Citation: AE v The Queen [2010] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 10 September 2010
Judges: Basten JA; Hall J; Latham J
Background
The applicant, a 15-year-old male, participated with three other young people in a robbery at Lidcombe in August 2008. The victim was confronted at a telephone booth, held at knifepoint, and then punched, kicked, and stabbed in the legs after attempting to flee. The applicant was the principal aggressor and had brought the flick knife to the scene.
The applicant was sentenced in the District Court in June 2009, by which time he was nearly 16. Hosking DCJ imposed a non-parole period of three years and a balance of term of two years, to be served in a juvenile institution. The charge was robbery in company with wounding under s 98 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment.
The applicant appealed to the Court of Criminal Appeal on four grounds, all directed at errors in the sentencing process.
Legal Issues
- Whether the sentencing judge failed to apply the sentencing principles prescribed by s 6 of the Children (Criminal Proceedings) Act 1987 (NSW)
- Whether the sentencing judge failed to have regard to character evidence given by a chaplain from the juvenile justice centre where the applicant was held
- Whether the sentencing judge wrongly used the standard non-parole period as a guidepost, despite it being inapplicable to the applicant because of his age
- Whether the sentence was disproportionate compared to the sentences imposed on the applicant's co-offenders
Decision
Principles under the Children (Criminal Proceedings) Act: The sentencing judge had sentenced the applicant "according to law" rather than expressly under the s 6 principles, which include rehabilitation as a primary consideration for young offenders. The Court held that while those principles were not irrelevant even where sentencing occurs "according to law," the failure to refer to them expressly did not affect the outcome in the circumstances of this case. This ground was not made out.
Character witness evidence: The applicant argued the sentencing judge ignored the evidence of the chaplain, Ms Bromley, who had spoken positively to his character. The Court found it was implausible that the primary judge had simply forgotten or disregarded her evidence. The more likely explanation was that the judge treated her evidence as substantially consistent with the more detailed and objective Juvenile Justice Report, to which the judge had expressly referred. This ground also failed.
Standard non-parole period: This ground succeeded. The standard non-parole period for the offence is seven years, but s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) expressly excludes its application where the offender was under 18 at the time of the offence. The Court found that the sentencing judge had nonetheless used the standard non-parole period as a factor indicating Parliament's view of the offence's seriousness, thereby justifying a higher sentence. That was a legal error and required the sentence to be reconsidered.
Disparity with co-offenders: The Court found the disparity in sentences between the applicant and his co-offenders was justified. The applicant held the knife, inflicted the stab wounds, asked the victim a question with racial overtones, and had retained the weapon despite a co-offender asking him to relinquish it. His role and personal circumstances differed materially from those of the others. The disparity did not constitute an error.
Orders Made
- Leave granted to appeal against the sentence imposed in the District Court on 26 June 2009.
- Appeal allowed in part; the non-parole period of three years and balance of term of two years set aside.
- In substitution, a non-parole period of two years six months was set, commencing 22 September 2008 and ending 21 March 2011, with a balance of term of two years six months commencing 22 March 2011 and ending 21 September 2013.
- The direction that the custodial period be served in a juvenile institution as a juvenile offender was left undisturbed.
- First eligible parole date: 22 March 2011.
Key Takeaways
- Under s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period has no application where the offender was under 18 at the time of the offence; using it as a guidepost or indicative factor in such cases constitutes a sentencing error.
- A sentencing court's failure to expressly mention a character witness does not automatically constitute error, particularly where the witness's evidence was substantially consistent with a more detailed report that the judge did address.
- The principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) are not wholly irrelevant even when an offender is sentenced "according to law" rather than under the Act's specific regime, though a failure to refer to them expressly will not always vitiate the sentence.
- Disparity between co-offenders' sentences is not necessarily an error; the Court reaffirmed that differences in role, culpability, and personal circumstances can justify materially different outcomes.
- Where a child's identity is separately protected by publication restrictions under the Children (Criminal Proceedings) Act 1987 (NSW), the principle of open justice may favour a direction that the court not be closed under s 10 of that Act, particularly where the offending is serious and the offender is older.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 10, 15A, 15C, 17, Div 3A
- Crimes Act 1900 (NSW), s 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54D
- Criminal Appeal Act 1912 (NSW), s 6
Cases:
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Diesing v Regina [2007] NSWCCA 326
- KT v R [2008] NSWCCA 51; 182 A Crim R 571
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- OM v R [2009] NSWCCA 267
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v Davies [2004] NSWCCA 319
- SS v R [2009] NSWCCA 114
- SBF v R [2009] NSWCCA 231