Regina v L.O. [1999] NSWCCA 291

New South Wales Court of Criminal Appeal CITATION : Regina v L.O. [1999] NSWCCA 291 FILE NUMBER(S) : CCA 60240/99 HEARING DATE(S) : 14 September 1999 JUDGMENT DATE : 14 September 1999

PARTIES : Regina v L.O. JUDGMENT OF : Handley JA at 1;20; Grove J at 2; Hidden J at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0552 LOWER COURT JUDICIAL OFFICER : Herron DCJ

COUNSEL : M.M. Cunneen with T. Bartush-Peek (Crown/Appellant) P. Byrne SC (Respondent) SOLICITORS : S.E. O'Connor (Crown) G. Walsh (Respondent) CATCHWORDS : Criminal Law & Procedure - Sentence - Juvenile - Alleged Inadequacy - Subordinate Role In Serious Assault ACTS CITED : Children (Criminal Proceedings) Act 1987 DECISION : Crown appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60240/99

HANDLEY JA GROVE J HIDDEN J

Tuesday 14 September 1999

REGINA v L.O.

JUDGMENT

1 HANDLEY JA: The Court is in a position to give judgment immediately, and I will ask Grove J to so give it. 2 GROVE J: This is a Crown appeal asserting the inadequacy of sentence imposed by Herron DCJ in the Sydney District Court. The respondent was born on 24 February 1982 and was at the time of the offences and remains at present a juvenile, hence the provisions of the Children (Criminal Proceedings) Act apply to him and to these proceedings. 3 The respondent pleaded guilty to offences of maliciously inflicting grievous bodily harm and common assault; those offences carrying prescribed maximum penalties of seven years penal servitude and two years imprisonment respectively. 4 The learned sentencing Judge ordered that the respondent, in respect of the count of maliciously inflicting grievous bodily harm, be released on probation for two years upon specified conditions; and in respect of the offence of assault, sentenced to 250 hours community service. 5 It might be observed in passing that those sentences were suggested by the authors of the requisite report of the Juvenile Justice Service except that their recommendation was that the penalties be imposed in juxtaposition, as it were, to the ultimate impositions by his Honour. Nothing turns upon that in the outcome that, in my opinion, this appeal should reach. 6 The Crown did not rely upon any specific error in finding by the learned sentencing Judge. Attention was drawn to an observation in his remarks on sentence concerning the applicability of s 33 of the statute that I have mentioned. It was necessary for his Honour to consider whether or not the respondent then before him be dealt with according to law or in accordance with the specific statute. His Honour did not make any express finding in that regard but as the penalties which he imposed did not involve a custody of the respondent, again nothing turns upon this. 7 The offences occurred upon the eve of the respondent's 16th birthday. At about 5.45pm on Monday, 23 February, two young men, Shailendra Naidu and Van Quoc Tran, were in the foyer section of Sydenham railway station where they were approached by the respondent and another man named Kama. Kama was described in police facts as the physically larger of the two offenders. He was said to have punched the victim Naidu to the ground and repeatedly kicked at his body. The respondent was seen to kick at the victim and the man Tran attempted to intervene, obviously to assist Naidu. The respondent pushed him away and threatened him, thus preventing any assistance being given to Naidu. 8 Kama then continued his assault which included jumping upon the head of the victim. This caused a fracture and brain damage, and the consequences of that battery were serious indeed. The whole of the events occurred in broad daylight in the location that I have mentioned. 9 The respondent and his companion were within the view and range of security cameras at the railway station. A witness, Mr Hilton, was standing at a nearby newspaper booth and observed all that occurred. His description of the activity of the man Kama is chilling. However, it should be observed that in relation to the respondent, he (Mr Hilton) told police later that the respondent did not take part in the attack; meaning, that he did not assault Mr Naidu but he did threaten to assault a young Asian man that is to say Mr Tran whom he described as trying desperately and repeatedly to get between the victim and the assailant. He heard the respondent say to Mr Tran "Do you want some of this yourself?". 10 In dealing with the matter, the learned Judge observed the appalling circumstances of the attack, particularly upon the victim Naidu, but remarked that he took into account, from a practical point of view, the part which the respondent played. In so doing, it has not been expressly contended by the Crown that his Honour fell into error. 11 In broad terms, the Crown has made three submissions: First, that his Honour erred in giving insufficient weight to the need for general and specific deterrence; second, that in imposing such lenient penalties, his Honour should be assessed as having overlooked that punishment was fundamental to the need for correction; and, third, that his Honour appeared to have placed an overemphasis upon the rehabilitation of the respondent. 12 As I have remarked, the respondent was and is a juvenile. The learned Crown Prosecutor appearing in this court pointed out correctly that one of the witnesses assessed the age of the respondent to be approximately 20 years. That observation may well contain the essence of one of the problems in dealing with this respondent; namely that he was in calendar years and of presumed maturity, a youth of 15, whereas his body was one that gave the outward appearance of being 20. 13 The need for general and specific deterrence remains in every case whether a court deals with a juvenile or an adult. However, there is abundant authority to the effect that considerations of general deterrence play a subordinate role to the needs of rehabilitation when dealing with young offenders. 14 The respondent was not a person in his late teens, but one who was nearer to his early teens. 15 The punishment imposed by his Honour was the maximum available in accordance with the categories of punishment which he had selected. Short of committal of the respondent to a detention centre, he could not have imposed a severer penalty. 16 The Crown Prosecutor is correct in her observations that this was an appalling incident and involved the respondent in conduct which deserves marked condemnation. However, the issue for this court is essentially whether it can be shown by the Crown that the imposition by his Honour was outside of the range of the sound exercise of discretion. In my view, this has not been shown. 17 The learned judge was entitled to take into account, as obviously he did, the optimistic predictions of the assessors from the Department of Juvenile Justice. It can be observed that their interviews took place some 12 months after the offence. By that time, they felt that maturity had been gained; and it was said in their report that a degree of peer pressure, which may have been present in leading the respondent to the offence, was now a matter that the respondent possessed sufficient skills to deny. 18 Whether this will be so in something only the future can tell. The respondent had no prior convictions. Since imposition, evidence has been tendered to the Court to show that he has served 136 hours of the community service imposed upon him. It was stated by counsel on his behalf that this was substantially done in attending to the painting of the Bidura Children's Court. 19 On an overview of all of the material that was available to his Honour and in the absence of demonstration of any relevant error on his part, I come to the conclusion, as I have indicated, that the sentences imposed were within the range of a sound exercise of discretion. Accordingly, I propose that the Crown appeal be dismissed. 20 HANDLEY JA: I agree. I, too, have been impressed with the content of the background report, and particularly with the statements in it that the respondent was living at home, had been living at home with his parents for some time, that he had either been in employment or had been pursuing further studies; the absence of any evidence of other criminal activity since this awful attack on a physically disadvantaged citizens, disadvantaged in terms of height, weight and body build, at Sydenham railway station on 21 February 1998. Not without some doubt, but, nevertheless sufficiently, I agree with the reasons expressed by Grove J for dismissing this appeal. 21 HIDDEN J: I also agree with those reasons and with the orders proposed. **********