DA v R

1. [1]

   HOEBEN CJ at CL: I agree with Hamill J.

2. [2]

   FULLERTON J: I agree with Hamill J.

3. [3]

   HAMILL J: The applicant seeks leave to appeal against sentences imposed by her Honour Judge Wells in the District Court sitting at Lismore on 1 November 2013. The applicant, who was 15 years of age at the time of the offence, was sentenced along with two other juvenile offenders (AA and PW) following their pleas of guilty to two offences, the most serious of which was a charge of armed robbery with wounding which carries a maximum penalty of 25 years imprisonment: s 98 Crimes Act 1900 (NSW). There is a standard non-parole period associated with this offence but that period does not apply to juvenile offenders. Each of the offenders also pleaded guilty to a charge of assault occasioning actual bodily harm whilst in company (AOABH). AOABH in company carries a maximum penalty of 7 years imprisonment: s 59(2). That offence occurred during the course of the commission of the armed robbery offence.

4. [4]

   In addition to the offences to which he pleaded guilty, the applicant also asked that an offence relating to the use of a stolen motor car be taken into account on a Form 1 pursuant to the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW). The car was used to drive to the scene of the robbery.

5. [5]

   The applicant was sentenced as follows:

6. [6]

   The sentences were largely concurrent but there was an accumulation to the extent of 3 months. Thus, the total effective sentence imposed on the applicant was 4 years and 3 months with a non-parole period of two years and three months. The applicant is eligible for release to parole on 24 May 2015.

7. [7]

   The co-offender AA was sentenced to a term of imprisonment of 2 years with a non-parole period of 12 months and a wholly concurrent period of 9 months for the assault offence.

8. [8]

   The co-offender EW was sentenced to 3 years with a non-parole period of 18 months for the robbery offence and a wholly concurrent period of 9 months for the assault offence.

9. [9]

   There is no ground of appeal asserting that the disparity in the sentences gives rise to a justifiable sense of grievance. Apart from significant differences in the subjective cases, to which it will be necessary to make some reference in the course of this judgment, the facts showed that the applicant was the instigator of the offence.

10. [10]

    The applicant's notice of appeal raised two grounds and a third ground was added on the hearing of the appeal. The grounds as amended are as follows:

    1. (1)

       "Her Honour failed to address the applicant's "moral culpability" in relation to the offending behaviour, particularly in the light of the applicant's intellectual impairment and ADHD.

    2. (2)

       Her Honour failed to take into account the applicants intellectual impairment and ADHD in relation to the issues of;

    3. (1)

       Her Honour erred in inferring that it was DA who "bent down and punched" Mrs Wilson "to the face with a right closed fist on at least three occasions in quick succession" (ROS at 3.9), it, in effect being agreed between the parties (pursuant to s 191 of the Evidence Act 1995 (NSW) that Mr Wilson, who observed the incident, "was unable to specify which of the offenders did this" (see Agreed Statement of Facts - part of Exhibit 1 on sentence at page 3.3)."

11. [11]

    There was an agreed statement of facts. Her Honour recounted the facts in her judgment:

12. [12]

    The sentencing Judge described the applicant's personal case as follows:

Grounds 1 and 2

1. [13]

   In advancing these grounds the applicant placed great reliance on the contents of two Juvenile Justice reports dated 12 September 2013 and 29 October 2013. The applicant submits that whilst the sentencing Judge made some brief reference to the material in those reports, her Honour did not give effect to relevant sentencing principles concerned with young offenders and particularly young offenders who suffer from some intellectual disability. It is regrettable that the sentencing Judge was not provided with more direct and cogent evidence in relation to the matters which are subject to this appeal. There was no direct evidence from a suitably qualified expert.

2. [14]

   The report of 12 September 2013 indicated that his carer informed the Juvenile Justice officer that DA was going well in primary school until he began to have behavioural issues at 7 or 8 years of age. He was then diagnosed with "ADHD". He completed his first year of high school but his behaviour deteriorated and he was placed in special classes. The report indicated that he obtained "little schooling" when he was in the community. At 14 years of age he was in custody in juvenile centres and did some form of distance education. The report noted that since being in custody for the present offences he had been attending the year 10 programme. However, his attendance was described as sporadic and he had been involved in "incidents" that prevented him from attending. It was said that he had "good periods" but also "some not so good times". The report said:

3. [15]

   The report noted that DA had been a client of the Juvenile Justice Service since October 2012 and had been subject to bonds, probation orders and parole orders. He was described as "non-compliant with supervision" and "extremely difficult to supervise often [avoiding] appointments". The report concluded that supervision upon release was necessary although DA had requested that he not be subject to supervision.

4. [16]

   The report of 29 October 2013 said that DA had an "intellectual disability significant enough to be eligible for direct case management". The disability was described as a "mild intellectual disability and ADHD". It noted a "history of defiance and physically aggressive behaviour towards his peers".

5. [17]

   The second report also said:

6. [18]

   The report also noted that DA had some difficulties since being remanded in custody on 26 February 2013. He had been reclassified twice because of his violent behaviour and "can react violently when being teased and baited by fellow detainees" a reaction which "could be precipitated by his limited understanding and ability to express himself because of his intellectual disability".

7. [19]

   These were matters of real significance although, as I have said, the sentencing Judge was not assisted by the direct evidence of Dr Andrews or from any other qualified expert.

8. [20]

   The applicant relies on well-established and important principles concerning the sentencing of young offenders. He relies on the following passage from Slade v The Queen [2005] NZCA 19 at [43]:

9. [21]

   This passage was cited with approval by Kirby J in R v Elliot and ton [2006] NSWCCA 305; 164 A Crim R 208 at [127].

10. [22]

    Apart from the applicant's youth, principles relating to the sentencing of offenders suffering from intellectual disabilities and neurological or mental health issues were also engaged. It is well established that an offender's intellectual capacity may impact upon a sentencing exercise in a variety of ways, not all of which are dependent upon a causal link being established between the condition and the offending. In R v Israil [2002] NSWCCA 255 Spigelman CJ said at [21]-[26]:

11. [23]

    The complaint in ground one concerning the failure to take into account the applicant's intellectual impairment and ADHD in determining the offender's moral culpability is difficult to sustain when there was no evidence - at least no direct evidence - that the applicant's conduct was causally related to the conditions referred to in the Juvenile Justice report. Counsel for the applicant relies on inferences to be drawn from the substance of those reports and the applicant's behaviour.

12. [24]

    A further difficulty for this argument lies in the fact that the facts of the offence suggested that the applicant was not led astray by his peers. Rather the evidence suggested that he was the instigator of the offence. Further, the sentencing Judge found that the offence (at least from the point of view of the applicant) was premeditated to a certain degree. It was not an impulsive act. In this regard the sentencing Judge made the following findings:

13. [25]

    The learned sentencing Judge made specific reference to relevant principles concerning the sentencing of juvenile offenders. She said:

14. [26]

    The sentencing Judge in the present case took a more lenient approach to the sentencing of the co-offenders AA and EW. This was no doubt because there was more material placed before her to support a number of positive findings. In each case there were psychological reports providing direct evidence of their psychological functioning. AA was assessed as being in the "borderline range of intellectual function" with his IQ being above only 5% of his peers. The psychologist also noted features of attention deficit disorder. In summary, it was said that:

15. [27]

    The psychological report for EW referred to his early involvement in drugs resulting in "a degree of developmental lag where there is a delay in emotional and moral development".

16. [28]

    The applicant is correct that the sentencing Judge made no reference to the fact that the Juvenile Justice report indicated that the applicant was operating at a "level that is considerably lower than his biological age". Nor did her Honour make any reference to the question of whether this may have impacted on his impulsivity on the day of the offence or meant that he was influenced by peer pressure to involve himself in the offence. Such matters may, as the applicant correctly submits, have influenced an assessment of the applicant's moral culpability. However, as I have said, the Judge made factual findings which proved such a contention difficult to sustain. These were that DA was the only one of the offenders who had acted with some form of premeditation and also that he was the instigator of the offence.

17. [29]

    Her Honour specifically referred to the diagnoses of ADHD and mild intellectual disability. Against that, for present purposes, were her findings as to his role and premeditation and the evidence of his aggressive and violent behaviour and non-compliance with supervision. While I accept that it may have been preferable for Judge Wells to engage clearly with the principles to which the applicant has referred, I do not accept that her Honour failed to address the applicant's moral culpability or that, in doing so, she did not take into account the evidence of his intellectual impairment and ADHD. Accordingly, ground 1 must be rejected.

18. [30]

    As to ground 2, the evidence that incarceration would be more onerous as a result of his intellectual disability and ADHD was not particularly strong. The second juvenile justice contained the following:

19. [31]

    The report of Mr Holmes was not before the court and so the "high risk behaviours" to which reference was made was unexplained. Apart from the above passage, there was little, if any, evidence that the applicant was a person whose intellectual disability would make his time in custody more onerous. Her Honour made passing reference to the fact that the applicant did not respond well to being teased which suggests that she had read and considered this part of the report.

20. [32]

    Again, I am unable to accept that the sentencing Judge failed to take this evidence into account in relation to the issues of deterrence and whether the applicant's time in custody would be more onerous. Accordingly, ground 2 must also be rejected.

Ground 3

1. [33]

   The third ground of appeal concerns an inference that her Honour drew from the agreed facts. It was added at the hearing of the appeal and brief submissions were directed to it.

2. [34]

   The relevant part of the agreed facts were as follows:

3. [35]

   In recounting the facts, Judge Wells said:

4. [36]

   The applicant submits that the facts were agreed under s 191 of the Evidence Act 1995 (NSW) and that no submission was made by the prosecutor that DA was the person who hit Mrs Wilson three times. It is submitted that it was an error to draw this inference in those circumstances.

5. [37]

   The agreed fact that Mr Wilson was unable to identify the person who hit his wife three times was not a matter that prevented the Judge from drawing inferences from the fact that it was DA who had knocked her unconscious before that incident, that DA returned to where she lay after joining the assault of Mr Wilson and that it was DA who had asked her where the money was after that incident.

6. [38]

   Further, it is far from clear precisely what her Honour meant by saying "inferentially DA". It is true that later in the judgment she referred to the fact that "DA showed considerable actual violence, particularly towards Mrs Wilson". However, that was true on any view of the facts. On the evidence available, it was open to the sentencing Judge to infer that it was DA who was responsible for that action.

7. [39]

   While it has been submitted that the sentencing judge should have raised the matter with counsel and made plain the basis of her finding and whether it was being taken into account as an aggravating circumstance, this was a case where the young offenders were acting in concert and where the applicant was both the instigator and the only one of the young offenders to act with premeditation. The extent to which their precise roles within the premises would have impacted on the appropriate sentence is very doubtful. I would also reject ground three.

Conclusion and orders

1. [40]

   The sentence imposed on the applicant was a severe one for a person of his age. The grounds that have been taken on his behalf are matters of substance. Accordingly, I would grant leave to appeal. However, none of the grounds have been upheld and the appeal must be dismissed.

2. [41]

   Accordingly, the orders I propose are:

   1. (1)

      Application for leave to appeal granted.

   2. (2)

      Appeal dismissed.