SB v The Queen - [2015] NSWCCA 31

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SB v R [2015] NSWCCA 31
Hearing dates: 20 February 2015
Decision date: 09 March 2015
Before: Hoeben CJ at CL at [1];
R A Hulme J at [2];
Davies J at [70]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence –take and detain child – reckless wounding – where offender under 18 at time of offences – where offender suffers from mild intellectual disability – offender dealt with according to law - proper regard had to offender’s mental condition – sentence not manifestly excessive – no error in reference to standard non-parole period
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Category: Principal judgment
Parties: SB (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr D Barrow (Applicant)
Ms N Williams (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2013/154394
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

21 February 2014

Before:

Wells SC DCJ

File Number(s):

2013/154394

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
R A HULME J: SB (“the applicant”), who is a juvenile who cannot be identified because of the provisions of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), applies for leave to appeal in respect of sentences imposed upon him by her Honour Judge Wells SC in the District Court at Lismore on 21 February 2014.
The applicant pleaded guilty in the Local Court and was committed to the District Court for sentence in respect of an offence of take and detain child with the intention of removing and keeping the child from the lawful control of her parent, contrary to s 87(1) of the Crimes Act 1900 (NSW), and reckless wounding, contrary to s 35(4) of that Act. The maximum penalties for these offences are imprisonment for 10 years and 7 years respectively.
In sentencing the applicant for the first of these offences her Honour took into account, at the applicant’s request, six further offences listed on a Form 1 document. They were offences of assault and armed with intent to commit an indictable offence committed on 26 April 2013, and offences that were associated with the primary offence, namely armed with intent to commit an indictable offence, face blackened/disguised with intent to commit indictable offence, larceny and assault occasioning actual bodily harm committed on 17 May 2013.
The learned judge imposed a sentence of imprisonment for 3 years 9 months with a non-parole period of 2 years for the take and detain child offence and imprisonment for 1 year 6 months for the reckless wounding offence. Both sentences were specified to commence on 17 May 2013, the day of the applicant’s…

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 SB v The Queen

Details

AGLC: SB v The Queen [2015] NSWCCA 31
Case: [2015] NSWCCA 31
Decision Date: 09 March 2015

CaseChat Overview and Summary

In the case of SB v The Queen, the appellant was convicted of taking and detaining a child and recklessly wounding another person. The appellant, who was under 18 at the time of the offences and suffers from a mild intellectual disability, appealed against his sentence. The appeal was heard in the High Court of Australia. The primary issue for the court was whether the sentence imposed on the appellant was manifestly excessive and whether the trial judge had failed to have proper regard to the appellant's mental condition.

The court found that the trial judge had properly considered the appellant's mental condition and age at the time of the offences. The trial judge had also taken into account the seriousness of the offences and the need to deter the appellant and others from committing similar crimes. The court held that the sentence imposed on the appellant was not manifestly excessive and that there was no error in the reference to the standard non-parole period. The court further found that the appellant had been dealt with according to the law and that proper regard had been had to his mental condition.

The appeal was therefore dismissed. The court held that the sentence imposed on the appellant was appropriate and that there was no error in the trial judge's approach to sentencing. The court emphasised the importance of considering the offender's mental condition and age at the time of the offences when imposing a sentence. The court also noted that the sentence imposed on the appellant was not manifestly excessive and that there was no error in the reference to the standard non-parole period.

Orders