OK v R

Case [2016] NSWCCA 318 23 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: OK v R [2016] NSWCCA 318
Hearing dates: 28 November 2016
Date of orders: 23 December 2016
Decision date: 23 December 2016
Before: Hoeben CJ at CL at [1]
Adams J at [4]
R A Hulme J at [37]
Decision:
1. Leave to appeal granted.
2. Appeal against sentence dismissed.

Catchwords: Sentence – juvenile offender – multiple offences – armed robbery in company – approach to sentencing youthful offenders – cognitive impairment – emotional immaturity – prospects of rehabilitation – whether sentence manifestly excessive.
Legislation Cited: s6, Children (Criminal Proceedings) Act 1987
ss 97(1), 97(2), 188, Crimes Act 1900 (NSW)
s44, Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; HCA 37 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
KT v R (2008) 182 A Crim R 571; NSWCCA 51 Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen (2006) 228 CLR 357; HCA 25
Muldrock v R (2011) 244 CLR 120; HCA 39
R v Ahmed [2007] NSWCCA 151
R v Franks [2005] NSWCCA 196
R v Henry (1997) 46 NSWLR 346; NSWCCA 111
R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v SDM (2001) 51 NSWLR 530; NSWCCA 158
Category: Principal judgment
Parties: OK (Applicant)
Regina (Respondent)
Representation:
Counsel:
I Davidson SC (Applicant)
M Cinque SC (Respondent)
Solicitors:
Macquarie Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/388505
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

3 July 2015

Before:

Culver DCJ

File Number(s):

2014/00002164 2013/00388505

Judgment

HOEBEN CJ at CL:

I have read the comprehensive judgment of Adams J and I gratefully adopt his Honour’s summary of the facts and analysis of the evidence which was before the sentencing judge. I agree with his Honour that Grounds of Appeal 1, 2 and 3 should be dismissed.

Regrettably I cannot agree with his Honour’s conclusion in relation to Ground 4. The matters relied upon by his Honour in respect of that ground were all matters taken into account by the sentencing judge and appropriately evaluated. With all due respect to the analysis of his Honour, it does not reveal error on the part of the sentencing judge. It goes no further than to demonstrate that were his Honour sentencing the applicant, he would have imposed a lesser sentence. That is not a proper basis for interfering with the aggregate sentence imposed by the sentencing judge. This is particularly so given the seriousness of the offending and the important guidepost provided by the maximum sentences specified by the legislature for each offence. It follows that Ground of Appeal 4 has not been made out.
I also adopt the reasons of R A Hulme J and I agree with the orders which he proposes.
ADAMS J:

Introduction

On 3 July…

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 OK v R

Details

AGLC: Ok v The Queen [2016] NSWCCA 318
Case: [2016] NSWCCA 318
Decision Date: 23 December 2016

CaseChat Overview and Summary

The case of OK v R involved a young offender who had committed multiple offences, including armed robbery while in the company of others. The court was tasked with determining an appropriate sentence for the juvenile offender, taking into account factors such as cognitive impairment, emotional immaturity, and prospects of rehabilitation. The decision was made in the High Court of Australia.

The primary legal issues the court needed to address were the appropriate approach to sentencing juvenile offenders and whether the sentence imposed was manifestly excessive. The court had to balance the need for punishment and deterrence with the offender's age, cognitive abilities, and potential for rehabilitation. Additionally, the court considered whether the sentence imposed was disproportionately severe, given the offender's young age and circumstances.

The High Court found that the sentencing judge had appropriately considered the factors relevant to sentencing juvenile offenders. The court held that the sentence was not manifestly excessive, as it had taken into account the offender's age, cognitive impairment, emotional immaturity, and prospects of rehabilitation. The court also noted that the sentence was proportionate to the seriousness of the offences committed. In reaching this conclusion, the court emphasised the importance of tailoring sentences to the individual circumstances of the offender and considering their potential for rehabilitation.

As a result of the High Court's decision, the sentence imposed on the juvenile offender was upheld. The court did not order any specific action or remedy beyond the affirmation of the sentence, as it found that the sentence was appropriate and not manifestly excessive. The decision serves as a reminder of the importance of considering the unique circumstances of juvenile offenders when determining an appropriate sentence.

Orders