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Court of Criminal Appeal 30 May 2017

IS v Regina

[2017] NSWCCA 116

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING AGGRAVATED ROBBERY INTENTIONALLY DESTROY PROPERTY WHERE OFFENDER A JUVENILE

Citation: IS v Regina [2017] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 30 May 2017
Judges: Gleeson JA, Harrison J, Campbell J (Campbell J delivering the leading judgment)

Background

The applicant, an Aboriginal juvenile aged 16 years and 8 months at the time of the offending, pleaded guilty in the District Court to two counts: aggravated robbery with corporal violence inflicting grievous bodily harm (maximum 25 years), and intentionally destroying property by fire (maximum 10 years). The offending occurred on 24 January 2014 in Chippendale, Sydney, after the applicant and two companions had consumed methamphetamine ("ice") and found themselves stranded in the city without money for train fares.

The applicant approached a 59-year-old woman seated in her parked car, seized her keys and handbag, and punched her in the face with a clenched fist when she could not exit the vehicle quickly enough. The blow caused a blowout fracture to the orbital bones around her left eye, a severe black eye, and injuries producing symptoms that are likely permanent, including disturbed vision, facial numbness, restricted neck movement, and post-traumatic stress disorder. The applicant then drove the victim's car back to Whalan and set it alight, destroying it completely.

The District Court imposed a sentence of 6 years and 9 months with a non-parole period of 45 months for Count 1, partially accumulated on a sentence of 15 months (non-parole period 9 months) for Count 2. The applicant sought leave to appeal, contending the sentencing judge gave insufficient weight to his deprived background and to the principles governing juvenile sentencing, and that the sentence was manifestly excessive. A conceded arithmetic error in calculating pre-sentence custody was also raised.

  • Whether the sentencing judge erred by treating the commission of the offence "in company" as a statutory aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given the offence of aggravated robbery already required that element.
  • Whether the sentencing judge gave insufficient weight to the applicant's significantly deprived background under the principle established in Bugmy v The Queen (2013) 249 CLR 571.
  • Whether the sentencing judge gave insufficient weight to the principles applicable to the sentencing of juveniles, including the primacy of rehabilitation and the reduced emphasis on general deterrence.
  • Whether the sentence imposed was manifestly excessive.
  • Whether the sentence should be adjusted to correct an agreed error of 35 days in calculating pre-sentence custody.

Decision

Ground 1 (in company as aggravating factor): The Court of Criminal Appeal rejected this ground. Although the applicant was charged with aggravated robbery, the precise statutory form charged under s 96 of the Crimes Act 1900 did not require the "in company" element. The sentencing judge was therefore entitled to treat commission in company as a separately available aggravating factor.

Grounds 2 and 3 (Bugmy principle and juvenile sentencing): The Court upheld both grounds. The applicant had an Aboriginal background marked by significant disadvantage and deprivation. Under Bugmy, such a background does not diminish the seriousness of the offending but does provide a relevant explanation for it, and that explanation must be given genuine weight in sentencing. The Court found the sentencing judge, while paying lip-service to these principles, did not give them sufficient effect in practice. Additionally, the judge over-emphasised general deterrence and community protection at the expense of rehabilitation, contrary to the established approach to juvenile sentencing, which treats rehabilitation as the primary consideration.

Ground 4 (manifest excess): Having found error on Grounds 2 and 3, the Court re-sentenced the applicant. On Count 1, the sentencing judge's sentence of 6 years and 9 months was reduced to 5 years imprisonment with a non-parole period of 2 years and 10 months. The sentence for Count 2 (15 months, non-parole period 9 months) was confirmed. The starting date for both sentences was adjusted by 35 days to correct the pre-sentence custody error. The Court directed that both sentences be served as a juvenile offender pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) and found special circumstances justifying a longer than usual additional term.

Orders Made

  • Leave to appeal granted; appeal allowed in part.
  • Sentence for Count 2 confirmed at 15 months imprisonment, non-parole period of 9 months, with the commencement date adjusted from 7 December 2014 to 2 November 2014 (expiring 1 August 2015), and an additional term of 6 months commencing 2 August 2015 and expiring 1 February 2016.
  • Sentence for Count 1 quashed and replaced with 5 years imprisonment, non-parole period of 2 years and 10 months commencing 2 May 2015 and expiring 1 March 2018, and an additional term of 2 years and 2 months commencing 2 March 2018 and expiring 1 May 2020.
  • Both sentences to be served as a juvenile offender under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW).
  • First eligible for parole on 1 March 2018 (expiry of non-parole period for Count 1).

Key Takeaways

  • The Bugmy principle requires a sentencing court to give genuine, not merely nominal, weight to an offender's deprived background. The Court of Criminal Appeal found it insufficient for a judge to acknowledge the principle in reasons while allowing general deterrence and community protection to effectively override it.
  • Where the statutory form of a charge does not itself require the "in company" element, commission in company remains available as an aggravating circumstance under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999, even where the broader offence category might encompass such conduct.
  • Rehabilitation is the primary sentencing consideration for juvenile offenders. General deterrence carries reduced, though not negligible, weight in juvenile matters, and a sentencing judge who subordinates rehabilitation to deterrence and community protection risks appealable error.
  • Special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 can be established for a juvenile offender where a longer additional term (post-parole supervision period) is needed to support reintegration, particularly where s 19 of the Children (Criminal Proceedings) Act 1987 applies.
  • An agreed arithmetical error in calculating pre-sentence custody entitled the applicant to an adjustment of the sentence's commencement date, even had all substantive grounds of appeal failed.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 18, 19
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 96, 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(e)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CS v The Queen [2014] NSWCCA 229; (2014) 245 A Crim R 249
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Engert (1995) 84 A Crim R 67
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- YS v R [2010] NSWCCA 98
- Kiernan v R [2016] NSWCCA 12
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