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Court of Criminal Appeal 15 March 2024

MF v R

[2024] NSWCCA 42

Assault & violence
CRIME A PPEALS A PPEAL AGAINST SENTENCE

Citation: MF v R [2024] NSWCCA 42
Court: NSW Court of Criminal Appeal
Date: 15 March 2024
Judges: Garling J, Wilson J, Cavanagh J

Background

The applicant, identified as MF, pleaded guilty in the District Court to wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW). The offending occurred on 22 December 2020, when MF was 16 years and 3 months old. He attended his younger sister's home with his father after forming the belief that the victim, his sister's former partner, had been engaging in domestic violence against her.

MF and his father surrounded the victim and stabbed him five times. The victim suffered serious injuries including a collapsed lung, a punctured bowel, and arterial bleeding, requiring surgery and five days of hospitalisation. MF was arrested the following day.

At the time of sentencing, MF was 18 years old. The District Court sentenced him to 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months, after a 15 per cent discount for an early guilty plea. An order was made under s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW) that MF serve the entirety of his sentence as a juvenile offender.

  • Whether the sentencing judge erred by failing to have regard to MF's youth when assessing his moral culpability and the role of general deterrence
  • Alternatively, whether the sentencing judge's reasons adequately explained how MF's youth affected those assessments
  • Whether the sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on the first two grounds, making it unnecessary to consider manifest excess.

On the question of general principle, the Court confirmed that sentencing judges are not required to mechanically recite every applicable principle or statutory provision. Reference to well-known cases and general statements of relevant principles can sometimes suffice. However, acknowledgment of a principle is not enough on its own. It must be apparent from the sentencing remarks that the principle was actually taken into account in the exercise of the sentencing discretion.

The principles governing youth in sentencing extend beyond a heightened emphasis on rehabilitation. They also require a sentencing judge to specifically address how youth affects the assessment of moral culpability and to consider whether general deterrence carries less weight when the offender is a juvenile. The sentencing judge in this case referred to youth-related principles in general terms but did not explain how MF's youth actually bore on either of those two matters.

The Court found that the absence of that explanation led to one of two conclusions: either the sentencing judge failed to take those matters properly into account, or the reasons provided were inadequate. Either outcome constituted error. On resentencing, the Court applied the relevant principles directly, reducing the sentence to 4 years and 10 months with a non-parole period of 3 years and 1 month.

Orders Made

  • Leave to appeal granted
  • The appeal against sentence allowed
  • The sentence imposed by Judge Ingram SC on 9 December 2022 quashed
  • In lieu thereof, a term of imprisonment of 4 years and 10 months, commencing 23 December 2020, with a non-parole period of 3 years and 1 month ending 22 January 2024 (making the applicant eligible for parole)
  • The order that MF serve the entirety of the sentence as a juvenile offender under s 19(1) of the Children (Criminal Proceedings) Act 1987 confirmed

Key Takeaways

  • A sentencing judge's mere acknowledgment of youth-related sentencing principles does not satisfy the obligation to apply them. It must be apparent from the sentencing remarks that those principles were genuinely taken into account when exercising the sentencing discretion.

  • The principles applicable to juvenile offenders require a sentencing judge to address three distinct matters: the reduced weight of general deterrence, the impact of youth on moral culpability, and the increased emphasis on rehabilitation. Addressing only one does not discharge the obligation.

  • Where a sentencing judge fails to explain how a juvenile offender's youth bears on moral culpability and general deterrence, the Court of Criminal Appeal will treat the omission as either a failure to apply the relevant principles or a failure to provide adequate reasons.

  • In resentencing, the Court of Criminal Appeal gave explicit weight to MF's age, lack of maturity, mental health issues, and adolescent drug and alcohol use as factors reducing moral culpability, and acknowledged the diminished significance of general deterrence given his age at the time of offending.

  • The third ground of manifest excess was not considered once error was established on grounds one and two, consistent with the approach that resentencing renders the excess ground redundant.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases
- Chandler v R [2023] NSWCCA 59
- Director of Public Prosecutions (Cth) v De La Rosa (2000) 79 NSWLR 1
- DL v The Queen (2018) 265 CLR 215
- DS v R; DM v R (2022) 109 NSWLR 82
- Kentwell v The Queen (2014) 252 CLR 601
- KT v R (2008) 182 A Crim R 571
- Lloyd v R [2022] NSWCCA 18
- Mifsud v Campbell (1991) 21 NSWLR 725
- Muldrock v The Queen (2011) 244 CLR 120
- Ney v R [2023] NSWCCA 252
- Paterson v R [2021] NSWCCA 273
- R v Eaton [2023] NSWCCA 125
- R v Henry (1999) 46 NSWLR 346
- Sarhene v R [2022] NSWCCA 79
- Taylor v R [2018] NSWCCA 255
- TM v R [2023] NSWCCA 185
- Turnbull v R [2019] NSWCCA 97