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Court of Criminal Appeal 23 April 2009

SS v R; JC v R

[2009] NSWCCA 114

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING JUVENILE CO OFFENDERS PARITY PRINCIPLE OF TOTALITY

Citation: SS v R; JC v R [2009] NSWCCA 114
Court: Court of Criminal Appeal, New South Wales
Date: 23 April 2009
Judge(s): Tobias JA, James J, Price J

Background

Two young offenders, SS and JC, were members of a street gang called the "Dark Lotus Phamily" and committed a series of robberies across western Sydney in late 2005. SS was 15 years old at the time of the offences and 17 at sentence; JC was also a juvenile. Both pleaded guilty in the District Court at Penrith before Hughes DCJ.

SS faced five charges involving robbery, including two counts of robbery with wounding (contrary to s 98(1) of the Crimes Act 1900, which carries a maximum of 25 years and a standard non-parole period of 7 years) and three counts of robbery in company or whilst armed. He also had six further offences taken into account on a Form 1. JC was charged in relation to the two robbery with wounding offences committed jointly with SS.

Hughes DCJ sentenced SS to an effective overall term of 7 years with an effective non-parole period of just under 5 years, and JC to an effective overall term of 4 years 3 months with a non-parole period of 2 years 3 months. Both applicants sought leave to appeal the severity of their sentences to the Court of Criminal Appeal.

  • Whether the sentencing judge applied the parity principle correctly, given that SS and JC were co-offenders of different chronological ages and differing levels of culpability
  • Whether the principle of totality was correctly applied to the aggregate sentences imposed on SS
  • Whether the sentencing judge gave appropriate weight to principles applicable to the sentencing of children and young offenders
  • Whether special circumstances were correctly identified and given effect
  • Whether the judge erred in treating JC's offending as planned, when his participation arose from pressure or duress
  • Whether the judge erred in declining to treat JC's drug addiction, which commenced at a very young age, as a mitigating factor

Decision

SS's appeal: partial success. The Court found error in the sentences imposed on SS for charges 4 and 5 (the robbery with wounding offences). The sentences for those two charges were quashed and replaced with reduced terms. The Court confirmed the sentences for charges 1, 2, and 3, and confirmed the order that all sentences be served in a juvenile detention centre. The revised sentences reduced SS's non-parole periods for charges 4 and 5 from 4 years each to 3 years 8 months, bringing the effective sentence more accurately into line with the totality principle and the relevant sentencing principles for juvenile offenders.

JC's appeal: leave granted but appeal dismissed. The Court accepted that the sentencing judge had made two identifiable errors in JC's sentencing. First, the judge wrongly characterised JC's participation in the offences as planned, when the evidence supported a finding that his involvement stemmed from pressure and duress. Second, the judge incorrectly applied the general rule that drug addiction is not a mitigating factor, without recognising the established exception where addiction begins at a very young age. JC had begun using cannabis daily at age 11 and was supplied harder drugs by the gang leader at 16.

Despite finding those errors, the Court declined to re-sentence JC. Applying s 6(3) of the Criminal Appeal Act 1912, the Court concluded that the errors had not actually impacted the sentences imposed. In the Court's view, the effective overall sentence for JC did not exceed what the criminality of his offending warranted, and no lesser sentence was warranted in law. The appeal was accordingly dismissed notwithstanding the identified errors.

Orders Made

In the matter of SS:
- Leave to appeal granted
- Sentences for charges 4 and 5 quashed
- SS re-sentenced on charge 4 to imprisonment with a non-parole period of 3 years 8 months commencing 28 December 2005, balance of term of 2 years 4 months
- SS re-sentenced on charge 5 (including Form 1 offences) to imprisonment with a non-parole period of 3 years 8 months commencing 28 December 2006, balance of term of 2 years 4 months
- Sentences for charges 1, 2, and 3 confirmed
- Order that all sentences be served as a juvenile offender confirmed
- Earliest parole eligibility date: 27 August 2010

In the matter of JC:
- Leave to appeal granted
- Appeal dismissed

Key Takeaways

  • The Court confirmed that where a juvenile offender's drug addiction commenced at a very young age, that addiction may constitute a mitigating factor at sentencing, representing a recognised exception to the general rule established in R v Henry (1999) 46 NSWLR 346 that drug addiction does not ordinarily mitigate.

  • Characterising a co-offender's participation in an offence as "planned" when the evidence indicates that involvement arose from pressure or duress constitutes a sentencing error, as it incorrectly aggravates the offender's culpability.

  • Under s 6(3) of the Criminal Appeal Act 1912, even where sentencing errors are established, the Court of Criminal Appeal will decline to intervene if the errors did not affect the outcome and no lesser sentence would adequately reflect the criminality involved.

  • In sentencing juvenile co-offenders, the parity principle requires attention not only to differences in the roles and culpability of co-offenders but also to their respective ages, given the specific principles applicable to the sentencing of children and young persons.

  • Confirming the original order that sentences be served in juvenile detention reinforced that the Children (Criminal Proceedings) Act 1987 framework continued to apply, even where the matters were dealt with in the District Court.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 19, 91
- Crimes Act 1900 (NSW), ss 97(1), 98(1), 154A(1)(a), 195(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(i), 21A(2)(n), 21A(3)(d), 21A(3)(f), 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Todorovic [2008] NSWCCA 49
- Postiglione v The Queen (1997) 189 CLR 295
- Pearce v The Queen (1998) 194 CLR 610
- House v The King (1936) 55 CLR 400
- R v AEM [2002] NSWCCA 58
- R v Simpson (2001) 53 NSWLR 701
- DB v The Queen (2006) 167 A Crim R 393
- R v MMK (2006) 164 A Crim R 481
- R v Janceski [2005] NSWCCA 288
- R v Tadrosse (2005) 65 NSWLR 740
- DPP v Cornwall [2007] NSWCCA 359
- R v AD [2005] NSWCCA 208
- R v GDP (1991) 53 A Crim R 112
- R v Close (1993) 31 NSWLR 743