New South Wales Court of Criminal Appeal CITATION : Regina v F.F. [2000] NSWCCA 493 FILE NUMBER(S) : CCA 60229/00 HEARING DATE(S) : 24/11/00 JUDGMENT DATE : 24 November 2000 PARTIES : Regina v F.F. JUDGMENT OF : Barr J at 43; Carruthers AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/71/0010 LOWER COURT JUDICIAL Freeman DCJ OFFICER : COUNSEL : (Applicant): J Manuell (Crown): P Hock SOLICITORS : (Applicant): S J Humphreys (Crown): S E O'Connor CATCHWORDS : Sentencing - severity appeal - juvenile - whether judge erred in determining that the matter should be dealt with according to law. Crimes Act 1900 LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 Children's (Detention Centres) Act Sentencing Act 1989 R v WKR (1993) 32 NSWLR 447 R v GDP (1991) 53 A Crim R 112 Wilcox (CCA, unreported, 15 August 1979) Bellavia (CCA, unreported, 16 August, 1980) CASES CITED: Broad (CCA, unreported, 30 March 1984) C, S & T (CCA, unreported, 12 October 1989) R v Crombie [1999] NSWCCA 297 Elomar [2000] NSWCCA 431 House v The King (1936) 55 CLR 499 DECISION : See paragraph 42 IN THE COURT OF CRIMINAL APPEAL 60229/00 BARR J CARRUTHERS AJ Friday 24 November 2000 REGINA v FF JUDGMENT 1 CARRUTHERS AJ: FF seeks leave to appeal against sentences imposed upon her at the Griffith District Court by his Honour Judge Freeman on 6 April 2000. 2 On 5 October 1999, the applicant was arraigned upon an indictment containing two counts. The first was one of causing a poison to be taken by her mother (AHF) with intent to murder under s 27 of the Crimes Act 1900, as amended (the Act) and the second was an alternative count of maliciously causing to be taken by AHF certain poison so as to endanger her life under s 39 of the Act. 3 The applicant pleaded not guilty to the first count but guilty to the second count and the Crown accepted that plea in full satisfaction of the indictment. The maximum penalty prescribed for an offence under s 39 is imprisonment for ten years. 4 The applicant was born on 27 August 1983. His Honour sentenced the applicant to imprisonment for four and a half years with a non-parole period of twelve months. Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987, his Honour directed that the sentence be served in a detention centre. As the applicant was under the age of eighteen years, she was a child within the meaning of that last mentioned Act. 5 The facts as presented to his Honour were somewhat remarkable and it is convenient to set out the objective facts in the form set out in the facts sheet tendered by consent to his Honour: "It is alleged that on the evening of the 15th of August 1998, the juvenile spoke with her young sister indicating that she was 'going to poison mum'. The next morning the juvenile went to the rear shed and took a container of Hortico brand Ant Killer Dust which contains the chemical Diazinon. The container is marked with the word 'Poison' and contains a number of warnings on its rear concerning its usage and First Aid. The juvenile then took the container into her bedroom with the intention of poisoning her mother with it. A Breville Sandwich Toaster was brought from the kitchen area into the bedroom. At the time the juvenile's friend and her 13 year old sister were present. The juvenile then made a sandwich by putting butter and cheese on it. She then put the poison Ant Killer Dust on top of the cheese and spread it out. The juvenile then cooked the sandwich and checked to see whether or not the poison was visible or not. The juvenile summonsed her mother (AF) into the bedroom area and offered the poison sandwich along with two uncontaminated sandwiches to her mother who accepted the offer taking all the sandwiches out of the room and consuming them. It is alleged that after her mother had consumed the sandwiches that the juvenile then made another sandwich containing poison (Ant Killer Dust) in the Breville Toaster. This sandwich was given to her sister to take to her mother. The sister was aware of what was in the sandwich and threw it in the rubbish bin. The juvenile called the mother back into the bedroom and inquired whether she had finished the sandwiches. The juvenile and her friend laughed and both stated, 'I wonder whether she will drop down?' The juvenile attended the Leeton Police Station in company with an officer from the Department of Community Services on the afternoon of the 1st of September 1998. An ERISP interview was conducted with her in which she made full admissions in relation to the offence. She stated that she poisoned her mother with the intention of killing her. She further indicated that she was of the opinion that the poison would kill her mother when consumed. She expected her mother to fall down and die. When questioned concerning her motive she stated that she just wanted mum gone and that giving her poison was better than slashing her throat. When her mother didn't collapse, she states that she had conversation with her friend in relation to other poisons. She returned to the shed and brought back to the bedroom a bottle of 'Jacobsons' brand Fly Trap Liquid Lure containing Pseudomonas with the intention to further poison her mother. She states that her friend then poured this liquid into a jug of Coca Cola however it appeared to go milky. A glass was given to her mother however she didn't drink it and left the room. She was subsequently charged with the matter now before the Court." 6 It is relevant to note that the s 39 offence of using poison, et cetera, so as to endanger life is not a "serious children's indictable offence" as defined by s 3 of the Children (Criminal Proceedings) Act 1987. Therefore, as the applicant pleaded guilty to the offence in the District Court, his Honour Judge Freeman had a discretion to deal with the applicant according to law or according to the provisions of the Children (Criminal Proceedings) Act: see ss 16 and 18 of that Act. The alternative to dealing with the matter according to law would have been for his Honour to have dealt with the matter in accordance with the regime set out in Division 4 of Part 3 of that Act which carries with it the alternatives which would have been available had the applicant been dealt with summarily by the specialist jurisdiction of the Children's Court. 7 At the hearing before Judge Freeman, the applicant was represented by Mr Davidge, solicitor of Griffith. His Honour expressed his reasons for dealing with the applicant according to law in the following passage: "The offence of maliciously causing a poison to be taken so as to endanger life is obviously a serious one. I would identify the relationship between offender and victim as being an aggravating element so as to pitch this offence towards the higher end of the scale of seriousness of crimes embraced by that section. It would seem to me that so serious is the offence and so unremorseful is the offender that the appropriate course to adopt is to deal with this matter at law. I am so urged by the Crown and not seriously dissuaded by Mr Davidge. Thus we have a grave example of a serious crime but committed by an offender who was then aged 14, almost 15." 8 It is also convenient to note that s 6 of the Children (Criminal Proceedings) Act sets out in paragraphs (a) to (e) principles to which a court, in exercising criminal jurisdiction with respect to children, shall have regard. 9 Counsel for the applicant in this Court contends in her forceful, careful and helpful submissions that his Honour erred in exercising his discretion to deal with the applicant according to law. These forceful submissions obviously contrasted with those put to the learned sentencing Judge on behalf of the applicant as is obvious from the passage from his Honour's remarks on sentence to which I have earlier made reference. 10 Ms Manuell, on behalf of the applicant, submitted that it was not apparent from his Honour's remarks on sentence that he had regard to the principles contained in s 6. In this respect, she drew our attention to the following passage from the judgment of Sully J, sitting with Hunt CJ at CL and Campbell J in R v WKR (1993) 32 NSWLR 447 at 459-460. In that case, after referring to paragraphs (b) and (e) of s 6, Sully J said: "These 'principles' strengthen me in the view to which I would have been inclined to come without such instruction, namely that the threshold discretion which arises under section 18(1) of the Criminal Proceedings Act is to be exercised upon the basis of a fair and objective view of the true level of culpability - or, as I would prefer to say, of personal responsibility - of the offender." 11 His Honour went on to say: "If in a particular case a crime has been committed and it is a crime which is, in its nature and incidents, an adult crime rather than a crime which can be conceptualised sensibly as arising from the 'defendant's state of dependency and immaturity' then that factor is, in my opinion, strong warrant for the exercise of the relevant discretion in favour of dealing with the offender according to law." 12 For the sake of completeness, I set out paragraphs (b) and (e) of s 6. Paragraph (b) provides that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance and (e) provides that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind. 13 Ms Manuell submitted that this passage draws a distinction between what can be conveniently categorised as an adult crime and what can be conveniently categorised as a child's crime. She submitted that the evidence before Judge Freeman demonstrated that this was, indeed, a child's crime and not an adult's crime and, indeed, went so far as to submit that, on one view, it was a childish prank that went wrong. 14 With regard to paragraph (b), Ms Manuell submitted that the evidence in the subject matter demonstrated on the part of the applicant a high state of dependency and immaturity which would require guidance and assistance. There was also evidence that, despite the objective seriousness of the subject offence, the applicant demonstrated a remarkable emotional detachment during the course of her interview with the investigating police. 15 The lay and expert evidence, it was submitted, demonstrated that the applicant had a difficult relationship with her mother from birth, her mother suffering at various stages of the applicant's life from neurotic and psychotic illnesses. This, it was said, caused the mother to act inappropriately towards the applicant which caused a lack of bonding between them which compromised the applicant's emotional and personality development. 16 There was expert evidence that the applicant may have been suffering at the relevant time from an underlying clinical disorder which was being masked, despite her tender age, by abuse of alcohol and drugs. 17 Despite the submissions that have been put to us in this regard, I am firmly of the view that this crime for which the applicant came before Judge Freeman for sentence must necessarily be categorised as an adult crime and that his Honour was correct in so categorising it, albeit they are not the precise words that his Honour used. His Honour made it perfectly clear that he believed the matter to be objectively a very serious one indeed. 18 It was submitted that his Honour erred in the passage which I have quoted above in referring to a lack of remorse on the part of the applicant. It was submitted that there was evidence inherent in the factual situation which demonstrated, even at that stage, a lack of remorse and that it was the applicant who brought "the escapade" to a halt. 19 However, bearing in mind the totality of the material that was before his Honour, both of a lay and a factual nature, I have no hesitation in concluding that it was clearly open to his Honour to have made the reference to the applicant being "so unremorseful". Indeed, I note in at least one of the expert reports upon which the applicant is relying, a reference by the author of that report to the evidence demonstrating a lack of remorse on the part of the applicant. Thus there is an independent opinion to that effect. 20 Ms Manuell also submitted that one should look at the question of whether there was, indeed, true remorse in the context that the applicant had a psychological inability to show remorse. This was, Ms Manuell contended, the action of a very frustrated 14 year old girl who had a difficult prior life and relationship with her mother. She had a lesser capacity to express remorse than that of an adult. 21 In her written submissions, counsel for the applicant referred us to the principles regarding the sentencing of children set out by Matthews J (with whom Gleeson CJ and Samuels JA) agreed in R v GDP (1991) 53 A Crim R 112 at 116. 22 After having set out the legislative guidelines in the treatment of young offenders set out in s 6 of the Act to which I have already made reference, her Honour said: "The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (Unreported, Supreme Court, NSW, 15 August 1979), Yeldham J remarked during the course of sentencing of a young offender that 'in the case of a youthful offender...considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation'. His Honour relied upon Smith [1964] Crim LR 70, where it was said: 'In the case of a young offender there can rarely be any conflict between his interest and the public's. The public have no greater interest than that he should become a good citizen.' This principle was also adopted by Hunt J in Bellavia (Unreported, 16 August 1980). Subsequent decisions of this Court, however, suggest that considerations of general deterrence should not be ignored completely when sentencing young offenders. In Broad (Unreported, 30 March 1984), Street CJ referred to 'the necessity to deter antisocial conduct...commonly manifested by vandals in this city in current times' but also was 'concerned that for a young man of 19 with a clear earlier record and a supportive family background, importing as it does the prospects of real confidence in rehabilitation, a custodial sentence does not reflect the appropriate approach to be taken.' In C, S and T (Unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Allen and Studdert JJ, 12 October 1989), Gleeson CJ accepted a submission that 'in sentencing young people...the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed'." 23 Our attention was also drawn by counsel for the applicant to the fact that there was before his Honour Judge Freeman a report dated 7 February 2000 from the Department of Juvenile Justice, Griffith District Office. This report concluded with the following suggested sentencing options: "The young person was initially remanded in custody for this matter. The young person found the time she spent at Yasmar Juvenile Justice Centre very unpleasant. To minimise the risk of the young person becoming further entrenched in the criminal justice system, the following recommendations are respectfully suggested to the Court. A lengthy period of probation under s 33(1)(e) of the Children (Criminal Proceedings) Act 1987. This would allow intervention by the Department of Juvenile Justice in ensuring that the issues of concern as outlined previously are addressed. A community service order under s 33(1)(f) of the Children (Criminal Proceedings) Act 1987. [F] is aware that such an order is a direct alternative to incarceration and understands her obligations to the Court so far as completing such an order. If the Court is considering a custodial sentence under s 33(1)(g), s 24(1)(c) of the Children's (Detention Centres) Act provides that conditional discharge to the community may be granted to a young person on condition that suitable arrangements for supervision are made. Such release, which is granted after proper assessment, may include attending: (1) An Intensive Programs Unit for a program of intensive counsel, or (2) Address the issues of concern as outlined above. The Court may wish to recommend that such release be granted to the young person, if it thinks fit. The Court may also wish to consider a custodial sentence that incorporates an extended period of parole under s 5(2) of the Sentencing Act 1989. This may assist the young person's rehabilitation and reintegration to the community. Proposed caseplan for community based sentencing option [F] is to attend a psychological assessment to be arranged by the Department of Juvenile Justice. From this assessment, the young person has agreed to participate in any ongoing counselling or treatment plan recommended. This will include strategies developed to rebuild the relationship between herself and her mother. The young person to attend Alcohol and Other Drug Counselling. Although the young person does not perceive her drug usage as a problem at this stage, she would benefit from harm minimisation strategies and the dangers associated with drug use. [F] is to enrol in a general education course at Leeton TAFE. The young person has failed to commit to an education program or employment due to her current legal status. The young person to reside with the [L] family [address]. Although this placement is not acceptable to Mr [F], it appears that the young person is happy with her current living arrangements and is in a very supportive environment. This Department will endeavour to fulfil its obligations in regard to any order the Court may impose." 24 It was submitted on behalf of the applicant that his Honour only referred obliquely to the principle of rehabilitation and did not refer to the principle at all as it specifically applied to a young offender. Nor did his Honour refer to all of the various sentencing options set out in the report which I have quoted from above. 25 It was submitted, in this context, that his Honour failed to take account of the tender age of the applicant at the time of the commission of the offence, the complex nature of the relationship with her mother since birth, the applicant's immature and inappropriate way of dealing with that relationship and, finally, the applicant's own significant personality deficits. 26 It was submitted that to sentence a young person in the context of such complex problems to a term of imprisonment placed an inappropriate emphasis on general and specific deterrence and wholly disregarded the importance of rehabilitation. 27 It was submitted that an appropriate sentence should have been structured in reliance upon the resources and expertise of the Department of Juvenile Justice under the provisions of Division 4. 28 Then it was said that if the applicant had originally been charged only under s 39 of the Act, then the matter would "in quite likelihood have been dealt with in the Children's Court". It was argued that this is a factor which his Honour should have taken into account, in reliance by analogy upon the judgment of this Court in R v Crombie [1999] NSWCCA 297. 29 Importantly, it was submitted, his Honour also failed to note that the summary jurisdiction that was available as an alternative was a specialist summary jurisdiction provided by statute. 30 These matters all go, in one way or another, to the exercise by his Honour of his discretion in determining whether he should or should not deal with the matter according to law or whether he should have dealt with the matter by way of the alternative to which I have already referred, which would have given him a wider sentencing regime and also which would have provided a maximum sentence of only two years. 31 Crombie was recently considered by this Court in Elomar [2000] NSWCCA 431. It must be remembered that both Crombie and Elomar were dealing with a situation where, at the election of the Director of Public Prosecutions, a matter which could have been dealt with summarily was in fact brought by the Director by way of indictment in the District Court. 32 The point was made in Crombie that the fact that had the matter been dealt with in the summary jurisdiction the maximum penalty would have been less is a circumstance to be taken into account by the District Court Judge in the exercise of his or her discretion in imposing the appropriate sentence. However, the Court went on to say, both in Crombie and Elomar, that it depended upon the objective and subjective criminality of the offender and it depended upon the circumstances as to what regard, if any, the sentencing Judge in the District Court should give to the matter. 33 I do not think that the principles which were enunciated in Crombie and Elomar really have any bearing on the exercise of the discretion which the legislature vested in Judge Freeman under s 18 of the Children (Criminal Proceedings) Act 1987. 34 The task which is presented to this Court is to determine whether, in accordance with the principles enunciated by the majority of the High Court, Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, there was a failure by Judge Freeman to exercise his discretion in accordance with the law or if, in the exercise of that discretion, he made a mistake of fact. 35 It is not the function of this Court to interfere because its members may have exercised the discretion which the legislature vested in Judge Freeman in a different way to his Honour. I am completely unable to conclude, having read the material before his Honour, carefully considered his Honour's remarks and having carefully considered the submissions which were made to this Court on behalf of the applicant and on behalf of the Crown, that his Honour did, in any way, infringe the principles laid down in House. 36 Indeed, I would respectfully agree with the submissions on behalf of the Crown that the factors which led his Honour to conclude in the way in which he did that the matter was one which should be dealt with at law were compelling. It was appropriate, in my view, for his Honour to take into consideration, as I believe he did, that by dealing with the matter at law, he could impose a sentence in an institution which will, in all probability, have the effect of removing the applicant from her dependency upon drugs and alcohol and that Yasmar was an appropriate institution in that regard. 37 When one goes on to read the remainder of his Honour's judgment after his indication of the way in which he was exercising his discretion, it is apparent that his Honour was gravely concerned with the rehabilitation of the applicant and the steps which he could take, bearing in mind that he was dealing with the matter at law, in order to facilitate her rehabilitation and to provide what facilities he could in that regard. 38 His Honour specifically directed that a copy of Mr Flockton's report, (Mr Flockton being a highly qualified psychologist who prepared a report at the instance of the solicitor for the applicant), accompany the warrant and recommended that the applicant be provided with as much intensive psychological treatment as could be made available to her during her period of custody and that she obtain reports as to her psychological condition whilst in custody. 39 Indeed, his Honour said, when sentencing the applicant: "Sentencing needs to be shaped in this case, perhaps particularly with a view to her ultimate rehabilitation, not least because of her extreme youth but also because, as I said, of the absence of the rather more classical criminal intent, the absence of any proper basis which must in turn be provided for her to form both informed and proper decisions about herself, her conduct, her relationships with others. I propose to sentence her with those objectives firmly in mind but it is necessary to return briefly to the proposition I advanced earlier that this is a crime well towards the more serious end of offences of this nature. Whatever the subjective circumstances which I have endeavoured somewhat clumsily to adumbrate, the objective seriousness cannot be doubted." 40 No reasonable person could otherwise than be touched with sympathy by the fact that this young lady has had the misfortune to have lacked the benefit of bonding with her mother so necessary to maturation and that at such a tender age has, through no fault of her own, been so psychologically disturbed as to become reliant upon alcohol and drug abuse. However, the function of this Court is to determine whether his Honour made an error of law. 41 For the reasons which I have indicated, I am completely unpersuaded, despite everything that could have been said on behalf of the applicant, that his Honour did make an error in law and that the intervention of this Court is called for. 42 I would, in all the circumstances, propose that the application for leave to appeal be granted but I would propose that the appeal be dismissed. 43 BARR J: I agree. The orders of the Court are as proposed by Carruthers AJ. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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