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Court of Criminal Appeal 8 December 2000

Regina v Brown [2000] NSWCCA 548 revised - 7

[2000] NSWCCA 548

Assault & violenceTheft & propertyFirearms & weapons

Citation: Regina v Brown [2000] NSWCCA 548 revised - 7/02/2001
Court: NSW Court of Criminal Appeal
Date: 8 December 2000
Judge(s): Simpson J; Dowd J

Background

The applicant, a young Aboriginal man, pleaded guilty in the District Court to aggravated break, enter and steal committed on 18 November 1998, when he was seventeen years old. The offence involved a violent home invasion at a house in La Perouse, during which two women were assaulted, a firearm (or possible replica) was brandished, and property was stolen. A further count of breaking and entering with intent was taken into account on sentencing.

At the time of sentencing, the applicant was under twenty-one. He therefore fell within the Children (Criminal Proceedings) Act 1987, which gave the sentencing judge a choice between dealing with him according to adult sentencing procedures or the procedures applicable in the Children's Court. The judge elected adult procedures and imposed four years' imprisonment with a two-year non-parole period.

Extensive expert reports documented the applicant's background: severe childhood neglect, exposure to family violence, alcohol and substance misuse from a young age, diagnosed severe depression and anxiety, assessed cognitive deficits placing his functional age in several domains well below his chronological age, and a history of trauma. He had a prior criminal record but the reports consistently identified him as a person of significant vulnerability who required ongoing therapeutic intervention.

  • Whether the sentencing judge erred in refusing to order, under s 19 of the Children (Criminal Proceedings) Act 1987, that the sentence be served wholly or partly in a detention centre rather than an adult prison.
  • Whether the sentencing judge erred by conflating the distinct determinations under ss 18 and 19 of that Act into a single question, rather than addressing them separately.
  • Whether the non-parole period of two years was excessive, having regard to the applicant's youth, the Fernando principles, and other subjective circumstances.
  • Whether the overall sentence warranted the Court of Criminal Appeal re-sentencing.

Decision

The Court found that the sentencing judge made a legal error by treating the s 18 determination (whether to deal with the offender as an adult or under Children's Court procedures) and the s 19 determination (whether to order that a sentence be served in a detention centre) as a single question. Dowd J noted that this conflation was apparent on the face of the remarks on sentence and was indicative of error. The two questions engage different factors and must be addressed separately.

Simpson J held that the refusal to make a s 19 detention centre order had adversely coloured the entire sentencing exercise. The seriousness of the offence was not to be minimised: it involved violence against elderly and vulnerable occupants, a firearm, and was committed while the applicant was on bail, with a lengthy criminal history as background. However, these factors had to be weighed against particularly strong subjective circumstances.

The Fernando principles, drawn from R v Fernando, require courts to take into account the impact of social disadvantage, deprivation and dysfunction on the moral culpability of Aboriginal offenders. Simpson J found that the applicant's circumstances fell squarely within that profile, and emphasised that it is the underlying factual and historical background, not simply the fact of Aboriginal identity, that engages those principles.

The Court concluded that the two-year non-parole period was excessive even in isolation, and that re-sentencing was appropriate. The new sentence maintained the four-year head term but reduced the non-parole period to fifteen months, with an order that the whole sentence be served in a detention centre.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed by the District Court was quashed.
  • In substitution, the applicant was sentenced to imprisonment for four years, with a non-parole period of fifteen months, commencing 27 January 2001.
  • An order was made directing that the whole of the sentence be served in a detention centre.

Key Takeaways

  • Under the Children (Criminal Proceedings) Act 1987, the s 18 determination (whether to deal with an eligible offender as an adult) and the s 19 determination (whether to order detention centre placement) are legally distinct inquiries engaging different factors; treating them as one question constitutes error.
  • The Fernando principles apply where the facts disclose a background of Aboriginal social deprivation and disadvantage, not merely by reason of the offender's identity, and must be given real weight in the sentencing exercise.
  • A sentencing court's refusal to make a detention centre order can infect the broader sentencing exercise if it distorts the overall approach to penalty, justifying intervention by an appellate court.
  • Where an appellate court is satisfied that the sentencing approach was flawed, re-sentencing is appropriate even where the head term is maintained, if the non-parole period or other aspects of the sentence require correction.
  • Comprehensive expert evidence of cognitive deficits, psychiatric illness, and childhood trauma constitutes compelling subjective material capable of significantly affecting the non-parole period imposed on a young offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Procedure Act 1986 (NSW), s 21
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 18, 19

Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Karhani (unreported, 14 October 1998, Greg James J)