New South Wales Court of Criminal Appeal CITATION: MB v Regina [2007] NSWCCA 245 HEARING DATE(S): 4 May 2007 JUDGMENT DATE: 14 August 2007 JUDGMENT OF: Giles JA at 1; Hidden J at 2; Harrison J at 26 DECISION: Leave granted - appeal allowed - applicant re-sentenced as follows: For the offence of malicious wounding, a non-parole period of 18 months, commencing 6 January 2006 and expiring 5 July 2007, and a balance of term of 2 1/2 years, commencing 6 July 2007 and expiring on 6 January 2010; For the offence of aggravated car-jacking, a non-parole period of 3 years, commencing 6 January 2007 and expiring on 5 January 2010, and a balance of term of 2 years, commencing on 6 January 2010 and expiring on 5 January 2012. CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - aggravated car-jacking and malicious wounding - applicant already serving sentence for earlier offence - young offender - troubled background but prospects of rehabilitation - special circumstances - totality Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987 Criminal Appeal Act 1912 CASES CITED: R v GDP (1991) 53 A Crim R 112 PARTIES: MB (applicant) Regina (respondent) FILE NUMBER(S): CCA 425/2007 COUNSEL: A Haesler SC (applicant) P Ingram (respondent) SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/41/0203 (car-jacking) 05/41/0198 (malicious wounding) LOWER COURT JUDICIAL OFFICER: Goldring DCJ IN THE COURT OF CRIMINAL APPEAL CCA 425/2007 GILES JA HIDDEN J HARRISON J Tuesday 14 August 2007 MB v Regina Judgment 1 GILES JA: I agree with Hidden J. 2 HIDDEN J:: After a trial in the District Court, the applicant was found guilty of a charge of aggravated car-jacking. That is an offence under s154C of the Crimes Act, carrying a maximum sentence of fourteen years imprisonment and a standard non-parole period of five years. He later pleaded guilty before the same judge to an unrelated charge of malicious wounding, an offence under s35 of the Act carrying a maximum sentence of seven years imprisonment. 3 For the aggravated car-jacking he was sentenced to imprisonment for seven-and-a-half years, comprising a non-parole period of five years and a balance of term of two-and-a-half years. That sentence was directed to commence on 8 June 2006, the day on which he was found guilty. For the malicious wounding he was sentenced to imprisonment for four years, comprising a non-parole period of two-and-a-half years and a balance of term of eighteen months, commencing on 8 December 2009. 4 The two sentences produced an aggregate sentence of seven-and-a-half years, with a non-parole period of six years, dating from 8 June 2006. He seeks leave to appeal against those sentences. The malicious wounding offence was the first in time, and his name has been suppressed because he was under the age of eighteen when he committed that offence. Background and Facts 5 Given the way the application was argued, it is not necessary to examine in any detail the facts of the offences or the subjective material. The applicant was seventeen years old at the time of the malicious wounding and eighteen at the time of the car-jacking offence. He was nineteen when he was sentenced and is now twenty. He had had a troubled childhood. He had a long history of substance abuse, starting with the use of cannabis at the age of eleven and progressing to a dependency on alcohol and crystal methamphetamine (or "ice"). Not surprisingly, he had been before children's courts on a number of occasions for a variety of offences and had spent a significant period of his young life in detention centres. 6 He was affected by alcohol and ice at the time of the offences. By the time he stood for sentence he had had his first taste of adult custody. He wrote a short letter to the sentencing judge, in which he expressed remorse for his offences, acknowledged that he had made a "mess" of his life, said that he wanted to do something about his substance abuse and to improve his education, and expressed a determination not to find himself in prison again. His Honour saw this as his first indication of wanting "to do something about his situation", and was satisfied that there were some prospects of rehabilitation. 7 The two offences for which he was sentenced were undoubtedly serious. The malicious wounding occurred at Berkeley, a Wollongong suburb, in the evening of 7 November 2004. Two police officers drove to a hotel, where there was a confrontation between them and a number of young men. The applicant threw a beer bottle at the police car, which smashed the driver's window and struck one of the officers, a young woman, in the face. She was seriously injured and required three surgical procedures. At the time of sentence she continued to suffer from chronic rhinitis. 8 The car-jacking offence occurred in the morning of 6 July 2005, also at Berkeley. The owner of the car was standing immediately outside it, running the engine to warm it, when it was stolen by the applicant and another offender. The owner was punched and the car was driven off. It was found later that day in the Berkeley area, burnt out. The application 9 Mr Haesler SC, for the applicant, argued the application on three bases. He submitted that his Honour had failed: · to allow the applicant the benefit of a period of pre-sentence custody referable to the offences; · to have regard to the principles governing the sentencing of young offenders; and · to apply the principle of totality, given the practical effect of the two sentences and the fact that they were accumulated upon a sentence which the applicant was already serving for another offence. Pre-sentence custody 10 The applicant was arrested for the malicious wounding offence on 12 November 2004. He was not in continuous custody from then until the day on which he was sentenced for the present offences, but for much of the period for which he was in custody he was serving control orders and a sentence for other offences. His custodial situation was not without complexity, and was examined in some detail in written submissions filed on his behalf and for the Crown. It is sufficient to say that the parties ultimately agreed that about thirty days of his pre-sentence custody was exclusively referable to these offences. 11 As I have said, his Honour directed the first of the two sentences to date from 8 June 2006, the day on which the applicant was found guilty of the aggravated car-jacking offence, and he does not appear to have made any allowance for pre-sentence custody. Section 24 of the Crimes (Sentencing Procedure) Act, reflecting the long standing position at common law, requires that such a period be taken into account. However, as I have formed the view that the Court should intervene and re-sentence the applicant for other reasons, nothing further needs to be said about this aspect of the matter. Young offender 12 Although the applicant was seventeen years old at the time of the malicious wounding offence, his Honour made no reference to the principles governing the sentencing of juvenile offenders found in cases such as R v GDP (1991) 53 A Crim R 112 and enshrined in s6 of the Children (Criminal Proceedings) Act. In this case that approach to sentence, recognising an offender's immaturity and placing emphasis upon rehabilitation, was apposite to the determination of the sentence for both offences, even though the car-jacking was committed a few months after the applicant turned eighteen. This is not to deny the seriousness of the offences or the fact that he had already acquired an unfavourable criminal history, comprising offences of dishonesty and violence. That history, of course, is consistent with his troubled background and his substance abuse from a disturbingly early age. 13 His Honour specified the standard non-parole period of five years for the car-jacking. The applicant had been found guilty of that offence at trial, and his Honour found that it fell "squarely within the mid-range of seriousness for such offences" and that there were no mitigating factors "of the type listed" in s21A of the Crimes (Sentencing Procedure) Act. That being so, he expressed himself to be "obliged" to fix the standard non-parole period. 14 Section 54B of the Crimes (Sentencing Procedure) Act provides that a court is to set the standard non-parole period unless there are reasons for departing from it, and by subs (3) those reasons are confined to those referred to in s21A. Presumably, by the expression, "mitigating factors…of the type listed" in s21A, his Honour was referring to the factors set out in 21A(3). The youth of an offender is not isolated as one of those factors. However, it is clear from s21A(1) that the section is not intended to restrict the matters which a court might take into account to the aggravating factors set out in subs(2) and the mitigating factors in subs(3). To those factors there are added "any other objective or subjective factor that affects the relative seriousness of the offence" and "any other matters that are required or permitted to be taken into account by the court under any Act or rule of law". 15 Mr Haesler submitted that the applicant's youth was embraced by the broad terms of s21A(1) and that, accordingly, his Honour was not bound to set the standard non-parole period. In my view, that submission is sound and, in all the circumstances, some reduction of the standard non-parole period was called for. Equally, I am satisfied that the applicant's youth is not fairly reflected in the "head" sentences. Totality 16 As I have said, the two sentences which his Honour passed amount to an aggregate sentence of seven-and-a-half years with a non-parole period of six years, dating from 8 June 2006. However, the applicant was already serving a sentence of imprisonment for sixteen months, dating from 6 July 2005, for an offence of break and enter with intent to steal. Accordingly, the aggregate sentence which his Honour passed was accumulated upon that earlier sentence by a little over eleven months. Aggregating all three sentences, the total term becomes a little over eight years and five months. The applicant would not be eligible for release on parole until 7 June 2012, by which time he would have been in continuous custody for a little over six years and eleven months. The ensuing parole period would be eighteen months. 17 His Honour referred to the principle of totality, saying that each of the two offences for which he was to pass sentence and the third offence for which the applicant was already serving a sentence called for "separate punishment", subject to that principle. He also observed that the sentences he imposed should be such that the total non-parole period "would be less than the statutory ratio compared to the total term". It would seem, then, that his Honour intended to assess the aggregate sentence with an eye to totality, and to arrive at an effective non-parole period which reflected a finding of special circumstances. 18 Unfortunately, as Mr Haesler pointed out, his Honour's sentencing order achieved neither of those objectives. Leaving aside the sentence which the applicant was already serving, the sentences which his Honour passed required the applicant to serve six years in custody before being eligible for release on parole for eighteen months. When regard is had to the pre-existing sentence, the applicant would serve the best part of seven years in custody before being eligible for parole, again for eighteen months. On either view, the applicant would face a very lengthy period of custody for one so young, followed by a relatively short period of parole eligibility. In neither case does the effective non-parole period represent a beneficial variation of the usual proportion between sentence and non-parole period, so as to recognise the finding of special circumstances. 19 The effect of the partial accumulation of the sentence for the malicious wounding upon that for the car-jacking was to extend the aggregate non-parole period fixed by his Honour from five years to six years. However, the head sentences for the two offences are concurrent, both expiring on 7 December 2013. There appears to have been some initial confusion about that terminal date. His Honour announced an expiry date of 7 December 2014 but, after hearing from counsel then appearing for the applicant, adjusted that date to 7 December 2013. He said that the "total term on the car-jacking charge will expire on 7 December 2013 but there will be a further year." 20 This led to a submission by the Crown prosecutor before us (who did not appear in the District Court) that his Honour had been mistaken in his commencement date for the sentence on the malicious wounding charge, and had intended to pass a sentence on that charge which would expire in December 2014. The Crown prosecutor accepted that that is not the effect of his Honour's sentencing order, but submitted that the applicant had been the beneficiary of a windfall because of that mistake. If his Honour had given effect to that intention, he argued, the overall head sentence would have been longer but the proportion of the effective non-parole period to that overall sentence would have been less than the statutory norm, whether one had regard only to the two sentences passed by his Honour or to the aggregate term produced by those sentences and the pre-existing sentence. 21 Even if this argument were to be accepted, I would still be satisfied that this Court should intervene. However, I do not accept it. I prefer Mr Haesler's interpretation of his Honour's remarks, that is, that the purpose of the partial accumulation was to extend the effective non-parole period, not the overall sentence, by one year. That is, in fact, the effect of his Honour's sentencing order. 22 In written submissions, the Crown prosecutor argued that no patent error in his Honour's approach to sentence had been demonstrated and that, in any event, no lesser effective sentence was warranted in law: s6(3) of the Criminal Appeal Act. However, in oral argument he fairly and properly acknowledged that the Court might find latent error. For the reasons I have expressed, I am satisfied that the sentencing process has miscarried and that this Court should intervene. Re-sentence 23 For the purpose of re-sentence, we received an affidavit from the applicant's solicitor which attests that he is visited regularly by his mother and sister and has responded positively to the rehabilitative opportunities open to him in prison. As foreshadowed, I would depart from the standard non-parole period in respect of the car-jacking offence because of his youth, his disturbed background and his prospects of rehabilitation. For the same reasons I would find special circumstances in sentencing for both offences, and would structure them in such a way as to arrive at an aggregate sentence which provides for an extended period of parole eligibility. 24 For the car-jacking I would sentence the applicant to imprisonment for five years with a non-parole period of three years, and for the malicious wounding to imprisonment for four years with a non-parole period of eighteen months. I would structure those sentences so as to achieve an aggregate sentence of six years with a non-parole period of four years. I would pass sentence for the malicious wounding first, and would backdate it so as to be partially accumulative upon the pre-existing sentence by six months. The overall effect of all three sentences, then, would be imprisonment for the six-and-a-half years with eligibility for release on parole after four-and-a-half years. 25 I would grant leave to appeal and allow the appeal. I would quash the sentences passed in the District Court and, in lieu, I would sentence the applicant as follows: · For the offence of malicious wounding, a non-parole period of eighteen months, commencing on 6 January 2006 and expiring on 5 July 2007, and a balance of term of two-and-a-half years, commencing on 6 July 2007 and expiring on 6 January 2010; · For the offence of aggravated car-jacking, a non-parole period of three years, commencing on 6 January 2007 and expiring on 5 January 2010, and a balance of term of two years, commencing on 6 January 2010 and expiring on 5 January 2012. 26 HARRISON J: I agree with Hidden J. ********** 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. 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