R v TVC [2002] NSWCCA 325

New South Wales Court of Criminal Appeal

CITATION : R v TVC [2002] NSWCCA 325 FILE NUMBER(S) : CCA 60554/01 HEARING DATE(S) : Thursday, 1 August 2002 JUDGMENT DATE : 1 August 2002

PARTIES : Regina TVC JUDGMENT OF : Sperling J at 1, 23; Greg James J at 22

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/1010 LOWER COURT JUDICIAL Kinchington DCJ OFFICER :

COUNSEL : Ms D M Woodburne for the Crown Mr L Flannery for the Applicant SOLICITORS : Mr S E O'Connor for the Director of Public Prosecutions Mr D J Humphreys for the Applicant CATCHWORDS : Criminal Law - application for leave to appeal against sentence LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s50 Henry (1999) 46 NSWLR 34 CASES CITED: R v Hoai Vinh Tran [1999] NSWCCA 109 Thomson and Houlton (2000) 49 NSWLR 383 DECISION : 1. Grant leave to appeal; 2. Appeal allowed; 3. Sentence set aside; 4. Re-sentence the applicant to a term of imprisonment of three years, commencing on 31 May 2001, with a non-parole period of one year and six months expiring on 30 November 2002; 5. Direct that the sentence be served in a detention centre; 6. Order that the applicant be released on 30 November 2002.

- 1 -IN THE COURT OF CRIMINAL APPEAL 60554/01

Sperling J Greg James J

Thursday, 1 August 2002 R v TVC Judgment 1 Sperling J: The applicant seeks leave to appeal against a sentence imposed by Kinchington DCJ sitting in the District Court at Sydney on 28 November 2001. 2 The applicant was charged with assault with intent to rob whilst armed with a dangerous weapon. The maximum penalty is equivalent to that for robbery while armed with a dangerous weapon, namely, 25 years imprisonment. 3 His Honour sentenced the applicant to a total term of four years and six months imprisonment, to be served in a detention centre, with a non- parole period of two years. 4 The applicant pleaded guilty to the charge at the earliest opportunity. 5 The offence was committed on 27 May 2001. The applicant was born on 9 February 1986. He was fifteen years of age at the time of the offence. 6 The applicant approached and attacked the victim at Fairfield Railway Station at about 11.30pm on a Sunday night. The attack was planned. Two other males were in the vicinity keeping watch. The applicant demanded the victim's mobile phone and threatening him with a knife and a loaded gun, which the applicant cocked in front of the victim. In a struggle that followed, the victim managed to hit the applicant and take his knife and gun from him. 7 On behalf of the applicant, it is submitted that the sentencing judge failed to give sufficient weight to the applicant's youth and that he gave too much emphasis to general deterrence. 8 His Honour's remarks about sentence were ex tempore. Subsequently, his Honour gave written reasons for sentence. There is no substantive departure in the written reasons from what was said in the ex tempore remarks on sentence. Subject to that constraint, a judge is entitled to revise reasons for decisions. Accordingly, the written reasons for decision should be treated as superseding the ex tempore remarks. This is not a point of importance, since, as I have said, the written reasons do not depart substantively from the ex tempore remarks. 9 The applicant had no criminal record. As I have mentioned, he pleaded guilty at the first available opportunity, which his Honour took to be a genuine sign of the applicant's remorse and contrition. His Honour found the applicant to be a relatively immature adolescent, vulnerable to negative peer group pressure. He had been bullied for some months prior to the commission of the offence and had taken up with a group of undesirable individuals for protection. He was not the leader in the planned operation to rob the victim. The applicant had good prospects of rehabilitation and had been doing well in custody prior to sentence. He had an extremely supportive family which boded well for rehabilitation. 10 In the guideline judgment of Henry (1999) 46 NSWLR 34, a sentence of four to five years was propounded as a starting point for the offence of armed robbery in the class of case described in that decision. 11 The applicant's age, the early plea of guilty and the positive finding of contrition and remorse are considerations which moderate the present case referrable to the class of case on which the guideline sentence in Henry was based. The class of case in Henry included a young offender, but, at fifteen years of age, this applicant was very young. 12 The sentencing judge referred to the applicant's youth on more than one occasion in his reasons for decision and he cited authorities which make clear the relevance of this factor. The principles are that, in the case of a young offender, there is a limited role for general deterrence and the emphasis should be on rehabilitation. There is a qualification that leniency should not be so readily afforded to the offender where the offence is one more commonly expected of an adult. The occasion for leniency arises where the offender's immaturity has contributed to the commission of the offence. The principles were not spelt out in his Honour's reasons for decision but they are so well understood that I would assume that his Honour had them in mind. 13 This was, in my view, a case which called for leniency by reason of the applicant's youth. There is a passage in point in the judgment of Wood J in R v Hoai Vinh Tran [1999] NSWCCA 109, In coming to that conclusion his Honour made reference to the well known principle that when courts are required to sentence a young offender considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the offender's rehabilitation: Wilkie (Court of Criminal Appeal New South Wales 2 July 1992 unreported), XYJ (Court of Criminal Appeal New South Wales 15 June 1992 unreported). That is a sensible principle to which full effect should be given in appropriate cases. It can have particular relevance where an offender is assessed as being at the cross roads between a life of criminality and a law abiding existence. 14 There is no doubt that the trial judge did make allowance for the applicant's youth. The question is whether he made sufficient allowance having regard to the considerations which I have mentioned. 15 Another important consideration in mitigation was the plea of guilty at the earliest opportunity. The guideline range in Henry was predicated upon a class of case which included a late plea of guilty: Thomson and Houlton (2000) 49 NSWLR 383 at [161]. The applicant was entitled to a discount of something in the order of twenty percent for the early plea whereas the guideline in Henry is necessarily predicated upon a lesser discount. I refer merely to the utilitarian value of the plea in this respect. 16 Having regard to these considerations, the sentence of four years and six months in the present case was excessive relative to the Henry guideline, notwithstanding that this was an aggravated offence in that the loaded gun was a dangerous weapon. I would, accordingly, set the sentence aside and re-sentence the applicant. 17 The applicant's progress in prison has been exemplary. He has applied himself productively to his studies and has received numerous awards in recognition of his participation in a variety of programs. 18 A report by Dr J Grainger dated 22 July 2002 indicates a determination on the part of the applicant to behave responsibly when he is released. In broad terms, Dr Grainger regards the applicant's prospect of complete rehabilitation as high. 19 I propose a sentence of three years commencing on 31 May 2001. I would find special circumstances having regard to the need for an extensive period of supervision on parole when the applicant is released. I would fix a non parole period of one year and six months expiring on 30 November 2002. Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999, there should be an order that the applicant be released immediately on expiration of the non parole period. 20 The direction that the sentence be served in a detention centre should be preserved, as should the sentencing judge's recommendation that the applicant serve the balance of his sentence at his present place of incarceration. 21 The orders I propose are accordingly as follows: