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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: Court of Criminal Appeal, New South Wales
Date: 4 March 2003
Judge(s): 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. All 33 offences arose from a six-week period in late 2000, involving threats with knives at service stations.

The sentencing judge, Sides DCJ, proceeded on the basis that the appellant was 16 years old at the time of the offences, having found his date of birth to be September 1984. The judge imposed an aggregate sentence of seven years imprisonment with a four-year non-parole period, directing that the sentence be served in a detention centre pursuant to the Children (Criminal Proceedings) Act 1987.

On appeal, fresh evidence emerged, including a birth certificate and a letter from the Department of Immigration, suggesting the appellant was in fact born in September 1986, making him 14 at the time of the offences. The appeal was brought on the ground that this age difference was material to the sentencing exercise.

Legal Issues

  • Whether the fresh evidence established, on the balance of probabilities, that the appellant was 14 rather than 16 at the time of the offences
  • Whether a two-year difference in the appellant's age could have made any difference to the sentence imposed
  • Whether the matter should be remitted to the sentencing judge for reconsideration in light of the fresh evidence
  • What principles govern the sentencing of young offenders, including the relative weight of rehabilitation and deterrence, and how age within the range of childhood affects those principles

Decision

Issue 1: The fresh evidence of age

Greg James J, with Hulme J agreeing, concluded that the fresh evidence was sufficient to find it more probable than not that the appellant was 14 at the time of the offences. The original documentation before the sentencing judge had proceeded on the basis of incorrect information provided to authorities, without reference to primary records. Shaw J reached the same conclusion, describing it as "more than respectably arguable" that the appellant was 14.

Issue 2: Whether the age difference could have affected the sentence

The majority (Greg James J, with Hulme J agreeing) applied the test from Regina v T [2001] NSWCCA 210: whether there was a significant possibility that the sentences might be revised favourably if the factual error were corrected. Applying that test, the majority found no such significant possibility existed. Given the appellant's extensive prior record, the fact that he was on conditional liberty when he committed the offences, and the number and gravity of the crimes, the majority concluded that no more lenient sentence could rationally have been passed, even accepting the appellant was two years younger.

Issue 3: Remitter

The majority declined to remit the matter to the sentencing judge, on the basis that remission would serve no purpose if the fresh evidence could not have led to any different outcome. The appellant's counsel expressly disclaimed seeking a control order in lieu of imprisonment, and the majority found that no other sentence was warranted in law for offences of this culpability.

Issue 4: Shaw J's dissent

Shaw J dissented, favouring remission. His Honour reasoned that age is relevant to the sentencing exercise in multiple respects, including assessments of culpability, rehabilitation prospects, and the relative weight of deterrence. Shaw J observed that the sentencing judge had not treated the appellant's age as a factor that "tempered" personal and general deterrence, and that a judge sentencing a 14-year-old, who would be released at 18 rather than 20, may well have exercised the discretion differently. Shaw J also noted that where age is in issue, it should be proved to the criminal standard, not merely on the balance of probabilities, citing The Queen v Olbrich (1999) 199 CLR 270. His Honour would have allowed the appeal, quashed the sentence, and remitted the matter to Sides DCJ.

Orders Made

The orders proposed by Shaw J in the orders section reflect his dissenting position. The actual orders made by the majority were:

  • Leave to appeal granted
  • Appeal dismissed

(Note: The orders section extracted from the judgment reproduces Shaw J's proposed dissenting orders. The operative orders of the Court, as stated at the conclusion of Greg James J's majority judgment, were that leave to appeal be granted and the appeal dismissed.)

Key Takeaways

  • A two-year difference in a child offender's age at the time of offending does not automatically warrant resentencing; the Court of Criminal Appeal applies a "significant possibility of a different outcome" test before intervening or remitting.
  • In dismissing the appeal, the majority confirmed that where the nature and volume of an offender's criminality and prior record are such that no more lenient sentence was available in law, fresh evidence about a child's exact age will not displace the original sentence even if that age is materially different from what the sentencing judge found.
  • Shaw J's dissent articulated a detailed framework for how a child's age within the range of 10 to 18 years affects multiple aspects of the sentencing discretion, including culpability assessments, rehabilitation prospects, and the weight of deterrence, concluding that "the younger the offender, the greater the weight to be afforded to the element of youth."
  • The dissent also raised, without final resolution by the majority, whether age must be proved beyond reasonable doubt rather than on the balance of probabilities when it is a contested issue capable of affecting sentence.
  • Under the Children (Criminal Proceedings) Act 1987, courts sentencing children in the District Court retain the option of dealing with an offender according to the Children's Court regime, including control orders, rather than imposing terms of imprisonment; the availability of that alternative regime is a live consideration where an offender's age is in dispute.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated