New South Wales Court of Criminal Appeal CITATION : REGINA v RY [2001] NSWCCA 499 FILE NUMBER(S) : CCA 60306/01 HEARING DATE(S) : 21 November 2001 JUDGMENT DATE : 21 November 2001 Regina PARTIES : v RY JUDGMENT OF : Barr J at 1; Adams J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0104 LOWER COURT JUDICIAL Karpin DCJ OFFICER : COUNSEL : Ms R Burgess for the Applicant Mr G E Smith for the Crown SOLICITORS : D J Humphreys for the Applicant S E O'Connor for the Crown CATCHWORDS : Sentence - child - whether should be dealt with according to law - whether mode of dealing with co-offenders relevant - relevant considerations - adjournment under s11 Crimes (Sentencing Procedure) Act 1999 - whether permissible to require bond Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Bail Act 1978 Children (Criminal Proceedings) Act 1987 Children (Detention Centres) Act 1987 CASES CITED: R v WKR (1993) 32 NSWLR 447 DECISION : See paragraph 35 IN THE COURT OF CRIMINAL APPEAL 60306/01 BARR J ADAMS J WEDNESDAY 21 NOVEMBER 2001 REGINA v RY JUDGMENT 1 BARR J: The Court is in a position to give judgment. I will ask Justice Adams to give the first judgment. 2 ADAMS J: The applicant pleaded guilty to the robbery of one Gregory John Norris of certain personal property at Parramatta on 31 October 1999, using at the time corporal violence. This is a serious offence carrying a maximum of twenty years' imprisonment. The applicant had been charged with the offence of robbery with wounding, a more serious offence carrying a maximum term of imprisonment of twenty-five years but on arraignment the Crown accepted her plea to the lesser offence in discharge of the indictment. It is clear that this plea was entered at the earliest possible opportunity. 3 Briefly the facts were that at about 9 pm on 31 October 1999 the victim, aged 28, whilst walking in the Parramatta Mall was accosted by the applicant, who requested money. He refused to give her any, whereupon the applicant punched him in the face and head, yelling at the same time to two acquaintances for help. She had accosted the victim at their request. The three offenders then repeatedly punched and kicked the victim, even after he had collapsed to the ground. 4 As the assaults became more serious the applicant took a mobile phone from him and left the scene. The other two offenders continued their violence and one used a knife to stab the victim and inflict very serious injuries. The three offenders decamped together. 5 As at the date of the offence the applicant was aged thirteen and a half years. Of her co-offenders, both male, one, N, was a few months short of his fifteenth birthday and the other, B, just over eighteen years. 6 After entering the plea the matter was adjourned, her Honour ordering a Juvenile Justice report and continuing bail. On 13 December 2000 the matter was commenced and adjourned to 2 March 2001. 7 On that date several reports were tendered. It is unnecessary for present purposes for me to set out the details in those reports. It is sufficient to mention that the applicant's assessed current level of intellectual functioning is in the borderline intellectual functioning range. According to DSM IV her full scale of 77 is better than that for only about six percent of people of her own age. Her personality test results showed that she had a conduct disorder and was suffering from depression. The results demonstrated that the applicant would experience a considerable degree of conflict and would vacillate between submissive obedience and defiance; she is distressed at such conflict but is unable to resolve her ambivalence. Thus, her behaviour is somewhat erratic and she is likely to express negative feelings about herself, including guilt feelings for failing to meet the expectations of others. However, she may then express stubborn negativism and resentment over having submitted to the wishes of others on occasions. These and other unfortunate attributes of her personality were highly relevant in considering what should be the appropriate disposition of her by a court. 8 To return to the hearing, the learned sentencing Judge had already sentenced the co-offender, N, (who was approximately seven months older than the applicant) for the same offence, that is, robbery with corporal violence on 23 October 2000 and he was given a suspended sentence of fifteen months. On 9 March 2001, B was sentenced to a term of three years' imprisonment with a non-parole period of just over one year and four months. 9 Her Honour observed, when dealing with the matter on 2 March 2001, that N had been - "…dealt with according to the law and I think in matters of such gravity, my view would be that offenders should be dealt with according to the law but I will hear whatever you have to say about that but there are issues of parity etc." 10 In addition to the reports, the applicant called her eldest sister, aged 31, with whom she had been living after obtaining bail. In substance, the sister's evidence was that the applicant's attitude had changed for the better and that the applicant could live with her during the period of any required supervision. 11 Counsel addressed on the applicant's behalf and the matter was adjourned for a week for sentence, bail having been continued in the meantime. It is not clear whether it was submitted on the applicant's behalf that she should not be dealt with according to the law. 12 On 9 March 2001 the applicant was unable to attend court, as she was in hospital and the proceedings were adjourned to 2 April 2001. At that time, however, the applicant was in custody, having been charged with being in possession of a knife some days earlier. The learned trial Judge informed the applicant's solicitor that she was not satisfied that the evidence disclosed "a sustained period of improvement" and that her concerns about the matter had not been assisted by the information as to the pending charge. Her Honour said - "I was considering placing her on a s 11 bond to give her an opportunity to show that she has a commitment to rehabilitation and I think that is the appropriate way to go, particularly having regard to what has happened this morning. I do not want to put her on a suspended sentence which is what I did, of course, with N so there seems to me another way of dealing with her. Of course it requires a determination to be dealt with according to the law but that is the decision which I think is appropriate and I come to that determination." 13 After some further submissions her Honour indicated that the applicant should have some time to show that she had a commitment to vocational training and accept the supervision and the like. Subject to the decision of her Honour to deal with the applicant according to the law these considerations seem to me to be entirely appropriate. Her Honour concluded by adjourning the matter under s 11 of the Crimes (Sentencing Procedure) Act 1999 to 5 November 2001 and required the applicant to enter into a bond. I interpolate here that it seems to me that exercising the jurisdiction under s 11 did not give power to the learned sentencing judge to require entry into a bond. No reference to such a procedure is made in s 11. The only material sections that I am able to discover are ss 9 and 10 of the Act. It seems to me, though I do not decide it, that there are very strong arguments for interpreting s 9 as permitting a direction to an offender to enter into a good behaviour bond only where it has been determined that a sentence of imprisonment will not be imposed, this reasoning being derived from the specific language of sub-s 1. If it is desired to subject offenders to conditions relating to their rehabilitation, s 11 permits that to be done by way of imposing appropriate conditions under the Bail Act 1978. 14 In the circumstances, nothing turns on this matter in the present appeal but I would not like it thought that this Court assumes or accepts that there is a power under s 11 of the Crimes (Sentencing Procedure) Act 1999, when deferring sentencing to direct that an offender enter into a bond. 15 On ascertaining that the applicant was still living with her sister, her Honour concluded the proceedings on 2 April 2001 in the following way - "The matter is stood over. I have made the basic determination that she will be dealt with according to the law, having regard to the gravity of the offence and having regard to what happened to the co-offenders. I am concerned as to her present commitment to rehabilitation and would like her to have a greater opportunity to demonstrate that she is committed to her own rehabilitation and in those circumstances I propose to deal with the matter by standing it over for a period on a s 11 bond. The matter will go over to 5 November 2001 ... and she will enter into a bond which will require her to accept the supervision of the Probation and Parole or Juvenile Justice, whichever is deemed the appropriate supervising service, that she reside with her sister or such other accommodation as may be approved by her supervising officer, that she be of good behaviour for the period of the bond and it is noted that the offence upon which she was arrested on Friday 30 March does not constitute a breach of the bond, that she attend school or educational or other vocational programmes as directed and that she attend counselling or other rehabilitation procedures as directed. She is to report to her supervising officer ... within three days of her release from her present custody in order to have the supervision instituted and any breach of these conditions is to be reported by her supervising officer and will result in her being called up before me to be dealt with prior to 5 November, should that occur." 16 It is clear from the legislation dealing with children that they comprise a special class of offender in respect of which the State assumes responsibilities quite different to those assumed in relation to adult prisoners. Furthermore, the options available to a court exercising jurisdiction under the children's legislation vary markedly from the options available to a court dealing with a person convicted according to the law, even where that person happens to be a child. Whether or not, therefore, to treat an offender according to the law is an important decision from which follows very significant results. 17 These matters were the subject of discussion in this Court especially by Sully J in WKR (1993) 32 NSWLR 447and I do not think it is necessary to set out in this judgment the considerations to which his Honour adverted. However, as Sully J pointed out, it is most important to consider not only the seriousness of the offence but the character of the involvement of the offender in that offence. That will sometimes require a consideration of his or her background, personality, psychological and psychiatric state. 18 It is obvious, from what I have set out from the psychologist's report in this case, that the applicant suffered from significant psychological attributes which may well have played an important role in causing her to be involved in this serious offence. Her Honour, however, disregarded (as it seems to me) these matters entirely, referring as she did to two considerations, namely the seriousness of the offence and what sentence disposition had been imposed on the other two offenders. Not only was the first consideration an insufficient basis for determining whether the applicant should be sentenced according to the law but the second consideration seems to me to be entirely irrelevant. A sentence otherwise appropriate or a disposition otherwise appropriate cannot be made more severe by reference to questions of parity. At all events, the issue of whether or not to sentence according to the law, relating as it does not only to the circumstances of the offence but the personal attributes of the offender, can scarcely ever be illuminated by reference to the way in which co-offenders were dealt with. 19 The applicant was granted bail by the Children's Court in respect of the possession of the knife offence which came to the Judge's attention, as I have mentioned, but within four days was arrested once more on an identical charge. Bail was refused. 20 On 11 May 2001, the applicant being in custody, the matter was listed once again before the then sentencing Judge. It does not appear that this was because of a perception that she was in breach of the bond to which she was subject but because the applicant, through her legal representatives, indicated that she wished "to have the matter finalised" if the Judge was prepared to do so on that day. Her solicitor said to the court - "I cannot fully rationalize her position but it appears to be that she wants to have the matter dealt with, that at this point in time she doesn't really feel that she can commit herself to the types of conditions that your Honour was probably going to impose should the sentence have been dealt with under some form of suspended sentence." 21 Her solicitor indicated to the court that although the applicant's sister, with whom she intended to live, was still prepared to help she had, it seemed, expressed misgivings about "her ability to have any positive impact upon" the applicant. 22 One of the purposes of a deferral of sentencing under s 11 of the Act is that the offender's capacity and prospects for rehabilitation can be assessed. It is clear that her Honour considered that the applicant's re-offending in respect of the knife possession offence and her intimation that she did not feel that she could commit herself to compliance with the conditions of the good behaviour bond which it was clear the Judge had in mind to impose meant, in the Judge's view, that "a period of time in custody ... that is just inevitable". Indeed, her solicitor informed her Honour that the applicant understood that, "in effect by forcing your Honour's hand and in view of recent events that that's what is going to happen." 23 Furthermore, he informed her Honour that the applicant was concerned about the terms upon which she would be released conditionally into the community after serving a custodial period, fearing that such conditions could "set her up for failure or ... she is going to have great difficulty complying with them". 24 In a brief judgment her Honour noted that the applicant was facing four (this was a mistake for two) additional charges in the Children's Court and that she had requested the judge to deal with the matter to finality on this occasion. She indicated the applicant's concern that she might not be able to comply with any rigorous requirements of parole but thought that at least the applicant was making some progress in that she was attending school at Yasmar Detention Centre, which is where she was detained. 25 Her Honour then said - "In all of the circumstances I propose to deal with her in this way. I believe that I previously formally convicted her but if I have not done so, I do so now. She is sentenced to 12 months' imprisonment. In setting that term I take into account the fact that she was in custody for three weeks when she was first arrested and the 12 months is set having regard to that period of custody, being an additional period. I propose to set the standard parole and non-parole period." 26 The applicant therefore was sentenced to a term of imprisonment for 12 months commencing 11 May and release on parole was directed on 10 February 2002. 27 A number of grounds of appeal concern this sentence. It is not necessary for me to deal with all of them. The most fundamental, as it seems to me, is the submission that her Honour erred in limiting the consideration of the issue of whether the applicant should be dealt with according to the law to the seriousness of the offence on the one hand and in bringing into account an irrelevant consideration, namely what happened to the other offenders on the other. 28 It is clear from what I have already said that I am of the view that this ground of appeal has been made out. 29 I am also satisfied, having regard to the reports which were submitted to her Honour (which I do not propose to detail in this judgment) that the appropriate disposition was that the applicant should have been dealt with in accordance with what I should call the "children's regime". That being so, the sentence cannot stand. 30 This Court has been informed that in August 2001 the applicant was charged with an offence of assault with intent to rob, allegedly occurring on 13 April 2001. She pleaded guilty to that charge in September 2001 and was subjected to a probation order for 18 months from 10 September 2001. 31 Other material placed before the Court shows that her response to supervision and to detention has, by and large, been positive and I am satisfied provides an adequate basis for dealing with this applicant from now on in a situation where she is subjected to strict supervision but need not be detained, as would be at least the primary likelihood if she was subjected to a control order at the present time. 32 Accordingly, I propose that leave to appeal against sentence should be granted, that the sentence below should be quashed, that the applicant be placed under a control order for 12 months from 11 May 2001, that she be released from parole on 22 November 2001, namely tomorrow, and that her parole be subject to the following conditions - 1. that she is to be of good behaviour; 2. that she is to accept the supervision and guidance of the Department of Juvenile Justice; 3. that she is to reside as directed by the Department of Juvenile Justice; 4. that she is to attend counselling and group work as directed; 5. that she is to seek employment or job training; 6. that she is not to associate with co-offenders or those not approved of by the Department of Juvenile Justice. 33 In specifying these conditions I wish to make it clear that I would not propose that there be any reduction in the application of the terms of the probation order to which she is presently subjected or the mode of supervision which has been undertaken pursuant to that probation order. 34 BARR J: I agree. 35 The orders of the Court therefore are as follows - 1. Grant leave to appeal. 2. Quash the sentence appealed from and in lieu order pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act that the applicant be committed to the control of the Minister administering the Children (Detention Centres) Act for a period of one year commencing on 11 May 2001 and expiring on 10 May 2002. 3. Fix a non-parole period expiring tomorrow, 22 November 2001, and direct the release of the applicant to parole on that day. 4. The applicant's parole shall be conditioned upon the following: That she be of good behaviour; That she accept the supervision and guidance of the Department of Juvenile Justice; That she reside in such place as shall be directed by officers of the Department of Juvenile Justice; That she attend counselling and group work as directed by those officers; That she seek employment or job training; and That she not associate with co-offenders or those not approved of by the officers of the Department of Juvenile Justice. 36 The reason for fixing a non-parole period which is less than three-quarters of the length of the control order is to promote the rehabilitation of the applicant under the supervision of officers of the Department of Juvenile Justice. *************** 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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