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Court of Criminal Appeal 5 October 2005

Regina v J.T.A.C.

[2005] NSWCCA 345

Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCE JUVENILE OFFENDER (13 YEARS) DEALT WITH AT LAW RELATIVELY SHORT PERIOD OF CUSTODY

Citation: Regina v J.T.A.C. [2005] NSWCCA 345
Court: New South Wales Court of Criminal Appeal
Date: 5 October 2005
Judge(s): Grove J, McClellan CJ at CL, Hislop J

Background

The applicant, a juvenile aged 13 at the time of the offences, pleaded guilty in the Coffs Harbour District Court to four counts of serious sexual offending against two of his half-siblings, a five-year-old girl and a seven-year-old boy. The offences included sexual intercourse with children under ten and indecent assault. The maximum available penalties for the principal charges were 25 years' imprisonment.

Freeman DCJ sentenced the applicant to a head sentence of two years and six months with a nine-month non-parole period on the most serious counts, with shorter fixed terms on the remaining counts running concurrently and subsumed within the non-parole period. Pre-sentence custody was expressly taken into account, and the applicant received a 25 percent discount for his early guilty plea. The result was a scheduled release date approximately nine months after sentence was imposed.

The applicant sought leave to appeal against the severity of the sentence on three grounds, arguing errors in the sentencing judge's approach to aggravating factors, preventive detention, and a claim that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the victims' vulnerability as an aggravating factor when the age of the victims was already an element of the offence, contrary to section 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge impermissibly imposed or extended the sentence for the purpose of preventive detention
  • Whether the sentence was manifestly excessive in light of the applicant's age at the time of the offences

Decision

On the first ground, the Court of Criminal Appeal drew a distinction between the statutory element of the offences, which was the victims' non-attainment of age ten, and the notion of vulnerability under section 21A(2)(l). The sentencing judge's use of the phrase "especially vulnerable" was not double-counting. Rather, it reflected an assessment of the degree of vulnerability, measured against the victims' actual ages of five and seven years, which were considerably younger than the minimum age threshold for the offence. No error was established on this ground.

On the second ground, the Court acknowledged the settled principle that a sentencing judge cannot extend a sentence for the purpose of preventive detention, but confirmed that community protection remains a legitimate sentencing consideration. Reading the sentencing judge's remarks as a whole, including his conclusion that a custodial rather than non-custodial disposition was warranted, the Court found no indication that the term of sentence had been extended for preventive purposes. The relatively short custodial period actually imposed reinforced that conclusion.

On the third ground, the Court rejected the submission that insufficient weight was given to the applicant's age. The sentencing judge was plainly aware of the difficulty of sentencing a 13-year-old and imposed a head sentence representing a small fraction of the available maximum. Although the sentencing judge made no express reference to rehabilitation, the Court found this was implicit in the sentence structure. The material before the sentencing judge, from both expert and family sources, showed a mixed picture of promise and concern, and the sentence fell within the range of a sound exercise of discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that treating victims' vulnerability as an aggravating factor is not prohibited double-counting merely because the victims' age is an element of the offence. The degree of vulnerability, assessed against actual ages well below the statutory threshold, remains a distinct and permissible consideration.
  • Under the principle affirmed in Veen v The Queen (No 2), community protection is a legitimate sentencing factor, but a sentence cannot be extended beyond what is otherwise appropriate for the sole purpose of preventive detention. The Court examines the sentencing remarks as a whole to determine whether that line has been crossed.
  • No error was established in the sentencing judge's failure to make express reference to rehabilitation where the sentence structure itself, including a modest head sentence and favourable parole ratio, made the consideration implicit.
  • In dismissing the appeal, the Court reinforced that juvenile offenders dealt with at law are not immune from custodial sentences, particularly where the offending is objectively serious and there is an assessed risk of reoffending.
  • A guilty plea entered at the earliest opportunity attracted a 25 percent discount, with an additional reduction to account for pre-sentence custody periods, consistent with established sentencing practice.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 21A(2)

Cases:
- R v Pearson [2005] NSWCCA 116
- Veen v The Queen (No 2) (1988) 164 CLR 465