New South Wales Court of Criminal Appeal CITATION : R v RLS [2000] NSWCCA 175 FILE NUMBER(S) : CCA 60088/99 HEARING DATE(S) : 1 May 2000 JUDGMENT DATE : 1 May 2000 PARTIES : Regina RLS JUDGMENT OF : Hulme J at 1; Carruthers AJ at 21 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0404; 98/11/0635 LOWER COURT JUDICIAL Patten DCJ OFFICER : COUNSEL : Crown: M Grogan Appellant: MD Austin SOLICITORS : Crown: SE O'Connor Appellant: Sydney Regional Aboriginal Corporation Legal Service DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL No: 60088/99 HULME J CARRUTHERS AJ Monday, 1 May 2000 REGINA -v- RLS JUDGMENT 1 HULME J : On 22 January 1999, this applicant for leave to appeal was sentenced by Judge Patten in respect of a number of offences. An indictment charged four, three of which were robbery whilst armed with an offensive weapon, in two cases a .22 calibre shortened rifle and in one a knife, and the fourth was of assault with intent to rob whilst being armed with a knife. In connection with these offences, Judge Patten was also asked to take into account thirteen offences on a Form 1. These included four further offences of armed robbery, two of larceny on a motor vehicle, one of larceny from a motor vehicle, and one of escape from lawful custody. In the course of that escape the applicant committed two other offences, one of assault occasioning actual bodily harm and a second of maliciously inflicting grievous bodily harm. 2 The applicant was also sentenced in respect of a further charge of robbery whilst armed, on this occasion the arm being a blood-filled syringe which he presented at the arm of an eight year old daughter of the driver of a motor vehicle which he stole. In connection with this offence, two further charges were taken into account. One was of escaping from lawful custody on 13 January 1998 and a second of failing to appear at the Children's Court on that day. 3 Most of the seventeen offences, the subject of the indictment and the first Form 1 were committed within the period 13 October 1997 to 5 November 1997 when the applicant was arrested. His first escape occurred on 19 November 1997 and the balance of those seventeen offences were committed between then and 21 November when he was again arrested. Thus, those offences suffered from the aggravating feature that they were committed while on bail. 4 The prisoner was re-arrested on 30 January 1998 and remained in custody thereafter. Thus prior to being sentenced by Judge Patten the applicant had been in custody for about one year and two months, that custody being referable to the offences for which his Honour sentenced the applicant. It is unnecessary for me to detail the circumstances of the twenty charges in respect of which the applicant stood to be sentenced. They are summarised in detail in Judge Patten's remarks on sentence and no exception has been taken to that summary. I have said enough to indicate that the applicant had rendered himself liable to a very lengthy term of imprisonment. Each of the offences of armed robbery, and as I have indicated there were eight, carried a maximum penalty of twenty years' imprisonment and this Court in R v Henry (1999) 46 NSWLR 346 has indicated that in the case of the single offence of armed robbery having many of the characteristics of those committed by the applicant, a sentence within the range of four to five years' imprisonment (including parole and non-parole periods) is appropriate. I acknowledge that the applicant is of a younger age than contemplated in the guidelines. 5 In respect of the first charge on the indictment the applicant was sentenced to imprisonment for a minimum term of four years and six months commencing on 30 January 1998 and an additional term of four years and six months commencing on 30 July 2002. In respect of the second, third and fourth counts on the indictment and the charge dealt with under s 51A of the Justices Act, the applicant was sentenced to imprisonment for a fixed term of four years commencing on 30 January 1998. His Honour ordered that until the expiration of the minimum term of the sentence on the first count, the sentences imposed be served in a detention centre. 6 The applicant was born on 16 March 1981 and all of the offences were committed when he was only sixteen. However, prior to them he had acquired a record which can only be described as appalling. Largely it consisted of offences of dishonesty including at least six instances of stealing a motor vehicle and one of absconding from custody. He had previously been subjected to a number of control orders including orders which resulted in him being in custody for nine months from 8 January 1997. The offences for which he was dealt with by Judge Patten thus were committed within weeks of his release from custody. 7 The sole ground of appeal is that: "His Honour failed to take into account subjective features of particular significance to the sentencing of the appellant (sic). This led to the imposition of the sentence which was excessive in all the circumstances (sic)." 8 The applicant did indeed have a strong subjective case. Despite supportive parents and family he seemed to have become addicted to alcohol at about age twelve and to heroin when he was about fourteen and a half. Although in prior periods of custody he seemed not to have done much by way of addressing his problems, reports before his Honour indicated that since 30 January 1998 the applicant had made significant efforts in this area. The reports recorded that after initial problems, his craving for heroin had waned and thereafter his whole attitude had changed and he was looking to change his whole lifestyle. He had completed a bricklaying course and was in the process of participating in a painting and decorating course. He seems to have actively sought drug and alcohol and psychological counselling. Although one of the reports suggested that the applicant might be attempting to minimise his responsibility for his offending behaviour, it is recorded that he appeared to have matured. His Honour noted that the applicant, who had given evidence, appeared remorseful and professed an insight into the feelings of his various victims. In light of his Honour's reference to, and quotation from, pre-sentence reports, it may be inferred that his Honour accepted that in these respects the applicant was genuine. 9 His Honour recognised the principle that in sentencing young offenders, considerations of punishment and of general deterrence are of less importance than when dealing with older offenders, although he also acknowledged the qualification that the element of general deterrence should not be completely ignored, particularly where an offender has conducted himself as the applicant had, in ways in which adults might conduct themselves by committing crimes of considerable gravity. 10 His Honour went on to say that given the number and seriousness of the applicant's offences, anything but the imposition of a lengthy custodial sentence would be an affront to the victims and to the community. The applicant's youth and commendable and encouraging indication to positive steps to re-order his life, however, constituted special circumstances which justified altering the usual proportions between the minimum and additional terms. In that connection, his Honour expressed the opinion that on release from custody the applicant would require an extended period of supervision. 11 There was one matter to which his Honour adverted to which particular exception has been taken by counsel for the applicant. His Honour said: "He does not however, in my view, warrant special treatment because of his Aboriginality. It seems clear that he comes from a caring, united family, and that in no way could his childhood and upbringing be said to be deprived or disadvantaged. Accordingly, the matters identified by Mr Justice Wood in Fernando as relevant to the sentencing of Aboriginal offenders are, for the most part, absent from this case." 12 It was submitted that the applicant had grown up within a community which suffered from the disadvantages identified by Wood CJ at CL in that case and the fact that the applicant was abusing alcohol as early as he was indicated these disadvantages had a significant impact on him. There was evidence that the applicant at a young age had seemed to have been attracted to the company of older persons and it was these who had introduced him to his addictions. 13 There was, in fact, nothing by way of specific evidence to indicate that the applicant's Aboriginality had anything whatsoever to do with his decision to pursue the company of older persons or, indeed, to indicate that these persons were themselves of Aboriginal descent. The applicant himself stated to both one of the Juvenile Justice officers who provided a report, and a psychologist, engaged for the purposes of providing a report on sentence, that he began to use alcohol and other drugs because he "wanted to have fun and enjoyed the feelings provided by the substances he used" and "because he 'got a buzz' from them". 14 In the light of absence of such evidence and the evidence which was before his Honour, that the applicant, while of Aboriginal descent, came from an intact and supportive family, where his father was a health worker and his mother an Aboriginal educational assistant, it is impossible to find fault with his Honour's approach to the applicant's Aboriginality as evident in the passage which I have cited. In that regard I would draw attention to the last sentence in that passage and the reference therein, "for the most part." 15 Although I do not find it necessary to address all of the proposition for which Fernando (1992) 76 A Crim R 58 stands as authority, there was nothing in this case to suggest that "the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up" or to cause the sentencing judge to think that "the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them." [at p 62-3] were relevant. 16 Reliance was also placed on the remarks of Wood CJ at CL in R v Henry (supra) at p 397 to 398, it being submitted that his Honour had not given adequate weight to the significance of the applicant's heroin addiction as the inspiration for his offences. 17 Again, I do not think it necessary to recite in this judgment those principles; it is sufficient merely to refer to two. One was that special consideration (by way of leniency) might be justified in the case of offenders judged to be at "the crossroads", it being submitted that the evidence as to the applicant's process in rehabilitation indicated he was in that position. 18 The second aspect relevant is the suggestion that where addiction was not a matter of personal choice, or occurred at a very young age, where a person's ability to exercise appropriate judgment was incomplete, that addiction might be regarded as a mitigating factor. 19 Both of these factors were of some significance in the case of the applicant and argued for the imposition of a sentence more lenient than would have been appropriate were they entirely absent. On the other hand, one must recognise the applicant's apparent deliberate choice to pursue the course he did and, one may infer, in the face of opposition from parents whose views were entitled to respect. The major difficulty from the applicant's point of view, however, is the magnitude, both in terms of seriousness and the number of occasions, of his offending. There were ways of dealing with his heroin addiction otherwise than by committing a crime to satisfy it. His previous appearances before courts and incarceration must have made him aware of such options, of the view which the courts take of the type of life on which he had embarked and of the utter impossibility of a coherent community existing were conduct of the nature he pursued to become commonplace. It is just impossible to ignore the fact that there were twenty offences, many of them extremely serious. Section 6(3) of the Criminal Appeal Act requires this Court to dismiss an appeal unless it forms the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed. In my view, both the nine year full term and the four and a half year minimum term which his Honour imposed were, having regard to the magnitude of the applicant's offending and notwithstanding the subjective factors, including his youth, operating in his favour, extremely lenient and fully, if not more than fully, reflect all of the subjective factors operating in the applicant's favour. 20 Having regard to the length of the overall sentence I would favour allowing leave to appeal but dismissing the appeal. 21 CARRUTHERS AJ: I agree. 22 HULME J: The order of the Court is that leave to appeal is granted but the appeal is dismissed. *********************************************************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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