New South Wales Court of Criminal Appeal CITATION: PMW v R [2009] NSWCCA 34 HEARING DATE(S): 11 February, 2009 JUDGMENT DATE: 11 February 2009 JUDGMENT OF: Grove J at 1; Blanch J at 2; Kirby J at 17 EX TEMPORE JUDGMENT DATE: 11 February 2009 DECISION: Leave granted to appeal. Appeal allowed. Quash sentences imposed in District Court. Instead applicant sentenced to non-parole period of 2 years 9 months to date from 8 June, 2006 and a balance of term of 2 years 9 months. Direct sentence be served in a Juvenile Justice institution. Eligible for release to parole on 7 March, 2009. CATCHWORDS: Criminal Law - robbery in company with wounding - parity of sentence Crimes Act, 1900, s98 LEGISLATION CITED: Children (Criminal Proceedings) Act 1987, s19(1) Children (Detention Centres) Act 1987, s28 CATEGORY: Principal judgment PARTIES: PMW (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2006/7227 COUNSEL: J Stratton SC (Applicant) P Miller (Respondent) SOLICITORS: S E O'Connor, Legal Aid Commission of NSW S Kavanagh, Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/61/0082 LOWER COURT JUDICIAL OFFICER: Woods ADCJ LOWER COURT DATE OF DECISION: 15 November, 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v PMW IN THE COURT OF CRIMINAL APPEAL 2006/7227 GROVE J BLANCH J KIRBY J Wednesday 11 February 2009 PMW v Regina JUDGMENT 1 GROVE J: We are in a position to give judgment in this matter and Justice Blanch will give that judgment. 2 BLANCH J: This is an application for leave to appeal against a sentence imposed at Dubbo District Court on 15 November 2006. The applicant entered a plea of guilty to a charge of robbery in company with wounding contrary to s98 of the Crimes Act 1900. The maximum penalty is twenty-five years imprisonment and there is a standard non-parole period of seven years. He was sentenced to a non-parole period of three years and six months with a balance of term of three years and six months. The non-parole period commenced on 8 June 2006, the day the applicant went into custody. 3 The offence occurred at Dubbo on Sunday 24 April 2005. The victim, who was sixty-three years of age, was the driver of a pizza delivery van and he was delivering a pizza at 7.45 pm which had been ordered for 15 Collins Avenue. When the victim got out of his vehicle to get the pizzas, the applicant came up and said to him "Come on give us your money, we want your money." The victim said he had no money and the applicant struck the victim with a metal bar. His co-offender then stabbed the victim in the leg with a knife. As the victim was trying to get back into his vehicle, the applicant ran around the car and took the victim's mobile phone from the vehicle and ran away. Witnesses had noted that the house where the pizza van was to make the delivery was empty and was in darkness and the occupier was away from the house. The witness had seen two young men sitting in front of that address up to the time of the incident. The applicant made no admission to telephoning for the pizza. 4 A victim impact statement was tendered. The victim suffered grazing and bruising to the left side of his jaw and required surgery to his right thigh involving the repair of three severed arteries. The victim impact statement indicated he has suffered from depression and anxiety arising from the incident. 5 The applicant was born on 9 March 1989 and at the time of the offence he was sixteen years of age and was still only seventeen when he was sentenced. The sentencing Judge recommended he serve the sentence in a Juvenile Justice institution but he did not make a direction to that effect under s19(1) of the Children (Criminal Proceedings) Act. 6 The applicant had a prior criminal history in the Children's Court. In 2006 for offences of break, enter and steal and driving he was given a control order for nine months with a six month non-parole period and a bond to be of good behaviour for twelve months. Later in July 2006 he was given a control order for twelve months with a non-parole period of six months in relation to assaulting an officer in the execution of duty and break, enter and steal and he was given one control order consisting of a non-parole period of six months to expire on 7 December 2006 and another control order with a non-parole period to expire on 26 January 2007. He was arrested on the instant offence on 8 March 2006 and granted bail until sentenced on 15 November 2006. The judge noted he had been in custody since 8 June and backdated the sentence to that date. 7 The applicant comes from an Aboriginal background. His parents separated when he was young and he has lived with his grandmother since the age of four. He left school during year seven and the Juvenile Justice report tendered before the Judge indicated that his record of supervision was poor. It also said he had been experiencing mental health problems with regard to depression and psychotic symptoms in the form of auditory hallucinations. Unfortunately, no psychiatric report was tendered before the sentencing judge and this has been explained by the fact that the Aboriginal Legal Service was unable to fund the preparation of such a report. 8 The first ground of appeal argued is that there is a disparity with the sentence of the co-offender such as to leave the applicant with a legitimate sense of grievance. The co-offender DD was born on 6 October 1988 and was thus six months older that the applicant. He was sentenced on 29 March 2007 by the same judge to a non-parole period of three years and two months with a balance of term of three years and two months. Accordingly, the total sentence he received was eight months less than the applicant and the non-parole period was four months less. 9 The co-offender also had a criminal record in the Children's Court which was more serious than that of the applicant because it included a control order for robbery in 2006 in addition to other convictions. 10 The sentencing judge was aware of the problem of avoiding a disparity in sentence when sentencing the co-offender. His sentence of the co-offender appears to have been strongly motivated by a desire to a fix a non-parole period which expired before he turned twenty-one which at that time guaranteed he would serve the full term of the non-parole period in a Juvenile Justice institution. The non-parole period he imposed expired just before the co-offender turned twenty one. 11 When comparing the situation of the applicant with that of the co-offender, it is significant that the applicant was six months younger, that he made full admissions on his arrest and nominated his co-offender and offered to give evidenced and expressed remorse whereas the co-offender at first denied involvement. The applicant entered a plea of guilty at the earliest opportunity whereas the co-offender did not enter his plea until after committal for trial in the District Court. It should also be noted that it was the co-offender who stabbed the victim in the thigh which constitutes the wounding in this case. I find it difficult to distinguish between the roles of the two offenders in the incident and there does not seem to me to be any justification for treating the co-offender more leniently. I note also in the case of the co-offender there was a direction given that he served his sentence in a juvenile institution. As to such a direction, s 28 of the Children (Detention Centres) Act 1987 was amended in July 2008 to allow the Director General of the Department of Juvenile Services to override such a direction where the detainee is or above the age of sixteen. 12 It is also argued that the penalty is manifestly excessive. However, in a case such as this where the standard non-parole period is seven years and where the sentencing Judge correctly categories the offences as falling into the upper level of seriousness, I do not believe that a sentence involving a total period of seven years with a non-parole period of three and a half years could be described as excessive. The victim was a vulnerable person which was appropriately considered as an aggravating factor. In my view, the sentence imposed is well within the range of sentence appropriate for the offence, even for a juvenile convicted of such an offence. 13 I do believe there is merit in the parity argument put forward by the applicant and the submission that what should have occurred was a direction that the sentence be served in a juvenile institution because that is the form of the order provided for in the Children (Criminal Proceedings) Act. That conclusion requires this court to re-sentence and in respect of that exercise, the Court has received a psychiatric report from Dr Kasinathan dated 18 October 2008. He has diagnosed the applicant as probably suffering from schizophrenia at the time of the offence. It is pointed out that he experienced auditory hallucinations and paranoia from the age of twelve and has demonstrated consistent psychotic symptoms from the start of his custodial term. While in custody he has required intensive psychiatric treatment. On the other hand, when giving account of the offence to the psychiatrist he "...insisted that he did not hear any voices at that time. He also denied feeling paranoid in relation to the victim of the index offences. Master W said that he hit the pizza delivery man (the victim) with a 'skinny metal bar' because 'I needed money to get drugs and grog'". 14 The sentencing judge was aware that the applicant had experience mental health problems and that he had been on anti-psychotic medication. In my view, the psychiatric report does not justify a more lenient sentence than that given to the co-offender. 15 In order to correct the disparity in sentence and to give effect to those factors which favour the applicant over the co-offender, particularly the plea at first instance, I propose the following orders: 1. I grant leave to appeal. 2. I allow the appeal. 3. I quash the sentence given in the District Court and instead sentence the applicant to a non-parole period of two years and nine months to date from 8 June 2006 and a balance of term of two years nine months. I would direct the sentence be served in a Juvenile Justice institution and he will be eligible for parole on 7 March 2009 16 GROVE J: I agree. 17 KIRBY: I also agree. 18 GROVE J: The orders of the Court, therefore, are as proposed by Justice Blanch. oOo 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.