Citation: MJ v R, CPD v R [2010] NSWCCA 52
Court: New South Wales Court of Criminal Appeal
Date: 23 April 2010
Judge(s): McClellan CJ at CL, James J, Rothman J
Background
Two applicants, MJ and CPD, were juveniles at the time they committed robbery in company inflicting grievous bodily harm on 21 March 2008. Both were just under 18 years old when the offence occurred. Together with a third offender, they approached a 25-year-old man waiting for a taxi in the early hours of the morning, assaulted him from behind, and continued to kick and strike him while he was on the ground. The victim sustained two jaw fractures requiring surgery and insertion of a metal plate, a cut above his eye, and widespread bruising.
In the District Court, Acting Judge McLauchlan sentenced each applicant to a head sentence of three years with a non-parole period of two years, to be served in a juvenile detention centre. The sentencing judge treated the offence as one to which the standard non-parole period of seven years applied and assessed the matter as sitting at or slightly below the mid-range of objective seriousness before arriving at the sentences imposed.
Both applicants sought leave to appeal, raising several grounds including the misapplication of the standard non-parole period, failure to account for assistance given to authorities, the fresh evidence of a medical condition, and manifest excess.
Legal Issues
- Whether the sentencing judge erred by applying the standard non-parole period under the Crimes (Sentencing Procedure) Act to offenders who were under 18 at the time of the offence
- Whether the sentencing judge erred by failing to reduce the sentences to reflect assistance provided to authorities under s 21A(3)(n) of the Crimes (Sentencing Procedure) Act
- Whether the failure by MJ's counsel to draw the assistance to the sentencing judge's attention constituted a miscarriage
- Whether fresh evidence of MJ's medical condition warranted a reduction in sentence
- Whether the sentences were manifestly excessive
Decision
The Court accepted that the sentencing judge erred in applying the standard non-parole period framework to the applicants, as s 6 of the Children (Criminal Proceedings) Act makes clear that standard non-parole periods do not apply to offenders who were children at the time of the offence. Despite this error, the Court found it did not result in any practical injustice, because the sentences actually imposed were well below what they would have been had the standard non-parole period been applied without error. The error did not therefore require intervention.
On the question of assistance to authorities, the Court found that any assistance provided by MJ was limited in its utility and, in the circumstances, had already been effectively accounted for in the overall approach to sentencing. The failure by MJ's counsel to specifically highlight that assistance did not produce a miscarriage because it would not have materially altered the outcome.
The fresh evidence of MJ's medical condition was considered, but the Court found it did not warrant a reduction in sentence in the circumstances of this matter. Similarly, the Court found the sentences imposed were not manifestly excessive when assessed against the objective gravity of the offending and the subjective circumstances of both applicants, including their youth, lack of significant criminal history, guilty pleas, and personal backgrounds.
Rothman J added further commentary on the principles applicable to young offenders, confirming that chronological age alone does not determine how much weight to give general deterrence. The mental state, maturity, and circumstances of the offender at the time of offending all remain relevant. His Honour also noted that where a juvenile has conducted themselves in a manner consistent with an adult's conduct, deterrence and retribution become more significant sentencing considerations, though the test always requires an assessment of maturity, not merely the gravity of the violence.
Orders Made
For each applicant:
- Leave to appeal granted
- Appeal against sentence dismissed
Key Takeaways
- The standard non-parole period under the Crimes (Sentencing Procedure) Act does not apply to offenders who were under 18 years of age at the time of the offence, by operation of s 6 of the Children (Criminal Proceedings) Act.
- An error in applying the standard non-parole period framework to a juvenile will not automatically warrant appellate intervention if the sentence ultimately imposed is not infected by the error and does not result in any practical injustice.
- Chronological age is not the sole determinant of how sentencing courts weight general deterrence when dealing with young offenders. The offender's maturity, mental state, and the circumstances of the conduct must all be assessed.
- Where a juvenile has acted in a manner consistent with adult conduct, deterrence and retribution become more prominent elements in the sentencing exercise, but this conclusion requires an assessment of maturity rather than simply the degree of violence involved.
- In dismissing both appeals, the Court confirmed that sentences well below the standard non-parole period were appropriate for these particular juvenile offenders, given their guilty pleas, age, lack of significant criminal history, and personal circumstances, notwithstanding the serious nature of the assault.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 98 (robbery in company inflicting grievous bodily harm, maximum 25 years)
- Crimes (Sentencing Procedure) Act (NSW), s 21A(3)(n) (assistance to authorities), Div 1A Pt 4 (standard non-parole periods)
- Children (Criminal Proceedings) Act (NSW), s 6
Cases:
- KT v R (2008) 182 A Crim R 571
- R v AN [2005] NSWCCA 239
- R v Bus (Court of Criminal Appeal, 3 November 1995, unreported)
- R v Gallagher (1991) 23 NSWLR 220
- R v Henry (1999) 46 NSWLR 346
- R v LNT [2005] NSWCCA 307
- R v Smith (1987) 44 SASR 587