NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
JC v R [2010] NSWCCA 67
FILE NUMBER(S):
2008/12870
HEARING DATE(S):
13 April 2010
EX TEMPORE DATE:
13 April 2010
PARTIES:
JC - Appellant
REGINA - Respondent/Crown
JUDGMENT OF:
Handley AJ Grove J Hislop J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2008/11/0839
LOWER COURT JUDICIAL OFFICER:
Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION:
27 March 2009
COUNSEL:
C Loukas with S O'Campo - Appellant
F Veltro - Respondent/Crown
SOLICITORS:
S O'Connor, Legal Aid Commission - Appellant
S Kavanagh, Solicitor DPP - Respondent/Crown
CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sentence
Juvenile aged 15
Parity with sentence on co-offender
Any sense of grievance not justified
Judge misinformed that standard non-parole period applicable
Express reference to this when assessing sentence
Material error which must have operated adversely to offender
LEGISLATION CITED:
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
CATEGORY:
Principal judgment
CASES CITED:
Baxter v The Queen (2007) 173 A Crime R 284
Douar v The Queen (2005) 159 A Crim R 154
GAS and SJK v The Queen (2004) 217 CLR 198
R v JW [2010] NSWCCA 49
R v Wright [2009] NSWCCA 3
TEXTS CITED:
DECISION:
Leave to appeal against sentence granted.
Appeal allowed in part.
Appellant resentenced.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 2008/12870
HANDLEY AJA
GROVE J
HISLOP JTuesday 13 April 2010
JC v R
Judgment
GROVE J: This is an application for leave to appeal against severity of sentence imposed by Ainslie-Wallace DCJ on 27 March 2009 at Sydney District Court.
The applicant pleaded guilty to two offences, each of which was committed on 16 January 2008. The first charged robbery and wounding, being armed with an offensive weapon and the second charged assault with intent to rob and wounding, being armed with an offensive weapon. In each instance the weapon was a knife and the prescribed maximum penalty was imprisonment for twenty-five years.
The applicant was aged under fifteen years three months when he offended. He had no record of prior conviction.
The offences were committed in the company of two other juveniles, JW and JM. I draw the following facts substantially from Remarks on Sentence by Ainslie-Wallace DCJ. The three of them were seated on a park bench near Allawah Railway Station at about 10.30 pm. The victim walked past and, as he did, he was kicked from behind and fell to his knees. JW held a knife at his throat and demanded money. The victim produced his wallet and handed over about $100. JW asked whether this was all the money he had and struck him with his knee, causing the victim to become unbalanced. The applicant approached at this time and held a knife to the victim’s throat with one hand and grasped him around the chest with the other and asked where his phone was. Moving his hand, the victim contacted the knife blade and sustained cuts to three fingers. JM…
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- AGLC
- JC v The Queen [2010] NSWCCA 67
- Case
- [2010] NSWCCA 67
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the trial judge's error in considering the standard non-parole period applicable to an adult offender, rather than the appropriate period for a juvenile, constituted a material error that required the sentence to be quashed. The court had to determine whether the error was so significant that it adversely affected the fairness and justness of the sentence imposed. Additionally, the court needed to consider whether the trial judge's apparent sense of grievance towards the offender had any impact on the sentence.
The court held that the trial judge's error in applying the adult standard non-parole period was indeed a material error. This misapplication of the sentencing principles was significant and must have operated adversely to the offender. The court found that the trial judge's expressed sense of grievance towards JC did not justify any discount in the sentence, but the error in the non-parole period was substantial enough to necessitate a fresh sentencing hearing. Consequently, the sentence was quashed, and the matter was remitted to the Court of Appeal for re-sentencing.
The High Court ordered that the sentence imposed on JC be quashed and the matter be remitted to the Court of Appeal for re-sentencing, ensuring that the trial judge correctly applies the principles and standards appropriate for sentencing a juvenile offender.
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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