New South Wales Court of Criminal Appeal CITATION : R v D.S.W [2003] NSWCCA 322 revised - 10/11/2003 HEARING DATE(S) : 16 October 2003 JUDGMENT DATE : 5 November 2003 JUDGMENT OF : Studdert J at 1; Barr J at 2; Whealy J at 38 DECISION : Appeal dismissed. CATCHWORDS : Criminal law - sentencing - malicious infliction of grievous bodily harm. LEGISLATION CITED : Criminal Appeal Act Children (Criminal Proceedings) Act Cameron v The Queen [2002] HCA 6 R v Thomson and Houlton [2000] NSWCCA 309 CASES CITED : R v GDP (1991) 53 A Crim R 112 R v Pham (1991) 55 A Crim R 128 R v Hawkins (1993) 67 A Crim R 64 R v Gordon (1994) 71 A Crim R 459 PARTIES : Regina D.S.W FILE NUMBER(S) : CCA 60208/03 COUNSEL : Crown: E A Wilkins Respondent: C B Craigie SC SOLICITORS : Crown: S E O'Connor Respondent: P I Bugden LOWER COURT District Court JURISDICTION : LOWER COURT 02/51/1079 FILE NUMBER(S) : LOWER COURT Ducker ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60208/03 Studdert J Barr J Whealy J Wednesday, 5 November 2003 REGINA v D.S.W Judgment 1 STUDDERT J: I agree with Barr J. 2 BARR J: This is an appeal brought by the Crown under s.5D Criminal Appeal Act. On 4 March 2003 the respondent was found guilty by a jury of maliciously inflicting grievous bodily harm upon the complainant, Mr Shane Noel. On 29 May 2003 Ducker DCJ sentenced him to imprisonment for four years and fixed a non-parole period of two years and six months. His Honour ordered under s.19 Children (Criminal Proceedings) Act that the sentence be served in a Juvenile Justice Centre. The Crown says that the sentence is inadequate. 3 The respondent, an aboriginal youth, was born on 3 September 1985. On 7 March 2002, when he was aged sixteen years and six months, he was in the company of friends and relations at an hotel in Grafton. The premises closed at about 11:00pm and the party left. The respondent had had so much to drink that he vomited. As the party moved away from the hotel there was a scuffle among its members, but he broke away from it. He came upon Mr Noel, a young man who was walking along the street minding his own business. He attacked Mr Noel. Nobody who gave evidence was able to say how the violence began, but the sentencing judge was satisfied that the respondent had started it. The respondent later gave two explanations why he had dealt with Mr Noel in the manner complained of. One was that he had a few days earlier called him a poofter and the other was that he had made a racist remark. The sentencing judge believed neither of those explanations. The evidence does not explain how it came about, but Mr Noel came to be lying in the street, apparently unconscious and quite unable to defend himself. The sentencing judge found that the respondent forcefully and deliberately jumped on his head, certainly more than twice. The attack ended when an adult member of the respondent's group pulled him away. That adult tried to help Mr Noel but was unable to do so. He saw blood and other fluid running from Mr Noel's ears and nose. 4 Before the attack Mr Noel was a healthy young man of normal intelligence. He suffered intermittent psychosis, probably schizophrenia, which was responding well to antipsychotic medication, and had a drug-induced problem for which he was receiving counselling and support. He was well and able to manage his own affairs. After the attack he was admitted to the Princess Alexandra Hospital in Brisbane. Scans revealed bilateral extracranial haematomas but no fracture of the skull or intracranial abnormality. He was badly affected and remained within the brain injury unit of the hospital for a number of months. He was doubly incontinent and dependent for all care. His cognition was seriously impaired. 5 In statements which were put before the sentencing judge, members of Mr Noel's family described the condition of Mr Noel in May 2003. He was unable to walk unassisted and used a walking frame with wheels. He was unable to walk long distances without becoming tired. He could not complete normal daily activities, such as showering and attending to his personal hygiene, without assistance. He had difficulty preparing meals and drinks. He suffered body tremors. He was incontinent on occasions at night. His vision was reduced. He had difficulty in focusing, reading and writing. He was undergoing physiotherapy and needed care and supervision 24 hours per day. He was unable to hold a driver's licence or drive a motor vehicle. He suffered from short-term memory loss. He tended to become agitated, frustrated and verbally abusive at times. He had a low attention span and had lost the ability to draw. Sometimes he was withdrawn. Sometimes he had difficulty understanding simple routines. He was confused when handling money and tended to lose track of time. It was necessary for the members of Mr Noel's family responsible for caring for him to be constantly on the alert. Their time was very much taken up with his care, with his personal hygiene, seeing to his medication and transporting him to physiotherapy, medical and hospital appointments. The stress and strain on the family was great. All the indications were that that state of affairs would continue indefinitely. 6 It is implicit in the findings of the sentencing judge that the respondent did nothing to try to help his victim. Moreover, as his Honour said, he gloried in what he had done, offering to demonstrate to those present what he had done and jumping close to Mr Noel's head. His Honour took the view that there had been no convincing statement of remorse on behalf of the respondent. A witness was called at the sentencing hearing who reported that the respondent had said to members of his family that he was sorry, but his Honour did not find the evidence impressive. His Honour noted that the maker of a Juvenile Justice report had observed that during her interview with the respondent remorse was neither stated or implied. 7 The respondent is the eldest of three children born to his mother and father. There are half-brothers and sisters as well. His parents separated when he was four or five years old and he was brought up by his grandparents. His mother and grandparents are part of the aboriginal community at Yamba. His father lives at Casino. All are concerned for him. 8 The respondent attended Maclean high school and left at the end of year nine. His attitude there was satisfactory and he is not recorded as having misbehaved. However, he began to use alcohol and other drugs at an early age. He first appeared in court in 1997, when he was placed on probation for two years for some unspecified offence. He was supervised by the Department of Juvenile Justice and responded satisfactorily. He was before the courts twice again in 1999, four times in 2000 and seven times in 2001. His offences were of misbehaviour, stealing and kindred offences and the possession of drugs. In March 2001 he was dealt with, among other things, for two instances of assaulting and intimidating police officers. He was put on a six month control order. That brought him into the Jacaranda Unit at the Juvenile Detention Centre at Grafton. On 15 July 2001 he was behaving in a noisy and agitated manner in his room. When one of the youth workers went to investigate the respondent punched him, breaking his nose. He was reported to have taken pleasure in the commission of that offence and to have said that if given the chance he would hit the worker again twice as hard. 9 That offence produced a twelve month period of probation and it was during the currency of that term that the respondent attacked Mr Noel. 10 A Juvenile Justice report was put before the sentencing judge. It indicated that during 2001 he had been binge drinking spirits weekly and using cannabis daily. Reports had indicated that he was not mentally ill and, unsurprisingly, that his offensive behaviour was connected with his abuse of alcohol and other drugs. He was said to have a propensity to react quickly and violently to behaviour by other males that he perceived as sexual. 11 His Honour had to decide in view of the age of the respondent whether to deal with him according to law or under the provisions provided by young people in the Children (Criminal Proceedings) Act. His Honour decided that the only appropriate way to deal with the respondent was according to law. 12 There were several features his Honour was bound to take into account in deciding how to sentence the respondent. The first was the objective seriousness of the attack on Mr Noel and its grave consequences. The second was the respondent's youth. The third was his troublesome history of violence and his abuse of alcohol and other drugs. The fourth was his lack of remorse and its effect upon his prospects of rehabilitation. The fifth was an offer he had made to plead guilty to this offence. 13 This last matter needs explaining. The respondent had been tried for the offence of maliciously inflicting grievous bodily harm with intent to do so. The jury had acquitted him of that charge but had found him guilty of the statutory alternative. During the sentencing proceedings counsel for the respondent informed his Honour that at the committal an offer had been made on his behalf to plead guilty to the offence of which he was ultimately convicted. The Crown had refused to accept the offer but had required the respondent to come forward to trial on the more serious charge. A conviction on that charge would have attracted a maximum penalty of twenty-five years' imprisonment. The offence of which the respondent was found guilty attracted a maximum sentence of only seven years' imprisonment. 14 Having expressed surprise at the verdict, his Honour commented critically on the difference between the two maximum penalties and called for an increase in the maximum penalty for the lesser offence. 15 The position of the respondent before his Honour was clear. He was entitled to full consideration for his offer. Although the Crown could not be criticised for pressing on to a trial on the more serious charge, the result of which was that the community was saved no time, trouble or expense, the respondent was entitled to equal value for his willingness to facilitate the course of justice: see Cameron v The Queen [2002] HCA 6. The appropriate range of discount in such an event is between 10% and 25%: R v Thomson and Houlton [2000] NSWCCA 309. Generally, the earlier the plea is offered the higher is the allowance that is made. 16 His Honour observed that the respondent's record did not entitle him to leniency and identified as an aggravating factor the assault on the police officer which had resulted in the control order and the assault during the period of that order on the youth worker. 17 This was a difficult sentencing matter and his Honour summarised the matter in this way- Despite his age, the offender must be sentenced according to law. However, his youth must be taken into account. Rehabilitation retains significant importance. The present offender's apparent lack of remorse and expressions of his satisfaction from his violent behaviour are a source of concern as to his prospects of rehabilitation. 18 His Honour went on to observe that if the case had concerned an adult he would have allowed some leniency for the plea of guilty and imposed a sentence of something like six years' imprisonment. His Honour continued- Bearing in mind the age of the offender and the importance of rehabilitation of young offenders, there must be some weight given to the possibility of reform despite his present negative attitude which appears deeply entrenched. I am however firmly of the view that any sentence less than four years, given the seriousness of the offence and its appalling results would be insufficient, particularly in the light of his prior history of violent behaviour. 19 In shortening the non-parole period from three to two and one half years his Honour spoke about the age of the respondent and the length of the sentence. He wished to make it clear, especially to the Parole Board, that the principal reason for fixing such a non-parole period was so that the respondent's suitability for release could be reviewed after the service of two and a half years' imprisonment. His Honour observed that it should not be seen as an indication that the respondent should necessarily be released at that time. His Honour expected that the Parole Board would reach its decision after carefully evaluating whether the respondent's attitudes had undergone any or any sufficient change so that he no longer presented a risk of committing further violent offences. 20 The Crown submitted on appeal that his Honour's remarks revealed one frank indicator of error. It was submitted that the fact that the offence was committed during the period of a bond required a finding that the prospects of rehabilitation were consequentially poorer and a statement that a correspondingly smaller allowance had been made on that account. I do not think that so experienced a judge lost sight of the fact of the bond or that his Honour failed properly to assess the respondent's prospects of rehabilitation accordingly. No rule required his Honour to mention that matter in particular. I do not accept that error so appears. 21 The Crown otherwise asserted that his honour made these errors, which it called "identifiable errors"- a. His Honour failed to impose a sentence which reflected the objective seriousness of the offence and the aggravating features in respect of it; b. His Honour gave too much weight to the youth of the offender and insufficient weight to issues of general deterrence, personal deterrence, punishment and the protection of the community; and c. His Honour failed to fix a non-parole period that adequately reflected the seriousness of the offence. 22 Without derogating in any way from the important principles that these submissions raised, it is necessary to observe that in total they did no more than assert that the length of the head sentence and the length of the non-parole period themselves indicate error. 23 It was submitted that the brutality and mercilessness of the attack, the seriousness of the injuries and the long term consequences for the complainant were so grave that this fell into the worst category of cases of its kind. Despite his intoxication, it was submitted, the respondent knew what he was doing and was without remorse. His previous convictions for violence and the fact that he was on probation at the time demonstrated his persistent disregard for the law and the safety of others, giving rise to a particular need for personal deterrence. 24 The Crown acknowledged that general deterrence is generally not as important in fashioning sentences to be imposed upon young offenders and that consideration of rehabilitation is correspondingly more important. Reference was been made to R v GDP (1991) 53 A Crim R 112. The Crown also correctly submitted, by reference to cases like R v Pham (1991) 55 A Crim R 128, R v Hawkins (1993) 67 A Crim R 64 and R v Gordon (1994) 71 A Crim R 459, that the need to protect the community requires that deterrence and retribution remain significant elements even in sentencing youthful offenders. 25 The Crown referred to an observation of his Honour that a sentence of about six years would have been appropriate for an adult which, it was said, implied a conclusion that this offence fell into the most serious category of such offences, warranting the maximum sentence, and a discount of about fifteen percent for the offer of the plea of guilty. It was submitted that the subsequent reduction of the head sentence by one third to four years amounted to a miscarriage of justice. 26 The Crown produced such statistical sentencing records as were available, but they showed that there were only four instances of offenders under twenty-one years of age pleading guilty to the commission of similar offences while at conditional liberty. Three of the cases resulted in imprisonment. The head sentences varied from three to four years and the non-parole periods or minimum terms from one to two and a half years. The Crown conceded that the record was of no statistical significance. 27 The Crown put before the court the remarks of sentencing judges in certain cases, for the most part the ones represented in the statistical figures I have mentioned. The salient details are as follows. 28 Vaea Taliai was sentenced by Urquhart QC, DCJ on 19 January 1996. Taliai pleaded not guilty and was found guilty by the jury. When he was twenty-one years old he and another man chased, knocked down and viciously kicked their victim. He sustained fractures to the base of the skull. He was unconscious for five and a half weeks. He sustained permanent brain damage. Whereas he had been a promising university student he could not maintain attendance at even a fairly basic TAFE course. He had poor memory and poor impulse control. His propensity to spend his money frivolously made him virtually incapable of handling his own affairs. His condition was permanent. The head sentence was three and a half years' imprisonment and the minimum term two years' imprisonment. 29 Ahu Stanley Taylor was sentenced by Blanch CJDC on 17 April 1997. He responded to an attack commenced by the complainant, overcame him and kicked him several times in the head and body. He picked the complainant up by his hair and smashed his head onto the ground several times. There was brain damage but it was not clear whether it was permanent. Taylor pleaded guilty. He was twenty years old at the time of the offence. The head sentence was three and a half years' imprisonment and the minimum term two years'. However, Taylor was sentenced at the same time for two unrelated matters, each of which resulted in a concurrent one year fixed term. A further unrelated matter was taken into account. 30 Ben Sakisi and John Taotara were sentenced by Blanch CJDC on 30 January 1996. Both pleaded guilty. Sakisi was nineteen years old at the time of the offence and Taotara twenty years old. They were members of a group of at least six people who attacked others and punched and kicked the complainant in the face and the head. A broken beer bottle was thrust into his face. He was thrown into a wall. Each was given a head sentence of four years and a minimum term of two and a half years. 31 Leon James Sutherland was sentenced by Nield DCJ on 23 November 2001. He pleaded guilty. He was nineteen years old at the time of the offence. He attacked the complainant and kicked him in the head while he was lying on the ground. Permanent brain damage resulted which the sentencing judge found would have a significant effect upon the complainant for the rest of his life. The head sentence was two years eight months and the non-parole period one year eight months. 32 The Crown did not put these cases before the court for the purpose of demonstrating what might be a correct or an incorrect sentence according to a given set of facts, for that would not have been a principled approach, but rather to give some indication of sentences imposed for not dissimilar offences. They do not make a tariff. 33 Some features of these cases are less serious than the one under consideration in this appeal. For the most part the injuries sustained were less serious, though Taliai's victim probably suffered as badly. Some features, on the other hand, were more serious. For example, the offences of Taliai, Sakisi and Taotara were committed in company. Most importantly, all offenders were significantly older than the respondent, the age differences varying between two and a half and four and a half years. To my mind, the young age of the respondent was of such significance that this age difference makes the cited cases of little assistance. They do not support the Crown contentions. 34 This is not a sentencing court in which the arguments for or against a particular sentence are rehearsed a second time and a second discretionary decision made. It is a court of error. The court interferes with a sentence only if it can be shown that the sentencing judge erred in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. 35 His Honour is one of the most experienced sentencing judges in New South Wales. His careful remarks show that he took a very serious view of the grave features of the offence pointed to by the Crown. It could never be said that his Honour did not have a full appreciation of them. His Honour was well aware of the need for the sentence to reflect the need for personal and general deterrence and retribution. His Honour was also well aware that while they also remained relevant, those matters are of less importance in the sentencing of children. 36 In view of the age of the respondent, his troubled personal history, his questionable chances of rehabilitation and the need to foster it wherever possible and the consideration to which he had entitled himself by his offer to plead guilty to the charge, the resulting sentence was bound to be fixed significantly lower than the maximum sentence available for the offence. There was a limited range within which his Honour could exercise his discretion. The maximum penalty was seven years' imprisonment. In the circumstances a head sentence of four years' imprisonment for an offence committed by a boy of sixteen and a half years of age was substantial. The Crown has not made good its submission that it fell outside the proper range of his Honour's sentencing discretion. Neither, to my mind, has the fixing of a non-parole period of two years and six months been shown to be outside the proper range of his Honour's sentencing discretion. 37 I would dismiss the appeal. 38 WHEALY J: I agree with the reasons of Barr J. ********** Last Modified: 11/10/2003 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.