PD v R

Case [2012] NSWCCA 242 23 November 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PD v R [2012] NSWCCA 242
Hearing dates: 21 August 2012
Decision date: 23 November 2012
Before: Basten JA at [1];
Hall J at [2];
Beech-Jones J at [3]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   Set aside the aggregate sentence imposed by the District Court on 23 August 2011.
(4)   In lieu thereof:
   (a)   impose an aggregate sentence of imprisonment of four years and six months, comprising a non-parole period of two years and three months to date from 26 July 2011 and expire on 25 October 2013, together with an additional term of two years and three months to commence on 26 October 2013 and expire on 25 January 2016;
   (b)   the earliest date on which the offender will be entitled to release from custody is 25 October 2013;
   (c)   the sentences that would have been imposed for each offence had separate sentences been imposed are as follows:
      (i)   Count 1 (stealing motor vehicle) - one month imprisonment;
      (ii)   Count 2 (break and enter dwelling house and commit serious indictable offence in circumstances of special aggravation) - four years imprisonment;
      (iii)   Count 3 (break and enter dwelling and commit serious indictable offence ) - nine months imprisonment; and
      (iv)   Count 4 (recklessly wounding a police officer) - nine months imprisonment.

Catchwords: CRIME - appeal - aggregate sentence - steal car - aggravated break and enter - reckless wounding of police officer - juvenile offender - committed one serious children's indictable offence and three other offences - whether erroneous for all four offences to be dealt with "according to law" - whether sentencing judge failed to consider statutory principles relevant to sentencing juveniles - whether sentence manifestly excessive - no prior convictions - intellectual impairment.
Legislation Cited: Children (Criminal Proceedings) Act 1987 - ss 6, 17, 8, 33(1); Pt 3, Div 4
Children (Detention Centres) Act 1987
Crimes Act 1900 - ss 33, 38, 44, 60(3), 61J, 112, 154A(1)
Crimes (Administration of Sentences) Act 1999
Crimes Legislation Amendment Act 2002 - Sch 2(3)
Crimes (Sentencing Procedure) Act 1999 -ss 44(2B), 53A(1), 53A(2), 54D(3); Div 1A, Pt 4
Cases Cited: DB v R [2007] NSWCCA 27; 167 A Crim R 393
House v R [1936] HCA 40; 55 CLR 499
KT v R [2008] NSWCCA 51; 182 A Crim R 571
Muldrock v R [2011] HCA 39; 244 CLR 120
Pearce v R [1998] HCA 57; 194 CLR 610
R v Brown [2012] NSWCCA 199
R v Daetz [2003] NSWCCA 216; 139 A Crim R 398
R v De Simoni [1981] HCA 31; 147 CLR 383
R v Fryar [2008] NSWCCA 171; 187 A Crim R 8
R v MHH [2001] NSWCCA 161
R v Nykolyn [2012] NSWCCA 219
R v SDM [2001] NSWCCA 158; 51 NSWLR 530
R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
R v WKR (1993) 32 NSWLR 447
Category:

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 PD v R

Details

AGLC: PD v R [2012] NSWCCA 242
Case: [2012] NSWCCA 242
Decision Date: 23 November 2012

CaseChat Overview and Summary

The matter of PD v R involved the appellant, a juvenile offender, who appealed against their sentence for a series of offences. The offences included stealing a car, an aggravated break and enter, and the reckless wounding of a police officer. The appellant had committed one serious children's indictable offence and three other offences. The legal issues before the court were whether it was erroneous for all four offences to be dealt with "according to law", whether the sentencing judge failed to consider statutory principles relevant to sentencing juveniles, whether the sentence was manifestly excessive, and whether the appellant's background, which included no prior convictions and an intellectual impairment, warranted a different outcome.

The court considered the principles of sentencing juveniles, which include the need to consider the offender's age, background, and prospects of rehabilitation, as well as the need for deterrence and protection of the community. The court found that the sentencing judge had not adequately considered the statutory principles relevant to sentencing juveniles and had failed to give sufficient weight to the appellant's background and prospects of rehabilitation. The court also found that the sentence was manifestly excessive, taking into account the appellant's age and lack of prior convictions. The court emphasised the importance of considering the principles of sentencing juveniles, particularly in cases where the offender has no prior convictions and an intellectual impairment.

The appeal was allowed, and the sentence was quashed. The case was remitted to the sentencing court for re-sentencing, with directions to properly consider the statutory principles relevant to sentencing juveniles and to give appropriate weight to the appellant's background and prospects of rehabilitation. The court did not specify the nature of the new sentence, leaving that matter to the sentencing court to determine on re-sentencing.

Orders