R v AO

Case [2003] NSWCCA 43 4 March 2003

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. AO [2003] NSWCCA 43

FILE NUMBER(S):
No. 60310 of 2002

HEARING DATE(S): Wednesday 19 February 2003

JUDGMENT DATE: 04/03/2003

PARTIES:
REGINA v. AO

JUDGMENT OF: Hulme J Greg James J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3247

LOWER COURT JUDICIAL OFFICER: Sides, DCJ.

COUNSEL:
Crown: D.M. Woodburne
App: M. Thangaraj

SOLICITORS:
Crown: S.E. O'Connor
App: Nyman Gibson Stewart

CATCHWORDS:
Criminal law - child offender - sentence - appeal - multiple armed robberies - fresh evidence to show offender aged 14 not 16, as held by trial judge - ordered to be detained in detention centre - consideration of remitter to trial judge - whether fresh evidence could make any difference - appeal dismissed.

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Young Offenders Act 1997
Justices Act 1902
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

No. 60310 of 2002
HULME, J.
GREG JAMES, J.
SHAW, J.
TUESDAY 4 MARCH 2003

REGINA v. AO

Judgment

HULME, J: I agree with Greg James, J.
GREG JAMES, J: This application for leave to appeal against the severity of sentence is brought by a child, that is to say, by a person defined as a child by the definition provided in s.3 of the Children (Criminal Proceedings) Act 1987, ie., a person aged under the age of 18 years.
The provisions of that Act apply to these proceedings and to the proceedings before the learned sentencing judge.
Division 4 of Part 2 of that Act, by s.16 of the Act, applies to a person against whom a finding of guilt, either on a plea or otherwise, by a court other than the Children's Court has been made who was a child when the offence in question was committed and was under the age of 21 years when charged before the court. By s.18, such a person in respect to such offences as are here charged may be dealt with according to law or in accordance with Division 4 of Part 3 of the Act, in which case the court dealing with such a child may exercise all the functions of the Children's Court.
In the present case, the District Court proceeded to deal with the child pursuant to s.19 of the Act, directing that the whole of the term of sentence of imprisonment imposed upon the child should be served in a detention centre, or until the child turned 21. Subsections 2 and 3 of s.19 provide for limits in certain circumstances on the period of a sentence of imprisonment that may be served in a detention centre until the age of 21 years or until the age of 18 years.
Division 4 of Part 3 of the Act, by s.33, provides penalties which may be imposed upon persons guilty of offences to which that Division applies. The orders that may be made include orders dismissing 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.

Continue reading R v AO

Details

AGLC: R v AO [2003] NSWCCA 43
Case: [2003] NSWCCA 43
Decision Date: 4 March 2003

CaseChat Overview and Summary

In this case, the appellant, AO, was convicted of multiple armed robberies and sentenced to detention in a detention centre. The appeal centred on the contention that the trial judge had incorrectly determined the appellant's age at the time of the offences. The appellant's legal team presented fresh evidence indicating that he was 14 years old, rather than 16 as previously determined. The court was tasked with deciding whether this new evidence warranted a reconsideration of the sentence.

The central legal issue revolved around whether the fresh evidence regarding the appellant's age could have any impact on the sentence imposed. The appellant's counsel argued that if the trial judge had known the correct age, it could have influenced the sentence by potentially leading to a more lenient outcome. The Crown, on the other hand, contended that the fresh evidence did not materially alter the circumstances of the case or the appropriate sentence.

The court meticulously examined the fresh evidence and concluded that the appellant's age at the time of the offences did not significantly affect the severity of the sentence. The judge determined that even if the correct age had been known, the sentence would likely have remained unchanged. Consequently, the court dismissed the appeal, affirming the original sentence imposed by the trial judge. The decision underscored the importance of the circumstances of the offence and the appellant's criminal history in determining an appropriate sentence.

Orders