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15
Court of Criminal Appeal 19 November 2004

R v Tobar; R v JAN

[2004] NSWCCA 391

Also reported as (2004) 150 A Crim R 104
Assault & violenceTheft & propertyPublic order & justice offences
APPEAL AGAINST SENTENCES ARMED ROBBERY ARMED ROBBERY WITH WOUNDING ASSAULT WITH INTENT TO ROB WHILST ARMED FORM 1 OFFENCES JUVENILE OFFENDER

Citation: R v Tobar; R v JAN [2004] NSWCCA 391
Court: NSW Court of Criminal Appeal
Date: 19 November 2004
Judges: Dunford J, Simpson J, Hidden J

Background

Two juvenile offenders, referred to here as Tobar and JAN, each sought leave to appeal against sentences imposed by Urquhart DCJ in the District Court on 27 February 2004. Both had pleaded guilty to one count of armed robbery, one count of armed robbery with wounding, and one count of assault with intent to rob whilst armed. Three further armed robbery offences were taken into account on a Form 1 in each case. All offences occurred on the evening of 27 March 2003.

The offences were committed in company with a third person, CP, across three separate incidents in Balmain, Paddington, and Woollahra within the space of roughly an hour. The incidents involved weapons including a meat cleaver and a baseball bat, and resulted in serious injuries to at least two victims, including lacerations requiring stitches. Both applicants were juveniles at the time of the offending.

A key context for both appeals was that CP, the third co-offender sentenced at the same time in the District Court, had already successfully appealed his sentence to the Court of Criminal Appeal, which reduced it on two grounds: see R v P [2004] NSWCCA 218. This created an issue of sentencing consistency between co-offenders.

  • Whether the District Court sentences for Tobar and JAN were manifestly excessive having regard to their subjective circumstances as juvenile offenders
  • Whether the sentences were inconsistent with the reduced sentence imposed on co-offender CP by the Court of Criminal Appeal
  • How the standard minimum sentencing regime under the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 applied to these offences
  • Whether special circumstances existed to justify an adjustment to the ratio between the non-parole period and the balance of term under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentences should be served in a detention centre beyond the age of 18, pursuant to s 19 of the Children (Criminal Proceedings) Act 1987

Decision

The Court of Criminal Appeal allowed both appeals and quashed the sentences imposed in the District Court, re-sentencing each applicant. Simpson J (with Dunford J and Hidden J agreeing) delivered the principal judgment.

The Court found that the original sentences were excessive when assessed against the applicants' subjective circumstances as juvenile offenders and in light of the reduced sentence that had been imposed on co-offender CP. Parity between co-offenders is an established sentencing principle, and the prior reduction of CP's sentence was directly relevant to what remained appropriate for Tobar and JAN.

For the armed robbery with wounding charge, both applicants received a non-parole period of three years and a balance of term of three years and three months, representing a substantial reduction from the District Court's original terms of five years (Tobar) and five years and six months (JAN). The remaining charges attracted non-parole periods of two and a half years and balance terms of two and a half years, all to be served concurrently.

In relation to JAN specifically, the Court found special circumstances justifying continued detention in a juvenile justice facility, noting that the reports before it demonstrated his path to rehabilitation would be slow and that he required sustained care and support. An order was made under s 19(2) of the Children (Criminal Proceedings) Act 1987 that he serve his sentence in a detention centre until he turned 21 or was released on parole, whichever came first. The same order was made in respect of Tobar.

Orders Made

Tobar:
- Leave to appeal granted
- Appeal allowed
- District Court sentences quashed and replaced:
- Armed robbery with wounding: non-parole period of 3 years (from 3 November 2003, expiring 2 November 2006), balance of term of 3 years and 3 months (expiring 2 February 2010)
- Each other charge: non-parole period of 2 years and 6 months (from 3 November 2003, expiring 2 May 2006), balance of term of 2 years and 6 months (expiring 2 November 2008)

JAN:
- Leave to appeal granted
- Appeal allowed
- District Court sentences quashed and replaced:
- Armed robbery with wounding: non-parole period of 3 years (from 27 March 2003, expiring 26 March 2006), balance of term of 3 years and 3 months (expiring 26 June 2009)
- Each other charge: non-parole period of 2 years and 6 months (from 27 March 2003, expiring 26 September 2005), balance of term of 2 years and 6 months (expiring 26 March 2008)

Both applicants:
- Each sentence to be served in a detention centre until the applicant attains the age of 21 years, or until released on parole, whichever is the earlier

Key Takeaways

  • Sentencing parity between co-offenders remained a live consideration where the Court of Criminal Appeal had already reduced a co-offender's sentence before the remaining applicants' appeals were heard.
  • Juvenile status at the time of offending was a significant subjective factor informing the re-sentencing exercise, even where the offending was serious and involved weapons and physical injury.
  • Under s 19(2) of the Children (Criminal Proceedings) Act 1987, the Court confirmed it could order that a sentence continue to be served in a detention centre beyond the age of 18, where the individual's rehabilitative needs were assessed as requiring that environment.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can justify departing from the standard ratio between the non-parole period and the balance of term, including in cases involving young offenders with complex rehabilitation needs.
  • The new standard minimum sentencing regime, introduced by the 2002 Amendment Act, applied to all offences in this matter, as the offending postdated its commencement.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes Act 1900 (NSW), ss 97(1), 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54A, 54B; Parts 3 and 4
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Sentencing Act 1989 (NSW), s 5

Cases:
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Moffitt (1990) 20 NSWLR 114
- R v P [2004] NSWCCA 218
- R v Way [2004] NSWCCA 131