Regina v Hughes [2001] NSWCCA 264

New South Wales Court of Criminal Appeal

CITATION : Regina v Hughes [2001] NSWCCA 264 revised - 17/07/2001 FILE NUMBER(S) : CCA 60549/00 HEARING DATE(S) : 22 June 2001 JUDGMENT DATE : 22 June 2001

PARTIES : Crown - Respondent Hamilton Matthew Hughes - Applicant JUDGMENT OF : Simpson J at 1; Smart AJ at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1053 LOWER COURT JUDICIAL Black DCJ OFFICER :

COUNSEL : J S Andrews - Applicant D M L Woodburne - Crown SOLICITORS : D J Humphries - Applicant S E O'Connor - Defendant

Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Sentencing Act 1989 R v Henry (1999) NSWCCA 111; (1999) 46 NSWLR at 346 R v BO Too and Maiereniki (NSWCCA 16 July 1992 unreported) CASES CITED: R v Gallagher (1991) 23 NSWLR 220 at 234 R v Jason Loughnan (CCA, 14 July 1992, unreported) Thornberry v The Queen, 69 ALJR 771 DECISION : Leave to appeal granted - appeal allowed - sentence quashed - substituted a sentence of four years with a non-parole period of two years.

IN THE COURT OF CRIMINAL APPEAL 60549/00

SIMPSON J SMART J

Friday 22 June 2001

REGINA v Hamilton Matthew HUGHES Judgment

SIMPSON J :

1 On 23 March 2000 the applicant adhered to a previously entered plea of guilty to a charge of armed robbery brought under section 97(1) of the Crimes Act 1900, which carries a maximum penalty of imprisonment for twenty years. He asked that a further offence of being a passenger in a conveyance be taken into account pursuant to Pt 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999. By s 154A(1)(b) of the Crimes Act 1900, such an offence is deemed to be larceny, and s 154AA of the same Act renders an offender liable to imprisonment for ten years. The applicant was sentenced under the Crimes (Sentencing Procedure) Act 1999. 2 The facts of the offences were these. On 8 January 2000 the applicant, with three companions, travelled in a stolen motor vehicle to Penrith Plaza. He and one co-accused armed themselves with large spanners. A third person armed himself with a thirty centimetre knife. The three of them entered a jewellery store. The offender armed with a knife herded the sales staff into a rear office while the applicant and another offender smashed the glass jewellery display cabinets and placed jewellery valued at $250,000 in bags, with which they had equipped themselves. 3 The fourth offender remained outside in the stolen vehicle, in which eventually all four drove off. The vehicle collided with a concrete barrier, causing the front tyre to deflate but the driver nevertheless drove on a short distance. All four offenders then ran off. The applicant and one other offender were apprehended. The jewellery was located nearby and returned to the owner. 4 The other two offenders had not, at the time of sentencing, been apprehended. 5 The applicant was interviewed about his involvement in the offence. He said that prior to entering the shop the four men had discussed the various roles to be allocated among them, and that his function and that of another man was to smash glass, while that of a third was to take money, and that of the fourth was to keep watch outside. When asked why he had participated he said he was "desperate" because he was unemployed and had been for some time and he had heard there was a significant sum of money at the shop and that he did not think of the consequences. 6 The sentencing Judge had the benefit of both the pre-sentence report and a report of a clinical and forensic psychologist, Dr Christopher Lennings. From these, it emerged the applicant was born on 31 March 1981 and was accordingly almost nineteen years old at the time of the offence. He was born in Fiji, the only son of his parents' marriage. 7 His parents separated when he was six months old and the applicant was raised mainly by his grandparents. While he was still in primary school, his mother migrated to Australia with a new partner and the applicant remained in Fiji with his grandparents. He maintained occasional contact with his mother in Australia. His mother has three younger children as a result of her current relationship. When he was about twelve years old the applicant came to live in Australia, initially with his mother, but because of a poor relationship with his stepfather, that position was short-lived. He began living with his aunt and continued to do so, until his incarceration. 8 The applicant told Dr Lennings that as a child he had been harshly disciplined. He also revealed that at the age of eight he had been sexually abused by a relative. His schooling in Australia was unhappy, partly because of racial abuse and occasional racially based violence. He truanted and was eventually expelled for this. He was a talented footballer. 9 He began to drink alcohol at about the age of fifteen and testing suggested a high level of problem drinking, placing him in the alcohol dependent group. 10 Both Dr Lennings and Mr Walker, the author of the pre-sentence report, reported behaviour denoting insecurity and fragility in the applicant. Dr Lennings, in particular, suggested that in all likelihood the applicant would make a good response to community supervision. He urged that the applicant would require counselling in relation to his alcohol consumption and other issues arising from his history, which I have already recounted. 11 It has also to be observed that the applicant's criminal record, while not insignificant, is also not a bad one. In May 1999 he was convicted of using offensive language near a public place, assaulting police and resisting an officer in the execution of his duty. On each charge he was fined $100. That is the extent of his prior criminality. 12 Applying the guidelines stated by this Court in Regina v Henry (1999) NSW CCA 111; (1999) 46 NSWLR at 346; Black DCJ sentenced the applicant to imprisonment for four years with a non-parole period of three years. No challenge was made to the total term of this plainly perfectly proper sentence. 13 The application for leave to appeal was founded solely on the decision of the Judge not to find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying a non-parole period less than three quarters of the total term of the sentence. Sub-section (2) requires that the non-parole period must be not less than that proportion of the total term: "unless the Court decides there are special circumstances for it being less, in which case the Court must make a record of its reasons for that decision." 14 Having announced the total sentence, the sentencing Judge said "I do not find any special circumstance ... ". That is the extent of the remarks made by the sentencing Judge in relation to the question of special circumstances. It does not comply with the obligation to make a record of the reasons for the decision. That fact does not, of itself, as the Crown argued, mean that his Honour did not give appropriate consideration to the question. However, the failure to explain such a decision is apt to leave open a conclusion that the issue was not, or was not adequately, considered. This is particularly so where there is evidence before the sentencing Judge that would warrant a conclusion that special circumstances existed. 15 In Regina v Bo Too and Maiereniki (NSW CCA 16 July 1992 unreported) and in relation to the predecessor of s 44(2), that is s 5(2) of the Sentencing Act 1989, Hunt CJ at CL said: "Where the evidence discloses the existence of material which (if accepted) could amount to special circumstances within the meaning of s 5(2), but the sentencing Judge does not vary the one-third proportion required by that sub section, he or she would usually be expected to explain why. The absence of such an explanation may lead to the conclusion that no consideration was in fact given to whether that proportion should be varied: see Regina v Gallagher (1991) 23 NSWLR 220 at 234; Regina v Jason Loughnan (CCA, 14 July 1992, unreported) at 8-9." 16 There was ample material in this case which, if accepted, could have amounted to special circumstances. True it is that the statement by the Judge that he did not make such a finding was some evidence that he had given consideration to the question. However, in my view, that is an inadequate explanation for the refusal to make a finding which the evidence would amply have justified. Indeed, I tend to the view that even if a proper statement of reasons had been given, the evidence in this case was so compelling that the refusal to find special circumstances would represent discretionary error. However, it is not necessary to go so far because in my view the absence of proper reasons in these circumstances bespeaks error in the sentencing process. I am therefore satisfied that there was error in the process. 17 Against the possibility of a finding of error, the Court admitted additional evidence demonstrating the applicant's steps towards rehabilitation. There was an affidavit sworn by the applicant and an affidavit sworn by his solicitor, annexing material from the prison showing the work the applicant had done towards his rehabilitation. I think it is appropriate to take this into account in determining the next aspect of the Crown's argument, that is, that even if the absence of an explanation for the finding of special circumstances was an error, that the conclusion was, in any event, justifiable. 18 The subjective material, both at the sentencing and the additional material to which I have referred, was powerful. In saying this I do not overlook the serious objective criminality. The offence was deliberate. It was plain there was a large amount of property involved and there were very dangerous weapons, and there were four co-offenders. The subjective material that I have mentioned showed that the applicant had had an extremely troubled early history, but he had nevertheless remained almost crime-free until this single episode of serious criminality. At the age of nineteen he was sentenced to what was, on any view, a lengthy term of full-time imprisonment. The reports indicated real prospects of rehabilitation, but they also indicated a need for supervision, counselling and assistance. In particular the applicant needs assistance in relation to his alcohol consumption and also in relation to issues of his earlier life which have already been mentioned. He will also need assistance in relation to employment in the future. 19 The Crown argued that there was nothing in the reports to suggest that a twelve-month period of supervision was inadequate for the purposes mentioned, but I am unable to accept that this is so. In any event, if only because of his youth and the fact that he would be serving this sentence as an adult prisoner I would be of the view that the minimum term should be reduced. 20 I would grant leave to appeal. I would allow the appeal. I would quash the sentence and substitute a sentence of four years with a non-parole period of two years. 21 SMART AJ: I agree with the orders proposed by Simpson J. I gratefully accept her narration of the facts and summary of the issues. I would prefer to base my decision on the unreasonable exercise of the judge's discretion: Thornberry v The Queen, 69 ALJR 771. I am not so troubled by the absence of detailed reasons for not finding special circumstances. What appeared from the materials before the judge, was a bad offence by a young man aged eighteen, who had had a very unfortunate upbringing and who had still to come to terms with his life. He was described as rather fragile and sensitive. He had a serious alcohol problem. There had been significant disruptions of his primary attachments with his parents, stepfather and grandmother, conflict with his family, substance abuse and sexual assault. All that points to a need for an extended period of counselling and support. 22 As I regard the exercise of the judge's discretion as to the non-parole period and the failure to find special circumstances as unreasonable and not fairly open to the judge, I have concurred in the orders proposed by Simpson J. 23 SIMPSON J: The orders of the Court will be as I have proposed.