upstairs to run a bath for the children, he overheard the applicant speaking to the boys in the downstairs games room. The victim went downstairs and saw the boys sitting on lounges in front of the TV. He described the boys as “looking uncomfortable”. The brother sent the boys upstairs for their bath and asked the applicant if everything was alright. The applicant replied that he had asked the boys to show him their penises. The brother asked why, to which the applicant said that he just want to see. He confirmed that he had his own penis out when he was speaking to the boys.

14. The brother became enraged and lectured the applicant on his inappropriate behaviour. A heated argument ensued including a physical altercation. During the course of the argument the applicant repeatedly threatened to commit suicide. He then left the house and drove away but returned a short time later when the victim was upstairs in the bathroom with the children. He came up the stairs with what was described as a 30cm kitchen knife in his hand. He again threatened to commit suicide. The brother locked himself and the children in the bathroom but the applicant tried to kick the door down. His brother rang triple 0 as the applicant was attempting to kick the door down. He was yelling abuse and making threats. He left the house again shortly afterwards.

15. The applicant was charged with offences of assault and armed with intent to commit an indictable offence which were listed on a Form 1 document and taken into account at his request in sentencing for the first of the index offences. He was on bail for these matters when the following events occurred.

Facts relating to index offences

16. On the afternoon of 17 May 2013 the applicant drove to the Ballina Shopping Centre, leaving his car parked on the wrong side of the road. He was wearing a jumper with the hood pulled over his head and a white scarf covering his face from the eyes down (Form 1: face disguised with intent to commit an indictable offence).

17. He walked the length of the shopping centre and entered a supermarket and selected a large carving knife. He moved to different parts of the store and took off the wrapping. He left the supermarket holding the knife (Form 1: larceny), causing alarm among customers and shop assistants, many of whom were screaming and running away (Form 1: armed with intent to commit an indictable offence, namely assault). He made his way to a coin-operated children’s ride. The area was crowded with people at the time. The five year old female victim was on the ride with her two younger brothers. The mother stood directly beside the ride.

18. The applicant walked straight up to the children’s ride and, as the victim was getting out of the ride, he “aggressively took hold of her arm”. He had the knife pointed out towards persons nearby, including the victim’s mother and brothers. He violently dragged the child away with the knife held in front of him. The child was screaming and struggling to get free. Her shirt was half pulled off during the struggle.

19. A large crowd had gathered by this time. Many screamed at the applicant to release the child. At this stage the second victim, Mr Wayne Marriott, challenged the applicant to release the child but the applicant pointed the knife in his outstretched arm towards him, flicking it toward Mr Marriott as he moved closer to the applicant. At this point the child managed to break free and ran to a nearby witness. Mr Marriott moved in and took hold of the applicant’s arms and pushed him up against the counter of a kiosk. Mr Marriott was stabbed to the left hand during the ensuing struggle. Other witnesses moved in and assisted him to overpower the applicant and bring him to the ground. During this struggle Mr Marriott’s head collided with the display counter of the kiosk, causing a large contusion and laceration to his forehead. A significant amount of blood gushed from his wounds.

20. There were about ten people who assisted in gaining control of the applicant, disarming him and securing the knife. His hands were tied behind his back until the police arrived. He was handcuffed and led away but continued to yell and struggle whilst being escorted to the police vehicle.

21. The applicant was interviewed by police and told them that when he gets stressed and angry he blacks out. He claimed that he did not recall the incident and said that if he had known what he was doing, he would not have done it. He said that he felt regretful and would like to apologise to the entire community.

22. The agreed facts continued by indicating that as a result of the attack the young child was extremely distressed and traumatised. She sustained bruising to her arms where she was held (Form 1: assault occasioning actual bodily harm). Her mother and siblings were also extremely traumatised and distressed.

23. Mr Marriott received eight sutures to his forehead and sustained swelling and bruising as well. He also received one suture to his left hand.

24. The learned sentencing judge found that the offence involving the child was “above the mid-range of seriousness” and she found the wounding of Mr Marriott was “at the least at the very high end of recklessness”.

Personal circumstances of the applicant

25. The personal circumstances of the applicant were succinctly summarised in the written submissions for the Crown from which I draw the following.

26. The applicant was born in 1995 and was aged 17 ½ at the time of the offences. He was one of more than 12 siblings and half-siblings who had been abandoned many years before by their parents. His mother’s whereabouts were unknown and his father lived in Ballina. According to a Juvenile Justice Report, the whole family had been subjected to “an alcoholic father and an uncaring mother, who together inflicted physical abuse, chronic neglect, lack of supervision and domestic violence, thus resulting in [the applicant] being placed in the care of the minister”.

27. The applicant had lived with a carer, Ms Linda Marshall, for about 10 years. She gave evidence on his behalf at the sentence hearing.

28. Psychological testing in 2007 indicated that the applicant had a mild intellectual disability. Although he had good superficial verbal skills, it was reported that he had difficulty understanding underlying concepts, and was heavily reliant on structure and routine. This was particularly apparent in the evidence given by Ms Marshall who spoke of the importance of the applicant having boundaries which she provided for him when he lived in her home.

29. The applicant had an attraction to vocations that involved wearing uniforms and was said to have “role-played” in public as a member of these professions. Ms Marshall said that he always wanted to be a policeman, an ambulance officer or some type of authority figure. She described him as functioning intellectually akin to an 11-12 year old child.

30. More recent psychiatric examinations had suggested that the applicant had a cognitive disability at the borderline to mild level, but was not mentally ill.

31. Given some of the issues raised by the grounds of appeal it is worth referring in more detail to some of the reports that were before the District Court. The applicant was brought to the Lismore Adult Mental Health Unit two days after his arrest for the index offences. He was assessed by Dr Justine Hoey-Thompson who provided a report of 21 May 2013. Dr Hoey-Thompson noted the following under the heading “Impression”:

“A young man with serious offenses on the background of a traumatic childhood, low IQ, and documented poor frustration tolerance and previous violence. There are not clear psychotic or mood symptoms to explain the event. [The applicant] reports amnesia for the event. There is an element of inconsistency in his descriptions of memory loss and he has previously discussed the knife event at the school in 2011, and the recent incident of a sexual nature with minors with his psychologist, but he denied recollection of either event to me.”

32. Dr Hoey-Thompson made the following diagnosis: conduct disorder/oppositional defiant disorder and mild intellectual disability. She made a differential diagnosis of “dissociative disorder NOS” (not otherwise specified).

33. A report by Mr Simon DuBois, psychologist, dated 27 May 2013 was before the court. Mr DuBois had been counselling the applicant for a period of 18 months. His opinion is encapsulated in the following from his report:

“I believe these patterns of behaviour (social isolation, affect disregulation, inappropriate engagement with others, preoccupation with having a role of importance) are principally born from an inability to make meaningful relationships in the community either through education, work or informally with peers. This incapacity stems from the influences of a mild intellectual disability and exacerbated by poor family experiences as a child.”

34. Mr DuBois also discussed the applicant’s interest in “authority rule based roles”. In that context he said:

“I am also concerned that his interest/fascination in this area may encourage a preoccupation with weapons, and may be a motivator for his use of knives in situations where he is aggravated. Assessments are warranted to investigate this further.”

35. There was also a report by Dr John Kasinathan dated 21 June 2013 available to her Honour. Dr Kasinathan found that the applicant did not have a mental illness but did have an intellectual disability, diagnosed under DSM-5 as “mild intellectual disability”. The doctor expanded on this as follows:

“Specifically in the conceptual domain, [the applicant] had difficulties in arithmetic and complex reading. He displayed a concrete approach to certain issues, such as his anger issues. In the social domain, he displayed some immaturity and difficulty accurately perceiving social cues from others. His language tended to be more concrete than expected for age. His social judgement was immature and he presented as gullible. In the practical domain, he appeared to be functioning age-appropriately in personal care, though he likely needs some support with complex daily living tasks.”

36. Dr Kasinathan recommended that the applicant engage in comprehensive anger management counselling for at least 12 months. He considered that his cognitive limitations would not prohibit him from actively participating in anger management and violent offender counselling programs. He strongly recommended that the applicant be referred to a community justice program which is able to offer a much higher level of support and accommodation and supervision for young offenders with an intellectual disability in order to support them in the community and reduce the risk of re-offending.

Determinations of the sentencing judge

37. The learned judge referred to a number of matters bearing upon an assessment of the objective seriousness of the take and detain child offence. She referred to the very young age of the child (5) and that there was “some degree of rough handling, albeit mild”. She considered that the offence “would have been completely terrifying for the child, for her very young siblings and for her mother, as well as being so for members of the public, who were just going about their business shopping in a public place”. Her Honour also referred to aspects of the victim impact statement made by the child’s mother which indicated a significant degree of enduring and traumatic psychological consequence for her and all of her children. One reason for this was the fact that the offender was a stranger to the child, giving rise to a fear of strangers and public places.

38. Her Honour also had regard to the applicant having deliberately taken a weapon into a public place that was likely to be busy and likely to maximise the danger to others. She said while his motivation was not clear, “he must have known from the prior matter just how serious his actions were on this occasion”. She rejected his claim that he could not explain his actions as he had forgotten or was not aware of what he was doing.

39. Her Honour took into account that the offence was of short duration, but noted that it only stopped as a result of heroic intervention by members of the public, particularly Mr Marriott. In sum, she assessed this offence as being “above the mid-range” of objective seriousness.

40. The wounding of Mr Marriott was assessed as not deliberate but:

“at least at the very high end of recklessness, in that he armed himself with a large carving knife in a busy public place in the threatening way that he did. The wounds were not of the worst kind, but certainly much more than trivial. They were caused when Mr Marriott was only trying to calm the situation down and prevent making matters any worse than they already were for the offender.”

41. Her Honour referred to s 18(1) of the Children (Criminal Proceedings) Act which provides for offences of this type to be dealt with according to law or under the provisions of that Act. She determined on the former for reasons she specified:

“Firstly the offence of detaining a child is a serious offence, carrying a maximum penalty of 10 years as indicated. It is an objectively serious example of this type of offence. The wounding is a serious offence as indicated by the maximum penalty and the standard non-parole period.

Secondly, while not overlooking the offender’s age and his mild intellectual disability, he was not far short of 18 years of age when the offences were committed. Despite his mild intellectual disability, he has been otherwise progressing well.

Thirdly, he recently committed a very similar offence involving the use of a knife being wielded in a public place, a school, and putting at risk the safety of others. Despite his problems it would not have been lost on him just how serious that matter was.”

42. Her Honour found special circumstances for the purposes of s 19 of the Children (Criminal Proceedings) Act and ordered that the applicant serve his sentence as a juvenile offender and specified the following reasons:

“The reasons that such an order will be made are that he is vulnerable he has an intellectual disability and because of his very difficult early childhood years. He is also currently progressing well in terms of his education and other general behaviour and although they are not the sole consideration, his needs and his rehabilitation are best suited to the programmes that he is currently undertaking.”

43. Her Honour had regard to the greater emphasis placed on rehabilitation when a young person is dealt with under the Children (Criminal Proceedings) Act but considered that general and personal deterrence still applied. She added:

“They are moderated by his mild intellectual disability, but only to a limited extent. In this case there are adult-like features found in the serious objective factors of the offence, his prior record and the fact that he is approaching maturity.”

44. Finally, her Honour recorded that she had taken into account “the undoubted effect that his disadvantaged early life has had on his subsequent behaviour”; the pleas of guilty (and her Honour allowed a 25 per cent discount); his expression of remorse; and that he had been progressing well on remand in juvenile detention for the past 10 months.

Ground 1 - The sentencing judge erred in her assessment of the objective seriousness of the offending

45. It was submitted that it was erroneous for the judge to have taken into account in her assessment of the objective seriousness of the offences matters that were the subject of offences on the Form 1 document; for example, taking into account the mild rough handling of the child because that was encapsulated in the assault occasioning actual bodily harm offence. No authority was cited for this proposition which I consider to be untenable, particularly as there was no contention of the judge having erred in the manner in which she took the Form 1 offences into account.

46. Another asserted error was her Honour referring to the abduction of the child only ending through the intervention of members of the public, whereas it was an agreed fact that the child managed to free herself from the applicant’s grasp before he was restrained by the bystanders. To my mind, this is a distinction without a difference; Mr Marriott was moving towards the applicant and others were screaming at him to release the child when she broke free.

47. Finally, it was submitted to have been erroneous for her Honour to take into account the wound to Mr Marriott’s head when this was not directly caused by the applicant but resulted from his head having come into contact with a display counter as he endeavoured to restrain the applicant. The suggestion that the applicant should not bear responsibility for this is also untenable.

48. I note that Mr Barrow, counsel for the applicant at the hearing of the application, was not the author of the written submissions and made no oral submissions in support of this ground.

Ground 2 - The sentencing judge failed to have proper regard to the sentencing principles relating to mental illness and failed to give proper weight to the mental illness of the applicant when sentencing him

49. The submissions for the applicant accepted that the judge had regard to his mental condition. However, it was argued that she was, at least to some extent, dismissive of it; she was unduly swayed by her regard for his criminality that she failed to “afford proper weight” to it; there was very little moderation of the need for general deterrence; and she did not say that his moral culpability was reduced because there was a causal connection between his intellectual disability and the offending.

50. The various ways in which an offender’s mental or intellectual condition may bear upon sentence are well settled. They were conveniently summarised in the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] (citations omitted):

●   Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

●   It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

●   It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

●   It may reduce or eliminate the significance of specific deterrence.

●   Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.

51. The judge said nothing about the applicant’s moral culpability being reduced on account of a causal connection between the offending and his intellectual disability. If she had made such a finding, it would have permitted a reduction in the need for denunciation of his conduct. But the judge said nothing about denunciation either.

52. It was appropriate for the judge to reduce the emphasis to be given to general deterrence. She said this would only be to “a limited extent” but precisely how much affect this had on the sentence is beyond calculation. She also said the same about personal deterrence, but that is a matter of some controversy given the applicant’s history of similar offending.

53. Her Honour said nothing about protection of society. She would have been well-justified in taking into account this countervailing matter given the applicant’s history of offending and the escalating dangerousness of his conduct. (And see the concern expressed by Mr Dubois in the extract from his report above (at [34].)

54. The complaint about her Honour being dismissive related to something she said about the applicant’s intellectual disability being “mild” during the course of submissions on sentence. The applicant’s solicitor immediately reminded her of what the High Court said in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [50] about the significance of a mild intellectual disability. Her Honour thereafter (during submissions and in her sentencing judgment) said nothing to indicate she was at all dismissive.

55. Whether the judge gave inadequate weight to some mitigating aspects relevant to the applicant’s mental condition, or excessive weight to aspects pointing in the opposite direction, is only capable of discernment by a consideration of the sentence itself. There is no misstatement of sentencing principle in anything her Honour said and, having regard to the submissions that were made to her, I would not be prepared to consider that she was not mindful of any of the relevant considerations.

56. I would reject this ground.

Ground 3 - The sentence is manifestly excessive

57. The written submissions for the applicant contended that the judge recognised the significant subjective features: young age; difficult early home life; intellectual disability; expressions of remorse; and demonstrated rehabilitation over the remand period. However, it was contended that she allowed her view of the objective seriousness of the offending to “completely overshadow” these matters.

58. It was also contended that the sentencing statistics maintained by the Judicial Commission of NSW supported a conclusion that the sentences for each offence were manifestly excessive.

59. The applicant’s primary contention is really concerned with the weight that was given to his subjective case. He does not contend that the judge failed to take into account any relevant consideration.

60. The statistical analysis does not carry the ground either. There were only eight cases in the database for the take and detain child offence, with no information as to the congeries of facts in any of them. And the analysis for the reckless wounding offence is of passing interest at best, given the sentence for that offence was entirely subsumed within the other sentence.

61. I fully acknowledge the sentiment in Mr Barrow’s submission to the Court that “the incarceration of an intellectually disabled youth is an unpalatable prospect”. However, this case required the imposition of a significant sentence of imprisonment notwithstanding, and despite the applicant’s troubled background. The applicant has not been able to successfully challenge the judge’s assessment that the take and detain child offence was above the mid-range of objective seriousness. And, whilst some moderation was required in relation to the applicant’s intellectual disability and his background, there was the countervailing concern for protection of the community given this was the third occasion that he had engaged in threatening and dangerous behaviour with a potentially lethal weapon.

62. I am not persuaded that the individual sentences are manifestly excessive. Moreover, even if I were persuaded that the sentence for the detain child offence was excessive and should be reduced, a principled approach in resentencing would warrant some accumulation to reflect the fact that the offences were concerned with different victims. The overall result would not be less, and potentially could be more.

63. I would reject this ground.

Ground 4 - The sentencing judge erred by taking the standard non-parole period for the offence of reckless wounding into account: (a) when deciding that the applicant would be dealt with according to law and (b) when sentencing the applicant for the reckless wounding offence

64. Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides for standard non-parole periods to be prescribed for offences. Reckless wounding is one such offence and the standard non-parole period is 3 years (the maximum penalty being 7 years). However, s 54D(3) provides that Div 1A does not apply in sentencing an offender who was under the age of 18 at the time of the offence.

65. The judge twice referred to there being a standard non-parole period prescribed for the offence of reckless wounding. The first reference appeared in the first sentence of her judgment:

“The young person … entered pleas of guilty to an offence of detaining a child with intent to remove child from parental control, (s 87(1) Crimes Act 1900, maximum penalty 10 years) and a charge of reckless wounding, (s 35(4) Crimes Act, maximum penalty seven years with a three year standard non-parole period).”

66. The second reference appeared in the passage where her Honour set out her reasons for dealing with the matter according to law: see above at [41].

67. At no stage did her Honour indicate that she was taking the standard non-parole period into account in the manner indicated in Muldrock v The Queen; that is, as a benchmark or guidepost. I am not persuaded that she had inappropriate regard to it at all. The first reference to it was really a formulaic introductory sentence in a sentencing judgment. The second reference was to explain how serious, in a general sense, Parliament regards the offence of reckless wounding. It was not to indicate the seriousness of the offence at hand. Indeed, counsel for the applicant conceded that he could take no issue with her Honour’s statement: “The wounding is a serious offence”.

68. This ground is of no practical bearing in any event for two reasons. First, the sentence for the reckless wounding was shorter and entirely subsumed within the sentence for the take and detain child offence. In other words, it had no operative significance upon the overall sentencing disposition. Secondly, the sentence for the reckless wounding has expired, so even if this Court were to find error and reduce it there would be no practical effect.

Orders

69. I propose the following orders:

1.   Leave to appeal granted.

2.   Appeal dismissed.

70. DAVIES J: I agree with R A Hulme J.

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Decision last updated: 09 March 2015