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Court of Criminal Appeal 7 June 2019

Howard v R

[2019] NSWCCA 109

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL WHETHER OFFENDING PREMEDITATED WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Howard v R [2019] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 7 June 2019
Judges: Macfarlan JA, Fullerton J, Bellew J

Background

The applicant, a young man who had just turned 18 years old, was convicted in the District Court of sending an explosive substance with intent to burn, maim, disfigure, disable or cause grievous bodily harm, contrary to section 47 of the Crimes Act 1900 (NSW). The offence arose from an incident at a railway station where the applicant, during a gang confrontation, was handed a Molotov cocktail, lit its wick, and threw it onto a station platform. The throw was targeted in the direction of rival gang members who had been involved in the fight.

The applicant was sentenced in the District Court to a total term of imprisonment with an undiscounted head sentence of 12 years and 8 months, and a non-parole period resulting in a minimum of 9 years imprisonment before parole eligibility. The applicant had been just 27 days past his 18th birthday at the time of the offence, meaning he narrowly fell outside the scope of the Children (Criminal Proceedings) Act 1987 (NSW).

The applicant sought leave to appeal his sentence on two grounds: first, that the sentencing judge failed to give adequate weight to his assistance to police under section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW); and second, that the sentence was manifestly excessive given his age, immaturity, and other subjective circumstances.

  • Whether the applicant's admissions to police upon arrest constituted assistance under section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and whether the sentencing judge's failure to engage with that provision gave rise to a miscarriage of justice
  • Whether the sentence imposed was manifestly excessive, having regard to the applicant's youth, emotional immaturity, and other favourable subjective circumstances including genuine remorse and rehabilitation prospects
  • Whether immaturity could be inferred from the circumstances of the offending itself and the offender's age alone, or whether expert evidence was required to establish a causal link between immaturity and the commission of the offence

Decision

First ground: Assistance to police. The Court accepted that the applicant's admissions to investigating police, made shortly after arrest, fell within the scope of section 23 of the Crimes (Sentencing Procedure) Act. However, the first ground failed because the sentencing judge was never invited to apply that provision, and the applicant had not demonstrated that the failure to do so produced a miscarriage of justice. Fullerton J and Bellew J differed on the significance of the admissions, with Fullerton J taking the view that the applicant's confession to his intention was particularly important given the limited utility of the CCTV footage in establishing the mental element of the offence beyond reasonable doubt.

Second ground: Manifest excess. Fullerton J (with Macfarlan JA agreeing) held that the sentence was manifestly excessive. The applicant was 18 years old at the time of the offence, just 27 days past the age threshold for the Children (Criminal Proceedings) Act. The sentencing judge had acknowledged both his youth and the relevance of that Act, and had accepted findings of genuine remorse and developing insight. Despite this, an undiscounted head sentence of 12 years and 8 months and a non-parole period of 9 years were, in the majority's view, unreasonable and plainly unjust for an offender of this profile.

Immaturity and the offending. Bellew J had concluded that immaturity played no part in the applicant's offending, reasoning that there was insufficient evidentiary basis for such a finding. Fullerton J respectfully disagreed. Her Honour held that in most cases involving youthful offenders, the nature of the offending conduct combined with the offender's age is itself sufficient to support an inference that immaturity and limited impulse control contributed to an unpremeditated criminal act. Expert evidence is not invariably required, though it may be necessary in cases where the connection between immaturity and the specific offending is less obvious. Here, the offending was described by the applicant himself as "impulsive," and the contextual circumstances, including gang peer pressure and a close relationship with a co-offender, all pointed to the relevance of immaturity.

The resentencing. On resentencing, the Court imposed a significantly reduced sentence reflecting proper weight given to the applicant's youth, immaturity, impulsivity, remorse, and rehabilitation prospects, while acknowledging the objective seriousness of the offence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence imposed in the District Court quashed
  • In lieu thereof, the applicant sentenced to 6 years and 9 months imprisonment, commencing 12 April 2016 and expiring 11 January 2023, with a non-parole period of 4 years commencing 12 April 2016 and a balance of term of 2 years and 9 months; eligible for release to parole on 11 April 2020

Key Takeaways

  • A sentence for a very young offender may be manifestly excessive where it fails to give adequate weight to youth, emotional immaturity, impulse control, remorse, and rehabilitation potential, even when the underlying offence is objectively serious.
  • Under established NSW sentencing principles for youthful offenders, emotional maturity and impulse control develop progressively through adolescence and may not fully form until the mid-20s; a sentencing court is expected to account for this developmental reality.
  • Fullerton J confirmed that in most cases involving youthful offenders, the circumstances of unpremeditated or impulsive offending, combined with the offender's age, can support an inference of immaturity without requiring expert evidence, though expert evidence may be necessary where the causal link is less apparent (as in cases involving sexual offending by young persons).
  • Where a sentencing judge is not invited to apply section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in relation to an offender's assistance to police, an appellate ground based on that omission will fail unless the applicant can demonstrate that a miscarriage of justice resulted.
  • The Court of Criminal Appeal's majority and minority judgments diverged on both the weight attributable to the applicant's police admissions and whether immaturity was causally connected to the offending, illustrating that these remain factually sensitive and contested questions in the sentencing of youthful offenders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 47
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 23
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Browning v R [2015] NSWCCA 147
- Clarke-Jeffries v R [2019] NSWCCA 56
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- HJ v R [2014] NSWCCA 21
- Hughes v R [2018] NSWCCA 2
- JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- R v AA [2017] NSWCCA 84
- R v Dinh [2010] NSWCCA 74; (2010) 199 A Crim R 573
- R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
- R v Mastronardi [2