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Court of Criminal Appeal 12 February 2014

M O v REGINA

[2014] NSWCCA 11

Assault & violence
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE SENTENCE WAS MANIFESTLY EXCESSIVE APPEAL ALLOWED

Citation: M O v Regina [2014] NSWCCA 11
Court: NSW Court of Criminal Appeal
Date: 12 February 2014
Judge(s): RS Hulme AJ, Hall J, Emmett JA

Background

The appellant was a fifteen-year-old Aboriginal girl who pleaded guilty to detaining a victim without consent with intent to commit a serious indictable offence, under s 86(3) of the Crimes Act 1900. The offence involved a group assault in which the appellant played a limited role: she had no part in the initial detention, and struck the victim once in the face when directed to do so by the principal offender. The maximum penalty for the offence was 25 years' imprisonment.

The sentencing judge in the District Court imposed 18 months' imprisonment with a non-parole period of 9 months. A co-offender, who had a significantly more serious criminal history and a greater role in the assault, received 2 years with a non-parole period of 12 months commencing from an earlier date she had already been in custody, making the practical difference in their non-parole periods only one month.

The appellant had no prior criminal record, had given birth to a son five months before sentencing, and had demonstrated remorse and reasonable prospects of rehabilitation. She appealed on three grounds: that the sentencing judge failed to account for her infant child, that the sentence was manifestly excessive, and that there was unjustifiable disparity between her sentence and that of her co-offender.

  • Whether the sentencing judge failed to give adequate weight to the appellant's five-month-old child when imposing sentence
  • Whether the sentence of 18 months' full-time imprisonment was manifestly excessive in all the circumstances
  • Whether the disparity between the appellant's sentence and her co-offender's sentence gave rise to a justifiable sense of grievance

Decision

The Court rejected the first ground. The sentencing judge had expressly acknowledged the appellant's infant child and given it "long regard." Because no evidence had been placed before the court about what would happen to the child during incarceration or the likely effect on the child of separation, there was no basis to find that the circumstances fell within the narrow category where the impact of imprisonment on a family member can operate as mitigation. The Court noted, however, that the harsher effect of custody on the appellant as a new mother remained relevant to ground two.

On the second ground, the Court found the sentence manifestly excessive. The appellant had no prior record, no history of violence, and no role in instigating or planning the attack. Her limited participation, difficult background, demonstrated remorse, reasonable rehabilitation prospects, and the presence of an infant child collectively demanded a sentence that did not involve full-time custody. The sentencing judge had identified these factors but had not given them sufficient weight.

The Court found it unnecessary to fully analyse the third ground, but observed that the disparity in sentences was nonetheless unjustifiable. The difference in criminality and subjective circumstances between the appellant and the co-offender was sufficiently significant that their sentences should have diverged much more than they did, particularly given the effective concurrency built into the co-offender's sentence.

The Court re-sentenced the appellant. Taking into account the three months she had already served and her affidavit showing productive and well-behaved time in custody, the Court determined that a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 was appropriate.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Lakatos DCJ on 8 November 2013 quashed
  • Appellant discharged upon entering a good behaviour bond for a period of one year from the date of entry

Key Takeaways

  • A sentencing court's acknowledgment of an offender's infant child will not automatically constitute an error if the evidence before the court is insufficient to establish that the impact on the child meets the threshold required for family circumstances to operate in mitigation.
  • Where an offender has no prior record, no history of violence, played a subsidiary and non-instigating role in a group offence, and has good rehabilitation prospects, the cumulative weight of those subjective factors can render a sentence of full-time imprisonment manifestly excessive even for a serious offence carrying a maximum of 25 years.
  • The Court of Criminal Appeal confirmed that sentencing disparity between co-offenders can give rise to a justifiable sense of grievance where the difference in criminality and personal circumstances between them is substantial and is not adequately reflected in the sentences imposed.
  • Re-sentencing is available on appeal where manifest excess is established, and the court may impose a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 where time already served and post-sentence conduct support that outcome.
  • In assessing parity, the effective operation of a co-offender's sentence matters, not merely its nominal length: concurrency built into a co-offender's sentence can significantly narrow an apparent gap between sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(3) (detention for advantage in circumstances of special aggravation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds)

Cases: No cases were cited in the judgment.