New South Wales Court of Criminal Appeal CITATION: Regina v GS [2006] NSWCCA 410 HEARING DATE(S): 14 December 2006 JUDGMENT DATE: 19 December 2006 JUDGMENT OF: Simpson J at 1; Barr J at 1; Hoeben J at 1 DECISION: Appeal dismissed. PARTIES: Regina, GS FILE NUMBER(S): CCA 2006/2165 COUNSEL: P Barrett QC A Haesler SC SOLICITORS: S Kavanagh S O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0539 LOWER COURT JUDICIAL OFFICER: Nicholson SC DCJ IN THE COURT OF CRIMINAL APPEAL 2006/2165 SIMPSON J BARR J HOEBEN J 19 DECEMBER 2006 REGINA v GS REASONS FOR JUDGMENT 1 THE COURT: This was a Crown appeal against what was said to be the inadequacy of a sentence imposed in the District Court. At the conclusion of the hearing on 14 December 2006, the Court ordered that the appeal be dismissed and announced that it would publish its reasons later. These are the Court's reasons. 2 The respondent, whom we shall call GS, pleaded guilty in the Local Court to a charge of maliciously inflicting grievous bodily harm in company. He was committed to the District Court for trial. On 8 September 2006 Nicholson SC DCJ sentenced the respondent to imprisonment for two years with a non-parole period of nine months and suspended execution of the sentence for two years, directing that he be released from custody on condition that he enter into a conditional bond to be of good behaviour for two years. At the same time his Honour dealt with offences of supplying a prohibited drug, possessing a prohibited drug and having goods in his custody reasonably suspected of having been unlawfully obtained. Under the provisions of s33(1)(e) Children (Criminal Proceedings) Act, his Honour imposed probation orders of twelve months, twelve months and six months respectively. 3 On 3 December 2005 Mr Justin Kelly hosted a Christmas party at his house at St Ives. He invited work colleagues, one of whom was the complainant, Mr Rowan Barker. One of the members of the family living in the house next door to Mr Kelly's was a teenager nicknamed Zeus. Zeus used to sell drugs from his bedroom window. The respondent lived with his family in a nearby suburb. He was then sixteen years and eight months of age. He was at home with two friends of his, whom we shall call T and M. The respondent smoked cannabis and consumed a large quantity of alcohol. The three left the house in T's car, intending to go to see Zeus. The only sober member of the party was M, so he drove. The respondent was carrying a knife. The three arrived at Mr Kelly's house at about 11pm. Mr Barker and a number of other guests were in the driveway at the front of the house. The respondent and T got out of the car. It seems that the respondent thought that he was at Zeus' house, for he asked Mr Barker where Zeus was. Of course, Mr Barker did not know what the respondent was talking about. An unsatisfactory conversation ensued and the respondent became agitated. Reasonably, Mr Barker suggested that the respondent leave. Entirely without justification, the respondent took umbrage and attacked Mr Barker. He stabbed him four times in the chest with the knife. 4 Mr Barker was taken to the Royal North Shore Hospital where he was treated in the emergency department. The immediate concern for hospital staff was a penetrating wound to the chest involving transection of a coronary artery distally. The wound had bled but fortunately the ischaemia did not appear significant. The pericardial sac had filled with blood with resulting pressure on the chambers of the heart. There was a wound to the abdomen which, fortunately, did not penetrate to the pleural cavity. There were wounds to the left arm and the back. The surgeon who attended Mr Barker was of the opinion that the penetrating trauma to the chest could easily have proved fatal. If the wound had been one centimetre deeper or closer to the midline or if Mr Barker had not been attended to so quickly he would not have survived. 5 As a result of the operation Mr Barker has a scar down the middle of his chest, eight or nine inches long. He also has scars at the sites of the stab wounds. Although Mr Barker appears to have made a good recovery from the most serious of the wounds, the stabbing of his left upper arm has caused nerve damage and he feels numbness from time to time with intermittent pain and pins and needles. The movement of the arm has become restricted because of muscle damage and Mr Barker feels that the arm is not as strong as it used to be. At the time of sentence he was continuing to seek medical advice about the arm. 6 After the attack the two returned to the car, where M had remained, and the three drove off. There has been no suggestion that M was complicit in the attack. A few days later the respondent told a friend that he had stabbed somebody. Sensibly, the friend reported it and the police obtained lawful permission to listen to the respondent's telephone conversations. It became clear that the respondent was selling cannabis, the subject of one of the charges dealt with under the Children (Criminal Proceedings) Act. In one of the conversations the respondent and M discussed what they would say to the police about where they were on the night. They agreed that they would say that they were not together. 7 The respondent was arrested on 9 December 2005. The house where he lived was searched. Cannabis and money were found. They were the subject of the other two charges. T's vehicle was searched and traces of Mr Barker's blood were found in it. After he was released from hospital Mr Barker identified the respondent as the attacker. 8 The respondent was charged with the attempted murder of Mr Barker. It was after the Magistrate dismissed that charge that the respondent pleaded guilty of the offence for which he was sentenced. 9 Objectively the attack on Mr Barker was very serious, as is demonstrated by the facts we have summarised. The serious features of it were that it was unprovoked, that the attack was sustained by means of a knife and that the consequences for Mr Barker were life-threatening. Some explanation was called for. The respondent gave evidence on sentence. He identified a letter he had written to the Court in which he said that he did not know why he had stabbed Mr Barker, though he remembered "bits and pieces". He mentioned that he had been smoking marijuana for a year and a half or so and had had a bad alcohol problem. What he remembered of the night was that he had spoken to his mother and she had told him that she did not know what to do with him, that he was not her problem any more. T and M were with him at the time. He returned to his room, smoked a good deal of marijuana, opened a bottle of whisky and drank half the contents. He had dreams. In one of them he was surrounded by a group of men much older and bigger than he was. He felt as if he was going to be killed. He looked towards T "to pull me out of there". T backed off, as though leaving him to be killed. His life was flashing before his eyes. He had been beaten up many times and had a vision of each beating. He felt as though the whole world had turned on him and that he could not trust anyone because nobody really cared what happened to him. He did not remember stabbing Mr Barker. 10 The respondent was interviewed by a psychiatrist, Dr Wong and by a psychologist, Dr Lennings, and those experts wrote reports for the Court. The respondent was also interviewed by officers of the Department of Juvenile Justice for the purpose of a confidential background report. 11 The respondent told the sentencing court that he had told the truth in his interviews with those persons. In this way some account of the events leading up to the attack was given. 12 Dr Wong recorded this history. The respondent had been using cannabis for a long time. His mother told Dr Wong that he had always been an anxious individual, a timid child, a toddler given to excessive temper tantrums. He was difficult to discipline. He was hypersensitive as a young person and had difficulty socialising. He performed poorly at school because of difficulty in concentrating, distractibility and disorganisation. He was bullied at school and beaten up. Consequently, his school attendance was erratic. He was expelled from a private high school in 2003 and went to a State high school. He spent less than a year there before leaving for good. He was binge drinking by the age of thirteen. For a number of years her smoked up to twenty cones of cannabis a day. His mother said that he got into bad company. No doubt his company was bad for others, too. He progressively isolated himself from the family. He had difficulties reading and writing throughout primary and high school. There were interventions from various health professionals during his school life. At the age of fourteen he was seen by a counsellor from the Mental Health Division at Hornsby Hospital. He attended counselling for about a year. The respondent's mother had suffered from severe anxiety and depression. His maternal grandmother also suffered anxiety. His father's brother committed suicide thirty-five years ago but the cause was unknown. 13 When Dr Wong saw the respondent he was being treated with anti-depressants but it did not stop a downhill slide into a more profound depression. He was suffering extreme anxiety and sleep disturbance. Dr Wong had a number of sessions with the respondent who, as a result, became more open. He gave Dr Wong an account of the incident substantially consistent with the one he wrote in the letter for the Court. 14 Dr Wong was of the view that the respondent had been suffering from a chronic anxiety disorder, depression, attention deficit disorder and low self-esteem. His inappropriate resort to the use of illicit substances had resulted in paranoia, increased irritability, further cognitive impairment and poor judgment and insight, not to mention increased anxiety and deepening of depression. A victim of bullying and aggression, he had coped by using the defence of identification with the aggressor in order to protect himself. Dr Wong was of the view that before the offence the respondent was heavily intoxicated and unable to make proper judgment. He thought the respondent's inability to recall the event fully quite typical of a person under the profound effect of illicit substances as though his normal cognitive functions were temporarily suspended. 15 Dr Lennings also gave a detailed history which it is not necessary to repeat. He tested the respondent. He thought that his approach to the testing was open and frank. He thought that his most severe psycho-pathology, falling into the severe clinical range, included symptoms associated with post traumatic stress disorder, depression and interpersonal problems but also that he obtained very high scores in the assessments of general anxiety disorder and disturbance of self-concept. He noted a high risk of suicide. 16 Counsel for the respondent did not ask him about the incident. The representative of the Crown did not test the authenticity of the account given in the letter. 17 Having read the histories taken by Dr Wong and Dr Lennings and the others who assessed the offender, the sentencing judge pronounced himself satisfied that the events spoken of by the reporters explained the respondent's difficulty in controlling his behaviour and emotions. Although his acts were not unwilled, they resulted partly from the impairment of behavioural and emotional inhibitions. 18 T, too, was charged over the attack. He was taken into custody but, sadly, he there committed suicide. 19 The respondent had no prior convictions. His Counsel tendered an impressive sheaf of letters written by members of his family and others in the community, attesting to his good character and demonstrating the existence of a remarkable degree of support. 20 Even more impressive were the steps the respondent had taken towards rehabilitation. On the referral of his general practitioner he had consulted Dr Wong and had submitted himself to his care. By the time he wrote his report, Dr Wong had seen the respondent eight times between January and August 2006. He was treating him with psycho-stimulant medicine to deal with his inattention, distractibility and impulsiveness. Dr Wong's report implies an anticipated long-term treatment. 21 Dr Lennings recorded the respondent's expressions of extreme remorse. The respondent remained psychologically vulnerable, he said, and cognitively impaired. One of the reasons for his vulnerability was the suicide of T. 22 Two officers of the Department of Juvenile Justice wrote the confidential background report. They said these things, among others - (GS) displays a high level of remorse for his actions and describes experiencing a constant intense feeling of guilt. Although he reports being intoxicated at the time, (GS) does not use this as an excuse, but rather accepts responsibility for his actions regardless. This is particularly evidenced by (GS's) commitment to change his life, address his drug and alcohol issues and adhere to abstinence. (GS) reports that since the incident he has experienced difficulties in falling and remaining asleep and reports that it is not unusual for him to remain awake the entire evening. Throughout the assessment process (GS) has displayed a high level of victim empathy, stating at one point, that regardless of the outcome of the Court case for him, he would like the opportunity to apologise to Mr Barker face to face for what he did to him. (GS) states that this is probably unlikely to occur, but feels it is something he would like the opportunity to do. 23 The officers recommended that if the Court should impose a custodial sentence that it be suspended with supervision by the Intensive Programs Unit to which they were attached. 24 Perhaps the most impressive piece of evidence was a letter the respondent wrote to Mr Barker. I will extract the salutation and two paragraphs, thus - Dear Mr Rowan Barker, I know that I'm probably in no place to be contacting you, I know that you might read this first sentence and want to throw the letter out, and I totally understand if you're thinking who do I think I am. But I would appreciate if you heard me out on this. I am getting sentenced shortly and I just can't go away without letting you know how I feel. I can't even begin to stress how deeply sorry I am for stabbing you, I feel terrible, and my heart is with you and your family. I know you might not want to hear all of this. But whether or not you accept this, I don't expect you to accept my apology, I don't see that to be possible, but for my own peace of mind explaining myself to you is something I have to do. There is no way I want to continue living with the trauma and the guilt every day for the rest of my life, particularly when I'm trying to sleep, but writing you this letter will at least stop me thinking to myself "if only he knew how I felt". I can't help but to think that perhaps you believe that I do not feel guilty for what I have done. … I have heard from my dad that he heard that you don't hold a grudge, and that you hope that this brings your family closer together. If that is true, I don't understand how you could think like that, it says to me a lot about the person you are, and I could not imagine anyone else in the world feeling the same after some lowlife on drugs just stabbed them. But to say that you must have such an amazing view on the world, and I have a great deal of respect that you could actually feel that way. 25 The first ground of appeal complains that his Honour erred in that he effectively failed to find that the offence was committed in company. It was the presence of T that led to the formulation of a charge that the respondent had attacked Mr Barker in company. On 23 June 2006 the Children's Court Magistrate received the respondent's plea of guilty and committed him for sentence. On 18 August 2006 the respondent appeared before his Honour and adhered to the plea. One week before judgment his Honour's associate sent the parties an e-mail indicating that his Honour was considering rejecting the plea because he was not satisfied that the offence was committed "in company". As a result, both parties made written submissions asking his Honour to accept the plea and asserting that the element of "in company" was admitted and made out. The evidence established that T travelled with the respondent to the scene and was close to him at the time of the offence. T was there to support and assist the respondent if called upon. His presence was noticed by Mr Barker and the others present. He ran from the scene with the respondent and they escaped together. 26 One of the reasons why the parties jointly took the attitude they did was that they knew things that the Court did not, strongly suggesting the joint involvement of the respondent and T in a criminal enterprise. On sentence, counsel for the respondent alluded to that fact, urging his Honour to accept the plea according to its form. His Honour responded - Anyway I am going to accept the plea, both parties have urged me to do so. 27 In passing sentence his Honour said this - I have held the offender acted alone. Whilst he was in company I do not regard the Crown proving beyond reasonable doubt that company as participating other than being present. There is no evidence that they had any knowledge of a knife, or that he was likely to use it in the circumstances in which he found himself. (T), who was present at the driveway, is deceased … The other person in the nearby vehicle was not present… 28 It seems to us that there is substance in the Crown's submission. His Honour would have been correct to observe that the evidence did not establish that T had played any active part in the attack, but to say that he arrived and departed with the respondent but otherwise had nothing to do with the attack was an error. 29 Of course, the mere fact of error may not be enough to justify this Court's interfering with a sentence. The Court has a lively discretion to refuse to intervene even if error has been shown and in deciding whether to exercise that discretion it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: Wong and Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [110]; R v Allpass (1993) 72 A Crim R 561. 30 The second ground of appeal asserted that the sentence was manifestly inadequate. Three reasons were put forward, first that the sentence did not adequately reflect the objective seriousness of the offences, then that too much weight was given to subjective matters and insufficient weight to general deterrence and finally that the total sentence and non-parole period were of themselves inadequate, that error compounded by suspension of the sentences, an option that would have been unavailable if a sentence of appropriate length had been imposed. 31 The Crown properly pointed to the objective seriousness of the offence, being sudden, unprovoked and productive of serious injury and a real risk of death. It was submitted that his Honour's description of the offences as "a serious breach of the peace" grossly understated its objective seriousness. Looking at the whole of his Honour's remarks, we do not think that his Honour failed to appreciate the objective seriousness of the offence or to pay sufficient regard to Mr Barker's injuries. 32 The Crown submitted that his Honour gave too much weight to the respondent's subjective case. Having acknowledged the need to impose a sentence that generally deterred, his Honour said – Generally, however, the punitive-retribution paradigm of sentencing associated with general deterrence gives way to considerations of rehabilitation among the young. 33 The Crown accepted on appeal that in the sentencing of young persons considerations of general deterrence should generally be subordinated to the need to foster rehabilitation. As the Crown pointed out, however, the principle is not a universal one, and it has been said by this Court that when children set about the pursuit of essentially adult enterprises the courts will be expected to recognise the consequently greater need for deterrence: R v Pham (1991) 55 A Crim R 12. It was submitted that this was such a case. 34 We would not accept that submission. It is correct to say that the respondent's reason for being in the presence of Mr Barker was his desire, for no good purpose, to pay a call on Zeus. But that was where the "adult" nature of the altercation ended. There was no plan to visit Mr Kelly's house at all, let alone to attack anybody there. The respondent's attack was impulsive, born of his inability to control his emotions. His carriage of the knife, as the sentencing judge found, was not because of any ill-will towards Mr Kelly or Mr Barker or to attack anybody, but to protect himself against those who might bully him as in the past. 35 In our opinion this was not an offence of the kind pointed to by the Crown. It was appropriate for the sentencing judge to apply those principles that ordinarily apply to the sentencing of young offenders. 36 The remainder of the Crown's submissions amounted to an attack on the very length of the sentence. The first submission was that the sentence was inappropriately reduced to a length – two years – at which it was legally possible to suspend it. The law does not permit suspension of a longer sentence. Then it was submitted that the non-parole period itself was insufficient to reflect the objective gravity of the offence. So it was said that, having reduced the total sentence by an inappropriately high amount, his Honour "double counted" by reducing the non-parole period again. 37 It seemed to us that all these submissions amount to this, that the resulting sentence fell outside the range of his Honour's proper sentencing discretion. In our opinion, the approach taken by the Crown failed to accord due weight to the evidence of rehabilitation, which may fairly be described as truly remarkable. With a good deal of help the respondent had transformed his life from an aimless, drug and alcohol ridden existence with poor and degenerating behaviour (to the extent that his own devoted mother had all but abandoned him) into a life that gave every promise of being useful, productive and worthwhile. For this reason, this was a very unusual case. The sentence, wholly suspended, comprising a non-parole period of nine months and a balance of term of fifteen months at first appeared unduly lenient, taking into account all the objective and subjective features. However, the respondent was a young person and was able to mount an extraordinarily powerful subjective case. There were good reasons, attested to particularly by the authors of the Juvenile Justice report and by Dr Lennings, that the process of rehabilitation had commenced and was real and would come under threat if the respondent was sentenced to a period of full-time custody. The need to see it continue was compelling. 38 It seemed to us in all the circumstances that the effective sentence fell within the proper range of his Honour's sentencing discretion. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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