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Court of Criminal Appeal 19 June 2024

Carr v R

[2024] NSWCCA 103

Assault & violenceTheft & property
CRIME APPEAL APPEAL AGAINST SENTENCE RELEVANCE OF YOUTH APPLICANT ’ S AGE MULTIPLE PROPERTY AND VIOLENCE OFFENCES

Citation: Carr v R [2024] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 19 June 2024
Judges: Ward P, Hamill J, Dhanji J (unanimous)

Background

The applicant, a young Indigenous man born in November 2000, was sentenced in the District Court at Wagga Wagga in December 2022 for nine offences committed when he was 19 years old. The offences included aggravated break, enter and steal, armed robbery, aggravated break, enter and commit a serious indictable offence (deprivation of liberty), motor vehicle theft, intentional property damage, and other related property and violence offences. The most serious events unfolded over a 28-hour period in May 2020 and included threatening a delivery driver with a knife, forcing him into a vehicle, and detaining him while demanding cash withdrawals from ATMs.

The sentencing judge imposed an aggregate term of 10 years' imprisonment with a non-parole period of 6 years and 3 months. The applicant sought leave to appeal on two grounds: that the sentencing judge failed to give proper consideration to his youth, and that the aggregate sentence was manifestly excessive having regard to his subjective circumstances and totality principles.

The applicant had a disadvantaged upbringing, a lengthy juvenile criminal history, and subjective factors that the Court of Criminal Appeal described as a "strong subjective case." A psychologist's report before the sentencing judge noted that the applicant had received "little caregiver supervision during adolescence to positively guide his social and moral development."

  • Whether the sentencing judge erred by failing to give substantive, individualised consideration to the effect of the applicant's youth on his offending and moral culpability.
  • Whether the Bugmy principles (relating to the ongoing relevance of childhood deprivation to moral culpability) were adequately applied.
  • Whether youth and childhood deprivation are distinct considerations in the sentencing exercise.
  • Whether the aggregate sentence was manifestly excessive, having regard to the applicant's subjective case and the principle of totality.
  • Whether the sentencing judge correctly applied the Henry guideline judgment in the context of the armed robbery count.

Decision

The Court found that Ground 2 was established. Although the sentencing judge was plainly aware of the applicant's age, awareness alone does not satisfy the legal obligation to consider the effect of youth on the offending. The references to the applicant's age in the sentencing remarks were either purely factual or abstracted from his individual circumstances. The reference to the applicant being a "young offender" in the Henry guideline analysis was a blunt comparison to a hypothetical offender, not a genuine assessment of what his youth meant for his moral culpability. Referencing an offender's age in a criminal history summary does not constitute consideration of youth as a mitigating factor.

The Court confirmed that youth and childhood deprivation, while frequently interconnected, are legally distinct sentencing considerations. The Bugmy principles address how disadvantaged upbringing diminishes moral culpability regardless of the passage of time, while youth separately calls for leniency because of reduced maturity and greater prospects of rehabilitation. Both required genuine, individualised analysis that was absent from the sentencing remarks.

Having found error, the Court exercised its sentencing discretion afresh. It described the exercise as complex, given the number of offences, the concurrent sentences from other matters, the need to apply the Henry guideline, and the operation of totality. The Court noted that the "indicia of adult behaviour" label, sometimes used to diminish the weight of an offender's youth, is an unhelpful appellation and should be approached with caution.

The Court concluded that the original sentence was also manifestly excessive when the strong subjective case, including the applicant's youth, his Indigenous background, the Bugmy principles, his plea discounts, and totality considerations, were properly weighed. The aggregate sentence was reduced substantially on resentencing.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed in the District Court on 15 December 2022 is quashed.
  • In lieu thereof, a sentence of 7 years and 6 months is imposed, comprising a non-parole period of 4 years and 6 months and a balance of term of 3 years.
  • The sentence is to commence on 19 February 2021.
  • The non-parole period is to expire on 18 August 2025.
  • The total sentence is due to expire on 18 August 2028.
  • The earliest date on which the applicant may be released is 18 August 2025.

Key Takeaways

  • A sentencing judge's factual awareness of an offender's age does not, by itself, satisfy the legal requirement to consider the effect of youth on offending and moral culpability. The consideration must be substantive and individualised.
  • Youth and childhood deprivation are separate mitigating factors in sentencing. Each requires distinct analysis, even where the two overlap in a given offender's circumstances.
  • The Court of Criminal Appeal confirmed that the "indicia of adult behaviour" description, sometimes used to reduce the weight given to an offender's youth, is an unhelpful label and should not be applied as a formula to extinguish youth as a mitigating consideration.
  • Referencing an offender's age solely in the context of a guideline judgment comparison, such as the Henry guideline for armed robbery, does not constitute genuine consideration of the offender's individual circumstances.
  • Where Bugmy principles are clearly enlivened, as the sentencing judge himself noted they were "to a significant extent," the sentencing remarks must demonstrate how that finding has been applied to reduce the sentence, not merely acknowledge the principle in passing.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- RP v The Queen (2016) 259 CLR 641; [2016] HCA 53
- IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107
- AH v R [2023] NSWCCA 230
- TM v R [2023] NSWCCA 185
- Atai v R (2020) 286 A Crim R 1; [2020] NSWCCA 302
- R v Bennett (2014) 245 A Crim R 1; [2014] NSWCCA 197
- BB v R [2017] NSWCCA 189
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Lodhi v The Queen (2007) 179 A Crim R 470; [2007] NSWCCA 360
- Chung v R [2017] NSWCCA 48
- MJ v R, CPD v R [2010] NSWCCA 52
- R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37