DS v R

1. [1]

   MACFARLAN JA: I agree with Schmidt J.

2. [2]

   SCHMIDT J: In 2014, DS was convicted of six offences which he committed in January 2013, at the age of 16, after he had been asked to leave an 18th birthday party to which he had not been invited. DS injured a number of victims that night, one of them suffering a life threatening injury, when a steel rebar (a steel bar or rod used to reinforce concrete) which DS had thrown at that victim from the roof of a shed, pierced his skull and entered his brain. While the victim survived, he has been left with lifelong consequences, accepted on appeal to have been catastrophic.

3. [3]

   Solomon DCJ convicted DS of the most serious of his offences after a judge alone trial. DS entered pleas to the other offences at that hearing. DS later gave evidence at the sentence hearing. After receiving a 10% discount for his pleas DS was sentenced to an aggregate term of 12 years and 6 months imprisonment with a non-parole period of 8 years. He now seeks leave to appeal the severity of that sentence.

4. [4]

   DS’ offences were:

Leave to appeal out of time should be granted

1. [5]

   DS also seeks leave to appeal his sentence out of time under the Criminal Appeal Act 1912 (NSW). There was no objection to the Court granting that leave, which should accordingly be given.

The grounds of appeal

1. [6]

   The five grounds advanced were:

2. [7]

   Grounds 2 and 3 were not pressed.

3. [8]

   The case pressed on appeal was that Solomon DCJ had sentenced DS as if he were an adult, overlooking his age and failing to pay proper regard to the binding principles which apply when a juvenile such as DS is sentenced. Those principles required that his youth and immaturity be taken into account, particularly in reaching conclusions as to his moral culpability for his offending. The result was that the sentence imposed upon him was manifestly excessive.

4. [9]

   For reasons which follow, I consider that the appeal must be dismissed.

The circumstances of DS’ offending

1. [10]

   It was on 11 January 2013, that DS attempted to gain entry to the party, while in the company of four other young men. It was being held in the backyard of a home. His Honour found that he was then affected by both alcohol and ecstasy.

2. [11]

   About 80 people had been invited to the party by way of a private Facebook page. Only those on the guest list were permitted entry, with three people at the front of the property acting as security guards. Shortly before 11pm, DS and his companions were refused entry. DS then went to the rear of the property and climbed over the fence.

3. [12]

   When asked to leave, DS called out to the others to join him. He became aggressive when a torch was shone in his face, pushing the party holder backwards (count 5) and then punching a guest in the face (count 6). His Honour found that there was no evidence that either of these victims suffered any physical injury, but took account of the emotional effect of the offences in concluding that they were of moderate seriousness.

4. [13]

   His Honour found that DS then became enraged and his aggressive, violent behaviour deteriorated even further.

5. [14]

   DS climbed onto the roof of a shed and began throwing building materials which were stored there, including metal rebars of between 2.5 and 3.3 metres in length, with great force in a javelin-like manner, into the yard at the guests gathered there, while yelling “Fuck you … you bunch of fucking cunts”. His Honour described the violence then involved to have been high, with DS acting as if he was "shooting fish in a barrel”.

6. [15]

   One of the bars wounded a second guest in the head (count 1), causing catastrophic brain injuries which after surgery, have left him with cognitive impairments. These include slow speed of information processing and slowness in divided tasks. The victim also suffered permanent physical injuries which will affect him for the rest of his life, as well as ongoing emotional and psychological problems. His Honour described the results to have been tragic, they being the consequence of a high degree of violence which had resulted in extreme harm.

7. [16]

   The objective seriousness of this offence was found to have been of a high order. While not premeditated, the offence was found to be the result of an unprovoked, indiscriminately perpetrated attack on a group of people, including the victim, who were enjoying a peaceful, well-conducted party in the backyard of a suburban home.

8. [17]

   Another rebar then thrown by DS wounded a third guest (count 3), requiring two stitches and also causing both physical and emotional consequences for that victim. The objective seriousness of this offence, given DS’ conduct, the degree of violence used and the harm he caused, was found to have been of a moderate order.

9. [18]

   After he left the party, DS encountered yet another guest in the street who had left the party and was making his way home. DS punched him with a closed fist to the right side of the face (count 7), fracturing his right cheekbone and causing lacerations which required five stitches. His Honour found this to have been an offence of moderate seriousness.

10. [19]

    DS also acted aggressively towards others who he encountered in the street, before he ran away with two others. His Honour also found the objective seriousness of the affray offence (count 4) to have been of moderate seriousness, given DS’ unprovoked and indiscriminately perpetrated actions towards those enjoying this party.

11. [20]

    DS was arrested after he handed himself into police on 15 January 2013.

Ground 1 - Did the sentencing judge fail to pay proper regard to the fact that the offences other than count 1 could have been dealt with in the Children’s Court?

1. [21]

   Counts 3 to 7 involved offences which fell within s 18(1) of the Children (Criminal Proceedings) Act 1987 (NSW), none of them being “a serious children’s indictable offence,” as defined in s 3. This meant that the Court had a discretion as to whether these offences should be dealt with according to law, or under Division 4 of Part 3 of that Act, which permits the District Court to exercise the functions of the Children’s Court and so permits, in an appropriate case, the imposition of a good behaviour bond or release on probation.

2. [22]

   The provisions of s 18 were not addressed on sentence and no submission was advanced by either party that any of DS’ offences should be dealt with under s 18. Nor did his Honour refer to the section.

3. [23]

   In reality, however, none of the offences could have been dealt with under s 18. Count 1 could not be dealt with under s 18, given that it was a serious children’s indictable offence, as defined. Nor could any of DS’ other offences, because the exercise of the s 18 discretion depends on a consideration of the matters specified in s 18(1A), namely:

4. [24]

   Given the course of DS’ extremely violent conduct on the night that he committed all of the offences for which he was being sentenced, those considerations precluded counts 3 to 7 being dealt with under s 18. The evidence revealed that it was a matter of pure luck that other of DS’ victims were not more seriously hurt than they were and that he did not injure other guests, while hurling the rebars and building materials at them where they were standing together in the backyard.

5. [25]

   That well explained why neither the parties, nor his Honour referred to s 18, which simply could not have been given effect in DS’ case: see PD v R [2012] NSWCCA 242 at [62].

6. [26]

   His Honour was technically correct when he said that some of these offences could have been dealt with summarily. In the Local Court they attracted a maximum penalty of 2 years, while in the Children’s Court they attracted a maximum penalty of a 2 year control order. This observation has to be understood, nevertheless, in light of the parties’ submissions as to the provisions of the Children (Criminal Proceedings) Act; the principles which apply to the sentencing of child offenders; his Honour’s other sentencing remarks, to which I will turn in relation to ground 4; and the orders which were made under that Act.

7. [27]

   As observed in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [82]:

8. [28]

   No miscarriage or serious injustice has here been demonstrated. Leave to appeal on this ground should be refused.

Ground 4 - Did his Honour fail to take DS’ immaturity into account other than in relation to the issue of rehabilitation?

1. [29]

   The submission that his Honour overlooked that DS was a 16 year old offender and sentenced him as an adult may not be accepted. To the contrary, had he been sentenced on that basis, the orders which his Honour made under the Children (Criminal Proceedings) Act would not have been available to DS and it is likely that a longer sentence would have been imposed upon him.

2. [30]

   That would have been inevitable, given the nature and seriousness of all of the offending for which DS was being sentenced, when considered in light of the aggravating matters which had to be taken into account under s 21A(2) of the Crimes (Sentencing Procedure) Act. They include s 21A(2)(b) the use of violence; (c) the use of weapons; (d) DS’ record of prior violent offending; (eb) that some of DS’ offences were committed at a victim or other person’s home; (g) the catastrophic injury caused to one of his victims; (ib) the grave risk of death posed to that victim; (j) that DS was then at conditional liberty; and (m) the multiple victims and offences involved .

3. [31]

   It may also not be overlooked that his Honour found DS guilty of count 1 after a judge alone trial. DS later gave evidence on sentence, when he was aged 18 years. Then, both parties addressed the requirements of s 6 of the Children (Criminal Proceedings) Act and the principles discussed in KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22] - [26]. What was submitted on appeal to be an analogous case, AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203, where the offender had been sentenced to a term of 7 years imprisonment with a non-parole period of 3 years for another serious offence under s 33(1)(b) of the Crimes Act 1900 (NSW), was also the subject of submissions on sentence.

4. [32]

   Section 6 of the Children (Criminal Proceedings) Act provides:

5. [33]

   In KT v R, McClellan CJ at CL observed:

6. [34]

   The case advanced for DS on sentence was that the objective gravity of count 1, his s 33 offence, would not be determined alone by the severity of the injuries he had caused, but also by reference to matters which included that his acts had not been premeditated or planned, but spontaneous and impulsive, thereby reducing the level of his culpability; that there had been no gratuitous cruelty; that the duration of his acts had been short; that his impulsive behaviour had been fuelled by drugs, alcohol and feelings of anger and frustration at not being able to join the party, at a time when his judgment was impaired; and that all of his offending was linked.

7. [35]

   It was also submitted that counts 5 and 6 involved criminality at the lower end of the scale; that count 7 involved an unprovoked attack on a victim through no fault of his own, even though the scene was emotionally charged; that count 4 had elements intertwined with the other offences and double counting had to be avoided; that count 3 involved recklessness, but fortunately no substantial injury; and that DS’ multi-faceted course of criminal conduct was established on the evidence, but that the principle of totality required that a crushing sentence be avoided. In the circumstances, it was argued, it was appropriate to impose an aggregate sentence on DS for all of his offending.

8. [36]

   It was also urged that like in AM v R, it would be concluded that DS lacked maturity and so considerations of punishment and general deterrence would be given less weight than rehabilitation.

9. [37]

   DS’ subjective factors, it was submitted, would also lead to the conclusion that his offences were not a continuation of a violent course of conduct from a violent young man. In the result, findings of special circumstances were also urged.

10. [38]

    While his Honour did not accept all of the case so advanced for DS, from his sentencing remarks, it is apparent that his Honour took into account the considerations discussed in KT v R in light of the evidence as to DS’ age and immaturity, amongst the other relevant matters which arose for consideration on the evidence. Nor did he overlook the question of immaturity found in AM v R to have been a significant contributing factor.

11. [39]

    His Honour first referred to DS’ age at the beginning of his remarks, when he observed that the standard non-parole period of 7 years imposed for the most serious of his offences, count 1, did not apply to him because he was 16 years old at the time of his offending.

12. [40]

    His Honour also accepted that DS’ offending was unplanned, not premeditated, unprovoked and indiscriminately perpetrated, but did not accept on the evidence, that considerations of rehabilitation outweighed deterrence in his case.

13. [41]

    After reaching conclusions as to the objective seriousness of each of his offences, his Honour turned to the evidence of DS’ intoxication. DS had consumed approximately 20 standard drinks on the day of his offences and that night, when he committed his offences, he was under the influence of both alcohol and ecstasy. His Honour considered this to be very relevant to deterrence, which he found to be of “most importance” in sentencing DS. His Honour concluded that:

14. [42]

    On the evidence, despite DS’ age, those conclusions were well open. As discussed in IE v R (2008) 183 A Crim R 150; [2008] NSWCCA 70 at [16]:

15. [43]

    His Honour then dealt with DS’ record, which he found did not entitle DS to lenience, before observing that:

16. [44]

    His Honour took into account the reports in evidence, including that prepared by Ms Griffin some three months before DS committed the offences for which he was being sentenced and the report of Ms Hopkins, a psychiatrist who examined DS after his offending. He also took into account what was there said as to DS’ response to supervision, including a poor response to supervision in custody, as well as “on the credit side” the studies which DS was pursuing and his growing understanding of the impact of his behaviour on his victims, both addressed in Ms Griffin’s later report.

17. [45]

    While his Honour accepted that DS’ expressions of remorse were genuine, he had reservations about the likelihood that he would re-offend, given his record in custody.

18. [46]

    In relation to DS’ subjective circumstances, his Honour took account of DS’ record of truancy and disrupted schooling; his regular alcohol and drug consumption from the age of 15; and his self-description of being hot headed, quick to anger and involved in physical altercations against peers, amongst whom he was known to be a good fighter for his age. His Honour also noted that in detention DS had pursued anger management interventions and that testing revealed that he had reasonable intellectual resources and was functioning well.

19. [47]

    His Honour also took into account the opinion of Ms Hopkins, that:

20. [48]

    His Honour accepted that the subjective matters he had considered were of moment, but also took the view that it was necessary to take into account the very high order of objective seriousness of DS’ s 33 offence (count 1), and the other offences of violence which he had committed at the party, both before and after he committed the s 33 offence, and at a time when he was in breach of his bail conditions, both as to curfew and non-association.

21. [49]

    His Honour then explained that he had partially accumulated the indicative sentences he had arrived at, after applying the discounts for the pleas. He found special circumstances, accepting that DS would benefit from rehabilitation in the community and ordered, under s 19 of the Children (Criminal Proceedings) Act, that DS serve his sentence as a juvenile, until his 21st birthday, accepting Ms Hopkins’ recommendations as to the educational, vocational and therapeutic programs suitable for his needs available in juvenile detention.

22. [50]

    From all of these remarks and orders, it is simply not open to conclude either that his Honour overlooked the impact of DS’ age and immaturity in arriving at his sentence, or that he failed to consider the principles discussed in KT v R. To the contrary, it is apparent that both his age and the applicable principles were properly taken into account, notwithstanding the conclusions reached as to what was required in relation to deterrence.

23. [51]

    Given the gravity of the course of violent offending which DS had pursued, his Honour did not err in concluding that deterrence had a real role to play in his sentence, even though he accepted that given his age, rehabilitation was an important factor to take into account.

24. [52]

    Leave to appeal on this ground should also be refused.

Ground 5 – was the sentence manifestly excessive?

1. [53]

   In order to succeed on a severity appeal an applicant must establish that the sentencing judge has made an error in the exercise of his or her discretion: House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. That can be established by showing, for example, that the sentencing judge acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect the determination, mistook the facts or did not take into account some material consideration: Kentwell v The Queen (2014) 252 CLR 601 at [42]; [2014] HCA 17.

2. [54]

   There was no suggestion that his Honour erred by punishing DS twice for any common elements of his offences, a matter which he said he had taken care to avoid. It was rather contended that some of the indicative sentences arrived at were excessive, particularly in respect of those which could have been dealt with in the Children’s Court. So, too, was the aggregate sentence, given the seriousness of DS’ overall offending, particularly when considered in light of his youth and immaturity.

3. [55]

   These submissions cannot be accepted.

4. [56]

   After observing that DS’ subjective matters were of moment, his Honour said that sight could not be lost of the fact that count 1 was a most serious offence, attracting a maximum penalty of 25 years, the objective seriousness of which was of a very high order. While not introducing any element of double counting, his Honour also considered it to be relevant that DS’ other offences were committed both before and after count 1. He also took into account that at the time he was both on conditional liberty and in breach of his bail conditions as to curfew and non-association.

5. [57]

   The indicative sentences then given were:

6. [58]

   DS was sentenced to an aggregate sentence of 12 years and 6 months imprisonment, with a non-parole period of 8 years. That was the result, his Honour explained, of partial accumulation after application of the principle of totality.

7. [59]

   DS’ case on appeal was that the indicative starting point for count 1 was too high, given what had been a serious, but unplanned, unpremeditated offence committed by a young person. So, too, were the indicative starting points of 3 years in relation to count 3 and 3 years, 6 months for count 4, a starting point towards the top of the range of the Judicial Commission statistics.

8. [60]

   Count 5 was argued to have involved a very minor assault, not warranting a sentence of imprisonment, even if DS had been an adult, let alone a starting point of 10 months. Count 6 was argued to have involved an excessive starting point for an assault involving only a punch and count 7 as a starting point was also too high, even given the fractured cheekbone and laceration suffered by the victim.

9. [61]

   Even an adult offender, it was argued, would not have been sentenced to a term of imprisonment for the more minor of these offences. The result was an aggregate sentence outside the permissible range of dispositions for his offending: see AB v The Queen (1999) 198 CLR 111; [1998] HCA 46 at [130]. These submissions were supported by comparisons sought to be drawn with the other cases, including AM v R.

10. [62]

    These submissions may not be accepted.

11. [63]

    What must be resolved in respect of this ground is whether the aggregate sentence imposed on DS properly reflected the totality of the criminality involved in all of his offending, as well as the evidence as to all of the other factors relevant to that sentence, including both objective and subjective matters, considerations of general and specific deterrence and questions of totality.

12. [64]

    Indicative sentences are not themselves amenable to appeal, but they may reveal error in the aggregate sentence imposed. Even if indicative sentences are accepted as being excessive, that will not necessarily result in the conclusion that the aggregate sentence is excessive: see JM v R [2014] NSWCCA 297 at [40].

13. [65]

    While reasonable minds might differ about the indicative sentences imposed for DS’ more minor offences, the conclusions which his Honour reached as to their respective objective seriousness were open, given the evidence I have discussed. Further, it was also well open to his Honour to conclude that each of them warranted a term of imprisonment, even though that is a sanction of last resort, which should only be imposed if no other sentence is appropriate.

14. [66]

    Given the violent course of conduct in which all of DS’ offences were committed against people entirely unknown to him, after he became enraged by being asked to leave a party to which he had not been invited, offences which caused considerable harm to each of his victims, in one case catastrophic harm, that conclusion was properly available, notwithstanding DS’ age and immaturity.

15. [67]

    It was relevant to take into account that these were not planned or premeditated attacks and that DS is remorseful for them, as his Honour did. That DS has a significant need for rehabilitation, given his background of disrupted schooling and history of alcohol and drug abuse, earlier violent offending and commission of the serious offences for which he was being sentenced, while on conditional liberty and in breach of his conditions of bail, was also properly taken into account.

16. [68]

    However, so too was the nature and seriousness of each of the offences DS committed during his violent rampage. There was no error in his Honour’s conclusions about those matters, or in the conclusion that despite his youth, deterrence, both general and specific, had to feature in DS’ sentence.

17. [69]

    The aggregate sentence for which DS had contended also had to be arrived at in light of the maximum penalties imposed by the legislature for each of his offences: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31].

18. [70]

    In arriving at that aggregate sentence, his Honour had to apply the principle of totality, so as to avoid imposing a “crushing sentence”: see R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [17]. While the severity of a sentence which results from the application of that principle is not simply the product of a linear relationship, his Honour also had to avoid the suggestion that DS was being given a discount for his multiple offending: R v MAK at [18].

19. [71]

    Nor could the aggregate sentence imposed have the result of minimising DS’ offending conduct, or of obscuring or obliterating its range, or its totality: R v MJB [2014] NSWCCA 195 at [58] - [60].

20. [72]

    His Honour thus correctly approached DS’ aggregate sentence by way of partial accumulation. While his offences were committed during the same course of conduct, each of his offences were intentional, distinct and separate, involving as they did, different acts and victims. The criminality of one of DS’ offences could thus not properly fully encompass the criminality of the others: see R v Dunn (2004) 144 A Crim R 180; [2004] NSWCCA 41.

21. [73]

    His Honour arrived at an indicative sentence for count 1 of 10 years, it being an offence which attracted a maximum penalty of 25 years and which was properly found to have involved offending of a high order of seriousness. As I have explained, the conclusion which his Honour reached can only have resulted from the consideration which was given to DS’ youth and immaturity.

22. [74]

    The aggregate sentence imposed for all of DS’ offending was 12 years, with a non-parole period of 8. That revealed that his Honour’s approach also involved considerable concurrence of the indicative sentences given. In the circumstances I have discussed, there was no error in that approach. Nor has it been established that the result was a manifestly excessive sentence for all of DS’ offending.

23. [75]

    What was decided in AM v R and the other cases relied on in relation to different and overall less serious offending, does not establish that the sentence imposed on DS was manifestly excessive.

24. [76]

    A proper consideration of all of the matters that were relevant to fixing DS’ sentence, including the nature and seriousness of his offending and his personal circumstances, as well as the other matters which had to be taken into account when the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 was undertaken, does not leave open the conclusion that the aggregate sentence imposed on DS was manifestly excessive: see Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [60].

25. [77]

    In the result, while I consider that leave to appeal on this ground should be granted, the appeal must be dismissed.

Orders

1. [78]

   The orders I would propose are:

   1. (1)

      Leave to file the application for leave to appeal out of time is granted;

   2. (2)

      Leave to appeal on grounds 1 and 4 is refused;

   3. (3)

      Leave to appeal on ground 5 is granted; and

   4. (4)

      The appeal is dismissed.

2. [79]

   WILSON J: I agree with Schmidt J.