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Court of Criminal Appeal 14 July 2008

TM v REGINA

[2008] NSWCCA 158

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY OF SENTENCE JUVENILE OFFENDER SENTENCE HELD MANIFESTLY EXCESSIVE

Citation: TM v REGINA [2008] NSWCCA 158
Court: New South Wales Court of Criminal Appeal
Date: 14 July 2008
Judge(s): James J, Hoeben J, Hall J

Background

The applicant was 14 years old at the time of the offending and 15 at sentence. He pleaded guilty to four offences arising from a single incident on 2 November 2006, in which he and his older brother entered a family home armed with a knife and meat cleaver, threatening and assaulting several occupants.

The four charges spanned a range of seriousness: specially aggravated break and enter with intent to commit a serious indictable offence (maximum 20 years), assault with intent to rob whilst armed and wounding (maximum 25 years, with a standard non-parole period of 7 years), assault occasioning actual bodily harm (maximum 5 years), and common assault (maximum 2 years). The applicant had been in custody since the date of the offences.

The District Court sentenced the applicant to an effective overall term of eight years with a non-parole period of four years and six months. The applicant sought leave to appeal on multiple grounds, contending the sentence was manifestly excessive and that several errors affected the sentencing exercise.

  • Whether the sentencing judge erred by failing to make an order under s.19(3) of the Children (Criminal Proceedings) Act 1987 directing that the applicant serve his sentence as a juvenile offender
  • Whether the sentencing judge placed excessive weight on the objectively aggravating features of the offences
  • Whether the sentencing judge gave insufficient regard to the applicant's age and misapplied the sentencing principles applicable to young offenders
  • Whether the sentencing judge failed to have proper regard to the Juvenile Justice Report
  • Whether the sentencing judge failed to quantify and properly recognise the discount for the applicant's assistance to authorities
  • Whether the sentence was manifestly excessive overall

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. On the first ground, the Court found that the sentencing judge had simply failed to recognise and exercise the power under s.19(1) of the Children (Criminal Proceedings) Act 1987 to order that the applicant serve his sentence as a juvenile offender. This error was not contested by the Crown, which accepted the order ought to have been made.

On the question of objective seriousness, the Court found the offences sat in the mid-range, not at the higher level attributed by the sentencing judge. The applicant's role needed to be assessed in the context that he was a young teenager who had been woken and recruited by his older brother, supplied with the weapon and disguise, and driven to the scene. While this did not excuse his conduct, it was a significant factor bearing on his culpability.

The Court accepted that the applicant's immaturity was a substantial contributor to the offending and that the sentencing judge had not given this sufficient weight. The principles governing sentencing of young offenders place particular emphasis on rehabilitation and recognise that the prospects for rehabilitation in young offenders are generally strong. The Court found the original sentence was manifestly excessive when these considerations were properly applied.

Applying a 25 per cent discount for the early plea and arriving at an appropriate assessment of the objective seriousness, the Court re-sentenced the applicant on Counts 1 and 2. It ordered all sentences to run concurrently, given that all offences arose from the one episode.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Order under s.19(1) of the Children (Criminal Proceedings) Act 1987 that the applicant serve all sentences as a juvenile offender
  • Sentence on Count 2 set aside and replaced with three years and six months (non-parole period), commencing 2 November 2006 and expiring 1 May 2010, with a balance of term of three years and three months expiring 1 August 2013
  • Sentence on Count 1 set aside and replaced with a fixed term of three years and six months, commencing 2 November 2006 and expiring 1 May 2010
  • Sentences on Counts 3 and 4 (as imposed by the District Court) and the sentence on Count 1 to run wholly concurrent with the sentence on Count 2
  • Parole eligibility date: 1 May 2010

Key Takeaways

  • The Court of Criminal Appeal confirmed that a failure by a sentencing court to recognise and exercise its power under s.19(1) of the Children (Criminal Proceedings) Act 1987 constitutes a sentencing error, even where the omission was inadvertent rather than deliberate.
  • Under the Children (Criminal Proceedings) Act 1987, a person sentenced for a serious children's indictable offence is not automatically eligible to serve their sentence as a juvenile offender after turning 18; s.19(3) requires the sentencing court to be satisfied that special circumstances exist before making such a direction beyond that age.
  • A juvenile offender's immaturity is a significant mitigating factor that must be genuinely reflected in the sentence imposed, particularly where the offender was recruited into the criminal conduct by an older person.
  • Objective seriousness must be assessed in the context of the individual offender's role and circumstances; attributing a higher level of seriousness without proper analysis of those factors can constitute error on appeal.
  • Where multiple offences arise from a single episode, concurrent sentences may be appropriate, and the Court here ordered full concurrency across all four counts on that basis.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss.17, 19(1), 19(3)
- Crimes Act 1900 (NSW), ss.59, 61, 98, 111(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- MS2 & Ors v R (2005) 158 A Crim R 93
- R v Baker [2000] NSWCCA 85
- R v DB; R v DMM (2007) 167 A Crim R 393
- R v Hearne (2001) 124 A Crim R 451
- R v JLC-H [2004] NSWCCA 70
- R v Way (2004) 60 NSWLR 168