COUNSEL: Mr H Dhanji - Applicant MS2 Mr S Corish - Applicant PM Mr M Johnston - Applicant JS Ms J Girdham - Crown
SOLICITORS: K Kyriacou Croke & Co - Applicant MS2 S O'Connor, Solicitor for Legal Aid - Applicant PM Brenda Duchen - Applicant JS S Kavanagh, Solicitor for Public Prosecutions - Crown
CATCHWORDS: SENTENCE APPEAL - effect of immaturity and youth when serious offence involved - weight to be given to planning of offence - parity.
SIMPSON J: The facts and circumstances are adequately stated in the judgment of Hoeben J, which I have had the advantage of reading in draft.
I have reached a different conclusion as to the outcome of these applications.
The objective seriousness of the offence can scarcely be overstated. The applicants effectively lay in wait for a suitable victim; one of them (PM) had taken the precaution of arming himself with a club-lock. He used it with devastating effect. He caused severe and permanent injury. Another (JS) kicked Mr Jansz in the head while he was lying on the ground, presumably unconscious or near to unconsciousness. The offenders then stole his property, including his motor vehicle.
This was a most serious instance of an offence against s96 of the Crimes Act 1900.
None of the three applicants can take refuge, as is so often seen in this Court, in a strong subjective case constituted by a disturbed, dysfunctional, or traumatic childhood and adolescence. Each came from, at least, a positive family background. Each had family support throughout his developmental years. So much is demonstrated by the absence of any previous criminal history, as well as by the various background reports.
It is true, as his Honour observed, that, seen in this light, the offences were inexplicable.
I do not find that any explanation for the offences lies in the youth of the applicants. There simply is no explanation. Their youth is not an excuse. There is no excuse for this conduct.
His Honour was conscious of “clear pre-planning”. That is not necessarily inconsistent with immaturity and his Honour did not suggest otherwise. He did reject the notion that the offences might be regarded “as the product of an immature and impetuous act”. I agree. I do not read that sentence, extracted from the…
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.
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Details
AGLC
MS2 v The Queen [2005] NSWCCA 397
Case
[2005] NSWCCA 397
Decision Date
CaseChat Overview and Summary
The applicants, MS2 and JS, have applied for leave to appeal against the severity of their sentences, which were imposed following their involvement in an aggravated assault and theft. The victims of this attack, Mr Jansz, suffered serious injuries, including multiple head wounds and unconsciousness, while his briefcase and personal items were stolen. TN, a co-offender, has not filed any application for leave to appeal. The court was required to determine the appropriate weight to be given to the factors of immaturity and youth, particularly given the premeditated nature of the offence. The appeal also raised the issue of parity in sentencing between the applicants and their co-offenders.
The court considered the mitigating factors of the applicants' youth and immaturity, recognising that these are significant in determining the severity of sentences for young offenders. However, the court also emphasised the seriousness of the premeditated attack, which involved significant planning and resulted in severe injuries to the victim. The court balanced these factors, ultimately finding that the sentences imposed were appropriate given the circumstances. The court held that while youth and immaturity are important considerations, they must be weighed against the gravity of the offence and the need for deterrence and denunciation. The appeal was dismissed, affirming the sentences imposed by the trial court.
Orders
Orders of the court
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Background
Background to the litigation
The applicants seek leave to appeal from the severity of the sentences imposed. TN has not filed any application for leave to appeal. The applicants MS2 and JS are still under the age of 18. Background to offences His Honour dealt with the factual background to the offences at ROS 2-4. His Honour’s review of the facts is accepted by all three applicants. At about 6.25 pm on Monday 30 June 2003 the offenders, together with another person, boarded a train at Liverpool railway station and travelled to Warwick Farm railway station. The five persons got off the train at that station and walked to the car park which adjoins the station. They went to the southern end of the car park, concealed themselves and waited. At about 6.40 pm the victim, Mr Jansz, who was 50 years of age got off a train at Warwick Farm station. He was on his way home from work and was carrying his brief case. He had left his car in the car park. The victim when he reached his vehicle, a 1990 Nissan Pintara, unlocked the driver’s door. As the victim was unlocking the door PM, who was armed with a metal steering wheel lock, ran out and struck him to the head causing him to fall unconscious. In his statement PM could only recollect striking the victim once. The other offenders stated in their ERISP accounts that they saw PM strike the victim a number of times with the steering lock. In that regard it should be noted that none of the offenders undertook to give evidence against one or other of his co-offenders and accordingly his Honour only had regard to admissions made by each offender in relation to his own actions. After the victim had fallen unconscious to the ground JS then kicked him in the head whilst he was lying on the ground. MS stole the victim’s brief case which contained personal documents and a mobile phone. As the victim fell to the ground, he dropped the keys to his motor vehicle. PM removed the victim’s wallet containing $10 from his back pocket, picked up the car keys and entered the driver’s seat of the vehicle. JS and TN entered the vehicle. PM, JS and TN then drove from the car park in the vehicle. MS2 ran from the scene in the direction of the Hume Highway taking with him the victim’s brief case and personal items. MS2 subsequently rejoined the other applicants at Cabramatta and travelled as a passenger in the stolen vehicle. The victim was left in an unconscious state, bleeding profusely from a number of wounds to the head and face. His false teeth plate had been knocked from his mouth and he was lying face down in a pool of his own blood. A Mr Harrison saw legs protruding from behind a parked car as he was parking his vehicle in the car park. He tried to provide assistance to the victim and immediately called for medical help. State Rail CCTV footage showed the offenders catching a train from Liverpool and alighting at Warwick Farm Station. At about 9 pm on 3 July 2003 the police apprehended PM, JS and TN. MS2 subsequently attended Liverpool Police Station with his mother on 30 July 2003 and was arrested.Injuries to victim