Citation: Ruttley v R [2010] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 4 June 2010
Judges: McClellan CJ at CL, Simpson J, Fullerton J
Background
The applicant, a young Aboriginal man aged just under 20 at the time of the offences, pleaded guilty in the District Court at Dubbo to two charges: aggravated entry into a dwelling with intent to commit a serious indictable offence (carrying a maximum of 14 years), and assault occasioning actual bodily harm (carrying a maximum of 7 years). Both offences arose from a prolonged and serious assault on an intellectually disadvantaged man in his home in the early hours of 10 July 2008. The applicant committed the offences in company with his younger cousin, KR, who was a juvenile at the time.
The sentencing judge imposed a total term of 4 years imprisonment on the first charge, with a non-parole period of 2 years and 6 months, and a concurrent fixed term of 2 years on the second charge. The applicant sought leave to appeal against the severity of those sentences.
A notable feature of the case was the applicant's conduct immediately after the assault. He and his juvenile cousin attended the local police station, disclosed what they had done, and asked police to call an ambulance for the victim.
Legal Issues
- Whether the original sentence was manifestly excessive having regard to the applicant's personal circumstances, including his age, prior good character, voluntary disclosure, remorse, and prospects of rehabilitation
- Whether the sentencing judge erred in failing to set a non-parole period for the second charge, effectively imposing a fixed term equivalent to the entire non-parole period
- Whether the principle of parity with the co-offender (KR, dealt with in the Children's Court and receiving a wholly suspended sentence) applied, or whether proportionality independently required a less severe sentence
- Whether a "less severe sentence was warranted in law" within the meaning of s 6(3) of the Criminal Appeal Act 1912
Decision
Simpson J (with whom McClellan CJ at CL and Fullerton J agreed) reviewed the applicant's personal circumstances in detail. The applicant had no meaningful prior criminal history, came from a close-knit but disadvantaged Aboriginal family, had voluntarily attended the police station to disclose the offences and request an ambulance for the victim, and demonstrated genuine remorse. The Pre-Sentence Report noted a possible low cognitive or intellectual disability and identified reasonable prospects of rehabilitation.
On the parity argument, the Court acknowledged that it will ordinarily be rare for an adult offender to successfully invoke the parity principle against a co-offender dealt with in the Children's Court, because that jurisdiction operates under a distinct sentencing regime focused on reintegration. The Court accepted the arbitrariness that can arise at the boundary of adulthood but held that this is a consequence of the legislature's choice to fix a threshold age.
Nonetheless, the Court held that the co-offender's outcome remained relevant to the separate question of proportionality. KR had received a wholly suspended sentence for the same conduct, and nothing distinguished the two offenders in terms of criminal responsibility, participation, or personal circumstances. Taken together with the applicant's significant mitigating factors, the Court was satisfied that a less severe sentence was warranted in law.
The Court re-sentenced the applicant to 3 years imprisonment on count 1, with a non-parole period of 16 months (backdated to the commencement of his custody), and a concurrent fixed term of 16 months on count 2. As both terms had already expired by the time of the hearing, the Court directed the applicant's immediate release.
Orders Made
- Leave to appeal granted
- Appeal allowed; original sentences quashed
- Re-sentenced on count 1 to imprisonment for 3 years commencing 14 January 2009, with a non-parole period of 16 months expiring 13 May 2010 and a balance of term of 20 months expiring 13 January 2012
- Re-sentenced on count 2 to a fixed term of 16 months commencing 14 January 2009 and expiring 13 May 2010 (concurrent)
- Applicant directed to be released forthwith pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999
Key Takeaways
- Voluntary disclosure of offending and taking steps to obtain assistance for the victim are significant mitigating factors that sentencing courts must weigh carefully alongside the objective seriousness of the offence.
- A conviction in the Children's Court will rarely ground a parity argument in adult sentencing proceedings because the two jurisdictions operate under fundamentally different sentencing regimes; however, a co-offender's outcome in the Children's Court is not entirely irrelevant and may still bear on proportionality.
- Where nothing distinguishes two offenders in terms of participation and personal circumstances, the fact that a co-offender received a wholly suspended sentence remains a relevant consideration to proportionality even when parity strictly cannot be invoked.
- Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal may intervene and re-sentence where it is satisfied that a less severe sentence was warranted in law, even if the original sentence was not otherwise infected by identifiable legal error.
- Factors including youth, prior good character, genuine remorse, limited formal education, socio-economic disadvantage, and reasonable prospects of rehabilitation can, in combination, substantially reduce the appropriate sentence even for serious offences involving significant violence.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 50
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
Cases:
- Pham v R [2009] NSWCCA 25
- R v Ellis (1986) 6 NSWLR 603
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Thewlis v The Queen [2008] NSWCCA 176; 186 A Crim R 279