Citation: Regina v WM [2004] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 12 March 2004 (Supplementary judgment: 19 March 2004)
Judges: Grove J, Sully J, Bell J
Background
The respondent, WM, was a young offender who appeared before the District Court in April 2003 for sentencing on seven counts on indictment, together with eighteen further offences taken into account on a Form 1. The offences spanned the period from September 2000 to March 2001 and included armed robbery and sexual assault matters. The respondent pleaded guilty to all seven counts.
The District Court (Blackmore DCJ) imposed sentences with an effective total term of five years imprisonment, with a non-parole period of two years and six months commencing 1 May 2003. The respondent also carried prior criminal history, including convictions for malicious wounding and firing a firearm in a public place, for which he had already received substantial sentences from Judge Kinchington in 2002.
The Crown appealed to the Court of Criminal Appeal, arguing that the sentences passed by Judge Blackmore were manifestly inadequate given the nature and volume of the offending.
Legal Issues
- Whether the effective sentences imposed by the District Court were manifestly inadequate in all the circumstances
- How the sentences should properly reflect the respondent's overall criminality, including the volume of offending and the Form 1 matters
- What weight should be given to the respondent's youth, guilty pleas, and other subjective factors in the context of serious and repeated offending
- Whether, given the respondent's age, any re-sentence should be served in a Juvenile Detention Centre under the Children (Criminal Proceedings) Act 1987 (NSW)
Decision
Sully J, with Grove J and Bell J agreeing, found that the Crown appeal should be allowed. The sentences imposed in the District Court were manifestly inadequate when assessed against the seriousness and multiplicity of the offending across the relevant period.
The Court acknowledged the respondent's youth as a significant mitigating factor, as well as the discounts properly available for his guilty pleas. However, those factors did not justify the extent of the leniency reflected in the original sentences, particularly given the nature of the counts and the additional offences on the Form 1.
In re-sentencing, Sully J structured individual sentences for each of the seven counts with a cascading commencement arrangement, producing an overall effective term. The Court also addressed the respondent's status as a young person, ordering under section 19 of the Children (Criminal Proceedings) Act 1987 (NSW) that he serve his sentences in a Juvenile Detention Centre until he attained the age of 21 years.
A supplementary judgment issued on 19 March 2004 corrected a dating discrepancy in the non-parole period for Count 7. The Court confirmed that the intended overall effect was an effective sentence of nine years with a non-parole period of six years, and adjusted the Count 7 non-parole period accordingly.
Orders Made
- Crown appeal allowed
- Sentences passed in the District Court quashed
- Respondent re-sentenced as follows:
- Count 1: 7 years imprisonment commencing 1 May 2003, expiring 30 April 2010; non-parole period of 4 years and 6 months, expiring 30 October 2007
- Count 5: 2 years and 3 months imprisonment commencing 1 May 2003, expiring 30 July 2005; non-parole period of 1 year and 3 months, expiring 30 July 2004
- Count 6: 7 years imprisonment commencing 1 May 2004, expiring 30 April 2011; non-parole period of 4 years and 6 months commencing 1 May 2004, expiring 30 October 2008
- Count 7: 7 years imprisonment commencing 1 May 2005, expiring 30 April 2012; non-parole period of 4 years commencing 1 May 2005, expiring 30 April 2009 (as corrected by supplementary judgment)
- Total effective sentence: 9 years imprisonment commencing 1 May 2003, expiring 30 April 2012; non-parole period of 6 years commencing 1 May 2003, expiring 30 April 2009
- Order under section 19 of the Children (Criminal Proceedings) Act 1987 (NSW) that the respondent serve sentences in a Juvenile Detention Centre until he attains 21 years of age
Key Takeaways
- The Court of Criminal Appeal confirmed that manifestly inadequate sentences will be quashed on Crown appeal even where the offender is young and has pleaded guilty, if the overall sentencing outcome fails to reflect the true gravity and volume of the criminality involved.
- A guilty plea and youthful age remain relevant mitigating considerations, but they do not operate without limit where an offender has committed serious and numerous offences over an extended period.
- Where multiple sentences are imposed for offences committed on different dates, a cascading or cumulative structure may be appropriate to ensure the total effective sentence properly reflects the totality of the offending.
- Under section 19 of the Children (Criminal Proceedings) Act 1987 (NSW), a court may order that a young offender serve a custodial sentence in a Juvenile Detention Centre rather than an adult correctional facility, at least until the offender reaches 21 years of age.
- Clerical or arithmetic errors in sentencing orders, including dating discrepancies in non-parole periods, can be corrected by supplementary judgment to give effect to the court's clearly expressed sentencing intention.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), including section 32 (Form 1 procedure)
- Crimes Act 1900 (NSW), including sections 35(1)(a) (malicious wounding) and 93G(1)(b) (firing a firearm in a public place)
- Children (Criminal Proceedings) Act 1987 (NSW), section 19
Cases:
- Reg v Thomson and Houlton (2000) 49 NSWLR 383
- Reg v NP [2003] NSWCCA 195
- Reg v Ellis (1986) 6 NSWLR 603
- Reg v Hallacoglu (1992) 63 A Crim R 287