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Court of Criminal Appeal 26 July 2023

TM v R

[2023] NSWCCA 185

Assault & violenceTheft & property
YEAR

Citation: TM v R [2023] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 26 July 2023
Judges: Payne JA, Stern JA, Yehia J

Background

The applicant, TM, was 15 years and 3 months old when he participated in a group assault at a Liverpool shopping centre in December 2021. The group followed three individuals after a movie session, and TM took part in robbing one victim of a cap and then kicking another victim, Mr Campton, after he had been knocked to the ground by other members of the group. Mr Campton was rendered unconscious and sustained serious injuries.

TM pleaded guilty in the Children's Court to aggravated robbery causing grievous bodily harm under s 96 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment. A further charge of robbery in company was taken into account on a Form 1. As a "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987 (NSW), the matter was committed to the District Court for sentencing.

At the time of sentencing, TM was 16 years old. The sentencing judge, Colefax SC DCJ, imposed a pre-discount term of 4 years imprisonment, reduced by 25% for the early guilty plea to 3 years, with a non-parole period of 12 months. TM sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by failing to have regard to TM's young age when assessing his moral culpability.
  • Whether the sentencing judge erred by failing to explain, in reasons, what effect TM's young age had on that assessment.
  • Whether the sentencing judge erred by failing to have regard to TM's young age when considering the emphasis to be given to general deterrence.
  • Whether the sentencing judge erred by failing to explain, in reasons, what effect TM's young age had on general deterrence.

Decision

On the first ground, Yehia J (with Payne JA and Stern JA agreeing) found that the sentencing judge's only reference to moral culpability was in relation to TM's deprived and disadvantaged background. That reference led to a finding that moral culpability was reduced "to an extent," but there was no indication that the judge separately considered TM's young age as a distinct factor bearing on culpability. Ground 1(a) was made out, making it unnecessary to decide ground 1(b).

On the second ground, the Court found that the sentencing judge's sole reference to general deterrence was a statement that the sentence "has to be an example to others." That observation contained no acknowledgment that TM's young age moderates the weight general deterrence would otherwise receive in sentencing. Ground 2(a) was made out, rendering ground 2(b) unnecessary to consider.

Having established error on both grounds, the Court resentenced TM. The Court accepted that TM's moral culpability was significantly reduced by both his young age and his deprived background, and that the weight to be given to general deterrence was moderated by his age. At the same time, the Court acknowledged the seriousness of the offending and the debilitating injuries suffered by the victim.

The Court found strong evidence of rehabilitation, including TM's imminent prospects of employment and the responsibilities of a young family. Yehia J reduced the non-parole period from 12 months to 9 months, citing special circumstances and the desirability of allowing TM to begin employment and supervised community reintegration as early as possible. The head sentence remained at 3 years.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Sentence imposed by the District Court on 24 March 2023 quashed.
  • New sentence imposed: non-parole period of 9 months commencing 16 December 2022 and expiring 15 September 2023, with an additional term of 2 years and 3 months expiring 15 December 2025.
  • First eligible for release to parole: 15 September 2023.

Key Takeaways

  • A sentencing judge must demonstrate in reasons that a young offender's age has been considered as a discrete factor when assessing moral culpability, distinct from any reduction arising from a deprived or disadvantaged background.
  • Where a sentencing court references general deterrence without acknowledging the moderating effect of the offender's youth on that consideration, a sentencing error may be established.
  • In resentencing, the Court of Criminal Appeal confirmed that young age and a deprived background can each independently reduce moral culpability, and that both factors bear on the weight given to general deterrence.
  • Rehabilitation carries particular weight when sentencing young offenders, and evidence of genuine prospects for reform can support a reduction in the non-parole period beyond the statutory ratio.
  • Under the Children (Criminal Proceedings) Act 1987 (NSW), certain serious offences committed by children are dealt with "according to law" in adult courts, but established principles requiring courts to moderate general deterrence and account for youth still apply.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3(1), 6, 15A, 17, Div 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32(1)
- Crimes Act 1900 (NSW), ss 96, 97(1)

Cases
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Camilleri v R [2023] NSWCCA 106
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- JA v R [2021] NSWCCA 10
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Li v R [2023] NSWCCA 112
- Miller v R [2015] NSWCCA 86
- R v Eaton [2023] NSWCCA 125
- R v Elliott and Blessington [2006] NSWCCA 305
- R v KS (No 1) [2023] NSWSC 696
- R v Osenkowski (1982) 5 A Crim R 394