Regina v SK; Regina v OZ [2001] NSWCCA 492

New South Wales Court of Criminal Appeal

CITATION : Regina v SK; Regina v OZ [2001] NSWCCA 492 FILE NUMBER(S) : CCA 60489/01; 60490/01 HEARING DATE(S) : 30 November 2001 JUDGMENT DATE : 30 November 2001

Regina (Crown) PARTIES : SK (Appellant) OZ (Appellant) JUDGMENT OF : Hidden J at 22; Newman AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/2051 LOWER COURT JUDICIAL Andrew ADCJ OFFICER :

COUNSEL : D. Woodburne (Crown) D. Drewett (Appellants) SOLICITORS : DPP (Crown) CATCHWORDS : Sentencing - Young offenders - Principles different from adults - Children (Criminal Proceedings) Act 1987 s 6 LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Regina v GDP (1991) 53 A Crim R 112 CASES CITED: Regina v Smith (1964) Crim LR 70 Regina v Weaver (1973) 6 SASR 265 DECISION : 1. Leave to appeal granted; 2. Appeals dismissed

IN THE COURT OF CRIMINAL APPEAL

60489/01 60490/01

HIDDEN J NEWMAN AJ

FRIDAY 30 NOVEMBER 2001

REGINA v SK REGINA v OZ

JUDGMENT

1 NEWMAN AJ: These are applications for leave to appeal against sentences passed in the District Court by his Honour Acting Judge Andrew on 18 December 2000. The applicants had been tried before a jury on two counts. 2 The first count was one of maliciously throwing a destructive or explosive substance with intent to burn contrary to the provisions of s 47 of the Crimes Act 1900. That section carries for the commission of that crime a maximum penalty of imprisonment for 25 years. 3 The second count which the applicants were tried was one of maliciously wounding with intent to do grievous bodily harm contrary to the provisions of s 33 of the Crimes Act. Like s 47, s 33 carries a maximum penalty of imprisonment for 25 years. 4 The jury found both the applicants guilty as charged following a lengthy trial. In the event his Honour sentenced both of the applicants to the self same sentence, namely imprisonment for seven years commencing on 13 December 1999 when they were taken into custody, and expiring on 12 December 2006. He set a non-parole period in respect of each applicant of three years and six months which is to expire on 12 June 2003. 5 The objective facts of the matters were summarised in short compass by his Honour, but in my view quite adequately, and I adopt what he had to say, which was:- 'The jury accepted the Crown case which was that on this date, the 12 December 1999 at around midnight both offenders had taken part in a pre-planned ambush, and had lured the victim to come to a park at Bankstown by a telephone call that they had made, and had lured him to a dark area of the park where he was struck on the head by some kind of rod either wooden or metal by the offender SK, and he was then stomped on by the accused OZ after he fell to the ground unconscious. Severe lacerations were caused and the victim was later hospitalised. SK then took a petrol tin and poured petrol over the victim. It is not known as to how much petrol was poured, but the evidence was clear that it was a substantial part of the tin. The petrol was there at the time even showing that it was ready and waiting. OZ then took a cigarette lighter and tried to repeatedly to set fire to the petrol but the cigarette lighter would not work. The victim's brother had also come with him to the park, and was being held by another but managed to break away. This apparently caused the offenders to leave the scene.' 6 These objective facts are demonstrative of a very, very serious breach of the criminal law, and specifically the two sections which I have already identified. 7 It must be said that the facts particularly in relation to the charges laid under s 47 must come close to falling within the category of the worse type of case. 8 His Honour in sentencing the two applicants had the advantage of a considerable amount of material from psychologists and others. Unfortunately both the offenders, who were very young at the time of the commission of the offence - SK was aged fifteen years and five months and OZ was aged sixteen years and nine months - had a number of unfavourable subjective features in the past. His Honour did take into account the fact of youth in determining sentence. 9 Indeed he referred during the course of his remarks on sentence to the case of GDP which involved an analysis of s 6 of the Children (Criminal Proceedings) Act 1987. GDP is reported at (1991) 53 A Crim R 112 and involves an analysis at pages 115-6 by Mathews J of the ramifications of that section. 10 The principal criticism advanced on behalf of both applicants was that his Honour did not take fully into account the provisions of s 6 of the Children (Criminal Proceedings) Act in passing the sentence he did. 11 It was also submitted that his Honour in passing sentence placed too much weight on the fact that at the time of the commission of the offence, the applicant OZ was on bail for an offence of robbery whilst armed and also for an aggravated break, enter and steal. Further, that the applicant SK was on probation at the time for two years upon charges of robbery whilst armed with a dangerous weapon and another offence. 12 I should say that it appears from his Honour's remarks that in fact OZ was not sentenced for the offence of robbery whilst armed. It appears that the events of the offence of aggravated break, enter and steal were subsequently dealt with by a court which would seem to have been an offence which was committed at the same time and involving the same factual allegations as the charge of robbery whilst armed. 13 However, be that as it may, in my view his Honour certainly fell into no error in taking into account the fact at the time both applicants committed the subject offences they were subjects to either bail conditions or probation conditions, both of which are aggravating factors, as has been held by this Court on many occasions. 14 I should add that even prior to the passage of s 6 of the Children (Criminal Proceedings) Act, judgments of this Court have repeatedly recognised the significance of youth in an offender in the determination of an appropriate sentence. Even in respect of crimes as serious as that of which these young men were convicted different policy considerations apply from those which apply in the case of a mature adult. Considerations of prospects of rehabilitation of the offender may properly be referred to considerations of punishment and of general deterrence. 15 In Regina v Smith (1964) Crim LR 70 it was stated:- 'In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest than that he should become a good citizen. The difficult task of the court is to determine what treatment gives the best chance of realizing that object. That realization is the first and by far the most important consideration.' 16 The principle has been applied often - see for example Regina v Wilcox, Yeldham J, 15 August 1979; Regina v Bellavia, Hunt J, 26 August 1980; Regina v Phillips, Hunt J, 17 December 1985; Regina v Wade, Wood J, 5 September 1986; Regina v Ford, Wood J, 22 March 1988; Regina v Pelosi (Court of Criminal Appeal 28 September 1988); Regina v Weaver, (1973) 6 SASR 265. Wilcox, Bellavia and other cases make it clear that the principle expounded in Smith is not restricted to non-violent crimes. 17 However, subjective factors apart, the assault on the victim was excessively vicious, cowardly and brutal, and though not as I have said before in the category of the worst possible class of case, objectively it is very close to it. 18 It is such as on the face of it to call for the imposition of a heavy sentence of imprisonment. It does not automatically follow from the application of principles in cases such as Smith to which I have referred, and indeed even applying the provisions of s 6 of the Children (Criminal Proceedings) Act that the young offender will not receive a relatively heavy sentence of imprisonment. 19 By the same token punishment is not to be determined simply by reference to the objective facts, horrific though they may be in the instant case. His Honour Acting Judge Andrew dealt, in my view, very thoroughly with the considerations with which I have just dealt. 20 He took into account the youth of both offenders. It was put on behalf of the co-offender SK that because of the fact that he was a year and four months younger than OZ, a lesser sentence should have applied. His Honour in dealing with the subjective factors relating to both co-offenders did so on the basis of a close comparison of those factors. Ultimately, he concluded that on balance they should receive the same sentence. 21 I see no error in the approach taken by his Honour in this regard. Accordingly I am of the view that no error has been demonstrated in the overall approach taken by his Honour in the case of both applicants. Thus, because of the youth of the applicants and the seriousness of this matter to them, I am of the view that this Court in both cases should grant their application for leave to appeal. Both appeals should be dismissed. 22 HIDDEN J: I agree. The orders of the Court will be those as proposed by his Honour.