Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: HL v Regina; YG v Regina [2014] NSWCCA 43
• Hearing dates: 18.03.2014
• Decision date: 03 April 2014
• Before: Chief Justice Bathurst at [1]; Hoeben CJ at CL at [2 ]; Bellew J at [42]

Decision

Leave to appeal granted.

Appeal dismissed.

• Catchwords: CRIMINAL LAW - sentence appeal - demand money by force while in company with intent to steal - Chinese student forced to pay money to former boyfriend - parity principle - recording of conviction only difference between sentences - parity principle not offended.
• Legislation Cited: Children (Criminal Proceedings) Act 1987 - s3, s33(1); Crimes Act 1900 - , s86(2), s99(2)
• Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 463 at [28]; JM v R [2012] NSWCCA 83; R v Sutton [2004] NSWCCA 225; Sen v R [2013] NSWCCA 30
• Category: Principal judgment
• Parties: HL - Applicant; YG - Applicant; Regina - Respondent Crown
• Representation: Counsel: W Roser SC - Applicants; Ms S Herbert - Respondent Crown; Solicitors: AHL Legal - Applicants; S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
• File Number(s): 2010/295811; 2010/305037
• Publication restriction: ---

Decision under appeal

• Date of Decision: 2012-04-27 00:00:00
• Before: Syme DCJ
• File Number(s): 2010/295811; 2010/305037

Judgment

1 BATHURST CJ: I agree with Hoeben CJ at CL.

2 HOEBEN CJ at CL:

Offence and Sentence

On 27 February 2012 the applicants pleaded guilty to an indictment containing one count of demand money by force whilst in company of each other with intent to steal. The offence is contrary to s99(2) Crimes Act 1900 with a maximum penalty of imprisonment for 14 years. There is no standard non-parole period.

3 The applicants were juveniles at the time of the offence. It was an indictable offence, but not a serious children's indictable offence, as defined by s3 Children (Criminal Proceedings) Act 1987. Syme DCJ determined pursuant to s18(1)(b) of the Act to deal with the applicants in accordance with Division 4 of Part 3 of the Act, rather than according to law.

4 On 27 April 2012 her Honour, pursuant to s33(1)(e) Children (Criminal Proceedings) Act 1987, sentenced each applicant to a period of probation for 12 months, commencing 27 April 2012. Her Honour recorded a conviction in relation to the offence against each applicant.

5 A Notice of Intention to Appeal was filed on 15 May 2012. The appeal was filed on 1 August 2013. The grounds of appeal are:

Ground 1: The sentencing judge erred in that the strength of the Crown case was taken into account when assessing the discount for the plea of guilty.

Ground 2: The applicants suffer a justifiable sense of grievance when comparing the sentence imposed upon them with the sentence imposed upon their co-offender, AT (a child).

Factual Background

6 The following facts were agreed between the parties. In June 2010 the female victim, XS, met a person called RJ. The victim and RJ were Chinese students studying in Australia. Both were juveniles. They became involved in a relationship but after some weeks, the victim decided to end the relationship. A number of RJ's friends (including the two offenders) were unhappy with the way the victim had treated RJ. The two offenders considered that the victim should repay money which RJ had spent on her during their relationship.

7 On 11 August 2010 GE telephoned the victim and told her that she would be assaulted if she did not meet at Chatswood railway station on 13 August 2010. On that afternoon, the victim met GE at the railway station. They then caught a bus to the "Forest Way" shops. GE and the victim then walked to the house where RJ lived. RJ let the victim and GE into the house. Shortly thereafter some other people (including AT and the offenders) arrived at the house.

8 The victim was confronted about the way she had treated RJ during their relationship. One of the young people told the victim that she owed RJ $800 (being the money RJ had spent on her plus $400 "interest"). The victim felt she was being bullied into paying the money. She indicated that she did not have the money. The offender YG (a female) dragged the victim from the couch where she was sitting. The victim indicated that she did not have the money but that she would get the money.

9 While in the house, the victim ate dinner. After dinner, the offender YG told the victim to get off the couch. She complained that the victim was too slow and dragged her off the couch. One of the young people took two mobile phones belonging to the victim out of her bag. Later, AT contacted the victim's guardian and told the guardian that she would be staying with her for the night. At about 9pm the victim asked to leave the house. All of the persons present except RJ indicated that she could not leave. She spent the night at the house.

10 On the morning of 14 August 2010 the victim left the house. Everyone from the house, except GE, walked with her to the "Forest Way" shops. The victim realised that she did not have her mobile phones. She was told that RJ would return them to her. Subsequently, arrangements were made to return the phones to the victim at the bus stop at the "Forest Way" shops.

11 On 18 August 2010 after arriving at the bus stop, the victim spoke with RJ by mobile phone. RJ told her to meet him at the house. She went to the house to get her phones. When she got to the house (at about 3pm) RJ, the offender HL (a male), the offender YG, AT and another person were there. While sitting on the lounge, the offender HL crossed his legs and in so doing made contact with the left ear of the victim, causing it to bleed. The group appeared angry that she had (previously) recorded abusive and threatening conversations with them on her mobile phones. A short time later, GE arrived at the house and threw his jacket at the victim. The jacket hit her chest.

12 The group abused the victim for recording the conversation. They asked her if she had the $800. She indicated that she did not. The offender YG then used scissors to try to cut the victim's hair causing her to scream. GE pushed her to the floor and put a cloth in her mouth to gag her. The offender YG used scissors to cut off an amount of the victim's hair causing her to cry. RJ asked the others to let her go but they refused. The offender stood close and spoke to the victim while she was leaning against the wall. She was then forced to write an "IOU" note indicating that she borrowed $800 from RJ and would return the money to him in two weeks. At about 6pm, the door of the house was opened and the victim was allowed to leave. RJ did not participate in the assault on the victim but neither did he try to stop it. The offender HL smashed one of her mobile phones.

13 The victim caught a bus to Chatswood. At Chatswood she told her friend what had happened and the matter was reported to the police.

14 The co-offender AT, whose sentence is relied upon for parity purposes, was aged 16 years and 9 months at the time of the offence, YG was aged 17 years and 10 months and HL 17 years and 6 months. AT was sentenced on 22 June 2011 at Bidura Children's Court. She pleaded guilty at the earliest opportunity to an offence under s86(2) Crimes Act 1900 being an offence of take and detain a person in company with intent to obtain an advantage. On indictment that offence was punishable by up to 20 years imprisonment. The jurisdictional limit on the Children's Court was a control order for a maximum of 2 years. AT was sentenced to a 12 months period of probation, pursuant to the provisions of s33(1)(e) Children (Criminal Proceedings) Act 1987. The learned magistrate declined to record a conviction pursuant to s14 of the Act.

Sentence proceedings

15 Her Honour noted that although general sentencing principles would apply, the Children's Court (Criminal Proceedings) Act operated so that rehabilitation was to be given a greater emphasis.

16 Although the offenders and the victim were all aged 17 at the time, her Honour concluded that general deterrence still had to be given some weight for the following reasons:

There were a number of people involved in the offence.

The frightening nature of the offence.

The degree of forethought that went into the offence.

The offence continued over a period of three days.

17 Pleas of guilty were entered and were accepted on the day of the trial. Before then they had proceeded to a committal stage in the Children's Court. Her Honour found that the offenders were entitled to a discount which could be "reflected either in the length of the sentence imposed or by the nature of the sentence imposed".

18 In relation to the plea of guilty, her Honour said:

"A plea of guilty is sometimes taken into account as evidence of remorse and contrition. In this case there was a strong Crown case because of the statement of the victim, which probably affords the offenders less credit ... However neither offender gave evidence and the finding of their remorse, and therefore their prospects of rehabilitation, must therefore be guarded."

19 In relation to subjective matters, her Honour noted that neither offender had a criminal record in Australia or China. Neither offender gave evidence and no explanation was given for their involvement in the offence. The offenders were both students from China as was the co-offender and the victim. They came to Australia to finish their secondary studies and remained to enrol in tertiary studies. Her Honour noted that both offenders had parental, financial and emotional support, together with other support in Australia. A number of references from persons in Australia were placed before the court.

20 Her Honour characterised the offence as "frightening and demeaning for the victim. It was a frightening offence involving a number of offenders against a single victim." (ROS 4.7) Her Honour did not regard factors of a cultural nature as an excuse, nor as an acceptable explanation for the serious criminal behaviour. She characterised the behaviour as aggressive and cowardly.

21 Her Honour found that the offences were serious in that they involved a young victim. Although the violence was somewhat limited, there was a large degree of menace and fright. Injury by way of cut hair was inflicted. Her Honour accepted that there was little or no evidence of planning, over and above what might be usual for this sort of offence. She regarded the fact that the offending took place over three days and that the offenders were persistent in their endeavours, as an aggravating feature.

22 In relation to mitigating factors, her Honour took into account the offenders' prospects of rehabilitation. Her Honour did not see in the evidence or in the references any indication of regret or apology tendered to the victim. Her Honour could find no acknowledgement of any regret as to what the victim might have felt with respect to what happened to her. Her Honour took into account that each offender had spent a considerable time on reasonably strict bail conditions, including a curfew.

23 Although the matter was to be dealt with under the Children (Criminal Proceedings) Act, her Honour considered that the purposes of sentencing were important. She thought that it was important that each offender be adequately punished for their involvement in this offence and that in order to prevent crimes, it was necessary to send a message of general deterrence to the wider community. Her Honour accepted that as a result of the very long period that the offenders had been on bail, and the loss of face which they had suffered within their own community, specific deterrence had to some extent been dealt with. Her Honour took into account that the maximum penalty for the offence was imprisonment for 14 years.

24 In relation to parity, her Honour said:

"The other issue that I take into account is the issue of parity. A co-offender was dealt with in the Children's Court when she pleaded guilty to a similar, but more serious offence, in that jurisdiction. It was a notionally more serious offence, but the involvement of the co-offender and the actions undertaken by the co-offender, were quite similar. While I accept that the maximum penalties are to be used as a guide in sentence, it is each offender's involvement and their actions and the objective seriousness of the circumstances of the offence which is the most important consideration in sentence. Parity is therefore, in my view, an important consideration.

The co-offender was involved in the same way. She pleaded at an early part in the proceedings and she was sentenced in a court with a different jurisdictional limit." (ROS 7.5)

25 In relation to whether a conviction should be recorded, her Honour said:

"With respect to the issue of conviction, I have considered this issue. This is a very serious offence. I note and observe that the person dealt with in the Children's Court did not have a conviction recorded against her. I am not bound by those Children's Court findings. I am of the view that to record a conviction for these two 19 year olds is appropriate, notwithstanding they were 17 years of age when this offence was committed. I take into account the serious nature of the behaviour and the circumstances of the offence. I take into account the need to address specific and more importantly, general deterrence, when imposing sentence." (ROS 8.5)

Ground 1: The sentencing judge erred in that the strength of the Crown case was taken into account when assessing the discount for the plea of guilty.

26 The applicants submitted that her Honour when referring to the strength of the Crown case was in fact referring to the utilitarian value of the plea rather than contrition and remorse. They submitted that such an approach was contrary to R v Sutton [2004] NSWCCA 225 at [12] where Howie J (with whom Studdert and Dunford JJ agreed) said:

"12 This Court has pointed out, time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence. ..."

Consideration

27 The applicants' submission is misconceived. Properly read her Honour was only referring to the strength of the Crown case in the context of an assessment of remorse and contrition. She was not giving any consideration to the utilitarian value of the plea. Her Honour was saying nothing more than that the strength of the Crown case weakened the extent to which the applicants could rely upon their plea of guilty as indicating remorse and contrition. In treating the matter in that way, her Honour's observation was fully in accord with R v Sutton.

28 This ground of appeal has not been made out.

Ground 2: The applicants suffer a justifiable sense of grievance when comparing the sentence imposed upon them with the sentence imposed upon their co-offender, AT (a child).

29 The applicants submitted that the recording of a conviction against them but not against AT constituted a marked and manifest disparity in sentencing so as to give rise to a justifiable sense of grievance on their part. They submitted that a recorded conviction could have serious consequences for their careers. They submitted that in order to satisfy the parity principle, this Court should intervene to remove the conviction recorded against them.

30 In support of that submission, the applicants relied upon the following matters: their ages and that of AT were generally similar, they were charged with a less serious offence, they like AT had pleaded guilty, they like AT had no criminal record and their subjective cases were very similar. The applicants also relied upon concessions made by the Crown in the sentence proceedings where the Crown accepted that parity existed between their circumstances and those of AT.

31 The applicants submitted that even though there were some differences between their circumstances and those of AT, the principle of proportionality needed to be applied. The applicants relied upon JM v R [2012] NSWCCA 83 where Simpson J (with whom Whealy JA and Hoeben J agreed) said:

"93 The second aspect of the observations extracted from Postiglione of present materiality is the question of proportionality. Even when differences, either in culpability, or in personal circumstances, or both, justify disparity in sentencing, then, nevertheless, due proportion between the sentences is to be applied."

32 The applicant also relied upon Sen v R [2013] NSWCCA 30 where Rothman J (McClellan CJ at CL and Bellew J agreeing) said:

"21 As has been explained many times, the principle of parity in sentencing derives from the application of the fundamental principle of equal justice: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 463; Postiglione v R [1997] HCA 26l; 189 CLR 295 (Per Dawson and Gaudron JJ) at 301-302, citing with approval Lowe v The Queen [1984] HCA 46; 154 CLR 606; Jimmy v R [2010] NSWCCA 60.

22 Equal justice is a fundamental norm (Green, supra) and an essential aspect of natural justice. It requires that like should be treated alike, and that which is unalike should be treated unalike in proportion to their "unalikeness": Andrews v Law Society of British Columbia (1989) 1SCR 143 per McIntyre J citing Aristotle's Ethica Nicomachea; R v Tiddy (1969) SASR 575."

33 The applicants submitted that any factors applicable to them and distinguishable from AT that justified the recording of a conviction in their case did not exist. They submitted that the recording of a conviction in their case gave rise to a "marked", "glaring" and "gross" disparity that required the intervention of this Court.

Consideration

34 I have concluded that the applicants do not have a justified sense of grievance when their circumstances and those of AT are considered in conformity with applicable principle. A sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 463 at [28].

35 Contrary to the applicants' submissions, the age of AT was not generally similar. She was 12 months younger than YG and 9 months younger than HL. When considering lack of maturity and appreciation of the seriousness of offending, such an age difference at that time of life is significant.

36 There was no evidence before the sentencing judge that either applicant had expressed any victim empathy, a matter which was noted by her Honour. In contrast, AT's background report stated that she "displayed a high level of remorse and victim empathy". It was accepted by the prosecutor that on the first occasion that the victim had been detained at the premises, AT had comforted her and provided her with some clothes to keep her warm as it was a cold evening.

37 In contrast with AT, the agreed facts indicated that the applicants had used force to intimidate the victim. On two occasions, on 13 August 2010 YG had dragged the victim from a couch and on 18 August had cut the victim's hair causing her to cry. On 18 August HL had kicked the victim in the ear (perhaps inadvertently), had spoken to her in an apparently threatening way causing her to write an "IOU" and had smashed one of her mobile telephones.

38 These matters provided a clear basis for her Honour differentiating between AT and the applicants. Even though the Crown had made a concession favouring the applicants, her Honour was not bound by that concession. On the contrary, her Honour was required to exercise her discretion quite independently of those submissions. It is clear from ([25] hereof) that her Honour gave particular attention to the question of whether a conviction should be recorded.

39 In view of the very real differences between the circumstances surrounding the offending by AT and by the applicants, it cannot be said that her Honour did not properly apply the principle of parity. Because of those differences, it could not be said that the difference in the sentences could be properly characterised as "gross", "marked", "glaring" or "manifest".

40 This ground has not been made out.

41 The orders which I propose are that leave to appeal should be granted but that the appeal should be dismissed.

42 BELLEW J: I agree with Hoeben CJ at CL.

**********

Decision last updated: 03 April 2014