Citation: R v RLS [2000] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 1 May 2000
Judge(s): Hulme J; Carruthers AJ
Background
The appellant was sentenced in the District Court on 22 January 1999 for a large number of serious offences committed when he was sixteen years old. The charges included four counts on indictment (three armed robberies involving a shortened .22 calibre rifle or a knife, and one assault with intent to rob) together with thirteen further offences taken into account on a Form 1. Among the most serious was a robbery in which the appellant presented a blood-filled syringe at the arm of an eight-year-old child while stealing the family's vehicle.
The offences were committed over a compressed period from October to November 1997, many of them while the appellant was on bail. A further cluster of offences followed an escape from custody in November 1997. In total, the sentencing judge dealt with twenty charges. The appellant had also acquired a prior record as a juvenile, including multiple motor vehicle thefts and a prior period in custody of nine months.
His Honour Judge Patten sentenced the appellant to a minimum term of four years and six months with an additional term of four years and six months on the principal count, with concurrent fixed terms of four years on the remaining counts. The appellant sought leave to appeal, contending the sentence was excessive.
Legal Issues
- Whether the sentencing judge failed to give adequate weight to the subjective features of the appellant's case, including his youth, his Aboriginality, and his progress in rehabilitation
- Whether the principles from R v Fernando regarding the sentencing of Aboriginal offenders were engaged on the facts
- Whether the appellant's early onset of addiction to alcohol and heroin, and the circumstances under which that addiction developed, constituted a mitigating factor warranting a lesser sentence
- Whether the overall sentence of nine years (with a four-and-a-half-year minimum term) was excessive in all the circumstances
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error warranting intervention.
On the Fernando principles, the sentencing judge noted that the appellant came from a caring and united family and that his upbringing could not be described as deprived or disadvantaged. The Court examined the submission that early alcohol and heroin abuse indicated the community disadvantages identified in Fernando had nonetheless affected the appellant. The Court found there was no specific evidence connecting the appellant's Aboriginality to his decision to associate with older persons or to his addictions. The appellant himself had attributed his substance abuse to those associations rather than to any disadvantage arising from his cultural background.
On rehabilitation and the "crossroads" principle, the Court acknowledged the appellant's genuine progress: he had addressed his addiction, completed vocational courses, and shown signs of maturity and remorse. The Court also accepted that addiction commencing at a very young age, before full capacity for judgment develops, could be treated as a mitigating factor. Both considerations supported some leniency.
However, the Court concluded that the sheer magnitude of the offending, twenty charges, many of them serious armed robberies, made it impossible to ignore the weight of the criminality involved. The Court found the nine-year full term and four-and-a-half-year minimum term were, if anything, already extremely lenient when viewed against the guidelines in R v Henry and the number and gravity of the offences. No further reduction was warranted under s 6(3) of the Criminal Appeal Act, which requires the Court to be satisfied that a different sentence was warranted in law before interfering.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the subjective circumstances of a young offender, including genuine rehabilitation, remorse, and early-onset addiction, do not automatically displace the need for a substantial custodial sentence where the volume and gravity of offending is very high.
- The Fernando principles concerning the sentencing of Aboriginal offenders require a factual nexus between the offender's Aboriginality and the circumstances of the offending; the principles are not engaged merely by the offender's identity without evidence of relevant disadvantage.
- Early addiction to alcohol or heroin, acquired before an offender's judgment is fully developed, may constitute a mitigating factor, particularly where the addiction was not the product of a deliberate adult choice.
- Where an offender has had prior court appearances and periods of custody, the sentencing court may take into account that the offender was aware of alternatives to criminality for managing addiction.
- Under s 6(3) of the Criminal Appeal Act, the Court of Criminal Appeal will not interfere with a sentence unless it forms the opinion that a different sentence was warranted in law; the existence of strong subjective factors is not sufficient on its own to satisfy that threshold where the sentence already falls at the lenient end of the range.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act (NSW), s 6(3)
- Justices Act (NSW), s 51A
Cases:
- R v Henry (1999) 46 NSWLR 346 (armed robbery sentencing guidelines)
- R v Fernando (Wood CJ at CL) (sentencing principles for Aboriginal offenders)