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Court of Criminal Appeal 17 February 2023

Carreno v R

[2023] NSWCCA 20

Sexual offencesAssault & violenceTheft & property
CRIME APPEAL SENTENCE APPEAL AGGRAVATED SEXUAL ASSAULT APPEAL DISMISSED.

Citation: Carreno v R [2023] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 17 February 2023
Judges: Button J, McNaughton J (principal judgment), R A Hulme AJ

Background

The applicant was 19 years and 10 months old in November 1998 when he and two other armed men broke into a home unit in Sydney's inner west and violently assaulted the male occupant before repeatedly and violently sexually assaulting the female occupant, including with the barrel of a gun. Both victims were threatened with death. The applicant was not arrested until 2017, nearly two decades later, and did not enter guilty pleas until the day after his trial was listed to commence in August 2020.

At the time of sentencing in the District Court in February 2021, the applicant was 42 years old. He pleaded guilty to one count of specially aggravated break, enter and commit a felony (being armed with a dangerous weapon and in company), and two counts of aggravated sexual assault in company. Three further offences, including two additional counts of aggravated sexual assault in company, were taken into account on Form 1 documents. The sentencing judge imposed an aggregate sentence of 16 years' imprisonment with a non-parole period of 12 years.

The applicant sought leave to appeal, arguing that the sentencing judge had mishandled the question of whether his youth at the time of the offences causally contributed to his offending, and that the resulting sentence was manifestly excessive.

  • Whether the sentencing judge erred by finding there was no evidence of a causal connection between the applicant's youth or immaturity and his offending, or by positively finding no such causal connection existed.
  • Whether the sentencing judge gave insufficient reasons for that finding, or for declining to give weight to youth as a mitigating factor.
  • Whether the aggregate sentence of 16 years with a 12-year non-parole period was manifestly excessive.

Decision

On the youth and causal connection grounds, McNaughton J (with Button J and R A Hulme AJ agreeing) held that the sentencing judge had dealt appropriately with the issue. The question of causal connection had not been squarely raised in the sentencing proceedings, and the extreme violence and serious sexual nature of the offending meant that youth was not a significant mitigating factor in the circumstances. It was therefore open to the sentencing judge to give "much less weight" to the applicant's youth.

The Court also observed that arguments based on impulsivity and lack of self-reflection carried considerably less force in light of the applicant's subsequent criminal history, which included continued offending well into adulthood. Where an offender remained criminally active after youth, the proposition that general deterrence and retribution should be discounted on account of youthful offending becomes more difficult to sustain.

The Court drew attention to an important distinction between cases where a youthful offender is sentenced while still young (where rehabilitation considerations loom large) and cases like this one, where the offender was middle-aged at the time of sentencing and had accumulated a criminal history in the intervening years. In the latter situation, the rehabilitation emphasis typically associated with youthful offending has "little part to play."

On manifest excess, the Court found that comparative sentences provided by the applicant were of limited relevance because those cases involved offenders who were both young at the time of offending and young at the time of sentencing. The indicative sentences and aggregate sentence were within the sentencing judge's discretion, particularly given the gravity of the offences, the presence of multiple weapons, the number of offenders involved, and the sentencing judge's entitlement to give full weight to general and specific deterrence and to make guarded findings on remorse and rehabilitation.

Orders Made

  • Leave to file the appeal out of time granted.
  • Leave to appeal allowed.
  • Appeal dismissed.

Key Takeaways

  • The weight given to an offender's youth at the time of offending can be substantially reduced where significant time has passed before sentencing, particularly where the offender has continued to offend during the intervening period.
  • A causal connection between youth or immaturity and offending is not automatically established simply because an offender was young when the offences occurred; the nature and gravity of the offending remain relevant to that assessment.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that rehabilitation considerations, which are typically prominent when sentencing youthful offenders, carry diminished force where the offender is no longer young and has a subsequent criminal history at the time of sentence.
  • Comparative sentencing decisions are of limited utility on a manifest excess argument where the cases cited involve offenders who were youthful both at the time of offending and at the time of sentencing, but the subject offender was not.
  • Insufficient reasons for a finding on causal connection will not be established where the issue was not squarely raised in the sentencing proceedings and the overall circumstances sufficiently explain the approach taken.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
- Crimes Act 1900 (NSW), ss 61J, 86, 112, 148
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- R v AEM Snr, KEM and MM [2002] NSWCCA 58
- R v Adamson [2002] NSWCCA 349; (2002) 132 A Crim R 511
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- MS2 v The Queen [2005] NSWCCA 397; (2005) 158 A Crim R 93
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Brooks v R [2006] NSWCCA 169
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 22
- Franklin v R [2018] NSWCCA 245
- Howard v R [2019] NSWCCA 109
- Osman v R [2020] NSWCCA 78
- Byrne v R; Cahill v R [2021] NSWCCA 185
- CW v R [2022] NSWCCA 50
- Baker v R [2022] NSWCCA 195
- Piscitelli v R [2013] NSWCCA 8