Citation: Regina v BB [2005] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 16 June 2005
Judge(s): Studdert J, James J, Howie J
Background
The applicant was a juvenile who pleaded guilty in the District Court to aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, carrying a maximum of 20 years' imprisonment. He had entered a victim's home, armed himself with a wooden fence picket, attacked the occupier causing lacerations requiring 25 stitches, and stole the victim's wallet.
The prosecution history was complex. The applicant initially pleaded guilty in the Children's Court and was referred toward a drug diversion program. Police then re-charged him with the more serious offence of break, enter and steal in circumstances of special aggravation under s 112(3), which carried a 25-year maximum and could not be dealt with in the Children's Court. That charge required the matter to be transferred to the District Court. The Crown ultimately abandoned the s 112(3) charge, accepting a plea to the s 112(2) offence instead, but sought to have a malicious wounding charge dealt with on a Form 1 (a document allowing additional offences to be taken into account at sentencing without a separate conviction).
Judge Latham sentenced the applicant to 5 years and 6 months' imprisonment with a non-parole period of 3 years, to be served in a Juvenile Detention Centre. The applicant sought leave to appeal, arguing the sentencing miscarried on three grounds.
Legal Issues
- Whether the sentencing judge erred by treating the Form 1 malicious wounding offence as an aggravating factor for the s 112(2) charge, effectively sentencing the applicant for the abandoned s 112(3) offence and thereby breaching the principle in R v De Simoni (which prohibits sentencing an offender for a more serious offence of which they have not been convicted)
- Whether the judge gave insufficient weight to the delay in proceedings and the hardship that delay caused the applicant, particularly the loss of any opportunity for diversion through the Youth Drug Court
- Whether the sentence of 5 years and 6 months was manifestly excessive, having regard to the applicant's youth, disadvantaged background, and prospects for rehabilitation
Decision
Ground 1: The De Simoni principle. Howie J acknowledged the genuine difficulty the sentencing judge faced. Taking the malicious wounding into account on the Form 1 risked replicating the effect of the abandoned s 112(3) charge. However, his Honour accepted that this risk could technically be managed by strict adherence to the principles set out in the Attorney-General's Guideline Judgment, provided the ultimate sentence was demonstrably different from what would have been imposed for either the s 112(2) or s 112(3) offences alone. No legal error was established on this ground.
Ground 2: Delay. The Court accepted that the applicant had lost his opportunity for diversion to the Youth Drug Court as a direct result of the re-charging decision by police. Howie J found that the sentencing judge was aware of this history and took it into account. No failure to adequately consider delay was established.
Ground 3: Manifest excess. The Court found that the offence was of substantial seriousness regardless of the Form 1 matter, describing it as a "gross violation of the safety and security of a young man in his own home." Despite the applicant's youth, disadvantaged background, and rehabilitation prospects, Howie J concluded the offence could not sensibly be characterised as anything other than an adult crime. The judge had properly applied a 25% discount for the guilty plea, found special circumstances, and balanced general deterrence against rehabilitation. Citing the High Court's recent guidance in Markarian v The Queen on appellate deference to sentencing discretion, the Court was not persuaded the sentence was manifestly excessive.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The De Simoni principle, which prohibits sentencing an offender on the basis of conduct constituting a more serious offence of which they were not convicted, creates particular complexity where a Form 1 offence overlaps with an element of a more serious charge the Crown has abandoned.
- Strict adherence to the guideline principles for Form 1 sentencing can, in theory, permit a court to take such matters into account without breaching De Simoni, provided the resulting sentence is manifestly distinct from what would be imposed for either the principal or the more serious offence in isolation.
- Where procedural history has deprived a juvenile offender of a diversion opportunity, a sentencing court is required to consider that hardship, but its weight is a matter for the judge's discretion.
- In dismissing the appeal, the Court affirmed that the gravity of an offence can, in appropriate cases, support characterising juvenile conduct as effectively adult in nature, particularly where the offending involved premeditation and deliberate violence.
- Following Markarian v The Queen [2005] HCA 25, an appellate court should afford significant deference to a sentencing judge's discretionary exercise where no patent error is apparent in the sentencing process and where reasonable minds could legitimately differ on the appropriate sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(b), 112(2), 112(3)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 28
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Cases:
- R v De Simoni (1981) 147 CLR 383
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
- Markarian v The Queen [2005] HCA 25
- R v Dowd [2005] NSWCCA 113
- R v Bavadra (2000) 115 A Crim R 152
- R v Barton (2001) A Crim R 185
- R v Todd [1982] 2 NSWLR 517