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Court of Criminal Appeal 14 July 2011

SJ v Regina

[2011] NSWCCA 160

Assault & violenceTheft & property
CRIMINAL LAW OFFENCE OF AGGRAVATED ROBBERY

Citation: SJ v Regina [2011] NSWCCA 160
Court: NSW Court of Criminal Appeal
Date: 14 July 2011
Judges: Bathurst CJ, Buddin J, Harrison J

Background

The applicant was 17 years old when he and a co-offender approached two young boys on a street corner late at night and demanded money. When the 14-year-old victim said he had none, the applicant and his co-offender repeatedly punched, kicked and stomped on him, causing a 10-centimetre wound to the victim's head, severe lacerations, and a loss of consciousness. The offenders then stole the unconscious victim's shoes, wallet and watch before leaving the scene.

The applicant pleaded guilty in the District Court to robbery in circumstances of aggravation, specifically that the victim was wounded. The offence carries a maximum penalty of 25 years' imprisonment. Judge English sentenced him to a non-parole period of 3 years and 2 months, with a head sentence of 5 years 11 months and 12 days. A finding of special circumstances extended the parole period. The applicant was ordered to serve his sentence in a juvenile detention centre until age 21, pursuant to s 19 of the Children (Criminal Proceedings) Act 1987.

The applicant sought leave to appeal against the sentence on two grounds: first, that the sentencing judge erred in finding he lacked remorse; and second, that the sentence was manifestly excessive, having regard to the principles applicable to the sentencing of young offenders.

  • Whether the sentencing judge made an error in finding that the applicant had not demonstrated genuine remorse
  • Whether the sentencing judge properly applied the principles governing the sentencing of young offenders
  • Whether the sentence was manifestly excessive when considered in light of the applicant's age, limited criminal history, plea of guilty, and personal circumstances

Decision

On remorse: The sentencing judge had found the applicant's expressions of remorse were not genuine, noting that his evidence at the hearing was untruthful in several material respects. The Court of Criminal Appeal found no error in that conclusion. The applicant's credibility had been significantly undermined by his false denials at the sentencing hearing, and a sentencing judge is entitled to take that into account when assessing the authenticity of claimed remorse. The Court confirmed that a finding of remorse in the face of a dishonest account is not an error of principle but a legitimate credibility assessment.

On sentencing principles for young offenders: The Court accepted that the sentencing judge had given appropriate weight to the applicant's youth, his relatively limited prior record, and his personal circumstances. Her Honour had explicitly directed attention to the rehabilitative purpose of sentencing and had structured the sentence to reflect special circumstances. The Court found no failure to apply the recognised principles for sentencing juvenile offenders.

On manifest excess: The applicant relied on a comparable case involving a similar charge to argue the sentence was too high. The Court rejected this comparison, noting that the remarks relied upon were confined to the specific facts of that other case and were not intended to establish a sentencing range for the category of aggravated robbery with wounding more broadly. The Court emphasised the serious objective criminality involved: a premeditated, unprovoked attack on a vulnerable young victim, late at night, by a physically powerful offender who had instigated the violence. Those features, the Court found, placed the offence at the serious end of its kind, and the sentence was not shown to be manifestly excessive.

Orders Made

  • Time for seeking leave to appeal extended to and including 6 May 2011
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge may legitimately reject a claim of remorse where the offender has given a dishonest account at the sentencing hearing; the Court of Criminal Appeal confirmed that credibility findings directly inform the assessment of remorse.
  • No error was established in the sentencing judge's application of the principles governing young offenders, where the record showed the judge had expressly addressed youth, rehabilitation, and special circumstances.
  • In dismissing the manifest excess ground, the Court reaffirmed that comparisons with sentences in individual cases must be approached with caution and cannot be used to derive a binding range for an entire offence category.
  • The objective seriousness of an offence, including premeditation, the vulnerability of the victim, and the severity of injuries inflicted, may outweigh mitigating factors such as youth and a limited prior record in determining whether a sentence falls within an appropriate range.
  • Under s 19 of the Children (Criminal Proceedings) Act 1987, a court may order a juvenile offender to serve a sentence in a detention centre until the age of 21, even where the head sentence extends beyond that age.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Alvares v R [2011] NSWCCA 33
- BP v R (2010) 201 A Crim R 379
- Hili and Jones v R (2010) 272 ALR 465
- House v The King (1936) 55 CLR 499
- JT v R [2011] NSWCCA 128
- KT v R (2008) 182 A Crim R 571
- MW v R [2010] NSWCCA 324
- R v Baker [2000] NSWCCA 85
- R v LNT [2005] NSWCCA 307
- R v Morgan (1993) 70 A Crim R 368
- The Queen v Olbrich (1999) 199 CLR 270