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91
Court of Criminal Appeal 22 March 2010

R v JW

[2010] NSWCCA 49

Also reported as (2010) 77 NSWLR 7 (2010) 199 A Crim R 486
Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEALS BY CROWN PROCEDURE CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: R v JW [2010] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 22 March 2010 (Addendum: 20 April 2010)
Judges: Spigelman CJ, Allsop P, McClellan CJ at CL, Howie J, Johnson J

Background

The respondent, who was 15 years old at the time of the offences, pleaded guilty in the District Court to two charges of armed robbery causing wounding under s 98 of the Crimes Act 1900. Both offences were committed at night near train stations, in the company of two co-offenders aged 14 and 15. A knife was used on each occasion, with each victim sustaining minor cuts to the hands.

North DCJ sentenced the respondent to 24 months imprisonment (suspended) for the first count and 80 hours community service for the second count. The sentencing judge took into account the respondent's youth, a history of sexual abuse and domestic violence, continued good behaviour, and a finding that the respondent's role in the joint criminal enterprise was less serious than that of his co-offenders.

The Crown appealed against the sentences as manifestly inadequate and raised several specific errors in the sentencing judge's approach.

  • Whether the Crown's failure to specify grounds in its notice of appeal rendered the appeal incompetent
  • Whether s 68A of the Crimes (Appeal and Review) Act 2001 abolished double jeopardy as a principle in Crown appeal re-sentencing
  • Whether any residual discretion remains to refuse a Crown appeal following the enactment of s 68A, and what role the "rarity principle" plays
  • Whether the sentencing judge erroneously applied a standard non-parole period to the respondent's case
  • Whether the sentencing judge wrongly treated, as a mitigating factor, a finding that the respondent had not produced the knife, in circumstances where that finding was not established on the balance of probabilities
  • Whether the sentencing judge failed to apply the correct principles for sentencing an offender for crimes committed as part of a joint criminal enterprise
  • Whether the sentences imposed were manifestly inadequate

Decision

Competency of the appeal: The Court held unanimously that the Crown's failure to identify grounds in the notice of appeal at the time of filing did not invalidate the notice or render the appeal incompetent. Leave was granted to amend the notice to add the relevant grounds.

Double jeopardy and s 68A: The Court examined the effect of s 68A of the Crimes (Appeal and Review) Act 2001, which removed double jeopardy as a principle to be applied when re-sentencing on a Crown appeal. The Court confirmed that this provision extinguished the sentencing discount that had previously been available to an offender on the basis that he or she faced being sentenced twice.

Residual discretion and the rarity principle: The Court addressed whether a residual discretion to decline Crown appeals remained following s 68A. It also considered the "rarity principle," that is, the proposition that the frequency of Crown appeals is itself a relevant sentencing consideration in individual cases. The Court's analysis clarified the scope and limits of these principles in light of the legislative change.

Errors below and re-sentencing: The Court found sufficient error in the sentencing judge's treatment of the second count to warrant intervention. The sentence of 80 hours community service on the second count was quashed. On re-sentencing, the Court imposed a two-year term of imprisonment on that count, which it then suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, subject to a two-year good behaviour bond with conditions including supervision by the NSW Department of Juvenile Justice. In a subsequent addendum, the Court corrected a technical error in its own orders, noting that a suspended sentence should not specify a commencement date, as that date is only determined if and when a bond is revoked.

Orders Made

  • Leave granted to amend the notice of appeal to add the grounds identified in paragraph [38] of the judgment
  • Sentence on Count 2 imposed by North DCJ on 21 August 2009 quashed
  • On Count 2, the respondent sentenced to a term of imprisonment of two years, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 upon entry into a two-year good behaviour bond, with conditions requiring:
  • Good behaviour throughout the bond period
  • Supervision by the NSW Department of Juvenile Justice, including compliance with reasonable conditions as to education or employment
  • Appearance before the Supreme Court of NSW if called upon
  • Notification to the Registrar of the Criminal Listing Directorate of any change of residential address
  • Order 3 subsequently amended by addendum to remove the originally specified commencement date, as including such a date on a suspended sentence is contrary to s 12(3) of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • A Crown notice of appeal that omits grounds at the time of filing is not automatically invalid or incompetent; the Court of Criminal Appeal confirmed that leave to amend the notice to add grounds may be granted.
  • Section 68A of the Crimes (Appeal and Review) Act 2001 removed double jeopardy as a sentencing principle on Crown appeals, meaning an offender re-sentenced on a successful Crown appeal is no longer entitled to a discount based on the fact of being sentenced twice.
  • The Court examined the "rarity principle" (the idea that the comparative infrequency of Crown appeals has relevance to sentencing in individual cases) in the context of s 68A, clarifying the extent to which such considerations survive the legislative removal of double jeopardy.
  • Parity between co-offenders in a joint criminal enterprise is a relevant sentencing consideration, but a finding that one offender had a lesser role must be supportable on the evidence to the requisite standard before it can operate as a mitigating factor.
  • When imposing a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999, a court should not specify a commencement date for the sentence; that date is fixed only upon revocation of the bond under s 99 of the Act.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 43, 47, 99
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules

Key Cases:
- Carroll v The Queen [2009] HCA 13
- Kirk v Industrial Relations Commission (NSW) [2010] HCA 1
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110
- R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263
- R v Birlut (1995) 39 NSWLR 1
- R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
- Lowe v The Queen (1984) 154 CLR 606
- House v The King (1936) 55 CLR 499
- R v Osenkowski (1982) 5 A Crim R 394
- Malvaso v The Queen (1989) 168 CLR 227