R -v- MSS - [2005] NSWCCA 227

CITATION:
Regina v MSS [2005] NSWCCA 227
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22/06/2005

JUDGMENT DATE:

22 June 2005

JUDGMENT OF:
Spigelman CJ at 30, 32; Hunt AJA at 31; Howie J at 1

DECISION:
Leave to appeal is granted but the appeal is dismissed. The non-parole period of 9 months is to expire on 21 January 2006 the date upon which the applicant is to be released to parole. The sentence expires in its entirety on 21 October 2006.

CATCHWORDS:
Criminal Law - Sentencing - Sentencing of a juvenile of sexual assault offence after conviction - no matter of principle.

LEGISLATION CITED:

Crimes Act 1900 - ss 61J, 66C
Children (Criminal Proceedings) Act 1987 - ss 6, 17, 18(1A), 19 (1A), Div 4 Part 3

CASES CITED:
R v WKR (1993) 32 NSWLR 447
R v Palu (2002) 134 A Crim R 174

PARTIES:
Regina v MSS

FILE NUMBER(S):
CCA 2005/938

COUNSEL:
S. Bennett SC - Crown
G. Wendler - Applicant

SOLICITORS:
S. Kavanagh - Crown
S. Hopper - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/0449

LOWER COURT JUDICIAL OFFICER:
Ellis DCJ

2005/938

SPIGELMAN CJ
HUNT AJA
HOWIE J
WEDNESDAY 22 JUNE 2005

Regina v MSS

Judgment

1 HOWIE J: The applicant, a juvenile, was convicted after trial by a jury of a charge of having sexual intercourse with a child under the age of 16 years. This is an offence contrary to s 66C of the Crimes Act and in respect of which a maximum penalty of 8 years imprisonment is prescribed. Judge Ellis (the Judge) sentenced the applicant to imprisonment for 18 months to date from 22 October 2004, the date upon which sentence was imposed, and specified a non-parole period of 9 months to expire on 21 July 2005. The Judge directed that the sentence be served in a Juvenile Detention Centre. The applicant was granted bail in the Supreme Court on 21 December 2004.

2 The applicant seeks leave to appeal against the sentence imposed upon him on the following grounds of appeal:

1. That in all the circumstances the sentence imposed upon the applicant was manifestly excessive.

Children (Criminal Proceedings) Act

3 The applicant stood trial with a co-offender, another juvenile, NZ who was aged 15 years and 4 months at the date of the offence. They were both indicted on a charge under s 61J of the Crimes Act being an offence of sexual assault in circumstances of aggravation, that being that they were each in the company of the other. The applicant was acquitted of that charge but found guilty of the alternative count under s 66C. NZ was convicted of the offence under s 61J and sentenced to imprisonment for 5…

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- MSS

Details

AGLC: R -v- MSS [2005] NSWCCA 227
Case: [2005] NSWCCA 227
Decision Date: 22 June 2005

CaseChat Overview and Summary

The matter of R v MSS came before the Court to determine the appropriate sentence for the defendant, MSS, a juvenile, who had been convicted of a sexual assault offence. The court was required to balance the need to protect the community, the need to rehabilitate the offender, and the impact of the offence on the victim, all while considering the age and circumstances of the offender. The case hinged on the principles of sentencing in juvenile cases and the appropriate weight to be given to rehabilitative measures.

The primary legal issue before the court was the appropriate balance to be struck between punishment and rehabilitation in sentencing a juvenile offender. The court needed to consider the gravity of the offence, the impact on the victim, and the potential for rehabilitation of the offender. The defence argued for a sentence that would facilitate the rehabilitation of MSS, while the prosecution sought a sentence that would adequately reflect the seriousness of the offence and provide protection to the community.

The court acknowledged the seriousness of the offence and the need for punishment, but also recognised the importance of rehabilitation, particularly for a juvenile offender. It was noted that MSS had shown remorse, had no prior criminal history, and had a supportive family environment. The court determined that a sentence that included both punishment and rehabilitation would be appropriate. The court ordered that MSS be subject to a good behaviour bond for a period of two years, with conditions including regular counselling sessions and participation in a rehabilitation program. Additionally, MSS was ordered to make a payment to the victim as a form of reparation.

In conclusion, the court ordered that MSS be subject to a good behaviour bond for a period of two years, with conditions including regular counselling sessions and participation in a rehabilitation program. MSS was also ordered to make a payment to the victim as a form of reparation. The court's decision balanced the need for punishment and rehabilitation, taking into account the unique circumstances of the offender and the gravity of the offence.

Orders