New South Wales Court of Criminal Appeal CITATION: TM v REGINA [2008] NSWCCA 158 HEARING DATE(S): Wednesday 21 May 2008 JUDGMENT DATE: 14 July 2008 JUDGMENT OF: James J at 1; Hoeben J at 2; Hall J at 3 (1) Application for leave to appeal granted. (2) The appeal is allowed, in part. (3) An order under s.19(1), Children (Criminal Proceedings) Act, that the applicant serve the sentence imposed under orders (5) and (7) below and the sentences imposed by the District Court in respect of Counts 3 and 4 as a juvenile offender. (4) That the sentence imposed in respect of Count 2 be set aside. DECISION: (5) That, in respect of Count 2, the applicant be sentenced to a period of three years and six months commencing on 2 November 2006 and expiring on 1 May 2010 with a balance of term of three years and three months to expire on 1 August 2013. (6) That the sentence imposed in respect of Count 1 be set aside. (7) That, in respect of Count 1, the applicant be sentenced to a fixed term of three years and six months commencing 2 November 2006 and expiring 1 May 2010. (8) That the sentence imposed by the District Court in respect of Counts 3 and 4, and the sentence imposed by this Court in respect of Count 1, be wholly concurrent with the sentence of this Court imposed in respect of Count 2. (9) Accordingly the date on which the applicant will become eligible for parole will be 1 May 2010. CATCHWORDS: CRIMINAL LAW – SENTENCING – appeal against severity of sentence – applicant pleaded guilty to four offences under Crimes Act 1900 – offence in midrange of objective seriousness – juvenile offender – immaturity as a significant factor in the commission of the offence – sentence held manifestly excessive Childrens (Criminal Proceedings) Act 1987 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment MS2 & Ors v R (2005) 158 A Crim R 93 R v Baker [2000] NSWCCA 85 CASES CITED : R v DB; R v DMM (2007) 167 A Crim R 393 R v Hearne (2001) 124 A Crim R 451 R v JLC-H [2004] NSWCCA 70 R v Way (2004) 60 NSWLR 168 PARTIES: TM v REGINA FILE NUMBER(S): CCA No 2007/3111 COUNSEL: Crown: N Adams App: A Francis SOLICITORS: Crown: S Kavanagh App: S O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/21/1037 LOWER COURT JUDICIAL OFFICER: Christie ADCJ LOWER COURT DATE OF DECISION: 18 July 2007 IN THE COURT OF CRIMINAL APPEAL 2007/3111 JAMES J HOEBEN J HALL J MONDAY 14 JULY 2008 TM v REGINA Judgment 1 JAMES J: I agree with Hall J. 2 HOEBEN J: I agree with Hall J and the orders which he proposes. 3 HALL J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 18 July 2007 following pleas of guilty to four offences arising from the one incident. 4 On 27 February 2007, he pleaded guilty in the Cobham Children's Court to the following four counts:- Count 1: Specially aggravated enter dwelling house with intent to commit a serious indictable offence contrary to s.111(3) of the Crimes Act 1900 (maximum penalty: 20 years' imprisonment); Count 2: Assault with intent to rob whilst being armed and causing wounding contrary to s.98 of the Crimes Act 1900 (maximum penalty: 25 years' imprisonment; standard non-parole period: seven years' imprisonment); Count 3: Assault occasioning actual bodily harm contrary to s.59 of the Crimes Act 1900 (maximum penalty: five years' imprisonment); Count 4: Assault contrary to s.61 of the Crimes Act 1900 (maximum penalty: two years' imprisonment). 5 The applicant is presently 16 years of age. He was 14 years of age at the date of the offences. He was 15 year of age at the time of sentence. 6 By notice dated 8 February 2008, the applicant provided notice of the following grounds of appeal:- (1) His Honour erred in failing to make an order pursuant to s.19(3) of the Children's (Criminal Proceedings) Act 1987 that the applicant serve his non-parole period in juvenile detention. (2) The sentencing judge gave too much weight to what were regarded as the objectively aggravating features of the offences. (3) The sentencing judge had insufficient regard to the applicant's age and misapplied the principles relevant to sentencing offenders of such tender years. (4) The sentencing judge erred in failing to have proper regard to the contents of the Juvenile Justice Report. (5) The sentencing judge erred in failing to quantify and properly recognise the discount to which the applicant was entitled for his assistance. (6) The sentence is manifestly excessive in the circumstances of this case. 7 The applicant has been held in custody since the commission of the offences, namely, 2 November 2006. 8 The sentencing judge imposed an effective overall term of eight years' imprisonment with a non-parole period of four years and six months. In relation to the individual offences, the following sentences were imposed:- Count 2: Eight years' imprisonment comprising a non-parole period of four years and six months to commence on 2 November 2006 and expire on 1 November 2014, the applicant being eligible for release to parole on 1 May 2011. Count 1: A fixed term of four years' imprisonment to date from 2 November 2006. Count 3: A fixed term of two years' imprisonment to date from 2 November 2006. Count 4: A fixed term of 18 months' imprisonment to date from 2 November 2006. GROUNDS OF APPEAL Ground 1: His Honour erred in failing to make an order pursuant to s.19(3) of the Children (Criminal Proceedings) Act that the applicant serve his non-parole period in juvenile detention 9 At the sentencing hearing, the solicitor for the Crown indicated that she would not argue against a direction that s.19 of the Children (Criminal Proceedings) Act 1987 be applied. At a later point, the applicant's legal representative asked the sentencing judge to recommend under s.19 of the Act that the applicant serve all his time in a Juvenile Justice Centre. 10 The Court had power pursuant to s.19(1) of that Act to make the order. That provision empowers the sentencing court to make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender. 11 By s.19(3), a person who is sentenced to imprisonment in respect of a serious children's indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years unless, inter alia, the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age. The sentencing judge did not refer to this last-mentioned provision. As the Crown has observed in its written submissions on this application for leave to appeal, there is nothing in the remarks on sentence to suggest that his Honour would not have made the order had he recognised that the power existed. 12 The offence contrary to s.98 of the Crimes Act (Count 2) is a serious indictable offence and one that must be dealt with according to law pursuant to s.17 of the Children Criminal Proceedings Act. 13 In the circumstances, it was not contested that an error had been made in this respect and the Crown accepted that an order ought to have been made pursuant to s.19(3) of the Act that the applicant serve his sentence in juvenile detention. Ground 2: The sentencing judge gave too much weight to what were regarded as the objectively aggravating features of the offence 14 There was placed before the sentencing court a statement of facts (Exhibit A). According to that document, the applicant was woken by his elder brother, PM, early on the morning of 2 November 2006 and was driven by him to an area near an abandoned house located next door to the victims' premises. He then provided the applicant with various items of disguise and a knife. The applicant's brother took a meat cleaver. 15 They both entered the premises via a rear door. A number of members of a family living there were present, although the father of the family had left for work shortly before. Those present in the house on the morning in question included a woman and her three sons and two daughters. 16 According to the statement, the facts surrounding the offences were as follows:- "[The applicant] and [the applicant's brother] moved quickly into the hallway, near the entrance to the lounge area and the kitchen. Both of them gestured for the victims in the loungeroom to remain quiet and get on the floor. [The applicant's brother] moved into the doorway separating the kitchen and lounge room. As he moved into the kitchen area [the applicant's brother] stood in the hallway watching the victims in the lounge room. As [the applicant] entered the kitchen he approached Li Wang with his arm raised with a knife in his hand and he demanded money, 'Give em the money. You no give me money I kill you'. Li Wang commenced screaming." 17 Following these events, the applicant was restrained following a struggle with the mother of the children and one of her sons. The woman received a wound to her hand from the applicant's knife which did not require stitches. One of her sons received a small cut to his right middle finger. The applicant was also injured by the knife causing a wound to his arm which required stitches. 18 His brother was swinging the meat cleaver at one of the children. The brother then went outside and commenced throwing rocks at the windows of the house causing them to smash. He evaded apprehension but, at a later point in time, was arrested and charged with offences arising out of the abovementioned events. He had not been sentenced at the time of the applicant's sentence hearing. 19 In the written submissions on behalf of the applicant, Ms A Francis of counsel observed that the knife that the applicant had been provided with by his brother had broken during the altercation. It was argued that it was self-evident that the applicant was readily restrained and that whilst the offence was a home invasion, the applicant demonstrated little capacity to intimidate, to carry out the crime and overcome the occupants. 20 In the remarks on sentence, the sentencing judge observed that the plea of guilty was entered at the earliest opportunity. He noted that the standard non-parole period for the offence under s.98 of the Crimes Act was a period of seven years. His Honour referred to the principles enunciated by this Court in Regina v Way (2004) 60 NSWLR 168, [2007] NSWCCA 131 and also to the provisions of s.21A of the Crimes (Sentencing Procedure) Act 1999. 21 In relation to the latter provisions, the sentencing judge had regard to the applicant's youth and his prospects of rehabilitation which were said to be excellent. 22 In relation to the standard non-parole period of seven years, the sentencing judge stated (remarks on sentence, p.5):- "… I need to say, without turning to the facts in significant detail or lengthy detail, that I entertain not the slightest doubt that these offences fall within that category and, leaving other matters aside, they would be subject to the imposition of a standard non-parole period of seven years." 23 However, he then referred to the applicant's age and to his prospect of rehabilitation and said that it would not be in the public interest for the standard non-parole period of seven years to be applied to him. In this context, reference was also made to the applicant's "very limited criminal history". 24 The sentencing judge also had regard to the fact that, although the circumstances of the s.98 offence were "disturbing in the extreme", it was committed in the company of his elder brother who, he noted, was a man in his mid to late 20s. In the circumstances, he considered that he was entitled to draw the inference "… that the elder brother … was the driving force behind this enterprise. But that is not to say that the present offender … was not an enthusiastic participant in relation to these events" (remarks on sentence, p.6). 25 The remarks on sentence also recorded the fact that the applicant was on bail at the time of the s.98 offence, bail having been granted for "… a not dissimilar offence involving robbery in company …". 26 The sentencing judge, in relation to the objective seriousness of the offence, concluded (remarks on sentence, p.9):- "I have already said that, in my view, having regard to some of the factors in relation to this particular matter, this incident certainly falls, in terms of objective seriousness, into the middle range. Both participants were heavily disguised, gloves, socks on their boots, armed with weapons, that is, a knife and a meat cleaver. Both in the company of each other. It was a home invasion, a number of victims of various ages and genders and this particular offender played a prominent role in what occurred. His conduct was the conduct of a young juvenile but he certainly acted like an adult in terms of this enterprise. I realise that general deterrence is less important than rehabilitation prospects, but general deterrence, of course, cannot be ignored …" 27 In relation to the element of planning, the remarks on sentence record that there must have been some discussion between the applicant and his brother before entering the premises, it being observed (remarks on sentence, p.11):- "… so that even if the planning was limited and I suppose I must give the offender the benefit of the doubt in terms of his knowledge of the planning. Certainly before they entered, the planning reached the stage of adopting these disguises and the other protections by way of gloves and socks on the boots." 28 The sentencing judge determined that the aggravating factors under s.21A of the Crimes (Sentencing Procedure) Act were:- • That the applicant was on conditional liberty (bail) for a not dissimilar offence. • That there was at least limited planning. • That the injuries themselves were not substantial but, on the other hand, they were not trivial. 29 As stated in the Crown's written submissions, it was ultimately a question for the sentencing judge as to what weight was to be given to the objective aggravating features of the case: Regina v Baker [2000] NSWCCA 85 per Spigelman CJ at [11]. Reliance was also placed upon the fact that the sentencing judge found the offence to be in the mid-range of objective seriousness and no complaint has been made as to that finding. The complaint was essentially that the sentence imposed was too high. Ground 3: The sentencing judge had insufficient regard to the applicant's age and mis-applied the principles relevant to sentencing offenders of tender years 30 It is clear from the remarks on sentence that the sentencing judge was mindful of the applicant's age and the sentencing principles that apply to the sentencing of young offenders. He quoted from the decision of this Court in Regina v DB; Regina v DMM (2007) 167 A Crim R 393, [2007] NSWCCA 27, a decision which emphasised the importance of recognising the role immaturity plays in the commission of offences by young persons. 31 In the written submissions on behalf of the applicant, the following passage was extracted from the remarks on sentence:- "I would normally, having regard to the serious nature of this particular crime, impose a sentence on an adult, particularly one who was on conditional liberty at the time, of somewhere between 12 and 14 years. The maximum penalty, of course, is 25 years. Having considered the matter for a couple of days, I reached the conclusion that a sentence of 10 and a half years would be approximately appropriate, but the prisoner is entitled to a 25% reduction in broad terms." 32 Ms Francis, in her written submissions, observed:- "5.3 Whilst little assistance is to be derived from assessing whether a starting point of 12 to 14 years would be appropriate for the broad class constituted by 'adult offenders', his Honour's approach reveals a reduction in penalty, on account of youth, of between 18 months and three and a half years. This is illustrative of the errors contended for by the applicant, namely, that his Honour had insufficient regard to the principles relevant in sentencing juvenile offenders, particularly, juvenile offenders who are as young as the applicant." 33 In a case such as the present, the age and immaturity of the offender is an important factor that determines the level of culpability associated with a serious offence where such immaturity was a significant contributing factor. 34 In this respect, in Regina v JLC-H [2004] NSWCCA 70 at [30], Santow JA stated:- "Then there are subjective factors of a terrible home background and domestic violence of a continuing nature which clearly marked this immature young man, still only 16 years 9 months at the time of these offences. That immaturity is an important aspect of this case. In Hearne [2001] 124 A Crim R at [22], this Court considered the sentencing of young offenders and, in particular, what might be described as the tension between the desirability of rehabilitating the offender with the need to recognise the criminality of an offender who has committed a particularly serious crime. Addressing the principle involved, the Court said (at para 25):- 'It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence , then it may be fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.'" (emphasis added) 35 In MS2 & Ors v Regina (2005) 158 A Crim R 93, [2005] NSWCCA 397, Adams and Hoeben JJ (Simpson J dissenting) referred to and applied the relevant principles. The principal offender in that case had a family background and early behavioural problems leading up to the offences that were remarkably similar to those of the applicant to the present proceedings. The principal difference was that the offender in that case was aged 15 years and seven months at the time of the offences. Adams, J in MS2 at [16], stated, in relation to the sentencing of young offenders, that there are two reasons why the youthfulness of offenders is considered a very significant factor. The first is the substantial public interest in the rehabilitation of youthful offenders. The second is that immaturity is relevant to culpability or criminality. His Honour there stated:- "… the point may be put simply: children do not have adult value judgments, adult experience, adult appreciation of consequences – especially catastrophic consequences – or adult understanding of criminal culpability. That, of course, is not to say that, depending on age and background, they cannot be intentionally wicked and know very well that what they do or intend to do is very seriously wrong and even criminal …" 36 His Honour later added that immaturity in the circumstances of that case was of considerable significance as a factor and although it did not provide an excuse for the conduct, the point was "… that their culpability was significantly less than would have been the case had they been mature adults …" (at [23]). Hoeben J expressed a similar opinion. 37 I will return to the question as to whether or not the sentencing judge did properly assess, in accordance with accepted principle, the extent to which the applicant's immaturity was a factor in the commission of the offence (see Ground 6: sentence manifestly excessive). Ground 4: The sentencing judge erred in failing to have proper regard to the contents of the Juvenile Justice Report 38 Section 25(2) of the Children (Criminal Proceedings) Act requires a sentencing judge to "take into account the matters contained in the (background) report" before a child can be sentenced to a term of imprisonment. 39 The sentencing judge referred to the background report (Exhibit B) at p.10.1 of the remarks on sentence in the context of finding that the applicant had excellent prospects of rehabilitation. 40 The eight page report was made by Andrea Bartolo, Juvenile Justice Officer, dated 13 July 2007. It was based on a number of sources of information as set out on pp.1 and 2. The circumstances relating to the offence, family background, education, social activities and peer group, custodial response and assessment were fully discussed in the report. 41 Ms Bartolo observed that, since being in custody, the applicant had maintained a constant level of good behaviour and maintained a good relationship with staff and other residents. He continued to attend school on a full-time basis and maintained a very high standard of participation and conduct. He was currently working towards his Year 10 School Certificate. 42 The Juvenile Justice Report, however, was not concerned to determine the extent to which the applicant's immaturity had contributed to his offending. It did refer (p.6) to the fact that the applicant's older brother "… may have had some detrimental effect on (the applicant's) behaviour and encouraged him to become involved in criminal activity". 43 The report then set out the suggested sentencing options which included the applicant's suitability for inclusion into the Community Order Scheme. 44 It is clear that the sentencing judge did read the background report. The report, as I have stated, focussed ultimately on the issue of sentencing options. I do not consider that it has been established that the sentencing judge failed to take into account the matters contained in the report. Ground 5: The sentencing judge erred in failing to quantify and properly characterise the discount to which the applicant was entitled for his assistance 45 Whilst the applicant participated in an electronically recorded interview with police in which he made admissions nominating his brother as co-offender, he did not provide an undertaking to give evidence against his brother. 46 The sentencing judge did have regard to the fact that he had been frank in discussions with police and expressly said that he had taken it into account. 47 I do not consider that there is any substance to this ground. It very much formed part of the sentencing discretion of the sentencing judge. Ground 6: The sentence imposed is manifestly excessive in the circumstances of the case 48 As earlier stated, no complaint is made concerning the assessment that the offence under s.98 fell within the mid-range of objective seriousness. 49 The written submissions for the applicant also accepted that the offences were aggravated by the fact that the applicant was on conditional liberty at the time, having been granted bail for three robbery offences. He was dealt with without conviction in relation to those offences before being sentenced in relation to the present matters. 50 There is no express reference as to whether or not the applicant's youth or immaturity was a factor in the commission of the offences, let alone that it was a significant contributing factor. The sentencing judge inferred, as noted earlier, that his brother was the driving force behind the enterprise. There was also the finding that there had been some planning, although limited in nature. 51 I accept as valid the argument put by Ms Francis in her written submissions that it is not an appropriate approach in a case such as the present to approach the sentencing exercise by identifying the appropriate sentence that might have been applied to an adult (as the sentencing judge did in the present case) and then to allow some kind of discount on account of youth. 52 The correct approach requires the sentencing judge to assess whether immaturity, having regard in particular to an offender's age, was a significant factor in the commission of an offence. If those questions are answered in the affirmative, then it may be fairly said that the criminality involved is less than it would be in the case of an adult of more mature years in accordance with the principles stated in Regina v Hearne (2001) 124 A Crim R 451, [2001] NSWCCA 37 and Regina v JLC-H (supra). 53 The objective seriousness of the offences committed by the applicant by way of a home invasion in company and causing injury was undoubtedly of a high order, although fortunately the nature of the injuries were not serious. 54 The evidence before the sentencing judge established that the applicant's elder brother was considerably older then him (being approximately 28 years of age at the date of the offences), that it was his brother who enlisted the applicant in the relevant events and provided him with the disguise and other apparel and gave him a knife. The fact that the sentencing judge found the applicant to be a willing or active participant, does not, in itself, deal with the extent of the contribution of his immaturity. 55 In the report of the clinical psychologist, Mr Peter G Champion, the personal history included the fact that there had been a number of suspensions from high school and a report of truancy and a report of the applicant "… having tended to gravitate to older sub-cultural peers". Mr Champion stated at p.5 of his report:- "… the problem being that the next oldest brother was apparently a problem child and reportedly involved in offending behaviour, and thus his influence may not have been a positive one …" 56 In his conclusions, Mr Champion stated that the applicant's history suggested, inter alia, "peer-group dependency" exacerbated by prior cannabis use and recent alcohol abuse. 57 In the circumstances in which it may be inferred that a considerably older brother, consistently reported as having had a history of behavioural problems, had influence over the applicant and who instigated the subject offences, it is clear that the applicant's immaturity was a significant factor in his offending, Mr Champion's report confirmed that he had a pre-disposition to being led to participate in disorderly behaviour. 58 These matters are central to the assessment of the criminality of the applicant as a young offender of 14 years at the time of the offences. Notwithstanding that the sentencing judge had regard to both the applicant's youth and to his excellent prospects of rehabilitation, he did not, in my opinion, undertake the assessment of criminality in accordance with the principles discussed in the authorities to which I have referred. 59 I, accordingly, am of the opinion that without that assessment having been properly brought into account, the sentence was, in all the circumstances, manifestly excessive. 60 The applicant was granted leave to rely upon the affidavits of Catherine Ridge, solicitor, both declared and affirmed on 20 May 2008. The report of Andrea Bartolo, Juvenile Justice Officer, a copy of which is Annexure A to the longer of the two affidavits, consistently with her earlier report referred to above, confirmed that he has been a co-operative student of good behaviour and has undertaken counselling. He has received positive reports from teachers. The reference from Pastor Bromley dated 14 May 2008 (a copy of which is Annexure B to the same affidavit) also attests to the applicant's progress and his participation in chapel services and sporting activities and respect shown to others. His concern as to the possible effect of continued detention is noted. 61 Ms Ridge's second affidavit attaches a supporting letter from his sister and confirms that he will have the support and assistance of his family upon his release. 62 I am of the opinion that an appropriate starting point would be a head sentence of nine years. After allowing 25% discount for an early plea, that would result in an overall term of six years and nine months. 63 The finding of special circumstances made by the sentencing judge was one appropriately made and there was no challenge in that respect. 64 I am, accordingly, of the opinion that the appropriate non-parole period in respect of Count 2 is a period of three years and six months to commence on 2 November 2006 and to expire on 1 May 2010, with a balance of term of three years and three months to expire on 1 August 2013. 65 I propose that the fixed term of four years' imprisonment imposed by the sentencing judge in respect of Count 1 be quashed and that the applicant be re-sentenced in respect of Count 1 to a fixed term of three years and six months commencing 2 November 2006. Accordingly, the sentence for Count 1 will expire on 1 May 2010. 66 The sentences imposed by the District Court in respect of Counts 3 and 4, and the sentence I propose in respect of Count 1, I consider should be wholly concurrent with the sentence imposed with respect to Count 2 in accordance with paragraph [64]. The fact that the particular offences all occurred during the one episode, I consider in the particular circumstances of the case, provides a sufficient basis for concurrent sentences. 67 Accordingly, the orders I propose are:- (1) Application for leave to appeal granted. (2) The appeal is allowed, in part. (3) An order under s.19(1), Children (Criminal Proceedings) Act , that the applicant serve the sentence imposed under orders (5) and (7) below and the sentences imposed by the District Court in respect of Counts 3 and 4 as a juvenile offender. (4) That the sentence imposed in respect of Count 2 be set aside. (5) That, in respect of Count 2, the applicant be sentenced to a period of three years and six months commencing on 2 November 2006 and expiring on 1 May 2010 with a balance of term of three years and three months to expire on 1 August 2013. (6) That the sentence imposed in respect of Count 1 be set aside. (7) That, in respect of Count 1, the applicant be sentenced to a fixed term of three years and six months commencing 2 November 2006 and expiring 1 May 2010. (8) That the sentence imposed by the District Court in respect of Counts 3 and 4, and the sentence imposed by this Court in respect of Count 1, be wholly concurrent with the sentence of this Court imposed in respect of Count 2. (9) Accordingly the date on which the applicant will become eligible for parole will be 1 May 2010. ********** 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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