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Court of Criminal Appeal 12 September 2012

JB v R

[2012] NSWCCA 196

Assault & violence
CRIMINAL LAW APPEAL LEAVE TO APPEAL AGAINST SENTENCE ERROR CONCEDED ERROR NOT ESTABLISHED PAROLE PERIOD

Citation: JB v R [2012] NSWCCA 196
Court: Court of Criminal Appeal, NSW
Date: 12 September 2012
Judges: McClellan CJ at CL, RA Hulme J, Schmidt J

Background

The applicant was 17 years and 3 months old when he carried out a serious, unprovoked physical attack on a peer of similar age at a park near Maroubra Beach late at night. He punched the victim eight to ten times to the head, walked away, then returned and struck the victim again from behind, causing him to fall unconscious. The victim sustained a brain haemorrhage, bleeding and swelling to the brain, a fractured eye socket, a head wound, and a chipped tooth.

The applicant pleaded guilty to wounding with intent to cause grievous bodily harm under s 33(1) of the Crimes Act 1900. Garling DCJ sentenced him to an overall term of five years and three months imprisonment, with a non-parole period of three years, commencing 9 March 2011. Because the offence carried a maximum penalty of 25 years, it qualified as a "serious children's indictable offence" and the applicant was required to be dealt with according to law rather than under the more flexible children's sentencing regime.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge wrongly used the adult standard non-parole period as a reference point; and second, that the sentencing judge miscalculated the objective seriousness of the offence.

  • Whether the sentencing judge erred by treating the standard non-parole period applicable to adult offenders as a reference point when sentencing a juvenile offender, in circumstances where s 54D of the Crimes (Sentencing Procedure) Act 1999 excludes that provision for offenders under 18 at the time of the offence.
  • Whether the sentencing judge's use of the adult standard non-parole period infected the broader sentencing exercise, including the assessment of objective seriousness.
  • Whether, applying the proviso in s 6(3) of the Criminal Appeal Act 1912, a lesser sentence than that imposed was warranted in law.

Decision

The Crown conceded the first ground, accepting that s 54D of the Crimes (Sentencing Procedure) Act 1999 excludes the standard non-parole period regime for offenders under 18. The sentencing judge's treatment of that period as a "reference point" or guidepost was therefore an error, and leave to appeal was granted on that basis.

On the second ground, the Court found that no error in the objective seriousness assessment had been established. The sentencing judge's finding that the offence fell slightly below the mid-range was open on the facts. The Court noted that the nature and severity of the injuries actually inflicted are central to assessing the seriousness of a s 33 offence, and the victim's injuries were described as little short of fatal. The sentencing judge had also properly taken into account that the applicant did not foresee all of the consequences of his conduct, which operated to his advantage in the sentencing calculus.

The Court then considered whether the error on ground one had infected the sentence so as to warrant a lesser term. Applying s 6(3) of the Criminal Appeal Act 1912, the Court concluded that no lesser sentence was warranted. The applicant's positive progress towards rehabilitation in custody was noted but given limited weight; the Court observed that it may have reflected the deterrent effect of the sentence itself and the benefit of the discretion exercised under s 19 of the Children (Criminal Proceedings) Act 1987 rather than grounds for reduction.

McClellan CJ at CL added observations about the recurring pattern of alcohol-fuelled youth violence seen by the Court, noting the importance of general deterrence in this category of offending and suggesting the broader problem requires engagement from all members of the community, not courts alone.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 54D of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period regime does not apply to offenders who were under 18 at the time of the offence, and a sentencing court errs by treating that period as a reference point or guidepost even in cases involving serious children's indictable offences.
  • A conceded error in the sentencing exercise does not automatically produce a different outcome on appeal: the Court of Criminal Appeal must still determine, under s 6(3) of the Criminal Appeal Act 1912, whether a lesser sentence is actually warranted in law.
  • In assessing the objective seriousness of a wounding offence under s 33 of the Crimes Act 1900, the nature and severity of the injuries actually caused is a particularly significant factor, even where the offender did not foresee the full extent of those consequences.
  • Positive rehabilitation progress by an offender in custody does not necessarily justify appellate intervention to reduce a sentence, particularly where that progress may itself reflect the deterrent effect of the sentence imposed.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed the importance of general deterrence in sentencing for unprovoked alcohol-fuelled youth violence, consistent with the approach confirmed in R v Carroll; Carroll v The Queen [2010] 77 NSWLR 45.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17, 19
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- AE v R [2010] NSWCCA 203
- Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 93
- KT v R [2008] NSWCCA 51; 182 A Crim R 571
- Lawton v R [2012] NSWCCA 16
- R v Carroll; Carroll v The Queen [2010] 77 NSWLR 45
- R v Chisari [2006] NSWCCA 19
- R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296
- R v O'Neill [1979] 2 NSWLR 582
- R v Voss [2003] NSWCCA 182
- YS v R [2010] NSWCCA 98