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Court of Criminal Appeal 13 May 2010

YS v R

[2010] NSWCCA 98

Sexual offences
CRIMINAL LAW SENTENCE APPEAL MENTAL CONDITION YOUNG PERSON TOTALITY NO IDENTIFIABLE OR MANIFEST ERROR

Citation: YS v R [2010] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 13 May 2010
Judge(s): McClellan CJ at CL, Howie J, Rothman J

Background

The applicant, referred to as YS, was 16 years old at the time he broke into a home and subjected the female occupant to a prolonged and serious sexual assault, including multiple acts of a sexual nature accompanied by threats of violence. He was later charged with aggravated break, enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900, with the aggravating circumstance being the deprivation of the victim's liberty.

YS pleaded guilty and was sentenced in the District Court by Berman DCJ to eight years' imprisonment, with a non-parole period of five years commencing 4 November 2008. At the time of sentencing, he was already serving a sentence for two counts of robbery in company and one count of aggravated entry of a dwelling. The sentencing judge made the new sentence fully cumulative on the non-parole period of the existing sentence, backdating its commencement by approximately six months.

YS sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was manifestly excessive. The suppression of his identity is required by s 11 of the Children (Criminal Proceedings) Act 1987, as he was a young person at the time of the offence.

  • Whether the sentencing judge failed to give adequate weight to the applicant's age (16 at the time of the offence) in setting the sentence
  • Whether the applicant's mental illness or psychiatric condition was insufficiently reflected in the sentence
  • Whether the sentencing judge properly applied the principle of totality when imposing a sentence cumulative on an existing term

Decision

The Court granted leave to appeal but dismissed the appeal, finding no identifiable or manifest error in the sentence imposed.

On the question of youth, the Court acknowledged that the applicant's age at the time of the offence was a relevant and important mitigating factor. However, it also noted that the offence was of extreme seriousness. The Court found that the sentencing judge was aware of and gave weight to the applicant's age, and that the resulting sentence was not disproportionate given the gravity of the conduct.

Regarding the applicant's mental health, the Court recognised that psychiatric issues can affect both culpability and the conditions under which a sentence is served. Nevertheless, even accounting for those matters alongside youth, the sentence of eight years was not so excessive as to demonstrate error. The Court observed that the maximum penalty for the offence was 25 years, and that the notional starting point before discounts would have been around 20 years, making the eight-year sentence a substantial downward adjustment.

On totality, the Court found the overall sentencing outcome was appropriate. Taking together the non-parole period of the pre-existing sentence and the new term, YS would serve approximately six years and three months (assuming release at first eligibility) across all offences. The Court held that this was not an inappropriate reflection of the total criminality involved, and that the sentencing judge's approach to cumulation was consistent with established principles.

Orders Made

  • Application for leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that manifest excess requires more than a different judge reaching a different outcome on similar facts; an actual identifiable error in principle or a sentence outside the available range must be demonstrated.
  • Where an offender was aged 16 at the time of a serious sexual assault, youth remains a meaningful mitigating factor, but it does not override the objective gravity of the offence when both elements are properly weighed by the sentencing court.
  • A sentencing court's obligation to consider mental illness does not compel a particular outcome; the weight to be given to psychiatric conditions is a matter of degree, and an appellate court will not intervene simply because it might have weighed those factors differently.
  • Under the totality principle, a cumulative sentence is assessed by reference to the combined effect on the offender across all sentences, not each component in isolation. Here, the total effective custodial period was held to be proportionate to the collective criminal conduct.
  • The Court noted the maximum penalty for aggravated break, enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900 was 25 years, providing the relevant ceiling against which the imposed sentence was measured.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 11
- Crimes Act 1900 (NSW), s 112(2)
- Mental Health Act 2007 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- R v Holder [1983] 3 NSWLR 245
- R v Henry (Barber, Tran, Silver, Tsoukatos, Kyroglou, Jenkins) [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Engert (1995) 84 A Crim R 67
- KT v R (2008) 182 A Crim R 471
- MJ v R, CPD v R [2010] NSWCCA 52
- HAN, Zhi Qiang v R [2009] NSWCCA 300
- R v Aem; R v Kem; R v MM [2002] NSWCCA 58
- R v AD [2005] NSWCCA 208
- R v AN [2005] NSWCCA 239
- R v LNT [2005] NSWCCA 307