JC v The Queen - [2010] NSWCCA 67

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 J
Tuesday 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…

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 JC v The Queen

Details

AGLC: JC v The Queen [2010] NSWCCA 67
Case: [2010] NSWCCA 67
Decision Date: 13 April 2010

CaseChat Overview and Summary

The case before the court was between JC, a juvenile aged 15 at the time of the offence, and the Crown. JC had pleaded guilty to charges of armed robbery. The dispute centred on the appropriate sentence to be imposed, specifically whether the sentence should be in parity with that given to his co-offender, who was also a juvenile. The appeal was heard in the High Court of Australia.

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