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6
Court of Criminal Appeal 26 May 2008

R v PB

[2008] NSWCCA 109

Also reported as (2008) 184 A Crim R 552
Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW ARMED ROBBERY WITH WOUNDING SENTENCING CROWN APPEAL JUVENILE OFFENDER

Citation: R v PB [2008] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 26 May 2008
Judge(s): Bell JA, Johnson J, McCallum J

Background

The respondent, a young Aboriginal man aged 17 years and eight months at the time of the offence, was convicted of armed robbery with wounding under s 98 of the Crimes Act 1900 (NSW), which carries a maximum sentence of 25 years' imprisonment and attracts a standard non-parole period of seven years. The offence occurred in August 2006, just 19 days after the respondent had been released on a supervised bond arising from a prior robbery.

The facts were serious. The respondent and a group of companions approached the victim, a 20-year-old apprentice carpenter waiting outside a construction site. After initiating a confrontation, the respondent slammed the victim's car door repeatedly against his leg, punched him through the window, seized his work knife, and proceeded to stab him multiple times to the hand, neck, and face while demanding his wallet. The victim sustained wounds requiring medical treatment, including a prominent and permanent facial scar that a plastic surgeon confirmed could not be improved by surgery. The respondent pleaded guilty on the day the matter was listed for trial.

In the District Court, the sentencing judge imposed a total term of four years' imprisonment with a non-parole period of 22 months. The Crown appealed on the ground that the sentence was manifestly inadequate, arguing the sentencing judge had given insufficient weight to the objective seriousness of the offending.

  • Whether the sentence imposed in the District Court was manifestly inadequate, or otherwise infected by patent error, having regard to the objective seriousness of the offence
  • What weight should be given to the respondent's youth, Aboriginality, troubled background, and prospects for rehabilitation when balancing those factors against the objective gravity of the offending
  • Whether an order should be made under s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW) for the respondent to serve his sentence as a juvenile offender beyond the age of 18, up to his 21st birthday

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the sentence imposed by the District Court was infected by patent error and reflected insufficient weight given to the objective seriousness of the offence. The Court observed that armed robbery with wounding is among the most serious categories of offending, and that this particular offence involved an unprovoked attack, the deliberate use of a weapon to inflict multiple wounds, and lasting physical and psychological consequences for the victim.

The Court acknowledged the respondent's significant subjective circumstances. These included his age, his difficult upbringing, the family instability and periods of homelessness he had experienced, his substance abuse issues, his genuine remorse, and his above-average intellectual capacity. The Court also took into account his progress toward rehabilitation while detained, including educational programs undertaken at the Baxter Juvenile Justice Centre.

However, the Court found that these mitigating factors, while real and weighty, could not justify the degree of reduction from the standard non-parole period that the original sentence represented. A new sentence was imposed with a non-parole period of three years and six months, with a balance of term of three years and three months, producing a total head sentence of six years and nine months.

On the question of juvenile detention, the Court made an order under s 19(1) of the Children (Criminal Proceedings) Act 1987 directing that the respondent serve his sentence as a juvenile offender until his 21st birthday. The Court was satisfied that special circumstances existed, not primarily on grounds of vulnerability, but because of the availability of educational programs and the continuity of supervision by Juvenile Justice officers who had been central to the respondent's rehabilitation.

Orders Made

  • The appeal was allowed and the sentence imposed in the District Court was quashed.
  • A new sentence was imposed comprising a non-parole period of three years and six months, commencing 4 September 2007, with the first eligible parole date of 3 March 2011.
  • The balance of term was set at three years and three months, expiring 2 June 2014.
  • Pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987, the respondent was ordered to serve the sentence as a juvenile offender until his 21st birthday.

Key Takeaways

  • Armed robbery with wounding under s 98 of the Crimes Act 1900 (NSW) carries a standard non-parole period of seven years, and the Court of Criminal Appeal confirmed that any significant departure from that benchmark must be justified by commensurate mitigating factors.
  • Significant subjective mitigation, including youth, Aboriginality, a troubled background, and genuine prospects for rehabilitation, can reduce the sentence below the standard non-parole period, but cannot justify a reduction so extreme as to render the sentence manifestly inadequate relative to the objective gravity of the offending.
  • Under s 19(1) of the Children (Criminal Proceedings) Act 1987, a court may order that an offender serve a sentence as a juvenile offender beyond the age of 18, up to their 21st birthday, where special circumstances exist, including the availability of suitable programs or services at a juvenile facility.
  • In re-sentencing, the Court of Criminal Appeal treated the continuity of access to educational programs and the ongoing supervision of Juvenile Justice officers as special circumstances warranting a juvenile detention order, even where vulnerability alone did not justify one.
  • A plea of guilty entered on the day fixed for trial, rather than at an early stage, attracts a more limited discount in sentence than an early utilitarian plea.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Children (Detention Centres) Act 1987 (NSW)

Cases:
- DB v R [2007] NSWCCA 27
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- DNN v R [2007] NSWCCA 27
- Mason v R [2005] NSWCCA 403
- R v AEM, KEM & MM Snr [2002] NSWCCA 58
- R v Henry (1999) 46 NSWLR 346
- R v Myers (Court of Criminal Appeal, unreported, 13 February 1990)
- R v Nahle [2007] NSWCCA 40
- R v P [2004] NSWCCA 218
- R v Pham & Ly (1991) 55 A Crim R 128
- R v Stambolis [2006] NSWCCA 56
- R v Tran [1999] NSWCCA 109
- R v Way [2004] NSWCCA 131; 60 NSWLR 168