AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 8 May 2019

CA v R

[2019] NSWCCA 93

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIOD OF 2 YEARS APPLICANT AGED 12 YEARS AND 10 MONTHS LACK OF CONTRITION AND REMORSE ONE APPEAL GROUND MADE OUT

Citation: CA v R [2019] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 8 May 2019
Judges: Hoeben CJ at CL; Garling J; Hidden AJ

Background

The applicant, identified only as "CA" to protect his identity under the Children (Criminal Proceedings) Act 1987 (NSW), was 12 years and 10 months old when he and an older co-offender broke into the home of a 78-year-old woman in Moree. The offenders entered through a smashed glass sliding door, struck the victim in the face with bricks, hit her with a piece of timber, and stole her handbag containing over $1,000 in cash. The victim suffered fractures to her nose, cheekbone, eye socket, and maxillary sinus, and sustained extensive bruising and lacerations.

The consequences for the victim extended well beyond her physical injuries. She was too afraid to return to her home overnight, ultimately sold it at a financial loss, moved interstate to live with her son, and lost regular access to her late husband's grave. The applicant had been subject to a probation order and bond for earlier offending at the time he committed this offence.

The applicant pleaded guilty in the Moree Children's Court and was dealt with according to law in the District Court. Acting Judge Marien SC sentenced him to 3 years and 9 months' imprisonment with a non-parole period of 2 years, to be served in juvenile detention. The applicant received a 25 per cent discount for his early guilty plea. He then sought leave to appeal to the Court of Criminal Appeal, arguing that the sentence was manifestly excessive in several respects.

  • Whether the sentencing judge gave proper allowance for the applicant's age of 12 years and 10 months at the time of offending
  • Whether the sentencing judge adequately accounted for the immaturity and impulsiveness characteristic of youth
  • Whether sufficient weight was given to the applicant's deprived and violent background
  • Whether excessive weight was placed on community protection at the expense of other sentencing objectives
  • Whether proper credit was given for time already served in custody solely referable to this offence
  • Whether the principle of totality was properly applied
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal on at least one ground, finding that the sentencing judge had erred in a manner identified by Garling J. The court found that, taken together, the errors warranted the quashing of the original sentence and the imposition of a fresh sentence.

In re-sentencing, the court took into account the serious nature of the offence, which carries a maximum penalty of 25 years' imprisonment under s 112(3) of the Crimes Act 1900 (NSW), while giving substantial weight to the applicant's extreme youth. At the time of sentencing by the Court of Criminal Appeal, the applicant had demonstrated improved maturity, a more genuine appreciation of the harm caused to the victim, and measurable progress in education and literacy. His FACS caseworker expressed cautious optimism about his capacity to change his trajectory.

The court also noted the applicant would have access to significant ongoing supervision upon release on parole. Weighing all relevant factors under both the Children (Criminal Proceedings) Act 1987 and the Crimes (Sentencing Procedure) Act 1999, including the mandatory 25 per cent guilty plea discount, the court imposed a substantially reduced sentence. Hidden AJ agreed with Garling J's reasons and proposed orders in full.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed by Acting Judge Marien SC on 14 September 2018 quashed
  • Applicant resentenced to imprisonment comprising a non-parole period of 1 year and 4 months commencing 29 August 2018 and concluding 28 December 2019, with a balance of term of 1 year and 8 months concluding 28 August 2021
  • Whole of sentence ordered to be served as a juvenile offender pursuant to s 19 of the Children (Criminal Proceedings) Act 1987

Key Takeaways

  • Sentencing a child of 12 years and 10 months requires courts to give significant, and carefully articulated, weight to the offender's age, immaturity, and deprived background, even where the offence is serious and the victim's harm is grave.
  • Under the Children (Criminal Proceedings) Act 1987, the standard non-parole period applicable to adult offenders does not apply to juvenile offenders, and the sentencing framework must reflect the statutory principles directed at rehabilitation and the best interests of the child alongside conventional sentencing objectives.
  • Placing excessive emphasis on community protection, without properly integrating the mitigating features of extreme youth, constitutes an error in the exercise of the sentencing discretion.
  • The Court of Criminal Appeal reduced the non-parole period from 2 years to 1 year and 4 months, and the total head sentence from 3 years and 9 months to 3 years, reflecting the cumulative weight of the mitigating factors that had not been adequately balanced by the original sentencing judge.
  • Evidence of genuine progress in rehabilitation and maturity between the original sentence and the appeal can be taken into account when a court resentences a juvenile offender.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 17, 19, 33(1)(e)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Munda v Western Australia [2013] HCA 38; 249 CLR 600
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Lehn v R [2016] NSWCCA 255; 93 NSWLR 205
- Hughes v R [2018] NSWCCA 2
- Vaiusu v R [2017] NSWCCA 71
- Aslan v R [2014] NSWCCA 114
- KT v R [2008] NSWCCA 51; 182 A Crim R 571
- Ciaron McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
- MS2 and Ors v Regina [2005] NSWCCA 397
- Regina v Fernando [2002] NSWCCA 28
- Engert v R (1995) 84 A Crim R 67
- R v Pham & Ly (1991) 55 A Crim R 128