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23
Court of Criminal Appeal 7 May 2012

JM v R

[2012] NSWCCA 83

Also reported as (2012) 223 A Crim R 55
Assault & violence
CRIMINAL LAW APPEAL SENTENCING AFFRAY PLEA OF GUILTY PARITY PRINCIPLE

Citation: JM v R [2012] NSWCCA 83
Court: Court of Criminal Appeal, NSW
Date: 7 May 2012
Judges: Whealy JA, Simpson J, Hoeben J

Background

The applicant, a young man who was a juvenile at the time of the offence, was convicted on his plea of guilty to inflicting grievous bodily harm with intent (s 33 Crimes Act 1900) and affray (s 93C(1)). The offence arose from a brutal street attack in Wagga Wagga after a party, in which the applicant and a co-offender, ZBN, set upon a 16-year-old victim. The applicant bashed the victim's head into the bitumen and kicked and punched him while he was on the ground. The victim suffered permanent cognitive impairment and his capacity to work, drive, and socialise was irreversibly reduced.

The applicant was sentenced to seven years' imprisonment with a four-year non-parole period. His co-offender ZBN, who had tackled and knocked the victim to the ground and kicked him once, pleaded guilty to the lesser charge of recklessly inflicting grievous bodily harm (s 35) and received a two-year fully suspended sentence.

The applicant sought leave to appeal on four grounds: that the disparity between his sentence and ZBN's was unjustifiable (parity); that his sentence was manifestly excessive; that the sentencing judge failed to properly consider ordering him to serve his sentence as a juvenile offender under the Children (Criminal Proceedings) Act 1987; and that insufficient weight was given to his youth.

  • Whether the disparity between the applicant's sentence and ZBN's gave rise to a justifiable sense of grievance under the parity principle
  • Whether the sentence of seven years with a four-year non-parole period was manifestly excessive, having regard to the objective seriousness of the offence and the applicant's youth
  • Whether the sentencing judge erred by failing to find "special circumstances" under s 19(3) and s 19(4)(a) of the Children (Criminal Proceedings) Act 1987, which would have permitted an order for the sentence to be served in a juvenile detention centre
  • Whether the sentencing judge gave insufficient weight to the applicant's youth
  • Whether the limitations imposed by the Children (Criminal Proceedings) Act on the power to order juvenile detention could themselves be taken into account as a sentencing factor

Decision

The Court unanimously upheld the parity ground. All three judges agreed that the gap between the applicant's sentence and ZBN's fully suspended sentence was unjustifiable and gave rise to a genuine sense of grievance. While ZBN had attempted, in a half-hearted way, to dissuade the applicant from pursuing the victim and had played a lesser role in the violence, he had still knocked the victim to the ground and kicked him. The disparity was found to be excessive in all the circumstances.

On manifest excess, the majority (Whealy JA and Hoeben J) held that the sentence was not manifestly excessive when assessed on its own terms. They emphasised that the attack was deliberate, to a degree premeditated, and had catastrophic consequences for the victim, and that general deterrence carries significant weight in cases of public street violence by young people in groups. Simpson J dissented, concluding that the applicant's youth required greater weight and that the sentence was excessive on that basis.

The most technically complex issue concerned s 19 of the Children (Criminal Proceedings) Act. Once an offender turns 18, a court may order that the remainder of a sentence be served in a juvenile detention centre, but only where special circumstances exist under s 19(3). For a "serious children's indictable offence," s 19(4) limits the available grounds for special circumstances to vulnerability due to illness or disability, access to programs only available in detention centres, or unacceptable risk of harm in an adult prison. Importantly, s 19(4A) expressly prohibits finding special circumstances simply because of youth or because the non-parole period will expire while eligibility for juvenile detention persists. Whealy JA and Hoeben J held that the evidence before the sentencing judge was insufficient to establish vulnerability by reason of illness or disability under s 19(4)(a), and therefore no such finding was open. Simpson J took the contrary view. The majority also rejected the argument that the statutory limitations on the power to order juvenile detention could be used as a general sentencing factor, since to permit this would effectively allow the court to work around a legislative prohibition.

On the question of youth, all three judges accepted that the sentencing judge had taken the applicant's age into account. The majority held that the objective seriousness of the offence and the need for deterrence meant that youth could not override the requirement for a substantial custodial sentence. The Court re-sentenced the applicant, reducing the non-parole period to reflect the parity ground, in accordance with the orders proposed by Whealy JA.

Orders Made

• The applicant's sentence is to be re-sentenced in accordance with the sentence proposed by Whealy JA
• The orders proposed by Whealy JA are agreed to

Key Takeaways

  • The parity principle does not require identical sentences, but a disparity will be unjustifiable where it causes a co-offender to have a genuine sense of grievance, even where there are differences in culpability and the charges differ.
  • A sentence may comply with the parity principle when assessed in isolation yet still require adjustment on re-sentencing because the co-offender's sentence was disproportionately lenient.
  • Under s 19(4) of the Children (Criminal Proceedings) Act 1987, a finding of "special circumstances" permitting detention in a juvenile facility (for a serious children's indictable offence) can only be made on the grounds expressly listed in that subsection; youth alone, and the timing of the non-parole period, are explicitly excluded by s 19(4A).
  • The statutory limitations in s 19 of the Children (Criminal Proceedings) Act cannot be deployed as a free-standing sentencing consideration, as doing so would indirectly circumvent a legislative prohibition.
  • General deterrence retains significant weight in sentencing for serious public violence committed by young offenders in groups, notwithstanding the rehabilitative objectives set out in s 6 of the Children (Criminal Proceedings) Act.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17, 18, 19 (including ss 19(1)-(4A))
- Crimes Act 1900 (NSW), ss 33, 35, 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 44, 54D(3), Pt 4 Div 1A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Anti-Discrimination Act 1977 (NSW)

Cases
- AB v The Queen [1999] HCA 46; 198 CLR 111
- Blackwell v R [2011] NSWCCA 93
- GDP (1991) 53 A Crim R 112
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
- R v Mastronardi [2000] NSWCCA 12; 111 A Crim R 306
- R v Sharma [2002] NSWCCA 142; 54 NSWLR 300
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- TG v R [2010] NSWCCA 28