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6
Court of Criminal Appeal 4 March 2003

REGINA v. AO

[2003] NSWCCA 43

Also reported as (2003) 138 A Crim R 189
Assault & violenceTheft & property
CRIMINAL LAW CHILD OFFENDER SENTENCE APPEAL MULTIPLE ARMED ROBBERIES APPEAL DISMISSED.

Citation: Regina v AO [2003] NSWCCA 43
Court: New South Wales Court of Criminal Appeal
Date: 4 March 2003
Judges: Hulme J, Greg James J, Shaw J

Background

The appellant was a young Somali refugee who pleaded guilty in the District Court to nine counts of armed robbery, one count of robbery in company, and one count of attempted robbery in company. A further 22 offences were taken into account on Form Ones. The offences involved a series of knife-point robberies at service stations over a six-week period in late 2000, resulting in an overall sentence of seven years imprisonment with a four-year non-parole period.

The District Court sentenced the appellant on the basis that he was 16 years old at the time of the offences, having determined his birth year to be 1984. On appeal, fresh evidence emerged indicating he was in fact born in September 1986, making him 14 at the time of the offences. This two-year difference carried potential significance under the legislative framework governing child offenders.

The appellant had been dealt with under the Children (Criminal Proceedings) Act 1987, with the District Court directing that the whole sentence be served in a detention centre until he turned 21. The fresh evidence raised the question of whether the sentencing approach, and the range of sentencing options considered, should have been different given his correct age.

  • Whether fresh evidence establishing the appellant was 14 (not 16) at the time of the offences should be admitted on appeal
  • Whether the two-year age difference was capable of making any material difference to the sentence imposed
  • Whether the matter should be remitted to the sentencing judge for reconsideration in light of the fresh evidence
  • Whether the Court of Criminal Appeal had power under s 12(2) of the Criminal Appeal Act 1912 to remit the matter to the trial judge

Decision

The majority (Hulme J and Greg James J) granted leave to appeal but dismissed the appeal. Despite accepting the fresh evidence that the appellant was 14 at the time of the offences, the majority concluded that the age difference could not have made any practical difference to the outcome. The sentencing options theoretically available under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987, including control orders capped at two years, were wholly inadequate to address the gravity and volume of the offending. Even on the most favourable view of the fresh evidence, the sentence actually imposed could not be said to be one that ought not to have been passed.

The majority noted the appellant's extensive prior criminal record, the number and seriousness of the offences (33 in total, each carrying a maximum of 20 years), and the fact that the offending occurred while he was on parole. These factors, taken together, meant the fresh evidence regarding age was insufficient to disturb the sentence.

Shaw J delivered a dissenting judgment. His Honour accepted that the Court had power under s 12(2) of the Criminal Appeal Act 1912 to remit the matter to the sentencing judge and considered that procedural fairness required such a remitter. Shaw J reasoned that a two-year age difference was significant in multiple respects, including the question of appropriate sentencing forum and the assessment of rehabilitation prospects. His Honour would have allowed the appeal, quashed the sentence, and remitted the matter to the District Court for reconsideration.

The majority position prevailed: leave to appeal was granted and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Fresh evidence of a child offender's true age is admissible on a sentence appeal, but its admission does not automatically result in resentencing. The fresh evidence must be capable of making a material difference to the outcome.
  • Where the sentencing options theoretically available to a younger child offender are manifestly inadequate to address the gravity of the offending, a court may conclude that the age correction cannot alter the sentence imposed.
  • The Court of Criminal Appeal confirmed, through Shaw J's dissent, that s 12(2) of the Criminal Appeal Act 1912 provides a plenary power to remit a matter or issue to a trial judge for further determination, including for reconsideration of a sentence in light of fresh evidence.
  • A two-year age difference between 14 and 16, while legally significant under the Children (Criminal Proceedings) Act 1987, was held by the majority not to change the appropriate sentence in circumstances involving 33 serious offences, a prior criminal record, and offending committed on parole.
  • Procedural fairness considerations, which Shaw J considered pointed toward remitter, were weighed against the practical reality that no variation in sentence was open on the evidence.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 16, 18, 19, 33, 45
- Young Offenders Act 1997 (NSW)
- Justices Act 1902 (NSW), s 51A
- Criminal Appeal Act 1912 (NSW), s 12(2)

Cases:
- Cocking [1999] NSWCCA 311
- FQ (CCA, unreported, 28 May 1998)
- GDP (1991) 53 A Crim R 112
- Bus & AS (CCA, unreported, 3 November 1995)
- Histollo Pty Limited v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661
- T [2001] NSWCCA 210