R v YS

Case [2014] NSWCCA 226 23 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v YS [2014] NSWCCA 226
Hearing dates: 18/07/2014
Decision date: 23 October 2014
Before: Gleeson JA at [1];
Fullerton J at [2];
McCallum J at [114]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against inadequacy of sentence - serious children's indictable offence - objective seriousness of offending - protection of community and general deterrence - whether the sentencing judge erred in structuring the non-parole period to ensure total non-parole period would be served in a Juvenile Justice facility
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Children (Detention Centres) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes Amendment (Sexual Offences) Act 2008 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: BP v R [2010] NSWCCA 159; 201 A Crim R 379
Bugmy v R [2013] HCA 37; 249 CLR 571; 229 A Crim R 337
CM v R [2008] NSWCCA 195; 187 A Crim R 197
Dinsdale v R [2000] HCA 54; 202 CLR 321
Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520; 204 A Crim R 434
IE v R [2008] NSWCCA 70; 183 A Crim R 150
JM v R [2012] NSWCCA 83; 223 A Crim R 55
JT v R [2011] NSWCCA 128
KT v R [2008] NSWCCA 51; 182 A Crim R 571
MJ v R [2010] NSWCCA 52
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254
R v AEM (Snr), KEM, MM [2002] NSWCCA 58
R v Brooks [2006] NSWCCA 169
R v Fernando (1992) 76 A Crim R 58
R v Ly [2014] NSWCCA 78
R v Voss [2003] NSWCCA 182
TG v R [2010] NSWCCA 28
Veen v R (No 2) [1988] HCA 14; 164 CLR 465; 33 A Crim R 230
Category: Principal judgment
Parties: The Crown (Applicant)
YS (Respondent)
Representation: Counsel:
S Dowling SC (Crown)
B Rigg (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Aboriginal Legal Service (Respondent)

File Number(s): 2012/66487
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-12-19 00:00:00

Before:

McLoughlin SC DCJ

File Number(s):

2012/66487

Judgment

GLEESON JA: I agree with Fullerton J.

FULLERTON J: On 9 August 2012 the respondent pleaded guilty in the Children's Court to six offences, each of which was committed in the early hours of 28 February 2012. He was arrested later that morning. Bail was refused. He was aged 15 years and 10 months at the time of the offending.

On 19 December 2013, at which time he was aged 17 years and 6 months, he was sentenced in the District Court.

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 YS

Details

AGLC: R v YS [2014] NSWCCA 226
Case: [2014] NSWCCA 226
Decision Date: 23 October 2014

CaseChat Overview and Summary

In the case of R v YS, the appellant, YS, was convicted for a serious indictable offence involving children. YS was sentenced to a term of imprisonment with a specified non-parole period, which was structured such that the entire non-parole period would be served in a Juvenile Justice facility. YS appealed the adequacy of the sentence, arguing that the non-parole period was insufficient given the objective seriousness of the offence. The appeal was heard in the NSW Court of Criminal Appeal.

The primary legal issue before the court was whether the sentencing judge had erred in determining the non-parole period, specifically by ensuring that the entire non-parole period would be served within a Juvenile Justice facility. The court needed to assess whether the sentence appropriately balanced the objectives of denunciation, deterrence, rehabilitation, and protection of the community, particularly considering the gravity of the offence committed against children.

In delivering the judgment, the Court of Criminal Appeal considered the principles of sentencing as outlined in relevant case law. It was noted that the sentencing judge had carefully considered the factors relevant to the case, including the objective seriousness of the offence, the culpability of YS, and the need to protect the community. The court concluded that the sentencing judge had not erred in structuring the non-parole period to be served within a Juvenile Justice facility. The reasoning emphasised the importance of rehabilitation and protection of the community, particularly given the appellant's age and the nature of the offence. The appeal was subsequently dismissed.

The final orders of the court were that the appeal was dismissed and the original sentence imposed by the sentencing judge was upheld. The non-parole period, as determined by the sentencing judge, was considered appropriate given the circumstances of the case.

Orders