Citation: Regina v Ellis; Regina v Carr [2002] NSWCCA 211
Court: Court of Criminal Appeal, New South Wales
Date: 17 May 2002
Judge(s): Hidden J; Smart AJ
Background
In the early hours of 18 February 2001, two adult offenders and two juvenile co-offenders carried out a series of street robberies in Hamilton, Newcastle. The group stopped their car, alighted, and separately confronted two groups of pedestrians. One group was threatened with a knife in an alleyway; another was physically assaulted and robbed on the street. One victim suffered a badly bruised eye and another sustained cuts, with both requiring hospital treatment.
The two adult offenders, Ellis (aged 20) and Carr (aged 19) at the time of the offences, each pleaded guilty in the Local Court and were committed to the District Court for sentencing. Cooper DCJ sentenced both to four years' imprisonment, with non-parole periods of two years and three months (Ellis) and three years (Carr) respectively.
Both men sought leave to appeal against the severity of those sentences in the Court of Criminal Appeal. A central issue was how the sentencing judge should have treated the more lenient outcomes received by the juvenile co-offenders who were dealt with separately in the Children's Court.
Legal Issues
- Whether the sentencing judge erred in treating sentences imposed on juvenile co-offenders in the Children's Court as entirely irrelevant when sentencing the adult offenders.
- Whether the discounts applied for early pleas of guilty were adequate.
- Whether special circumstances existed justifying adjustments to the non-parole periods.
Decision
The Court of Criminal Appeal found that the sentencing judge's approach to the juvenile co-offenders' sentences reflected the law as it was previously understood, but did not conform to the more refined principles that had since emerged. Earlier authority had held that parity considerations simply did not arise when comparing sentences imposed in the Children's Court with those imposed on adults. However, cases including R v Govinden, R v Colgan, and R v Boney had clarified that this does not mean a juvenile co-offender's sentence is entirely irrelevant. An adult offender may have a justifiable sense of grievance if the disparity between regimes produces a result that is grossly disproportionate, even accounting for the different sentencing objectives in each jurisdiction.
The Court found that the judge was required to pay some regard to the sentence imposed on the juvenile co-offender Bennis, who had received a relatively lenient outcome. While the differing sentencing objectives of the Children's Court limit the weight of any such comparison, they do not remove its relevance entirely.
The Court also found that the discounts applied for the early guilty pleas were too low in both cases and should have been at least 15 per cent. For Carr, the Court identified special circumstances arising from his youth, time spent in protective custody, and the need for adequate post-release supervision. Both sentences were reduced accordingly.
Orders Made
As to Ellis:
- Leave to appeal granted
- Appeal allowed; sentence for robbery using corporal violence quashed
- Substituted sentence: three years' imprisonment from 18 February 2001, with a non-parole period of one year and nine months, ending 17 November 2002, with supervised parole to follow
As to Carr:
- Leave to appeal granted
- Appeal allowed; sentence for robbery in company quashed
- Substituted sentence: three years' imprisonment from 18 February 2001, with a non-parole period of two years, ending 17 February 2003, with supervised parole to follow
Key Takeaways
- The Court of Criminal Appeal confirmed that there is no longer an inflexible rule that sentences imposed on juvenile co-offenders in the Children's Court are entirely irrelevant when sentencing an adult for the same or related offending.
- A sentencing court must pay some regard to a juvenile co-offender's sentence where the disparity could give the adult offender a justifiable sense of grievance, even though the differing objectives of the Children's Court limit the weight of that comparison.
- Where an adult offender is sentenced alongside co-offenders dealt with under juvenile sentencing regimes, the principles that apply are described as "akin to parity" rather than strict parity, reflecting the distinct legislative frameworks involved.
- Discounts for early guilty pleas must be adequately reflected in the sentence; in both cases the Court found the discounts applied below the threshold of at least 15 per cent that the circumstances warranted.
- Youth, time spent in protective custody, and the need for meaningful post-release supervision can constitute special circumstances justifying a longer parole period relative to the total sentence.
Legislation and Cases Referenced
Cases:
- R v Colgan (1999) NSWCCA 292
- R v Govinden (1999) 106 A Crim R 314
- R v Boney [2001] NSWCCA 432
- R v Thompson; R v Houlton [2000] 49 NSWLR 383
Legislation: No specific legislation was cited in this decision.