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Court of Criminal Appeal 1 September 2006

Regina v JPW

[2006] NSWCCA 294

Assault & violence

Citation: Regina v JPW [2006] NSWCCA 294
Court: New South Wales Court of Criminal Appeal
Date: 1 September 2006
Judge(s): Spigelman CJ; McClellan CJ at CL; Sully J

Background

In September 2004, a fifteen-and-a-half-year-old (referred to as JPW) intervened in an altercation at a shopping centre in Orange. A uniformed security guard was attempting to detain JPW's friend for shoplifting when JPW kicked the guard in the head, intending to help his friend escape. The kick caused severe facial and cranial injuries. The guard was hospitalised for approximately two weeks, including time in intensive care, and has since suffered lasting physical and psychological effects including headaches, memory loss, disturbed sleep, and long-term medication needs.

JPW was tried by jury in the District Court and convicted of maliciously inflicting grievous bodily harm with intent to prevent lawful apprehension, contrary to section 33 of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 25 years imprisonment and a statutory non-parole period of seven years.

At sentencing in April 2006, Kirkham DCJ declined to impose a custodial sentence. Instead, his Honour deferred passing sentence and released JPW on a three-year good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), with conditions including supervision by the Probation and Parole Service. The Crown appealed, contending that the sentence was manifestly inadequate.

  • Whether the section 9 good behaviour bond was manifestly inadequate for a section 33 offence involving serious and lasting injury to the victim
  • Whether the sentencing judge erred in the weight given to JPW's age and to the "spur of the moment" nature of the offending when assessing objective criminality
  • Whether this Court, having found the bond to be inappropriately lenient, should nonetheless exercise its discretion to intervene and resentence

Decision

Sully J, with whom the other judges agreed, acknowledged that the offence was objectively very serious and that the bond was "inappropriately lenient." His Honour respectfully disagreed with the sentencing judge's view that the respondent's age, by itself, significantly mitigated the objective criminality. Similarly, while the attack may have been impulsive, it was not entirely unreflective. The victim suffered devastating and ongoing consequences.

However, the Court turned to the question of whether it should actually intervene in the exercise of its discretion. By the time of the appeal, JPW had been on the bond for approximately five months without incident. He had secured employment, commenced an apprenticeship, and remained offence-free in the period since the offending. Sully J described the subjective circumstances as "particularly strong."

The Court considered possible alternatives to the existing bond, including a suspended sentence and an extended bond. A fully suspended sentence would have lasted only two years, which would actually be less burdensome than the current three-year bond. An extension to five years was available under section 9 but was characterised as little more than a cosmetic gesture if three years of supervised good behaviour was already sufficient to achieve rehabilitation.

Sully J described the resolution as "extraordinarily difficult" and expressed personal abhorrence for crimes of violence. Ultimately, however, the Court was unpersuaded that substituting a different penalty would produce a meaningfully better outcome, particularly given the stage already reached in the respondent's rehabilitation. The Crown appeal was dismissed. Spigelman CJ added a correction noting that periodic detention was unavailable for persons under eighteen years of age by reason of section 66(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • A sentence found to be "inappropriately lenient" will not automatically be set aside on Crown appeal; the appellate court retains a discretion to decline intervention where, by the time of the appeal, circumstances have changed materially in favour of the offender.
  • Under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court may defer passing sentence and impose a good behaviour bond even for serious offences carrying lengthy maximum penalties, provided the sentencing exercise appropriately balances objective criminality and subjective circumstances.
  • Rehabilitation was treated as a major, potentially paramount, sentencing consideration for juvenile offenders, a position the Court of Criminal Appeal did not disturb in dismissing the appeal.
  • Pursuant to section 66(1)(a) of the Crimes (Sentencing Procedure) Act 1999, periodic detention orders cannot be made in respect of persons under eighteen years of age.
  • Age alone does not wholly mitigate the objective criminality of serious violence: the Court noted that treating youth as a near-complete shield from the consequences of intentional grievous bodily harm sends an "inappropriately" and "dangerously" wrong message.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (malicious infliction of grievous bodily harm with intent to prevent lawful apprehension); s 35(1)(b) (malicious infliction of grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (deferral of sentence and good behaviour bond); Division 1A of Part 4 (statutory non-parole periods); s 66(1)(a) (periodic detention not available for persons under eighteen)

Cases cited: No cases were cited in the portions of the judgment provided.