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19
Court of Criminal Appeal 4 May 2001

Regina v SDM [2001] NSWCCA 158 revised - 8

[2001] NSWCCA 158

Also reported as (2001) 51 NSWLR 530
Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING ARMED ROBBERY JUVENILE WHETHER MANIFESTLY EXCESSIVE

Citation: Regina v SDM [2001] NSWCCA 158; 51 NSWLR 530; 127 A Crim R 318
Court: NSW Court of Criminal Appeal
Date: 4 May 2001
Judge(s): Giles JA; Wood CJ at CL; Simpson J

Background

The applicant, a juvenile offender, was convicted of armed robbery and sentenced in the District Court by Shillington DCJ. Following that sentence, the applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was manifestly excessive.

A central dispute on appeal was whether the guideline judgment in R v Henry (1999) 46 NSWLR 346, which established indicative sentencing benchmarks for armed robbery, applied at all to juvenile offenders, or whether it was confined in its operation to adult offenders. The applicant argued that the guideline did not extend to children, and that in any event insufficient weight had been given to mitigating factors including his youth, his role in the offence, his guilty plea, and his remorse.

  • Whether the Henry guideline judgment applied to juvenile offenders (those defined as "children" under the Children (Criminal Proceedings) Act 1987), or was confined to adult offenders
  • Whether the sentence imposed was manifestly excessive, having regard to both the Henry guideline and the special sentencing principles applicable to young offenders
  • Whether adequate weight was given to the mitigating factors of youth, limited planning involvement, guilty plea, and remorse

Decision

On the application of the Henry guideline to juvenile offenders

Wood CJ at CL examined two earlier two-judge decisions, Jack Sua and RLS, which had appeared to treat the Henry guideline as inapplicable to children. His Honour expressed doubt as to whether those decisions were intended to create a considered exclusion of juvenile offenders from the guideline's reach. To the extent they were intended to exclude children entirely from the Henry guideline, Wood CJ at CL disagreed with that approach.

The Court emphasised that guideline judgments are not statutory instruments. They provide benchmarks and indicators, not binding rules with rigid exceptions carved out for particular categories of offender. Engrafting categorical exceptions for juveniles onto a guideline judgment would misapply the nature of such judgments and elevate them improperly to the status of legislation. The Court noted that Henry itself expressly identified "youth" as a mitigating factor capable of reducing a sentence below the indicative range, confirming the guideline's contemplation of young offenders.

On mitigating factors and whether the sentence was excessive

Simpson J (with whom the other members of the Court agreed) found that the sentencing judge had expressly taken into account the applicant's limited involvement in planning, his near-clean prior record, and the circumstances of his guilty plea. Nothing in the sentencing remarks indicated these factors received inadequate weight.

The Court confirmed that while youth can reduce the emphasis on general deterrence and retribution, armed robbery is an offence in which that leniency may be significantly diminished, because it is the kind of conduct more commonly expected of adult offenders. The sentence was characterised as fairly heavy, but not outside the range of the sentencing discretion legitimately available. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Guideline judgments such as Henry are not statutory instruments: they do not create fixed categorical exceptions for particular classes of offender, and engrafting a blanket exclusion for juvenile offenders onto such a guideline misapplies the nature of guideline sentencing.
  • The Court of Criminal Appeal indicated disagreement with any reading of Jack Sua and RLS that entirely excluded juvenile offenders from the Henry guideline, to the extent those decisions were intended as a considered qualification of the guideline.
  • Youth remains a relevant mitigating factor within the Henry framework, capable of supporting a sentence below the indicative range, but its weight may be reduced where the offence constitutes grave adult-type conduct, as armed robbery typically does.
  • All standard sentencing principles of general application, including those relating to children, parity, rehabilitation, and deterrence, continue to apply alongside guideline judgments rather than being displaced by them.
  • No error of principle was established merely because the sentence imposed on a juvenile offender was derived, indirectly, from the Henry guideline.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 3(1)

Cases
- R v Henry (1999) 46 NSWLR 346
- Jack Sua [2000] NSWCCA 94
- RLS [2000] NSWCCA 175
- Douglas NSWCCA, 11 December 1998
- Lattouf NSWCCA, 12 December 1996
- Kable (1995) 36 NSWLR 374
- Karacic [2001] NSWCCA 12
- R v Ngui and Tiong (2000) 111 A Crim R 593
- Walters and JB [2001] NSWCCA 121
- Tran [1999] NSWCCA 109
- Townsend & Cooper, NSW CCA, 14 February 1995
- Biggs, NSWCCA, 5 March 1997
- Kama [2000] NSWCCA 23; 110 A Crim R 47
- GDP (1991) 53 A Crim R 112
- Sharbon, NSWCCA, 5 December 1991
- Wilkie, NSWCCA, 2 July 1992
- R v Pham and Ly (1991) 55 A Crim R 128
- R v Hearne [1999] NSWCCA 605
- R v Hearne [2001] NSWCCA 37