Cowan v R

1. [1]

   BATHURST CJ: In this matter, I have had the advantage of reading the judgments of Simpson J and Bellew J in draft.

2. [2]

   I agree with the orders proposed by Bellew J and, subject to what I have written below, with his Honour’s reasons.

3. [3]

   For the reasons given by Simpson J, I have some doubt whether the sentencing judge properly took into account the applicant’s youth in imposing the sentence. However, having regard to the applicant’s success on the other grounds of appeal, it is unnecessary to pursue the matter further.

4. [4]

   SIMPSON J: I have read in draft the judgment of Bellew J. I agree with the orders proposed, and with his Honour’s reasoning in respect of Grounds 1 and 3, and his proposed disposition of Ground 4. I express some hesitation as to his Honour’s reasoning in respect of Ground 2, concerning the applicant’s youth and immaturity.

5. [5]

   The relevance of youth and immaturity in sentencing is well established. It is an important sentencing consideration, for reasons stated in many cases, for example R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 and BP v R [2010] NSWCCA 159; 201 A Crim R 379, and the many cases cited therein. In my opinion, the obligation to give adequate consideration, in a particular case, to the youth and immaturity of the offender is not discharged by mere reference to the offender’s age, or to the offender as a “young person”. Merely to note the age or youth of an offender, in such a way as to demonstrate that the sentencing judge is aware of the offender’s age, is not sufficient to show that the appropriate sentencing principles were taken into account.

6. [6]

   In this case, the applicant was 18 years and 4 months at the time of the offending. The evidence established clearly that his youth and immaturity materially contributed to his decision to participate. However, in the circumstances of this case, those factors were integrally entwined with this intellectual disability. Both factors were relevant to the assessment of the applicant’s moral culpability for the offence. It was not, of course, necessary - and it was not desirable - that the judge specify any reduction he made relevant to each of those factors. But it was necessary that he make clear that he took all relevant sentencing considerations into account. I am not persuaded that the applicant’s youth and immaturity did go into the overall evaluation of moral culpability.

7. [7]

   Notwithstanding that, I am satisfied that the sentence proposed by Bellew J adequately encompasses all relevant sentencing considerations, including the applicant’s youth and immaturity.

8. [8]

   I agree with the orders proposed.

9. [9]

   BELLEW J: Glen Eric Cowan (“the applicant”) pleaded guilty before the Local Court to an offence of aggravated break and enter and commit serious indictable offence (namely larceny) contrary to s. 112(2) of the Crimes Act 1900. The maximum penalty applicable to that offence is 20 years imprisonment. A standard non-parole period of 5 years is prescribed.

10. [10]

    The applicant adhered to that plea in the District Court and asked the sentencing judge to take into account two additional offences contained on a Form 1, namely:

11. [11]

    Both of the matters on the Form 1 arose at or about the time of the offending in [9] above.

12. [12]

    On 25 June 2014, the applicant was sentenced by Acting Judge Black to imprisonment for 3 years and 9 months with a non-parole period of 2 years and 3 months. The applicant now seeks leave to appeal against that sentence on the grounds more fully set out below.

THE FACTS

1. [13]

   Between about 9:40pm on 2 September 2013 and 1:50am on 3 September 2013 a Nissan Patrol (“the vehicle”) was stolen from a residence in the northern NSW township of Casino. At about 1:53am on 3 September 2013 the vehicle entered a service station and pulled up to a petrol pump. A person later identified as the applicant got out of the vehicle. His carriage in the vehicle up to that time was the subject of the first of the matters contained in the Form 1.

2. [14]

   The applicant was seen on CCTV footage to cover his hands with the sleeves of his jumper before filling the vehicle with fuel. A security guard observed that the driver of the vehicle had not shut down the engine while it was being refuelled. This caused the security guard to think that the driver may leave without paying for the fuel. Because of this he wrote down the vehicle’s registration number.

3. [15]

   The applicant put 24.44 litres of fuel, the value of which was $37.96, into the vehicle. The applicant got back into the vehicle and it was driven away without paying for the fuel. The failure to pay for the fuel is the subject of the second of the matters on the Form 1.

4. [16]

   At about 2:39am on 3 September 2013 CCTV footage recorded the vehicle in the township of Evans Head, where it was seen to reverse from the road straight through the front doors of a bottle shop which was adjacent to the Illawong Hotel. As a result of the impact, the doors of the bottle shop (which were closed and locked at the time) were shattered. Six people, one of whom was the applicant, got out of the vehicle and ran inside. The applicant, who was wearing socks on his hands, pulled the hood of his jumper down over his face. Along with his co-offenders he ransacked the bottle shop and stole alcohol, cigarettes and cigarette lighters before leaving in the vehicle. The cost of repairs to the premises was $8,209.50. The value of the stock which was stolen was $8,093.07.

5. [17]

   The vehicle was recovered, burnt out, at about 8:30am on 3 September 2013 in a park in Casino. A search of the nearby area resulted in the seizure of (inter alia) a “Bic” brand cigarette lighter, identical to the type stolen from the bottle shop.

6. [18]

   The applicant was recognised by a police officer who viewed the CCTV footage taken at the bottle shop. Police then attended premises where they located a number of people including the applicant. Bottles of alcohol, cigarettes and cigarette lighters identical to those stolen during the raid were seized from various rooms within the premises. Other items seized included a pair of black tracksuit pants in which police located packets of cigarettes, a cigarette lighter and a wallet containing the applicant’s identification. In another bedroom police located a green coloured jumper that the applicant was seen to be wearing on the previous evening.

The evidence before the sentencing judge

1. [19]

   There was considerable evidence before the sentencing judge concerning the applicant’s mental state.

2. [20]

   Firstly, there was correspondence dated 11 October 2012 from Ian Nisbet, a senior specialist psychologist from the Forensic Mental Health Program of Juvenile Justice. Mr Nisbet reported that following assessment, the applicant’s FSIQ score was found to be 44.

3. [21]

   Secondly, a case note tendered to the sentencing judge recorded the details of a consultation between the applicant and Ms Katie Stephen, psychologist on 21 March 2014. The case note documented the results of an assessment of the applicant’s cognitive functioning as follows:

4. [22]

   The assessment of the applicant’s level of cognitive functioning was later amended to mild as opposed to moderate.

5. [23]

   Thirdly, there was a pre-sentence report dated 27 February 2013. It described the applicant’s level of engagement throughout the interview as “limited”, and his cognition as “significantly affected”. The author of the report went on to state:

6. [24]

   The author also stated:

7. [25]

   Finally, a report from Professor David Greenberg, psychiatrist, dated 2 June 2004 was tendered before the sentencing judge. Having examined the applicant’s mental status, Professor Greenberg’s provisional diagnoses included:

8. [26]

   Professor Greenberg went on to say the following:

The sentence proceedings

1. [27]

   The submissions made to the sentencing judge by the applicant’s solicitor regarding the applicant’s mental state commenced at T15 L36:

2. [28]

   Having quoted from that part of the report of Professor Greenberg regarding the likely benefits of counselling, the applicant’s solicitor continued (commencing at T16 L5):

3. [29]

   No further submission was made regarding the applicant’s mental state. In particular, no reference was made to the principles regarding the sentencing of mentally ill offenders.

4. [30]

   The Crown’s written submissions on sentence did not address the issue of the applicant’s mental state. However in oral submissions in reply the Crown (commencing at T18 L23) expressly acknowledged the applicant’s “undoubted intellectual disability”. Nevertheless, the Crown submitted that the applicant knew that his offending was wrong and that this circumstance necessarily reduced the weight to be given to his mental state.

5. [31]

   Whilst acknowledging that the matter may not be “clear cut” the Crown continued (commencing at T18 L48):

The findings of the sentencing judge

1. [32]

   The sentencing judge said the following (commencing at ROS 3):

2. [33]

   Having accepted that the applicant came from a disadvantaged and deprived background, his Honour then said (at ROS 4):

3. [34]

   His Honour made no specific reference to the principles applicable to sentencing mentally ill offenders.

Submissions of the applicant

1. [35]

   It was submitted on behalf of the applicant that the sentencing judge had failed to consider whether:

2. [36]

   It was submitted that in these circumstances, the sentencing judge had fallen into error by failing to consider and apply the principles relevant to the sentencing of mentally ill offenders.

Submissions of the Crown

1. [37]

   The Crown pointed out that no submission was made on behalf of the applicant to the sentencing judge regarding:

2. [38]

   The Crown argued that in circumstances where the submissions made on behalf of the applicant were restricted in the way that I have outlined, the absence of any reference by the sentencing judge to the applicant’s suitability (or otherwise) as a vehicle for general deterrence was unremarkable, and was not indicative of error. The Crown also relied on the fact that the sentencing remarks had been delivered ex tempore, immediately following submissions.

Consideration

1. [39]

   It has been observed by this Court on a number of occasions that it is inappropriate to take an overly critical approach to reasons for sentence which are delivered ex tempore, immediately following sentencing proceedings: see for example Gommesen v R [2012] NSWCCA 226 per Garling J at [37]-[38], McClellan CJ at CL and McCallum JJ agreeing; Warner aka Jeremy Pachenko v R [2013] NSWCCA 10 per S Campbell J at [33], Hoeben CJ at CL and Davies J agreeing. However even when full allowance is given to that circumstance in the present case, I am persuaded that ground 1 has been made out.

2. [40]

   There was considerable evidence before the sentencing judge regarding the applicant’s mental state. In these circumstances, and notwithstanding the absence of any specific submission as to the principles governing the sentencing of mentally ill offenders, the sentencing judge was under an obligation to consider those principles and, if appropriate, to apply them. I am fortified in that view by the recent observations of Price J (with whom Hidden and Schmidt JJ agreed) in Martin v R [2015] NSWCCA 6 at [53]:

3. [41]

   In the present case, there was a similar evidentiary focus upon the applicant’s mental health. The sentencing judge was under the obligation to which Price J referred. That extended to an obligation to consider the principles set out by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]-[178] regarding the relevance of mental illness on sentence. In my view, the sentencing judge failed to discharge those obligations and accordingly this ground is made out.

4. [42]

   As error has been found, the provisions of s. 6(3) of the Criminal Appeal Act 1912 (NSW) are enlivened. In these circumstances it is the duty of this Court to exercise the sentencing discretion afresh in the manner outlined by the plurality in Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947 at [42]-[43]. In doing so, the court must take into account all relevant statutory requirements, and all relevant sentencing principles: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 per Spigelman CJ at [19], cited with approval in Kentwell at [42].

5. [43]

   I will return to these issues after considering the remaining grounds.

The evidence before the sentencing judge

1. [44]

   The applicant was born on 21 April 1995. He was therefore 18 years of age at the time of the offending and 19 at the time of sentence. His sister gave evidence in the sentence proceedings (at T10 L14-21) that he was easily influenced by others and that he sometimes found it hard to make the right decisions.

2. [45]

   The applicant’s solicitor made the following submissions to the sentencing judge as to the relevance of the applicant’s age (commencing at T15 L3):

3. [46]

   Although there were subsequent references (at T16 L17 and 21) to the applicant’s age, such references were in the context of the applicant’s difficult upbringing.

The findings of the sentencing judge

1. [47]

   At the outset of his reasons the sentencing judge (at ROS 1) expressly referred to the fact that the applicant was aged 19 and had been in custody since the date of his arrest. He referred to him in the course of the remarks on sentence as a “young man” (at ROS 3.7 and 3.9). He expressed the view (at ROS 3.9) that he was “vulnerable” as a consequence of his youth.

Submissions of the applicant

1. [48]

   It was submitted on behalf of the applicant that the sentencing judge had failed to consider and apply the principles relevant to the sentencing of young offenders, and had made no reference to having taken into account the applicant’s youth when determining sentence.

2. [49]

   It was submitted that the applicant’s youth and immaturity, particularly in the light of his intellectual disability, had contributed to the commission of the offence and that there was evidence, which his Honour accepted, that the applicant was easily led and vulnerable to exploitation. It was submitted that the sentencing judge had erred in failing to take the applicant’s youth and immaturity into account.

Submissions of the Crown

1. [50]

   The Crown relied upon the fact that the sentencing judge had made specific reference to the applicant’s age. The Crown also relied on the finding that the applicant was a vulnerable person which, it was submitted, necessarily incorporated a finding that the applicant was immature. It was submitted that in these circumstances the “synthesis of the sentence” necessarily included considerations of the applicant’s age. The essence of the Crown’s submission was that these matters left no room to doubt that the sentencing judge had taken into account the applicant’s youth when determining sentence.

Consideration

1. [51]

   The sentencing judge did not make specific reference to the principles in relation to the relevance of youth on sentence. However, it is clear from the various references in [47] above that he was aware of the applicant’s age. It is also clear that he concluded that as a consequence of his age and immaturity, the applicant was vulnerable.

2. [52]

   I am satisfied in these circumstances that his Honour was aware of the applicant’s youth and that he took that (and related matters) into account on sentence.

3. [53]

   It follows that this ground is not made out.

The sentence proceedings

1. [54]

   In written submissions provided to the sentencing judge the Crown argued that the offending was “objectively serious” and that such seriousness was increased by virtue of the offending being in the nature of a “ram-raid”. The Crown also relied upon the fact that more than $8,000.00 damage was caused to the premises. It was submitted that this amount was over and above that which was ordinarily occasioned in matters of this nature and that in these circumstances the aggravating feature in s. 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that the damage caused by the offence was “substantial”, had been established.

2. [55]

   The Crown also relied on the fact that six people were involved in the offending. Whilst acknowledging that the aggravating feature in the offending was that the applicant was in company, and that it was therefore necessary to take care to avoid double counting, the Crown submitted that the large number of people involved in the offending was relevant to an assessment of its objective seriousness. In particular, it was submitted that although the offenders had been inside the premises for no more than 5 minutes, the large number of them meant that a significant amount of property was able to be taken in a short time, thus maximising the gain from the offending and minimising the risk of detection.

3. [56]

   No real issue was taken by the applicant’s solicitor to the Crown’s categorisation of the objective seriousness of the offence.

The findings of the sentencing judge

1. [57]

   Having summarised the facts of the offending the sentencing judge (commencing at ROS 2) made reference to the applicant’s criminal history. He then considered (at ROS 3) the report of Professor Greenberg before turning to the role played by the applicant in the offending. Having done so, his Honour said (at ROS 4):

Submissions of the applicant

1. [58]

   It was submitted on behalf of the applicant that the sentencing remarks were bereft of any assessment of the objective seriousness of the offending. It was submitted that such an assessment was essential to the task of the sentencing judge, and that had it been conducted it would have led to a finding that the objective seriousness of the offending was towards the lower end of the scale. It was submitted that his Honour’s failure to undertake such an assessment amounted to error.

Submissions of the Crown

1. [59]

   The Crown relied on the fact that there had been no real challenge at the sentence proceedings to the Crown’s written submissions regarding the objective seriousness of the offending. Further, the Crown submitted that although there was no express assessment of the objective seriousness of the offence, it was apparent from the sentencing judge’s references to various other matters that he had considered that issue.

Consideration

1. [60]

   In my view, the sentencing remarks do not reflect his Honour having made any assessment of the objective seriousness of the offending. Such assessment is an important part of the sentencing process: R v Campbell [2014] NSWCCA 102 at [27] per Simpson. The importance of that assessment is such that its absence in the present case cannot be explained by the fact that the remarks were delivered ex tempore.

2. [61]

   Moreover, as I have observed in respect of ground 1, his Honour failed to take into account and apply the principles relevant to sentencing a mentally ill offender, a consideration of which formed part of the assessment of objective seriousness. In McLaren v R [2012] NSWCCA 284 McCallum J (with whom McClellan CJ at CL and I agreed) said (at [29]):

3. [62]

   In Elturk v R [2014] NSWCCA 61 Beazley P (with whom RA Hulme and Schmidt JJ agreed), said in reference to the decision in McLaren (at [34]):

4. [63]

   In these circumstances, ground 3 is made out.

Ground 4 – The sentence imposed was manifestly excessive

1. [64]

   For the reasons stated I have found error in respect of grounds 1 and 3. This requires that the sentencing discretion be exercised afresh. In these circumstances, it is not incumbent upon the applicant to establish that the sentence imposed by the sentencing judge was manifestly excessive. I have considered the matters advanced by counsel for the applicant in support of this ground in determining whether some other sentence is warranted: Criminal Appeal Act 1912 (NSW) s. 6(3).

Is some other sentence warranted?

1. [65]

   The applicant’s offending was undoubtedly serious. It resulted in substantial damage being occasioned to the premises and a large quantity of goods being stolen.

2. [66]

   In terms of the applicant’s role, the agreed facts made specific reference to the fact that he:

3. [67]

   These matters support a conclusion that the applicant’s offending was not spontaneous, that there was some degree of planning and that the applicant had some appreciation of his wrong doing. That said, there is nothing to suggest that the applicant played an organisational role in the offending. In fact, the evidence of the applicant’s youth and his associated vulnerability tends to the contrary.

4. [68]

   The medical evidence establishes that at the time of the offending the applicant had a mental disability which gave rise to a mild cognitive deficit. The case note of Ms Stephen specifically records that as a consequence of these matters, the applicant is a person who struggles in situations which require age appropriate thinking. There is other evidence, including that given by his sister on sentence, that he is easily influenced by others. I am satisfied in light of all of this evidence that there is a causal connection between the applicant’s mental state and his offending. This renders him an inappropriate vehicle for general deterrence: De La Rosa at [177]-[178] per McClellan CJ at CL.

5. [69]

   All of these matters impact upon an assessment of the objective seriousness of the offending generally, and the applicant’s moral culpability in particular. They are consistent with the evidence given by the applicant’s sister that he is a person easily influenced by others who sometimes finds it hard to make the right decisions.

6. [70]

   In all of the circumstances, I would assess the objective seriousness of the offending as falling below the mid-range.

7. [71]

   In the event that this Court came to re-sentence the applicant, two affidavits of Claire O’Neill, solicitor, affirmed on 24 April 2015 and 27 April 2015 were read without objection. The first affidavit establishes that the applicant has been employed since being taken into custody, firstly in upholstery making and secondly in ground maintenance. The reports of his work performance have been generally good. The second affidavit annexed an affidavit from the applicant sworn on 24 April 2015 in which he confirmed his work history and stated that he had been allowed to work outside the confines of a minimum security facility in which had been housed because of his good behaviour. He is presently on a waiting list to undergo a Young Offender’s Program.

8. [72]

   I am satisfied on the evidence that the applicant has used his time in custody productively. He has pursued employment, as a consequence of which he has acquired new skills. He has also sought to pursue educational opportunities. He continues to have the support of his sister who gave evidence on his behalf at the sentence proceedings and with whom he maintains regular contact. He has expressed a desire to undertake an Arts Course through Lismore TAFE when he is released and has stated that another of his siblings has undertaken to support him with his efforts to reintegrate into the community. The sole custodial issue faced by the applicant was in January this year when traces of a substance which had not been prescribed for him were found in his urine. No other breaches of custodial discipline have been identified. The applicant is still a young man and all of these matters support a conclusion that he has good prospects of rehabilitation, notwithstanding his prior criminal history.

9. [73]

   The report of Professor Greenberg establishes that the applicant, who is Aboriginal, comes from a deprived background. His parents were both alcoholics and have been separated for some time. The applicant’s two older brothers reportedly have drug and alcohol issues. As a consequence of these matters, the applicant was raised by his grandparents. He attended school until year 9 but is both illiterate and innumerate. He reported behavioural problems at a young age, and has never worked on the open labour market. In my view, these circumstances warrant the application of the principles discussed in R v Fernando (1992) 76 A Crim R 58, and more recently in Bugmy v R [2013] HCA 37; (2013) 249 CLR 571. Those principles include the following:

10. [74]

    In summary, the applicant’s subjective case establishes that he:

11. [75]

    Specifically as to (vii), I am satisfied on the evidence that there are significant positive signs which demonstrate that if the applicant is allowed a longer period on parole, rehabilitation is likely to be successful: R v Tuuta [2014] NSWCCA 40 at [57]. I therefore find special circumstances.

12. [76]

    In my view, the appropriate starting point is a sentence of 4 years imprisonment. As previously noted, the applicant is entitled to a discount of 25% on account of his early plea of guilty. The conclusion I have reached as to special circumstances will be reflected in the adjustment of the ratio between the total sentence and the non-parole period.

Orders

1. [77]

   In the exercise of the sentencing discretion afresh, I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentence imposed upon the applicant in the District Court is quashed.

   4. (4)

      In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 10 months imprisonment commencing on 3 September 2013 and expiring on 2 July 2015, with a balance of term of 1 year and 2 months imprisonment commencing on 3 July 2015 expiring on 2 September 2016.