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Court of Criminal Appeal 15 March 2017

DS v R

[2017] NSWCCA 37

Assault & violence
CRIMINAL LAW APPEAL LEAVE TO APPEAL OUT OF TIME GRANTED NO FAILURE DEMONSTRATED, GROUND REFUSED APPEAL DISMISSED

Citation: DS v R [2017] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 15 March 2017
Judges: Macfarlan JA, Schmidt J, Wilson J

Background

The applicant, a 16-year-old male, committed six violent offences on the night of 11 January 2013 after being refused entry to a private birthday party. Under the influence of alcohol and ecstasy, he climbed onto a shed roof and threw steel rebars in a javelin-like manner at guests gathered in the yard below. One rebar pierced a victim's skull and entered his brain, causing catastrophic and permanent injuries including cognitive impairment. Other victims suffered lacerations and fractures in further incidents the same night.

In 2014, the applicant was convicted of six offences including causing grievous bodily harm with intent, reckless wounding in company, affray, assault occasioning actual bodily harm, and two counts of common assault. After a 10% discount for his guilty pleas, Solomon DCJ imposed an aggregate sentence of 12 years and 6 months imprisonment with a non-parole period of eight years.

The applicant sought leave to appeal out of time, contending the sentencing judge had effectively sentenced him as an adult by failing to properly apply the principles governing juvenile offenders, particularly the relevance of youth and immaturity to moral culpability.

  • Whether the sentencing judge failed to give proper regard to the fact that all offences except count 1 could potentially have been dealt with in the Children's Court, where the maximum penalty is a control order not exceeding two years
  • Whether the sentencing judge failed to take into account the applicant's immaturity as a relevant consideration beyond the issue of rehabilitation
  • Whether the aggregate sentence of 12 years and 6 months was manifestly excessive

(Two further grounds, relating to the applicant being on conditional liberty and an alleged factual error about the rebar's trajectory, were not pressed.)

Decision

Ground 1: Children's Court jurisdiction. The Court refused leave to appeal on this ground. Although counts 3 to 7 fell within the discretionary jurisdiction of the Children (Criminal Proceedings) Act 1987 (NSW), Schmidt J found that the s 18 discretion could never realistically have been exercised in the applicant's favour. The statutory criteria, including the seriousness and nature of the offences and the applicant's conduct, made it inconceivable that any of the offences would have been appropriate for Children's Court treatment. No miscarriage of justice arose from the judge's failure to address s 18 expressly.

Ground 4: Immaturity beyond rehabilitation. The Court also refused leave on this ground. Schmidt J examined the remarks on sentence in detail and found the sentencing judge had, in fact, taken the applicant's youth and immaturity into account across a range of considerations, not merely rehabilitation. The indicative sentence of 10 years for count 1, against a maximum of 25 years, itself reflected the discount accorded for those factors.

Ground 5: Manifest excess. Leave to appeal was granted on this ground, but the appeal was dismissed. The Court accepted that the principles governing juvenile sentencing, including the reduced weight given to general deterrence and the heightened importance of rehabilitation, were binding and had been applied. The Court distinguished the cases relied on by the applicant as involving different and overall less serious offending. Applying the instinctive synthesis required by Markarian v The Queen, the Court found that the aggregate sentence, arrived at through proper partial accumulation across distinct offences with separate victims, was not manifestly excessive.

Orders Made

  • Leave to file the application for leave to appeal out of time is granted
  • Leave to appeal on grounds 1 and 4 is refused
  • Leave to appeal on ground 5 is granted
  • The appeal is dismissed

Key Takeaways

  • A sentencing court's failure to address the s 18 discretion under the Children (Criminal Proceedings) Act 1987 (NSW) does not automatically constitute error: where the statutory criteria make the exercise of that discretion inconceivable on the facts, no miscarriage of justice results from the omission.
  • The Court of Criminal Appeal confirmed that a sentencing judge's consideration of a juvenile offender's immaturity need not be confined to rehabilitation; it must inform the assessment of moral culpability more broadly, though the requisite consideration may be implicit in the sentence imposed rather than explicitly stated at each step.
  • Partial accumulation of sentences across distinct offences committed in the same course of conduct is appropriate where each offence involved a separate, intentional act and a different victim, such that the criminality of one does not fully encompass the others.
  • In assessing manifest excess for a juvenile offender, the Court applies the principles in House v The King and requires more than a different sentencing outcome in comparable cases; the comparison cases must involve offending of similar seriousness before any disparity becomes meaningful.
  • Upholding the sentence, the Court of Criminal Appeal reinforced that the gravity of harm caused, even by a very young offender, remains a central factor in the instinctive synthesis, and will carry significant weight even where youth and immaturity reduce general deterrence as a sentencing consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(3), 59(1), 61, 93C(1)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 18, 18(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- IE v R (2008) 183 A Crim R 150; [2008] NSWCCA 70
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- PD v R [2012] NSWCCA 242
- R v Dunn (2004) 144 A Crim R 180; [2004] NSWCCA 41
- R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v MJB [2014] NSWCCA 195
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44