New South Wales Court of Criminal Appeal CITATION: JC v R [2010] NSWCCA 67 HEARING DATE(S): 13 April 2010 JUDGMENT OF: Handley AJ at 40; Grove J at 1; Hislop J at 39 EX TEMPORE JUDGMENT DATE: 13 April 2010 Leave to appeal against sentence granted. DECISION: Appeal allowed in part. Appellant resentenced. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Juvenile aged 15 - Parity with sentence on co-offender - Any sense of grievance not justified - Judge misinformed that standard non-parole period applicable - Express reference to this when assessing sentence - Material error which must have operated adversely to offender Crimes (Appeal and Review) Act 2001 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CATEGORY: Principal judgment Baxter v The Queen (2007) 173 A Crime R 284 Douar v The Queen (2005) 159 A Crim R 154 CASES CITED : GAS and SJK v The Queen (2004) 217 CLR 198 R v JW [2010] NSWCCA 49 R v Wright [2009] NSWCCA 3 PARTIES: JC - Appellant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2008/12870 COUNSEL: C Loukas with S O'Campo - Appellant F Veltro - Respondent/Crown SOLICITORS: S O'Connor, Legal Aid Commission - Appellant S Kavanagh, Solicitor DPP - Respondent/Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11/0839 LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ LOWER COURT DATE OF DECISION: 27 March 2009 IN THE COURT OF CRIMINAL APPEAL CCA 2008/12870 HANDLEY AJA GROVE J HISLOP J Tuesday 13 April 2010 JC v R Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Ainslie-Wallace DCJ on 27 March 2009 at Sydney District Court. 2 The applicant pleaded guilty to two offences, each of which was committed on 16 January 2008. The first charged robbery and wounding, being armed with an offensive weapon and the second charged assault with intent to rob and wounding, being armed with an offensive weapon. In each instance the weapon was a knife and the prescribed maximum penalty was imprisonment for twenty-five years. 3 The applicant was aged under fifteen years three months when he offended. He had no record of prior conviction. 4 The offences were committed in the company of two other juveniles, JW and JM. I draw the following facts substantially from Remarks on Sentence by Ainslie-Wallace DCJ. The three of them were seated on a park bench near Allawah Railway Station at about 10.30 pm. The victim walked past and, as he did, he was kicked from behind and fell to his knees. JW held a knife at his throat and demanded money. The victim produced his wallet and handed over about $100. JW asked whether this was all the money he had and struck him with his knee, causing the victim to become unbalanced. The applicant approached at this time and held a knife to the victim's throat with one hand and grasped him around the chest with the other and asked where his phone was. Moving his hand, the victim contacted the knife blade and sustained cuts to three fingers. JM asked how much money had been given, and JW began searching the victim for his phone. The victim produced it and gave it to JM, who tossed it away saying "go fetch". These circumstances constitute the first charge. 5 The three offenders ran to the railway station and boarded a train to Rockdale at about 10.56 pm. At 11.10 pm the victim of the second offence alighted from a train at Rockdale. He telephoned his uncle asking him to escort him home. The uncle arrived and the two of them began walking and, as they did, they passed the three offenders who were seated on a wall. They got up and commenced to follow the pair. The latter became aware of this and quickened their pace and finally broke into a run. The three offenders ran after them. 6 Upon arriving home, the uncle ran down the side of the house and the victim, having passed through the front gate, stopped at the door. JM and JW stood outside the gate. The applicant entered through the gate and approached, whereupon the victim said, "What do you want?" The applicant said, "I need money, give me money." The victim said, "I will give you money. This is my house." The applicant moved closer, then reached into his pants and pulled out a knife, flicking its blade open. He held the knife close to the victim who grasped at it, sustaining a small wound to his left and right index fingers. It is noted that her Honour referred only to the left finger whereas the tendered facts referred to both left and right index fingers. 7 The victim then said, "I will give you money. I'm going to call the police." One of the other offenders said, "Let's go," and the applicant then ran down the stairs, through the gate and the three of them ran to another railway station, boarding a train and alighting at Hurstville. These facts constituted the second charge. 8 Police obtained access to the product of CCTV cameras and, on the day following, an officer recognised them and all three were arrested. 9 Her Honour sentenced the applicant for the first offence to imprisonment, consisting of a non parole period of 1 year 3 months commencing on 27 March 2009 and expiring on 26 June 2010, with a balance term of 1 year 9 months and, for the second offence, to imprisonment consisting of a non parole period of 1 year 3 months, commencing on 27 June 2009 and expiring on 26 September 2010, with a balance term of 2 years. 10 The total effective sentence amounted to a head sentence of 3 years 6 months with a non parole period of 1 year 6 months. 11 JM appeared for sentence before her Honour on the same day as the applicant and on the same charges. On the first charge he was sentenced to imprisonment for twenty-two months, suspended upon entering into a bond to be of good behaviour for that term and, on the second charge, to perform seventy hours community service. JM was aged fourteen at the time of the offences. Although he was liable as a joint participant, her Honour found that he did not produce a knife nor did he see the others produce a knife. He had participated in an interview with police and, at the time JW having pleaded not guilty, offered to give evidence for the Crown. It is not argued there should be parity between the applicant and JM in the way they were respectively treated. 12 However, JW ultimately pleaded guilty to the same two offences as the applicant and JM and appeared before North DCJ, who sentenced him to imprisonment for 2 years, suspended upon condition that he enter into a bond to be of good behaviour for that term on the first count and, on the second count, to perform eighty hours community service. 13 The Crown appealed against those sentences asserting that they were manifestly inadequate. The appeal was heard by a bench of five judges, a principal issue for determination being the application of the recently legislated s 68A of the Crimes (Appeal and Review) Act 2001. That provision is not germane to the present appeal. 14 The court divided on the question of the inadequacy of sentence: R v JW [2010] NSWCCA 49. The majority (McClellan CJ at CL, Howie and Johnson JJ) held that the sentences in respect of both counts were manifestly inadequate. Spigelman CJ (Allsop P agreeing) held that the sentence imposed of two years was not manifestly inadequate on the first count and the decision to suspend the sentence was not outside the proper exercise of discretion. 15 On the second count the Chief Justice held that the community service order was not within the range of permissible exercise of discretion and proposed quashing that order and in lieu thereof imposing the same sentence as that on the first count, namely, imprisonment for two years, suspended subject to conditions. 16 The majority agreed in the final outcome of the appeal as proposed by the Chief Justice "only after considerable hesitation" and expressed the opinion that it could only be justified "in the light of events that have occurred since the original sentences were imposed." They stated (JW at par 210): "In our opinion the sentence that the Chief Justice proposes can only be justified in light of the events that have occurred since the original sentences were imposed. In particular the period of 7 months that has transpired since North DCJ sentenced the respondent is a considerable period of time in the life of a juvenile who was aged 15 years at the time of the offences. In the meantime he has been carrying out his Community Service once it was brought to the attention of those responsible for its supervision that it should not have been suspended as a result of the Crown bringing an appeal to this Court. He had at the time of the writing of the most recent Juvenile Justice report, which is dated 28 January of this year, completed 25 hours of Community Service. We presume he has completed more hours since then. The latest report shows that the respondent has been complying with his supervision and attempting to address issues in his life. The report indicates that the respondent would 'benefit from continuing to develop greater insight into this offence and strategies to reduce the likelihood of re-offending in the future.' He should now be given that opportunity by the Court exercising its discretion and imposing a lesser sentence than was warranted at first instance." 17 Thus, the final outcome was that JW is subject on each count to imprisonment for 2 years, suspended on conditions. 18 The applicant relies upon two grounds of appeal. Ground 1 asserts that the sentencing judge erred in having regard to the standard non parole period. The Crown Prosecutor had informed her Honour that the offence carried a standard non parole period of seven years: T 20/02/09 p 2. She made express reference to this when commencing her Remarks on Sentence and again when assessing the objective seriousness of the offences. Her Honour had been misinformed. 19 The specification of a standard non parole period does not apply to offenders who were under the age of eighteen at the time of offending: s 54D(3) Crimes (Sentencing Procedure) Act 1999, taking effect from 1 January 2009. 20 In written submissions to this court the Crown has acknowledged the error but submitted that no lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912. 21 A consequence of the demonstration of the particular error in the context of the remarks is a conclusion that it operated to the disadvantage of the applicant. Her Honour said: "Both offences are matters to which a standard non-parole period applies. That non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness of offences of this type." 22 She then expressed reasons for concluding that both offences fell below mid range objective seriousness and then added: "Nonetheless, the standard non-parole period remains relevant to the sentence." 23 The second ground of appeal asserted: "There is erroneous disparity between the sentence of the applicant and the sentence of the co-offender JW." 24 Each of the sentencing judges (Ainslie-Wallace DCJ and North DCJ) made a sentence assessment upon the evidence before them in individual cases. There were marked differences in the relevant findings. The applicant was found to have used a knife in both offences whereas North DCJ was unable to reach a positive conclusion whether JW had a knife. Of course they were participants in a joint criminal enterprise and both liable for the full range of criminal acts done by anyone in furtherance of it: R v Wright [2009] NSWCCA 3. Nevertheless, individual acts may point to differences in culpability: GAS and SJK v The Queen (2004) 217 CLR 198. 25 There was notable contrast between the subjective cases of JW and the applicant. Ainslie-Wallace DCJ found that, in his evidence in the proceedings, the applicant appeared reluctant to accept the frank criminality of his conduct. Then, and to the maker of a Juvenile Justice report he said, in effect, that he did not think the offence was so serious. Such remorse as he exhibited seemed to focus upon his own jeopardy. He had significant support from his family and others but assessment of his prospects of rehabilitation were described by her Honour as "difficult". However, her Honour thought the evidence in total pointed to the applicant lacking sufficient maturity to understand the nature of his crime and the need to empathise with the victims. 26 A letter from the school principal recounted that the applicant was studying years 11 and 12 at the Endeavour Sports High School. He was described as bright and co-operative, pleasant and with ability. He was regarded as a talented sportsman. 27 North DCJ made this observation about JW's appreciation of the seriousness of the offence: "These offences have clearly penetrated his consciousness and I am heartened by the fact that he has not only remained trouble free, but has acknowledged his remorse to Mr Champion and in the background reports." 28 Other matters which were taken into account (see JW at par 178) were that, as a child, JW had been exposed to domestic violence and sexual abuse, that he had learning difficulties and a low IQ and been assessed in the bottom 14 percentile of the population, that for some eight months he had been on strict bail including a curfew that kept him at home each evening, that he had not breached bail and that since the offences he had (presumably from a combination of stress factors) lost some thirty kilograms. 29 These contrasts, in my view, reveal relevant factors in sentence assessment of such weight and significance as to justify the discrimination in the individual treatment of the applicant and JW as well as the difference in objective findings to which I have referred. Accordingly, any sense of grievance which the applicant harbours on account of the difference in treatment is not justified. 30 I return, however, to the establishment of the complaint comprehended in ground 1. The use of the reference to the standard non parole period, as discussed above, was a material error. The applicant puts before the court evidence of his post sentence conduct. That evidence is subjectively favourable to the applicant. It is available to be considered when determining whether some other sentence should have been passed in accordance with s 6(3) of the Criminal Appeal Act upon which the Crown sought to rely: Douar v The Queen (2005) 159 A Crim R 154; Baxter v The Queen (2007) 173 A Crim R 284. 31 Post sentence, the applicant has completed his year 11 studies, a certificate in information technology and is attending courses in visual arts and mechanics. He is making practical use of his time in custody. 32 He is now classified B3, which carries an entitlement to leave the detention centre on outings. This is the highest classification and requires a display of good behaviour and commitment to educational programs in order to achieve it. 33 The Assistant Principal and Deputy Principal of the detention centre education and training unit certified that the applicant had been applying himself to his studies, interacts well with other students and is polite and respectful towards staff. 34 A report of the Serious Young Offenders Review Panel is confirmatory of these matters. There was no challenge to his detail of misbehaviour reports, which included wearing a shirt on his head instead of the customary way, scraping initials on a school desk and referring to an employee of the centre as "a snitch". Such behaviour, although disappointing and undermining of perfection, would not seriously diminish the overall impression of genuine progress towards rehabilitation which is otherwise observable. 35 In my view, this court should intervene to signal the removal of whatever contribution to the flawed giving of account to the seven-year standard non parole period specified may have made to sentence assessment and, to reflect the elevated overall conduct of the applicant's subjective case, we should take into account the post sentence good conduct. 36 Although I perceive no error in her Honour's order for partial accumulation in respect of the sentences for the separate offences, I observe that the expiry of the non parole period for the first offence is scheduled in about two months' time and in respect of the second offence in about five months' time. 37 It would accommodate the findings I have mentioned if the sentence for the second offence was adjusted to the same length as that for the first offence and made concurrent. I repeat, that does not indicate a finding of error in ordering accumulation but in the circumstances of the imminence of the expiry of non parole periods, it is a practical way of implementing this judgment and does not reduce either sentence into the category of being manifestly inadequate. 38 I would propose the following orders: 1. The application for leave to appeal against sentence granted. 2. The appeal allowed in part. 3. Sentence and orders in respect of count 2 (assault with intent to rob being armed and wounding) quashed. In lieu thereof the applicant sentenced to imprisonment consisting of a non parole period of one year three months, commencing on 27 March 2009 and expiring on 26 June 2010 with a balance term of one year and nine months, commencing on 27 June 2010. 4. That sentence to be served concurrently with the sentence on count 1. 5. The applicant ordered released to parole on 26 June 2010. 39 HISLOP J: I agree. 40 HANDLEY AJA: I also agree. The order of the court will be as announced by Justice Grove. ********** 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.