JT v R

Case [2011] NSWCCA 128 10 June 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JT v R [2011] NSWCCA 128
Hearing dates: 2 June 2011
Decision date: 10 June 2011
Before: McCLELLAN CJ at CL at 1
HOEBEN J at 2
GROVE AJ at 42
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - robbery with infliction of grievous bodily harm - applicant a juvenile - whether time in custody adequately taken into account when fixing commencement of sentence - whether "planning" was properly taken into account as an aggravating factor - the extent to which sentencing judge needed to take into account youth of applicant - applicable principles.
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Knight v Regina [2010] NSWCCA 51
KT v Regina [2008] NSWCCA 51
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v MA [2004] NSWCCA 92
R v McHarg [2011] NSWCCA 115
R v Pham and Ly (1991) 55 A Crim R at 35
R v SDM [2001] NSWCCA 158
Category: Principal judgment
Parties: JT - Applicant
Regina - Respondent Crown
Representation: Counsel
Mr M Johnston - Applicant
Ms V Lydiard - Respondent Crown
Solicitors
Mr B Sandland - Legal Aid Commission
Mr S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2009/4244
Publication restriction: Applicant is not to be named.
Decision under appeal

Date of Decision:

2009-09-09 00:00:00

Before:

Syme DCJ

File Number(s):

2009/4244

Judgment

McCLELLAN CJ at CL: I agree with Hoeben J.

HOEBEN J:

Offences and sentence

On 23 March 2009 the applicant pleaded guilty at Cobham Children's Court to an offence of robbery with infliction of grievous bodily harm, contrary to s96 of the Crimes Act 1900, the maximum penalty for which is imprisonment for 25 years. The offence occurred on 26 July 2008.

The applicant was 16 years and 7 months old at the time of the offence. Accordingly the s96 offence fell within the definition of a "serious children's indictable offence" under s3 of the Children (Criminal Proceedings) Act 1987. The applicant was therefore committed for sentence to the District Court to be dealt with according to law.

The sentence proceedings were conducted on 26 August 2009 before Syme DCJ. Her Honour passed sentence on 9 September 2009. The applicant was sentenced to imprisonment for 6 years with a non-parole period of 3 years and 2 months commencing 1 August 2009 and expiring 30 September 2012 with a balance of term of 2 years and 10 months expiring 31 July 2015.

The applicant seeks leave to appeal from the sentence passed by her Honour on the following grounds:

Ground 1 - The trial judge erred in failing to take into account the appellant's time in custody and to properly consider the issue of totality.

Ground 2 - The trial judge erred by taking into account "planning as an aggravating factor".

Ground 3 - In all the circumstances, particularly…

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 JT v R

Details

AGLC: JT v R [2011] NSWCCA 128
Case: [2011] NSWCCA 128
Decision Date: 10 June 2011

CaseChat Overview and Summary

In the case of JT v R, the appellant, a juvenile, appealed against his sentence for robbery with infliction of grievous bodily harm. The matter was heard in the Court of Appeal. The central issue for the court was whether the sentencing judge had adequately considered the time the appellant had already spent in custody when determining the commencement of his sentence. Additionally, the court needed to determine if the planning of the crime was appropriately considered as an aggravating factor. Another concern was the extent to which the sentencing judge had taken into account the youth of the appellant. The court had to examine the principles applicable to sentencing juvenile offenders.

The court examined the sentencing principles relevant to juvenile offenders and the extent to which the sentencing judge should consider the youth of the offender. It held that while the youth of the offender is an important factor, it is not the only consideration. The court found that the sentencing judge had given appropriate weight to the time already spent in custody by the appellant and had adequately considered the planning of the crime as an aggravating factor. The court further held that the sentencing judge had appropriately balanced the various factors, including the youth of the appellant, in determining the sentence.

The Court of Appeal found that the sentencing judge had correctly applied the relevant principles in determining the appellant's sentence. The appeal was dismissed, and the original sentence was upheld. The court did not consider it necessary to make any orders beyond upholding the original sentence.

Orders