Court of Criminal Appeal
Supreme Court
New South Wales

Medium Neutral Citation:

KG v R [2012] NSWCCA 10

Hearing dates:

6 February 2012

Decision date:

06 February 2012

Before:

Basten JA at 1 and 39;
RS Hulme J at 28;
Schmidt J at 37

Decision:

(1) Grant the applicant leave to appeal.

(2) Allow the appeal and set aside the sentence imposed by Colefax DCJ on 17 December 2010.

(3) Resentence the applicant -

(a) to a non-parole period of 18 months to date from 16 June 2010 and expire on 15 December 2011; and

(b) a balance of term of 12 months to date from 16 December 2011, expiring on 15 December 2012.

(4) Direct the release of the applicant to parole forthwith.

(5) Direct that the applicant's parole be subject to standard parole conditions, both general and in relation to supervised parole, a copy of which will be attached to the papers and provided to the applicant, and to the following additional conditions:

(a) to report to the Office of Probation and Parole at Orange within seven days of his release and

(b) comply with any reasonable directions given by the Probation and Parole Officer to attend counselling or to attend courses directed towards rehabilitation.

Catchwords:

CRIMINAL LAW - appeal - sentencing - assault with intent to rob whilst in company, with wounding - whether manifestly excessive

CRIMINAL LAW - appeal - sentencing - whether inappropriate reference to standard non-parole period - whether proper consideration given to principles in Children (Criminal Proceedings) Act 1987 (NSW), s 6

CRIMINAL LAW - appeal - sentencing - assault with intent to rob whilst in company, with wounding - parity between co-offenders

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A, 17, 19
Crimes Act 1900 (NSW), s 98
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A

Cases Cited:

Green v The Queen; Quin v The Queen [2011] HCA 49
Muldrock v The Queen [2011] HCA 39
R v Koloamatangi [2011] NSWCCA 288

Category:

Principal judgment

Parties:

KG - Applicant
Regina - Respondent

Representation:

Counsel:

Mr M J Johnston - Applicant
Ms J A Girdham - Respondent
Solicitors:

Legal Aid NSW - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent

File Number(s):

CCA 2010/151430

Publication restriction:

Non-publication order

Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-12-17 00:00:00

Before:

Colefax DCJ

File Number(s):

DC 2010/151430

Judgment

1BASTEN JA : The applicant is presently serving a sentence in a juvenile detention centre involving a non-parole period of two years and nine days. The sentence was imposed on 17 December 2010, but dates from the day of the applicant's arrest, namely, 16 June 2010. It will therefore expire on 24 June 2012; that is, in approximately four months time.

2His balance of term is one year four months and six days. Sentences of such precise duration give a false impression of mathematical calculation; it would have been entirely appropriate to round down the odd days.

3Why the matter has taken so long to come before this Court is not entirely clear on the papers available to the Court. However, the sentence was not imposed until 17 December 2010, at which stage the applicant was sentenced with one co-offender. The other two co-offenders were sentenced on 4 March 2011 by the same Judge, Colefax DCJ.

4One of the grounds of the proposed appeal is the lack of proportionality between the applicant's sentence and that of his co-offenders. Nevertheless, the proceedings were not commenced until 21 September 2011.

5The applicant was eight days past his seventeenth birthday at the time of the offence. Accordingly, there is a statutory prohibition on publication of his name: Children (Criminal Proceedings) Act 1987 (NSW), s 15A. The prohibition continues to apply, although the applicant is now over eighteen years of age.

6The offence for which the applicant was charged was one of assault with intent to rob whilst in company, with wounding, contrary to s 98 of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 25 years imprisonment. It also carried a standard non-parole period of seven years imprisonment, although that did not apply to the applicant being a person under 18 years of age at the time of the offence and would not have applied in any event, as he was sentenced on a plea of guilty.

7The offence was a serious children's indictable offence pursuant to s 3 of the Children (Criminal Proceedings) Act . He was, accordingly, liable to be dealt with according to law: s 17. However, he was entitled to serve his sentence as a juvenile offender: s 19.

Background to offence

8The background to the offence was as follows. There were four young persons involved in the criminal conduct which led to the applicant being charged. Each of the others was over 18 years of age at the time of the offence, Emily Davis being 19 years and four months, Darren Atcheson being 24 years and eight months, and Matthew Johnson being 22 years and six months. In the late afternoon of 10 June 2010 Atcheson, Johnson and Davis drove to the victim's house, which was in Orange. Their purpose was to purchase cannabis. The car in question, which belonged to Atcheson, was driven by Davis as Atcheson was affected by alcohol. Atcheson made his purchase whilst Davis and Johnson remained in the car. Atcheson observed a quantity of amphetamines in the house and on returning to the car suggested that they should rob the victim of the amphetamines. Johnson contacted the applicant by telephone and he agreed to accompany them, although he was not at that stage told of the detail of the plan. When he was collected in the car he was informed of the detail of the proposal, including the fact that Atcheson would be armed with a gun. Atcheson loaded the gun in the car. Although his Honour made no finding in this respect, it appears that there was a discussion as to the purpose of loading the gun and the possibility of firing a warning shot. There was also acceptance by the applicant that the purpose of the robbery was to obtain the drugs for the purpose of resale. In fact it was Johnson who carried the gun and the applicant armed himself with a hunting knife, which he had found in Atcheson's car and which apparently also belonged to Atcheson. The trial judge accepted that the purpose in carrying the gun was to scare the victim.

9Davis appears to have remained in the car whilst Johnson and the applicant entered by force. It appears that Atcheson, who was then known to the victim, also remained in the car. Johnson pointed the rifle directly at the victim and told him not to move and demanded money. The victim struggled with Johnson, grabbing the rifle by the barrel at which stage it appears that two shots were fired, one of which struck the victim, but, somewhat fortunately, caused a flesh wound only to the right side of his chest.

10The victim then picked up two large knives of an ornamental kind, at which stage Johnson ran out through the front door. The victim closed the front door before turning and seeing the applicant standing in the lounge room armed with a hunting knife. He then chased the applicant until he too was able to escape through the front door. During the chase a further shot was fired from outside the house. The shot struck the top of the oven in the kitchen, being the room in which the victim's de facto partner had been immediately prior to the entry of Johnson and the applicant.

11Quite properly, the trial Judge made an assessment of the seriousness of the offence, although in doing so he appeared to adapt the language of the provisions relevant to the standard non-parole period, describing the offence as "slightly below the mid range of seriousness of offences of this kind". He made the same assessment in respect of the offenders Johnson and Atcheson in the separate proceedings for their sentencing. It was, on one view, a lenient assessment in the circumstances given the fact that the offence took place in a residential home; it involved the use and discharge of a loaded firearm and the carrying of a hunting knife; when resistance was met the firearm was discharged on two occasions and on a third occasion to assist the escape of the applicant.

12The trial judge described the plan as "hastily put together" and "although each offender is equally culpable for the events which have occurred, it seems to be that the overall criminality of Ms Davis (because of her role of driver) and [the applicant] (because of his youth and particular vulnerability to peer group pressure) was somewhat less than the two older [offenders]". Ms Davis obtained a discount of 35% because of her early plea and because of her assistance to the authorities. The applicant received a discount of 25% for his plea. His Honour expressly identified the starting point for his calculation as four years six months imprisonment in respect of both offenders. In relation to the co-offenders, Johnson and Atcheson, he adopted a starting point of five years.

(1) Age of applicant

13The first ground of appeal was that the sentencing Judge failed to have sufficient regard to the applicant's age. That complaint had two limbs. The first was that he failed to have regard to the principles stated in s 6 of the Children (Criminal Proceedings) Act :

" 6 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:

...

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance;

...

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

...

(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..."

14Even if the sentencing judge is persuaded that a sentence of imprisonment is required (a conclusion unchallenged in the present case) principle (d) no doubt requires that the minimum appropriate term be imposed; otherwise the principles have no immediate operational significance.

15More importantly, it is clear that the sentencing Judge did take into account the age of the applicant, the fact that he had had learning problems at school, and was a quiet and withdrawn child. The sentencing Judge said that based on his evidence, "[t]he word 'reticent' would be an understatement in describing him": judgment on sentence, p 9. He was conscious of his demonstrated history of being easily led by others, which he took as diminishing his prospects of rehabilitation, although he found that his prospects were reasonable. He further noted that the applicant had responded well in custody and demonstrated ability as a capable student, and that he would have the support of his family upon release.

16Although the trial judge did not refer to the principles set out in s 6, it is apparent that he took into account matters that were relevant having regard to the circumstances of the case. The failure to refer to s 6 expressly does not constitute error in the circumstances.

17To the extent that there is a separate complaint with respect to the applicant's age, there can be no doubt, as the applicant conceded, that the trial judge was aware of his age. The suggestion that he did not take it into account in ways relevant to the sentence is fanciful.

(2) Use of standard non-parole period

18The second ground of appeal concerned the use by the sentencing judge of a standard non-parole period as a reference point. Since the judgment on sentence was delivered in this matter, the courts have had the benefit of the High Court's reasoning in Muldrock v The Queen [2011] HCA 39. The sentencing judge expressly stated, correctly, that the standard non-parole period did not apply to the applicant. He continued, "It is helpful nevertheless to make an assessment of the seriousness of the offence." The latter statement is also correct and is required by the general law as reflected in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (" Sentencing Procedure Act "). He then referred to where the offence fell by reference to "the mid range of seriousness of offences of this kind". That is not precisely the language of the Sentencing Procedure Act, s 54A(2), but it is clearly a similar test. As this Court explained in R v Koloamatangi [2011] NSWCCA 288 at [19], the test does not provide unambiguous guidance to the sentencing judge.

19Since Muldrock, it is clear that, even where the standard non-parole period is relevant, it cannot have "determinative significance" and it might be said, as in Muldrock itself, that it cannot have much weight at all in the circumstances of this case: see Muldrock at [32].

20Had the trial judge given any significant weight to the standard non-parole period, it may well be he would have erred. However, it does not appear that it had significant weight in the circumstances of the case. The standard non-parole period was seven years; the starting point for his calculation of the overall sentence was more than two years below the standard non-parole period; both the sentence and non-parole period imposed were so far below the standard non-parole period that it is not possible to infer that the standard non-parole period was given any significant weight in the exercise of sentencing. This ground is without substance.

(3) Sentence manifestly excessive

21Thirdly, it is said that the sentence was manifestly excessive. It is true that it was a lengthy sentence for a first offence by a young person. Nevertheless, it is necessary to bear in mind that the offence was a serious indictable offence for which he was dealt with according to law. Once it is accepted that his age was properly taken into account, this challenge must be rejected.

22There was also reference to the fact that relatives of the victim had attempted to assault the applicant whilst in pre-sentence custody, as a result of which he was moved to a different place of detention. Although he was freed of the fear of attack, his transfer made it more difficult for his family to visit and therefore made his incarceration, it was said, more burdensome.

23That factor was not referred to by the sentencing judge expressly, but it had limited weight in the circumstances of the case. According to the applicant's own evidence on sentencing, he was not aware of the imminent attack, which was thwarted by the prompt action of an officer of the juvenile justice centre, Orana. He made no complaint about the transfer, nor did he express the view that the circumstances of imprisonment were more burdensome in the centre at Emu Plains to which he was transferred. While the evidence of his mother, explaining the difficulties of visiting him at Emu Plains, indicated that he now received fewer visits from his family, the additional burden is not of the kind which would normally affect significantly the length of sentence for a serious indictable offence. This ground of challenge has not been made good.

(4) Disparity

24The fourth and arguably the most substantial ground of appeal relates to the question of alleged disparity. As the joint judgment in the High Court explained in Green v The Queen; Quin v The Queen [2011] HCA 49, "equality before the law" requires that those whose circumstances of offending are relevantly identical should receive the same sentence and those whose circumstances differ should receive sentences which are proportionately different: at [28] (French CJ, Crennan and Kiefel JJ). The majority held that the so called "parity principle" applies even where co-offenders have been charged with a different offence: at [30]. However, that was not this case, all four offenders being charged under s 98 of the Crimes Act .

25As explained above, the co-offenders Atcheson and Johnson received somewhat longer sentences than the applicant, who in turn received a lengthier sentence than Davis. They were not all sentenced at the same time, but they were sentenced by the same judge. Further, he expressly adverted in sentencing Johnson and Atcheson on 4 March 2011 to the sentences he had imposed on the applicant and Ms Davis.

26His Honour made a careful assessment of both the roles of each in the offending and of their individual circumstances. The argument for the applicant must be that, although there was disparity in the sentences, it was not sufficient to reflect the disparity between their ages and the roles they played in the offending. While it is possible that a greater level of disparity might have been considered, in my view the sentences provide no basis for a justifiable sense of grievance of any significance.

Conclusion

27For the reasons given, none of the specific challenges should be accepted. Nor has the applicant otherwise demonstrated that a lesser sentence is warranted at law. Because the applicant was under 18 years at the time of sentence, it is appropriate to grant leave to appeal. Nevertheless, in my view the appeal should be dismissed.

28RS HULME J : In light of Basten JA's summary of the facts of the matter and of the remarks on sentence of Colefax DCJ, I need not go over those matters again. I find it necessary to only deal with one ground of appeal and that is the ground of parity.

29I accept that the applicant in many respects conducted himself as an adult would. Furthermore, I accept that his criminality was not radically different from that of Atcheson and Johnson, albeit I would assess it at slightly less. Nevertheless, in my view, the difference of only six months between the starting points in the sentencing of Atcheson and Johnson of five years, and in the case of the applicant of four years and six months, was appellably insufficient when one has regard to the difference, indeed substantial difference, in the ages of Atcheson and Johnson, namely, about twenty-four and a half and twenty-two and a half respectively, and the age of the applicant, but one week over 17 years.

30The matter becomes a fortiori when one has regard to the evidence, which his Honour seemed to accept, that the applicant at school had demonstrated a history of being easily led by others, that that circumstance continued after leaving school, and that the applicant had a particular vulnerability to peer group pressure.

31His Honour erred in his starting point. The matter becomes even more apparent when one has regard to the fact that after the discounts for pleas are taken into account and the reduction to achieve the non-parole period is recognised, the difference between the non-parole periods of Atcheson and Johnson of two years and three months and on the applicant of two years and nine days is something under three months.

32The sentence under appeal has led to the applicant's incarceration for the first time. It is a substantial sentence for a first offence. The applicant's youth and the other matters to which I have referred required that his Honour adopt a greater difference between those offenders. I also think that the difference between that used, viz, six months, and that which should have been used can only be described as substantial and, in those circumstances leave to appeal should be granted, the appeal should be allowed, the sentence imposed on the applicant by Colefax DCJ quashed and the applicant should be re-sentenced to imprisonment for a non-parole period of 18 months with a balance of term of 12 months.

33In arriving at such a sentence, I have regard to the fact that since the applicant was sentenced the evidence would suggest his prospects of rehabilitation are significantly higher than as assessed by Colefax DCJ.

34If the view which I hold is that of a majority of the Court, it will be necessary to direct the applicant's release to parole but before any such course is embarked upon, both the Crown and counsel for the applicant should have an opportunity of considering whether any particular conditions of parole should be imposed.

35SCHMIDT J : I agree with the observations of Hulme J. For the reasons his Honour has given, I have come also to the view that there are relevant differences between the co-offenders, differences which should have been proportionally reflected in the sentence imposed on this applicant which were not.

36In the circumstances, I agree with his Honour as to the orders which should be made.

37BASTEN JA: In accordance with the opinion of the majority, the Court makes the following orders: