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Court of Criminal Appeal 14 August 2007

MB v Regina

[2007] NSWCCA 245

Assault & violenceTheft & property
AGGRAVATED CAR JACKING AND MALICIOUS WOUNDING YOUNG OFFENDER SPECIAL CIRCUMSTANCES TOTALITY

Citation: MB v Regina [2007] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 14 August 2007
Judge(s): Giles JA, Hidden J, Harrison J

Background

The applicant, whose name was suppressed because he was under 18 at the time of the first offence, was convicted of aggravated car-jacking and separately pleaded guilty to malicious wounding. The malicious wounding involved throwing a beer bottle at a police car, seriously injuring a female officer, and occurred when the applicant was 17. The car-jacking, committed at 18, involved punching a car owner and stealing and later burning the vehicle.

The applicant had a severely troubled background, including substance abuse from age 11, extensive involvement with children's courts, and a dependency on alcohol and crystal methamphetamine at the time of both offences. He was already serving a sentence for an unrelated offence when he came to be sentenced for these two matters.

In the District Court, Goldring DCJ imposed an aggregate sentence of seven and a half years with a six-year non-parole period, commencing from the date of the car-jacking conviction. The applicant sought leave to appeal on three grounds.

  • Whether the sentencing judge failed to account for approximately 30 days of pre-sentence custody exclusively referable to these offences
  • Whether the sentencing judge failed to apply the principles governing the sentencing of young offenders, including the emphasis on rehabilitation and recognition of immaturity
  • Whether the sentencing judge failed to apply the totality principle, given the accumulation of the two sentences upon a pre-existing sentence for another offence

Decision

The Court found that the sentencing judge had not engaged with the well-established principles applicable to young offenders, drawn from cases such as R v GDP and reflected in s 6 of the Children (Criminal Proceedings) Act 1987. Those principles, emphasising immaturity and rehabilitation, were relevant not only to the malicious wounding (committed at age 17) but also to the car-jacking committed shortly after the applicant turned 18.

On the standard non-parole period for the car-jacking, the sentencing judge had fixed the statutory standard of five years, expressing himself as "obliged" to do so because no mitigating factors of the type listed in s 21A of the Crimes (Sentencing Procedure) Act 1999 were present. The Court of Criminal Appeal rejected this reasoning, observing that s 21A does not exhaustively confine the matters a court may take into account. Youth, disturbed background, and prospects of rehabilitation warranted a departure downward from the standard non-parole period.

The Court also found error in the application of the totality principle. The sentences, as structured, produced an aggregate that did not properly account for the fact that they were being accumulated upon a pre-existing sentence. Re-sentencing was required to arrive at an overall period that was proportionate and not oppressive when the full custodial burden was considered.

Given those findings on principle, the Court did not separately analyse the pre-sentence custody ground, noting only that s 24 of the Crimes (Sentencing Procedure) Act required such a period to be taken into account and that it had not been.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • District Court sentences quashed and the applicant re-sentenced as follows:
  • Malicious wounding: non-parole period of 18 months commencing 6 January 2006 and expiring 5 July 2007; balance of term of 2.5 years commencing 6 July 2007 and expiring 6 January 2010
  • Aggravated car-jacking: non-parole period of 3 years commencing 6 January 2007 and expiring 5 January 2010; balance of term of 2 years commencing 6 January 2010 and expiring 5 January 2012

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principles governing the sentencing of young offenders, including recognition of immaturity and emphasis on rehabilitation, can apply even where an offence was committed shortly after the offender turned 18, not only to offences committed while under that age.
  • A sentencing court is not automatically "obliged" to impose the standard non-parole period merely because no s 21A mitigating factors are identified. Section 21A does not exhaustively restrict the matters a court may consider; youth and rehabilitation prospects can independently justify departure.
  • Where multiple sentences are accumulated upon an existing sentence, the totality principle requires the court to assess the overall custodial burden and ensure the aggregate is not disproportionate to the total criminality involved.
  • Special circumstances (justifying a longer balance of term relative to the non-parole period) may be found where a young offender's rehabilitation prospects make an extended period of supervised parole appropriate.
  • Under s 24 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is required to take into account any period of pre-sentence custody exclusively referable to the offences being sentenced.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35, 154C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 24, 54B
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v GDP (1991) 53 A Crim R 112