R v VL [2005] NSWCCA 301

New South Wales Court of Criminal Appeal

CITATION: R v VL [2005] NSWCCA 301

HEARING DATE(S): 2 May 2005

JUDGMENT DATE: 2 September 2005

JUDGMENT OF: Grove J at 1; Hulme J at 2; Simpson J at 55

DECISION: See paragraph 54

Regina PARTIES: VL

FILE NUMBER(S): CCA 2004/3164

Crown: J Bennett SC COUNSEL: Applicant: M Dennis

Crown: S Kavanagh SOLICITORS: Applicant SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0465

LOWER COURT JUDICIAL OFFICER: O'Reilly QC DCJ

- 1 - IN THE COURT OF CRIMINAL APPEAL 2004/3164

GROVE J HULME J SIMPSON J

Friday, 2 September 2005 REGINA v V L Judgment 1 GROVE J: I agree with Hulme J. 2 HULME J: The person identified above by the initials VL was, at relevant times, a juvenile. So were other persons who seem to have been involved with VL in the activities the subject of these Reasons. Section 11 of the Children (Criminal Proceedings) Act 1987 precludes such persons being described in a way that identifies them and accordingly it is convenient to use initials throughout these remarks. 3 On 18 May 2004, Judge O'Reilly sentenced VL and a co-offender LLM both of whom have sought to appeal against the sentences imposed. Both appeals were heard on the same day although at the request of their counsel, separately. A decision in LLM's case will be delivered at the same time as this decision is handed down. 4 VL was sentenced in respect of 1 offence, viz:- That on 10 April 2003 he did, without consent, take and detain John Lee with the intention of obtaining an advantage, to wit, cash moneys via an automatic teller machine, the said John Lee having occasioned actual bodily harm during being detained, while in the company of AD. 5 The offence arises pursuant to s86(3) of the Crimes Act 1900 and rendered VL liable to imprisonment for 25 years. 6 In sentencing VL in respect of this offence his Honour took into account 2 offences on a Form 1 of:- (i) On 10 April 2003 the armed robbery of Dr Lee of mobile phones, a handheld computer, a wallet and money. (ii) On 9 May 2003, being in possession of 0.7 grams of cannabis. 7 In imposing sentences Judge O'Reilly expressed himself as follows:- "I fix a non-parole period of four years from 9 May 2003. He will be eligible for release to parole on 8 May 2007. I sentence him to a full term sentence of six years and I would invite Counsel to check these because I am notorious for poor mathematics – a full term of six years imprisonment from 9 May '03, expiring 8 May '09. Order that so far as possible, that the sentence be served in a juvenile detention centre." 8 The 9th May 2003 was the date of the Applicant's arrest. His Honour asked whether he needed to make a finding of special circumstances to comply with s19(5) (of the Children (Criminal Proceedings) Act)and was told by counsel appearing for the Crown "Only in relation to (LLM). (VL)is still under 18". In the result no such finding in the case of VL was made. Neither did his Honour make any such finding in connection with s44 of the Crimes (Sentencing Procedure) Act. Indeed he made no reference to that topic at all. No counsel responded to the invitation to comment on his Honour's maths. 9 The circumstances of the offence charged and the first offence on the Form 1 were as follows. (Although not in every respect verbatim, I have largely taken the account from Judge O'Reilly's remarks on sentence and to which there was no challenge.):- At about 9.10pm a car containing five offenders including LLM and VL drove into a car park next to a set of shops. A doctor John Lee who lived in a unit at the rear was standing near his vehicle talking on a mobile phone. Three males left the vehicle and approached Dr Lee, one pointing a knife at his chest and the other who was armed with a metal pole raised it at Dr Lee. One of the offenders demanded money. Dr Lee was robbed of his wallet containing $20, a handheld computer and a mobile phone. One of the offenders removed a CD player and a second mobile phone from Dr Lee's vehicle. Dr Lee was told to sit in the back of his car. Three males including the prisoner VL also entered the car. An offender armed with a knife sat on one side of Dr Lee and an offender armed with a pole sat on the other. Another offender occupied the driver's seat and drove from the car park. LLM followed in a separate vehicle. Dr Lee's car was driven to the rear of a supermarket near the Guildford Hotel. One of the offenders demanded Dr Lee's PIN number to a Commonwealth Bank Account and also his National Bank Flexicard. Dr Lee provided the number. One of the men said to Dr Lee "if I don't get at least $1,000 I am going to stab you". LLM, VL and another offender left the car park leaving a fourth to look after Dr Lee. The three returned a short time later. When this was occurring Dr Lee pushed one of the males and closed the door to his car. He got into the driver's seat and tried to start it. Then one of the four men struck him on the side of the head. After a struggle with Dr Lee an offender took the ignition key and Dr Lee was struck to the head about six times by one of the men. One also said "you try one more and I cut you open." Three of the offenders got back into Dr Lee's car and he was driven to McArthur Street Guildford. The other vehicle containing the rest of the offenders arrived a little later. Three males got out of Dr Lee's vehicle and spoke to someone in the second vehicle. As this occurred Dr Lee turned off the ignition, took the key and made his escape. 10 The second offence on the Form 1 related to cannabis seeds found on the Applicant at the time of his arrest. 11 The subjective circumstances of VL are relevant to the determination of his appeal and it is convenient to refer to them now. VL was born on 1 June 1987. He was thus 2 months less than 16 at the time of the offence. On 4 April 2001 he was subjected to a 12 months probation order for an offence of aggravated robbery committed on or before 30 September 2000. On 16 August 2001 he was placed on a 9 months bond in respect of an offence of maliciously destroy or damage property committed on or before 10 October 2000. On 28 February 2001 he was placed on a 12 months bond for an offence of being carried, on or before 15 February 2001, in a conveyance taken without the consent of the owner. On 30 May 2002 he was the subject of a 31 days control order for a similar offence committed on or before 29 April 2002 and a 9 months bond for breach of recognisance. 12 On 26 August 2002 he was the subject of 2 control orders for 10 months including non-parole periods of 111 days for offences of breaking entering and stealing and a 3 months control order for being carried in a conveyance without the consent of the owner. On 2 December 2002, he was the subject of a 1 month control order for escaping or attempting to escape from lawful custody. 13 In summary, his criminal career commenced no later than September 2000 when he was 13 and 4 months, and between then and the time of commission of the offence presently the subject of consideration, when he was aged 15 and 10 months he had been dealt with by courts on no less than 6 separate occasions. On 3 of these occasions he had been given the benefit of probation or the like and on 3 he had been made the subject of control orders involving a total of some 5 ½ months in custody. He was on parole at the time of the offending the subject of the present appeal.