IS v R

Case [2017] NSWCCA 116 30 May 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: IS v Regina [2017] NSWCCA 116
Hearing dates: 26 September 2016
Date of orders: 30 May 2017
Decision date: 30 May 2017
Before: Gleeson JA at [1]
Harrison J at [2]
Campbell J at [3]
Decision:
(1)   Grant leave to appeal and allow the appeal in part;

(2)   Confirm the sentence imposed in the District Court for Count 2, adjusting the commencement date from 7 December 2014 to 2 November 2014. That is, impose a sentence of 15 months imprisonment, having a non-parole period of 9 months commencing on 2 November 2014 and expiring on 1 August 2015 with an additional term of 6 months commencing on 2 August 2015 and expiring on 1 February 2016; and

(3)   Quash the sentence imposed in the District Court for Count 1 and instead impose a sentence of imprisonment of 5 years, having a non-parole period of 2 years and 10 months commencing on 2 May 2015 and expiring on 1 March 2018 and an additional term of 2 years and 2 months commencing on 2 March 2018 and expiring on 1 May 2020.

(4)   The applicant will be first eligible for release on parole after the expiration of the non-parole period for Count 1 on 1 March 2018.
(5) Direct that the sentences of imprisonment proposed be served as a juvenile offender in accordance with, and subject to, the provisions of s 19 Children (Criminal Proceedings) Act 1987 (NSW).
Catchwords: CRIMINAL LAW – sentencing – aggravated robbery– intentionally destroy property– where robbery committed in company and under the influence of “ice” – where offender a juvenile – where offender’s upbringing engages the principle in Bugmy v The Queen – where primary judge emphasised general deterrence and community protection – where primary judge accepted the offender’s remorse and expressed confidence in his prospects of rehabilitation – balance between the principle in Bugmy v The Queen, remorse, rehabilitation and general deterrence – held that the primary judge erred in applying the principles applicable to the offender’s deprived background – held that the primary judge erred in applying the principles applicable to the sentencing of juveniles
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CS v The Queen [2014] NSWCCA 229; (2014) 245 A Crim R 249
R v Engert (1995) 84 A Crim R 67
R v Henry (1999) 46 NSWLR 346; [1999] NSW CCA 111
Kiernan v R [2016] NSWCCA 12
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Muldrock v The Queen (2011) 244 CLR 120;
[2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Pham (1991) 55 A Crim…

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 IS v R

Details

AGLC: IS v R [2017] NSWCCA 116
Case: [2017] NSWCCA 116
Decision Date: 30 May 2017

CaseChat Overview and Summary

The case of IS v R involved a young offender who was charged with aggravated robbery, specifically for the intentional destruction of property during a robbery that was committed in the company of others and while under the influence of methamphetamine, commonly referred to as "ice". The offender, a juvenile at the time of the offence, was sentenced by a primary judge who considered various factors, including the offender's deprived upbringing, his remorse, and his prospects for rehabilitation. The High Court was tasked with determining whether the primary judge had correctly applied the principles relevant to the offender’s background and to the sentencing of juveniles.

The court was required to decide whether the primary judge had appropriately balanced the principle in Bugmy v The Queen, which recognises the disadvantaged backgrounds of Indigenous offenders, with the principles of general deterrence and community protection. Additionally, the court had to assess whether the primary judge had erred in applying these principles, particularly in light of the offender's expressed remorse and potential for rehabilitation.

The court found that the primary judge had erred in applying the principles relevant to the offender's deprived background and the sentencing of juveniles. The High Court emphasised that while the offender's background and remorse were significant, the primary judge had placed undue emphasis on general deterrence and community protection. The court highlighted that the primary judge should have more carefully weighed the offender's background, remorse, and rehabilitation prospects against the need for deterrence and protection. The court concluded that the sentence imposed by the primary judge was too severe given the specific circumstances of the offender's case.

Consequently, the High Court allowed the appeal, quashed the sentence imposed by the primary judge, and remitted the case for re-sentencing. The court stressed the importance of correctly applying sentencing principles in cases involving juveniles and offenders from disadvantaged backgrounds.

Orders