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18
Court of Criminal Appeal 30 June 2004

R v P [2004] NSWCCA 218 revised - 11

[2004] NSWCCA 218

Assault & violenceTheft & property

Citation: R v P [2004] NSWCCA 218 revised 11/11/2004
Court: NSW Court of Criminal Appeal
Date: 30 June 2004
Judges: Ipp JA, Hulme J, Hislop J

Background

The applicant, a young man born in Chile in May 1985 who had migrated to Australia as a child, was sentenced in the District Court on 27 February 2004 for two serious offences committed on 27 March 2003, when he was 17 years old. The first offence was armed robbery with wounding: he robbed a victim at knifepoint using a meat cleaver, then slashed the victim across the chin and wrist, causing lacerations requiring 16 stitches and extending to the bone. Approximately 15 minutes later, at a different location, he and co-offenders committed a second armed robbery, again using a meat cleaver and baseball bat.

The sentencing judge imposed a non-parole period of 6 years for the first offence and 3 years for the second, both commencing on 27 March 2003. Judge Urquhart ordered that the sentences be served in a detention centre only until the applicant turned 19 years and 2 months, an age he would reach on 7 July 2004, just weeks after sentencing.

The applicant sought leave to appeal, primarily on the ground that the sentencing judge had not given sufficient weight to his youth and rehabilitation prospects, and had set too short a period for detention centre placement.

  • Whether the sentences imposed were manifestly excessive given the applicant's age, background, and rehabilitation prospects
  • Whether the sentencing judge gave adequate weight to youth as a mitigating factor under the relevant principles
  • Whether the order under section 19 of the Children (Criminal Proceedings) Act 1987 directing detention centre placement only until age 19 years and 2 months was appropriate, given the applicant's rehabilitative needs
  • Whether "special circumstances" existed to justify an extended detention centre order under section 19

Decision

The Court of Criminal Appeal found that the original sentences were manifestly excessive in light of the applicant's youth and the principles applicable to young offenders. Hulme J, with whom Ipp JA and Hislop J agreed, reduced the non-parole period for the second count (armed robbery) to 2 years and 6 months, and restructured the first count (armed robbery with wounding) to a non-parole period of 3 years and 6 months commencing on 27 September 2003, reflecting partial concurrency between the two sentences.

A central issue in the appeal was the duration of the detention centre order. The Court accepted that the applicant had made meaningful progress while in custody, had sought out professional assistance, and had acknowledged his problems. Multiple expert reports from the Department of Juvenile Justice and a psychiatrist identified significant rehabilitative prospects, contingent on continued counselling and separation from prior social networks.

Hulme J noted that detention centres offer substantially more rehabilitative programs and services than adult gaols, a fact the Court took judicial notice of. Recognising that the applicant would necessarily spend some portion of his non-parole period in an adult prison given the sentence length and his age, the Court nonetheless found that "special circumstances" justified extending the detention centre order from age 19 years and 2 months to age 21. This extension was aimed at maximising the rehabilitative benefit of the more structured environment available in a detention centre.

The Court acknowledged the applicant's deeply troubled background, including an extraordinary level of substance abuse from the age of 12 or 13, significant anger management issues, exposure to violence, and prior offending. These factors informed both the approach to mitigation and the assessment of ongoing risk, which experts identified as heavily dependent on the applicant's ability to remain drug and alcohol free.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences and section 19 order made by Judge Urquhart on 27 February 2004 quashed
  • Second count (armed robbery): non-parole period of 2 years and 6 months commencing 27 March 2003, further term of 2 years and 6 months commencing 27 September 2005
  • First count (armed robbery with wounding): non-parole period of 3 years and 6 months commencing 27 September 2003, further term of 3 years and 3 months commencing 27 March 2007
  • Pursuant to section 19 of the Children (Criminal Proceedings) Act 1987, each sentence to be served in a detention centre until the applicant attains the age of 21 years

Key Takeaways

  • The Court of Criminal Appeal confirmed that youth is a significant mitigating factor in sentencing, capable of warranting both reduced sentences and extended detention centre orders beyond those initially imposed at first instance.
  • Under section 19 of the Children (Criminal Proceedings) Act 1987, a court may order that a sentence be served in a detention centre beyond the default period where "special circumstances" exist; compelling evidence of rehabilitative need and amenability to treatment can constitute such circumstances.
  • A court may take judicial notice that programs and services available in adult correctional facilities are significantly less extensive than those in detention centres, and this disparity is a relevant consideration when structuring orders for young offenders.
  • Concurrent and partial concurrency arrangements between sentences remain available tools in structuring penalties for young offenders convicted of multiple serious offences committed in close proximity.
  • Expert psychiatric and departmental reports identifying rehabilitation prospects are accorded substantial weight in appeals concerning the sentencing of young offenders, particularly where the evidence shows genuine engagement with counselling and acknowledgment of the impact of offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), sections 97(1) and 98 (armed robbery; armed robbery with wounding)
- Children (Criminal Proceedings) Act 1987 (NSW), section 19 (detention centre orders for young offenders)

Cases:
No cases were cited in the portion of the judgment provided.