R v W, J - [2010] SASC 203

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, J
[2010] SASC 203
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)
1 July 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
Appeal against sentence - defendant youth pleaded guilty to a number of offences committed in company of two other youths and an adult offender - two other youths successfully appealed against the sentences imposed - this Court held that in the circumstances their sentences were manifestly excessive - whether sentence of defendant manifestly excessive - whether justice of the case required reduction of defendant's sentence having regard to approach of Court when reducing the sentences of the other two youths.
Held: appeal allowed - appropriate to resentence defendant - new sentence imposed reflecting a similar reduction to that made in respect of the sentences imposed on other two youths.
Young Offenders Act 1993 (SA), referred to.
R v L-A, T & R v A, SA [2010] SASC 91, considered.

R v W, J
[2010] SASC 203
Court of Criminal Appeal Nyland, Gray and Vanstone JJ
NYLAND and GRAY JJ.

This is an appeal against sentence.
On the night of 6 and 7 December 2007, J, the appellant, together with two other youths, T and S, and an adult, committed a series of offences. J was aged 15 years and one month; T, 16 years and two months; S, 14 years and almost 11 months, and the adult was aged 24 years.
J pleaded guilty to 10 offences – two counts of aggravated robbery, one count of attempted aggravated robbery, one count of aggravated serious criminal trespass, two counts of aggravated threatening harm, two counts of theft and two counts of damaging property.[1] Each offence was serious.
[1] The maximum penalties for these offences are as follows:
•Aggravated robbery – life imprisonment pursuant to section 137(1) of the Criminal Law Consolidation Act 1935 (SA).
•Attempted aggravated robbery – imprisonment for 12 years pursuant to sections 137(1) and 270A Criminal Law Consolidation Act1935 (SA).
•Aggravated serious criminal trespass in a non-residential premises – imprisonment for 20 years pursuant to section 169(1) Criminal Law Consolidation Act 1935 (SA).
•Aggravated threatening life – imprisonment for 12 years pursuant to section 19(1) Criminal Law Consolidation Act 1935 (SA).
•Aggravated threatening harm – imprisonment for seven years pursuant to section 19(2) Criminal Law Consolidation Act 1935 (SA).
•Theft – imprisonment for 10 years pursuant to section 134(1) Criminal Law Consolidation Act 1935 (SA).
•Damaging property – imprisonment for two years for damage less than $2,500 and imprisonment for three years for damage between $2,500 and $30,000 pursuant to section 85(3) Criminal Law Consolidation Act 1935 (SA) (as it then stood).
J was sentenced as an adult with respect to all offending to the one term of imprisonment of seven years. A non-parole period of three years and six months was fixed. Both the sentence and non-parole period commenced on 19 February 2008, the date on which J was taken into custody.
T was sentenced as an adult in respect of 17 offences committed on the night of 6 and 7 December 2007, to the one term of imprisonment of 9 years. A non-parole period of four years and six months was fixed. S was sentenced as an adult in respect of 15 offences to the one term of imprisonment of seven years and six months. A non-parole period of three years and nine months was fixed.
Both T and S appealed to this Court against the sentences imposed. Both appeals were allowed by majority. T and S were resentenced: T to a term of imprisonment of six years with a non-parole period being fixed at three years; S to a term of imprisonment of five years with a non-parole period being fixed at two years and six months. This Court delivered its reasons on 7 April 2010.[2]
[2] R v L-A, T & R v A, SA [2010] SASC 91.
The detailed factual background of J’s offending occurring on the night of 6 and 7 December 2007 is adequately set out in our reasons with respect to the appeals of T and S.
In the course of our reasons we considered that the sentencing Judge did not have adequate regard to the objects and the statutory policies provided by the Young Offenders Act 1993 (SA) and further, in the circumstances, the sentences imposed were manifestly excessive. We will not repeat our detailed reasons as they are separately recorded in that decision.[3]
[3] R v L-A, T & R v A, SA [2010] SASC 91.
When sentencing the Judge remarked with respect to J:
[J], you were 15 years and 1 month at the time and you are now 17 years and 1 month.
You have a number of previous convictions and appearances in the Youth Court for offences of unlawfully on premises and illegal use of motor vehicles. Some two-and-a-half months before the commission of these offences you were convicted in that court of a number of offences including illegal use. You were placed on a bond. It was the second time you had been placed on a bond in 12 months. Like [T] you treated the conditions of your bond with contempt.
You were unemployed and you were abusing cannabis and alcohol in the lead-up to these offences. You were under the influence of both on the night in question, you were in the company of your peers and you have little recollection of what happened.
You too have done well since you have been on remand. You have developed a commendable interest in reading. You are involved in an education program, you are determined to make the most of your opportunities, you have the support of your mother and your sister and the recent deaths of two young men who you knew have served as a wake-up call and your prospects appear to be good. However, your case manager reports that you appear to have only a basic understanding of what she describes as victim awareness. She also reports that although you know that what you did was stupid your attitude is more to do with the fact that you are in custody. Finally, she reports that she doubts that your offending pattern will change unless you take responsibility for your actions and change your lifestyle and your associates.
On the hearing of the appeal, counsel for J submitted that the Judge was required to have account of the Young Offenders Act and the provisions relating to the objects of that Act. It was said that the Judge failed to have adequate regard to those matters and fell into the same error of approach as when sentencing T and S. Counsel relied on our earlier decision with respect to their appeal. It was further argued that in any event, having regard to the age of J at the time of the offending, the sentence was manifestly excessive. Finally, it was submitted that the justice of the case required the sentence to be reduced when regard was had to the approach taken by this Court when allowing the sentence appeals of T and S.
The Director accepted that having regard to the finding of the sentencing Judge that J had committed less offences then T and S and as a consequence he should receive a lesser sentence than T and S, it was appropriate for this Court to reconsider the sentence imposed on J in the light of the reduced sentences imposed on T and S by this Court. This was an appropriate concession. The Director however emphasised the serious nature of J’s offending and J’s failure to take advantage of leniency in the past in relation to prior offending.
In our view this sentence appeal should be allowed. It is appropriate that J be resentenced to the one term of imprisonment with respect to all offending, of four years and eight months. A non-parole period of two years and four months should be fixed. Both the sentence of imprisonment and the non-parole period should commence on 19 February 2008. This sentence reflects a similar reduction to that made in respect of the sentences imposed on T and S.
VANSTONE J.
Having regard to this Court’s decision by majority in R v L-A, T & R v A, SA [2010] SASC 91, I acquiesce in the orders proposed by Nyland and Gray JJ.