(3) Quash the sentence imposed by the District Court on 24 March 2023.
(4) Impose a term of imprisonment comprising a non-parole period of 9 months commencing on 16 December 2022 and expiring on 15 September 2023, with an additional term of 2 years and 3 months imprisonment, expiring on 15 December 2025.
(5) The applicant is first eligible for release to parole on 15 September 2023.
Catchwords:
CRIME — Appeals — Appeal against sentence —
Sentencing of children — Relevant principles of sentencing — Where 15-year-old commits serious offence of aggravated robbery causing grievous bodily harm — Where moral culpability reduced as a result of a young age and a deprived and disadvantaged background — Where the weight afforded general deterrence moderated — Strong evidence of rehabilitation — Where judge erred in failing to have regard to youth in assessing moral culpability — Where judge erred in failing to have regard to youth in assessing the weight to be afforded to general deterrence — Emphasis on rehabilitation — Errors established — Resentence
Counsel: T Quilter (Applicant) E Balodis (Respondent)
Solicitors: Bernhaut Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(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.
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Details
AGLC
TM v R [2023] NSWCCA 185
Case
[2023] NSWCCA 185
Decision Date
CaseChat Overview and Summary
The case of TM v R involved a 15-year-old offender who had committed the serious offence of aggravated robbery causing grievous bodily harm. The defendant appealed against the sentence imposed by the trial judge, arguing that the sentence was manifestly excessive. The appeal was heard by the Court of Appeal, which considered whether the trial judge had erred in various aspects of the sentencing process.
The central legal issues before the court were whether the trial judge had failed to appropriately consider the defendant's youth when assessing moral culpability and the weight to be afforded to general deterrence. Additionally, the court needed to determine whether the trial judge had appropriately emphasised the importance of rehabilitation in sentencing the defendant. The court was required to assess whether these errors were significant enough to warrant a re-sentencing of the defendant.
The Court of Appeal found that the trial judge had indeed erred in not adequately considering the defendant's youth when assessing both moral culpability and the weight to be afforded to general deterrence. The court emphasised that a young age and a disadvantaged background should have been given greater weight in these assessments. Furthermore, the court noted that the trial judge had failed to sufficiently emphasise the importance of rehabilitation, a critical consideration in sentencing a young offender. Given these errors, the Court of Appeal determined that the sentence imposed was manifestly excessive and ordered a re-sentencing of the defendant.
The Court of Appeal quashed the original sentence and remitted the matter to the trial court for re-sentencing, with the instruction that the trial judge consider the principles of sentencing for young offenders, including the reduced moral culpability due to youth and the diminished need for general deterrence, as well as the strong evidence of rehabilitation.