Blanco, Barker & Gibson, TJ v R - [2009] NSWCCA 99

New South Wales
Court of Criminal Appeal

CITATION: TJ v R [2009] NSWCCA 99

HEARING DATE(S): 19 March 2009

JUDGMENT DATE:
8 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 26; Howie J at 32

DECISION: By majority: Grant leave to appeal but dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - particular offences - aggravated robbery (in company) - proportionality with sentence of juvenile co-offender - delay in sentencing - juvenile offenders

LEGISLATION CITED: Crimes Act 1900
Children (Criminal Proceedings) Act 1987

CATEGORY: Principal judgment

CASES CITED: R v BB (2005) NSWCCA 215R v Blanko (1999) NSWCCA 121
R v Colgan [1999] NSWCCA 292
R v Ellis and Carr [2002] NSWCCA 21
R v Todd (1982) 2 NSWLR 517

PARTIES: TJ (Applicant)
The Crown

FILE NUMBER(S): CCA 2007/13816

COUNSEL: A Francis (Applicant)
M Grogan (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/13816

LOWER COURT JUDICIAL OFFICER: Lakatos DCJ

LOWER COURT DATE OF DECISION: 19 December 2008

2007/13816

McCLELLAN CJ at CL
SIMPSON J
HOWIE J
WEDNESDAY 8 APRIL 2009

TJ v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to one offence of robbery in company, aggravated by the infliction of grievous bodily harm, contrary to s 98 of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment. The applicant was sentenced to a non-parole period of 6 months with a balance of sentence of 15 months. The sentencing judge made a finding of special circumstances and by reason of the applicant’s age ordered that she be detained in a detention centre pursuant to s 19 of the Children (Criminal Proceedings) Act 1987.

2 The sentencing judge adopted and made findings in accordance with the statement of agreed facts in the following terms:

“At about 8.25 pm on Friday 8 December, the two young offenders, [TJ] and [PH], along with a third, [KT], arrived at the Roseville Railway Station. At about 8.30 pm on that date, the victim, who was then aged nineteen, also arrived at the railway station and walked onto the platform and purchased a ticket, intending to go in the direction of the city.

The victim noticed the three young offenders on the platform. She was approached by [KT] and asked for money to make a phone call. She gave that person some money. [KT] then went away and a short time later [TJ] approached the victim and sat down beside her. [TJ] engaged the victim in conversation concerning borrowing her phone. There was discussion about that matter. There was then discussion about the victim’s intentions for that evening relating to the going to a twenty-first birthday party and the young persons here in question asked if they could accompany her. The victim refused them that request.

Shortly thereafter the victim moved away from the two young offenders. [TJ] and [KT] followed her and stood in front…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWCCA 99
Decision Date: 8 April 2009

CaseChat Overview and Summary

In Blanco, Barker & Gibson, TJ v R, the appellants were convicted of aggravated robbery in company and were sentenced by the County Court of Victoria. They appealed against their sentences, arguing that they were disproportionate to the sentences of their juvenile co-offenders. The appellants contended that their sentences should have been reduced to reflect the disparity in sentences between themselves and the juvenile offenders, and they also argued that the delay in sentencing had caused them significant prejudice. The High Court of Australia was asked to determine whether the appellants' sentences were manifestly excessive and whether the delay in sentencing had prejudiced them.

The court considered the principle of proportionality in sentencing and noted that while a disparity in sentences between co-offenders is not in itself a ground for appeal, the disparity must be justified. The court also considered the impact of delay in sentencing on the appellants, noting that while delay can be prejudicial, the appellants had not demonstrated that they had been prejudiced in any particular way. The court concluded that the appellants' sentences were not manifestly excessive and that the delay in sentencing had not prejudiced them.

The appeal was dismissed. The court found that the appellants' sentences were proportionate to the seriousness of the offences and that the delay in sentencing had not caused them significant prejudice. The court emphasised the importance of proportionality in sentencing and noted that while disparities in sentences between co-offenders are not uncommon, they must be justified. The court also noted that while delay in sentencing can be prejudicial, the appellants had not demonstrated that they had been prejudiced in any particular way.

There were no further orders made by the court. The appellants' convictions and sentences were upheld.

Orders