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Court of Criminal Appeal 20 June 2003

R v Takau

[2003] NSWCCA 181

Assault & violence
PLEA OF GUILTY PARITY SUBJECTIVE CIRCUMSTANCES REMARKS ON SENTENCE JUVENILE CO OFFENDER

Citation: Takau v R [2003] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 20 June 2003
Judge(s): Hodgson JA, Simpson J, Greg James J

Background

The applicant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm following a violent assault in Sydney's CBD in October 2001. The victim was stomped repeatedly on the face and left unconscious for nearly a month, suffering serious brain injury, balance problems, and other lasting effects. The applicant committed the offence alongside a juvenile co-offender.

The District Court sentenced the applicant to four years' imprisonment with a non-parole period of two years and nine months. The sentencing judge found special circumstances justifying a departure from the standard non-parole ratio but reduced the non-parole period by only a short margin.

The applicant sought leave to appeal, arguing that the sentence was excessive in light of the penalty imposed on the juvenile co-offender and that the sentencing judge had erred by refusing to take that penalty into account.

  • Whether the sentencing judge erred by disregarding the penalty imposed on the juvenile co-offender when sentencing the adult applicant
  • Whether the juvenile co-offender's sentence, if erroneously lenient, could properly be set aside as a parity consideration
  • What, if any, adjustment to the sentence was warranted as a result of any identified error

Decision

The Court of Criminal Appeal found that the sentencing judge had erred by declining to take the juvenile co-offender's penalty into account. The judge had apparently treated the Children's Court sentence as manifestly inadequate and, on that basis, excluded it from his sentencing analysis entirely. The Court of Criminal Appeal rejected that approach.

Simpson J, with whom Hodgson JA and Greg James J agreed, confirmed that a sentence imposed in the Children's Court on a co-offender is a relevant consideration when sentencing an adult co-offender in an adult court. That principle was supported by two earlier decisions of the same court. While the juvenile's sentence did not dictate the outcome for the adult applicant, it remained a relevant factor that should have been weighed.

The Court concluded that the error had its most significant impact on the finding of special circumstances and the consequent reduction of the non-parole period. The head sentence of four years was appropriate and was left undisturbed. However, to correct the error, the Court reduced the non-parole period from two years and nine months to two years.

Orders Made

  • Leave to appeal granted
  • Non-parole period reduced from two years and nine months to two years; head sentence of four years otherwise confirmed
  • Sentence and non-parole period to commence on 23 July 2002
  • Applicant eligible for release on parole on 22 July 2004
  • Court recommended that release on parole be conditional on supervision by the Probation and Parole Service for as long as that service considers appropriate

Key Takeaways

  • A sentence imposed by a Children's Court on a juvenile co-offender is a relevant consideration when an adult co-offender is sentenced in an adult court, and a sentencing judge cannot simply discard it.
  • The mere belief that a co-offender's sentence was manifestly inadequate does not justify excluding that sentence from parity analysis altogether.
  • Where a sentencing error is identified, the Court of Criminal Appeal will assess its precise impact before intervening; here, the head sentence was appropriate and only the non-parole period was adjusted.
  • The Court of Criminal Appeal confirmed its earlier authority in R v Colgan [1999] NSWCCA 292 and R v Ellis and Carr [2002] NSWCCA 211 on the relevance of Children's Court sentences to adult sentencing parity.
  • A finding of special circumstances does not, by itself, guarantee a substantial reduction in the non-parole period; the extent of reduction remains subject to the sentencing court's proper exercise of discretion, including consideration of all relevant co-offender sentences.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Children's (Criminal Proceedings) Act 1997 (NSW), s 33

Cases:
- R v Colgan [1999] NSWCCA 292
- R v Ellis and Carr [2002] NSWCCA 211