New South Wales
Court of Criminal Appeal
CITATION: CM v Regina [2008] NSWCCA 195 HEARING DATE(S): 6 August 2008
JUDGMENT DATE:
19 August 2008JUDGMENT 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 51PARTIES: 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 ProsecutionsLOWER 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
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…
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- CM v R [2008] NSWCCA 195
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- [2008] NSWCCA 195
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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