JJM v R [2008] NSWCCA 180

New South Wales Court of Criminal Appeal

CITATION: JJM v R [2008] NSWCCA 180

HEARING DATE(S): 24 June 2008

JUDGMENT DATE: 6 August 2008

JUDGMENT OF: Bell JA at 1; Grove J at 2; Latham J at 37

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Juvenile - Multiple serious offences - Sentencing judge expressly structures sentences to enable minimum term to be served in juvenile detention - Consequent leniency - Intervention to reduce term refused

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED : Pearce v The Queen (1998) 194 CLR 610 R v Cartwright (1989) 17 NSWLR 243

PARTIES: JJM - Applicant Regina - Respondent/Crown

FILE NUMBER(S): CCA 2007/00003036

COUNSEL: J Manuell - Applicant J Girdham - Respondent/Crown

SOLICITORS: Legal Aid Commission - Applicant Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3145

LOWER COURT JUDICIAL OFFICER: Cogswell DCJ

LOWER COURT DATE OF DECISION: 1 June 2007

IN THE COURT OF CRIMINAL APPEAL CCA 2007/00003036

BELL JA GROVE J LATHAM J

6 August 2008 JJM v REGINA Judgment 1 BELL JA: I agree with Grove J. 2 GROVE J: This is an application for leave to appeal against sentence imposed by Cogswell DCJ in Sydney District Court on 1 June 2007. The applicant was dealt with for offences which had been committed on 9, 10 and 21 November 2005 respectively at which times the applicant was aged 17 years. His Honour also took into account pursuant to the Form 1 procedure, three offences of robbery in company and one offence of attempted robbery in company which were all committed on 20 September 2005. 3 The principal offences were armed robberies on 9 and 10 November and, on 21 November, assault with intent to rob whilst armed with an offensive weapon accompanied by wounding. The maximum prescribed penalty for the lastmentioned is imprisonment for 25 years to which is attached a standard non-parole period of 7 years and the maximum penalty for the armed robberies is 20 years imprisonment. At the date of sentence the applicant was approaching near to his 19th birthday. He had been kept in juvenile detention since his arrest in November 2005. 4 The sentences imposed did not, in respect of the armed robberies, reflect the sequence of their commission but nothing turns on this. His Honour sentenced the applicant as follows. For the second armed robbery on 10 November, to imprisonment for a fixed term of 2 years commencing on 22 November 2005 and expiring on 21 November 2007; for the first armed robbery on 9 November, to imprisonment for a fixed term of 2 years commencing on 22 May 2006 and expiring on 21 May 2008 and for the armed assault with wounding on 21 November (taking into account the Form 1 offences) to imprisonment consisting of a non-parole period of 3 years 3 months 7 days commencing on 22 November 2006 and expiring on 28 February 2010 with a balance term of 3 years 8 months 21 days commencing on 1 March 2010 and expiring on 21 November 2013. 5 The structure of the sentences was expressly designed by his Honour so that the minimum term of custody would expire 6 months after the applicant's 21st birthday. That age is the limit during which an offender may be directed to serve his sentence in a juvenile detention facility: Children (Criminal Proceedings) Act 1987, s 19. His Honour gave such a direction. 6 The facts in relation to the offences were summarized in his Honour's remarks and I substantially draw therefrom for this narrative. It is convenient to describe the offences in the sequence in which they occurred. 7 On 20 November 2005 the applicant and some friends formed a belief that the girlfriend of one of the latter had had her mobile phone stolen. As a group they went in search of a presumed thief. They passed a golf course where they saw some young men who were searching for golf balls. They stopped and a co-offender approached and then slapped and punched one of the young men while the rest of the group stood around. Thereafter members of the applicant's group continued to accost those who had been searching for golf balls and from them stole a bumbag and two mobile phones. 8 The applicant's role was to keep a lookout and provide his physical presence. He acknowledged that in so doing he intentionally assisted those whom he knew were committing offences although he himself made no demands on the victims nor did he participate in any battery of them. He did not share in the property taken. 9 It can be noted that one of the co-offenders in these offences was a youth named Jeremiah who is now deceased. I will make further reference to him in due course. 10 The first armed robbery (9 November) occurred at Leumeah. The applicant and two co-offenders were cruising in a vehicle seeking a target for robbery and they selected an establishment called Bernie's Take Away. The applicant and one other alighted from the vehicle and entered the shop where, at the time, there were employees and customers. The customers included young girls aged 11, 12, 14, 17 and 18. 11 The two active offenders, one of them the applicant, were brandishing machetes. Customers at the front of the store were told to "get the fuck inside". The offenders demanded money and the applicant attempted to jump over the counter but the counter broke beneath him. The customers were directed not to look at them and the expressions included words such as "shut your fuckin" eyes, get down, just stay there". 12 Approximately $2,000 was taken from the till. His Honour found that none of the victims suffered any injuries by which I take him to have meant injuries of a physical nature. He commented that the circumstances may have been terrifying for everyone involved and an "almost nightmarish experience". 13 On the next day (10 November) the second armed robbery was committed upon Domino's Pizza Shop. A co-offender kept a lookout and the applicant entered the shop with a machete secreted inside his trouser leg. Once inside, he produced the machete and jumped the counter, holding the weapon at two victims, one of whom was aged 16, from whom he demanded money. The content of the cash register was handed over but the applicant drew attention to a safe. A bag of coins was withdrawn from the safe and given to him. He jumped back over the counter and left through the front door. About $500 was taken. 14 The third offence on 21 November 2005, clearly correctly described by his Honour as the most serious, occurred when the applicant and a co-offender were again driving in a vehicle looking for a target for robbery. The Woodbine Neighbourhood Store near Campbelltown was selected. The applicant entered that store at about 8 to 8.15 pm with a machete secreted in his clothing. At that time there were present two staff of the store, a Mr Pham and his mother, as well as two female customers aged 17 and 22. 15 The applicant jumped on the counter and called out repeatedly, "Where's the money?" He descended from the counter and brandished the machete at Mr Pham. The two female customers fled and hid next door. 16 Mr Pham resisted and a struggle ensued. His Honour found that the applicant continued to hold the machete but "did not pull on it during the struggle". Nevertheless Mr Pham sustained a deep laceration to his right hand which severed his fingers. Mr Pham was able to push the applicant who ran from the store and decamped in the waiting car with his co-offender. No property was taken. 17 At Liverpool Hospital Mr Pham underwent extensive surgery. Despite such intervention, he is left with permanent impairment rendering fine motor tasks and many hand functions either unsafe or impossible. 18 It is convenient to note at this point that the applicant was not without prior record, having had findings of guilt recorded against him at Campbelltown Children's Court on 16 May 2005 for offences of assault occasioning actual bodily harm and affray, upon each of which he had been ordered to enter a bond to be of good behaviour for 12 months and to be subject to supervision by Juvenile Justice. Both bonds were current when all of the above offences were committed. 19 The evidence showed that Juvenile Justice assessed the applicant's response to supervision as "excellent" and formally suspended supervision on 10 October 2005. The officers were presumably unaware then that in the month immediately before the decision to suspend supervision, the applicant had committed the crimes which were eventually included on the Form 1. However an officer, Mr Strachan, testified that the suspension had followed a prediction that the applicant was "the boy deemed least likely" to commit further offences. Obviously that prediction was not fulfilled. When the crimes of 20 September were drawn to the attention of Mr Strachan he expressed the opinion that the applicant had made a "negative decision" and he commented that "anyone of us can make a negative decision at any time". 20 Mr Strachan was questioned about the three offences in the month after supervision was suspended and said that the information about these "came out of the blue" and was "a total shock". In summary, his evidence was that he maintained his opinions about the reform of the applicant particularly by referring to his good behaviour in detention but in predicting the absence of likely future offending he conceded he would "probably be a bit more guarded" than previously. 21 His Honour adverted to subjective matters in the applicant's favour. In particular he related to the trauma of being called to the scene where his friend Jeremiah died as a result of stab wounds. He was present at the death. The applicant's reaction was claimed to be to seek to assuage stress and depression over the death by consuming vast amounts of intoxicating liquor. He stated that the motive for the robberies was to obtain money to buy alcohol. 22 Jeremiah was described as more than a friend to the applicant, being something like a big brother or a mentor. The situation was obviously not entirely beneficial for the applicant as Jeremiah, as noted above, was a participant in the attacks and robberies near the golf course on 20 September. A psychological report by Juvenile Justice signed by a Ms Hollier and a Mr Van Gestel records an interview with the Assistant Principal of the school attended by both the applicant and Jeremiah. Whilst her opinion that the death impacted on the school population can readily be accepted, the absence of reference by her to Jeremiah's conduct on 20 September, if indeed she had been made aware of it, would tend to undermine her praise of him as "a remarkable influence on many of the students at the school". 23 A single ground of appeal asserted that the Crimes Act s 98 offence was manifestly excessive. Of course, the sentences for the robberies on 9 and 10 November are now expired. In a written submission it was stated that the applicant did not appeal against the non-parole period but was concerned only with the parole period. It was accepted in oral submissions that these periods were not amenable to being separately assessed and what was contended was that the total term was excessive and therefore a substituted lesser total term would result in a reduced parole period even allowing for the possibility that the non-parole period might be again identically specified. 24 Despite the limited expression of the ground even as so explained, there were some submissions of specific error to which attention should be directed. 25 It was submitted that his Honour did not state how he took the applicant's subjective circumstances into account in his assessment of the objective seriousness of the offence. The emphasis is in the written submission. Subjective matters do not of their nature intrude into an assessment of objective seriousness. They are available, if found, to ameliorate the sentence which would reflect objective seriousness but they are not elements of it. His Honour was not obliged to compartmentalize any favourable subjective circumstances which he found and "how" he took them into account was by an implicit assessment of sentence lower than it would have been had they not been found. 26 Next it was asserted that his Honour did not refer to s 21A of the sentencing legislation in his assessment of the objective seriousness of the offence. Specific reference was made to s 21A(3) subs (h), (i), (j), (k) and (m). All of those provisions describe possible mitigating factors which are subjective to the offender. They refer to rehabilitation, remorse, impaired awareness, a plea of guilty and assistance to authority. They are not elements of objective seriousness. In fact his Honour did refer to all of those provisions (except (i)) when expressing reasons for not imposing the standard non-parole period. Subsection (i) refers to remorse which his Honour, elsewhere in his remarks, accepted as "real". His Honour's approach was correct. 27 A written submission was made that his Honour did not appear to have properly applied s 44(1) of the sentencing legislation. Oral submissions revealed that the essence of complaint was a failure to apply to the individual impositions on each count a "discount" which he had quantified. The absence of direct application was said to have resulted in the sentence on count 3 being excessive. 28 His Honour had stated that he considered the overall criminality merited a sentence in the region of 13 years imprisonment. Nevertheless, taking into account matters which he mentioned, he said that he would apply a discount of "some 35 percent" and taking into account some further matters he reached a head sentence determined to be in "the region of 8 years". 29 Counsel drew attention to Pearce v The Queen (1998) 194 CLR 610 to the effect that a judge sentencing for more than one offence must fix the appropriate sentence for each offence and then consider the questions of cumulation, concurrence and totality. That authority is, of course, accepted. Putting to one side the sentences on counts 1 and 2 and the extent of cumulation which matters have not been the subject of challenge, counsel for the applicant calculated the discount which reduced 13 years to 8 years at about 38 percent and further calculated a notional "starting point" for the sentence on count 3 of about 11 years and 4 months on the assumption that a 38 percent discount had independently been applied to an initial assessment on count 3. 30 Thus, it was argued, if the 7 years standard non-parole period was to be imposed, it would, absent special circumstances and pleas of guilty and assuming division of term as set out in the statutory formulation (for a mid-range offence, as his Honour found it to be) be represented by a head sentence or total term of 9 years 4 months. Therefore, a head sentence of 11 years 4 months must be manifestly excessive where there had been a plea of guilty. 31 Whilst I would accept the applicant's submission that discounting a total, rather than assessing appropriate sentences on individual counts, would not be synchronous with Pearce, it is plain that the "arithmetic" being applied by his Honour was in fact to the overall term of 13 years, as he stated, and the hypothetical calculations submitted by counsel for the applicant do not accord with the process his Honour explicitly followed and are not demonstrative of the type of error contended. His Honour's approach did not lead to any adverse consequence affecting the applicant requiring intervention by this Court. 32 One of the matters which his Honour expressly took into account in the applicant's favour was the content of a document identified as Exhibit D. An authority relevant to the content of that exhibit is R v Cartwright (1989) 17 NSWLR 243. This Court has been made aware of the content of the exhibit and it suffices for present purposes to record that fact. 33 The final contention by the applicant was that some sentences on co-offenders had relevance "at least in the assessment of the Form 1 offences". The impositions on two of the participants (one juvenile and one adult) in the September 20 offences were referred to. To say the least, the submission faces an initial hurdle of seeking to compare precise sentences received by the co-offenders with an imprecise enhancement of a sentence received by the applicant for a completely different offence. The submission did not recognize the nature of the Form 1 procedure. Although the facts identify co-offenders in the principal offences, it does not appear that they were charged with the Crimes Act s98 offence which mandated that the proceedings against the applicant be heard in the District Court. He was alone in the shop when he wounded Mr Pham. It appears that the co-offenders in the principal offences were dealt with in the Children's Court which could not have happened if a s 98 charge had been preferred. In the whole of the circumstances there was no error in his Honour's determination that, as he put it, parity was not a significant factor. 34 None of the applicant's contentions has been made good. The minimum period of custody represents approximately 53 percent of the total term, a division very much in the applicant's favour when compared with the ratio specified in the sentencing statute. The very precise non-parole period and consequent balance term were expressly set by his Honour in order to allow the applicant to serve the whole of his minimum custody in juvenile detention. Of course, whether he is in fact released when that period expires is a matter for determination by other authority. It is a compelling inference that his Honour reduced the non-parole period in order to accord the benefit of juvenile detention to the applicant and the complementary inference is that, but for the limit of age during which the applicant may be so detained, the non-parole period was likely to have exceeded 53 percent of the total term. 35 The offences committed by the applicant were very serious and included the repeated putting in fear of shopkeepers and their customers culminating in the causing of permanent injury to Mr Pham on the third occasion. The Crown submission that the sentences reflect the objective seriousness of the offences whilst taking adequate account of the applicant's subjective circumstances should be accepted. No lesser sentence was warranted in law. 36 I would grant leave to appeal against sentence but dismiss the appeal. 37 LATHAM J: I agree with Grove J. **********