Citation: HMP v R [2010] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 23 April 2010
Judge(s): McClellan CJ at CL, Latham J, Schmidt J
Background
The applicant was a 16-year-old female at the time of the offending and 17 at the time of sentence. She pleaded guilty in the Bidura Children's Court at Glebe to two offences under the Crimes Act 1900: robbery in company (s 97(1)) and robbery in company causing grievous bodily harm (s 98). Two further offences, both involving assault with intent to rob, were listed on a form 1 document to be taken into account at sentencing.
The offences arose from four unprovoked attacks on pedestrians in Kings Cross and Potts Point over approximately 75 minutes on the evening of 28 April 2008. The applicant acted as a willing participant alongside three others, including two male co-offenders who were the physical aggressors. The attacks involved the use of a syringe as a weapon and resulted in actual bodily injury to at least one victim.
Acting District Court Judge Phegan sentenced the applicant to 2 years imprisonment for count 1 (concurrent) and 4 years and 6 months imprisonment for count 2, with a non-parole period of 2 years and 6 months. The applicant sought leave to appeal against the severity of those sentences.
Legal Issues
- Whether the sentencing judge failed to assess where the count 2 offence fell within the range of objective seriousness
- Whether the sentencing judge wrongly articulated the test for departing from the standard non-parole period
- Whether the sentencing judge impermissibly treated the applicant's prior criminal record as an aggravating factor
- Whether the sentencing judge erred in characterising the offences as "a series of criminal acts" under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999
- Whether the sentencing judge failed to give proper weight to the fact that count 1 and the two form 1 offences could have been dealt with in the Children's Court
Decision
The Court of Criminal Appeal, in reasons delivered by Schmidt J (with McClellan CJ at CL and Latham J agreeing), dismissed all five grounds of appeal and refused leave.
On grounds 1 and 2, the Court found that the sentencing judge had adequately assessed the objective seriousness of the count 2 offence and had correctly articulated the standard non-parole period test. No error was established in either the analysis or the language used by his Honour.
On ground 3, the Court confirmed that prior criminal history was a permissible consideration under s 21A of the Crimes (Sentencing Procedure) Act 1999, and that the sentencing judge had not used it impermissibly. On ground 4, the Court accepted that four attacks on different victims over a continuous period did constitute "a series of criminal acts" within the meaning of the aggravating factor in s 21A(2)(m).
On ground 5, the Court found that the sentencing judge had given appropriate weight to the availability of the Children's Court jurisdiction. The sentence imposed for count 1, while at the upper range of what the Children's Court could have imposed, remained within the available range and was in fact lenient. Taken together, the overall sentencing outcome was so lenient that no lesser sentence was warranted as a matter of law. The Court noted the applicant was particularly fortunate that the count 1 sentence was ordered to run entirely concurrently with count 2.
Orders Made
- Leave to appeal against sentence refused
Key Takeaways
- Four unprovoked attacks on different pedestrians occurring over a continuous period can constitute "a series of criminal acts" under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, even where the offender was not the direct physical aggressor in any of them.
- A prior criminal record may be taken into account as a relevant factor in sentencing under s 21A, provided it is not treated as an aggravating factor in a manner that punishes the offender a second time for past conduct.
- Under s 18(1A)(d) of the Children (Criminal Proceedings) Act 1987, the fact that certain offences could have been dealt with in the Children's Court is a relevant consideration for the District Court at sentencing, but it does not preclude imposing a sentence at the top of that jurisdiction's range where the gravity of the offending warrants it.
- Refusing leave, the Court of Criminal Appeal confirmed that an overall sentence may be so lenient that no arguable case for a lesser penalty arises, effectively foreclosing a severity appeal even where individual grounds raise arguable technical points.
- A young offender's willing participation in serious, repeated offences involving a weapon can justify a term of imprisonment in the District Court, notwithstanding significant mitigating factors such as age, background reports, and guilty pleas.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 94, 97(1), 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(m), 32
- Criminal Appeal Act 1912 (NSW), s 6
- Children (Criminal Proceedings) Act 1987 (NSW), s 18(1A)(d)
Cases:
- AJO v Regina [2008] NSWCCA 28
- Kerr v Regina [2008] NSWCCA 133
- McCullough v R [2009] NSWCCA 94
- Phan v R [2010] NSWCCA 8
- Porter v R [2008] NSWCCA 145
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Janceski [2005] NSWCCA 228; (2005) 44 MVR 328
- R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Scott [2005] NSWCCA 152
- R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
- Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 137 A Crim R 180
- Regina v Palmer [2005] NSWCCA 349
- Tapueluelu v R [2006] NSWCCA 113
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465