REGINA v. CN [2001] NSWCCA 100

New South Wales Court of Criminal Appeal

CITATION : REGINA v. CN [2001] NSWCCA 100 FILE NUMBER(S) : CCA 60285 of 2000 HEARING DATE(S) : Monday 26 March 2001 JUDGMENT DATE : 26 March 2001

PARTIES : REGINA v. CN JUDGMENT OF : Greg James J at 1; Smart AJ at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0046 LOWER COURT JUDICIAL Williams, DCJ. OFFICER :

COUNSEL : Crown: P. Berman, SC. App: P.R. Boulten SOLICITORS : Crown: S.E. O'Connor App: Mark Klees & Associates CATCHWORDS : Criminal law - appeal against sentences - two counts supply commercial quantity of heroin and cocaine - juvenile offender - sentence according to law - direction sentence be served in a detention centre - direction means form of sentence less severe - appropriate considerations on sentencing juveniles for serious crimes - sentence not in error. Drugs Misuse & Trafficking Act 1985 LEGISLATION CITED : Justices Act 1902 Children (Criminal Proceedings) Act 1987 CASES CITED: N/A DECISION : Leave to appeal granted; appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

No. 60285 of 2000 CORAM: GREG JAMES, J. SMART, AJ. MONDAY 26 MARCH 2001

REGINA v. CN

JUDGMENT

1 GREG JAMES, J: This is an application for leave to appeal against the sentence imposed by his Honour Judge Williams in the District Court of New South Wales at Sydney on 10 May 2000. The applicant had pleaded guilty to two offences under s.25(2) of the Drugs Misuse and Trafficking Act 1985. 2 Those offences were that he had supplied a prohibited drug of not less than the commercial quantity. The drug in question, as appears from the facts sheet that was before his Honour, on the first charge was heroin, he having supplied bags of that heroin in accordance with a mode of operation which had been adopted some time previously. The drug in question on the second charge was cocaine. 3 In addition, there was a matter of goods in custody on a Form 1. 4 The quantities involved in the two offences being, on the first charge, some 629 grams and on the second charge, some 400 grams, the commercial quantity of each drug being prescribed as 250 grams. 5 The goods in respect of which the goods in custody charge applied, was some $48,000 found in his possession on the same day. 6 The offence of supply carries a maximum penalty of 20 years imprisonment. 7 The applicant had pleaded guilty before the magistrate and the matters went forward under s.51A of the Justices Act 1902. On each of them, his Honour imposed a sentence of imprisonment for three years and six months to commence on 27 April 2000 and to expire on 26 October 2003. 8 His Honour imposed a non-parole period of 18 months to commence on 27 April 2000 and to expire on 27 October 2001. His Honour directed that the sentences he had imposed be served wholly in a detention centre, the applicant being aged 16 at the time of sentence. 9 It has been powerfully argued by Mr. Boulton of counsel on the applicant's behalf that his Honour fell into error. Indeed, it has been argued that his Honour fell into error in that the sentence, notwithstanding that it was directed to be served in a detention centre, particularly having regard to the applicant's vulnerability arising from his deprived home circumstances and his age and naivety, was manifestly excessive. 10 It is further argued that his Honour erred in law in the significance his Honour attached to general deterrence, particularly in the context that it was necessary for his Honour to weigh the matter of general deterrence as is appropriate in the case of juveniles as of less significance in the individual sentence than it might be in the case of an adult, having regard to the increased prospects of rehabilitation that a juvenile offender might ordinarily enjoy. 11 Further, it is argued that there was, and his Honour noted it, substantial evidence before him of the particular prospects for rehabilitation, this intelligent and otherwise competent applicant, enjoyed. 12 His Honour embarked on an extensive review, not only of the personal circumstances of the applicant, and the circumstances whereby he came to commit these offences, having fallen under the deleterious influence of a man variously named John-John or Johnson Su, who had ruthlessly employed him as a courier in the organised dealing with the drugs, but also reviewed the 41 character references that were provided as to those facets of the accused's character at the time, which were plainly highly estimable. 13 His Honour found in the applicant's favour that he had assisted the police and, in particular, attempted to assist the identification of the man John-John. 14 His Honour had noted, however, that the estimated street value of the drugs seized was some $500,000 and that the applicant had apparently committed the offences, as he said at question 293 in his interview:- "It was manifestly because they offered me power which was like me - it wasn't really money, I mean money was a bonus, but there was the thrill of being invincible". 15 Mr. Boulton, in support of his argument that the applicant didn't really understand what it was he was doing, or getting into, has also referred us to various portions of the applicant's interview to similar intent at question and answer 296, 304, 305 and 306, and submitted that what the applicant was doing was not carrying out the offences out of greed, but out of a naive 16-year old's tough-guy stance to assist his being accepted by those who could supply the deficit in his life and home environment arising from the absence of a male parent in those deprived circumstances to which I have referred. 16 Whatever be the cause of the applicant embarking on this behaviour, one can only share the trial judge's view that the offending was most serious and was of such a character as would have, had the offender been an adult and in full recognition of what he was doing, attracted a most substantial custodial sentence to be served in an adult prison. 17 But the sentences his Honour imposed were sentences that were to be served in a detention centre. It is properly conceded by Mr. Boulton, in my view, that the order directing the sentence be served in a detention centre does operate by way of mitigation of the severity of the nature of the penalty his Honour imposed, but it is accepted by both counsel, and I accept also, that his Honour would have fallen into error were he to have extended the term that he might otherwise have imposed in recognition of his willingness to give such a direction. In that regard, it is not suggested that one can find in his Honour's remarks on sentence any indication that he so fell into that error. 18 His Honour did say in respect of the submission made at trial and made by Mr. Boulton here, that he found the applicant knew what he was doing and knew what he was doing was wrong, and his Honour said that, in the context that the appellant had participated in other offences of a similar nature before. So it was difficult for his Honour to accept that this was a first, or isolated, offence. 19 It may be that the motive the applicant had for the commission of the offence was not the customary motive of greed. It may be that it was a motive such as might tend to accord with the recklessness of a teenager and it may be that what was done was done by him because he was preyed upon, being significantly disadvantaged by his family circumstances, but nonetheless, one has to agree with his Honour's conclusion that what he did by participating in the trade was extremely reprehensible. 20 His Honour concluded (page 17 of his remarks on sentence):- "Had he not been arrested, it is difficult to believe that he would have stopped behaving in the way that he was. There is nothing in the facts that suggests he was about to alter his behaviour in any way. In my view these offences are too serious to be dealt with under the Children's (Criminal Proceedings) Act and must be dealt with at law. It is also my view that considerations of general deterrence and the protection of the public far outweigh subjective features of the young person and that a custodial sentence is required". 21 His Honour expressly adverted to the principle that, where young people commit adult offences, as they approach adulthood and adult knowledge, they progressively lose the opportunity of being treated in the more lenient way provided by the legislation dealing with children and the degree of punishment will depend on the severity and the degree of offending. 22 It appears that his Honour was there having regard to the objective he had earlier referred to in his remarks concerning those objects of passing sentence upon children as are referred to in s.9 of the Children (Criminal Proceedings) Act 1987. Those objectives include that referred to in s.6(b) that children who commit offences bear responsibility for their actions:- "s.6(b) That children who commit offences bear responsibility for their actions. Because of their state of dependency and immaturity, they require guidance and assistance." 23 Because of their state of dependency and maturity, they require guidance and assistance. 24 His Honour accepted that the applicant, because of his relative lack of maturity and the deleterious influence of the older person to whom I referred, vulnerable as he was by reason of the lack of appropriate male figures in his life, and at a particularly difficult period of adolescence, did not have the same maturity to resist involvement as an adult might be expected to have had. 25 His Honour took into account his age and rehabilitative prospects and the need for a period of rehabilitation within the community. But his Honour had regard, as well, as having regard to what was patent by way of contrition, to the seriousness of the offence which his Honour concluded meant that questions of deterrence were not as much to be put to one side as they might be with other offenders in other circumstances. 26 In my view his Honour plainly held that both personal and general deterrence needed to be emphasised in a difficult situation. 27 It was contended that his Honour fell into error in doing that. I do not see that he did. Having regard both to personal and general deterrence in the circumstances found by his Honour, I do not conclude the sentence showed such an error as was asserted. 28 It was contended that the applicant did not understand the seriousness of what he was doing. His Honour, in my view, properly found that the applicant did. 29 Insofar as his Honour discounted the knowledge an adult might have had of the seriousness of the conduct, nonetheless, he was not required to make, nor would the evidence support the making of any finding that the applicant didn't, to a considerable extent, realise how serious his conduct was. 30 The submission was made that the total sentence was too long, having regard to the matters his Honour did take into account, in particular the full confession, plea and the assistance. 31 His Honour took into account, and expressed, as I understand it and this is conceded to be the case, all matters to which one might properly have regard as relevant for the determination of the appropriate sentence. The submission, it seems, really is a submission that the sentence, even when one takes into account that it be directed to be served wholly in a detention centre, is manifestly excessive. 32 Having regard, however, to the totality of the criminality involved in what the applicant did on this occasion, in the context that it cannot be treated as an isolated or first offence, notwithstanding what there is to show the prospects of the applicant for rehabilitation, I am not persuaded that his Honour fell into such an error as would warrant the intervention of the court when one comes to consider that his Honour's decision was a discretionary one and the materials, at the end of the day, do not disclose that the sentence, as his Honour passed it, was outside the range of sentences available to him to select at law. 33 I would, therefore, conclude that, although leave to appeal should be granted, the matter having been fully argued, the appeal should be dismissed. 34 SMART, AJ: I agree. 35 GREG JAMES, J: The order of the court will be leave to appeal is granted. The appeal is dismissed. *******