AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 23 October 2014

R v YS

[2014] NSWCCA 226

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST INADEQUACY OF SENTENCE SERIOUS CHILDREN'S INDICTABLE OFFENCE OBJECTIVE SERIOUSNESS OF OFFENDING PAROLE PERIOD TO ENSURE TOTAL NON

Citation: R v YS [2014] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 23 October 2014
Judge(s): Gleeson JA, Fullerton J, McCallum J

Background

The respondent was 15 years and 10 months old when, in the early hours of 28 February 2012, he broke into the home of a 70-year-old woman and committed multiple serious offences including aggravated sexual intercourse without consent (two counts), attempted aggravated sexual intercourse without consent, aggravated break and enter, stealing a motor vehicle, and intentionally destroying property by fire. He was arrested later that morning and bail was refused.

He pleaded guilty in the Children's Court in August 2012 and was sentenced in the District Court in December 2013, by which time he was aged 17 years and 6 months. After a 25 per cent discount for his guilty pleas and a finding of special circumstances, the District Court imposed an effective sentence of 8 years and 6 months imprisonment with an effective non-parole period of 5 years and 6 months. The non-parole period was structured so that it would expire approximately two months before the respondent turned 21 and a half, meaning he would be eligible to serve the entire non-parole period in a Juvenile Justice facility.

The Crown appealed to the Court of Criminal Appeal, arguing the sentences were manifestly inadequate and that the sentencing judge had committed specific errors, including structuring the non-parole period to keep the respondent out of adult custody contrary to established principle.

  • Whether the sentences imposed on the four most serious counts were manifestly inadequate given the objective seriousness of the offending
  • Whether the sentencing judge failed to give adequate weight to the protection of the community and general deterrence
  • Whether the sentencing judge erred by structuring the non-parole period so that the respondent would be eligible to serve the entire non-parole period in a Juvenile Justice facility, in effect reducing the sentence to avoid statutory requirements around transfer to adult custody

Decision

The Court of Criminal Appeal dismissed the appeal on all grounds, granting leave to appeal but finding no error in the sentencing.

On the question of manifest inadequacy and objective seriousness, the Court, through Fullerton J, examined the sentences in light of the respondent's youth, his subjective circumstances (including detailed expert psychiatric and psychological evidence), and the nature of the offending. The Court was not satisfied the sentences fell outside the range open to the sentencing judge in the exercise of his discretion.

On the question of general deterrence and community protection, the Court found the sentencing judge had not failed to consider these factors. The Court acknowledged that these are relevant considerations even when sentencing juvenile offenders, but noted that youth and rehabilitation carry significant weight in the sentencing exercise for offenders of this age.

On the third ground, the Court accepted the established principle from TG v R that a sentencing judge must first determine the appropriate sentence and then separately consider whether to make an order under s 19 of the Children (Criminal Proceedings) Act 1987. It is an error of principle to reduce a sentence solely to avoid a juvenile offender spending time in an adult facility. However, the Court was not satisfied, on the evidence before it, that the sentencing judge had in fact taken this impermissible approach. While the structure of the non-parole period was consistent with an intention to keep the respondent within juvenile custody, the sentencing reasons did not affirmatively demonstrate that the sentence had been reduced for that reason. Accordingly, the Crown could not establish the error.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that standard non-parole periods have no application when sentencing juvenile offenders, and do not serve even as a guide (citing BP v R).
  • A sentencing court must determine the appropriate sentence first, and only then consider whether to make an order under s 19 of the Children (Criminal Proceedings) Act 1987 directing that the sentence be served in a Juvenile Justice facility. Reducing a sentence solely to avoid transfer to adult custody is an error of discretion.
  • Under s 19 of the Children (Criminal Proceedings) Act, a juvenile offender sentenced for a serious children's indictable offence is generally ineligible to remain in juvenile custody after turning 18, unless special circumstances are established on prescribed grounds. Notably, youth alone and the proximity of the non-parole period expiry cannot be the sole basis for a special circumstances finding.
  • In dismissing the appeal, the Court declined to find that the sentencing judge had impermissibly tailored the non-parole period, noting that the sentencing reasons did not affirmatively establish that the sentence had been reduced for an improper purpose, even if the outcome was consistent with such a motive.
  • The Director-General retains an independent power under s 28 of the Children (Detention Centres) Act 1987 to transfer a juvenile detainee to an adult correctional centre, meaning a court's intention to keep an offender in juvenile custody can lawfully be overridden regardless of how the non-parole period is structured.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 17, 18, 19, 33
- Children (Detention Centres) Act 1987 (NSW), s 28
- Crimes Act 1900 (NSW), ss 61J, 112(2), 154F, 195(1)(b), 344A
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54D(3)
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- BP v R [2010] NSWCCA 159
- Bugmy v R [2013] HCA 37
- CM v R [2008] NSWCCA 195
- Dinsdale v R [2000] HCA 54
- Green v R; Quinn v R [2011] HCA 49
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- IE v R [2008] NSWCCA 70
- JM v R [2012] NSWCCA 83
- JT v R [2011] NSWCCA 128
- KT v R [2008] NSWCCA 51
- Markarian v R [2005] HCA 25
- MJ v R [2010] NSWCCA 52
- Muldrock v The Queen [2011] HCA 39
- R v AEM (Snr), KEM, MM [2002] NSWCCA 58
- R v Brooks [2006] NSWCCA 169
- R v Fernando (1992) 76 A Crim R 58
- R v Ly [2014] NSWCCA 78
- R v Voss [2003] NSWCCA 182
- TG v R [2010] NSWCCA 28
- Veen v R (No 2) [1988] HCA 14