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Court of Criminal Appeal 6 August 2008

JJM v R

[2008] NSWCCA 180

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE JUVENILE MULTIPLE SERIOUS OFFENCES CONSEQUENT LENIENCY INTERVENTION TO REDUCE TERM REFUSED

Citation: JJM v R [2008] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 6 August 2008
Judges: Bell JA, Grove J, Latham J

Background

The applicant was 17 years old when he committed a series of armed robberies in November 2005 in south-western Sydney. The offences involved brandishing machetes at shopkeepers and customers in three separate incidents. The most serious, on 21 November 2005, resulted in a shopkeeper sustaining a deep laceration that severed his fingers and left him with permanent impairment. The applicant was also dealt with, via a Form 1 procedure (a mechanism allowing a court to take additional offences into account when sentencing, without formally convicting on each one), for three robberies and one attempted robbery committed in September 2005.

The applicant was sentenced in the District Court on 1 June 2007, by which time he was approaching his 19th birthday. He had been held in juvenile detention since his arrest. The sentencing judge structured the sentences so that the minimum period of custody would expire approximately six months after the applicant turned 21, ensuring the entire minimum term could be served in juvenile detention rather than an adult correctional facility.

The applicant sought leave to appeal against the sentences, arguing they were excessive and that insufficient weight had been given to several mitigating factors, including his age, personal circumstances, and comparisons with sentences received by co-offenders.

  • Whether the sentencing judge gave adequate weight to the applicant's youth, remorse, and prospects of rehabilitation
  • Whether the sentencing judge erred in assessing the Form 1 offences and their contribution to the sentence for the principal offence
  • Whether the sentences were disproportionate when compared with sentences imposed on co-offenders (the parity ground)
  • Whether the overall sentence was manifestly excessive given the applicant's subjective circumstances

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Grove J, with whom Bell JA and Latham J agreed, examined each ground of appeal and found none made out.

On the question of youth and personal circumstances, the Court accepted that the sentencing judge had taken these factors into account. It was a compelling inference, Grove J found, that the non-parole period had been deliberately reduced to ensure the applicant could serve the entire minimum term in juvenile detention. Under s 19 of the Children (Criminal Proceedings) Act 1987, a sentence may be directed to be served in a juvenile facility only until an offender turns 21. The sentencing judge had given the applicant a concrete and significant benefit by structuring the sentence around that age limit.

On the parity argument, the Court found the comparison with co-offenders unpersuasive. The co-offenders in the principal offences appeared to have been dealt with in the Children's Court, which would not have had jurisdiction to handle the most serious charge under s 98 of the Crimes Act 1900. The applicant had been alone in the shop when he wounded the victim, placing him in a materially different position from his co-offenders. No error was established in the sentencing judge's conclusion that parity was not a significant factor.

The Court accepted the Crown's submission that the sentences properly reflected the objective seriousness of the offences while adequately accounting for the applicant's subjective circumstances. The minimum period amounted to approximately 53 percent of the total term, a ratio notably favourable to the applicant compared with the statutory norm. The Court found no lesser sentence was warranted in law.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that deliberately structuring a sentence to allow a juvenile offender to serve the entire minimum term in a juvenile detention facility is a legitimate and meaningful exercise of sentencing discretion under s 19 of the Children (Criminal Proceedings) Act 1987.
  • In dismissing the appeal, the Court found that where a sentencing judge has already reduced a non-parole period to confer the benefit of juvenile detention, that leniency is a relevant consideration when assessing whether the overall sentence is manifestly excessive.
  • A parity argument comparing sentences with co-offenders requires like-for-like comparison. Where co-offenders were dealt with in a different court jurisdiction and faced materially different charges, the comparison does not ground appellate intervention.
  • The Form 1 procedure was characterised as producing an imprecise sentence enhancement for the principal offence, making direct comparison with discrete sentences imposed on co-offenders for Form 1 matters analytically unsound.
  • Serious offences involving weapons, repeated conduct, and permanent physical injury to victims carry significant weight in sentencing, even when the offender is a juvenile with otherwise favourable subjective circumstances.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes Act 1900 (NSW), s 98

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Cartwright (1989) 17 NSWLR 243