R v Jack Sua [2000] NSWCCA 94

New South Wales Court of Criminal Appeal

CITATION : R v Jack Sua [2000] NSWCCA 94 FILE NUMBER(S) : CCA 60055 of 1999 HEARING DATE(S) : Wednesday 23 February 2000 JUDGMENT DATE : 23 February 2000

PARTIES : Jack Sua (applicant) Regina (respondent) JUDGMENT OF : Hidden J at 1 ; Carruthers AJ at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0708 LOWER COURT JUDICIAL Kinchington DCJ OFFICER :

COUNSEL : I H McClintock (applicant) DM Woodburne (Crown) SOLICITORS : Legal Aid Commission (applicant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - Sentence - Appeal - Juvenile CASES CITED: Regina v Henry & Ors (1999) 46 NSWLR 346 DECISION : Leave to appeal granted. Appeal allowed. Sentence reduced.

IN THE COURT OF CRIMINAL APPEAL 60055/99

HIDDEN J CARRUTHERS AJ

Wednesday 23 February 2000 Regina v Jack Sua

Judgment - ex-tempore

1 HIDDEN J: The present applicant, who was under the age of eighteen at the time of the offence which brings him before this Court, seeks leave to appeal against a sentence imposed upon him after he was found guilty at trial in the District Court of a charge of armed robbery. The learned trial Judge sentenced him to penal servitude for five and a half years, comprising a minimum term of three years and an additional term of two and a half years, and directed that that sentence be served in a Juvenile Justice Centre until the applicant turned twenty-one. The applicant in fact was just short of seventeen years at the time of the offence. 2 The facts as his Honour found them for the purpose of sentence are particularly serious. On 3 June 1998 the applicant went to a private hotel, where he forced his way into the manager's private premises. He threatened the manager with a pistol and demanded money. He tied the manager to the bed in the room and took roughly $140 in cash. He held the pistol against the manager's head and said: "If you don't tell me where the money is I'll blow your fucking head off." 3 The manager told him, as he had told him earlier, that the proceeds of the private hotel business were not in the room. The applicant in effect ransacked the room and then left. The experience for the manager must have been terrifying, to say the least. 4 The applicant has a rather disturbing criminal record for one so young. He is now eighteen years old. It includes a number of offences of violence, including an earlier offence of robbery. However, the sentence his Honour imposed is the first order of full-time custody which he has had to face. He was subject to probation at the time of this offence. 5 The applicant has had a significantly disturbed childhood. He was born in Samoa but was brought to this country in 1991 by an uncle and aunt, leaving his biological parents in Samoa. Just why that happened is not entirely clear. It does seem that the experience was unsettling for the applicant and he continued to miss his home and his biological parents. 6 It seems that he was in some way the subject of abusive behaviour by his uncle, although the precise nature of that also is not clear. This led to his leaving home and virtually living on the streets for a period. It is fortunate that he came to form an association with a woman who lived at Leichhardt with her son. In due course the Department of Community Services intervened and he was fostered to that woman. 7 Whilst living with her, a very serious offence was committed at her home. In effect, it was a home invasion, in the course of which the woman's son was beaten over the head with an iron bar, sustaining severe injuries. It seems that the applicant was present at the time, although upstairs in a position where he was unaware of what was happening, and a psychological report notes that that incident had a severe effect upon him, leaving him with feelings of guilt that he did not intervene and prevent that young man from being injured. It is a terrible irony really that the offence for which he is before this Court bears some resemblance to the incident to which I have referred. 8 Not surprisingly, part of his unfortunate background is his descent into drug abuse. 9 In respect of this offence he has been in Juvenile Justice custody since 15 June 1998 and there was before his Honour a report of a psychologist with the Department of Juvenile Justice and a more conventional Juvenile Justice report prepared for the purpose of sentence. 10 Those reports were somewhat guarded about the applicant's future but certainly contained significant hopeful signs. The Juvenile Justice report in particular noted that the applicant had endured considerable hardship throughout his life; that since being in custody he had given his situation a considerable amount of thought; that he had maintained a high level of positive behaviour and demonstrated an ability to control his anger and violence within the custodial environment; and that he was willing to engage in counselling and would no doubt benefit from it. All this material was before his Honour and it does seem that that experienced sentencing Judge took it into account. 11 In written submissions prepared on the applicant's behalf there were some criticisms of the adequacy of his Honour's reasons for sentence and the suggestion of his Honour's failure to refer to some relevant matters, but those criticisms were not really pressed before us. The nub of the application is that, notwithstanding the seriousness of the offence, the sentence in fact passed fails to give adequate weight to the applicant's age and his unfortunate background. 12 Passing reference was made to the guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346, but it does not appear that much assistance is available from that case. I take the guidelines to be applicable to adult offenders and not to embrace the special facts governing the sentencing of children. The principles governing the sentencing of children are well known. I am well aware that the special consideration which might be afforded to persons under the age of eighteen for the purpose 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. This, of course, is such a case. 13 I have given this matter earnest consideration. The offence, as I have outlined it, is undoubtedly very serious. On the other hand the applicant was quite young, not quite seventeen at the time, and the sentence which he now faces is the first ever imposed upon him. 14 In all the circumstances, I have come to the conclusion that his Honour has failed to give adequate weight to his youth and his background in arriving at the sentence and that this Court should consider for itself what sentence must be passed. To that end we have received in evidence today a further report from the Department of Juvenile Justice which confirms the encouraging trend apparent from the earlier reports, and which gives one some hope that this young man may emerge from custody substantially rehabilitated and may well benefit from guidance and supervision thereafter. 15 Even though I am satisfied this Court should intervene, the seriousness of the offence persuades me that any reduction in sentence cannot be substantial. The reduction I have in mind is six months of the minimum term. I would propose that the additional term not be disturbed. 16 The orders I propose are these: 1. Leave to appeal be granted. 2. Appeal allowed. 17 3. The minimum term fixed by his Honour is quashed and in lieu thereof I would fix a minimum term of two and a half years penal servitude to commence on 15 June 1998 and to expire on 14 December 2000. The additional term of two and a half years penal servitude should stand. 18 CARRUTHERS AJ: I agree. I would merely add that if the applicant commits a further offence one would anticipate that the sentencing Judge would take the view that the applicant has exhausted any leniency which he could expect from the criminal justice system as a consequence of his disturbed background. 19 HIDDEN J: The orders of the Court will be as I have proposed. **********