YS v R

Case [2010] NSWCCA 98 13 May 2010

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New South Wales
Court of Criminal Appeal

CITATION: YS v R [2010] NSWCCA 98

HEARING DATE(S): 29 March 2010

JUDGMENT DATE:
13 May 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Rothman J at 3

DECISION:
(i) Application for leave to appeal be granted;
(ii) Appeal be dismissed.

CATCHWORDS: CRIMINAL LAW – sentence appeal – aggravated break and enter commit serious indictable offence – mental condition – young person – totality – no identifiable or manifest error – appeal dismissed

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Mental Health Act 2007

CATEGORY: Principal judgment

CASES CITED: HAN, Zhi Qiang v R [2009] NSWCCA 300
House v The King [1936] HCA 40; (1936) 55 CLR 499
KT v R (2008) 182 A Crim R 471
Mill v R [1988] HCA 70; (1988) 166 CLR 59
MJ v R, CPD v R [2010] NSWCCA 52
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Aem; R v Kem; R v MM [2002] NSWCCA 58
R v AD [2005] NSWCCA 208
R v AN [2005] NSWCCA 239
R v Bus (NSWCCA, Hunt CJ at CL, Grove and Allen JJ, 3 November 1995, unreported)
R v Engert (1995) 84 A Crim R 67
R v GDP (1991) 53 A Crim R 112
R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Holder [1983] 3 NSWLR 245
R v Israil [2002] NSWCCA 255
R v Letteri (NSWCCA, 18 March 1992, unreported)
R v LNT [2005] NSWCCA 307
R v Pham & Ly (1991) 55 A Crim R 128
R v Shillingsworth [2003] NSWCCA 272
R v WKR (1993) 32 NSWLR 447

PARTIES: YS (Applicant)
Regina (Respondent

FILE NUMBER(S): CCA 2008/20481

COUNSEL: H Cox (Applicant)
S Dowling (Respondent)

SOLICITORS: Aboriginal Legal Service (Applicant)
Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/20481

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 29/05/2009

2008/20481

MCCLELLAN CJ at CL
HOWIE J
ROTHMAN J
13 MAY 2010

YS v R

Judgment

1 McCLELLAN CJ at CL: I agree with Rothman J.

2 HOWIE J: I agree with Rothman J.

3 ROTHMAN J: The applicant, YS, who was aged 16 at the time that he committed this offence, seeks leave to appeal (and if leave be granted, appeals) the sentence imposed upon him by his Honour Judge Berman SC in the District Court. The applicant had pleaded guilty to aggravated break enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act 1900. The serious indictable offence was sexual assault (of which there were a number) and the circumstances of aggravation were the deprivation of liberty of the victim.

4 The applicant was sentenced to a term of imprisonment of 8 years, commencing 4 November 2008, including a non-parole period of 5 years, expiring on 3 November 2013. The applicant was…

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 YS v R

Details

AGLC: YS v R [2010] NSWCCA 98
Case: [2010] NSWCCA 98
Decision Date: 13 May 2010

CaseChat Overview and Summary

The case of YS v R involved a young person, YS, who was appealing a sentence imposed following a conviction for aggravated break and enter, committing a serious indictable offence. The appeal was heard by the Supreme Court of Victoria, specifically the Court of Appeal. YS contended that the original sentence was excessive and did not adequately consider his mental health condition, which he argued should have warranted a lesser penalty.

The court was tasked with determining whether the original sentencing judge had made any errors in assessing the appropriate penalty for YS, particularly in light of his mental health condition. The appeal focused on whether the totality principle was correctly applied and if the sentence imposed was manifestly excessive or unjust. The court needed to examine whether there was any identifiable error in the sentencing process that warranted interference.

In its reasoning, the Court of Appeal found no identifiable or manifest error in the original sentencing decision. The court affirmed that the trial judge had appropriately considered the totality of the circumstances, including YS's mental health condition, in arriving at the sentence. The court held that the sentence was proportionate to the seriousness of the offence and did not exceed what was just and appropriate given all the circumstances. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders