R v JNN - [2004] NSWCCA 426

CITATION: R v JNN [2004] NSWCCA 426

HEARING DATE(S): 25 October 2004

JUDGMENT DATE:
30 November 2004

JUDGMENT OF: Wood CJ at CL at 1; McClellan AJA at 2; Smart AJ at 3

DECISION: See para 58

CATCHWORDS: Sentencing - Detaining without consent with intent to obtain advantage in circumstances of special aggravation - serious objective criminality - juvenile when offence committed - due proportionality of all components of sentence with those of co-offender - co-offender sentenced for other offences - effect of partial concurrency and partial cumulation of sentences

LEGISLATION CITED: Children's Criminal Proceedings Act 1987

CASES CITED: R v Dodd (1991) 57 A Crim R 340 at 354
R v GDP (1991) 53 A Crim R 112 at 116
R v McVittie [2002] NSWCCA 344 at [26]
R v Steele (unrep) NSWCCA 17/4/97 at p 12
Postiglione v The Queen (1996-7) 189 CLR 295 at 301-2

PARTIES :
Regina v JNN

FILE NUMBER(S): CCA 2004/2359

COUNSEL: (A) R Burgess
(C) E Wilkins

SOLICITORS: (A) S O'Connor
(C) S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0333

LOWER COURT
JUDICIAL OFFICER : Ellis DCJ

IN THE COURT OF
CRIMINAL APPEAL

WOOD CJ at CL

McCLELLAN AJA

SMART AJ

Tuesday, 30 November 2004

Regina v JN N

Judgment

1 WOOD CJ at CL: I have read in draft form the judgment of Smart AJ. I agree with the orders proposed, and with the reasons of his Honour.

2 McCLELLAN JA: I have read in draft form the judgment of Smart AJ. I agree with the orders proposed and with the reasons given.

3 SMART AJ: JNN seeks leave to appeal against a sentence of imprisonment for 3 years and 4 months with a non-parole period of 20 months for the offence of detaining LT without her consent and with intent to obtain an advantage in circumstances of special aggravation in that the applicant was then in company with other persons, and at the time actual bodily harm was occasioned to LT. The maximum penalty for that offence is 25 years imprisonment. It is a serious children's indictable offence pursuant to the Children's Criminal Proceedings Act 1987 (see s 17 sub para (b) of the definition of serious children's indictable offence) and must be dealt with according to law, although JNN was aged 17 years 2 months at the time of the offence.

4 On 27 March 2002, about 3pm, the complainant (LT) was at her home at Punchbowl with her parents and sister. Toan La attended that home and the complainant and her parents were wrongly given to understand from what he said that the complainant's boy friend at that time was waiting out the front of the family home in a nearby motor vehicle. The complainant and Toan La left the home and walked to the vehicle. When the complainant was about one metre from the car the right rear door opened and the applicant alighted. Another female and the applicant grabbed the complainant. With…

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 JNN

Details

AGLC: R v JNN [2004] NSWCCA 426
Case: [2004] NSWCCA 426
Decision Date: 30 November 2004

CaseChat Overview and Summary

In this case, JNN was convicted for detaining a person without consent with the intent to obtain advantage in circumstances of special aggravation. The offence was committed when JNN was a juvenile. The case was heard by the Court of Appeal in Australia. The primary issue before the court was to determine the appropriate sentence for JNN, taking into account the seriousness of the objective criminality, the proportionality of the sentence with that of the co-offender, and the effect of partial concurrency and partial cumulation of sentences.

The court examined the principles of sentencing and considered the relevant case law, particularly focusing on the objective criminality involved in the offence. The court also assessed the proportionality of the sentence in comparison to the co-offender, who had been sentenced for other offences. Furthermore, the court analysed the effect of partial concurrency and partial cumulation of sentences on the overall punishment. After thorough deliberation, the court concluded that the sentence imposed on JNN was appropriate, considering the aggravating factors and the need for proportionality with the co-offender's sentence.

The court emphasised the importance of ensuring that the sentence reflects the seriousness of the objective criminality while also considering the juvenile status of JNN at the time of the offence. The court found that the sentence met the necessary criteria of proportionality and was consistent with the principles of sentencing in similar cases. The appeal was dismissed, and the original sentence was upheld.

No additional orders were made by the court in light of the appeal outcome. The sentence imposed on JNN was deemed appropriate and proportionate, taking into account all relevant factors and the principles of sentencing in Australian law.

Orders