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Court of Criminal Appeal 19 August 2008

CM v Regina

[2008] NSWCCA 195

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCE

Citation: CM v Regina [2008] NSWCCA 195
Court: New South Wales Court of Criminal Appeal
Date: 19 August 2008
Judge(s): McClellan CJ at CL, Grove J, Blanch J

Background

The applicant, a juvenile offender, was sentenced in the District Court by Hulme DCJ following conviction for a serious indictable offence of sexual violence. The sentencing judge categorised the offence as close to the worst category under the relevant provision of the Crimes Act 1900. The applicant had been born on 26 December 1990, making him very young at the time of the offence and at sentencing.

Hulme DCJ imposed a head sentence comprising a non-parole period of 6 years and 6 months, commencing 22 May 2006, with a balance term of 4 years. The judge also made a direction under s 19 of the Children (Criminal Proceedings) Act 1987 that the applicant serve his sentence as a juvenile offender until he attained the age of 21.

The applicant sought leave to appeal against the severity of the sentence, arguing that insufficient weight had been given to his youth and that a modest reduction to the non-parole period would allow him to serve the entirety of that period in a juvenile detention facility rather than transitioning to an adult institution near its end.

  • Whether the sentencing judge failed to give sufficient weight to the applicant's youth and the rehabilitative principles mandated by s 6 of the Children (Criminal Proceedings) Act 1987.
  • Whether the sentencing judge erred by failing to give effect to an apparent intention to set a non-parole period expiring before the applicant's 21st birthday.
  • Whether the non-parole period was, in all the circumstances, manifestly excessive given the tension between deterrence and the lesser weight given to general deterrence when sentencing juveniles.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Blanch J (with whom McClellan CJ at CL agreed) found that the sentencing judge had properly considered the provisions of the Children (Criminal Proceedings) Act 1987, including the rehabilitative principles in s 6, and had balanced those principles appropriately against the extreme objective seriousness of the offending.

On the question of whether the non-parole period was manifestly excessive, Blanch J held that the sentencing judge correctly identified the offence as near the worst category under s 61J of the Crimes Act 1900. Starting from the standard non-parole period of 10 years as a guide, and then accounting for the applicant's age and subjective circumstances, Hulme DCJ arrived at a non-parole period of 6 years and 6 months. The Court found no error in that reasoning and no basis to substitute a lesser sentence.

The apparent discrepancy between the non-parole expiry date mentioned orally at sentencing (21 November 2011) and the date recorded in the signed record of proceedings (21 November 2012, being the correct mathematical result of the term imposed) was addressed by Blanch J. He concluded the verbal reference was a simple mistake by the sentencing judge, corrected in the signed record. The direction under s 19(3) that the applicant serve his sentence as a juvenile offender until age 21 was consistent with the formally recorded non-parole period.

Grove J, while joining in the dismissal of the appeal, expressed considerable concern about the practical consequence of a non-parole period extending approximately 11 months beyond the applicant's 21st birthday. He noted that a relatively slight reduction in the non-parole period (to 6 years and 1 month) would allow the applicant to remain in juvenile detention for the entirety of the non-parole period, avoiding a transfer to an adult facility that could undermine any rehabilitation achieved. However, Grove J acknowledged that the Court's power to intervene requires an identifiable error, and absent such error, the Court must not simply substitute a preferred outcome for one that falls within the sentencing judge's discretion. No such error was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that even where an offender's extreme youth is the primary subjective mitigating factor, it does not override a finding that the offence is objectively near the worst category, and a substantial non-parole period may remain appropriate.
  • Under s 6 of the Children (Criminal Proceedings) Act 1987, sentencing courts must give primary focus to rehabilitation for young offenders, but this principle operates in tension with the need for proportionate punishment when the objective seriousness of the offending is very high.
  • A direction under s 19 of the Children (Criminal Proceedings) Act 1987 that an offender serve their sentence as a juvenile offender expires upon the offender turning 21, subject to the six-month extension in s 19(2), and the Minister retains a separate power under the Children (Detention Centres) Act 1987 to transfer any offender who has turned 18 to an adult institution regardless of such a direction.
  • No error was established in the sentencing process, and in dismissing the appeal the Court of Criminal Appeal reaffirmed that appellate courts must not substitute a preferred sentence for one that falls within the legitimate exercise of a sentencing judge's discretion.
  • Grove J's judgment illustrates the practical significance of the precise length of a non-parole period when a juvenile offender is approaching adulthood: small differences in the term imposed can determine whether an offender transitions to adult custody before parole eligibility arises, with potential consequences for rehabilitation.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19
- Children (Detention Centres) Act 1987 (NSW), s 28
- Crimes Act 1900 (NSW), ss 61J(1), 86(2)(b)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- MS2 v The Queen (2005) 158 ACrimR 93
- KT v R [2008] NSWCCA 51