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Court of Criminal Appeal 9 March 2015

SB v R

[2015] NSWCCA 31

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE TAKE AND DETAIN CHILD RECKLESS WOUNDING OFFENDER DEALT WITH ACCORDING TO LAW

Citation: SB v R [2015] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 9 March 2015
Judges: Hoeben CJ at CL, R A Hulme J, Davies J

Background

The applicant, a juvenile who cannot be identified under the Children (Criminal Proceedings) Act 1987 (NSW), pleaded guilty in the Local Court to two offences: taking and detaining a child with intent to remove her from parental control (s 87(1) Crimes Act 1900), and reckless wounding (s 35(4) Crimes Act 1900). He was committed to the District Court at Lismore for sentencing, where Judge Wells SC sentenced him on 21 February 2014. Six further offences were taken into account on a Form 1 document at the applicant's request.

The index offences arose from an incident on 17 May 2013 at a Ballina shopping centre. The applicant, wearing a disguise and armed with a carving knife he had taken from a supermarket without paying, seized a five-year-old girl from a coin-operated children's ride in front of her mother and siblings. When a member of the public intervened to secure the child's release, the applicant stabbed him in the hand during the ensuing struggle.

The applicant had a prior history of violent conduct, including a school knife incident in 2011 and a further armed confrontation involving his brother's young children in April 2013. He was on bail for the April 2013 offences at the time of the index offences, and on probation orders from 2012. He was also found to have a mild intellectual disability.

  • Whether the sentencing judge erred in deciding to deal with the applicant "according to law" (that is, as an adult) rather than under the children's sentencing regime, given his age and mild intellectual disability
  • Whether the sentencing judge failed to give proper regard to the applicant's intellectual disability as a mitigating factor
  • Whether the sentence imposed was manifestly excessive
  • Whether the sentencing judge erred by referring to the standard non-parole period for reckless wounding, given that this provision expressly does not apply to offenders under 18 at the time of the offence

Decision

Dealing with the applicant according to law

R A Hulme J, with whom Hoeben CJ at CL and Davies J agreed, found no error in the sentencing judge's decision to deal with the applicant as an adult. The judge had carefully weighed the applicant's youth and personal circumstances against the gravity, nature, and persistence of his offending. His history of violent conduct, the extreme seriousness of the index offences, and the protection of the community were matters legitimately weighed in that assessment.

Intellectual disability as a mitigating factor

The Court found that the sentencing judge had properly taken the applicant's mild intellectual disability into account. Her Honour had acknowledged the disability and its relevance to moral culpability, and the Court was not persuaded that it had been given insufficient weight.

Manifest excess

The sentences imposed (3 years 9 months with a non-parole period of 2 years for the child abduction offence, and 18 months for reckless wounding, both commencing from the date of arrest) were not found to be manifestly excessive. The Court noted the seriousness of the conduct, the harm caused, the multiple offences on the Form 1, and the need for the community to be protected.

Standard non-parole period reference

The sentencing judge referred twice to the three-year standard non-parole period for reckless wounding. Section 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) expressly excludes that provision where the offender was under 18 at the time of the offence. However, the Court found that the judge had not used the standard non-parole period as a benchmark or guidepost in the manner disapproved in Muldrock v The Queen. The first reference was characterised as a formulaic introductory recitation; the second was taken to illustrate Parliament's general assessment of the offence's seriousness rather than any specific calibration of the sentence at hand. In any event, the reckless wounding sentence was shorter than and entirely subsumed within the child abduction sentence, meaning it had no operative effect on the overall sentencing outcome, and that sentence had also already expired by the time of the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court's decision to deal with a juvenile offender "according to law" rather than under the children's sentencing regime will not constitute error where the judge has carefully weighed the offender's age and circumstances against the gravity and persistence of the offending and the need to protect the community.
  • Mild intellectual disability must be considered as a mitigating factor in sentencing, but the weight attributed to it is a matter for the sentencing judge; failing to give it greater weight will not automatically establish error on appeal.
  • Under s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period regime in Division 1A of Part 4 does not apply where the offender was under 18 at the time of the offence.
  • Mere reference to a standard non-parole period in a sentencing judgment will not establish appealable error where the judge did not treat it as a benchmark and instead cited it only to convey Parliament's general assessment of the offence's seriousness.
  • In dismissing the ground relating to the standard non-parole period, the Court of Criminal Appeal also noted that the ground lacked practical utility: the reckless wounding sentence was fully subsumed within the longer concurrent sentence and had already expired.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 35(4), 87(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4, s 54D(3)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120