New South Wales Court of Criminal Appeal CITATION: CM v Regina [2008] NSWCCA 195 HEARING DATE(S): 6 August 2008 JUDGMENT DATE: 19 August 2008 JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Blanch J at 19 DECISION: Leave to appeal granted but appeal dismissed CATCHWORDS: Criminal law - sentence - application for leave to appeal against the severity of sentence whether error made in giving sufficient weight to applicant's youth - tension in sentencing where a juvenile commits a serious offence of violence Children (Criminal Proceedings) Act 1987 s6, s19 LEGISLATION CITED: Children (Detention Centres) Act 1987 s28 Crimes Act 1900 s61J(1), s86(2)(b) Criminal Appeal Act 1912 s6(3) CATEGORY: Principal judgment CASES CITED : MS2 v The Queen (2005) 158 ACrimR 93 KT v R [2008] NSWCCA 51 PARTIES: CM (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/4278002 COUNSEL: H Dhanji (Applicant) N Noman (Respondent) SOLICITORS: S O'Connor, Legal Aid Commission S Kavanagh, Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/61/0006 LOWER COURT JUDICIAL OFFICER: Hulme DCJ LOWER COURT DATE OF DECISION: 6 September 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v CM IN THE COURT OF CRIMINAL APPEAL CCA 2007/4278002 McCLELLAN CJ at CL GROVE J BLANCH J 19 August, 2008 CM v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Blanch J. 2 GROVE J: I have had the advantage of reading the judgment of Blanch J in draft form. As his recapitulation of the agreed facts demonstrates, the objective seriousness of the criminal conduct of the applicant was very high and the finding of the learned sentencing judge that the offence was close to being in the worst category for the particular offence was plainly correct. The extreme youth of the applicant constituted an essentially isolated subjective factor which might attract mitigation of sentence. 3 The legislative mandate in s 6 of the Children (Criminal Proceedings) Act 1987 needed to be applied. Unless otherwise stated section references are to that statute. I agree with the reasons of Blanch J for rejecting the argument that Hulme DCJ failed to have proper regard to the provisions of that Act. 4 It would be less than candid, however, not to state that the submission that his Honour erred in failing to give effect to his intention to impose a non-parole period which will expire prior to the applicant's 21st birthday has caused me considerable concern. 5 Section 19 empowers a sentencing judge to direct that the whole or part of any term imposed on a person under the age of 21 be served as a juvenile offender. The eligibility to serve such whole or part of term in that fashion expires when the offender attains the age of 21 unless the term itself is scheduled to expire within the six months following that attainment. See s 19 (2). Hence, in setting the non-parole period in respect of the sentence on the applicant there existed power to direct that that term be served as a juvenile offender, he having been born on 26 December 1990, until 25 June 2012. 6 It is recognized that the effect of a direction may be overridden by the Minister who, pursuant to the Children (Detention Centres) Act 1987, may transfer an offender who has attained 18 years to an adult prison, but I would regard the existence of a power which may or may not be implemented as irrelevant to the performance of judicial function in assessing sentence, determining a non-parole period and whether or not to make a direction under s 19. 7 An express submission was made in the District Court (page 7 transcript 31 August 2007) that "behaviour modification therapy suggested in a psychological report could be best addressed in a juvenile detention facility and that, while no submission was made about a non-parole period which would extend after the applicant attained 18 years of age", it was submitted that, in the light of the expiry of that potential when the applicant was 21, any non-parole period would not extend beyond that period of time. 8 In his remarks on sentence his Honour analysed the various experts' reports but did not specifically deal with this submission. He did state that he was satisfied "there are special circumstances for the offender to be detained after he has attained the age of 18". He did not at that point refer to a particular time at which that form of detention should terminate. He then referred to the desirability of the applicant undertaking programmes and counselling and concluded that "it is distinctly possible that such programmes will not be efficacious for the offender at the present time but will become so as the offender moves into his later teenage years". 9 Thereafter sentence was imposed comprising a non-parole period of 6 years 6 months with a balance term of 4 years commencing on 22 May 2006, the date on which actual custody had commenced. The transcript records that his Honour specified to the applicant, "You will be eligible for release on parole on the expiry of the non-parole period on 22 November 2011". Obviously, 6 years 6 months commencing on 22 May 2006 will expire not on 21 November 2011 but on 21 November 2012. On 21 November 2011 the applicant will be one month five days short of his 21st birthday, however his Honour continued and later stated, "Pursuant to s 19 (3) of the Children (Criminal Procedure) Act 1987 I direct that you serve your sentence as a juvenile offender until you attain the age of 21". 10 Section 19 (3) was germane as the applicant had committed a defined serious indictable offence but that provision is subject to subsection (2), the effect of which I have noted above. 11 The back of the indictment has not been endorsed but as the Crown submissions note, and the document was produced during the hearing of the appeal, his Honour's "signed record of proceedings correctly records 2012". 12 The mechanics of the provisions of s 19, if applied to the present matter, would operate as follows, observing of course, that what is involved is a date of earliest eligibility for release to parole and not an entitlement to be so released. 13 A non-parole period expiring on 21 November 2012, being just short of 11 months after the applicant's 21st birthday and longer than the six months extension contemplated by s 19 (2), would see the applicant detained in juvenile detention from 22 May 2006 until 26 December 2011, a period of about 5 years 7 months and then he would be kept in the environment of an adult prison for about 11 months. That sequence is a potential consequence of the specification of a non-parole period of 6 years 6 months. A specification of a non-parole period of 6 years 1 month would operate to have the applicant achieve eligibility for parole at the extreme end (by four days) of the period in which he could be kept in juvenile detention. 14 Given the clear policy of placing primary focus upon the rehabilitation of young offenders evidenced in s 6 and the existence of programmes which would be undertaken in juvenile detention, I have found an outcome which involves over 5½ years followed by a little under a year in adult confinement somewhat troubling. I was attracted by the force of the submission by counsel for the applicant that it requires only a relatively slight change in the proportion of non-parole period to head sentence to have a dramatic effect upon the impact of the sentence. 15 Although, as his Honour observed, the forecasts of the experts were relatively gloomy, only time and experience will show whether the applicant can make a positive response. If he does make good use of his opportunities while in juvenile detention, I would apprehend a genuine risk that any rehabilitation achieved might be compromised by transferring him to an adult facility. That transfer will inevitably happen if his non-parole period does not expire until 21 November 2012. Irrespective of when his non-parole period is ordered to expire, if he fails to make use of his opportunities he will, by attainment of age, be so transferred. My concern is principally focussed upon the above described risk which the "slight change" postulated by counsel would avoid. In view of the short period involved it is difficult to perceive the risk as necessary and its avoidance would be in harmony with the principle expressed in s 6 that young offenders require guidance and assistance. 16 However, there is nothing in his Honour's remarks nor in the record to indicate an intention (as asserted in the ground of appeal) that the applicant spend the whole of his non-parole period in juvenile detention. The power of this Court to intervene is exercisable upon finding error and in its absence it is necessary to maintain discipline against succumbing to temptation to substitute a preferred sentence or order for that which is made by a sentencing judge within the ambit of his discretion. 17 The unchallengeable finding that the offence lay near the worst case category demands rejection of the submission that the sentence was manifestly excessive. The combination of his Honour's expression of a non-parole period of 6 years 6 months, his reference to juvenile detention until the age of 21, his Honour's awareness of the applicant's birthday and the signed note confirming the date of expiry of the non-parole period at 21 November 2012 obliges a conclusion that the reference to 21 November 2011 was an error of either tongue or transcription and does not provide a basis for finding a material error and authorizing a variance to the sentences and orders made by Hulme DCJ. 18 Despite the concerns which I have expressed, I agree that the orders proposed by Blanch J should be made. 19 BLANCH J: By notice dated 18 April, 2008 the applicant seeks leave to appeal against the severity of a sentence imposed in the District Court on 6 September, 2007. On 16 July, 2007 he appeared at the Bathurst sittings of the District Court and entered a plea of guilty to a charge that on 19 May, 2006 he had sexual intercourse with CN without her consent knowing she was not consenting and at the time he maliciously inflicted actual bodily harm. The offence is under s61J(1) Crimes Act 1900 for which a maximum penalty of 20 years is prescribed and there is a standard non-parole period of 10 years. 20 The applicant was born on 26 December, 1990 and at the time of the offence he was aged 15. At the time of sentence he was 16. Accordingly, the offence is a serious children's indictable offence and must be dealt with accordingly to law. At the time of sentencing he asked that a further offence of detaining CN for advantage be taken into account. That offence is under s86(2)(b) Crimes Act 1900 for which a maximum penalty of 20 years is prescribed. On 6 September, 2007 the applicant was sentenced to a term of 10½ years imprisonment consisting of a non-parole period of 6½ years, the sentence and non-parole period to date from 22 May, 2006 with the non-parole period to expire on 21 November, 2012. 21 The agreed statement of facts tendered was in the following terms: On the evening of 19 May 2006 CN, who was then twenty-six years old, met up with a group of friends at an address in Kelso. The offender was also at that address. He had known CN for about eight months. Later in the evening CN and the offender went to a unit in Forest Place in Bathurst. Two other males were in that unit. CN and the offender spoke with these men for a short time before the offender requested sex from CN. She declined. He then demanded it and she again declined. At this point the offender became violent. He armed himself with a length of wood, approximately 80 to 100 centimetres long and 40 millimetres wide, and struck CN with it a number of times to the head and upper body, thereby inflicting injuries to her head that bled profusely. The offender continued to demand sex whilst carrying out this assault. Out of fear CN lay on the bed in the room and the offender removed her blood splattered coat, shirt and underwear. He then inserted his penis into her vagina and had sexual intercourse with her for a period of time, ejaculating inside her. When he had finished the offender told CN to stand up naked in front of the other two males. He then offered her to them in order that they have sexual intercourse with her but they declined. The offender then threatened and struck CN again with the length of wood and demanded that she have a shower. She complied. After showering CN was held captive at the unit for some time. At around midnight she managed to escape from the unit but was pursued by the offender. He managed to detain her and return her to the unit where he further assaulted her. Witnesses heard CN screaming and one saw her being pursued by the offender. Police were called but they failed to find her. CN remained at the unit for a further number of hours during which time the offender taunted, threatened and further assaulted her. The other two males continued to be present but they did nothing to assist CN or call the police. About 2.30am two teenage girls arrived at the unit to visit one of the occupants. On entering they saw CN semi-naked and covered in blood. They saw the offender in possession of the length of wood and waving it in the direction of CN. These two girls then assisted CN to leave the unit. The offender followed them into the street still armed with the piece of wood. He called to CN to return but she and the two girls walked away. The offender threatened CN not to contact the police. As they got out of sight of the offender CN lost her composure and disclosed the sexual assault to the two girls. They took her to a nearby house where police and ambulance officers were summoned. CN was taken to Bathurst Base Hospital where she was spoken to by detectives. At this time it was noted that she was severely traumatised by the incident and frightened of the offender to the point that she asked for police assistance to leave Bathurst. CN suffered the following injuries: a wound to the front left of her head that required five sutures, a wound to the back of her head that required two sutures, significant bruising to the face and head, a blackened left eye that was swollen and closed, large defensive bruises and welts to the inner upper thighs. 22 On 22 May, 2006 the applicant was arrested. He denied any involvement in the assault. Police noted blood stains on his shoes and semen with the applicant's DNA profile was detected in a high vaginal swab taken from CN. Her DNA profile was also found in blood stains on the applicant's clothing. 23 The criminal history of the applicant is that he first appeared before the Children's Court in October, 2004 when aged 13 for an offence of possess implements to enter a conveyance and larceny. He subsequently appeared at Bathurst Children's Court in February, 2005 and was given a bond to be of good behaviour for 12 months in respect of a number of offences of dishonesty and assaulting police. In October, 2005 he was fined on a charge of possess prohibited drug and on 21 November, 2005 he was released on probation for 10 months in respect of a charge of larceny and a charge of take and drive conveyance without consent. The commission of this offence was a breach of that bond. At the time of this offence he was also on conditional bail in respect of another matter. 24 The sentencing judge had the benefit of a Juvenile Justice report, a report by Ms Anita Duffy, psychologist and a report by Dr John Kasinathan, psychiatrist. The Juvenile Justice report indicates he was born in Walgett and has always lived with his mother. He said he first met his father when he was 14 years of age, however, it is said he had a close relationship with his grandfather and uncles. Reports indicate he left school in term 2 of year 8 after periods of disruptive behaviour and non-attendance at school. He claimed to have been drinking alcohol, smoking cigarettes and taking cannabis from the age of 7. He said he inhaled petrol for 6 months prior to his arrest. The report noted his disrupted upbringing in an Aboriginal family and concluded that his reluctance to accept responsibility for the offence may inhibit his future capacity to avoid offending. The report expressed the need for him to address his problems with substance abuse and his lack of education. The psychiatric report of Dr Kasinathan said he met the diagnostic criteria for sexual sadism because the suffering of the victim was sexually exciting to him and assessed him as having a high risk of future offending for offences related to sex and violence. 25 The offence is obviously a very serious one but which was committed at a time when the applicant was almost 15 years and 5 months old. It is the reconciliation of the principles relevant to those 2 factors which creates the difficulty in arriving at an appropriate sentence in this case. 26 On behalf of the applicant it is submitted that the sentencing judge erred in failing to have proper regard to s6 of the Children (Criminal Proceedings) Act 1987. That section reads as follows: 6 Principles relating to the exercise of criminal jurisdiction A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles: (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind. In particular it is said that the sentencing judge did not make specific reference to s6(c). 27 What the sentencing judge said was: "There are a number of principles that I must have regard to in sentencing in this case. First are the principles relating to the exercise of criminal jurisdiction in relation to children set out in s6 Children (Criminal Proceedings) Act 1987. I will not set out the terms of that section but I confirm that I have borne them in mind." He then went on to deal in particular with s6(b). 28 I do not see that a failure to quote s6(c) indicates that his Honour did not have proper regard to it. In a very careful judgment he said that he had borne in mind all the provisions of the section. Moreover the judge specifically did refer to the Juvenile Justice report noting the applicant would be able to participate in sexual offender and drug counselling programs while in custody. A failure to mention allowing the applicant's education to proceed without interruption in my view is not an error, particularly when the judge said he had taken all the provisions of s6 into account. I note in this case the applicant had already left school and it cannot be said that his current education was being interrupted. 29 It is next submitted on behalf of the applicant that the sentencing judge erred in failing to give effect to his intention to impose a sentence with a non-parole period which "will expire prior to the applicant's 21st birthday." It is the fact that in the remarks on sentence the judge in sentencing him to a non-parole period of 6 years and 6 months from 22 May, 2006 said "You will be eligible for release on parole on the expiry of the non-parole period on 21 November, 2011". A non-parole period of 6 years and 6 months from 22 May, 2006 would in fact expire on 21 November, 2012. The signed record of proceedings records the expiry date of the non-parole period correctly as 21 November, 2012. 30 At no stage did his Honour say he was intending that the non-parole period would expire prior to the applicant's 21st birthday. The relevance of that argument in this case is that the sentencing judge directed that the applicant serve his sentence as a juvenile offender until he attained the age of 21. He will attain the age of 21 on 26 December, 2011. Bearing that in mind it is clear his Honour expected him to be in custody at least until 26 December, 2011 and it would appear the mention of a non-parole period expiring on 21 November, 2011 was simply a mistake by his Honour which was corrected when he signed the record of proceedings. 31 This ground highlights the applicant's underlying submission that a slight reduction in the non-parole period would enable the applicant to serve the whole of the sentence in a Juvenile Justice facility whereas, as the sentence presently stands, he would be required to serve the last part of his non-parole period in an adult institution. That is a factor which is relevant to consider but under s28 of the Children (Detention Centres) Act 1987 the Minister has the power to transfer him to an adult institution at any time after he turns 18. It might be expected that in considering exercising that power the effects on his continuing education (if any) will be taken into account. 32 The third ground of appeal is that the non-parole period is in all the circumstances manifestly excessive. This ground raises for consideration the difficulties of balancing the need for deterrence on the one hand and the fact that general deterrence is a matter of less significance when sentencing a juvenile. The principles relevant to that have been considered on a number of occasions by this Court (see, for example, MS2 v The Queen (2005) 158 ACrimR 93 and KT v R [2008] NSWCCA 51). The facts of this case are objectively very serious. The sentencing judge has, in my view, correctly categorised the offence as close to the worst category of offence under s61J. Having found that, his Honour then referred to the standard non-parole period of 10 years as giving some guidance and ultimately taking into account the age and subjective features relevant to the applicant, he arrived at a non-parole period of 6 years and 6 months. In my view, the sentencing judge gave proper consideration to all relevant matters in fixing the non-parole period and the head sentence. There are no errors in the way the sentence was imposed and, in my view, the sentence was correct. I am not of the view that a sentence of less severity is warranted and in accordance with s6(3) of the Criminal Appeal Act 1912 I propose that leave to appeal be granted but the appeal be dismissed. 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.