AW v R [2010] NSWCCA 249

New South Wales Court of Criminal Appeal

CITATION: AW v R [2010] NSWCCA 249

HEARING DATE(S): 28/10/2010

JUDGMENT DATE: 28 October 2010

JUDGMENT OF: Handley AJA at 1&24; Adams J at 12; Howie AJ at 23

EX TEMPORE JUDGMENT DATE: 28 October 2010

DECISION: Leave to appeal granted, appeal dismissed

CATCHWORDS: CRIMINAL LAW - sentencing - young offender - no question of principle

CATEGORY: Principal judgment

PARTIES: AW - Applicant R - Respondent

FILE NUMBER(S): CCA 2009/163003

COUNSEL: A - Ms Helen Cox R - Ms S Dowling

SOLICITORS: A - Faye Austen-Brown, Aboriginal Legal Service, Redfern R - S Kavanagh - Solicitor for Public Prosecution

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 09/2163

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 14/08/2009

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/163003

HANDLEY AJA ADAMS J HOWIE AJ

THURSDAY 28 OCTOBER 2010 AW v REGINA Judgment 1 HANDLEY AJA: The applicant seeks leave to appeal from his sentence following his plea of guilty to a charge of breaking and entering a dwelling house with intent to commit larceny in circumstances of special aggravation and thereby did wound Linda Cox contrary to section 113(3) of the Crimes Act. The offence carries a maximum penalty of 20 years' imprisonment. He was sentenced by English DCJ on 14 August 2009 to a term of imprisonment, to be served in a Juvenile Detention Centre, of three years and nine months to date from 5 January 2009 with a non-parole period of two years and a balance of term of one year, nine months. She allowed a discount of 25% for his early plea of guilty. 2 The offender, then aged fifteen and a half years, broke and entered the dwelling house at about 5.00am on 17 August 2008. The victim woke up and went to the kitchen where she surprised the offender who struck her in the face with his fist, knocking her to the ground. He escaped but was identified through his fingerprints and arrested the following morning. He has been in custody ever since. 3 The victim suffered a nasal fracture and required hospitalisation. The prisoner had a regrettably long record of property and other offences for someone who was only fifteen and a half. They include break and enter offences dealt with in 2004, 2005 and February 2008. The offender was on parole at the time of this offence having been sentenced by the Parramatta Children's Court on 18 February 2008 to a 12 months control order dating from 4 January 2008 with a six month non-parole period. He was released on parole on 4 July 2008. His parole was revoked on 4 March 2009 and he was required to serve the balance of his parole of four months, and three weeks which expired on 4 January 2009. 4 The sentence is challenged as manifestly excessive, and on the grounds that the Judge failed to properly consider and apply relevant sentencing principles and failed to consider backdating the sentence to make it wholly or partly concurrent with the balance of the offender's previous parole. 5 Miss Cox, who appears for the applicant, submitted that the sentencing Judge did not properly consider and apply the principles relating to the sentencing of young offenders and the importance of their rehabilitation. She also submitted the Judge failed to properly deal with the questions of remorse and contrition. 6 In her remarks on sentence the sentencing Judge, referred many times to the youth of the offender. At page 9 of her remarks she said that the offence warranted stern punishment, "even making allowance for his youth." She also found special circumstances and reduced the non-parole period to 54% of the head sentence. She found that the offender's prospects of rehabilitation were extremely guarded. 7 In my judgment there is nothing in the Judge's remarks or the structure of her sentence which supports the view that her Honour did not properly apply the principles governing the sentencing of young offenders. There is nothing in the other points. The Judge held that the plea of guilty was evidence of contrition. The offender said that he was sorry about the assault but the Judge was not fully persuaded about the genuineness of this statement or about his remorse. She merely recorded at page 7 that the offender is said to be remorseful. I see no error in her approach. 8 The sentencing Judge made her sentence run from the expiry of the balance of the offender's parole. She could have made her sentence wholly or partly concurrent with the balance of the offender's parole, but was not bound to do so. There may be a perception of double jeopardy in this situation but there was no infringement of the totality principle. 9 The prisoner was having difficulties on probation following his release on 4 July 2008. The Juvenile Justice report records his difficulties in complying with his parole conditions prior to the subject offence. 10 In fact in law the balance of the parole of four months and three weeks was served for a distinct offence and her Honour was not bound to allow full or partial concurrency. In my judgment the judge's decision to start her sentence from the expiration of the earlier sentence was well within her Honour's discretion and I can discern no error. 11 The remaining challenge is that the sentence was manifestly excessive I am unable to discern any such excess and I therefore propose that leave to appeal be granted and the appeal dismissed. 12 ADAMS J: I agree with the orders proposed by his Honour the presiding judge and I agree with his reasons but I wish to add some comments of my own. 13 The sentencing of juveniles always presents a difficult situation. Sometimes because of the offender's very immaturity the offence is attended by some excess or a particular act of stupid violence which someone who is more mature would not engage in. This happened, I think, in this case. Given the applicant's background, his response of violence was, I think, in a significant way the response of a young, immature person brought up in a violent context and where all too readily violence is a first response to any kind of opposition. 14 It has been frequently said that when dealing with juveniles one of the most important elements is that of rehabilitation, not only in the public interest but from ordinary humane notions of punishment and the care which a community should exercise when it is dealing with its young people. 15 Accordingly, in this case rehabilitation was of great importance, and perhaps of even greater importance because of the difficulties that this applicant had previously demonstrated in relation to rehabilitation and his inadequate understanding of the seriousness of the criminality of his actions. Indeed, even his expressions of contrition in relation to the violence were more directed to his own feelings (that he ought not to have done it) rather than sympathy for the victim. These again are aspects which come with maturity and are not to be easily found in someone with the applicant's difficult family background and with his age. 16 Bearing these matters in mind, I think it is important to appreciate that the applicant is to spend time in custody in an institution which provides education, supervision, psychological and other support from which it seems, indeed, this applicant has made some real improvement. The notion which is regrettably to be gathered from the failure of adult prisons to effectively put in place anything like adequate rehabilitation processes is inapplicable: aside from personal resources, an adult prisoner is mostly unlikely to find his or her imprisonment will be rehabilitative in any significant sense, except for the mere effluxion of time, and one looks to rehabilitation following prison after extensive supervision. However, with young people the situation is not the same. This applicant has already, it is apparent, achieved some real progress. This is not to say that one would increase a sentence in order that he might benefit from such a program but it does add a factor to the hope for rehabilitation which would otherwise not be present in an adult offender. 17 Considering these factors, I am unable to see that the sentence which was passed by her Honour did not give adequate consideration to the need for rehabilitation of a young offender. 18 I am nevertheless troubled by some of the language in her Honour's judgment which seems to me to be particularly inappropriate when dealing with offences of this kind. Her Honour said: "Whilst general deterrence is a matter to be given less weight because of his age, it remains relevant as these offences are all too often committed by young offenders and other young people ... must appreciate if they choose to commit these types of offences, particularly seriously aggravated offences, they will be dealt with according to law ... and face severe punishment." [Italics added.] 19 In this case it is scarcely apt to describe the aggravating circumstances of the assault as something chosen to be done. It was a most unfortunate unpremeditated violent reaction to what was a surprise. Nor is it true, necessarily, that young persons who commit these offences "will be dealt with according to law". They might or might not; that is discretionary and it needs to be considered case by case. Nor is it true that severe punishment is the object of the exercise. There are some cases where overwhelmingly the function of the criminal law requires a severe sentence because of the gross wickedness of the crime or there are very grave and sometimes catastrophic consequences. We are not nearly in that area in this case and language of this kind can give the impression that general deterrence overwhelms other considerations. The language of the following sentence, "It is an offence which warrants stern punishment ….." is, with the greatest respect, not appropriate in a case of this kind because it gives the same impression. 20 However, leaving aside the characterisation of her Honour's remarks, when one comes to the sentence itself it is neither severe nor stern. On the contrary, I do not accept the submission that it is an inappropriate sentence, having regard to all the factors relevant to sentencing in young persons. 21 HOWIE AJ: I agree with the remarks of Mr Justice Handley and the orders that he proposes. This was a difficult sentencing exercise given the seriousness of the offence in light of the applicant's criminal record, on the one hand, and the applicant's youth and disadvantages, on the other. In this case there was significant room for divergent views to be held about the appropriate balance between retribution and rehabilitation. In my opinion it cannot be said the sentence was unreasonable or wrong. I do not believe there was any error in the exercise of discretion despite, as pointed out by Justice Adams, some infelicitous remarks by the sentencing judge that may have indicated, on its face, that she did not give sufficient weight to rehabilitation. But the sentence imposed does not show that such an error occurred. 22 HANDLEY AJA: The order of the Court is, leave to appeal granted, appeal dismissed.