Whitehurst v The Queen [2011] NTCCA 11

 

 

PARTIES:                                         BRIAN WHITEHURST

 

                                                         v

 

                                                            THE QUEEN

 

TITLE OF COURT:                           COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                               CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          CA 4 of 2011 (21038468)

 

DELIVERED:                                   1 NOVEMBER 2011

 

HEARING DATES:                           1 NOVEMBER 2011

 

JUDGMENT OF:                              RILEY CJ, MILDREN & B.R. MARTIN JJ

 

APPEALED FROM:                          SOUTHWOOD J

 

CATCHWORDS:

APPEAL AGAINST SENTENCE – whether the sentence was manifestly excessive – whether the sentencing Judge erred in setting a non-parole period – whether the order for restitution was an error – appeal allowed in part.

 

Youth Justice Act  s 4, 71(2), 89(2)

Criminal Code

 

R v Currey [1975] VR 647, applied.

R v Goodwin [2003] NTCCA 9; R v Shrestha (1991) 173 CLR 48, followed.

 

 

 

 

REPRESENTATION:

 

Counsel:                                         

    Appellant:                                     R Goldflam

    Respondent:                                  W J Karczewski QC and D Dalrymple

 

Solicitors:

    Appellant:                                     Northern Territory Legal Aid Commission

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       Ril 1111

Number of pages:                             13


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Whitehurst v The Queen [2011] NTCCA 11

No. CA 4 of 2011 (21038468)

 

 

                                                     BETWEEN:

 

                                                     BRIAN WHITEHURST

                                                         Appellant

 

                                                     AND:

 

                                                     THE QUEEN

                                                         Respondent

 

CORAM:     RILEY CJ, MILDREN & B.R.MARTIN JJ

 

REASONS FOR JUDGMENT

 

(Delivered ex tempore 1 November 2011)

 

Riley CJ:

[1]       This is an application for leave to appeal against sentence.  The applicant pleaded guilty to the offence of aggravated robbery and was sentenced to detention for a period of two years and eight months with a non-parole period of 12 months.  The applicant was also ordered to pay restitution in the sum of $1490.

[2]       The application for leave to appeal was considered and refused by a Judge of this Court.  Pursuant to s 429 of the Criminal Code the applicant applied for a re-hearing by the Court of Criminal Appeal.

[3]       The proposed grounds of appeal are that the learned sentencing Judge erred in imposing a sentence which was manifestly excessive in all the circumstances of the offence and of the applicant; and, further, that the Judge erred in setting a non-parole period rather than partially suspending the sentence.  Finally that the Judge erred in ordering the appellant pay restitution by failing to comply with s 71(2) and s 89(2)(b) of the Youth Justice Act.

The offending

[4]       At the time of the offending the applicant was aged 15 years.  He had been in detention for conditional breaches of a previous suspended sentence and, five days following his release, committed this offence.  At approximately 2.30 am on 25 September 2010 he was in the company of another youth when they saw the victim walking and talking on his mobile telephone.  They formed an intention to assault him and steal his money.  The co-offender struck the victim to the back of his head with a closed fist.  Both offenders then attacked the victim, delivering kicks and blows causing him to collapse to the ground.  The victim assumed the foetal position on the ground whilst the offenders continued to kick and stomp on his head and torso.  The victim raised himself from the ground to briefly face his attackers when the applicant struck him to the jaw with his right fist.  The punch knocked the victim unconscious and he again fell to the ground.  The offenders then stole his wallet, which was valued at $350 and contained $250 in cash, along with his mobile phone which was valued at $890.  They left him unconscious on the footpath.

[5]       When arrested and interviewed the applicant made admissions as to his participation in the robbery and, when asked why he assaulted the victim, observed that the victim looked as though he had "lots of money".  The applicant went on to say that he did not receive any of the proceeds of the robbery. They were taken by his co-offender.

[6]       As a result of the attack the victim suffered a ruptured nerve in his right eye and blurred vision.  He suffered a broken nose and swelling to his face.  He required treatment at the emergency department of the Royal Darwin Hospital and then, for one and a half weeks, at Robertson Barracks Medical Centre.  At the time of sentencing the treatment for his injuries was ongoing.

[7]       The sentencing Judge noted that the offending was serious.  It was deliberate and premeditated.  It occurred in company and at night.   The victim was in a vulnerable situation and had no opportunity to defend himself.  The attack was described as "a sustained and fierce attack" causing injuries which were significant.  Following the offending the offenders "fled the scene without any regard for the welfare of the victim".

[8]       At the time of sentence the applicant was aged 16 years.  He had a criminal history.   The offending consisted of driving offences, unlawful use of motor vehicles, stealing, aggravated entry of buildings and damage to property.  He had previously been sentenced to periods of detention although each of those sentences had been suspended.  On 27 August 2010 he was ordered to serve one month in detention for conditional breaches of the suspended sentences.  He committed this offence five days after his release.

[9]       The Court was informed that the applicant lived in Darwin with his father and stepmother and siblings.  He comes from a supportive family.  Prior to the offending he experienced a significant family tragedy when, in August 2007, his older brother and two of his uncles died in a motor vehicle accident.  His father was injured in the same accident.  In August 2009 his paternal aunt, to whom he was close, died.  Shortly thereafter his paternal grandfather also died.  The applicant had a poor school record and had never been employed.  He was an accomplished footballer and played for a local team.  He abused both alcohol and cannabis.  He started drinking alcohol when he was aged 14 years and first consumed cannabis in 2010.

[10]     The sentencing Judge noted that the applicant had expressed remorse.  However, his Honour was not convinced that the applicant was genuinely remorseful.  His Honour also noted the plea of guilty and that it came at an early time.  His Honour concluded that the applicant’s prospects for rehabilitation were difficult to assess as he had not shown adequate insight into his substance misuse.

[11]     In determining an appropriate sentence the sentencing Judge gave emphasis to the protective function of the court and attributed weight to the need for denunciation and retribution and deterrence.

Manifest excess

[12]     It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error and the appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. In relying upon manifest excess it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously and not just arguably excessive.

[13]     It was submitted on behalf of the applicant that:  in light of the fact that the applicant was aged 15 years; the offending was instigated by his co-offender; the prior offending did not include acts of violence; his offending history commenced very shortly following a series of deaths of close family members; and his prospects for rehabilitation, the sentence was manifestly excessive. 

[14]     It was submitted that the sentence was incommensurate with sentences imposed in this jurisdiction on others who had committed similar offences.  The applicant provided a schedule of such sentences.  A review of those sentences does not support the submissions made on behalf of the applicant.  The schedule reveals that the sentence imposed in the present matter was commensurate with many in the schedule.

[15]     In my opinion the offending committed by the applicant was of considerable gravity.  It was a vicious attack by the applicant and his co-offender upon a vulnerable victim late at night.  The attack continued over a period of time and after the victim had fallen to the ground and when he was offering no resistance.  It consisted of kicking and stomping to the victim's head and torso and ended with the victim being knocked unconscious and left laying on the footpath.  The injuries suffered by the victim were serious.  The offending was committed in the fashion of an adult.  The offending was such that the protective function of the Court required that emphasis be placed upon denunciation and general deterrence and retribution as significant  sentencing considerations.[1]

[16]     In my opinion the sentence of detention for the period of two years and eight months with a non-parole period of 12 months could not be said to be manifestly excessive.

[17]     I would dismiss the application for leave to appeal on this ground.

Restitution

[18]     A separate submission was made to the effect that the order for restitution was itself manifestly excessive given the period of detention imposed and
the applicant’s lack of means.  It was submitted that the sentencing Judge failed to have regard to the ability of the applicant to comply with an order for restitution as required under the Youth Justice Act.[2]

[19]     It was submitted on behalf of the respondent that the sentencing Judge may have proceeded under the provisions of the Sentencing Act when making the order for restitution and that, under that Act, an enquiry into the offender’s financial circumstances was not required for the purposes of making an order for restitution.  I think it is readily apparent that his Honour proceeded under the Youth Justice Act.  The sentence of detention was consistent with the powers available under that Act. There was nothing to suggest his Honour sought to proceed under the Sentencing Act.

[20]     The sentencing Judge had before him information regarding the financial circumstances of the applicant.  In the presentence report provided to his Honour it was revealed that the applicant had never received payments from Centrelink and his parents themselves relied upon Centrelink for support and did not have excess funds to provide to their son.  The report noted that he had never had paid employment.  The evidence before the Court demonstrated that the applicant would have been most unlikely to have been able to comply with any order for restitution.  This was particularly so in light of the period of detention he was obliged to serve. 

[21]     The sentencing Judge did not address the issue of the financial circumstances of the applicant but simply made the order for restitution.  It would seem his Honour did so contrary to the obligation imposed pursuant to s 71(2) of the Youth Justice Act which requires that when considering a sentence that involves an order for restitution by financial compensation the Court must satisfy itself that the sentence is appropriate having regard to the financial circumstances of the youth.  Further, it would seem, his Honour did not have regard to s 89 (2) of the Act which requires the Court, in making an order for restitution by way of monetary compensation, to have regard to the ability of the youth to comply with the order.  Had his Honour adverted to those matters it would be very likely that the order for restitution would not have been made.

[22]     In all the circumstances I find that his Honour fell into error in imposing the order for restitution and I would grant leave to appeal and allow the appeal to the extent of setting aside this part of the sentence.

The non-parole period

[23]     It was submitted on behalf of the applicant that the sentencing Judge erred in setting a non-parole period rather than partially suspending the sentence.  It was contended that the failure to partially suspend the sentence reflected a failure to apply the sentencing principles contained in s 4 of the Youth Justice Act.

[24]     Further it was submitted the fixing of a non-parole period rather than the imposition of a partly suspended sentence made the sentence incommensurate with sentences imposed on other youths for similar offending.  This is to misunderstand the issues involved in determining whether to impose a non-parole period or a suspended sentence.  The decision to fix a non-parole period or grant a suspended sentence may give rise to considerations of parity with other offenders.  However, the issue is one of what is appropriate for the particular offender then before the court in the particular circumstances of both the offender and the offending.

[25]     The parole system "represents an important influence for the reform and rehabilitation of those in gaol".[3]  Dual purposes of parole are to "lessen the burden of punishment upon prisoners and to provide for their earlier release from gaol in those cases which merit it and to provide for the rehabilitation under supervision of the prisoners so released".[4]   In R v Shrestha it was said that:

The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of the sentence should actually be served in custody.[5]


 

[26]     The parole system provides an incentive for prisoners to behave whilst in prison and encourages prisoners to actively engage in rehabilitation.

[27]     The first task of the sentencer is to impose a sentence which is appropriate to the offending in light of all of the relevant circumstances of the offence and the offender.  Thereafter it is necessary to determine whether to wholly or partially suspend the sentence or, alternatively, to set a non-parole period.  If a non-parole period is to be set then the sentencer must consider the duration of that period. If the sentence is to be partially suspended then the sentencer must consider the actual term of imprisonment, to be served prior to the suspension of the sentence. 

[28]     In choosing whether to proceed by way of a suspended sentence or a non-parole period the sentencing Judge must consider many things including any relevant legislative provisions, the nature of the offending, the minimum period of imprisonment which must be actually served to reflect the seriousness of the offending, and the personal circumstances of the offender including any prospects for rehabilitation.  Consideration of the personal circumstances of the offender and his prospects for rehabilitation is likely to involve determining how any prospects for rehabilitation may be addressed and enhanced; whether there is a need for supervision and, if so, the nature of that supervision; the existence of, and the nature of, any support mechanisms available to the offender outside the custodial setting; the identification of impediments and risks to rehabilitation and so on.

[29]     The question of whether to impose a non-parole period or to suspend a sentence must be answered in light of all of the circumstances surrounding both the offence and the offender.  Such considerations do not give rise to an expectation (as was suggested here) that for a particular type of offence a suspended sentence would result.

[30]     In the present case the sentencing Judge had good reason to impose a non-parole period in preference to a suspended sentence.  The reports available to his Honour suggested that attempts to supervise the applicant when he was at liberty in the community had not been successful.  Immediately before committing this offence he had served a period of detention for breaching the terms of earlier suspended sentences.  He reoffended within a very short time of his release.  In light of this history it was doubtful that he would comply with the terms of any order for supervision.  The sentencing Judge sensibly adverted to the need for the sentence to involve an incentive for the applicant to earn his release rather than simply serving out his time prior to release. 

[31]     The presentence report confirmed that it would be beneficial to the applicant to participate in counselling and programs to address his lack of self-control prior to his release into the community.  The setting of a non-parole period would allow the assessment of his success or otherwise in this regard at the time he became eligible for parole. 

[32]     The granting of a non-parole period would allow appropriate plans to be put in place for the supervision and rehabilitation of the applicant upon his release in light of the impact the rehabilitation and counselling programs had upon the applicant whilst in custody. 

[33]     At the time of sentencing, his Honour regarded an assessment of the applicant's prospects for rehabilitation as being difficult because he had not shown adequate insight into his substance misuse.  The setting of a non-parole period would permit consideration of any change in this regard over a period of time.  The Parole Board would then be better placed than his Honour to make the necessary assessment. 

[34]     In addition it was reported that the applicant had been attending school and receiving beneficial ongoing guidance in relation to his education whilst in the Don Dale Juvenile Detention Centre.  The benefit so obtained by the applicant and, hopefully, continued during the non-parole period, would improve the applicant’s prospects for a successful reintegration into the community upon his release from detention. Time in detention was likely to provide the best opportunity for the applicant to develop in beneficial and socially acceptable ways leading to an increased likelihood of successful rehabilitation.  Whether or not that was so could only be properly assessed at the time the applicant became eligible to be considered for parole.

[35]     I see no error on the part of the learned sentencing Judge.  I would dismiss the application for leave to appeal on this ground.

[36]     In all the circumstances I would dismiss the application for leave to appeal except in relation to the order for restitution.  In relation to that order I would grant leave to appeal and I would set the order aside.

Mildren J

[37]     I agree with the orders proposed by the Chief Justice and with his Honour’s reasons.

Martin J

[38]     I agree with the orders proposed by the Chief Justice and with his Honour’s reasons.

Riley CJ

[39]     The order of the Court will be that the application for leave to appeal is dismissed save in relation to the application for leave regarding the order for restitution.  In that regard, leave to appeal will be granted, the appeal will be allowed and the order set aside.

 



[1]      [1] R v Goodwin [2003] NTCCA 9.

[2]      [2] Youth Justice Act ss 71(2) and 89(2)(b).

[3]      [3] R v Shrestha (1991) 173 CLR 48 at 69.

[4]      [4]R v Currey (1975) VR 647.

[5]      [5]R v Shrestha (1991) 173 CLR 48 at 67.