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Supreme Court 23 August 2002

R v CQD

[2002] NSWSC 732

HomicidePublic order & justice offences
CRIMINAL LAW: SENTENCE OFFENDER A JUVENILE AT THE TIME.

Citation: R v CQD [2002] NSWSC 732
Court: Supreme Court of New South Wales
Date: 23 August 2002
Judge(s): Hidden J

Background

The offender, identified only by initials due to his age at the time of the offences, was sixteen years old when he became involved in events that culminated in the murder of a young man in southwest Sydney on 7 August 1996. He had run away from home and was living with associates who brought the victim to the house. At the direction of another man, the offender guarded the victim for several hours, during part of which time he became aware the victim was to be killed.

The offender did not intervene and, when he witnessed an attempt to strangle the victim in the garage, he fled back inside. The victim was later driven to a construction site where he was fatally stabbed. The offender was also charged with concealing a serious offence, having said nothing to police about his own involvement when first interviewed in November 1996, some four months after the murder.

The offender was not arrested until April 2001, after he made admissions to police in March 2001. He pleaded guilty to both charges: detaining for advantage under the since-repealed section 90A of the Crimes Act 1900, and concealing a serious offence under section 316(1) of the same Act.

  • What sentence was appropriate for an offender who was a juvenile at the time of the offences but was sentenced as an adult?
  • What weight should be given to youth, remorse, belated admissions, a guilty plea, and substantial assistance to authorities in setting the sentence?
  • Whether the sentence for concealing a serious offence should be cumulative on the sentence for detaining for advantage.
  • Whether special circumstances existed justifying a departure from the standard ratio between the head sentence and the non-parole period.

Decision

Hidden J treated the offence of detaining for advantage as serious. The offender guarded the victim for several hours while aware, for at least part of that time, that the victim would be killed. The concealing offence was treated as separately serious because it extended over several months, and the court accepted the Crown's argument that a cumulative sentence was warranted.

The court gave substantial weight to the offender's youth at the time of the offences, following the Court of Criminal Appeal's approach in R v Hearne, which confirmed that youth must be given appropriate weight even where the offence is serious. The court also accepted the offender's remorse as genuine and noted his difficult background, including a disrupted family life that had led to him running away from home and associating with a criminal subculture.

Significant mitigating credit was given for the offender's guilty plea, his belated admissions to police, and his cooperation with authorities in an unrelated murder prosecution. The offender had given important evidence as a prosecution witness, described as excellent by the Crown. The court reduced the sentence for detaining for advantage by forty percent from a notional five years to three years. Special circumstances were found, justifying a shorter non-parole period relative to the overall head sentence.

Orders Made

  • On the charge of detaining for advantage: imprisonment for 3 years, commencing 24 April 2001, with a non-parole period of 12 months.
  • On the charge of concealing a serious offence: imprisonment for 4 months, commencing at the expiration of the 12-month non-parole period, to be served cumulatively.
  • Upon expiry of the 4-month sentence, the offender directed to be released on parole and subject to supervision by the Probation and Parole Service for such part of the remaining sentence as that service considered appropriate.
  • In accordance with sections 48 and 50 of the Crimes (Sentencing Procedure) Act 1999, the earliest release date was noted as the date of sentence, and the offender was directed to be released on that day.

Key Takeaways

  • Appropriate weight must be given to an offender's youth at the time of the offences, even where those offences are grave: this principle was confirmed by reference to R v Hearne (2001) 124 A Crim R 451.
  • A forty percent reduction from the notional sentence was applied to reflect a guilty plea, belated admissions to police, and substantial assistance to authorities in a separate murder prosecution.
  • Where an offence of concealing a serious offence is temporally distinct from the principal offence and extends over several months, a cumulative sentence may be appropriate.
  • Special circumstances can justify a departure from the standard proportion between head sentence and non-parole period, particularly where rehabilitation prospects are strong and fostering reintegration is a sentencing objective.
  • Under sections 316(1) and 90A of the Crimes Act 1900, an offender's limited physical role in an incident does not preclude conviction or a significant custodial term if that role nonetheless contributed to the detention of a victim who was subsequently killed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 90A (since repealed) and 316(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 11(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 48 and 50

Cases
- R v Crofts (NSW Court of Criminal Appeal, unreported, 10 March 1995)
- R v Hearne (2001) 124 A Crim R 451