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9
Court of Criminal Appeal 21 April 2008

IE v R

[2008] NSWCCA 70

Also reported as (2008) 183 A Crim R 150
Sexual offences
SENTENCE APPEAL JUVENILE OFFENDER WHETHER YOUTH AN OBJECTIVE FACTOR WHETHER MANIFESTLY EXCESSIVE.

Citation: IE v R [2008] NSWCCA 70
Court: New South Wales Court of Criminal Appeal
Date: 21 April 2008
Judge(s): Spigelman CJ, Hulme J, Latham J

Background

The applicant was convicted after trial in the District Court on five charges of sexual assault arising from events in March 2003, when he was 16 years and 5 months old. Together with a co-offender, he participated in the abduction and sexual assault of a 15-year-old female in a stairwell at a Hurstville shopping centre. He was sentenced by Shadbolt DCJ in August 2006, by which time he was almost 20 years old.

The charges included aggravated indecent assault in company and three counts of aggravated sexual intercourse without consent in company, each carrying a maximum of life imprisonment and a standard non-parole period of 15 years. All sentences ran concurrently from December 2005, producing an effective non-parole period of five years and a total sentence of ten years.

The applicant sought leave to appeal, arguing the sentencing judge had not adequately accounted for his youth or the principles applicable to young offenders under the Children (Criminal Proceedings) Act 1987, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge failed to give adequate regard to the applicant's age and the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987
  • Whether the sentencing judge failed to treat the applicant's youth as a relevant factor bearing on the objective seriousness of the offence
  • Whether the aggregate sentence and non-parole period was manifestly excessive

Decision

The Court of Criminal Appeal dismissed all three grounds of appeal, with Latham J delivering the principal judgment and the other members agreeing.

On the first two grounds, the Court found that the sentencing judge had properly considered the applicant's youth and the relevant statutory principles. The judge had made findings about the applicant's prospects of rehabilitation, his background, and his age at the time of the offences. The Court confirmed that youth is a subjective factor relevant to mitigation but does not diminish the objective gravity of the offending conduct itself. The applicant's youth had already been weighed in the sentencing exercise.

On the question of manifest excess, the Court observed that the judge had assessed the objective seriousness of the aggravated sexual intercourse offences as falling "just below the middle range," having regard to factors including that penetration occurred only once, there were no more than two assailants, no threats of reprisal were made, and the complainant was released after the assaults. A non-parole period of five years on each such count represented roughly half of what might have been appropriate for mid-range offending, and was substantially below the 15-year standard non-parole period. The Court found this demonstrated departure from, not departure toward, manifest excess.

Hulme J added observations about the parole implications of the applicant's continued denial of guilt. His Honour noted that the applicant's persistent denial, if maintained, would likely prevent early parole, but that there was no firm basis in the circumstances to assume the denial would continue given the extent of corroborating evidence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A juvenile offender's age operates as a subjective mitigating factor in sentencing but does not reduce the objective gravity of the offending conduct, which is assessed by reference to the nature and circumstances of the offence itself.
  • Under the Children (Criminal Proceedings) Act 1987, s 6 principles must be considered when sentencing young offenders, but the Court of Criminal Appeal confirmed that compliance with those principles does not necessarily produce a lower sentence where the objective seriousness of the offending is significant.
  • In dismissing the appeal, the Court reinforced that wholly concurrent sentences for multiple serious offences can represent significant lenience, particularly where each offence carries a standard non-parole period far exceeding the sentence actually imposed.
  • A continued denial of guilt following conviction does not become a factor that should increase the sentence imposed, but it may have practical consequences for participation in offender programs and eligibility for parole.
  • No error was established in the sentencing judge's exercise of discretion, and the aggregate sentence was found to fall well below, rather than above, what the standard non-parole period framework would otherwise suggest.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61JA, 61M(1), 61P
- Children (Criminal Proceedings) Act 1987 (NSW), s 6

Cases:
- DB v Regina; DNN v Regina [2007] NSWCCA 27
- R v MA [2004] NSWCCA 92
- R v AEM [2002] NSWCCA 58
- R v Voss [2003] NSWCCA 182
- R v Way (2004) 60 NSWLR 168
- R v P [2004] NSWCCA 218
- Langbein v R [2008] NSWCCA 38
- Elliot v The Queen; Blessington v The Queen [2007] HCA 51
- R v Reyes [2005] NSWCCA 218
- Wray v R [2007] NSWCCA 162