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4
Court of Criminal Appeal 14 December 2012

BT v R

[2012] NSWCCA 276

Theft & propertyFirearms & weapons
CRIMINAL LAW NON PAROLE PERIOD PAROLE PERIOD DEPARTED FROM RATIO OF BALANCE OF TERM TO OVERALL NON PAROLE PERIOD

Citation: BT v R [2012] NSWCCA 276
Court: NSW Court of Criminal Appeal
Date: 14 December 2012
Judge(s): Basten JA, Adams J, RA Hulme J

Background

The applicant was a juvenile (born 17 April 1993) who participated in four armed robberies in south-west Sydney during April 2010, including one that fell on his 17th birthday. The robberies involved a replica pistol, though the applicant never personally carried it. He was one of five co-offenders sentenced together in the District Court at Campbelltown in October 2011.

The applicant had previously been sentenced for an armed home invasion and related firearms offences. The District Court judge, who had also imposed those earlier sentences, fully accumulated the new sentences onto the existing ones, with the result that the applicant would spend the bulk of his custody in a juvenile detention centre before transferring to an adult correctional centre shortly before his release.

The applicant sought leave to appeal on four grounds, challenging both the structure of the sentence and the process by which it was arrived at.

  • Whether the sentencing judge was required, under s 18(1) of the Children (Criminal Proceedings) Act 1987 (NSW), to consider dealing with the applicant under Division 4 of Part 3 of that Act rather than according to law, and whether any failure to do so constituted error.
  • Whether the sentencing judge erred in the extent of accumulation of the new sentences on the existing sentences.
  • Whether the sentencing judge failed to give proper effect to the finding of special circumstances when structuring the accumulated sentences, such that the effective ratio of non-parole period to balance of term was distorted.
  • Whether the applicant was denied procedural fairness because the sentencing judge imposed a more severe effective non-parole period than had been indicated during the hearing, without giving the applicant an opportunity to make further submissions.

Decision

Ground 1: Consideration of the Children (Criminal Proceedings) Act, s 18

The Court held that the sentencing judge was required under s 18(1) to consider whether to deal with the applicant according to law or under Division 4 of Part 3. Armed robbery under s 97 of the Crimes Act 1900 is a "serious children's indictable offence," which must by statute be dealt with according to law under s 17. However, because the applicant had pleaded guilty to other, lesser charges alongside the armed robbery counts, s 18 was at least engaged in relation to those. The Court examined whether the sentencing judge had in fact turned his mind to this question and concluded that, in the particular circumstances, the judge was aware of the issue and the predominance of the serious offences made it plain that the Division 4 pathway was not a live option. No appellable error was established on this ground.

Ground 2: Accumulation

The Court found no error in the extent of accumulation. Full accumulation was not applied: the sentencing judge partially accumulated the sentences, and the structure adopted was reasonably open given the multiplicity of offences, the separate victims, and the existing sentence.

Ground 3: Special Circumstances and the Non-Parole Ratio

The Court acknowledged the complexity arising when sentences are accumulated and special circumstances have been found. When sentences are fully or partially accumulated, the effect of a special circumstances finding on the overall ratio of non-parole period to balance of term can be diluted. However, the Court was satisfied that the sentencing judge had consciously addressed the cumulative effect of the sentences, including the resulting parole period. The judge specifically noted the total period of custody, the time to be spent in an adult correctional centre, and the parole period that would follow. On close analysis, no error was demonstrated.

Ground 4: Procedural Fairness

The Court rejected the procedural fairness ground. It found that the judge's statements during the hearing did not constitute an "indication" of a specific outcome that would have given rise to an obligation to warn counsel before departing from it. The applicant had been given full opportunity to make submissions, and what the judge said could not reasonably have been understood as a binding indication that foreclosed a longer effective non-parole period.

Orders Made

• The applicant is to serve his term of imprisonment until obtaining his 21st birthday as a juvenile offender and thereafter in an adult correctional centre
• On release to parole, the applicant will be under the supervision of the Community Offenders Services

Key Takeaways

  • Under s 18(1) of the Children (Criminal Proceedings) Act 1987, a sentencing court must consider whether a juvenile offender dealt with outside the Children's Court ought to be sentenced according to law or under Division 4 of Part 3, but where the dominant charges are "serious children's indictable offences" that must be dealt with according to law, the practical scope for a Division 4 outcome is significantly constrained.
  • Where special circumstances are found and sentences are accumulated, the effective ratio of non-parole period to balance of term across the aggregate may differ from the ratio applied to individual sentences. The Court of Criminal Appeal confirmed that the sentencing judge must be aware of this overall effect, though no precise corrective formula was mandated.
  • A sentencing judge's in-court statements do not automatically constitute a binding "indication" of sentence sufficient to trigger an obligation to warn counsel before imposing a more severe outcome. The content and context of the statements determine whether they could reasonably have been so understood.
  • In dismissing all four grounds, the Court confirmed that a sentencing judge who explicitly addresses the cumulative effect of accumulated sentences, including total custody and parole consequences, demonstrates the requisite awareness of the overall sentencing outcome.
  • Sufficient weight was given to the applicant's youth, the totality principle, and mitigating circumstances. The Court accepted that a total period of four years and six months in custody was within the range of outcomes reasonably open to the sentencing judge on the facts.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 16, 17, 18, 19, 25; Pt 2 Div 4; Pt 3 Div 4
- Crimes Act 1900 (NSW), s 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Bugmy v The Queen [1990] HCA 18; 169 CLR 525
- Caristo v R [2011] NSWCCA 7
- CTM v R [2007] NSWCCA 131; 171 A Crim R 371
- Deakin v The Queen [1984] HCA 31; 58 ALJR 367
- Flynn v R [2010] NSWCCA 171
- Hejazi v R [2009] NSWCCA 282
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Neal v The Queen [1982] HCA 55; 149 CLR 305
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Power v The Queen [1974] HCA 26; 131 CLR 623
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Keen [2004] NSWCCA 86
- R v Moffitt (1990) 20 NSWLR 114
- R v Simpson (1992) 61 A Crim R 58
- R v Sutton [2004] NSWCCA 225
- Regina v CVH [2003] NSWCCA 237
- Regina v LWP [2003] NSWCCA 215
- Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82
- Russell v R [2010] NSWCCA 248
- Wakefield v R [2010] NSWCCA 12