AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 9 August 2021

JC1 v R; GN v R

[2021] NSWCCA 183

Assault & violenceTheft & propertyFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE THREE CO APPEAL BY JC1 OFFENDERS

Citation: JC1 v R; GN v R [2021] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 9 August 2021
Judge(s): Payne JA, Davies J, Ierace J

Background

Three co-offenders, all aged 16 or 17 at the time of the offending, pleaded guilty to a series of violent robberies carried out in the early hours of 15 January 2018. The offending involved two armed robberies at separate brothels, during which a modified paintball gun (classified as a prohibited firearm and therefore a dangerous weapon) was used to threaten multiple victims. All three offenders faced charges of robbery armed with a dangerous weapon, assault with intent to rob whilst armed, and larceny.

The offenders were sentenced in the District Court at different times and by the same judge. JC1 was sentenced in October 2019; GN and co-offender JC2 were sentenced in June 2020. Each was also serving a separate sentence for later, unrelated offending at the time their sentences for these matters were imposed.

Two of the three offenders sought leave to appeal their sentences to the Court of Criminal Appeal. JC1 argued that his sentence was unfairly out of step with those imposed on GN and JC2. GN argued that the sentencing judge had misused a guideline judgment and had failed to give adequate weight to his youth.

  • Whether the sentencing judge erred by failing to account for JC1's time already served on an earlier sentence, producing an unfair disparity with the co-offenders' sentences.
  • Whether there was unjustifiable disparity between JC1's aggregate sentence and those imposed on GN and JC2.
  • Whether the sentencing judge impermissibly applied the Henry guideline judgment (a guideline judgment for armed robbery sentencing) in a two-stage process inconsistent with authority.
  • Whether the sentencing judge gave adequate consideration to GN's youth in assessing moral culpability, general deterrence, and retribution.

Decision

JC1's appeal: parity and totality

The Court upheld JC1's appeal. The sentencing judge had adjusted the commencement dates for GN and JC2's sentences to account for time those offenders had already spent in custody on their separate, later sentences. No equivalent adjustment was made for JC1. This omission meant JC1 effectively served more time in custody overall than his co-offenders for the same offending, despite the sentencing judge having otherwise appropriately considered the similarities and differences between the offenders and turned his mind to parity. The failure to account for JC1's earlier period in custody produced an unfair disparity that gave rise to a justifiable sense of grievance.

The Court did not impose a different aggregate sentence on JC1; the quantum remained at four years and three months with a non-parole period of two years and six months. The correction was to move the commencement date back to 10 June 2019, reflecting the time already spent by JC1 in custody on the earlier sentence.

GN's appeal: guideline judgment and youth

The Court rejected both of GN's grounds of appeal. On the Henry guideline, the Court found the sentencing judge had not engaged in a prohibited two-stage process. Reference to the Henry guideline was appropriate and did not constitute appellable error.

On the question of youth, the Court examined both the sentencing remarks and comments made by the judge during the hearing itself. Drawing on Mohindra v R, the Court treated those in-hearing remarks as a considered assessment rather than a passing observation, and found they demonstrated genuine engagement with GN's youth, deprived background, and the violence he had experienced as a child. The sentence was not harsh given GN's role in the offending, and there was no indication that adult-focused sentencing factors such as punishment and general deterrence had been given disproportionate weight. GN's appeal was dismissed.

Orders Made

JC1:
- Leave to appeal granted
- Appeal upheld
- Sentence imposed by Delaney ADCJ on 30 October 2019 quashed
- Resentenced to an aggregate sentence of four years and three months commencing 10 June 2019 and expiring 9 September 2023, with a non-parole period of two years and six months expiring 9 December 2021

GN:
- Leave to appeal granted
- Appeal dismissed

Key Takeaways

  • A sentencing judge's failure to account for time an offender has already spent in custody on a separate sentence, in circumstances where the same adjustment was made for co-offenders, can produce unjustifiable sentencing disparity even where the aggregate sentence quantum is otherwise appropriate.
  • Parity between co-offenders requires attention not only to the length of aggregate sentences but also to the practical effect of commencement dates on total time served in custody.
  • Reference to the Henry guideline judgment in armed robbery sentencing is not impermissible; the error arises only where a court applies it through a prohibited two-stage approach inconsistent with Markarian v The Queen.
  • Where a sentencing judge's in-hearing remarks demonstrate careful, considered engagement with an offender's youth and background, those remarks may be taken into account when assessing whether sentencing remarks delivered ex tempore adequately addressed the relevant factors, consistent with Mohindra v R.
  • In dismissing GN's appeal, the Court of Criminal Appeal confirmed that proper sentencing of young offenders requires attention to the principles in s 6 of the Children (Criminal Proceedings) Act 1987 and the matters identified in Clarke-Jeffries v R, including the reduced weight ordinarily given to general deterrence and retribution for juvenile offenders.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW) s 6
- Crimes Act 1900 (NSW) ss 97, 117
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 23
- Firearms Act 1996 (NSW)

Cases:
- Clarke-Jeffries v R [2019] NSWCCA 56
- JA v R [2021] NSWCCA 10
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mohindra v R [2020] NSWCCA 340
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v SL; R v RT; R v WS [2008] NSWSC 651
- Warwick v R [2016] NSWCCA 183
- Yildiz v R [2020] NSWCCA 69
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460