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Court of Criminal Appeal 22 September 2006

Regina v A.S

[2006] NSWCCA 309

Also reported as 165 A Crim R 100
Assault & violenceTheft & property

Citation: Regina v A.S [2006] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 22 September 2006
Judges: Mason P, Sully J, Latham J (Mason P and Latham J agreeing with Sully J)

Background

The respondent, referred to only as A.S, was a juvenile offender who pleaded guilty in the Sydney District Court to two indicted charges: robbery with wounding under s 98 of the Crimes Act 1900 (NSW), and robbery from the person under s 94. The s 98 offence was the more serious: A.S, then aged just under 15, approached a 63-year-old woman from behind and stabbed her twice with a knife, partially severing her spinal cord in what the Court described as an attempted robbery. A number of additional offences were also taken into account at sentence, spanning a period from March to October 2005 and including conspiracy to commit armed robbery, robbery in company, malicious wounding, and multiple assaults on police officers.

At first instance, Walmsley DCJ sentenced A.S to an overall non-parole period of 2 years and 9 months with a balance of term of 1 year and 6 months, ordering that the whole term be served in a juvenile institution. The Crown appealed, contending the sentences were manifestly inadequate.

  • Whether the sentences imposed at first instance were manifestly inadequate given the nature, number, and seriousness of the offences
  • How to balance the objective seriousness of the offending against the respondent's youth and prospects for rehabilitation
  • Whether the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) had been properly applied to the s 98 offence
  • The appropriate sentence structure on re-sentencing, including the question of special circumstances

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding the original sentences manifestly inadequate in light of the gravity of the offending. The s 98 offence, involving a knife attack on a vulnerable elderly woman that partially severed her spinal cord, was assessed as representing serious objective criminality. The cumulative effect of the full range of offences, committed over a period of months and in breach of conditional bail, compounded the sentencing task considerably.

The Court acknowledged A.S's youth as a highly significant mitigating factor, noting he was between 14 and 15 years old at the time of the offences and only 15 at the date of sentence. The Court accepted that rehabilitation must carry substantial weight in sentencing juvenile offenders and that the respondent's prospects for reform were relevant. However, the Court held that those considerations could not bring the overall non-parole period below 3 years and 9 months without producing a result that was inadequate to reflect the seriousness of the conduct.

On re-sentencing, Sully J expressly noted that the result was more lenient than would have been warranted at first instance, framing this as a proper exercise of restraint given the Court was substituting its own view on a Crown appeal. The balance of term was set at 1 year, with Sully J concluding that extending it further would serve no discernible purpose if rehabilitation could not be achieved within the structured period already imposed.

Orders Made

  • Crown appeal allowed; sentences at first instance quashed
  • Re-sentenced as follows:
  • Count 2 (robbery from the person): non-parole period of 1 year (21 December 2005 to 20 December 2006), balance of term of 4 months (to 20 April 2007)
  • Count 1 (robbery with wounding, including Form 1 matters): non-parole period of 3 years (21 September 2006 to 20 September 2009), balance of term of 1 year (to 20 September 2010)
  • Malicious wounding (Court Attendance Notice): non-parole period of 1 year (21 December 2005 to 20 December 2006), balance of term of 4 months (to 20 August 2007)
  • Assault police officer (Court Attendance Notice): fixed term of 3 months (21 December 2005 to 20 March 2006)
  • Overall: non-parole period of 3 years 9 months (21 December 2005 to 20 September 2009), balance of term of 1 year (to 20 September 2010)
  • Order under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) that the whole term be served in a juvenile institution

Key Takeaways

  • A non-parole period of less than 3 years and 9 months was held to be inadequate where a juvenile offender had committed a knife attack causing near-paralysis to a vulnerable victim, alongside numerous other violent offences committed on bail over several months.
  • Youth and rehabilitation prospects carry significant mitigating weight in juvenile sentencing, but they do not automatically displace the need for a sentence that adequately reflects objective criminality.
  • Where a Crown appeal succeeds, the appellate court may re-sentence with a degree of leniency not warranted at first instance, as an appropriate exercise of restraint in the appellate context.
  • Under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), a court may order that the entirety of a custodial sentence be served in a juvenile institution even where the offending is serious.
  • Repeated offending in breach of conditional bail conditions formed part of the factual context weighing against the adequacy of the original sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(1)(a), 58, 59, 60(1), 61, 94, 97(1), 97(2), 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4 (standard non-parole periods); Division 3 of Part 3 (Form 1 additional offences)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Summary Offences Act 1988 (NSW), s 4A
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25(2)

Cases:
- The Queen v Veen (No. 2) (1988) 168 CLR 456
- Pearce v The Queen (1998) 194 CLR 610