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Court of Criminal Appeal 8 April 2009

TJ v R

[2009] NSWCCA 99

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE PARTICULAR OFFENCES AGGRAVATED ROBBERY (IN COMPANY) OFFENDER DELAY IN SENTENCING

Citation: TJ v R [2009] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 8 April 2009
Judge(s): McClellan CJ at CL, Simpson J, Howie J

Background

The applicant, a 13-year-old girl, pleaded guilty to one count of robbery in company aggravated by the infliction of grievous bodily harm, contrary to s 98 of the Crimes Act 1900. The offence, which carries a maximum penalty of 25 years imprisonment, arose from a violent assault and robbery at Roseville Railway Station in December 2006. The applicant was the instigator of the physical violence, striking the 19-year-old victim without warning before her two co-offenders joined the attack. The victim suffered a fractured cheekbone requiring surgery, with two plates and screws inserted into her face.

There were three offenders in total. A co-offender (KT) was dealt with separately in the Local Court, pleading guilty to a lesser charge under s 95 of the Crimes Act. She received no conviction and a nine-month suspended sentence. The applicant and the remaining co-offender were committed for trial in the District Court after the Director of Public Prosecutions declined lesser pleas. This process took approximately two years from the date of the offence to sentence, which was handed down in December 2008.

The District Court sentenced the applicant to a non-parole period of six months with a balance of sentence of 15 months. Given the applicant's age, the sentencing judge ordered she be detained in a detention centre under s 19 of the Children (Criminal Proceedings) Act 1987. The applicant sought leave to appeal against the sentence on grounds of disproportionality compared to her co-offender's sentence and the significant delay in proceedings.

  • Whether the sentence imposed was manifestly excessive in light of the applicant's extreme youth at the time of the offence (aged 13)
  • Whether the two-year delay between offence and sentence warranted a reduction in the sentence
  • Whether the rehabilitation achieved by the applicant during the period of delay was a sufficiently mitigating factor
  • Whether the disparity between the applicant's sentence and that of co-offender KT was unjustifiable

Decision

The majority (McClellan CJ at CL and Howie J) granted leave to appeal but dismissed the appeal. The majority accepted that the sentencing judge had properly taken into account the applicant's youth, her personal and family circumstances, the delay in proceedings, and her rehabilitation. The majority found the sentence was not excessive to the point of error, noting that the applicant was clearly the instigator of a serious and violent offence.

On the question of disparity with co-offender KT, the majority acknowledged the difference in sentences but pointed to material differences in the offenders' circumstances and charges. KT had pleaded guilty to a lesser offence in the Local Court, and the differences in the proceedings explained much of the sentencing gap. The majority held the sentence imposed on the applicant was not shown to be disproportionate in a manner that warranted appellate intervention.

Simpson J dissented, concluding that four factors in combination demanded a shorter sentence: the applicant's extreme youth, her personal history of family tragedy, the lengthy delay, and the substantial rehabilitation achieved during that delay. Her Honour expressed the view that, given those combined circumstances, a non-custodial sentence would not have been manifestly inadequate. Simpson J would have allowed the appeal and reduced the non-parole period to three months.

The majority did note, however, that courts sentencing young offenders have a responsibility to move proceedings along efficiently. Prolonged delay in resolving matters involving juvenile accused who face the prospect of full-time custody for the first time is a matter the criminal justice system should actively address.

Orders Made

  • Leave to appeal granted (by majority)
  • Appeal dismissed (by majority)

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing disparity between co-offenders does not automatically establish error where the offenders faced different charges, different courts, and different circumstances.
  • A sentence will only be disturbed on appeal if it is shown to be excessive to the point of error; mere dissatisfaction with the outcome or comparison to a co-offender's lighter penalty is insufficient.
  • The majority and the dissent agreed that delay in bringing juvenile matters to conclusion is a significant sentencing consideration, particularly where rehabilitation has occurred during that delay.
  • Extreme youth at the time of the offence, personal hardship, delay in proceedings, and rehabilitation achieved during that delay are all relevant mitigating factors, though the weight each receives remains a matter of judicial discretion at first instance.
  • The Court expressed that the criminal justice system bears a responsibility to resolve proceedings involving juvenile offenders efficiently, recognising the particular burden that prolonged uncertainty places on young accused persons facing potential custody for the first time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 95, 98
- Children (Criminal Proceedings) Act 1987 (NSW), s 19

Cases:
- R v BB (2005) NSWCCA 215
- R v Blanko (1999) NSWCCA 121
- R v Colgan [1999] NSWCCA 292
- R v Ellis and Carr [2002] NSWCCA 21
- R v Todd (1982) 2 NSWLR 517