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Court of Criminal Appeal 30 November 2004

R v JNN

[2004] NSWCCA 426

Assault & violence
SENTENCING SERIOUS OBJECTIVE CRIMINALITY JUVENILE WHEN OFFENCE COMMITTED OFFENDER OFFENDER SENTENCED FOR OTHER OFFENCES

Citation: JNN v R [2004] NSWCCA 426
Court: NSW Court of Criminal Appeal
Date: 30 November 2004
Judges: Wood CJ at CL, McClellan AJA, Smart AJ

Background

The appellant, a young woman aged 17 years and two months at the time of the offence, sought leave to appeal against a sentence imposed in the District Court for detaining the complainant without her consent and with intent to obtain an advantage, in circumstances of special aggravation. The offence carried a maximum penalty of 25 years imprisonment. Because of the appellant's age, the matter was classified as a serious children's indictable offence under the Children's Criminal Proceedings Act 1987 and required treatment according to law.

The offence involved the complainant being lured from her home under false pretences, forced into a vehicle, and driven to a park. There, she was repeatedly kicked and beaten, had her hair cut off with scissors, was stripped of her clothing, and was subjected to degrading verbal abuse. The appellant played a leading role throughout, including kicking the complainant multiple times in the head and cutting her hair. The complainant suffered serious physical injuries and ongoing psychological harm, including acute post-traumatic stress disorder.

The District Court sentenced the appellant to imprisonment for 3 years and 4 months with a non-parole period of 20 months. The appellant argued that her sentence lacked due proportion compared to the sentence received by her co-offender, Toan La, who had been sentenced for his role in the same offence alongside other separate offences.

  • Whether the full term and non-parole period of the appellant's sentence were disproportionate to the sentence effectively served by the co-offender Toan La for the same offence of 27 March 2002
  • How partial concurrency and partial cumulation of sentences for a co-offender, who was sentenced across multiple offences, affected the proportionality comparison
  • Whether the sentencing judge gave sufficient weight to the appellant's status as a juvenile, her plea of guilty, and her remorse when fixing sentence

Decision

The Court of Criminal Appeal found that, despite the serious objective criminality involved, the full term of the appellant's sentence lacked due proportion when compared with what Toan La would effectively serve for the same offence. The Court acknowledged the complexity introduced when co-offender sentences involve partial concurrency and partial cumulation across different offences, noting that such arrangements can produce distortions in proportionality comparisons.

The Court accepted that the appellant's criminality was greater than Toan La's in relation to the 27 March 2002 offence. However, it weighed this against the facts that the appellant had pleaded guilty, demonstrated genuine remorse, and was a juvenile at the time of the offending. The Court concluded that these factors, taken together, required a modest reduction in both the full term and the non-parole period.

Smart AJ reduced the full term from 3 years and 4 months to 3 years, describing anything shorter as insufficient to reflect the objective criminality of the offence. The non-parole period was reduced from 20 months to 18 months. The Court acknowledged that these were minor reductions but explained that anything less than 18 months would inadequately reflect the appellant's substantial criminality. Special circumstances were found, based on this being her first time in custody and her need for extended supervision upon release.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed; original sentence quashed
  • In substitution: imprisonment for 3 years commencing 20 February 2004, with a non-parole period of 18 months expiring 19 August 2005, on which date the appellant was to be released to parole
  • Sentence to be served at a Juvenile Justice Detention Centre (or its successor)
  • On release, the appellant to be supervised during the parole period, with the NSW Probation and Parole Service taking over supervision from the Juvenile Justice System at a point assessed as mutually appropriate by both agencies

Key Takeaways

  • Where co-offenders are sentenced at different times and for different combinations of offences, partial concurrency and partial cumulation can distort proportionality comparisons, but the principle of due proportion still requires that all components of co-offenders' sentences be considered together.
  • A juvenile offender's age at the time of the offence remains a relevant mitigating factor even where the objective criminality is serious and the statutory framework requires the matter to be dealt with according to law.
  • In dismissing any suggestion that only a nominal adjustment was warranted, the Court of Criminal Appeal confirmed that even minor reductions to sentence are appropriate where proportionality requires them, provided the adjusted sentence still adequately reflects the gravity of the offending.
  • Special circumstances justifying an extension of the parole period beyond the statutory norm can be established by a combination of factors, including a first period of custody and the rehabilitative need for extended post-release supervision.
  • Genuine remorse and a utilitarian guilty plea (even where not entered at the first opportunity) remain relevant considerations at sentence, capable of influencing both the overall term and the non-parole period.

Legislation and Cases Referenced

Legislation
- Children's Criminal Proceedings Act 1987 (NSW), s 17

Cases
- R v Dodd (1991) 57 A Crim R 340
- R v GDP (1991) 53 A Crim R 112
- R v McVittie [2002] NSWCCA 344
- R v Steele (unreported, NSWCCA, 17 April 1997)
- Postiglione v The Queen (1996-7) 189 CLR 295