Citation: Regina v ART [2003] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 1 July 2003
Judge(s): Grove J, Shaw J
Background
The applicant, a seventeen-and-a-half year old male with no prior criminal history, pleaded guilty in the District Court at Campbelltown to one charge of sexual intercourse with his five-year-old step-sister. A related offence involving another five-year-old child, committed on the same occasion, was listed on a Form 1 (a procedure under which an offender acknowledges additional charges so the court may take them into account when sentencing on the principal charge, without those charges being separately prosecuted).
Judge Sides DCJ sentenced the applicant to two years imprisonment with a non-parole period of nine months, to be served in a juvenile detention centre. The sentencing judge extended the head sentence by nine months to reflect the Form 1 offence, expressly noting that this extension was significantly less than would have applied had the matter been prosecuted as a separate charge.
The applicant sought leave to appeal against the severity of the sentence, arguing that the sentencing judge had misapplied the Form 1 procedure and given excessive weight to general deterrence.
Legal Issues
- Whether the sentencing judge incorrectly approached the Form 1 offence by treating it as though he were sentencing separately for that offence, rather than focusing on the principal offence
- Whether excessive weight was given to general deterrence when taking Form 1 matters into account
- Whether, taking all subjective circumstances into account, a lesser penalty was warranted in law
Decision
On the Form 1 ground, the Court rejected the applicant's argument. Shaw J acknowledged the principle stated by Spigelman CJ in the Attorney General's Application that a sentencing court is not to determine a sentence for each Form 1 offence and then apply a discount. However, the Court read that principle in its full context: taking Form 1 matters into account will ordinarily result in a longer sentence, and the additional penalty need not be small. The focus remains on the principal offence, with the Form 1 matters influencing that sentence by giving greater weight to personal deterrence and the community's entitlement to retribution.
The Court found that Sides DCJ's approach was consistent with authority. The sentencing judge had extended the sentence to reflect the Form 1 offence while expressly treating that extension as significantly less than would have been imposed for a separate charge, which was precisely the correct approach.
On the general deterrence point, the Court noted that the Chief Justice's observations in the Attorney General's Application case were not intended to be exhaustive of the matters that Form 1 offences could affect, and no additional improper element was identified in the submissions.
On the broader ground that a lesser penalty was warranted, the Court found that the sentencing judge had conscientiously addressed all relevant subjective circumstances: the early guilty plea (attracting a 25 per cent discount), genuine contrition, admissions to police, rehabilitation efforts, social isolation, family support, and the absence of prior offending or sexual experience. Both Shaw J and Grove J concluded the sentence was not excessive. Shaw J noted the non-parole period was at the lower end of the range for offences of this kind.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that when sentencing on a principal charge with Form 1 matters, the sentencing court must focus on the principal offence but may legitimately increase the sentence to reflect those additional matters, giving greater weight to personal deterrence and retribution.
- A sentencing judge does not fall into error by extending a head sentence to account for a Form 1 offence, provided the extension is treated as significantly less than what a separate prosecution would have attracted.
- No error was established in giving weight to general deterrence when considering Form 1 offences, as the relevant authorities do not provide an exhaustive list of the sentencing elements that such offences may affect.
- In dismissing the appeal, the Court observed that the sentence was, if anything, lenient, and that the non-parole period sat at the lower end of the applicable range for offences of this gravity.
- Under the Children (Criminal Proceedings) Act 1987, a juvenile offender approaching adulthood may still be directed to serve a custodial sentence in a juvenile detention centre, even where the offending is serious.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 1999 [2002] NSWCCA 518
- R v Harris (2001) 125 A Crim R 27
- R v Lemene (2001) 118 A Crim R 131