New South Wales Court of Criminal Appeal CITATION : Regina v MHH [2001] NSWCCA 161 FILE NUMBER(S) : CCA 60481/00 HEARING DATE(S) : 18 April 2001 JUDGMENT DATE : 18 April 2001 PARTIES : Regina MHH JUDGMENT OF : Wood CJ at CL at 38; Sully J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0380 LOWER COURT JUDICIAL Davidson DCJ OFFICER : COUNSEL : M. C. Marien - Crown L. Flannery - Applicant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Applicant LEGISLATION CITED : Children (Criminal Proceedings) Act Regina v Henry (1999) 46 NSWLR 346 R v Sua (2000) NSWCCA 94 CASES CITED: Thompson and Houlton Gallagher Luan Nguyen DECISION : Leave to appeal granted; appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60481/00 WOOD CJ at CL SULLY J 18 April 2001 REGINA v MHH JUDGMENT 1 SULLY J: On 13 July 2000 the present applicant, MHH, stood for sentence in the District Court at Sydney. Mr H had pleaded guilty to a charge of aggravated armed robbery, the date of that offence being laid at 18 January 2000. Such an offence contravenes s 97 of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for twenty-five years. The sentence, in fact, passed upon Mr H was a sentence of imprisonment for three years with an accompanying non-parole period set at two years. There was an order that the whole of that sentence of imprisonment be served in a detention centre. 2 At the time of the offence Mr H was aged seventeen years and about nine months, that is to say he was technically a child for the purposes of the Children (Criminal Proceedings) Act. When he stood for sentence he was aged eighteen years and about three months. He is now aged a little more than eighteen years. 3 The relevant facts are set out conveniently at the commencement of the remarks on sentence and it is convenient to quote them for present purposes. "The facts indicate that you and some companions of a like age, you having been born on 24 April 1982 and then being a juvenile, were in a Seven 11 store in Hurstville. That store had its security cameras operating and this was a significant matter when the police came to investigate this offence, in assisting them to identify to some extent the perpetrators of it. You and your companions left the 7 Eleven store and decided among yourselves to entrap and rob any passer-by who might come upon you. For that purpose you and they agreed that the bonnet of one of your companion's vehicle should be raised to indicate that it was broken down and in need of assistance. It was shortly after midnight when Mr. Greiss and his companion Mr. Peter Gunn came on the scene. They had been celebrating at a party and in all good faith, when you approached Mr. Greiss and sought his assistance in relation to the car, both of them approached you and your companions. You asked Mr. Greiss if you could use his mobile phone to make a telephone call for assistance. He gave it to you and you walked away with it. The car was then started and drove off. Mr. Greiss approached you and requested the return of his mobile phone. You ignored his request and you then confronted Mr. Greiss by producing a semi automatic pistol and pointing it at his head. You also pointed that weapon at the person Mr. Gunn. This action was then followed by your leaving the scene. The gun was subsequently recovered by the police in the possession of another person allegedly one of your accomplices. It is capable of being cocked and indeed was cocked when it was presented to the head of Mr. Greiss in an attempt to discourage him from persuading you to return his mobile phone. There is no evidence however before me as to whether the weapon was loaded at the relevant time." 4 Mr H seeks, now, leave to appeal against the sentence which was passed upon him. He puts, essentially, two submissions in support of that application. The first submission is that the learned sentencing Judge did not in terms refer to s 6 of the Children (Criminal Proceedings) Act. Section 6 requires that Courts exercising criminal jurisdiction with respect to children have regard to a number of principles that are stated in very general terms in five discrete paragraphs that together make up s 6 of the Act. 5 The paragraph which is said to be of particular significance in the present case is par (b) which requires the particular Court to have regard to the principle that: "Children who commit offences bear responsibility for their actions but because of their state of dependency and immaturity, require guidance and assistance." 6 The second submission put for the applicant is that the learned sentencing Judge misapprehended the applicability in the present particular case of the principles established by the guideline judgment in Regina v. Henry (1999) 46 NSWLR 346. That submission does not depend entirely, but it depends significantly, upon some comments to be found in the judgment of Hidden J of this Court in R v. Sua (2000) NSWCCA 94. 7 The submission put for the applicant and depending upon s 6 of the Children (Criminal Proceedings) Act can be approached in either or, indeed, both of two ways: it can be approached upon the basis that there was a patent error of law in the failure of the learned primary Judge to mention in specific terms the applicability to the case with which his Honour was dealing of the principles variously stated in the paragraphs that make up s 6 of the Act. 8 It is possible, alternatively, to approach the submission upon the basis that what it is intended to put is, not that there was a patent error of law in that sense, but that there was a latent error of law in the sense that a proper analysis of the end result reached by the sentencing Judge is not consistent with any other conclusion than that there must have been somewhere in his Honour's process of reasoning a failure to give any, or any proper, weight to the relevant parts of s 6. It is appropriate to deal with both possibilities. 9 The proposition that there has been a patent error of law is said to derive from two decisions of differently constituted benches of this Court in proceedings involving one Luan Nguyen. One of those decisions was handed down in December 1992, and the other of them in April 1994. 10 The proposition put for the applicant, stated simply, is that the effect of those two decisions requires that in every case where a sentencing Judge is dealing with a child, as defined in the Children (Criminal Proceedings) Act, it is mandatory for that Judge to make specific reference to, among other things, the provisions of s 6 of the Act. It is submitted that it is a patent error of law for such a sentencing Judge not to refer in terms to s 6. 11 I myself would not accept that proposition framed in that way. For one thing, it seems to me to be in its essence unacceptably artificial. It does not seem to me to accord with either good principle or with good sense to erect such provisions as s 6 into some kind of judicial and forensic check list which has to be, as it were, set down and marked off item by item in order to avoid appellable error of law. Further, it does not seem to me that a fair reading of the two Nguyen cases supports the proposition now put for the applicant. The earlier of those two cases was not dealing in any event with the applicability in particular of the s 6 principles. 12 Of course, it is important to be able to feel a proper confidence that a primary sentencing Judge who is bound by the provisions of the Children (Criminal Proceedings) Act, is aware of that fact, and has at least taken in a practical sense proper account of the relevant provisions of the Act. But it is, I repeat, in my view, a very different proposition to propound that it is an appellable error of law not to carry out that exercise in a pedantically formal kind of way. 13 Even if I be mistaken in that perception of the merits of the submission as to patent error of law, it would not, of course, follow that the appeal should succeed. Were it to be held that there had been a patent error of law of the kind suggested, it would become thereupon the duty of the Court to consider in terms of s 6 of the Criminal Appeal Act whether some other sentence was "warranted in law"; and it would become the mandated obligation of the Court to dismiss the appeal unless affirmatively satisfied that there was some other sentence warranted in law. I shall return presently to this aspect of the present appeal. 14 The alternative way of approaching the submissions put for the applicant is to consider the submissions as being focused, not upon a patent error of law, but upon a latent error of law: that is to say, as being focused upon the proposition that a proper consideration of the end result achieved by the sentencing Judge is not consistent with any other explanation than that of a failure on the part of the Judge to build into his process of reasoning a proper consideration of the relevant requirements of the Children (Criminal Proceedings) Act. 15 Whether such latent error of law can be demonstrated in the present case requires this Court to give consideration to the relevant facts and circumstances in a way that is applicable also to the question, of which I have earlier spoken, whether some other sentence than that passed is "warranted in law" given the assumption that there has been demonstrated some patent error of law. 16 Coming to a consideration in detail of those two related questions, the correct starting point, it seems to me, is not an enthusiastic plunge into the relevant subjective circumstances, albeit they have their proper place, and that place is an important one, in the case of an offender; and the comparative youth of the present applicant. 17 The correct starting point is a level-headed assessment of the gravity of the objective facts of the offence with which the Court is dealing. The learned sentencing Judge put his Honour's views on that matter in the following succinct and pointed words with which I, at least, entirely agree: "The fact is that this offence was committed in a public street where citizens ought to feel entitled at any hour of the day or night to traverse without being subjected to the kind of behaviour to which you subjected them in this case." 18 It is to be borne steadily in mind that the particular victims to whom those words were applied by his Honour, were young people who had come forward to assist, and in all good faith, what seemed to them to be a situation where someone was in difficulty, and where the assistance of a third party might be useful. 19 It is bad enough to think of any citizen being simply bailed up in a public street by an offender, young or old, brandishing a real pistol, cocked and apparently, useable. It seems to me to be measurably worse that the person who is so bailed up is somebody who has not, as it were, passed by on the other side uncaring of the apparent need of somebody else; but who has come forward, as I said, in all good faith to give apparently needed assistance. 20 Differently constituted Benches of this Court have said time without number, but it will bear one more repetition, that offences of the kind here in question are serious offences against public order. They are serious infringements of the right, - not the privilege, but the right, - of every citizen to pass and re-pass with safety in any place of lawful public resort. It cannot be said too often or too firmly that offences of this kind must be treated by the Courts, and will be treated by the Courts, as serious matters in terms of their objective criminality. 21 As I remarked earlier, there are in the case of the present applicant not insignificant subjective considerations. The first and very obvious one is his comparative youth. It is to be borne in mind, of course, that the applicant was not at the time of the committing of the offence a child of very tender years. He was within a bare three months or so of obtaining his legal majority, a status which would have entailed far more serious consequences than those to which he is now exposed. Nonetheless, he was, as these things go, a comparatively young offender, and he is unquestionably entitled to have that taken, and taken seriously, into account in his favour. 22 His antecedents were, as these things go, not particularly serious; and the learned sentencing Judge did not treat them in any contrary way. It is worth remarking, however, that in June 1999, and in the Children's Court at Sutherland, the applicant was dealt with for two matters, one an assault occasioning actual bodily harm, and the other the use of a prohibited weapon without a permit. 23 This Court does not have, as indeed the learned sentencing Judge did not have, any details of those matters. It is fair to draw the inference in this Court, as the learned sentencing Judge drew it at first instance, that the penalties imposed, which were in each case a community service order on conditions and for sixty hours, do not suggest that the offences were essentially offences of any particularly grave kind. 24 It is worth remarking, of course, that offences of that character, even if not the gravest offences in terms of their particular facts and circumstances, are not simply to be brushed aside as having no relevance in a sentencing exercise of the kind with which the learned primary Judge was concerned, as is this Court. 25 The remarks on sentence of the learned primary Judge are, in my respectful opinion, carefully drawn and considered, practical and sensible. They seem to me to have brought into a reasonable balance the objective and subjective matters that were before his Honour. 26 Criticism was made of certain aspects of his Honour's approach to such things as discount for the plea of guilty, discounts for remorse and matters of the kind. For myself, I think that an appropriate approach in terms of general principle to arguments of that kind is to be found in a paragraph quoted by his Honour the Chief Justice in Thompson and Houlton where his Honour, quoting from an earlier judgment of Gleeson CJ in Gallagher stated: "It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities and the personal reasons to which he thereby exposes himself will form a complex of interrelated considerations and an attempt to separate out one or more of those considerations will not only be artificial and contrived but will also be illogical" 27 This particular case seems to me to be one of those cases which typifies the relevance of the principles stated by Gleeson CJ. The question is not whether one can go through the remarks on sentence with a fine tooth comb, picking a sentence here, or a phrase there, and subjecting it to an intense particular scrutiny. The question is whether a sensible overall view of the balance properly to be struck in the particular case between the objective facts and the subjective features indicates that the end result achieved at first instance falls, on a fair view, within a permissible sentencing range. 28 Leaving aside for the moment the second in particular of the two submissions put for the applicant and based upon Henry's case, I would not be satisfied that if there was a patent error in the way suggested, then some other sentence is "warranted in law"; and I would not be satisfied that a fair view of the appellable material would justify the drawing of an inference that absent patent error, there had been demonstrated, nonetheless, latent error. 29 It remains to deal with the submission based upon Henry's case. In his Honour's judgment in the matter of Sua Hidden J made the following comments: "Passing reference was made to the guideline judgment in Regina v. Henry & Ors (1999) but it does not appear that much assistance is available from the case. I take the guidelines to be applicable to adult offenders and not to embrace the special facts embracing the sentencing of children. The principles governing the sentencing of children are well know. I am well aware that the special consideration which might be afforded for persons under the age of eighteen, for the purposes of sentence, might be qualified where the offence involved is a particularly serious one: that is, a crime which might appropriately be characterised as grave adult behaviour." (Emphasis added). 30 It is not necessary, - and it would not, I think, be in any event appropriate, - for a two Judge bench of the Court to attempt the expression of a definitive point of view concerning the correctness or otherwise of the portion of Hidden J's comments which I have emphasised in the above quotation. I would wish for my own part to say simply and with all proper respect to his Honour, that as at present advised, I would not accept as a simple proposition, universally true, what is said by his Honour in that particular portion of the quoted material. 31 Henry itself does not seem to me to be in any particular and precise sense authority for the stated proposition; and I do not see, as at present advised, - but speaking, of course, only for myself, - any other consideration of principle that would make that stated proposition a valid one of general application. 32 As I have said, it is not necessary to tease out that particular conundrum any further, for the reason that even Hidden J accepted that the concessions as to sentencing which are normally extended to an offender under the age of eighteen might well be qualified by the particular need to give appropriate weight to the gravity of the offence in a particular case. 33 In my view, this case is one in which, in any event, that exception would be properly applied. For the reasons earlier given and which I need not repeat, I consider this offence to have been, as these things go, a very serious offence. 34 The applicant was almost eighteen when he committed the offence. He cannot, of course, properly be deprived, simply and comprehensively, of the precautions which are built into the Children (Criminal Proceedings) Act but those precautions are to be extended in a way which is fair, balanced and sensible, having regard to the objective gravity of the offence and the particular subjective features. 35 I have not been persuaded in the result that either of the particular challenges made to the sentence under review has been made good. 36 I would grant leave to appeal and dismiss the appeal. 37 WOOD CJ at CL: I agree that the application for leave to appeal should be granted but the appeal dismissed. 38 I merely add that it is always desirable for sentencing Judges to make it clear that they have taken into account relevant matters of sentencing principle, such as those applicable to young offenders and children. Otherwise, silence in the judgment might serve only to encourage applications for leave to appeal, which may then turn out, after the kind of consideration undertaken in this case, to disclose no patent error of law at first instance. 39 There are obvious advantages in this, in so far as it may save the cost of failed appeals and in so far as it may avoid the raising of false hopes which if dashed can only disrupt the process of rehabilitation. 40 Moreover the proper identification of relevant sentencing principles is likely to prevent error at first instance. 41 Having considered the subjective and objective features, I am similarly of the view that error was not shown in the present case, or that any sentence other than that imposed by his Honour was warranted in law. 42 Accordingly, the order of the Court will be 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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