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Court of Criminal Appeal 28 October 2010

AW v R

[2010] NSWCCA 249

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING YOUNG OFFENDER NO QUESTION OF PRINCIPLE

Citation: AW v R [2010] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 28 October 2010
Judges: Handley AJA, Adams J, Howie AJ

Background

The applicant, aged fifteen and a half at the time of the offence, pleaded guilty to breaking and entering a dwelling house at around 5:00 am and wounding the occupant when she surprised him in her kitchen. He struck her in the face, fracturing her nose and requiring her hospitalisation. He was identified by fingerprints and arrested the following morning.

The applicant had a lengthy record of property offences for his age, including prior break and enter matters dealt with in 2004, 2005 and February 2008. He was on parole at the time of the offence. His parole was later revoked, and he was required to serve the remaining balance before the new sentence commenced.

English DCJ in the District Court sentenced the applicant to three years and nine months imprisonment, to be served in a Juvenile Detention Centre, with a non-parole period of two years. The sentence commenced from the expiry of the parole balance and incorporated a 25% discount for the early guilty plea. The applicant sought leave to appeal to the Court of Criminal Appeal.

  • Whether the sentence was manifestly excessive given the applicant's youth and personal circumstances
  • Whether the sentencing judge failed to properly consider and apply the principles governing the sentencing of young offenders, particularly the importance of rehabilitation
  • Whether the sentencing judge failed to adequately address remorse and contrition
  • Whether the sentence should have been made wholly or partly concurrent with the balance of the applicant's earlier parole period

Decision

The Court granted leave to appeal but unanimously dismissed the appeal. Handley AJA, writing the lead judgment, found no error in the sentencing judge's approach. Her Honour had expressly and repeatedly referred to the applicant's youth throughout her remarks, found special circumstances, and reduced the non-parole period to 54% of the head sentence. The plea of guilty was accepted as evidence of contrition, and the sentencing judge's guarded assessment of the applicant's remorse was characterised as open to her on the material.

On the concurrency question, Handley AJA held that the sentencing judge was not bound to make the new sentence concurrent with the balance of the earlier parole period. While there could be a perception of double jeopardy, the balance of the parole had been served for a distinct offence. The decision to commence the new sentence from expiry of the earlier one fell within the sentencing judge's discretion and disclosed no error.

Adams J agreed with the orders but added observations about the particular challenges of sentencing juveniles. His Honour noted that the applicant's violent reaction to being surprised during the break and enter reflected immaturity and a background where violence was a default response, rather than deliberate or premeditated wickedness. Adams J was critical of certain passages in the sentencing remarks, which suggested that general deterrence and "stern punishment" were primary considerations, observing this language was inapt and risked conveying that deterrence overwhelmed rehabilitation. However, his Honour concluded that the sentence itself was neither severe nor inappropriate when all relevant factors were weighed.

Howie AJ agreed with both the reasoning and the orders. His Honour acknowledged there was genuine room for divergent views about the correct balance between retribution and rehabilitation on these facts, but concluded the sentence was not unreasonable or wrong. Notwithstanding the infelicitous language in the sentencing remarks, the sentence actually imposed demonstrated no error in the exercise of the discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court is not obliged to make a new sentence concurrent with the balance of an earlier parole period, even where the parole relates to the same general conduct. The balance of a parole period is served for a distinct earlier offence, and the decision to impose a consecutive sentence falls within the sentencing discretion.
  • Rehabilitation is recognised as a particularly important sentencing consideration for young offenders, but a sentencing court does not err simply because its language appears to emphasise deterrence, provided the sentence actually imposed reflects appropriate weight being given to youth and rehabilitation.
  • The Court of Criminal Appeal confirmed that the structure and outcome of a sentence, not merely the language of sentencing remarks, is the primary indicator of whether sentencing errors have occurred.
  • Where a juvenile offender is serving time in a detention centre that provides education, supervision and psychological support, the rehabilitative potential of that custodial setting is a relevant consideration distinct from the limited rehabilitative value typically associated with adult imprisonment.
  • In dismissing the appeal, the Court found the applicant's extensive prior record, his parole status at the time of the offence, and the seriousness of the aggravated wounding brought the sentence within an acceptable range, notwithstanding the significant weight ordinarily accorded to youth in sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 113(3) (breaking and entering a dwelling house in circumstances of special aggravation)

Cases: No cases were cited in the text of the judgment.