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Court of Criminal Appeal 25 February 2000

Regina v SLR

[2000] NSWCCA 436

Also reported as 116 A Crim R 150
Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL

Citation: Regina v SLR [2000] NSWCCA 436
Court: NSW Court of Criminal Appeal
Date: 25 February 2000
Judge(s): Carruthers AJ; Hidden J

Background

The appellant, an 18-year-old Aboriginal woman from the Kempsey area, pleaded guilty in the District Court to four counts involving theft and assault. The offences, which targeted elderly victims, occurred in 1998 during a period when the appellant was living rough and experiencing significant emotional distress following separation from her infant daughter. Howie DCJ imposed a series of fixed terms and a minimum/additional term totalling a period of custody extending to August 2002, and directed that all sentences be served in a juvenile detention centre.

At the time of sentencing, the appellant was pregnant, with her baby expected in June 2000. The sentencing judge acknowledged the difficulty of the situation but concluded that the objective seriousness of the offences left no alternative to a custodial sentence. His Honour expressed hope that the juvenile detention centre would accommodate the appellant's needs around childbirth.

The appeal to the Court of Criminal Appeal proceeded on fresh evidence. After sentencing, it emerged that the Yasmar Juvenile Justice Centre, where the appellant was held, could not accommodate the appellant's child after birth. By contrast, the Mothers and Children Programme available in adult prisons could provide those facilities.

  • Whether the quantum of the sentences imposed by Howie DCJ should be disturbed in light of the fresh evidence about custodial facilities.
  • Whether the hardship to a third party (the unborn child) justified a reduction in sentence.
  • Whether the direction that the appellant serve her sentence in a juvenile detention centre should be varied given the practical impossibility of mother-and-child accommodation in that setting.

Decision

The Court accepted that the sentencing judge had acted appropriately on the material before him at the time. The appellant's counsel conceded that no error could be identified in the original sentencing exercise. The fresh evidence, however, created a situation that the sentencing judge could not have anticipated: the juvenile detention centre was unable to keep the appellant and her child together after the birth, while an adult prison could do so under the Mothers and Children Programme.

The Court considered whether the hardship to a third party, namely the unborn child, warranted a reduction in the overall quantum of sentence. Applying the principles in Regina v Edwards and Regina v Wirth, the Court held that the threshold for leniency based on hardship to third parties is extremely high, and that threshold had not been met. A reduction in sentence would, in the Court's view, produce a result that was an affront to the administration of justice given the seriousness of the offending.

The Court's solution was narrower: rather than reduce the sentences, it varied the placement direction. The appellant would remain in a juvenile detention centre until she gave birth, and would then be transferred to an adult prison where the Mothers and Children Programme could operate. The Court expressed confidence that corrective services would be responsive to the appellant's and the child's welfare needs in that setting.

Hidden J added a separate observation that a legislative deficiency in the Children (Detention Centres) Act 1989, previously identified by the Court of Criminal Appeal in Regina v XYJ, remained unremedied. His Honour expressed hope that the appropriate authority would attend to the matter.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld to the extent of varying the placement direction made by Howie DCJ.
  • The appellant is to serve her sentence in a juvenile detention centre until she gives birth, and is thereafter to be transferred to an adult prison.

Key Takeaways

  • The threshold for reducing a sentence on the basis of hardship to a third party is extremely demanding. The Court of Criminal Appeal confirmed, applying Regina v Edwards and Regina v Wirth, that such hardship will rarely justify a departure from an otherwise appropriate sentence.
  • Fresh evidence about custodial facilities can found a sentence appeal even where no error is identified in the original sentencing exercise. The unavailability of mother-and-child accommodation at the juvenile detention centre was not known to the sentencing judge and provided the basis for intervention.
  • A variation of a placement direction, rather than a reduction in quantum, was the appropriate remedy where the objective seriousness of the offences still called for substantial custody but the practical circumstances of imprisonment had materially changed.
  • Hidden J's remarks signal judicial concern about an unremedied gap in the Children (Detention Centres) Act 1989, as previously identified in Regina v XYJ, relating to custodial arrangements for pregnant or post-partum young offenders.
  • In cases involving pregnant or recently post-partum offenders, the availability of specific programmes such as the Mothers and Children Programme in adult correctional facilities may be directly relevant to sentencing orders, even where it does not affect the quantum of the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 94, 148
- Correctional Centres Act 1952 (NSW)
- Children (Detention Centres) Act 1989 (NSW)

Cases:
- Regina v XYJ (Unreported, NSWCCA, 15 June 1992)
- Regina v Edwards (1996) 98 A Crim R 510
- Regina v Wirth (1976) SASR 291