CM v R - [2008] NSWCCA 195

New South Wales
Court of Criminal Appeal

CITATION: CM v Regina [2008] NSWCCA 195

HEARING DATE(S): 6 August 2008

JUDGMENT DATE:
19 August 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Blanch J at 19

DECISION: Leave to appeal granted but appeal dismissed

CATCHWORDS: Criminal law - sentence - application for leave to appeal against the severity of sentence whether error made in giving sufficient weight to applicant's youth - tension in sentencing where a juvenile commits a serious offence of violence

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 s6, s19
Children (Detention Centres) Act 1987 s28
Crimes Act 1900 s61J(1), s86(2)(b)
Criminal Appeal Act 1912 s6(3)

CATEGORY: Principal judgment

CASES CITED: MS2 v The Queen (2005) 158 ACrimR 93
KT v R [2008] NSWCCA 51

PARTIES: CM (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/4278002

COUNSEL: H Dhanji (Applicant)
N Noman (Respondent)

SOLICITORS: S O'Connor, Legal Aid Commission
S Kavanagh, Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/61/0006

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 6 September 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v CM

CCA 2007/4278002

McCLELLAN CJ at CL
GROVE J
BLANCH J

19 August, 2008

CM v REGINA

Judgment

1 McCLELLAN CJ at CL:

I agree with Blanch J.

2 GROVE J: I have had the advantage of reading the judgment of Blanch J in draft form. As his recapitulation of the agreed facts demonstrates, the objective seriousness of the criminal conduct of the applicant was very high and the finding of the learned sentencing judge that the offence was close to being in the worst category for the particular offence was plainly correct. The extreme youth of the applicant constituted an essentially isolated subjective factor which might attract mitigation of sentence.

3 The legislative mandate in s 6 of the Children (Criminal Proceedings) Act 1987 needed to be applied. Unless otherwise stated section references are to that statute. I agree with the reasons of Blanch J for rejecting the argument that Hulme DCJ failed to have proper regard to the provisions of that Act.

4 It would be less than candid, however, not to state that the submission that his Honour erred in failing to give effect to his intention to impose a non-parole period which will expire prior to the applicant’s 21st birthday has caused me considerable concern.

5 Section 19 empowers a sentencing judge to direct that the whole or part of any term imposed on a person under the age of 21 be served as a juvenile offender. The eligibility to serve such whole or part of term in that fashion expires when the offender attains the age of 21 unless the term itself is scheduled to expire within the six months following that attainment. See s 19 (2). Hence, in setting the non-parole period in respect of the sentence on the applicant there existed power to direct that that term be served as a juvenile…

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 CM v R

Details

AGLC: CM v R [2008] NSWCCA 195
Case: [2008] NSWCCA 195
Decision Date: 19 August 2008

CaseChat Overview and Summary

In this case, the applicant sought leave to appeal against the severity of a sentence imposed on him for committing a serious violent offence as a juvenile. The applicant's case was heard by the High Court of Australia, which was required to determine whether the trial judge had erred in sentencing by not giving sufficient weight to the applicant's youth. The case highlights the tension that can arise in sentencing a juvenile who commits a serious violent crime.

The primary legal issue the court had to resolve was whether the trial judge had failed to appropriately consider the applicant's youth when determining the appropriate sentence. The applicant argued that his youth should have been a significant mitigating factor, which would have resulted in a lesser sentence. The Crown, on the other hand, contended that the severity of the offence outweighed any mitigating factors, including the applicant's age.

In reaching its decision, the court examined the principles of sentencing for juveniles and the specific circumstances of the case. The court acknowledged that the trial judge had considered the applicant's youth but determined that it was not sufficient to mitigate the gravity of the offence. The court emphasised that while youth is a relevant factor in sentencing, it does not automatically lead to a reduced sentence. The High Court ultimately concluded that the trial judge had not erred in sentencing and denied the applicant's application for leave to appeal.

Orders