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6
Court of Criminal Appeal 22 June 2005

Regina v MSS

[2005] NSWCCA 227

Sexual offences
CRIMINAL LAW SENTENCING NO MATTER OF PRINCIPLE.

Citation: Regina v MSS [2005] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 22 June 2005
Judge(s): Spigelman CJ, Hunt AJA, Howie J

Background

The applicant was a juvenile who, at age 14 years and 9 months, sexually assaulted a 14-year-old female complainant in the back of a vehicle. He had driven the complainant and a co-offender to a service station and then, after stopping the vehicle, digitally penetrated the complainant without her consent. The complainant was significantly intoxicated, having consumed alcohol that the applicant had brought to a gathering at a local park.

The applicant was tried alongside a co-offender on a charge of aggravated sexual assault under s 61J of the Crimes Act 1900. The jury acquitted him of that charge but convicted him on an alternative count under s 66C, which carries a maximum of 8 years imprisonment. The trial judge found that the jury was not satisfied the applicant knew the complainant was not consenting, a conclusion grounded in the prior friendship between the two and the complainant's intoxicated state.

At sentencing in the District Court, the applicant was 16 years old. Judge Ellis imposed 18 months imprisonment, to be served in a Juvenile Detention Centre, with a non-parole period of 9 months. The applicant sought leave to appeal, contending the sentence was excessive and that the sentencing judge erred by imposing a custodial order under the general law rather than under the Children (Criminal Proceedings) Act 1987.

  • Whether the sentence of 18 months imprisonment with a 9-month non-parole period was manifestly excessive in all the circumstances.
  • Whether the sentencing judge erred by sentencing the applicant according to law rather than pursuant to Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987, which provides an alternative sentencing framework for juvenile offenders.

Decision

Howie J, with whom Spigelman CJ and Hunt AJA agreed, dismissed the appeal. The court found no error in the sentencing judge's decision to impose a custodial sentence rather than proceed under the juvenile-specific sentencing framework in the Children (Criminal Proceedings) Act 1987.

The court acknowledged the tension inherent in sentencing a juvenile for a serious sexual offence, recognising the competing principles of rehabilitation on one side and punishment and deterrence on the other. It accepted that reasonable minds could legitimately differ on where to strike the balance, but found that the sentencing judge's exercise of discretion was not beyond what was open on the facts.

Of particular significance to the court was the applicant's risk profile. He had continued to deny the offence after conviction, refused to engage with sexual assault counselling, displayed a persistent pattern of aggression and disregard for authority, and colluded with his father to conceal his school misconduct history from the Juvenile Justice officers. The Juvenile Justice report assessed him as a medium-to-high risk of reoffending and considered him unsuitable for a counselling program.

The court found that personal deterrence was a weighty consideration given those attitudes, and that a custodial sentence was appropriate to impress upon the applicant the seriousness of the offending. The applicant had been on bail from December 2004 pending the appeal. The court adjusted the sentence dates to account for that period but made no alteration to the length of the sentence or the non-parole period.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Non-parole period of 9 months adjusted to expire on 21 January 2006, the date of release to parole.
  • Sentence expires in its entirety on 21 October 2006.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge retains a discretion to sentence a juvenile offender under the general criminal law rather than the alternative framework in the Children (Criminal Proceedings) Act 1987, where the circumstances of the offence and the offender warrant it.
  • Personal deterrence can carry particular weight when a juvenile offender continues to deny a proven offence, refuses to engage with rehabilitative programs, and demonstrates entrenched disregard for authority.
  • Where a sentencing court finds that an applicant and a family member have colluded to conceal relevant background information from Juvenile Justice officers, that conduct bears on character and can undermine mitigation that might otherwise be available.
  • No error was established simply because the applicant was on bail for most of the period between sentence and the hearing of the appeal; however, the court adjusted the expiry dates of the sentence and non-parole period to reflect time spent on bail.
  • The decision turned entirely on the particular facts and was not treated as raising any matter of principle of broader application.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 66C
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 17, 18(1A), 19(1A), Division 4 of Part 3

Cases
- R v WKR (1993) 32 NSWLR 447
- R v Palu (2002) 134 A Crim R 174