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Court of Criminal Appeal 31 October 2003

REGINA v S L D [2003] NSWCCA 310 revised - 31

[2003] NSWCCA 310

Also reported as (2003) 58 NSWLR 589
Homicide
CRIMINAL LAW SENTENCING MURDER OFFENDING

Citation: Regina v S L D [2003] NSWCCA 310 revised – 31/10/2003; reported at 58 NSWLR 589; 142 A Crim R 503
Court: NSW Court of Criminal Appeal
Date: 31 October 2003
Judges: Handley JA; Sully J; Buddin J

Background

The applicant was thirteen years and ten months old when he broke into a neighbouring home at night, removed a sleeping three-year-old girl from her bedroom, carried her approximately 300 metres, and stabbed her to death. He pleaded guilty to murder. There was no evidence of mental illness and no defence of diminished responsibility.

At sentencing, Wood CJ at CL heard expert evidence from a clinical psychologist and two psychiatrists. Their assessments were sobering: the applicant's prognosis was characterised as very poor, with the likelihood of him developing antisocial personality disorder, borderline personality disorder, or a substance abuse disorder estimated at between 50% and 70%. His background before adoption in 1993 had been marked by severe physical and emotional abuse.

Wood CJ at CL sentenced the applicant to 20 years' imprisonment with a non-parole period of ten years. The applicant sought leave to appeal, arguing that the sentencing judge had impermissibly taken future dangerousness into account without establishing that risk to the criminal standard (that is, beyond reasonable doubt).

  • Whether a sentencing judge is required to find, beyond reasonable doubt, that a prisoner poses a significant risk of re-offending before taking that risk into account when fixing sentence.
  • Whether the sentencing judge erred in treating the absence of an identifiable motive as an indicator of future dangerousness.
  • Whether the structure and length of the sentence revealed an impermissible element of preventive detention.

Decision

Handley JA (with whom Sully J and Buddin J agreed) dismissed the appeal. The central holding was that a sentencing judge is entitled to take into account the risks a prisoner will pose to society upon release without having to find, to the criminal standard, that the prisoner will actually re-offend. The Court confirmed this approach as consistent with High Court authority stretching back to Veen v The Queen [No 1] (1979) and the line of decisions that followed it.

The Court examined how Wood CJ at CL had structured the sentence. His Honour had declined to make definitive predictions about the applicant's behaviour many years hence. Instead, he crafted a head sentence reflecting the objective seriousness of the offence and the current risk assessment, while fixing a non-parole period that preserved a meaningful period of supervised release on parole. That structure left the ultimate assessment of ongoing risk to the parole authorities, who would have access to far better information about the applicant's rehabilitation at the relevant future time.

The Court distinguished cases such as Chester, Bugmy, and Mitchell, in which sentencing judges had erred by essentially pre-judging the prisoner's risk profile across an extended future period of eighteen years or more. Here, the effective post-custody period subject to prediction was only around eight and a half years, and the judge had expressly acknowledged the limits of forecasting.

On the manifest excess ground, the Court found no error. The offence fell into the upper range of objective seriousness, and the sentencing judge had given careful and appropriate weight to the applicant's youth, traumatic background, and the statutory emphasis on rehabilitation under the Children (Criminal Proceedings) Act 1987.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court is not obliged to establish, beyond reasonable doubt, that a prisoner will re-offend before treating the risk of future offending as a relevant sentencing consideration.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that all High Court decisions since Veen [No 1] are inconsistent with the proposition that future criminality can only be weighed if proved to the criminal standard.
  • Where a sentencing judge structures a sentence so as to avoid making binding forecasts of behaviour far into the future, leaving ongoing risk assessment to parole authorities, that approach accommodates both the uncertainty of prediction and the need to protect the community.
  • The absence of an identifiable motive can properly be treated as a relevant indicator of future dangerousness in the sentencing process, without that finding being elevated to a criminal standard of proof.
  • Sentences for juvenile offenders under the Children (Criminal Proceedings) Act 1987 must give significant weight to rehabilitation, but punishment and personal deterrence remain relevant where the offence involves gross criminality.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 6

Cases:
- Veen v The Queen [No 1] (1979) 143 CLR 458
- Veen v The Queen [No 2] (1988) 164 CLR 465
- Chester v The Queen (1988) 165 CLR 611
- Boughey v The Queen (1986) 161 CLR 10
- Bugmy v The Queen (1990) 169 CLR 525
- Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
- Mitchell v The Queen (1996) 184 CLR 333
- The Queen v Olbrich (1999) 199 CLR 270
- Weininger v The Queen (2003) 77 ALJR 872
- Lyons v The Queen [1987] 2 SCR 309 (Canada)
- The Queen v Currie [1997] 2 SCR 260 (Canada)
- R v Harrison (1997) 93 A Crim R 314
- R v Robinson [2002] NSWCCA 359