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Court of Criminal Appeal 8 September 2023

ZXT (a pseudonym) v R

[2023] NSWCCA 222

Assault & violence

Citation: ZXT (a pseudonym) v R [2023] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 8 September 2023
Judges: Adamson JA (principal judgment); Wright J and Fagan J (agreeing)

Background

The appellant (referred to by the pseudonym ZXT) was 17 years and four months old when he and two friends attended an uninvited party in Rouse Hill. A confrontation arose at the door with the victim, who challenged the group and told them to leave. During the ensuing altercation, the appellant produced a hunting-style knife and, after the victim had been punched, surrounded, and fled into the street, the appellant and his companions chased him and the appellant stabbed the victim in the lower back.

The wound was life-threatening and required emergency surgery and four days of hospitalisation. The victim subsequently suffered ongoing back pain and significant psychological effects. The appellant was arrested approximately two weeks after the incident.

The appellant pleaded guilty in the Children's Court to reckless wounding in company under s 35(3) of the Crimes Act 1900 (NSW). Because the offence was not a "serious children's indictable offence," the District Court sentencing judge dealt with the appellant under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987 (NSW), applying the Children's Court sentencing framework. The sentencing judge imposed a control order of 18 months with a non-parole period of nine months, allowing a 25% discount for the guilty plea.

  • Whether the sentencing judge erred by failing to consider the discretion under s 33(1B) of the Children (Criminal Proceedings) Act 1987 (NSW) to suspend the control order, after defence counsel had specifically submitted that suspension would be an appropriate course.
  • Whether, alternatively, the sentencing judge failed to give adequate reasons explaining how that discretion had been considered.
  • Whether the sentence imposed was manifestly excessive.
  • On re-sentencing, whether a lesser sentence than that originally imposed was warranted.

Decision

The Court granted leave to appeal and found that ground 1 was made out. Defence counsel had clearly submitted at the sentencing hearing that, if a control order were imposed, it should be suspended. That submission required the judge to engage with the s 33(1B) discretion and decide whether to exercise it. Because the sentencing remarks contained no reference to any such consideration, the Court inferred the matter was simply not considered, and that failure caused the sentencing discretion to miscarry.

Having established that error, the Court was not required to determine the manifest excess ground. Instead, applying Kentwell v The Queen (2014) 252 CLR 601, the Court was required to re-sentence the appellant itself.

On re-sentencing, the Court took into account the objective seriousness of the offending, the appellant's prospects of rehabilitation, misconduct reports received since sentence, and the question of whether suspension would be appropriate. Having weighed all of those matters, the Court was not persuaded that a lesser sentence was warranted.

Fagan J, in a concurring judgment, added pointed observations. The appellant's argument for a reduced penalty was characterised as failing to take sufficient account of the gravity of the offending. The appellant had gone out armed with a knife he carried for "protection" at parties, which meant the possibility of using it was foreseeable from the outset. There was no evidence of disadvantage or diminished capacity that would reduce moral culpability. Fagan J concluded that the sentencing judge's original decision already accorded substantial lenience, and any lesser sentence would be inadequate to reflect both the gravity of the offence and its effect on the victim, as required by s 6(h) of the Act.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • The sentence originally imposed (control order of 18 months, non-parole period of nine months) was confirmed on re-sentencing.

Key Takeaways

  • Where defence counsel expressly submits that a control order should be suspended under s 33(1B) of the Children (Criminal Proceedings) Act 1987, the sentencing court is obliged to engage with that submission and resolve it; an absence of any reference to the question in the sentencing remarks supports an inference that the discretion was never considered, causing the sentencing discretion to miscarry.
  • A failure to consider a discretion that was put in issue is a distinct error from a failure to give reasons, though both may arise from the same omission in the sentencing remarks.
  • Under Kentwell v The Queen, once an error vitiating the sentencing discretion is established, the appellate court must re-sentence the offender independently rather than remit the matter.
  • In dismissing the appeal after re-sentencing, the Court of Criminal Appeal confirmed that a sentence may survive challenge even where a procedural error is found, if the appellate court independently arrives at a sentence no less than that originally imposed.
  • Carrying a knife to a party and using it during a spontaneous altercation does not equate to premeditation, but the Court found the risk of such violence was plainly foreseeable to the offender from the moment he went out armed; this reasoning bore on the assessment of moral culpability under the children's sentencing framework.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(3) (reckless wounding in company)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 18, 33 and Division 4 of Part 3
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Summary Offences Act 1988 (NSW), s 11C (knife possession in a public place)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Zamagias [2002] NSWCCA 17
- RO v R [2019] NSWCCA 183