Citation: MS2 and Ors v Regina [2005] NSWCCA 397
Court: NSW Court of Criminal Appeal
Date: 24 November 2005
Judges: Simpson J, Adams J, Hoeben J
Background
Three young offenders, identified as MS2, PM, and JS, were convicted in the District Court of robbery with wounding under s 96 of the Crimes Act 1900. The offence involved lying in wait for a victim, attacking him with a club-lock, and stealing his property including his motor vehicle. The victim suffered severe and permanent injuries. A fourth co-offender, TN, received a suspended sentence.
All three applicants were juveniles at the time of the offences, with JS being the youngest at 14 years and 5 months. None had prior criminal histories, and each came from a stable family background. Marien DCJ sentenced them in the District Court in late 2004.
The applicants sought leave to appeal against the severity of their sentences, arguing that insufficient weight had been given to their youth and immaturity, and raising issues of parity with the co-offender who received a suspended sentence.
Legal Issues
- Whether the sentencing judge gave adequate weight to the applicants' youth and immaturity in a case involving a serious and planned violent offence
- Whether the pre-planning of the offence was treated as negating the relevance of youthful immaturity
- Whether the sentences were disproportionate compared to the suspended sentence imposed on co-offender TN (the parity ground)
- Whether the sentences should be reduced to allow for substantial parole periods to facilitate rehabilitation
Decision
The Court of Criminal Appeal was divided. Simpson J would have dismissed all three appeals, finding that the objective seriousness of the offence was so great as to call for severe sentences, including for purposes of general deterrence directed at other young offenders. Her Honour found no basis for concluding the sentencing judge had given inadequate weight to youth.
Adams J and Hoeben J reached a different conclusion, forming the majority in favour of allowing the appeals. Adams J emphasised that youth is relevant on two distinct grounds: the public interest in rehabilitation of young offenders, and the reduced culpability that immaturity produces. His Honour rejected the framing of youth as a "benefit" the offender could choose to invoke, describing it instead as an objective sentencing consideration grounded in public policy.
Hoeben J, writing the principal judgment on the facts, found that the sentencing judge had treated the pre-planning of the offence as largely displacing the significance of the applicants' youth. His Honour held this was an error: planning and immaturity are not mutually exclusive, and the pre-planning finding did not extinguish the substantial weight to be given to youth, particularly for the youngest applicant JS. The younger the offender, the greater the weight that principle attracts.
On parity, the majority found that the distinguishing features relied upon by the sentencing judge to justify TN's suspended sentence did not equally favour JS and the other applicants. The appeals of MS2 and JS on the youth ground were allowed. The parity grounds were not made out for any applicant.
Orders Made
For MS2:
- Leave to appeal granted; appeal allowed
- Sentence for the s 96 offence quashed and replaced with imprisonment comprising a non-parole period of 2 years and 3 months, with a balance term of 1 year and 9 months
For JS:
- Leave to appeal granted; appeal allowed
- Sentence for the s 96 offence quashed and replaced with imprisonment comprising a non-parole period of 2 years and 5 months commencing 3 July 2003, expiring 2 December 2005, with a balance term of 2 years commencing 3 December 2005, expiring 2 December 2007
- All other orders of Marien DCJ confirmed
For PM:
- • Leave to appeal against the severity of sentence in relation to the s96 offence be granted
• The appeal be allowed and the sentence imposed by Marien DCJ on 25 November 2004 in relation to the s96 offence be quashed
• JS be sentenced in respect of the s96 offence to a period of imprisonment comprising a non-parole period of 2 years and 5 months commencing on 3 July 2003 and to expire on 2 December 2005 and a balance term of 2 years commencing on 3 December 2005 and to expire on 2 December 2007
• Otherwise the orders of Marien DCJ in respect of JS are confirmed
Key Takeaways
- Youth and immaturity are objective sentencing considerations grounded in public policy and reduced culpability, not a concession or advantage an offender elects to "take advantage of."
- Pre-planning of a serious offence does not automatically extinguish the mitigating significance of a youthful offender's immaturity; the two factors can coexist and must each be assessed on their own terms.
- The Court of Criminal Appeal confirmed that the younger the offender, the greater the weight to be afforded to the element of youth in sentencing, consistent with R v Hearne.
- In cases involving permanent and serious injury, the gravity of the offence remains a powerful countervailing factor, and general deterrence may still carry weight even where the offenders are young, as Simpson J's dissent illustrates.
- Rehabilitation as a sentencing objective for youthful offenders is properly supported by structuring sentences to include a substantial parole period, even in cases of serious planned violence.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 6(b)
- Crimes Act 1900 (NSW), s 96 (robbery with wounding)
- Criminal Appeal Act 1912 (NSW)
Cases:
- C (a minor) v DPP [1996] AC 1
- Postiglione v Regina (1997) 189 CLR 295
- R v ALH (2003) 6 VR 276
- R v Ao [2003] NSWCCA 43
- R v JLC-H [2004] NSWCCA 70
- R v Hearne [2001] NSWCCA 37
- R v Ma [2004] NSWCCA 92
- R v Pham & Ly (1991) 55 A Crim R
- R v AEM Senior & Ors [2002] NSWCCA 58
- R v Simpson (2001) 53 NSWLR 704
- Thomson (2000) 49 NSWLR 383
- R (a child) v Whitty (1993) 66 A Crim R 463