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Court of Criminal Appeal 6 October 2023

AJ v R

[2023] NSWCCA 235

Assault & violenceTheft & property
CRIME APPEALS APPEAL AGAINST SENTENCE SENTENCING OF CHILDREN YEAR ERRORS ESTABLISHED

Citation: AJ v R [2023] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 6 October 2023
Judges: Simpson AJA, Price J, Davies J

Background

The appellant was 15 years and five months old when he participated in a group robbery and assault at a Liverpool shopping centre in December 2021. Together with five co-offenders, he surrounded three young men leaving a cinema, demanded their possessions, and joined a violent assault on one victim. While the victim lay unconscious on the ground, the appellant stomped on his head and kicked his body, causing serious injuries.

The appellant pleaded guilty in the Children's Court to aggravated robbery causing grievous bodily harm, with two further offences taken into account on sentence. After a 25% discount for his early plea, the District Court sentenced him to three years and three months' imprisonment with a non-parole period of 18 months.

The same judge had also sentenced a co-offender, TM, to three years' imprisonment with a non-parole period of 12 months. TM successfully appealed, and the Court of Criminal Appeal re-sentenced him with a reduced non-parole period of nine months (TM v R [2023] NSWCCA 185). The appellant then brought his own appeal, relying on the same sentencing errors and the resulting disparity between the two sentences.

  • Whether the sentencing judge erred by failing to assess the appellant's moral culpability with reference to his youth, or at least make clear in the remarks on sentence that he had done so
  • Whether the sentencing judge erred by failing to assess whether the appellant's young age warranted reduced weight being given to general deterrence, or at least make clear what finding was made on that issue
  • Whether the disparity between the appellant's sentence and the re-sentence imposed on co-offender TM gave rise to a justifiable sense of grievance warranting re-sentence

Decision

Grounds 1 and 2: Failure to address youth in sentencing

The Court found that the sentencing judge's remarks contained no reference to the appellant's moral culpability or to the role of general deterrence. Beyond a bare mention of the appellant's age and a reference to s 6 of the Children (Criminal Proceedings) Act 1987, it was not clear whether, or to what extent, youth was factored into either consideration. This fell short of the obligations imposed on a judge sentencing a young offender. Both errors were established, consistent with the approach taken in TM v R.

Ground 3: Parity and re-sentence

The Court acknowledged that, although general deterrence carries reduced weight for young offenders given their immaturity and diminished moral culpability, it retains some relevance where adolescents engage in unprovoked violence against innocent persons. A psychologist's report identified the appellant's immaturity as a factor reducing his moral culpability, but the Court also noted that the appellant's conduct was more serious than TM's: he had stomped on the victim's head rather than merely kicked him.

There were also differences in background. TM had experienced a significantly more troubled childhood, including 13 child protection reports covering neglect, psychological harm, and exposure to domestic violence. The appellant's background, while involving exposure to family violence, was less severe. Taking those distinctions into account, alongside the re-sentence of TM, the Court found the disparity in non-parole periods to be "marked and glaring" and not sufficiently explained by the differences between the offenders. The head sentence of three years and three months was not disturbed given the seriousness of the offending, but the non-parole period was reduced from 18 months to 12 months.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed in the District Court on 13 March 2023 quashed
  • In lieu, the appellant sentenced to a non-parole period of 12 months commencing 26 December 2022 and expiring 25 December 2023, with a balance of term of 2 years and 3 months expiring 25 March 2026
  • First eligible for parole on 26 December 2023

Key Takeaways

  • A sentencing judge dealing with a young offender must expressly address the effect of youth on both moral culpability and the weight to be given to general deterrence; it is not sufficient to merely note the offender's age or cite the relevant legislation.
  • General deterrence is not entirely displaced in youth sentencing: where adolescents commit unprovoked group violence against innocent people, deterrence retains some relevance even after appropriate reduction for immaturity.
  • Parity principles apply where a co-offender's sentence has been altered on appeal: a remaining offender may have grounds for re-sentence if the resulting disparity is marked and not adequately explained by differences in offending or background.
  • In assessing parity, the Court of Criminal Appeal examined the relative seriousness of each co-offender's conduct and the differences in their personal circumstances, arriving at a non-parole period that reflected those distinctions rather than simply mirroring the co-offender's outcome.
  • Under the Children (Criminal Proceedings) Act 1987 (NSW), sentencing courts carry specific obligations when dealing with young persons; failure to clearly address the statutory considerations in remarks on sentence can constitute error warranting appellate intervention.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 12
- Crimes Act 1900 (NSW), ss 96, 97, 99

Cases
- TM v R [2023] NSWCCA 185
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- JA v R [2021] NSWCCA 10
- R v Suliasi Taumalolo; R v Mateaki Taumalolo; R v Mayol; R v ST; R v ET [2022] NSWSC 1696
- Blanch v R [2019] NSWCCA 304
- Paul Campbell v R [2018] NSWCCA 87
- Taylor v R [2018] NSWCCA 255