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Court of Criminal Appeal 23 December 2016

OK v R

[2016] NSWCCA 318

Assault & violenceTheft & property
SENTENCE JUVENILE OFFENDER MULTIPLE OFFENCES ARMED ROBBERY IN COMPANY COGNITIVE IMPAIRMENT EMOTIONAL IMMATURITY

Citation: OK v R [2016] NSWCCA 318
Court: NSW Court of Criminal Appeal
Date: 23 December 2016
Judges: Hoeben CJ at CL; Adams J; R A Hulme J

Background

The applicant, referred to as OK, was a juvenile offender sentenced in the District Court on 3 July 2015 for a series of armed robberies committed between November and December 2013. The offences all targeted service stations, typically in the early hours of the morning, and were carried out in company with two co-offenders. OK's role in most incidents involved carrying a baseball bat, while a co-offender was armed with a rifle.

The sentencing judge imposed an aggregate sentence of 11 years imprisonment, commencing 3 January 2014, with a non-parole period of 7 years. All co-offenders had pleaded guilty at the earliest practical opportunity and received a 25% discount on their sentences.

OK sought leave to appeal, arguing that the sentencing judge failed to properly account for his youth, cognitive impairment, emotional immaturity, rehabilitation prospects, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge properly applied the principles applicable to youthful offenders, including considerations of prior background, emotional maturity, and cognitive impairment
  • Whether the sentencing judge gave adequate weight to OK's prospects of rehabilitation
  • Whether the sentencing judge erred in her assessment of the objective seriousness of the offences
  • Whether the aggregate sentence of 11 years was manifestly excessive

Decision

The Court unanimously dismissed Grounds 1, 2, and 3. The judges were satisfied that the sentencing judge had properly engaged with OK's subjective case, including his youth, cognitive impairment, emotional immaturity, and rehabilitation prospects. The indicative sentences for individual offences were found to be relatively modest and appropriately balanced the serious objective criminality against OK's personal circumstances.

On Ground 4 (manifest excess), the Court divided. Adams J concluded that the aggregate sentence was excessive in light of OK's subjective circumstances, and would have allowed the appeal. However, Hoeben CJ at CL and R A Hulme J disagreed. Both found that the matters Adams J relied upon had already been considered and properly weighed by the sentencing judge. The majority concluded that Adams J's analysis demonstrated, at most, that he would have imposed a lesser sentence himself. That difference of opinion does not constitute legal error warranting appellate intervention.

R A Hulme J noted that the aggregate sentence of 11 years reflected a substantial degree of concurrency, given that the indicative sentences totalled 20 years across offences carrying maximum penalties of up to 25 years each. His Honour observed that the sentencing judge had been mindful not to impose a crushing sentence, while still reflecting the overall criminality of a sustained series of serious armed robberies. The majority held that no error had been established.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • A difference of opinion about the appropriate sentence, without identifying a specific legal error by the sentencing judge, is not a sufficient basis for an appellate court to interfere with an aggregate sentence.
  • The Court of Criminal Appeal confirmed that in sentencing juvenile offenders, youth, cognitive impairment, and emotional immaturity are relevant mitigating factors, but they must be weighed against the objective gravity of the offences and the maximum penalties prescribed by the legislature.
  • Where a sentencing judge has already considered and appropriately evaluated subjective factors, an appellate court will not substitute its own view merely because it would have reached a different result.
  • In cases involving multiple serious offences, an aggregate sentence may properly reflect significant concurrency without being manifestly excessive, provided it captures the overall criminality of the conduct.
  • Upholding the sentence here, the majority reinforced that the maximum penalties fixed by the legislature serve as important guideposts when assessing whether a sentence for offences of substantial objective seriousness falls within the proper range.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 188
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- House v The King [1936] HCA 40; 55 CLR 499
- KT v R (2008) 182 A Crim R 571
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Markarian v The Queen (2006) 228 CLR 357
- Muldrock v R (2011) 244 CLR 120
- R v Ahmed [2007] NSWCCA 151
- R v Franks [2005] NSWCCA 196
- R v Henry (1997) 46 NSWLR 346
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v SDM (2001) 51 NSWLR 530