Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: TAMMER-SPENCE, Jacob v R [2013] NSWCCA 297 Hearing dates: 29/08/2013 Decision date: 28 November 2013 Before: Latham J at [1] Rothman J at [2] Davies J at [69] Decision: (1) Leave to appeal sentence granted; (2) Appeal dismissed. Catchwords: CRIMINAL LAW - sentence - aggregate sentence - young offender - allegation that deterrence was given too much weight as a factor in sentencing - allegations that insufficient weight given to subjective circumstances - manifest excess - discretionary exercise involving intuitive synthesis - retribution may be of less significance for young offender and considerations of rehabilitation of more significance - deterrence may still be a factor - subjective factors taken into account - no error - sentence not manifestly excessive Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 House v The King [1936] HCA 40; (1936) 55 CLR 499 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v AN [2005] NSWCCA 239 R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434 R v Slade [2005] NZCA 19; (2005) 2 NZLR 526 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 Category: Principal judgment Parties: Jacob Tammer-Spence (Applicant) Crown (Respondent) Representation: Counsel: M Thangaraj SC / D Barrow (Applicant) S Herbert (Respondent) Solicitors: The Shop Front Youth Legal Centre (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2011/376851; 2012/22660 Publication restriction: None Decision under appeal Date of Decision: 2012-08-17 00:00:00 Before: Williams DCJ File Number(s): 2011/376851; 2012/22660 Judgment 1LATHAM J: I agree with Rothman J. 2ROTHMAN J: Jacob Tammer-Spence (the Applicant) pleaded guilty to a number of offences: three counts of robbery (s 94, Crimes Act 1900); and four counts of armed robbery (s 97(1), Crimes Act). Further offences were notified on a Form 1, being one offence of detain with intent to obtain an advantage (s 86(1), Crimes Act), four offences of obtain property by deception (s 192E(1)(a), Crimes Act), and one offence of being armed with intent to commit an indictable offence (s 114(1)(a), Crimes Act). 3The sentencing judge imposed an aggregate sentence of six years' imprisonment with a non-parole period of three years and six months. The Applicant seeks leave to appeal to the Court from the sentence imposed, and if the Court were to grant leave, seeks to have the Court set aside the sentence and impose a lesser sentence. 4The Applicant raises three grounds of appeal: Ground 1: The sentencing judge erred in the assessment of deterrence. It ought not to have been a material factor in the sentencing of the Applicant. Ground 2: The sentencing judge erred by concluding that the Applicant, a "markedly disturbed young man", ought to have taken greater responsibility in seeking help. The failure to seek help ought not have been held against the Applicant. Ground 3: The aggregate sentence was manifestly excessive. Summary of Facts 5The Applicant was born on 5 May 1993 and was 18 years of age at the time of the offences. Generally, the offences occurred in the following way. The Applicant attended the toilets at Town Hall Station and indicated to men attending the toilets that he was available for sexual acts. If the person indicated that he would like to engage in sexual acts, the Applicant would lead the victim to a more private location. 6When the Applicant and victim were at the more private locations at which the offences were to occur, the victim would be robbed. On some occasions there would be sexual activity before the robbery. 7Count 1 relates to 12 October 2011, on which occasion the Applicant led the victim to a car park toilet, demanded money and raised his fists in a threatening manner. He robbed the victim of $US828, mobile phones and $AUD5. 8Count 2 relates to 19 October 2011. On this occasion, the Applicant approached the victim at the urinal, told the victim that he, the Applicant, was taking the victim's bag and demanded the victim's watch and rings. The Applicant hit the victim in the head with the Applicant's skateboard, causing a cut, and demanded the victim's phone, which was provided. 9The conduct giving rise to Count 3 occurred on 28 October 2011. This time, the Applicant led the victim to the car park toilet, engaged in sexual activity, demanded money, produced a pocket knife, grabbed the victim around the neck and held the knife to the victim's face. 10On 3 November 2011, the events that gave rise to Count 4 occurred. The Applicant approached the victim from behind, held a knife to the victim's back, took his wallet and phone and demanded, on threat of attending the victim's address and killing his dog, that the victim follow him. The offence of detain for advantage, notified on the Form 1, arises from this conduct. The victim followed the Applicant for some time. 11The conduct giving rise to Count 5 occurred on 14 November 2011. The Applicant led the victim to a toilet where they participated in consensual sexual activities. The Applicant then produced a knife, grabbed the victim's neck, held the knife 20cm from the victim's face and demanded his phone and wallet. The Applicant then utilised the victim's credit card to effect four purchases, amounting to $174.43, which latter conduct has given rise to offences of obtain property by deception that are part of the Form 1 notice. 12Count 6 occurred on 21 November 2011. The Applicant and victim engaged in sexual activity in the car park toilet. The Applicant again produced a knife and this time held it to the victim's stomach area. He took the victim's phone and debit card and demanded to know the PIN. He then used the card to make two withdrawals totalling $60, giving rise to the second of the Form 1, obtain by deception, charges. 13Count 7 relates to conduct on 22 November 2011.The Applicant led the victim to toilets at the MLC Centre, engaged in sexual activity, went with the victim to another toilet in the same building and, finally, to the toilet outside St James' Station. In the cubicle at St James, the Applicant grabbed the victim's backpack and removed an iPhone and $70. The victim agreed to give the Applicant more money in return for his iPhone, whereupon they proceeded to three separate ATMs and withdrew $200, which the victim gave to the Applicant. 14Lastly, the final offence notified on the Form 1 (being armed with intent to commit an indictable offence, namely robbery) occurred when, after a surveillance operation mounted to locate and arrest the Applicant, police arrested him and, on searching him, found a knife in his possession similar to the knife or knives used in the earlier offences. 15The foregoing summary is sufficient for the appeal and indicates the level of criminal conduct charged and the kind of conduct to which the Form 1 offences relate. Subjective Circumstances 16The Applicant was 19 years of age when sentenced and 18 at the time of the offences. He had a troubled childhood and suffers psychiatric issues. 17At the age of 12, the Applicant was diagnosed with Oppositional Defiant Disorder and at the age of 14 was sexually assaulted (anal intercourse) by an unknown person. The assault continues to cause him significant distress, but he has undertaken no psychological counselling in relation to the incident. 18The Applicant has a criminal record, principally in the Children's Court, involving a number of control orders, but his history does not involve offences of the kind for which he was sentenced. 19Study for the Applicant's School Certificate occurred while in custody with Juvenile Justice in 2008. Prior to that his schooling was marked and marred, interrupted because of behavioural issues. 20At the age of 11 the Applicant commenced smoking cannabis and used methyl amphetamines, "ice" and heroin from 14 years of age. The Applicant spent a few days in a mental health ward in 2011, after attempting suicide. 21The sentencing judge concluded that the Applicant "was a markedly disturbed young man" largely as a result of his use of methyl amphetamines (ice). Further, the sentencing judge took the view that the Applicant would "need considerable psychological and drug counselling" and treatment. 22The Applicant's drug addiction commenced at a time when the Applicant was unable "to make reasoned choices and without a proper understanding of the long-term consequences for him of such drug addiction" (Remarks on Sentence at p 11.4). 23Tendered on sentence, and relied on by the Applicant, were reports of Dr Katie Seidler (Psychologist) and Dr Olav Nielssen (Psychiatrist). The Applicant's parents separated when he was 18 months old, after which he remained in the care of his mother. His parents were not violent towards him and he has maintained a relationship with his father and formed a relationship with his stepmother and half-brothers and stepsisters. 24On the other hand, he has a poor relationship with his stepfather (his mother having remarried when he was 8 years old) who has been violent towards him and caused him to start "running away" at about 12 years of age, when he stayed with friends or his father. The Applicant plans to move in with his father on release from prison. 25Dr Nielssen described the Applicant as presenting: "... as a strongly built man of part Afro Caribbean heritage who was articulate and fluent in his responses. His emotional responses were appropriate to the content of his speech and he did not appear to be especially depressed. He spoke with a broad Australian accent and made liberal use of profanity. He was quick to respond and had a good command of detail ..." 26Dr Nielssen diagnosed the Applicant as having: "1. Substance dependence and abuse disorder, in remission; 2. Conduct disorder." 27The diagnosis of drug dependence was described as being in remission as a result of the Applicant's detention and Dr Nielssen was of the view that the Applicant did not have a major psychiatric disorder. 28Notwithstanding that view and Dr Nielssen's opinion that the Applicant does not require specific psychiatric treatment, the sentencing judge found special circumstances based on the need for counselling in the community on release to aid rehabilitation, as well as the need to accumulate the sentences. 29The offences, while occurring in the context of sexual relations, are not sex offences. The sex involved seems always to have been consensual. This was noted by the sentencing judge, who also allowed a 25% discount for the utilitarian value of the pleas. It is unnecessary to set out at this point each of the indicative sentences, which, as has been stated, were not individually imposed. Ground 1: The undue significance of deterrence in the sentence 30The primary issue raised in the application for leave to appeal (and appeal) is as summarised in full terms of the ground, set out at [4] above. 31Essentially the Applicant submits that the need for deterrence does not apply in the usual way to him because, at the time of the offences, on his Honour's finding, the Applicant was a "markedly disturbed young man", namely, because of his psychiatric/mental condition, his youth and his drug addiction. 32The principles of sentencing are well known and have been re-stated a number of times. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 in the following terms: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 33The High Court described those purposes in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 and said: "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions." (Veen (No 2) at [13] per Mason CJ, Brennan, Dawson and Toohey JJ.) 34Sentencing is a discretionary exercise that involves "a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money": Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [24]. 35Further, the sentencing exercise is not mathematical. Rather it is fundamentally intuitive, for which there is no one correct result: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. The sentencer is required to take into account all relevant considerations (and only relevant considerations) and appeal courts are required to give a sentencing judge as much flexibility as is consonant with consistency of approach and accords with the statutory regime: Markarian v The Queen at [27], and the cases cited therein. Consistency is achieved by the proper application of principle: Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [18], [19]. 36In sentencing young offenders (or persons with a mental illness), the sentencing principles make clear that retribution may be of less significance and considerations of rehabilitation may be of more significance. Further, even in relation to retribution, the youth of an offender may be a mitigating factor: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4] per Hodgson JA, with whom I agreed; KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[26]. 37While offenders under 18 years of age are sentenced under a different regime (Children (Criminal Proceedings) Act 1987), youth may not reach emotional maturity or impulse control until early to mid twenties: BP v R at [5] per Hodgson JA; R v Slade [2005] NZCA 19; (2005) 2 NZLR 526 at [43]; R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at [127] per D. Kirby J; R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451. Age, and the principles associated with sentencing youth, may be a factor when sentencing a 19 year old, as here, or, depending on maturity, even a 21 year old. Despite the fact that, here, the offences in question do not reflect aspects of immaturity, the Applicant may not have had the maturity to understand fully the consequences of his actions and to control his conduct accordingly. 38The same approach (sometimes cumulatively) applies to offenders suffering a mental disability: R v AN [2005] NSWCCA 239 at [50], [57], per Howie J. In R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434 at [28], the Court (Dunford J, Studdert and James JJ agreeing) said: "[28] It is true that in the case of young offenders, there is generally greater emphasis given to rehabilitation and less to deterrence than in the case of adult offenders, but that depends in part on the age of the young person and the circumstances of the offence; and there comes a point at which the seriousness of the crime committed by a young offender, particularly if a crime of violence, is so great that the special attention normally given to rehabilitation in the case of young offenders must give way, and greater emphasis given to punishment and deterrence. The relevant principle was summarised in the joint judgment of this Court in R v AEM Snr and Ors [2002] NSWCCA 58 at [97]- [98] as follows: 'It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation.... However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society.' and their Honours quoted what had been said by Lee AJ in R v Nichols (1991) 57 A Crim R 391 at 395 as follows: 'However there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature is so great, that the principle must, in the public interest, give way.' [29] See also R v Pham (1991) 55 A Crim R 128 at 135, R v Tran [1999] NSWCCA 109 at [9]- [11], R v Gordon (1994) 71 A Crim R 459 at 469, R v Hearne [2001] NSWCCA 37, 124 A Crim R 451 at [24]. [30] ... Growth from child to adult is a gradual process and for general sentencing purposes, there is no significant difference between a person shortly under 18 years and a person shortly over that age ...." 39None of the foregoing statements of principle suggests that deterrence has no role to play, only that rehabilitation is more significant, and retribution and deterrence less significant, than would otherwise be the case. 40The Applicant relies on a passage in the Remarks on Sentence (at p 10) in which his Honour said: "The disinhibiting moral effect of ice on young people of his age is a disturbing aspect of many offences being seen now by this Court. As such, there needs to be a need for deterrence in that whilst drug use, per se, may be morally blameless in an individual, where such use leads to violent anti-social behaviour the individual has a responsibility to seek help and not just to continue down a path of taking no responsibility for his or her actions..." [as per Applicant's Written Submissions at [7] on p 3.] [Emphasis added by Applicant]. 41First, I note the use of the indefinite article, "a", without reference to a descriptor such as "significant". In my view, his Honour was simply stating that deterrence was a factor in considering the sentence to be imposed, but he declined to describe it as "important" or "significant". 42Further, his Honour was entitled to suggest that, where drug use has led to violent anti-social behaviour, there was "a responsibility" to seek help, rather than continuing on a path "of taking no responsibility". 43The extract does not suggest that deterrence had a significant impact or greater weight than rehabilitation. Moreover the Applicant's submission pays insufficient attention to the unsuccessful attempts to support the Applicant with appropriate treatment in order to effect rehabilitation. The Applicant consistently refused to undertake community rehabilitation that was offered to him and continued to express that view before the sentencing judge. 44The foregoing presented the sentencing judge with a dilemma. If rehabilitation were to be given greater significance by his Honour, as may have been suggested by the Applicant's youth and troubled background, but the Applicant refused to undertake rehabilitation programmes in the community (which programmes had been offered in the past), how does the judge give effect to the principle? 45The judge noted (ROS 7.9 and following) that the Applicant was unwilling to accept intervention at present, including talking about personal problems, psychometric assessment and the like. Further, the Applicant displayed little or no insight into his problems. It was after these references that his Honour remarked in the manner extracted and about which complaint is made on appeal. 46Moreover, the Applicant's submission pays no regard to any rehabilitation that may occur (or may have occurred) while in prison. The evidence before his Honour (and this Court) was that, at the time of sentencing the Applicant was drug-free, seemingly for the first time since he was 11 years of age, because of the restrictions in prison. 47I take for granted that rehabilitation in the community is preferable to attempts at rehabilitation (even where successful) within the prison system, but that choice was not before his Honour. The only choice apparent from the Applicant's subjective case was either attempts at rehabilitation in prison or no rehabilitation at all. 48His Honour took account of the need for rehabilitation in the community in finding special circumstances and fixing a much shorter non-parole period than the statute otherwise prescribes. His Honour remarked on the need for community-based "psychological and drug counselling", presumably in the expectation that initial custodial counselling would overcome the Applicant's previously displayed resistance to community psychological and drug treatment. 49It is clear from both the complete Remarks on Sentence and the nature and structure of the sentence that his Honour had the Applicant's youth and the need for rehabilitation uppermost in the considerations relevant to the sentence to be imposed. However, his Honour did not expressly refer to the principles associated with the significance of rehabilitation and the lesser weight for deterrence in young offenders. 50Ultimately, given the foregoing, whether error has occurred in weighing the relative significance of deterrence, if any, and rehabilitation will depend to a large degree on the sentence imposed. Ground 2: Error in concluding that the Applicant ought to have taken greater responsibility 51To some degree the issues associated with this ground of appeal have been dealt with while dealing with Ground 1. 52The Applicant submits that his history explained both his addiction and his failure to seek help. The Applicant supports the foregoing proposition with the sentencing judge's conclusion that the Applicant's drug addiction commenced at a time when the Applicant was unable to make reasoned choices (ROS 11.4). 53As has been expressed in the discussion relating to Ground 1, his Honour expressly acknowledged the Applicant's troubled history, his psychiatric issues and the fact that his drug addiction occurred at a time when the age of the Applicant prevented reasoned choices. In other words, his Honour made clear that the Applicant was "morally blameless" in relation to his addiction. 54His Honour's comments as to responsibility must be understood in that context. The sentencing judge was: firstly, expressing a general view without ascribing to it a particular significance in the sentence to be imposed; and, secondly, was referring, not to the circumstances of the Applicant's addiction, but, rather, to the fact that the Applicant realised at the time of the offences that his conduct was morally and legally wrong, had the opportunity to undertake programmes to deal with his issues, yet failed (or, more accurately, refused) to utilise those opportunities. 55In my view, the Applicant, in this ground, is taking the remarks of his Honour out of context and giving them a significance that is not apparent from his Honour's Remarks on Sentence. Ground 3: Manifest Excess 56Sentencing is an exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions: s 3A Crimes (Sentencing Procedure) Act; Veen v The Queen (No 2); Markarian v The Queen; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. 57As earlier stated, a sentencing judge must, in fixing an appropriate sentence, be given such flexibility as is consonant with the legislative scheme and the principles of sentencing: Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616; Markarian v The Queen. There is no one correct sentence. 58Yet, this Court examines a sentence, bearing in mind the foregoing, to ensure that there is not manifest error, namely, error manifest from the outcome, even though a party cannot identify an error of law or fact: House v The King [1936] HCA 40; (1936) 55 CLR 499. 59In so doing, the Court must examine the sentence imposed to ensure it is a sentence capable of being imposed on the offender for the offence, i.e. bearing in mind both objective and subjective circumstances relevant to the offence and the offender. Often this is expressed by the shorthand enquiry: Is the sentence within range? The shorthand expression is appropriate only if it is understood to include the "range" for this offence, being the actual conduct giving rise to the offence, the circumstances in which it was committed, and the subjective circumstances of the offender (both relevant to the commission of the offence and more generally). 60The sentence that is subject to appeal is, as has been stated, an aggregate sentence of six years imprisonment, with a non-parole period of 3 years and six months' imprisonment. There were seven offences for which the Applicant was to be sentenced. 61Each of the three counts of robbery (contrary to s 94 of the Crimes Act) involves an offence with a maximum sentence of imprisonment for 14 years. Each of the four counts of robbery armed with an offensive weapon (contrary to s 97(1) of the Crimes Act) carries a maximum sentence of 20 years' imprisonment. None of the offences has a prescribed standard non-parole period. 62Before imposing the aggregate sentence, his Honour, as was required, expressed an indicative sentence for each offence. For present purposes, there is little relevance in which sentence relates to which of the offences and no single indicative sentence is impugned. 63The robbery offences involved two sentences of 3 years' imprisonment and one sentence of 3 years and 9 months' imprisonment, being the sentence for which an offence notified under Form1 was relevant. The robbery with offensive weapon sentences involved three sentences of 4 years' imprisonment (two of which include Form 1 offences) and one sentence of imprisonment for 4 years and 9 months (also involving a Form 1 offence). 64None of the indicative sentences is outside the range or manifestly excessive. Each reflects an appropriate regard for the strong subjective circumstances suffered by the Applicant. 65The principles of totality would prevent all of the foregoing indicative sentences being fully accumulated. Nevertheless, given the number and seriousness of the offences, and the fact that each involves a separate criminal act and intent, albeit during a short criminal spree, some accumulation is warranted. The longest sentence is 4 years and 9 months; there are six other offences for which additional imprisonment has been imposed of a total of 1 year and 3 months. 66Sentences are not calculated mathematically. Rather, it is an intuitive process. Nevertheless, given that there are seven offences, the heaviest of which is 4 years and 9 months, the seriousness of the offences and the vulnerability of the victims, this aggregate sentence is not outside the range available to the sentencing judge, even with the strong subjective factors of the Applicant and the lesser weight to be given to retribution and deterrence as against rehabilitation. 67I do not consider the sentence imposed is manifestly excessive and I do not consider that a lesser sentence is warranted. 68I propose that the Court makes the following orders: (1)Leave to appeal sentence granted; (2)Appeal dismissed. 69DAVIES J: I agree with Rothman J. ********** 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. Decision last updated: 28 November 2013