C-P v R

Citation: C-P v R [2009] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 11 December 2009
Judges: McClellan CJ at CL, Fullerton J, McCallum J

Background

The appellant was a young offender sentenced in the District Court by Finnane DCJ following convictions for two counts of armed robbery and one count of being an accessory after the fact to a serious indictable offence. A further eight offences were listed on a Form 1 document, meaning the offender consented to those additional charges being taken into account at sentencing without being separately convicted of them. The Form 1 offences included a serious armed robbery of a hotel manager at gunpoint involving approximately $38,000, and concealment of a further armed robbery in which a patron was shot in the stomach.

The appellant challenged the sentence on multiple grounds, including the appropriateness of placing serious offences on the Form 1, the sentencing judge's treatment of uncontested psychological evidence about the appellant's low intelligence, the adequacy of the judge's consideration of the Children (Criminal Proceedings) Act 1987, and a claim of sentencing disparity with a co-offender.

Legal Issues

• Whether it was appropriate for particularly serious offences to be included on a Form 1 rather than separately charged on the indictment
• Whether the sentencing judge erred in rejecting uncontested psychological evidence that the appellant was of low intelligence
• Whether the sentencing judge gave sufficient consideration to section 6 of the Children (Criminal Proceedings) Act 1987 when sentencing the young offender
• Whether an unjustifiable sentencing disparity arose between the appellant and a co-offender who received the same overall sentence despite being an adult

Decision

On the Form 1 issue, McClellan CJ at CL wrote separately to emphasise the court's supervisory role. While acknowledging the utility of Form 1 procedures in allowing offenders to achieve a "clean slate," his Honour expressed concern that some of the Form 1 offences in this case were sufficiently serious that they should ordinarily have been the subject of separate charges on the indictment. The chief judge noted that where the most serious offending is placed on a Form 1, the sentencing court is constrained by the maximum penalty for the principal offence and cannot fully reflect the total criminality of the offender's conduct. Sentencing judges retain a discretion to decline to accept Form 1 offences where inclusion would not be appropriate in the circumstances.

On the psychological evidence, the Court acknowledged that a sentencing judge may, in appropriate circumstances, decline to accept uncontested expert evidence. However, the judge must give reasons for doing so, and those reasons must be adequate. McCallum J examined whether the judge's departure from the psychologist's evidence about the appellant's low intelligence was supported by sufficient reasoning. The Court ultimately found no appealable error on this ground warranted disturbing the sentence.

On the Children (Criminal Proceedings) Act 1987, the Court considered whether the sentencing judge had properly engaged with the legislative requirement to give special attention to rehabilitation when sentencing young offenders. The appeal on this ground was also not made out.

On parity, the Court noted that the sentencing judge had expressly stated he would have imposed a heavier sentence on the adult co-offender but for the need to maintain parity with the other offenders, including the appellant. In those circumstances, no justifiable sense of grievance arose on the appellant's part. The disparity ground therefore failed.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

• A sentencing court retains a supervisory discretion under section 33 of the Crimes (Sentencing Procedure) Act 1999 to decline to accept Form 1 offences if it is not appropriate to do so in all the circumstances, particularly where the offences are sufficiently serious that placing them on a Form 1 would prevent the sentence from adequately reflecting the total criminality of the offender's conduct.

• Where the most serious offending is relegated to a Form 1, the sentencing court is constrained to the maximum penalty available for the principal offence, which may be insufficient to reflect the full gravity of the admitted criminal conduct.

• A sentencing judge may reject uncontested expert evidence, but the Court of Criminal Appeal confirmed that adequate reasons must accompany that departure, particularly where the evidence goes to a relevant mitigating factor such as cognitive impairment or low intelligence.

• Parity principles require that any sentencing disparity be of a kind that would give rise to a justifiable sense of grievance in the mind of an objective observer, not merely a difference in sentence outcomes between co-offenders. Where a judge expressly moderates a co-offender's sentence downward in the interests of parity, the remaining offender has no valid parity complaint.

• The Children (Criminal Proceedings) Act 1987 imposes distinct sentencing considerations for young offenders, and sentencing courts are required to engage meaningfully with those provisions.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 37
- Criminal Appeal Act 1912 (NSW)

Cases
- DB v R [2007] NSWCCA 27
- Eedens v R [2009] NSWCCA 254
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Postiglione v The Queen [1999] HCA 26; (1997) 189 CLR 295
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; 137 A Crim R 180