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Court of Criminal Appeal 22 March 2004

J L C-H v R

[2004] NSWCCA 70

Sexual offences
SENTENCE

Citation: J L C-H v R [2004] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 22 March 2004
Judge(s): Santow JA; Hulme J; Hidden J

Background

The applicant was 16 years and 9 months old when he committed a serious aggravated sexual assault in Young, NSW in October 2001. He pleaded guilty to one count of aggravated sexual intercourse without consent (the aggravating factor being actual bodily harm), and asked the court to take into account two further counts of sexual intercourse without consent arising from the same incident. The victim sustained severe injuries requiring surgery, and later developed post-traumatic stress disorder.

At sentencing in February 2003, Bell DCJ in the District Court imposed a sentence of 10 years imprisonment with a non-parole period of seven years, commencing from December 2002. The sentencing judge applied a 25 per cent reduction for the guilty plea, which had been entered at the earliest opportunity, and directed that the applicant serve his sentence in a children's detention centre until he turned 21. The applicant was almost 18 years and two months old at the time of sentencing.

The applicant sought leave to appeal against the severity of the sentence in the Court of Criminal Appeal, arguing that the sentencing judge had failed to give adequate weight to his youth and had placed too much emphasis on general deterrence.

  • Whether the sentencing judge gave sufficient weight to the applicant's youth as a mitigating factor
  • Whether the sentencing judge placed excessive emphasis on general deterrence at the expense of other sentencing considerations, particularly rehabilitation
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

The Court granted leave to appeal, though it expressly left the question of resentencing to a subsequent hearing at which further evidence could be filed and tested. All three judges agreed that leave should be granted, primarily on the basis that insufficient weight may have been given to the applicant's youth.

Hulme J, who wrote the most detailed reasons, confirmed that youth does not displace any of the five recognised purposes of punishment, which are general deterrence, specific deterrence, retribution, rehabilitation and protection of the community. Rather, youth bears on the weight to be given to those purposes in a particular case. Where immaturity is a significant contributing factor to an offence, the level of criminality may fairly be regarded as less than it would be for a mature adult, which in turn reduces the weight properly attributable to retribution and often to specific deterrence.

The Court acknowledged, however, that youth is not automatically decisive. The gravity of the offending, the violent and deliberate nature of the assault, and the applicant's prior exposure to court proceedings were all factors that could limit the weight properly accorded to youth. Against that, his dysfunctional and violent upbringing, as described in the pre-sentence report and accepted by the sentencing judge, supported the conclusion that youth contributed meaningfully to his offending.

On balance, the Court found that the applicant was entitled to have some weight given to youth, and that a question arose as to whether the sentencing judge had sufficiently reflected this. While the sentence was otherwise within the available range given the seriousness of the offending, the issue of youth justified granting leave and proceeding to a fresh sentencing hearing with updated evidence.

Orders Made

  • Leave to appeal against the severity of sentence was granted.
  • After the applicant had the opportunity to file any further evidence, and the Crown to respond, a further hearing was to take place, limited to sentence only.

Key Takeaways

  • Youth does not override or eliminate any of the standard purposes of criminal punishment, but it does bear on the relative weight given to those purposes in the circumstances of a particular case.
  • Where immaturity is a significant contributing factor to an offence, the level of criminality may be treated as lower than it would be for an adult, which is relevant to both retribution and specific deterrence.
  • General deterrence carries reduced weight when sentencing young offenders, while rehabilitation assumes greater importance, consistent with the principle stated by Gleeson CJ in the earlier unreported decision of C, S and T.
  • The weight accorded to youth can be limited by countervailing considerations, including the gravity and violent nature of the offending, and evidence that the offender was not wholly ignorant of the rights of others.
  • A dysfunctional and violent upbringing, documented in a pre-sentence report and unchallenged by the Crown, can strengthen the case that youth contributed to an offender's conduct and should carry some mitigating weight.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J (aggravated sexual intercourse without consent; maximum penalty 20 years)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v AEM [2002] NSWCCA 58
- C, S and T (NSWCCA, 12 October 1989, unreported)
- R v Hearne [2001] 124 A Crim R (NSWCCA)
- Nichols (1991) 57 A Crim R 391
- Pham (1991) 55 A Crim R 128
- R v Simpson [2000] NSWCCA 534; (2001) 53 NSWLR 704