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Court of Criminal Appeal 2 September 2005

R v VL

[2005] NSWCCA 301

Assault & violenceTheft & property

Citation: R v VL [2005] NSWCCA 301
Court: New South Wales Court of Criminal Appeal
Date: 2 September 2005
Judge(s): Grove J, Hulme J, Simpson J

Background

The applicant, referred to throughout as VL to comply with statutory suppression requirements, was a juvenile at the time of the relevant offending. In April 2003, when he was approximately 15 years and 10 months old, VL participated in the kidnapping and robbery of a medical practitioner, who was held at knifepoint and transported between locations while his bank account was accessed.

VL was sentenced by Judge O'Reilly in the District Court in May 2004. The sentence covered one charge of taking and detaining a person without consent with intent to obtain a financial advantage, where the victim sustained actual bodily harm, contrary to section 86(3) of the Crimes Act 1900. Two further offences, including the associated armed robbery and a minor cannabis possession charge, were taken into account on a Form 1.

The District Court imposed a non-parole period of four years and a total term of six years, commencing from the date of VL's arrest in May 2003. VL sought leave to appeal against that sentence.

  • Whether the total sentence imposed was excessive having regard to VL's youth and subjective circumstances
  • Whether the sentencing judge erred by failing to find "special circumstances" under section 44 of the Crimes (Sentencing Procedure) Act and section 19 of the Children (Criminal Proceedings) Act 1987
  • Whether a mathematical error in calculating the total term from the non-parole period warranted correction
  • Whether VL's custodial term should be directed to be served in a juvenile detention centre rather than an adult gaol

Decision

Hulme J (with Grove J and Simpson J agreeing) examined the objective seriousness of the offending. The kidnapping involved multiple offenders, weapons including a knife and a metal pole, threats to stab the victim, and sustained detention across multiple locations. The associated armed robbery was taken into account as a Form 1 matter.

The Court considered comparable sentencing authority and found that neither the non-parole period nor the total term was so excessive as to independently require a lesser sentence. However, two specific errors required correction.

The first was a mathematical error. The sentencing judge moved from a four-year non-parole period to a six-year total term, producing a balance of term of two years. The Court found this was plainly wrong as a matter of calculation and reduced the total term to five years and four months to eliminate the additional eight months caused by the error.

The second error was the failure to find special circumstances. VL's youth, his prospects of rehabilitation, and the contents of the Juvenile Justice reports all clearly established that a longer period of supervised parole was warranted. Hulme J reduced the non-parole period by six months and extended the balance of term accordingly. The Court also ordered that the custodial portion be served as a juvenile offender under section 19 of the Children (Criminal Proceedings) Act, noting that VL would be under 19 and a half years of age when the non-parole period concluded.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Judge O'Reilly on 18 May 2004 quashed
  • In substitution: imprisonment with a non-parole period of 3 years and 6 months commencing 9 May 2003, with a balance of term of 1 year and 6 months
  • Date of eligibility for parole recorded as 9 November 2006
  • Order made under section 19 of the Children (Criminal Proceedings) Act 1987 that the custodial portion of the sentence be served as a juvenile offender

Key Takeaways

  • A mathematical error in moving from a non-parole period to a total term constitutes a sentencing error that the Court of Criminal Appeal will correct, even where neither the non-parole period nor the total term is independently excessive.
  • Under section 44 of the Crimes (Sentencing Procedure) Act and section 19 of the Children (Criminal Proceedings) Act 1987, a failure to find special circumstances for a juvenile offender with significant rehabilitation needs amounted to error in this case.
  • The Court of Criminal Appeal confirmed that a juvenile's age, background, and prospects of rehabilitation are weighty considerations in determining the balance between the non-parole period and the balance of term.
  • An offence under section 86(3) of the Crimes Act 1900 carries a maximum of 25 years imprisonment; the Court treated the higher maximum as a relevant distinction from comparable cases concerning offences with lower maximum penalties.
  • Where a juvenile offender will remain under the relevant age threshold at the conclusion of the non-parole period, an order directing that the sentence be served in a detention centre rather than an adult gaol remains appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(3) (kidnapping with actual bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 11 (non-publication of identifying information), 19 (juvenile detention orders)

Cases:
- R v Henry (referenced by Hulme J in the context of comparative sentencing for kidnapping; citation not provided in the judgment extract)