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Court of Criminal Appeal 13 October 2000

R v BASHFORD

[2000] NSWCCA 426

Assault & violenceTheft & property

Citation: R v Bashford [2000] NSWCCA 426
Court: NSW Court of Criminal Appeal
Date: 13 October 2000
Judges: Newman J, Hulme J, Barr J

Background

The applicant, a juvenile aged sixteen and a half at the time of the offence, pleaded guilty in the Children's Court to aggravated robbery. His adult co-offender pleaded guilty to the same charge in the Local Court. Both were committed to the District Court for sentence before Goldring DCJ, who also took into account a related larceny offence for each.

The facts were serious. The applicant stole a nail gun from a parked car, then used it with the co-offender to hold up a pedestrian, pointing the gun at the victim and pulling the trigger. The gun clicked but did not fire. The applicant then struck the victim with the nail gun, produced a screwdriver as an additional threat, and stole the victim's watch. The applicant was found nearby shortly after, watch in hand.

Goldring DCJ sentenced the applicant, as a child, to fifteen months' control under the Minister administering the Children (Detention Centres) Act 1987. The adult co-offender received three years' penal servitude with a minimum term of fifteen months. The applicant had spent approximately four months in pre-sentence custody, meaning his total time under custodial restriction was roughly nineteen months compared to the co-offender's fifteen-month minimum.

  • Whether the sentencing judge applied wrong principles in relation to parity between a juvenile and an adult co-offender, resulting in the juvenile effectively serving a longer period of custody.
  • Whether a fixed control order under the Children (Criminal Proceedings) Act 1987 should have included a non-parole period to account for the applicant's prospects of rehabilitation.
  • Whether the difference in regime between juvenile control orders and adult custodial sentences is relevant to any parity analysis.

Decision

The Court (by majority, Barr J with Newman J agreeing) found that the sentencing judge erred in failing to fix a non-parole period as part of the control order. While the judge's decision to impose a fifteen-month control order was not itself infected by error in principle, the omission of a non-parole period was significant given the applicant's rehabilitation prospects and the favourable regime that the Children's legislation was designed to promote.

On the parity ground, the majority rejected the submission that the juvenile was necessarily entitled to serve a shorter period than the adult co-offender. The Court noted that the applicant was, objectively, more culpable than Kaisuva: he led the enterprise, stole and deployed the nail gun, and had a poor prior record including earlier offences of robbery in company. There was no absolute rule that a juvenile must serve less time than an adult co-offender, particularly where the juvenile's criminality was considerably greater.

The majority also drew a distinction between the nature of the custodial regimes. The adult co-offender's minimum term was a firm obligation, with the risk of serving up to three years if he breached parole. The applicant's control order, by contrast, operated under the Minister's broad and unfettered powers of release, meaning the practical effect of a fixed-term control order was not equivalent to a fixed minimum term for an adult.

Hulme J, in dissent, expressed the view that no reduction was warranted. His Honour considered the applicant's criminal history serious enough that the fifteen months, combined with four months of pre-sentence custody, was itself a lenient outcome relative to the adult co-offender's sentence, given the applicant's greater culpability.

Orders Made

  • Leave to appeal granted and the appeal allowed.
  • The sentencing order varied by the addition of a non-parole period of nine months, commencing 18 January 2000 and expiring 17 October 2000.
  • The applicant declared eligible for release on parole on 17 October 2000.
  • The Court noted that the non-parole period was set at less than three-quarters of the control order term in order to promote rehabilitation.

Key Takeaways

  • There is no absolute rule that a juvenile co-offender must serve a shorter period of custody than an adult co-offender: where the juvenile's objective criminality and prior record are significantly worse, a longer effective period may be defensible.
  • A parity analysis must account for the fundamentally different nature of juvenile control orders compared to adult sentences, including the Minister's broad discretionary powers of release under the Children (Detention Centres) Act 1987.
  • Failing to include a non-parole period in a control order under the Children (Criminal Proceedings) Act 1987 can constitute error where the offender's rehabilitation prospects warrant early release consideration.
  • Under s 24 of the Children (Detention Centres) Act 1987, the Minister holds wide powers to release persons subject to control orders, temporarily or permanently, and this distinguishes a fixed-term control order from an adult minimum term.
  • In dissent, Hulme J warned that the applicant's escalating offending pattern placed him at serious risk of extended future incarceration, illustrating that rehabilitation prospects, while relevant, do not automatically override the overall gravity of an offender's history.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(g)
- Children (Detention Centres) Act 1987 (NSW), s 24

Cases:
- Regina v Colgan [1999] NSWCCA 292
- Regina v Doan [2000] NSWCCA 317
- Regina v Govinden (1999) 106 A Crim R 314