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Court of Criminal Appeal 9 May 2001

REGINA v. LC

[2001] NSWCCA 175

Theft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE ARMED ROBBERIES OFFENDER APPLICANT OF LOW INTELLIGENCE HODGSON, JA. AND GREG JAMES, J.

Citation: REGINA v. LC [2001] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 9 May 2001
Judge(s): Hodgson JA, Greg James J, Adams J (dissenting in part)

Background

The applicant, a juvenile at the time of the offences, pleaded guilty to two counts of robbery whilst armed with a dangerous weapon under s.97(2) of the Crimes Act 1900, each carrying a maximum penalty of 25 years imprisonment. A further two armed robbery counts and one stealing count were taken into account on a Form 1. The offences, committed in late 1999, involved threatening victims with an imitation firearm, abducting one victim in her own vehicle, directing staff to be restrained with duct tape, and making explicit death threats.

The applicant was sentenced in the District Court alongside a co-accused, JN, who was described as a person of considerably greater intelligence and manipulative capacity, and who was identified as the instigator of the offending. Both were treated as children under the relevant legislation but dealt with in the District Court given the seriousness of the charges. The applicant received the same sentence as his co-offender despite differences in their intellectual capacity and respective roles.

The applicant sought leave to appeal against his sentence, arguing principally that the sentencing judge erred in applying general deterrence to a young person of low intelligence, and that the equal sentence created an unjustifiable disparity given the co-offender's greater culpability as instigator.

  • Whether general deterrence was a valid sentencing consideration for a child offender of low intelligence
  • Whether the equal sentences imposed on the applicant and his more intelligent, instigating co-offender gave rise to an unjustifiable sentencing disparity
  • Whether the sentence imposed by the District Court was otherwise in error

Decision

The Court granted leave to appeal but, by majority (Hodgson JA and Greg James J), dismissed the appeal. The majority found no error in the sentence that warranted intervention, concluding that the sentence was not manifestly excessive and, if anything, was lenient when considered on its own terms.

The majority accepted that general deterrence has a diminished role in sentencing young offenders of low intelligence. However, the majority was not persuaded that this consideration, or the disparity argument, was sufficient to establish appellable error on the facts. The seriousness of the offending, the applicant's direct participation in violence, and his prior record were all factors that supported the sentence imposed.

Adams J dissented on the disparity question and the application of general deterrence. His Honour found that the applicant's low intelligence meant he was not an appropriate subject through whom to make an example to others, and that the sentencing judge had erred in treating general deterrence as a significant factor. Adams J also considered that the equal sentences failed to reflect the meaningful differences between the offenders in culpability and intellectual capacity, with the co-offender having deliberately exploited the applicant's violent tendencies. Adams J would have reduced the non-parole period to 18 months while retaining the head sentence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A majority of the Court of Criminal Appeal confirmed that a sentence for a juvenile offender of low intelligence is not necessarily in error merely because general deterrence was considered, provided the overall sentence can otherwise be justified.
  • Adams J, in dissent, found that general deterrence has no proper role where the offender is a child of low intellectual functioning, because such a person cannot serve as a meaningful example to others.
  • Where co-offenders are sentenced together, an equal sentence does not automatically create an unjustifiable disparity: the majority found the applicant's direct and serious acts of violence were a legitimate basis for equivalent treatment, notwithstanding the co-offender's role as instigator.
  • The dissent drew a contrary conclusion on disparity, reasoning that an instigator who deliberately exploits a less intelligent co-offender's propensity for violence bears greater rather than lesser culpability, and that the sentences should have reflected this.
  • Appellate intervention on sentence requires demonstrated error; in dismissing the appeal, the majority found the sentence fell within the available range despite the applicant's youth, low intelligence, and the mitigating features of the case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s.97(2) (armed robbery)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Henry (1999) 46 NSWLR 346