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Ss v R; JC v R

Ss v R; JC v R

Case [2009] NSWCCA 114 23 April 2009

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New South Wales
Court of Criminal Appeal

CITATION: SS v R; JC v R [2009] NSWCCA 114

HEARING DATE(S): 12 December 2008

JUDGMENT DATE:
23 April 2009

JUDGMENT OF: Tobias JA at 1; James J at 2; Price J at 3

DECISION: In the matter of SS v R (1) Leave to appeal be granted. (2) Quash the sentences imposed in the District Court on 27 July 2007 in respect of charges 4 and 5 being offences of robbery with wounding contrary to s 98(1) of the Crimes Act. (3) The applicant SS in respect of charge 4 is convicted and sentenced to imprisonment consisting of a non-parole period of 3 years 8 months commencing on 28 December 2005 and expiring on 27 August 2009 with a balance of term of 2 years 4 months commencing on 28 August 2009 and expiring on 27 December 2011. (4) The applicant SS in respect of charge 5 (including the offences on the Form 1) is convicted and sentenced to imprisonment consisting of a non-parole period of 3 years 8 months commencing on 28 December 2006 and expiring on 27 August 2010 with a balance of term of 2 years 4 months commencing on 28 August 2010 and expiring on 27 December 2012. (5) The sentences imposed in the District Court on 27 July 2007 in respect of charges 1, 2 and 3 are confirmed. (6) Confirm the Judge's order that the whole of the sentences be served as a juvenile offender. The earliest date on which the applicant SS will be eligible for release to parole is 27 August 2010. In the matter of JC v R (1) Leave to appeal be granted. (2) Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - SENTENCING - juvenile co-offenders - parity - principle of totality - special circumstances - relevance of principles applicable in the sentencing of children - consideration of difference in chronological ages of co-offenders - duress - whether offence planned - drug addiction as a matter of mitigation

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 s 3, s 6, s 19
Crimes Act 1900 s 97(1), s 98(1), s 154A(1)(a), s 195(b)
Crimes (Sentencing Procedure) Act 1999 s 21A(2)(i), s 21A(2)(n), s 21A(3)(d), s 21A(3)(f), s 44(2)
Criminal Appeal Act 1912 s 6(3)

CATEGORY: Principal judgment

CASES CITED: DB v The Queen (2006) 167 A Crim R 393
DPP v Cornwall [2007] NSWCCA 359
House v The King (1936) 55 CLR 400
Legge v R [2007] NSWCCA 244
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v AD [2005] NSWCCA 208
R v AEM [2002] NSWCCA 58
R v Bus (Court of Criminal Appeal, 3 November 1995, unreported)
R v C, S and T (Court of Criminal Appeal, 12 October 1989, unreported)
R v Close (1993) 31 NSWLR 743
R v GDP (1991) 53 A Crim R 112
R v Henry (1999) 46 NSWLR 346
R v Hewitt [2007] NSWCCA 355
R v Janceski [2005]…

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 Ss v R; JC v R

Details

AGLC: Ss v R; JC v R [2009] NSWCCA 114
Case: [2009] NSWCCA 114
Decision Date: 23 April 2009

CaseChat Overview and Summary

In the High Court, the Crown appealed against the sentences imposed on two juvenile co-offenders, Ss and JC, who had been convicted of a violent crime. The primary issue was whether the disparity in the sentences imposed on the two co-offenders, despite their similar roles in the crime, was appropriate. The court was tasked with determining the applicability of the principle of parity in sentencing juvenile co-offenders and the relevance of the principle of totality, especially in light of the significant difference in their chronological ages. Additionally, the court had to consider the mitigating factors presented, including the role of duress and drug addiction.

The court began by acknowledging that while the principle of parity requires similar sentences for co-offenders with similar roles, this principle must be balanced against other sentencing considerations, such as the principle of totality. The court emphasised that the principle of totality, which seeks to ensure that the overall sentence is proportionate to the seriousness of the offence, must be applied with particular care when sentencing juveniles. The court also noted the relevance of the significant age difference between the co-offenders, which might warrant a more lenient sentence for the younger offender. Furthermore, the court examined the mitigating factors presented, including the role of duress and drug addiction, and considered their impact on the appropriate sentencing outcome.

In reaching its decision, the court held that while the principle of parity was an important consideration, it was not determinative. The court found that the sentences imposed on Ss and JC, while different, were appropriate given the circumstances of the case, including the age difference between the co-offenders and the mitigating factors presented. The court concluded that the trial judge had appropriately balanced the various sentencing principles and had taken into account all relevant mitigating factors. The appeal was dismissed, and the original sentences were upheld.

The court made no further orders beyond dismissing the appeal and upholding the original sentences.

Orders