CA v R - NSW Caselaw - Summary PDF

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Court of Criminal Appeal Supreme Court New South Wales

Medium Neutral Citation: CA v R [2019] NSWCCA 93

Hearing dates: 29 March 2019

Decision date: 08 May 2019

Before: Hoeben CJ at CL at [1]; Garling J at [91]; Hidden AJ at [130]

of term of 1 year and 8 months concluding on 28 August 2021. (5) Order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that th the sentence be served as a juvenile offender.

Catchwords: CRIMINAL LAW – sentence appeal – specially aggravated break and enter and co serious indictable offence – applicant sentenced to imprisonment for 3 years and 9 with a non-parole period of 2 years – applicant aged 12 years and 10 months – 78 woman severely beaten with bricks and a piece of wood – significant psychologica physical injuries – lack of contrition and remorse – whether proper allowance made applicant’s youth – whether proper allowance made for immaturity and impulsivene – whether proper allowance made for applicant’s deprived and violent background too much weight given to protection of community – whether proper allowance mad in custody solely related to this offence – whether totality properly taken into accou whether sentence was manifestly excessive – one appeal ground made out – re-se

Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) – ss 6, 19, 33(1)(e) Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Crimes Act 1900 (NSW) – s 112(3) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(2)(g)

Cases Cited: Aslan v R [2014] NSWCCA 114 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Ciaron McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSW Engert v R (1995) 84 A Crim R 67 Hughes v R [2018] NSWCCA 2 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Lehn v R [2016] NSWCCA 255; 93 NSWLR 205 MS2 and Ors v Regina [2005] NSWCCA 397 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 249 CLR 600 R v Pham & Ly (1991) 55 A Crim R 128 Regina v Fernando [2002] NSWCCA 28 Vaiusu v R [2017] NSWCCA 71

Category:

M Johnston SC – Applicant B Hatfield – Respondent Crown Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2018/30016

Publication restriction: Non-Publication order re identity of complainant and offender

Decision under appeal Court or tribunal: District Court of NSW

Jurisdiction: Criminal

Date of Decision: 14 September 2018

Before: Marien SC ADCJ

File Number(s): 2018/30016

JUDGMENT 1

HOEBEN CJ at CL: The applicant is a juvenile so that the provisions of the Children (Criminal P Act 1987 (NSW) (the Children’s Act) apply. In order to protect the identity of applicant and his co-offender in the primary judgment, the sentencing judge the applicant as “CA” and to the co-offender as “AD”. I have continued that nomenclature in this judgment so that it can be read conveniently with the p judgment. Accordingly, references to “the applicant” are references to “CA”.

2

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1

The standard non-parole period of 7 years does not apply to the applicant b was a juvenile. The co-offender, who was also a juvenile, was charged with offence. 4

The applicant was born in January 2005 and the co-offender was born in M Accordingly, at the time of the offending the applicant was aged 12 years an months and the co-offender was aged 17 years and 6 months.

5

Pursuant to s 17 of the Children’s Act, the applicant was dealt with accordin was sentenced to a term of imprisonment of 3 years and 9 months, commen November 2018, and expiring 5 August 2022. There was a non-parole perio which will expire on 5 November 2020. Pursuant to s 19 of the Children’s Ac sentence was ordered to be served as a juvenile offender in juvenile detent applicant was afforded a 25 per cent discount for his early plea of guilty.

6

The co-offender was sentenced to a term of imprisonment of 6 years, comm December 2018, and expiring 10 December 2024 with a non-parole period expiring 10 December 2022. His Honour directed that the whole of the sente served by the co-offender as a juvenile offender in a juvenile detention cent

Factual background 7

The offence was committed on 19 November 2017. At this time, the applica subject to a 12 month probation order, pursuant to s 33(1)(e) of the Children the offence of steal from the person as well as a 6 month bond for goods in Those orders were imposed on 12 July 2017 at the Moree Children’s Court.

8

The sentencing judge had a statement of agreed facts before him. The victi 78 at the time of the offence. She resided in Boland Street, Moree. She had address for 17 years. In October 2016 her husband passed away and there lived at the address by herself.

9

On 19 November 2017, at around 8.15pm the victim’s daughter and grandd came to the house to collect a suitcase because the three were due to leave cruise the next day. The victim went to bed immediately after her daughter a granddaughter left the house at around 8.20pm. As was her habit, she close door in her house except the door to the toilet and the door to her bedroom

10

The victim had been lying in her bed for about five minutes when she heard crashing sound like glass breaking She got out of bed walked to the kitche

The victim saw a male slide the glass door open and the applicant and his c entered the house. She said “[g]et out of my house, you have no right to be offenders laughed and swore at her. 12

The victim saw that both offenders were holding bricks in their hands. One o walked past her to a bedroom, opened the door and looked inside. He close walked back past her and stood with the other offender. The other offender brick at the victim which struck her on the face. The first offender then threw which also struck her on the face. She fell to the ground and described bein pain from these impacts.

13

The victim was then hit by a piece of timber. It is not known which of the offe committed this act, but DNA matching that of both the applicant and the cowas found on a piece of timber recovered from inside the house. One of the stepped over her and opened the door to the lounge room, walked in and re short time later with her handbag.

14

The victim said “[w]hat are you doing with my handbag?” The offender, who holding her bag, laughed at her. Her face and hands were covered in blood attempted to use her telephone to obtain help, but did not have her glasses unable to do so. She also attempted to activate a security alarm within the h again failed because she was not wearing her glasses.

15

Somehow the victim was able to walk out of the house and knocked on her door for help. An ambulance was called and she was taken to hospital. A re Angus Brown, dated 5 April 2018, set out the injuries suffered by her:

16

(a)

an open displaced nasal fracture;

(b)

fractured right zygoma, right orbit, right maxillary sinus; and

(c)

significant bruising over her left eye which was unable to open swelling.

Photographs were taken of the victim in hospital and it was obvious from tho photographs that she had received a very severe beating. In the photograph were so swollen that she could barely open them. The photographs also sh number of abrasions and cuts to her body, and substantial parts of her nigh covered in blood.

17

There was significant bruising over the right side of the victim’s face under t eye, an open wound over the bridge of her nose and abrasions and skin tea

were locked. When the officers were unable to persuade anyone inside to o the permission of the occupant, they lawfully forced entry into the premises. arrested the applicant without incident. 19

When the applicant was interviewed by police, he said that he was aware of breaking into the house but that he was not involved.

20

On 29 January 2018, the co-offender was brought to the Grafton Police Sta was arrested. He was charged, but exercised his right to silence.

21

The DNA of the applicant was discovered on a brick found inside the house was located on the inside of the victim’s purse. Her handbag was recovered in Australian currency, withdrawn the day before (being money that she inte take with her on the cruise beginning 21 November 2017), was gone.

22

The victim did not return to her home after the offence because she was too her safety. On leaving hospital, she went to her daughter’s house and only r her house during the day because she was too frightened to stay overnight.

23

The victim subsequently sold her house in Moree and moved to Queenslan her son. She accepted an offer very soon after the house was placed on the and the sale was at a considerable financial loss to her. The majority of her possessions and furniture had to be sold or given away because they would her son’s already furnished house.

24

The victim’s husband of 52 years, who passed away in October 2016, was b Moree. Before this offence, she would visit his grave every week. Since the was able to visit his grave only once. She had purchased a double plot so th could be buried with her husband when she passed away. Because she now Brisbane, her family will be put to significant expense in facilitating her buria husband.

25

The victim’s relocation to Brisbane has significantly affected her in terms of feels as a consequence of the additional burden placed on her son and dau law. She requires assistance to travel to all of her medical appointments and and daughter-in-law have been unable to relocate closer to her son’s place employment because the victim needs to be near to Redcliffe Hospital for h appointments.

26

By way of further background, on 31 January 2018 the applicant made a tel f

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FEMALE – It’s terrible what you did to her, you shouldn’t laugh about it. APPLICANT – Huh. FEMALE – You shouldn’t laugh about it ‘cos it’s not a joke what you did. APPLICANT – What happened? MALE – It’s not a joke what you did … don’t laugh about it. APPLICANT – I laugh about it every night when I in my room when I’m bo out my window.”

27

The sentencing judge characterised that telephone conversation as showing time (approximately two months after the offence) the applicant had a total l understanding of the seriousness of what he had done. The sentencing judg that the conversation showed a callousness on the applicant’s part concern in committing the offence. His own counsel described the offence as “despic

Sentence proceedings 28

On the basis of the facts set out above, the sentencing judge assessed the be of a high order of seriousness. He described the acts which constituted t as callous and cruel in the extreme. His Honour found that the cruelty was t gratuitous in the sense that it involved “needless yet intentional violence com simply to make the victim suffer” (Ciaron McCullough v R [2009] NSWCCA 9 Crim R 439 at [30]).

29

His Honour observed: “[c]rime and indeed serious crime committed by juveniles can often be exp arising from the immaturity and impulsiveness of youth; see Hearne v R (2 Crim R 451; but this calculated, cruel and callous attack by these offender with bricks and a piece of timber on an elderly vulnerable woman alone in at night, was clearly an act not borne from the immaturity and impulsivity o was an act borne from darker recesses which I am unable to fathom.”

30

The sentencing judge found that the emotional harm caused to the victim w substantial so as to aggravate the offence in accordance with the provisions (g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Honour found that the offence was further aggravated by the following facto (1)

the offence was committed in the home of the victim;

(2)

the offence involved the actual use of a weapon;

(3)

the offence was committed in company;

(4)

the offence involved gratuitous cruelty which elevated its objective se

Taking all those matters into account, the sentencing judge assessed the ob seriousness of the offending as “at the upper level of objective seriousness of this kind” (Sentence judgment 8.5). 32

The sentencing judge noted that the applicant was not assisted by his crimi which was extensive, albeit that of his co-offender was more serious and mo extensive.

33

His Honour found that although there was a difference in the ages of the off five years, the applicant was not led into the offending or influenced by the c to commit the offence. The applicant specifically denied that proposition whe Juvenile Justice officers. The applicant told those Juvenile Justice officers, w prepared the background report in relation to him, that on the day of the offe met with the co-offender in the late afternoon and went to a cousin’s house proceeded to consume both marijuana and alcohol. The applicant said that co-offender “kicked back” at his cousin’s house and then went in search of a break into for money. His Honour noted that this account was “completely a another account given by the applicant to a Juvenile Justice officer which w effect that the co-offender had suggested that they break into a house and t both agreed on the victim’s home because they knew that a “white person”

34

Because the applicant did not give evidence in the sentence proceedings, h was not able to resolve that issue.

35

The sentencing judge then considered the subjective case of the applicant. absence of oral evidence from him, his Honour relied upon the background Juvenile Justice, dated 31 August 2018, and the psychological report from J Justice of the same date. A Mr Spence from Family and Community Service who was the Director, Community Services for New England, gave evidence of the applicant.

36

The background report stated that the applicant was a young, indigenous m and raised in Moree. He had a disturbed and highly dysfunctional upbringin parents had spent long periods of time in custody throughout his life. His tw brothers had also spent time in both juvenile and adult custody.

37

The report stated that his family dynamics were a contributing factor to his o behaviour. The applicant was taken into the care of the Minister in January he entered into care there had been great difficulty in maintaining authorise

In his evidence, Mr Spence conceded that in some respects FACS had faile interventions they had thus far provided for the applicant. He described the that properly caring for the applicant had presented in the past. 39

The psychological report stated that the applicant was exposed to significan events in his formative years. Up to the age of 11 he was part of a family co poverty, domestic violence, substance abuse and offending. As a result, his behaviour had been largely normalised and encouraged through the social environment in which he was raised. The report referred to entrenched inter generational offending and pro-criminal attitudes which existed in his family background.

40

Psychometric testing placed the applicant’s cognitive functioning in the extre range. He had difficulty with the daily activities required to be performed by personal and social sufficiency. The report identified the applicant as having longstanding difficulties with hyperarousal and low frustration tolerance. The linked his underdeveloped cognitive functioning and impaired problem solvi his family background.

41

The sentencing judge noted the following part of the psychological report as concern: “[w]hilst he initially engaged in avoidant type behaviour to manage these d over time, he has become increasingly likely to engage in verbal and phys aggression.” (Sentence judgment 11.9, psychological report 8.9)

42

The sentencing judge set out his conclusions as a result of that material as “[d]espite the reference in the report to several strengths, including his atta his family and mentor, his eagerness to engage in education and his curio willingness to learn about his indigenous culture and background, my asse to the prospects of rehabilitation on the evidence presently before me mus guarded.” (Sentence judgment 12.2)

43

It was accepted that the applicant had pleaded guilty at the first reasonable His Honour allowed a 25 per cent discount for the utilitarian value of the ple

44

Because the applicant did not give evidence in the sentence proceedings, t sentencing judge was not prepared to find that he was remorseful and contr he had done. On that issue, his Honour was influenced by the telephone co to which reference has been made. When asked about that conversation, h unable to explain it. Moreover, in the Juvenile Justice reports, he was unabl why he armed himself with a brick before entering the victim’s home

The sentencing judge was conscious of the principles relating to the senten juveniles and in particular that he had to take into account s 6 of the Childre This required his Honour to take into account that children who commit offe responsibility for their actions but because of their state of dependence and require guidance and assistance. His Honour also noted the philosophy beh legislation, i.e. that it was desirable that children who commit offences be as rehabilitation and re-integration into the community so as to sustain family a community ties. 47

His Honour took as his guidance the following observations by McClellan CJ KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[23]: “22 The principles relevant to the sentencing of children have been discu many occasions. Both considerations of general deterrence and principles retribution are, in most cases, of less significance than they would be whe sentencing an adult for the same offence. In recognition of the capacity fo people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A C at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WAC Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. 23 The law recognises the potential for the cognitive, emotional and/or p immaturity of a young person to contribute to their breach of the law. Acco allowance will be made for an offender’s youth and not just their biological Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weigh given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the o significant factor in the commission of the offence, the criminality involved than if the same offence was committed by an adult. (Hearne at [25]; MS2 Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).”

48

Having set out that statement of principle, his Honour said: “As I have stated earlier in these reasons, it is difficult to see, with the high seriousness of the offence committed by these offenders, how it could be this offending was born from th...