New South Wales Court of Criminal Appeal CITATION : R v JNN [2004] NSWCCA 426 HEARING DATE(S) : 25 October 2004 JUDGMENT DATE : 30 November 2004 JUDGMENT OF : Wood CJ at CL at 1; McClellan AJA at 2; Smart AJ at 3 DECISION : See para 58 CATCHWORDS : Sentencing - Detaining without consent with intent to obtain advantage in circumstances of special aggravation - serious objective criminality - juvenile when offence committed - due proportionality of all components of sentence with those of co-offender - co-offender sentenced for other offences - effect of partial concurrency and partial cumulation of sentences LEGISLATION CITED : Children's Criminal Proceedings Act 1987 R v Dodd (1991) 57 A Crim R 340 at 354 R v GDP (1991) 53 A Crim R 112 at 116 CASES CITED : R v McVittie [2002] NSWCCA 344 at [26] R v Steele (unrep) NSWCCA 17/4/97 at p 12 Postiglione v The Queen (1996-7) 189 CLR 295 at 301-2 PARTIES : Regina v JNN FILE NUMBER(S) : CCA 2004/2359 COUNSEL : (A) R Burgess (C) E Wilkins SOLICITORS : (A) S O'Connor (C) S Kavanagh LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0333 FILE NUMBER(S) : LOWER COURT Ellis DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL WOOD CJ at CL McCLELLAN AJA SMART AJ Tuesday, 30 November 2004 Regina v JN N Judgment 1 WOOD CJ at CL: I have read in draft form the judgment of Smart AJ. I agree with the orders proposed, and with the reasons of his Honour. 2 McCLELLAN JA: I have read in draft form the judgment of Smart AJ. I agree with the orders proposed and with the reasons given. 3 SMART AJ: JNN seeks leave to appeal against a sentence of imprisonment for 3 years and 4 months with a non-parole period of 20 months for the offence of detaining LT without her consent and with intent to obtain an advantage in circumstances of special aggravation in that the applicant was then in company with other persons, and at the time actual bodily harm was occasioned to LT. The maximum penalty for that offence is 25 years imprisonment. It is a serious children's indictable offence pursuant to the Children's Criminal Proceedings Act 1987 (see s 17 sub para (b) of the definition of serious children's indictable offence) and must be dealt with according to law, although JNN was aged 17 years 2 months at the time of the offence. 4 On 27 March 2002, about 3pm, the complainant (LT) was at her home at Punchbowl with her parents and sister. Toan La attended that home and the complainant and her parents were wrongly given to understand from what he said that the complainant's boy friend at that time was waiting out the front of the family home in a nearby motor vehicle. The complainant and Toan La left the home and walked to the vehicle. When the complainant was about one metre from the car the right rear door opened and the applicant alighted. Another female and the applicant grabbed the complainant. With the assistance of other co-offenders the complainant was forced into the rear of the vehicle and prevented from leaving. The complainant screamed during this period. 5 Within the rear of the vehicle the applicant sat on one side of the complainant and an unknown female co-offender on the other side. The vehicle was driven by another unknown female co-offender. Toan La and an unknown male co-offender were also in the vehicle. It was driven to Rotary Park, off Belmore Road, Riverwood. In the centre of the park the complainant was ordered from the vehicle by the applicant and the other two female co-offenders. 6 The complainant was hit and slapped on a number of occasions by the applicant and fell to the ground where she was kicked by the applicant and co-offenders on numerous occasions. The complainant attempted to shield her face from the attack but sustained several kicks to the facial area and body. 7 During the attack the two males stayed in the vehicle. The applicant wielded a pair of scissors and cut large chunks of the complainant's hair from her head. The complainant was next told to remove her top and her pants. She was left wearing only a red singlet top, black underwear and a brassiere. She was further kicked and assaulted. She was ordered to remove her black underwear and the singlet. 8 During the assaults the applicant and the female co-offenders asked the complainant about an abortion allegedly performed upon her. The applicant and the female co-offenders referred to the complainant as a "slut" and it was remarked "We don't want you opening your legs for all the guys." 9 At one stage the complainant was naked. Before the assailants left, the applicant threw the complainant's red singlet top and underwear to her. She wore these. After the car containing the assailants drove off the complainant made her way to a nearby factory. The police and the ambulance were called. The complainant was taken to Bankstown Hospital where she was treated. As the judge remarked, a series of photographs graphically depicts the numerous and serious injuries the complainant received as a result of the beating. 10 In her police record of interview on 5 April 2002 the applicant, who had been arrested by the police, agreed that the complainant had been lured out of her house into a motor vehicle, that she, the applicant, was in the car and that the complainant had been assaulted. There were five of them. She said that the two boys stayed in the car and that the other two female co-offenders were the assailants. She said that she stood by. She nominated Toan La as the person who had lured the complainant to the vehicle. The applicant was aware that the complainant was going to be assaulted. 11 During the interview the applicant endeavoured to minimise her role in the abduction and assault and lay the blame principally on the other two female co-offenders, whose names she claimed not to know. However, the other evidence points to the applicant playing a leading role. 12 In her account of the details of the offence given to Ms M A Edwards, the Juvenile Specialist Counsellor, the applicant was a good deal more forthcoming, admitting that she pulled the victim by her arm into the back seat of the car while one of the male offenders pushed the complainant who was screaming. The applicant admitted that she was fully involved in the assault upon the complainant in the park, kicking her five to six times in the head. This passage appears: "… J proceeded to cut off the victims hair. J reports that she then went up close to the victim's face and told her 'not to tell the school about this'. J states that by this point the victim had no clothes on at all, 'was crying and was already looking very bruised ..." 13 The applicant told Ms Edwards that she never intended that the assault "would go that far". 14 Ms Edwards commented: "It is of concern that although J is adamant that the victim did not deserve the assault and displays what appears to be appropriate remorse for her behaviour, J continues to make comments that serve in part to rationalise her behaviour. J continues to state, 'What she, (the victim) did, led to what happened'." 15 The applicant believes in remedial action if someone close to her is being wronged or taken advantage of or picked on, preferably non violent action. She would use a lesser degree of force in the future. 16 The applicant was born on 25 January 1985. At the time of the offence she was in Year 10 at Bankstown Senior College endeavouring to continue her education. 17 The judge found that the plea of guilty was not entered at the first reasonable opportunity but that it was entered prior to trial and that it had a significant utilitarian value. The judge concluded that there was genuine contrition built into that plea. He allowed a discount of 15 per cent for the plea of guilty. 18 The applicant has no prior convictions. 19 The complainant's victim impact statement demonstrates that the offence has had a serious effect upon her. She feels she cannot trust or rely on anyone again and is constantly anxious. She cannot concentrate in some of her classes and her English language skills are deteriorating. She had to procure treatment from a psychologist in respect of significant difficulties. The psychologist thought that she developed acute post traumatic stress disorder but that her symptoms will continue to remit. There continues to be ongoing difficulties [school attendance and social functioning]. Her psychological state has been adversely affected. 20 The complainant was also seen by the Clinical Psychologist, Dr Renata Wagner. As at 4 November 2002 the complainant had been seen on some twelve occasions for psychological counselling. She was also treated by Dr E Guirguis for physical and psychological harm. The complainant could not return to her school and her education for the remainder of 2002. She is fearful and suffers panic attacks. 21 The judge correctly found that because of the grave criminal conduct of the applicant general deterrence and punishment were important. The judge also took into account that it was important to allow the applicant to continue her education without interruption, that it was desirable wherever possible to allow a child to reside in her own home and that children require guidance and assistance. 22 The judge took into account the aggravating and mitigating factors of the offences. Amongst the aggravating factors were gratuitous cruelty, substantial harm, hatred, planned and organised criminal activity which may not have included such a serious assault. 23 Mitigating factors included her previous good character, being unlikely to re-offend, good prospects of rehabilitation, remorse, her plea of guilty and not being fully aware of the consequences of her actions by reason of her age. The judge noted that the complainant's parents separated when she was six and that she had been raised by her mother with considerable support from her extended family members. 24 She encountered difficulties with her schooling whilst at a Catholic girls' school and left. She worked for some time before returning to further her education at the Bankstown Senior College in 2002. Her behaviour at the College is acceptable and she is regarded as a capable student. She also works casually as a chef's assistant three nights per week. 25 The judge found that the applicant accepted full responsibility for her behaviour. The judge took into account a series of favourable matters referred to by Ms Edwards as to the applicant, including no known history of violence or offending, her stable living environment, her network of family support and that she had been successfully residing in the community for two years since the commission of the offence. 26 The judge took into account some favourable references, some community service which she had rendered and the report of Ms Anita Duffy, psychologist. The applicant told Ms Duffy that she had changed considerably since the incident. Ms Duffy wrote that the applicant was a person who tended to be somewhat dependent and submissive in her relationships with others and that she tends to want to be "in the crowd". 27 Ms Duffy recorded that the applicant felt she had matured considerably and that the applicant had learnt to establish boundaries between herself and her friends so she does not become over involved in their problems. 28 Ms Edwards and Ms Duffy thought that the applicant would be adversely affected by being sent to gaol. 29 Appeal Ground 1 reads: "His Honour erred in placing too much weight on general deterrence and insufficient weight on rehabilitation when fixing the overall sentence." 30 The applicant pointed to these remarks of the judge: "It is the type of offence where it must be borne in mind that general deterrence and punishment are very important and cannot be ameliorated by good subjective or rehabilitated (sic) (? rehabilitation) factors." That overstates, partially, the correct position. General deterrence and punishment are important but with a young offender good subjective and rehabilitation factors are also important and will generally point in the direction of a lesser sentence. Of course, everything depends upon the particular facts. 31 The applicant also pointed to these remarks of the judge: "…the promotion of rehabilitation is a desired outcome … but nevertheless the promotion of rehabilitation must in some cases be subject to … the greater need for punishment, general deterrence, the protection of the community and the need to denounce the conduct of an offender, and to make that offender accountable for … her actions whilst recognising the harm to the victim and the community that criminal conduct of this type invariably causes." 32 The applicant submitted that the judge did not have sufficient regard to the principle that generally the youth of an offender will mean that less weight is given to deterrence and more to rehabilitation: R v GDP (1991) 53 A Crim R 112 at 116. The Crown relied on R v Dodd (1991) 57 A Crim R 340 at 354 stressing the need for a sentence proportionate to the objective gravity of the crime and that this was a serious crime carrying a maximum penalty of 25 years imprisonment. 33 Although not happily expressed I doubt if the judge meant any more by the passage quoted in its context that this was a very serious crime and that while rehabilitation was important the sentence had to reflect the objective gravity of the crime, including adequate punishment and general deterrence. 34 While abstract statements of principle have their place it is desirable not to become preoccupied with these at the expense of the particular facts under consideration. The judge recognised that at least part of the rationale for making allowance for youth, that is, being under the age of 18 years lies in their dependency and immaturity. There is a substantial benefit to the community in rehabilitating a young offender. The correct balance has to be struck between competing considerations. 35 When regard is had to the judge's reasons as a whole they reveal that he was acutely aware of the applicant's age, of the need for her education to continue, her immaturity, her good prospects of rehabilitation, her previous good character, the dependent features of her character and her desire to conform to peer pressure. 36 Despite the debate as to the terms of the judge's sentencing remarks, the sentence imposed does not support the submission that for the grave criminality involved the judge placed too much weight on general deterrence and insufficient weight on rehabilitation when fixing the overall sentence. Appeal Ground 1 should be rejected. 37 Appeal Ground 2 reads: "The overall sentence and the non-parole period are manifestly excessive, taking into account the delay before sentence, the applicant's plea of guilty, her contrition, good character, age, subjective case and prospects of rehabilitation." 38 The applicant submitted that the sentence reflected that too much weight was placed on general deterrence and punishment and that no allowance was made for her immaturity or the need to foster her rehabilitation in fixing the overall sentence. These arguments are not accepted. The sentence itself destroys such arguments. 39 It was pointed out that as the judge allowed a reduction of 15 per cent for the plea and the sentence imposed was 40 months the starting point must have been 46 months (3 years 10 months). It was submitted that this was manifestly excessive taking into account the applicant's age, immaturity, her motivation for the offence and her favourable subjective case including her good prospects of rehabilitation. 40 The judge took into account what he described as the delay in dealing with the matter and that the applicant was on bail on onerous conditions in the two years between being charged and sentenced. From 5 April 2002 to 7 February 2003 she had to report to the Bankstown Police Station every Monday, Wednesday and Friday. It was reduced to each Monday as from 7 February 2003. She was permitted to fly to Vietnam from 17 to 31 January 2004 and excused from reporting during that period. There was the usual non-molestation provision as to the complainant. 41 In R v McVittie [2002] NSWCCA 344 at [26] the Court held that being required to report to police while on bail was not a mitigating factor. To describe the bail conditions as onerous was over generous to the applicant. 42 As to delay, the matter was listed for trial in June 2003, some 14 months after she was charged. The delay was not gross. The plea of guilty was not entered until shortly before the trial. On one occasion she requested an adjournment of the sentencing proceedings to enable her to do exams. On a subsequent occasion when the matter had to be adjourned because the requisite background report had not been completed she obtained a variation of her bail conditions to visit Vietnam with her family. Too much should not be made of the question of delay. The judge also treated the applicant generously on the issue of delay. 43 The period on bail allowed the applicant to show a substantial period of good behaviour which assisted her on sentencing. Further, during this period the complainant's condition improved. 44 Given the grave criminality involved in this very serious offence neither the head sentence of 40 months nor the non-parole period of 20 months was manifestly excessive. Appeal Ground 2 should be rejected. 45 Appeal Ground 3 reads: "The applicant has a justifiable sense of grievance when considering the sentence imposed on the offender Toan La." 46 Toan La who was aged 18 years and 7 months at the time of the offence, pleaded not guilty to the same charge but was convicted. On 16 December 2003 he was sentenced by Payne DCJ for this offence and also for an unrelated offence of robbery in company on 27 November 2002 while on bail and subject to community service orders in relation to other unrelated offences. For the offence of 27 March 2002Toan La was sentenced to 3 years imprisonment from 27 November 2002 with a non-parole period of 18 months. As to the robbery in company he was sentenced to 3 years and 4 months with a non-parole period of 18 months commencing on 27 May 2003. The total effective sentence was 3 years 10 months and the total effective non-parole period was 2 years. Because of the accumulation of the sentence the effective period which Toan La will spend in prison on the detain for advantage in circumstances of special aggravation charge is 6 months. 47 As counsel for the applicant emphasised, Toan La had pleaded not guilty while the applicant pleaded guilty and expressed remorse. Toan La had committed a serious offence while on bail for the subject offence, whereas the applicant had not re-offended and had accepted responsibility for her actions. Her prospects of rehabilitation were markedly higher than those of Toan La. 48 Payne DCJ found, conformably with the jury's verdict, that Toan La had pushed or helped to push the complainant into the motor vehicle and that he knew that she was going to be physically assaulted but was not aware of the extent of the intended assault. Payne DCJ found that the offence was initiated by JNN, that she had the motive and that she had recruited Toan La. 49 The applicant played the leading role in the offence and was guilty of considerable cruelty. Toan La's role by luring the complainant with whom he was friendly, knowing that she was likely to be assaulted, was significant. The applicant played a leading role in bundling the complainant from the car and stripping her. The applicant kicked the victim about the head and cut her hair. Toan La stayed in the car. Her criminality was gross and merited a higher sentence than Toan La. 50 Counsel for the applicant relied on the well known passage of Dawson and Gaudron JJ in the judgment in Postiglione v The Queen (1996-7) 189 CLR 295 at 301-302. There must be due proportion between the sentences and that includes all components 51 In giving his reasons why parity did not apply the judge relied on Toan La being an adult and the applicant being a juvenile to whom, in essence, a different sentencing regime applied. It is no longer the law that regard cannot be had to the sentence imposed on a juvenile when sentencing an adult or when an appellate court is considering parity or proportionality. However, the weight of the sentence imposed on the juvenile is limited because of the different sentencing regimes. Everything depends on the circumstances. Sometimes the juvenile has been the ringleader and had the greater criminality. Sometimes the age difference between the co-offenders is minimal. The adult may in fact be less mature and less practised in criminal enterprises or less intelligent than the juvenile. The list is not exhaustive. 52 Where the adult co-offender is sentenced first, or there is an appeal, there is no good reason why regard may not be had to the sentence imposed on the adult when sentencing the juvenile or considering, on appeal, the sentence imposed on the juvenile. Again caution must be exercised. Subject to variations in their subjective cases where the adult and juvenile co-offenders appear equally blameworthy it would not usually be expected that the sentence on the juvenile co-offender would exceed that imposed on the adult co-offender. Again, everything depends on the particular facts. 53 There is a lack of due proportion in the sentences imposed on Toan La and the applicant. She is entitled to have a justifiable sense of grievance. 54 The Crown submitted that the differences in the sentences are not so significant that this Court should intervene. I am unable to agree. The structure of Toan La's sentence is such that he will serve effectively but 6 months in prison for the offence of 27 March 2002 before the accumulated second sentence takes effect. The offences of 27 March 2002 (detain for advantage) and 27 November 2002 (robbery in company) were entirely separate and Toan La was fortunate to be given such a high level of concurrency in respect of the sentences for those offences. The applicant would expect to spend 20 months in prison for the offence of 27 March 2002. 55 The Crown in reliance upon R v Steele, unreported NSWCCA, 17 April 1997 at p 12 per Simpson J, Sheller JA and Grove J concurring, pointed out that the parity principle does not oblige this Court to reduce a sentence that is not itself excessive to the point where it might be regarded as inadequate. If it were not for a lack of due proportion I would not have intervened. As to the full term of the sentence of 40 months (3 years 4 months), when compared to the full term of the sentence of 36 months (3 years) imposed upon Toan La there is a lack of due proportion. While the applicant's criminality is greater, she pleaded guilty and was remorseful. Further, she was a juvenile. In the circumstances the full term of her sentence should also be 3 years. It could not be less otherwise it would not sufficiently reflect the objective criminality of the offence she committed. 56 The non-parole period fixed in respect of the sentence of the applicant lacks due proportion when compared with the period in prison which will effectively be served by Toan La for the offence of 27 March 2002. When sentences are made partially concurrent and partially cumulative in the application of the principle of totality, some distortions may occur. Again because of the gravity of the criminality involved in the offence of 27 March 2002 only a minor reduction in the non-parole period should be made otherwise that portion of the sentence will be inadequate. The non-parole period should be 18 months. There is no completely satisfactory solution to the problems presented by this case. It is evident that I have found along with the judge, the existence of special circumstances. These include this being her first time in custody and her need for extended supervision on her release. 57 I have hesitated before making such minor sentence reductions as they give the impression of tinkering. The reasons for the course taken are twofold. First, it is important that there be due proportion between all components of the sentences, including the actual time likely to be spent in gaol for the offence. Secondly, anything less than a non-parole period of 18 months would not sufficiently reflect the applicant's substantial criminality. 58 I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal allowed, sentence quashed. 3. In lieu of the sentence imposed the applicant is sentenced to imprisonment for 3 years commencing on 20 February 2004 with a non-parole period of 18 months starting that day and expiring on 19 August 2005 on which day the applicant is to be released to parole. 4. Direct that the sentence be served at a Juvenile Justice Detention Centre (or its successor) and that on her release to parole the applicant be supervised for her period on parole and that the NSW Probation and Parole Service take over her supervision from the Juvenile Justice System at a point assessed as mutually appropriate by the Probation and Parole Service and the Department of Juvenile Justice. ********** Last Modified: 12/07/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.