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CA v The Queen

CA v The Queen

Case [2019] NSWCCA 93 8 May 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: CA v R [2019] NSWCCA 93
Hearing dates: 29 March 2019
Decision date: 08 May 2019
Before: Hoeben CJ at CL at [1];
Garling J at [91];
Hidden AJ at [130]
Decision:
(1)   Grant leave to appeal.
(2)   Appeal upheld.
(3)   Quash the sentence imposed by Acting Judge Marien SC on 14 September 2018.
(4)   Sentence the applicant to a term of imprisonment for a non-parole period of 1 year and 4 months commencing on 29 August 2018 and concluding on 28 December 2019 with a balance of term of 1 year and 8 months concluding on 28 August 2021.
(5) Order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that the whole of the sentence be served as a juvenile offender.

Catchwords: CRIMINAL LAW – sentence appeal – specially aggravated break and enter and commit a serious indictable offence – applicant sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years – applicant aged 12 years and 10 months – 78 year old woman severely beaten with bricks and a piece of wood – significant psychological and physical injuries – lack of contrition and remorse – whether proper allowance made for applicant’s youth – whether proper allowance made for immaturity and impulsiveness of youth – whether proper allowance made for applicant’s deprived and violent background – whether too much weight given to protection of community – whether proper allowance made for time in custody solely related to this offence – whether totality properly taken into account – whether sentence was manifestly excessive – one appeal ground made out – re-sentence.
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) – ss 6, 19, 33(1)(e)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Crimes Act 1900 (NSW) – s 112(3)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(2)(g)
Cases Cited: Aslan v R [2014] NSWCCA 114
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Ciaron McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Engert v R (1995) 84 A Crim R 67
Hughes v R [2018] NSWCCA 2
KT v R [2008] NSWCCA 51; 182 A Crim R 571
Lehn v R [2016] NSWCCA 255; 93 NSWLR 205
MS2 and Ors v Regina [2005] NSWCCA 397
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Munda v Western Australia [2013] HCA 38; 249 CLR 600
R v Pham & Ly (1991) 55 A Crim R 128
Regina v Fernando [2002] NSWCCA 28
Vaiusu v R [2017] NSWCCA 71
Category: Principal judgment
Parties: CA – Applicant
Regina – Respondent Crown
Representation:
Counsel:
M Johnston SC – Applicant
B Hatfield – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2018/30016
Publication restriction:

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.

Continue reading CA v The Queen

Details

AGLC: CA v The Queen [2019] NSWCCA 93
Case: [2019] NSWCCA 93
Decision Date: 08 May 2019

CaseChat Overview and Summary

The case of CA v The Queen was an appeal against sentence brought before the court. The applicant, who was 12 years and 10 months old at the time of sentencing, had been found guilty of committing a particularly severe break and enter offence. The victim, a 78-year-old woman, had suffered significant psychological and physical injuries as a result of the attack. The applicant was sentenced to imprisonment for 3 years and 9 months, with a non-parole period of 2 years. The central issue for the court was whether the sentence imposed was appropriate, particularly in light of the applicant's age, background, and the totality of the circumstances.

The court had to determine whether the sentencing judge had properly taken into account the applicant's youth, immaturity, and impulsiveness, as well as the deprived and violent background from which the applicant came. The court also considered whether the judge had appropriately balanced the need to protect the community against the mitigating factors of the applicant's age and background. Additionally, the court examined whether the applicant's time in custody, which was solely related to this offence, had been properly taken into account in the sentencing decision. The court found that the sentence was manifestly excessive and that one ground of appeal had been made out.

After reviewing the appeal, the court determined that the sentence was manifestly excessive and did not appropriately consider the mitigating factors of the applicant's youth, immaturity, impulsiveness, and deprived background. The court found that insufficient weight had been given to the applicant's age and that too much emphasis had been placed on the need for community protection. The court also found that the time the applicant had spent in custody had not been adequately considered in the sentencing decision. Consequently, the court allowed the appeal and ordered a re-sentencing hearing to be conducted.

Orders