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17
Court of Criminal Appeal 7 July 2003

Regina v Voss

[2003] NSWCCA 182

Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE SENTENCE YOUTHFUL OFFENDER MATTERS OF PRINCIPLE WELL ESTABLISHED NO ERROR IN APPLICATION OR ASSESSMENT

Citation: Regina v Voss [2003] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 7 July 2003
Judges: Grove J (primary judgment); Whealy J and Shaw J (agreeing)

Background

The applicant, aged 17 years and six months at the time of the offence, pleaded guilty in the District Court to breaking and entering a dwelling house and committing stealing in circumstances of special aggravation. The aggravation arose from his infliction of grievous bodily harm on a 12-year-old boy who awoke during the burglary. The applicant had entered the boy's bedroom via a balcony, armed with a knife, intending to steal a stereo system to fund marijuana purchases.

When the child woke and called out, the applicant picked up a cricket bat belonging to the boy and struck him twice on the head. The victim suffered a fractured skull, was placed on a respirator, and remained in a coma for several days. He sustained permanent and significant brain injury, with markedly reduced intellectual, verbal, and performance abilities.

Gibson DCJ in the District Court sentenced the applicant to ten years imprisonment with a non-parole period of six years and six months. Because the applicant was under 18 at the time of the offence, his Honour directed that he be detained in a juvenile detention centre until his 21st birthday. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge gave sufficient weight to the applicant's youth and his status as a child at the time of the offence.
  • Whether the ten-year sentence was manifestly excessive such that a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach to the applicant's youth. Grove J noted that the principles governing the sentencing of young offenders are well established, and that the sentencing judge had plainly considered those principles. The applicant's plea of guilty, relative lack of prior custodial history, remorse, and efforts toward rehabilitation in custody were all taken into account. The sentencing judge had also acknowledged the role of alcohol and drug intoxication, while correctly declining to treat it as a mitigating factor.

On the question of the objective seriousness of the offence, the Court found no error in the sentencing judge's starting estimate of 15 years imprisonment, which represented three-fifths of the statutory maximum. The Court accepted that the consequences for the victim were "catastrophic" and that such consequences were legitimately relevant to the assessment. The reduction to ten years, reflecting the subjective case and the utilitarian value of the guilty plea, was within the sound exercise of the sentencing discretion.

The Court also considered the submission that transfer to an adult institution after age 21 risked undermining rehabilitation gains made in the juvenile system. Grove J acknowledged this concern but noted that young offender programmes exist within the adult system and that this concern did not establish any error in the sentence imposed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principles for sentencing youthful offenders are well established, and an appeal on that ground requires demonstration of actual error in their application, not merely a different view of the weight to be given to those factors.
  • A sentencing estimate of 15 years (three-fifths of the maximum) for an aggravated break-and-enter resulting in catastrophic permanent injury to a child victim was held to be within the available range.
  • Voluntary intoxication through alcohol and drugs at the time of the offence did not require favourable mitigatory consideration, particularly where eyewitness evidence suggested the offender did not appear intoxicated.
  • No error was established merely because a juvenile offender would eventually be transferred to an adult institution, provided the sentencing judge had appropriately addressed custodial arrangements including the direction to detain in a juvenile centre until age 21.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal's jurisdiction to intervene on sentence is enlivened only where a lesser sentence is both warranted in law and should have been imposed; it is not enough to argue that a different outcome was available.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v AEM [2002] NSWCCA 58
- R v Bus (unreported, NSWCCA, 3 November 1995)
- R v GDP (1991) 53 A Crim R 112
- R v MHH [2001] NSWCCA 161
- R v Pham (1991) 55 A Crim R 128
- R v Tran [1999] NSWCCA 109