AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 5 July 2007

TS v Regina

[2007] NSWCCA 194

Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING OFFENCES OF ARMED ROBBERY AND AGGRAVATING FACTORS RESENTENCING JUVENILE OFFENDER

Citation: TS v Regina [2007] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 5 July 2007
Judge(s): Giles JA; James J; Hislop J

Background

The applicant, a juvenile offender, pleaded guilty in the District Court to five charges of robbery while armed with a knife. The offences were committed in March 2005 in and around the Liverpool and Parramatta areas, involving convenience stores, a jewellery store, and two 7-Eleven outlets. At the time, the applicant was sixteen years old and was on bail for an earlier group of offences dating from September 2004.

At sentencing, the applicant also asked the court to take into account a further nine offences on a Form 1 (a mechanism allowing related offences to be considered in sentencing without separate convictions being recorded). The District Court imposed an overall non-parole period of four years commencing 31 March 2005, with a balance of term of three years and six months.

The applicant sought leave to appeal on the basis that the sentencing judge made several legal errors, including errors relating to the plea discount, the treatment of aggravating factors, and the handling of the Form 1 offences.

  • Whether the sentencing judge erred in assessing the applicant's plea as having been entered at the earliest opportunity
  • Whether the judge incorrectly applied or identified aggravating factors
  • Whether the judge erred in the treatment of offences listed on the Form 1
  • Whether the judge improperly relied on material in pre-sentence reports as though it were sworn evidence
  • Whether the guideline judgment in R v Henry (concerning armed robbery) was properly applied to a juvenile offender
  • What the appropriate sentence was upon resentencing, taking into account the applicant's age and rehabilitation prospects

Decision

The Court of Criminal Appeal (Giles JA, with James J and Hislop J agreeing) identified multiple errors in the original sentencing exercise. These included errors in the treatment of the early plea, the identification of aggravating factors, and the approach to the Form 1 offences. Those errors warranted intervention and resentencing.

On the question of relying on reports, the Court considered the use of material in pre-sentence and Juvenile Justice reports without that material being tested as sworn evidence. This was a relevant consideration in the resentencing exercise.

The Court also addressed the application of the guideline judgment in R v Henry to a juvenile offender. The Court proceeded on the basis that sentences for juvenile offenders should be more lenient than those that would be imposed on an adult for the same conduct, a principle well established in the case law.

In resentencing, Giles JA grouped the offences into three clusters: offences 1 to 3 (armed robberies committed alone), offence 4 (armed robbery with a co-offender), and offence 5 (armed robbery with a co-offender, with Form 1 offences taken into account). The Court found that modest accumulation across these groups was appropriate given the separate occasions of offending, while acknowledging the offences arose from the same period of criminality. Special circumstances were found, supporting a longer than usual balance of term to assist with rehabilitation. The resulting sentences were described as markedly more lenient than those that would have been imposed on an adult offender.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentences imposed on 29 September 2006 quashed
  • In lieu of the original sentences, the applicant was sentenced as follows:
  • Offences 1, 2 and 3: non-parole period of 1 year 9 months from 31 March 2005, balance of term of 1 year
  • Offence 4: non-parole period of 2 years from 30 September 2005, balance of term of 1 year 3 months
  • Offence 5 (including Form 1 offences): non-parole period of 2 years 6 months from 31 March 2006, balance of term of 1 year 6 months
  • The applicant was made eligible for parole on 1 October 2008

Key Takeaways

  • Multiple discrete errors at the sentencing stage, including errors relating to the early plea discount, aggravating factors, and the Form 1 process, each independently justified appellate intervention and resentencing.
  • Where a sentencing court relies on material in pre-sentence or Juvenile Justice reports, the evidentiary basis for that reliance is a relevant consideration; such material does not carry the same weight as sworn evidence.
  • Applying the R v Henry guideline judgment to a juvenile offender requires appropriate adjustment: the Court of Criminal Appeal confirmed that sentences for juvenile offenders should be markedly more lenient than the equivalent sentence for an adult.
  • In structuring accumulated sentences, the Court grouped the offences by occasion and degree of seriousness, finding that complete concurrency was not appropriate but only modest accumulation was warranted given the single course of criminality.
  • Special circumstances justifying a departure from the standard non-parole to balance-of-term ratio can be found where accumulation of sentences and rehabilitation needs both point toward a longer supervision period.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 11 (suppression of juvenile offender's name)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery)
- R v Thompson & Houlton (2000) 49 NSWLR 383
- R v SDM (2001) 51 NSWLR 530
- R v Qutami (2001) 127 A Crim R 369
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Hemsley [2004] NSWCCA 228
- R v Johnson [2004] NSWCCA 76
- R v Wickham [2004] NSWCCA 193
- R v Walker [2005] NSWCCA 109
- R v Shankley [2003] NSWCCA 253
- R v Pham & Ly (1991) 55 A Crim R 128
- R v Tran (1999) NSWCCA 109
- R v Townsend & Cooper (CCA, 14 February 1995, unreported)
- Veen v The Queen (No 2) (1988) 164 CLR 465