Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: PD v R [2012] NSWCCA 242
• Hearing dates: 21 August 2012
• Decision date: 23 November 2012
• Before: Basten JA at [1]; Hall J at [2]; Beech-Jones J at [3]

Decision

(1)   Leave to appeal granted.

(2)   Appeal allowed.

(3)   Set aside the aggregate sentence imposed by the District Court on 23 August 2011.

(4)   In lieu thereof:

   (a)   impose an aggregate sentence of imprisonment of four years and six months, comprising a non-parole period of two years and three months to date from 26 July 2011 and expire on 25 October 2013, together with an additional term of two years and three months to commence on 26 October 2013 and expire on 25 January 2016;

   (b)   the earliest date on which the offender will be entitled to release from custody is 25 October 2013;

   (c)   the sentences that would have been imposed for each offence had separate sentences been imposed are as follows:

      (i)   Count 1 (stealing motor vehicle) - one month imprisonment;

      (ii)   Count 2 (break and enter dwelling house and commit serious indictable offence in circumstances of special aggravation) - four years imprisonment;

      (iii)   Count 3 (break and enter dwelling and commit serious indictable offence ) - nine months imprisonment; and

      (iv)   Count 4 (recklessly wounding a police officer) - nine months imprisonment.

• Catchwords: CRIME - appeal - aggregate sentence - steal car - aggravated break and enter - reckless wounding of police officer - juvenile offender - committed one serious children's indictable offence and three other offences - whether erroneous for all four offences to be dealt with "according to law" - whether sentencing judge failed to consider statutory principles relevant to sentencing juveniles - whether sentence manifestly excessive - no prior convictions - intellectual impairment.
• Legislation Cited: Children (Criminal Proceedings) Act 1987 - ss 6, 17, 8, 33(1); Pt 3, Div 4; Children (Detention Centres) Act 1987; Crimes Act 1900 - ss 33, 38, 44, 60(3), 61J, 112, 154A(1); Crimes (Administration of Sentences) Act 1999; Crimes Legislation Amendment Act 2002 - Sch 2(3); Crimes (Sentencing Procedure) Act 1999 -ss 44(2B), 53A(1), 53A(2), 54D(3); Div 1A, Pt 4
• Cases Cited: DB v R [2007] NSWCCA 27; 167 A Crim R 393; House v R [1936] HCA 40; 55 CLR 499; KT v R [2008] NSWCCA 51; 182 A Crim R 571; Muldrock v R [2011] HCA 39; 244 CLR 120; Pearce v R [1998] HCA 57; 194 CLR 610; R v Brown [2012] NSWCCA 199; R v Daetz [2003] NSWCCA 216; 139 A Crim R 398; R v De Simoni [1981] HCA 31; 147 CLR 383; R v Fryar [2008] NSWCCA 171; 187 A Crim R 8; R v MHH [2001] NSWCCA 161; R v Nykolyn [2012] NSWCCA 219; R v SDM [2001] NSWCCA 158; 51 NSWLR 530; R v Thomson [2000] NSWCCA 309; 49 NSWLR 383; R v WKR (1993) 32 NSWLR 447
• Category: Principal judgment
• Parties: PD (Applicant); Crown (Respondent)
• Representation: Counsel: Ms R. Mathur (Applicant); Mr T. Smith (Respondent); Solicitors: Legal Aid NSW (Applicant); S. Kavanagh (Solicitor for Public Prosecutions)
• File Number(s): 2010/057586

Decision under appeal

• Date of Decision: 2011-08-23 00:00:00
• Before: Robison DCJ
• File Number(s): 2010/057586

Judgment

1 BASTEN JA: I agree with the orders proposed by Beech-Jones J and with his reasons.

2 HALL J: I agree with the orders proposed by Beech-Jones J and with the reasons set out in his Honour's judgment.

3 BEECH-JONES J: This is an application for leave to appeal from an aggregate sentence imposed by the District Court for multiple offences which included a serious home invasion. The applicant contends that the sentencing judge did not properly consider whether he should have been dealt with in accordance with Pt 4 of Div 3 of the Children (Criminal Proceedings) Act 1987 ("the CCP Act") for some of the offences and did not apply the sentencing principles appropriate for a young offender for all of them. He also contends that his sentence was manifestly excessive.

4 The applicant was born on 28 January 1994. He was aged sixteen years at the time he committed these offences. He committed them with his brother ("SD") who was aged 21.

5 On 23 August 2011 the applicant pleaded guilty to four charges on an indictment. All of the offences were committed on 3 March 2010. Count 1 of the indictment charged the applicant and SD with an offence under s 154A(1)(b) of the Crimes Act 1900 of "stealing" a motor vehicle (see [9]). Count 2 charged the applicant and SD with an offence under s 112(3) of breaking and entering a dwelling house and committing a serious indictable offence, namely theft, in company and in "circumstances of special aggravation" being the wounding of one of the inhabitants. Count 3 charged the applicant and SD with an offence under s 112(1)(a) of breaking and entering a dwelling house and committing a serious indictable offence, namely theft. Count 4 charged the applicant with an offence under s 60(3) of recklessly wounding a police officer acting in the execution of his duty.

6 In accordance with s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act"), his Honour imposed an aggregate sentence for all the offences of six years and fixed a non-parole period of three years and six months. This ratio reflected a finding of special circumstances for the purposes of s 44(2B) of the Sentencing Act. His Honour also ordered that the applicant serve the entire period of his sentence as a juvenile offender.

7 Subsection 53A(2) of the Sentencing Act required his Honour to indicate to the offender and record the sentences that would have been imposed had separate sentences been imposed instead of an aggregate sentence. His Honour stated that in respect of count 1 the separate sentence would have been six months to date from 26 July 2011 and expiring on 25 January 2012; for count 2 it would have been six years to date from 26 July 2011 and expiring 25 July 2017; for count 3 the sentence would have been two years and three months to date from 26 July 2011 and expiring on 25 October 2013; and for count 4 it would have been two years to date from 26 July 2011 and expiring on 25 July 2013.

The offences

8 His Honour noted that the events giving rise to the offences "occurred within a relatively short period of time", were "extraordinary" and constituted a "series of violent and criminal acts". Those events were outlined in an agreed statement of facts. A summary of its contents is as follows.

9 Sometime between 8pm on 2 March 2010 and 6.10am on 3 March 2010, a white Toyota Hilux was stolen from outside a home at Cardiff. Subsequently, the vehicle was seen by a number of witnesses at various times on the morning of 3 March 2010 being driven in a dangerous manner, including at about 6.10am when the utility was driven along a cycleway. The taking of this vehicle was the subject of count 1 of the indictment. In the case of the applicant, the conduct alleged against him was allowing himself to be carried in the car knowing it to be stolen which, by the operation of s 154A, was deemed to be larceny.

10 At about 6.30am on 3 March 2010, the stolen utility was parked in Vista Parade, Kotara. The applicant and SD broke into the home by repeatedly ramming the front door. They were disguised, with one of them wearing a balaclava and the other a bandana over his face. They disturbed the female occupant who had been a sleeping, as had her two young children. Her husband had left the house and gone jogging.

11 The female occupant asked the offender what they wanted. One of the offenders was yelling at the other as if giving directions. She placed her two young children in a bedroom. She returned to the landing of the house. She observed the offenders moving in and out of the rooms downstairs. She attempted to dial 000. The offenders were yelling and becoming angry. It appears that she put the phone down, but could hear the operator.

12 The female occupant again asked the intruders what they wanted. One of them replied, "money, want money". She told them she did not have money but that she had jewellery. She then gave them jewellery, including her wedding and engagement rings. She was able to tell the 000 operator "Police I'm being robbed here in the house".

13 The male occupant returned and entered the home to find the applicant and his brother. He punched one of them and yelled at him to get out of his house. He swung a few more punches but they failed to connect. He pushed one of the offenders in the chest. One of the offenders swung his arm and glanced the male occupant's face, causing a wound above his right eye. The male occupant yelled at the offenders telling them to leave and made an exit path for them to leave. One of the offenders turned towards the male occupant and said: "knife, stab". The male occupant pushed them out of the house and told them to leave.

14 Paragraphs 26 to 30 of the agreed statement of facts describes the events that next occurred as follows:

"26   At this time [the female occupant] joined her husband downstairs. The offenders walked to the driveway. The offender with the black balaclava was at the driver's side door of the ute. The offender with the handkerchief was standing near the tray on the passenger side of the ute. He yelled out 'Stab kill stab kill'. The offender with the white handkerchief then walked around the back of the ute towards where [the male and female occupants] were standing at their front door. He had a knife in his hand. [The male occupant] described it as a steak knife with a rusty brown coloured blade about 5 to 6 inches long.

27   [The female occupant] said 'He's got a knife. Shut the door.' [The male occupant] started to close the door and as he did so the offender with the white handkerchief began pushing against the door. The offender had his hand wrapped around the door. They could not get the door closed properly as the lock had been damaged when the offenders gained entry.

28   [The occupants] held the door closed as best they could. After a few seconds they heard the screeching of tyres. [The male occupant] opened the door and saw the white ute going South along the cycle way. [The female occupant] was on the phone to 000. They spoke to an old lady as they were standing on the cycle way and she went to check on the children.

29   [The female occupant] came downstairs to assist her husband to get the offenders out of the house. The offender with the handkerchief had a knife and was thrusting the knife towards her husband. He had the knife over his head and was trying to stab her husband. The offender was yelling 'Stab, Stab. Kill.' She saw the knife hit her husband above the eye. The knife looked like a fishing knife. It was rusty. As they were pushing him out the door the offender was trying to stab [the male occupant] with a knife.

30   [The female occupant] then pulled her husband backwards into the house and they tried to shut the door. The offender was still yelling 'Stab stab'. The offender had his arm through the door and kept pushing trying to get back into the house. They finally got the door shut. [The male occupant] had blood all over him."

15 The agreed statement of facts, and especially these five paragraphs appear to represent an amalgam of two or more witness statements which in some respects are difficult to reconcile. These passages have their counterparts in the sentencing judgment. Paragraphs 29 to 30 appear to be describing events similar to [26] to [27], but with the notable addition of the circumstance that the male occupant received a stab wound in the eye as one of the offenders attempted to re-enter the house with a knife in the hand yelling "stab stab" etc. However, the discussion in [26] to [27] of the agreed facts and that part which is summarised in [13] above suggest that the cut to his eye was the result of a punch.

16 Nevertheless, and bearing in mind the plea of guilty, it is clear that the male occupant was wounded in the left eye by one of the offenders as he attempted to defend his family from a terrifying home invasion. It was this conduct which was the subject of count 2 of the indictment.

17 The agreed statement of facts also records that the female occupant was taken to hospital with chest pain and nausea, and that she was shaking and unable to speak.

18 A further matter should be noted about the agreed statement of facts. As noted above, it describes the disguises worn by the offenders but does not specify which offender wore what disguise or wielded the knife. At the hearing of the appeal, counsel for the Crown confirmed that it could not prove beyond reasonable doubt which offender wielded the knife. In the ordinary course that would not have much significance in assessing their responsibility for the purposes of sentence, in that both offenders bear responsibility for the combined effect of their actions. However, as I describe below, in this case the applicant is immature and mildly intellectually disabled. In those circumstances there is a significant difference between his being present and assisting at the scene of a home invasion where his elder brother wielded a knife, and a scenario in which he did so. He could only be sentenced on the former basis.

19 At about 4.30am on 2 March 2010 the occupier of a home in Valentine left her house, locking and securing it behind her. At about 9.15am on 3 March 2010, she returned home in response to a telephone call, to find that there had been a break in. The front glass door was smashed and a plasma television and costume jewellery had been stolen. A number of decorative items were also smashed. This was the conduct the subject of count 3. By his plea the applicant admitted he participated in this break and enter.

20 At about 7am on 3 March 2010 a passer-by noticed the white Toyota Hilux utility with significant front end damage parked in the middle of the road. He approached the driver of the utility and asked if he was alright. The driver did not respond. The passer-by drove off when he noticed another male walking quickly towards him holding a screwdriver. The passer by called 000. As he was speaking to the operator, two police cars arrived.

21 Two police officers alighted from the cars and approached the Hilux utility yelling, "Get out of the car, get out of the car". One of the police officers was standing immediately in front of the ute and the other was standing to the side. The applicant was in the driver's seat of the vehicle. He looked up and then accelerated towards the officer standing in front of the vehicle. The officer had to take evasive action to avoid being run over and in doing so he received a wound to his hand from pushing away from the driver's side of the ute. This was the conduct the subject of count 4.

22 The other police officer fired his service revolver. The bullet went through the door of the Hilux and through the applicant's thigh. The utility drove off, with the police chasing initially on foot and then by car.

23 The applicant was arrested running from the utility as he tried to jump over a railing. He had a significant amount of blood coming from the entry and exit wounds to his thigh. His brother, SD, was arrested in a nearby yard holding a hammer.

24 It is necessary to identify the precise conduct of the applicant the subject of count 4. As I have noted, he pleaded guilty to an offence under s 60(3) of the Crimes Act which entailed an admission that he wounded a police officer in the execution of the officer's duty, and was reckless as to causing him actual bodily harm. This offence carries a maximum penalty of twelve years. The applicant's conduct in wounding this officer cannot be characterised in a manner which would satisfy the elements of a charge carrying a more serious penalty (R v De Simoni [1981] HCA 31; 147 CLR 383). Thus he could not be sentenced on the basis that in wounding the officer he intended to run him down and thereby inflict grievous bodily harm contrary to s 33(1) of the Crimes Act, or that he wounded the officer with the intention to resist arrest contrary to s 33(2). The maximum term for either of those offences is twenty-five years.

The applicant's circumstances

25 The applicant's subjective case was a powerful one. It is necessary to consider it in some detail.

26 Tendered to his Honour were two juvenile justice reports concerning the applicant and a report of a psychologist, Dr Lennings. His Honour referred to these reports extensively in the sentencing judgment and clearly accepted them.

27 The applicant is the youngest of six children. His parents' relationship had broken down when he was approximately three years old due to his father's consumption of alcohol and his parents' violence towards each other. His mother had also abused alcohol and marijuana although she told the authors of the Juvenile Justice reports that she ceased approximately six years prior to the offences. After his parents separated he lived with his mother, although he lived with his father for six months during 2010. Of his siblings, the applicant was said to be closest to SD who had been diagnosed with schizophrenia. The Juvenile Justice report described his "early environment [as] fraught with violence and alcohol abuse."

28 The applicant's school years were marked by learning difficulties. He attended a main stream primary school but required special educational assistance. His parents declined a suggestion that he transfer to a special school. His transition to high school was difficult. He is reported to have been "picked on and bullied" which led to his retaliating and consequential discipline problems. He left high school in year 8 and has not attended any further training or education. When he turned sixteen he commenced receiving a disability pension, but has undertaken some casual work with his father at carnivals in the local area.

29 The authors of the Juvenile Justice reports and Dr Lennings expressed concerns about the applicant's ability to comprehend their questions during their consultations and referred to his "intellectual disability". Dr Lennings had available to him results of cognitive tests concerning the applicant. He described the results as follows:

"[PD]'s performance on this test placed him in the range between the mild developmental disability and borderline intellectual [dis]ability, or no better than the bottom 3% of the population. Although his non verbal skills are marginally better than verbal abilities, the difference is not statistically or clinically significant. His history consistently reveals a boy of intellectual deficits, with minimal life management skills and obvious adaptive functioning deficits. He fulfills criteria for a diagnosis of mild intellectual disability.

... [PD] is a young person with a significant cognitive deficit. He appears to have been aimless, but not particularly anti-social in his behaviours, but regrettably strongly influenced by family."

His Honour expressly referred to these parts of Dr Lennings' report in the sentencing judgment.

30 Dr Lennings' description of the applicant as not being "particularly anti-social" emphasises a significant aspect of his subjective case namely the absence of any prior offending. His discussion of the applicant's intellectual and social functioning resonates with the description that the applicant gave to Dr Lennings of how he came to commit the offences:

"[PD] tells me he went fishing with his brother and the brother dropped him off at his house and then went out, leaving him at his house. His brother came back in a car he had never seen before, and thought the car was stolen. His brother then began to argue with his girlfriend, and it seems in a somewhat angry mood the brother drove off, taking [PD] with him. PD says that he has a bad memory and ... does not recall much about what happened next ..."

31 This description of a cognitively impaired, aimless but not "particularly antisocial" youth being swept up in the volatile behaviour of his elder brother was borne out by the opinion expressed by Dr Lennings as follows:

"... [PD's] involvement in his offences were a direct product of his intellectual disability and the attendant difficulty in independent thinking. He is used to [being] cared for and being supported by family, he does largely what he is told to do by them ..."

His Honour accepted this opinion. His Honour found that the applicant's "lack of critical or analytical ability seems central to his involvement in the offence". His Honour referred to the applicant as not being "a leader, he is a follower".

32 Further, his Honour accepted that as a result of the gun shot wound the applicant suffers from continuing pain in his right groin which "may be a permanent condition".

The Sentencing Judgment

33 I have already described the events surrounding the commission of the offences and various findings his Honour made concerning the applicant's circumstances. I note a further eight points about the sentencing judgment.

34 First, his Honour described each of the offences as "very serious". His Honour noted the trauma experienced by the victims of count 2. His Honour found that "there must have been some degree of planning" and that the applicant and his brother must have known that there were people in the house. His Honour described it as a "determined effort" to assault the occupants involving "threats" and the use of a knife inflicting a "level of fear". Against this his Honour described the wound inflicted on the male occupant and the police officer the subject of count 4 as both "relatively minor". His Honour described count 4 as involving the applicant "trying to flee" but also as an incident that was "potentially lethal". Otherwise, his Honour accepted that injury to the officer "emanated from a degree of panic, given the age" of the applicant and "his lack of maturity".

35 Second, his Honour described the applicant as having "certainly embarked on what could be conveniently described as adult type behaviour". I address this comment further below.

36 Third, his Honour accepted that the applicant was genuinely remorseful and contrite.

37 Fourth, his Honour accepted that the applicant had reasonable prospects of rehabilitation. This finding was supported by the fact that the applicant was on bail for fifteen months between the date of his arrest and being sentenced, but did not re-offend.

38 Fifth, his Honour rejected a submission that for counts 1, 3 and 4 the applicant should be dealt with under Div 4 of Pt 3 of the CCP Act and instead found he should be dealt with "in accordance with law". This is the subject of challenge by grounds two and three.

39 Sixth, his Honour accepted that the there was an "element of extra-curial punishment" inflicted on the applicant in the form of the "ongoing problems" with his wounded leg. His Honour referred to the decision of this Court in R v Fryar [2008] NSWCCA 171; 187 A Crim R 8 which suggests that little weight would be attached to these injuries, although his Honour stated that the amount of weight would depend on the circumstances (see R v Daetz [2003] NSWCCA 216; 139 A Crim R 398, at [62]).

40 Seventh, his Honour accepted that general deterrence was clearly relevant but also accepted that "must be moderated to some extent" having regard to the applicant's "intellectual problems".

41 Eighth, his Honour accepted that by virtue of the timing of his plea the applicant was entitled "to the full utilitarian value" of his plea. Although not quantified, it can be taken as involving a 25% discount from the sentence that would otherwise have been imposed (R v Thomson [2000] NSWCCA 309; 49 NSWLR 383).

Aggregate Sentences

42 As I have stated, the applicant was sentenced in accordance with s 53A of the Sentencing Act. It provides:

"Aggregate sentences of imprisonment

(1)   A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2)   A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following:

   (a)   the fact that an aggregate sentence is being imposed,

   (b)   the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

(3)   Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4)   The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

(5)   An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section."

43 In R v Nykolyn [2012] NSWCCA 219 at [31], McClellan CJ at CL noted that this provision was introduced to ameliorate the difficulties experienced in dealing with sentences for multiple offences that flowed from the decision in Pearce v R [1998] HCA 57; 194 CLR 610. In Nykolyn at [56] R.A. Hulme J discussed the significance of the requirement in s 53A(2)(b) that the sentencing judgment record the sentences that would have been imposed for each of the individual offences had an aggregate sentence not been imposed. His Honour stated at [58]:

"The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at: see R v Brown at [17] per Grove AJ. Thirdly, it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence. Fourthly, it assists this court to assess an appropriate new aggregate sentence if one or some of the underlying convictions are quashed on appeal."

44 This appeal illustrates the utility of the first two reasons identified by Hulme J. Ground one of the appeal alleges that "the sentence in relation to count 2 was manifestly excessive". This is misconceived as there is no "sentence" for count 2, only one aggregate sentence for all of the offences. An indicative sentence is not itself amenable to appeal but an "erroneous approach in the indication of the sentence that would have been imposed for an offence may well reveal error in the aggregate sentence reached" (R v Brown [2012] NSWCCA 199 at [17] per Grove AJ with whom Macfarlan JA and McCallum J agreed). However, that is not necessarily the case. The materiality of any error in an indicative sentence to the overall aggregate sentence will need to be demonstrated before this Court would intervene. As the length of the aggregate sentence imposed on the applicant was the same as the indicative sentence for count 2 then any error in that indicative sentence is likely to affect the aggregate sentence but even that does not necessarily follow.

45 I will address ground one last along with ground six, which alleges that the aggregate sentence was manifestly excessive.

Grounds two and three: The sentencing judge erred in dealing with counts 3 and 4 according to law

46 Grounds three and four of the appeal contend that his Honour erred in dealing with counts 3 and 4 respectively "according to law" and not in accordance with Division 4 of Part 3 of the CCP Act.

47 Section 17 and subsections 18(1) and 18(1A) of the CCP Act provide:

"17 Serious children's indictable offences

A person to whom this Division applies shall, in relation to a serious children's indictable offence, be dealt with according to law.

18 Other indictable offences

(1)   A person to whom this Division applies shall, in relation to an indictable offence other than a serious children's indictable offence, be dealt with:

   (a)   according to law, or

   (b)   in accordance with Division 4 of Part 3.

(1A)   In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters:

   (a)   the seriousness of the indictable offence concerned,

   (b)   the nature of the indictable offence concerned,

   (c)   the age and maturity of the person at the time of the offence and at the time of sentencing,

   (d)   the seriousness, nature and number of any prior offences committed by the person,

   (e)   such other matters as the court considers relevant." (emphasis added)

48 Subsection 3(2) of the CCP Act defines a "serious children's indictable offence" to include any offence punishable by twenty-five years imprisonment. The maximum penalty for the offence the subject of count 2 was twenty-five years (Crimes Act s 112(3)). It was therefore a "serious children's indictable offence" and was required to be dealt with according to law pursuant to s 17 of the CCP Act. However, the remaining counts (1, 3 and 4) are not serious children's indictable offences and thus engaged the exercise of the discretion conferred by s 18(1).

49 Division 4 of Part 3 of the CCP Act addresses the penalties that may be imposed in criminal proceedings in the Children's Court. Section 33 identifies the available sanctions. The most serious penalty that can be imposed is an order committing an offender for a period to the control of the Minister administering the Children (Detention Centres) Act 1987, in the case of a person who is under twenty-one years, or to the control of the Minister administering the Crimes (Administration of Sentences) Act 1999 in the case of a person who is at or above the age of twenty-one years (s 33(1)(g)). In either case the maximum penalty is two years.

50 As the indicative sentences for counts 3 and 4 exceeded two years, the applicant complains that he lost the advantage of a more lenient treatment for those counts by reason of his Honour's refusal to deal with him in accordance with Division 4 of Part 3.

51 His Honour addressed the exercise of the discretion conferred by s 18(1) in the sentencing judgment:

"I have taken into the principles relating to sentencing juveniles when it comes to PD's position in this and clearly by virtue of the nature of the charge in count 2 being a serious indictable offence he must be dealt with in accordance with the law.

Given the serious nature of the other offences [i.e. counts 1, 3 and 4] when it concerns [PD], I have taken the view that he should also be dealt with in accordance with the law as far as those matters are concerned. Certainly I accept that he has no previous criminal history but the objective seriousness of those offences cannot be ignored. Accordingly, I have come to the conclusion, notwithstanding the very capable submissions of his solicitor, that he must be dealt with accordingly." (emphasis added)

52 Counsel for the applicant contended that his Honour "ought to have" dealt with the applicant under Div 4 of Pt 3 in relation to both counts 3 and 4 when regard was had to the seriousness of those offences and his subjective circumstances. The submissions in support of this ground did not contend that there was some relevant factor listed in s 18(1A) that his Honour failed to consider. In effect it was submitted that his Honour was bound to exercise this discretionary power in the applicant's favour and that it was "unreasonable or plainly unjust" for his Honour to fail to do so (House v R [1936] HCA 40; 55 CLR 499, 505).

53 A further submission developed during oral argument was that the exercise of the discretion conferred by s 18(1) is restricted to considering the particular circumstances of the offence in question. It was submitted that it could not include consideration of other offences that were part of the same course of conduct, such as the serious children's indictable offence which constituted count 2.

54 Both Counsel referred the Court to its earlier decision in R v WKR (1993) 32 NSWLR 447. In WKR on p 451D Hunt CJ at CL addressed the exercise of the discretion under s 18(1):

"If the offence were a grave or serious one (albeit not one falling within the definition of a serious indictable offence), and if the offender standing for sentence were of such an age and maturity that he did not deserve the benefit of the special provisions in Pt 3, Div 4 when being punished for such a grave or serious offence, the judge would be more likely to determine that he should be dealt with according to law rather than in accordance with Pt 3, Div 4."

55 To similar effect, Sully J at 460 stated:

"If, in a particular case, a crime has been committed and it is a crime which is, in its nature and incidents, an adult crime rather than a crime which can be conceptualised sensibly as deriving from the offender's '... state of dependency and immaturity ...', then that factor is, in my opinion, strong warrant for the exercise of the relevant discretion in favour of dealing with the offender according to law."

56 At the time WKR was decided there was no equivalent to s 18(1A) specifying the considerations that governed the exercise of the discretion covered by s 18(1). Subsection 18(1A) was inserted by Schedule 2 of the Crimes Legislation Amendment Act 2002 (which commenced on 24 February 2003). The explanatory memorandum and second reading speech for that legislation did not address s 18(1A). The factors referred to in the passage from WKR at 451 extracted above, now find expression in subsections 18(1A)(a) to 18(1A)(c). However, to the extent that the passages set out above from WKR might be taken as suggesting the weight that should attach to each of these factors, it must be borne in mind that the attribution of weight to each of the mandatory considerations specified in s18(1A) is generally a matter for the judge at first instance. This Court will only interfere with the exercise of the sentencing judge's discretion in accordance with the principles stated in House v R.

57 Counsel for the Crown and for the applicant relied upon these quotes from WKR for different purposes. Counsel for the Crown pointed to a finding made by his Honour concerning the serious nature of the criminality, namely that it was "certainly a series of violent and criminal acts", and his Honour's characterisation of the applicant's conduct as involving "adult type behaviour". Counsel for the applicant pointed to the various findings by his Honour as to the intellectual disability and immaturity of the applicant as distinguishing his circumstances from the scenarios adverted to by Hunt CJ at CL and Sully J.

58 His Honour did state that the applicant had "embarked on what could be conveniently described as adult type behaviour" and stated that that was a "serious matter to take into account in the sentencing exercise". However, that finding also needed to be placed in the context of the acceptance by his Honour of the applicant's intellectual disabilities, culminating in his description of the applicant as "not a leader" but a follower who was led by his elder brother. In essence, his Honour considered that the offences involved a serious course of criminal conduct, but was cognisant of PD's immaturity and impaired intellectual functioning. While this suggests that the factors affecting the exercise of the discretion conferred by s 18(1) may have pointed in different directions it did not compel the exercise of the discretion in the applicant's favour.

59 In so far as his Honour described count 3 as being "of a serious nature", counsel for the applicant contended that the facts in relation to that offence were unremarkable, in that a residential home was broken into, damage was done, items were stolen and the applicant's role was that of the driver of the vehicle waiting outside the premises. Even so, such an intrusion into a residential home is not a minor matter. Further, his Honour's characterisation of the offence as being of a "serious nature" was not divorced from the course of criminal conduct which it formed part of. The applicant's complaint in that regard is addressed below.

60 In relation to count 4, counsel for the applicant points to his Honour's finding that the wound that PD inflicted on the police officer was "relatively minor". This finding is said to undermine his Honour's assessment that count 4 should be dealt with according to law. However, even with the limitations noted in [24] above, the extent of the injury was not the only matter relevant to an assessment of its seriousness. Although the officer only suffered a cut to his hand, the officer was acting in the course of his duty. His Honour described the offence as "potentially lethal to the officer". Furthermore, the applicant's actions were also dangerous to himself and others. The offence was committed after a criminal rampage that he participated in. The circumstances of the offence constituting count 4 were capable of meeting the description given to them by his Honour, namely "serious".

61 As I have stated, the other aspect of the complaint made by counsel for the applicant was that it was not open to his Honour to take into account the entirety of the applicant's criminal conduct, including his conduct on count 2, for the purposes of exercising the discretion under s 18(1). No authority was cited for this proposition. The Court was not referred to any aspect of the text that supported it either. Sub-section s 18(1A)(d) enables the "seriousness, nature and number of prior offences" committed by the offender to be considered. Assuming that "prior offences" in s 18(1A)(d) means prior offences in respect of which the offender was convicted, it is difficult to understand why such conduct can be considered in the exercise of the discretion conferred by s 18(1), but that other offences committed in the course of committing the very offences being considered, such as count 2, cannot. In oral argument Counsel for the applicant suggested that the distinction between the two is to be found in the opportunity for reflection that was provided but not taken up following any earlier convictions. I do not find that argument persuasive in justifying the exclusion of any consideration of other offences committed around the same time as the offences being considered under s 18(1).

62 In my view it is clearly open to a sentencing judge to consider the entirety of the criminal conduct of the juvenile offender when addressing the exercise of the discretion conferred by s 18(1) in relation to a particular offence or offences. This is particularly the case when one of the offences is a "serious children's indictable offence" which must be dealt with according to law. In such a case, to deal with the other offences under Div 4 of Pt 3 of the CCP Act would involve the simultaneous application of two different sentencing regimes to an offender. This is not impermissible, but a sentencing judge should not be restricted to considering individual offences divorced from their context in determining the approach they will adopt. For example, it may be an exercise in futility to apply Div 4 of Pt 3 to various minor offences when a relatively long custodial sentence is required for a serious children's indictable offence committed by a young offender as part of the same course of conduct.

63 I consider that it was open to his Honour to consider the entirety of the applicant's conduct in addressing the exercise of the discretion conferred by s 18(1) and it was open to his Honour to deal with counts 3 and 4 according to law.

64 I reject grounds two and three.

Grounds four and five: Failing to take into account the principles relevant to sentencing juveniles.

65 Ground four of the appeal contends that his Honour failed to take into account s 6 of the CCP Act. Ground five alleges that his Honour failed to place sufficient weight upon the "principles relevant to sentencing juveniles". The submissions did not differentiate between the two grounds and it was not contended that the "principles" alluded to in ground five differed from those identified in s 6 of the CPP Act.

66 Section 6 provides:

"Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having 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,

(f)   that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g)   that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h)   that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim."

67 Even though this section is directed to persons or bodies exercising functions under the CCP Act the principles set out in s 6 are also applicable when a young offender is being "sentenced according to law" (R v SDM [2001] NSWCCA 158; 51 NSWLR 530 at [18] per Wood CJ at CL with whom Giles JA agreed at [2]). A failure to take into account these principles can constitute an error justifying intervention (DB v R [2007] NSWCCA 27; 167 A Crim R 393 at [58] to [63]). However a mere failure to refer to the section or to conduct some "judicial and forensic check list" does not of itself constitute error (R v MHH [2001] NSWCCA 161 at [11] per Sully J).

68 Although we were not provided with the written submissions that were provided to his Honour, the Crown submitted and the applicant did not deny that his Honour had been provided with "extensive written submissions from the Crown which set out in full s 6 of the CCP Act and the relevant principles for sentencing children". This contention is supported by the passage from the sentencing judgment extracted in [51] above in which his Honour stated he had taken "into account the principles relating to sentencing juveniles".

69 Despite this, the applicant contended that his Honour's consideration did not "reflect a proper consideration of the principles to which a Court must have regard when sentencing children". In support of that contention, the applicant noted that no reference was made to s 6. As I have already stated no such express reference was necessary provided the principles were taken into account.

70 The applicant also pointed to a number of passages in the sentencing judgment where his Honour made comments which were said to be more suggestive of the approach taken to an adult offender rather than a person of the applicant's age. One of these was the reference to "adult type behaviour" which I have already discussed and placed in context. In another passage that was relied on his Honour referred to "this episode of criminality involving these two offenders" as being a "series of violent and criminal acts for which they must bear entire responsibility". It was suggested that the reference to "entire responsibility" was only appropriate to an adult offender. However ss 6(b) refers to children "bear[ing] responsibility for their actions" subject to the caveat that, because of their state of dependence and immaturity, they also require guidance and assistance. His Honour adverted to the need for the applicant to bear responsibility for his actions but also considered his dependency on others and his immaturity.

71 Counsel for the applicant also referred to a finding by his Honour that the application of general deterrence "must be moderated to some extent when it comes to the intellectual problems each of these two [offenders] have". Effectively he submitted that by only referring to the applicant's intellectual problems his youth was overlooked. This contention does not have any substance. His Honour's discussion of the applicant's subjective circumstances, especially his impaired social and intellectual functioning, necessarily addressed his youth.

72 His Honour's reasons expressly stated that he had considered the principles applicable to the sentencing of juvenile offenders. The passages in the sentencing judgment referred to by Counsel for the applicant do not suggest to the contrary.

73 I reject grounds four and five of the appeal.

Grounds one and six - manifestly excessive

74 Ground one of the appeal alleged that the "sentence" for count 2 was manifestly excessive and ground six alleges that the aggregate sentence was manifestly excessive. As stated in [44] ground one as framed is misconceived, but it is called in aid of ground six. In support of ground six the applicant also relies on the arguments made on the other grounds. I understand that this includes the proposition that a consideration of whether the aggregate sentence, or its components, was manifestly excessive is informed by the application of the sentencing principles for young offenders set out in s 6 of the CCP Act.

75 I have described the circumstances surrounding the offences at [8] to [23]. The applicant's conduct regarding count 2 was clearly very serious and it terrified his victims. I have also addressed his subjective case in detail at [25] to [32]. The significant matters that emerge are the findings of the sentencing judge as to his intellectual disabilities and their impact on his offending, his youth and his absence of prior convictions. These latter considerations coalesce to ameliorate to a significant degree any need for a sentence that reflects general deterrence and retribution. They also cast considerable light on two matters of significance to the assessment of the seriousness of the applicant's conduct.

76 First, they complete the explanation for how an offender with no previous convictions came to be a participant in these offences (see [30] to [31]). At the time he committed these offences the state of the applicant's intellectual functioning and social development was such that his family, including his troubled elder brother, was his entire world. He would uncritically follow their lead and example. He went fishing with his brother, who dropped him off and then later picked him up in a stolen car. A criminal rampage followed in which, according to his Honour, the applicant was the "follower" not the "leader". His capacity to decide not to join in with his brother was substantially diminished.

77 Second, the conduct of one of the offenders in wielding a knife and wounding the male occupant of the house stands out as a very serious act in the crime spree. As I have stated, the Crown could not prove which of the offenders wielded the knife, but ordinarily that would not matter much as both bear legal responsibility for it. However, in this case the Crown could not prove the applicant wielded the knife but at most was only present and aware that his brother was doing so. This is significant in circumstances where his intellectual functioning was impaired in the manner described and the person wielding the knife was his elder brother. This lessens his culpability.

78 The indicative sentence imposed for count 2 was for a total of six years. Allowing for the 25% discount on account of his plea of guilty, this represented an undiscounted total sentence of eight years. There was no standard non-parole period for that offence as the applicant was under the age of 18 (see s 54D(3) of the Sentencing Act). The Crown submitted that deterrence and retribution do not cease to have significance with offenders in their late teenage years (citing KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [24] and [106] per McClellan CJ at CL). However in this case there was the additional component of the applicant's intellectual impairment. As stated by his Honour, considerations of general deterrence were of lesser significance given his intellectual impairment (see Muldrock v R [2011] HCA 39; 244 CLR 120 at [53] to [54]). The position was the same with retribution (Muldrock at [54]). Specific deterrence had a potential role, but his Honour found that the applicant was both remorseful and had good prospects of rehabilitation. This finding was confirmed by the fifteen months the applicant was on bail but did not re-offend. As I have stated, the process of sentencing was informed by the principles stated in s 6 of the CCP Act. His Honour considered the applicant's case with care and was attuned to the relevant principles. Nevertheless, I am satisfied that an undiscounted indicative sentence for count 2 of eight years for an intellectually impaired young offender with no prior convictions was manifestly excessive.

79 I have reached the same conclusion in relation to the indicative sentences for counts 3 and 4. The indicative sentence for count 3 was two years and three months. Prior to any discount for his plea, this represented a sentence of three years. I have described this offence above at [19]. Violations of a person's home in that manner are obviously matters of great concern to the community. However, if a sentence of three years for an offence of break and enter was imposed on a first time adult offender then it would likely to be considered at the high end of the range. This case involves a young intellectually impaired offender, with no prior convictions, who became caught up in the offence in the manner I have described. An undiscounted sentence of three years, if separately imposed, would clearly have been excessive.

80 The applicant's conduct on count 4 could have ended in disaster. Nevertheless, as I have stated, it is important that he is not sentenced on the basis that he committed a far more serious offence such as that specified in s 33(1) of the Crimes Act. Further, the form of wound he inflicted was described by his Honour as "relatively minor".

81 The indicative sentence the applicant received in respect of count 4 was two years. Prior to any discount for his plea, this represented a total sentence of two years and eight months. I consider that an undiscounted indicative sentence of that length for count 4, for an intellectually impaired young offender with no prior convictions, was manifestly excessive.

82 These conclusions do not necessarily result in the setting aside of the aggregate sentence and the substitution of a new sentence. It may be that the indicative sentences are separately too high, but the overall aggregate sentence is appropriate. In this case, the Crown pointed to what it described as the "extremely favourable" leniency that was afforded to the applicant from the fact that the indicative sentences for counts 1, 3 and 4 were effectively all made concurrent with count 2 in that the total aggregate sentence was of the same length as the indicative sentence for count 2. The Crown submits that, while a proper application of the totality principle would have warranted some overlap, total concurrency could not have been justified given the discrete criminal acts that occurred. It also points to the leniency afforded to the applicant that flowed from his Honour's finding of special circumstances under s 44(2B) of the Sentencing Act. This justified a variation of the requirement that the additional term not exceed one-third of the non-parole period.

83 There is some force in the Crown's submissions. However I am still persuaded that the aggregate sentence of six years was manifestly excessive. When the nature of his offending is considered more closely and given the applicant's intellectual impairment, youth and absence of prior offending, an undiscounted total sentence of eight years was, in my view, too high.

84 In resentencing the applicant, I propose that his Honour's approach be adopted and an aggregate sentence be imposed. Subsection 53A(2)(b) requires that the Court indicate the "sentence that would have been imposed for each offence ... had separate sentences been imposed instead of an aggregate sentence". The Court is not required to indicate the non-parole period that would have been imposed for each offence: s 44(2C). Further, the requirement to indicate a sentence for an offence does not extend to the whole sentencing exercise of fixing commencement dates and dealing with issues of totality. Indeed, one of the purposes of aggregate sentencing is to avoid the artificiality that can result from such a process.

85 Although no separate submissions were directed to count 1, as there is a requirement to specify an indicative sentence for each offence I should note that I also consider his Honour's indicative sentence for that offence to have also been too high. The Crown did not allege or prove that he actually stole the car, only that he allowed himself to be driven in one by his elder brother. A penalty of six months imprisonment for a first time young offender with his intellectual difficulties for that conduct is in my view excessive. For that offence, pursuant to s 53A(2) of the Sentencing Act, I propose that the indicative sentence be one month's imprisonment. For count 2, I propose that the indicative sentence be a term of imprisonment for four years. For each of counts 3 and 4, I proposed that the indicative sentences be terms of imprisonment of nine months each.

86 In aggregate I propose that the applicant serve a sentence of four years six months, comprised of a non-parole period of two years three months and a balance of term of the same amount. This reflects a finding of special circumstances under s 44(2B) the need for which is manifest from the various subjective considerations that have been canvassed. This sentence also involves some effective cumulation and concurrency of the indicative sentences to reflect the totality principle and my acceptance of so much of the Crown's submissions as concerns the need for some accumulation.

87 I propose the following orders

(1) Leave to appeal be granted.

(2) Appeal allowed.

(3) Set aside the aggregate sentence imposed by the District Court on 23 August 2011.

(4) In lieu thereof:

(a) impose an aggregate sentence of imprisonment of four years and six months, comprising a non-parole period of two years and three months to date from 26 July 2011 and expire on 25 October 2013, together with an additional term of two years and three months to commence on 26 October 2013 and expire on 25 January 2016;

(b) the earliest date on which the offender will be entitled to release from custody is 25 October 2013;

(c) the sentences that would have been imposed for each offence had separate sentences been imposed are as follows:

(i) Count 1 (stealing motor vehicle) - one month imprisonment;

(ii) Count 2 (break and enter dwelling house and commit serious indictable offence in circum-stances of special aggravation) - four years imprisonment;

(iii) Count 3 (break and enter dwelling and commit serious indictable offence ) - nine months imprisonment; and

(iv) Count 4 (recklessly wounding a police officer) - nine months imprisonment.

**********

Decision last updated: 23 November 2012