Citation: R v Jack Sua [2000] NSWCCA 94
Court: New South Wales Court of Criminal Appeal
Date: 23 February 2000
Judge(s): Hidden J; Carruthers AJ
Background
The applicant was convicted after trial in the District Court of armed robbery committed when he was just under seventeen years old. He had forced his way into a hotel manager's private room, threatened the manager with a pistol, tied him to the bed, and took approximately $140 in cash. The District Court judge sentenced him to five and a half years' penal servitude, with a minimum term of three years and an additional term of two and a half years, to be served in a Juvenile Justice Centre until he turned twenty-one.
The applicant had a prior criminal record that included offences of violence, but this sentence marked his first period of full-time custody. He had been in Juvenile Justice custody since shortly after the offence was committed in June 1998.
The applicant sought leave to appeal on the ground that the sentencing judge had failed to give adequate weight to his age and his significantly disturbed background, including his migration from Samoa as a child, alleged abuse by a relative, a period of homelessness, and a descent into drug abuse.
Legal Issues
- Whether the sentencing judge gave adequate weight to the applicant's age (just under seventeen at the time of the offence) in determining the appropriate sentence
- Whether the applicant's disturbed personal background was sufficiently taken into account in the sentencing exercise
- Whether the guideline judgment in Regina v Henry (relating to armed robbery) applied to juvenile offenders
Decision
Hidden J, with Carruthers AJ agreeing, granted leave to appeal and allowed the appeal. The Court accepted that the offence was undoubtedly serious, noting that the manager's experience must have been terrifying. The Court also acknowledged that, where an offence involving a juvenile could be characterised as grave adult behaviour, the special sentencing considerations ordinarily afforded to persons under eighteen may be qualified. This offence fell into that category.
Despite the seriousness of the offending, the Court concluded that the sentencing judge had not given adequate weight to the applicant's youth and background. The Court noted that the applicant was not yet seventeen at the time of the offence and that this was his first custodial sentence. Reports from the Department of Juvenile Justice, including a further report tendered on appeal, identified encouraging signs of rehabilitation: the applicant had maintained positive behaviour in custody, demonstrated improved anger management, and shown willingness to engage in counselling.
On the question of the Henry guideline, the Court expressed the view that those guidelines were directed at adult offenders and did not govern the sentencing of children. However, because of the offence's seriousness, the Court held that any reduction could not be substantial. It reduced the minimum term by six months, leaving the additional term undisturbed.
Carruthers AJ added that, should the applicant reoffend, a future sentencing court would be entitled to take the view that any leniency available to him by reason of his disturbed background had been exhausted.
Orders Made
- Leave to appeal granted
- Appeal allowed
- The minimum term fixed by the District Court was quashed and replaced with a minimum term of two and a half years' penal servitude, commencing 15 June 1998 and expiring 14 December 2000
- The additional term of two and a half years' penal servitude was left undisturbed
Key Takeaways
- The Court of Criminal Appeal confirmed that the special sentencing considerations applicable to juvenile offenders may be reduced, but are not entirely displaced, where the offence can be characterised as serious adult behaviour.
- A first custodial sentence imposed on a juvenile offender requires adequate and explicit attention to the offender's age and personal background, even where the offending is grave.
- The guideline judgment in Regina v Henry was treated as applicable to adult offenders only, not extending to the sentencing of children.
- Positive behavioural and rehabilitative progress in custody, as documented in Juvenile Justice reports, formed part of the relevant sentencing material before the Court on appeal.
- Where leniency has been extended to a young offender on account of a disturbed background, the Court indicated that future sentencing courts would not necessarily be obliged to extend further leniency on the same basis.
Legislation and Cases Referenced
Cases:
- Regina v Henry & Ors (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing, considered but held inapplicable to juvenile offenders in this context)
Legislation: No specific legislation was cited in the judgment text or metadata.