Crown v JJ

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Burns J,Ross J
• Judgment Date: 27 June 2014
• Date: 27 June 2014
• Docket Number: File Number(s): ACTCA 68 of 2013

[2014] ACTCA 23

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Murrell CJ, Burns and Ross JJ

File Number(s): ACTCA 68 of 2013

SCC 23 of 2012

Crown

(Appellant)

and

JJ

(Respondent)

Representation:

Counsel:

Mr J White (Appellant)

Mr S Whybrow (Respondent)

Cases Cited:

Achurch v The Queen (2014) 306 ALR 566

Barbaro v The Queen (2014) 305 ALR 323

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364

Bugmy v The Queen (2013) 302 ALR 192

Bui v DPP (2012) 284 ALR 445

Cameron v Cole (1944) 68 CLR 571

Dinsdale v The Queen (2000) 202 CLR 321

DPP v De La Rosa [2010] NSWCCA 194

DPP v Edwards [2012] VSCA 293

DPP v Ty [2009] VSCA 226

DPP (Vic) v Karazisis [2010] VSCA 350

Everett v The Queen (1994) 181 CLR 295

Ex parte Williams (1934) 51 CLR 545

Green v The Queen (2011) 244 CLR 462

Hili v The Queen (2010) 242 CLR 520

House v The King (1936) 55 CLR 499

Mill v The Queen (1988) 166 CLR 59

Munda v Western Australia (2013) 302 ALR 207

Lacey v Attorney-General (Qld) (2011) 242 CLR 573

Lowe v The Queen (1984) 154 CLR 606

Pavicevic v The Queen [2010] ACTCA 25

Pelechowski v Registrar of the NSW Court of Appeal (1999) 198 CLR 345

Postiglione v The Queen (1997) 189 CLR 295

R v Barton (2001) 121 A Crim R 185

R v Chatfield [2012] ACTCA 32

R v Clarke [1996] 2 VR 501

R v Cox (1996) 66 SASR 152

R v CV [2013] ACTCA 22

R v JW (2010) 77 NSWLR 7

R v PM [2009] ACTCA 24

R v Taylor Schmidt [2013] ACTSC 295

R v Thorpy [1996] 2 Qd R 77

R v Tracey Campbell [2010] ACTCA 20

R v TW (2011) 6 ACTLR 18

R v Yuen SCC 188 of 2012 (31 May 2013)

Wise v The Queen [2006] NSWCCA 264

Wong v R (2001) 207 CLR 584

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Legislation Act 2001 (ACT)

Supreme Court Act 1933 (ACT)

CRIMINAL LAW AND PROCEDURE — sentencing — young offender — murder — Crimes (Sentencing) Act 2005 (ACT), Chapter 8A.

CRIMINAL LAW AND PROCEDURE — sentencing — young offenders — Crown appeal — manifest inadequacy — section 61 Crimes (Sentencing) Act 2005 (ACT) — jurisdictional error.

Decision:

Appeal upheld insofar as it relates to the orders of 15 October 2013

Orders of 15 October 2013 set aside

Matter remitted back to Refshauge J to reimpose sentence of 8 October 2013

Appeal in relation to manifest inadequacy of sentence dismissed.

Murrell CJ

1 I agree with the decision of Ross J.

Burns J

1 I have had the advantage of reading the judgment of Ross J. I agree with the reasons of his Honour and the orders he proposes.

Ross J

Introduction

1 On 4 August 2011 the respondent and Taylor Schmidt (“the co-offender”) murdered Liang Zhao (“the deceased”). The co-offender was just over 20 years of age on the day of the murder and the respondent was just short of 17 years and 9 months of age. As he was under 18 years of age when the offence was committed, the respondent was required to be sentenced as a young offender pursuant to Chapter 8A of the Crimes (Sentencing) Act 2005 ( Sentencing Act). I deal with the relevant provisions of the Sentencing Act in more detail shortly.

2 When the respondent came to be sentenced on 8 October 2013, Refshauge J initially sentenced him to 17 years' imprisonment and purported to set a nonparole period of 10 years and 6 months. When it was pointed out to his Honour that the legislative scheme makes no provision for the setting of a nonparole period for a sentence of imprisonment imposed on a young offender, his Honour amended the sentence to suspend the sentence after 10 years 6 months, upon the respondent entering into a good behaviour order for 6 and a half years, with a probation condition that the respondent obey all reasonable directions of the director-general.

3 On the Court reconvening on 14 October 2013 at the request of the Crown, it was pointed out to his Honour that a supervision condition could not exceed 3 years, and his Honour then re-sentenced the respondent by amending the condition in the good behaviour order. The sentence thus became one of 17 years' imprisonment, to be released after 10 years 6 months on a good behaviour order of 6 years 6 months with a probation condition that the respondent be subject to the supervision of the Director-General or her delegate for 3 years or such lesser period as considered appropriate. I will return to these sentence amendments later.

4 The co-offender was subsequently sentenced by Refshauge J to 20 years 6 months' imprisonment with a nonparole period of 14 years.

5 The Crown has appealed the sentence imposed on the respondent. There are two grounds of appeal. The first ground is that the sentence imposed is manifestly inadequate. This ground is particularised in the following ways:

• (a) his Honour erred in failing to take sufficiently into account the objective seriousness of the offence;

• (b) his Honour erred in failing to take sufficiently into account the aggravating features of the offence;

• (c) his Honour erred in the way that he dealt with the rehabilitation of the offender;

• (d) his Honour erred in the way that he dealt with the age of the offender; and

• (e) his Honour erred in imposing an unsuspended period of the sentence that was too short when considered as a proportion of the total sentence.

6 The second ground of appeal is that his Honour applied an incorrect principle of sentencing, in that in determining the unsuspended portion of the sentence he did not have regard, or proper regard, to the length of time that the offender could be subject to the supervision of the Director-General.

7 The principles governing Crown appeals against sentence are well established and were conveniently summarised by Refshauge J in R v TW, 1 drawing on the analysis by Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke. 2 It is unnecessary to repeat everything that his Honour said in that case, but three points are apposite. 3

8 First, Crown appeals are considered anomalous in the criminal justice system and should only be brought in rare and exceptional cases to establish some point of principle.

9 Secondly, the appeal is not a new hearing. The Court is not entitled to substitute its own opinion for that of the sentencing judge merely because it disagrees with the sentence. It may only interfere with the sentence if there is error of the kind referred to in House v The King 4.

10 Thirdly, appellate courts have an overriding discretion which entitles them to decline to intervene despite error. 5

11 I also note that in R v Chatfield 6 this Court held that the approach adopted by the High Court in Bui v DPP 7 should be adopted in the Australian Capital Territory. As a consequence, double jeopardy was abolished as a consideration in re-sentencing.

12 Before turning to the Crown's submissions it is necessary to say something about the sentencing regime that applies to young offenders and to the proceedings at first instance.

The sentencing regime for young offenders in the ACT

13 The Sentencing Act makes special provision for “young offenders”. As mentioned earlier, the respondent is a young offender within the meaning of that Act, having been found guilty by the court of an offence that was committed when he was under 18 years of age. The Sentencing Act generally applies to young offenders in the same way it applies to other offenders, subject to some particular provisions that only apply to young offenders. The particular provisions that apply to the sentencing of young offenders are set out in Chapter 8A of the Sentencing Act.

14 The purposes for which an offender may be sentenced are set out in s 7. These sentencing purposes apply to young offenders (see s 133A) but are modified by s.133C. Subsection 133C(1) provides that a court sentencing a young offender must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than to any of the other purposes in s.7(1). Subsection 133C(2) provides that in sentencing a young offender the court must have particular regard to the common law principle of individualised justice.

15 In deciding how an offender should be sentenced, s.33 sets out the relevant considerations. These considerations do not limit the matters a court may consider in deciding how an offender should be sentenced for an offence. Section 133D(1) requires the court to consider certain additional matters in sentencing young offenders, namely:

• (a) the young offender's culpability for the offence having regard to his or her maturity;

• (b) the young offender's state of development; and

• (c) the past and present family circumstances of the young offender.

16 Section 10(2) of the Sentencing Act allows a court to sentence an offender to imprisonment if satisfied that no other penalty is appropriate. Subsection 133G(2) provides that if a court is sentencing a young offender to imprisonment, then the sentence of imprisonment “must be a last resort and for the shortest appropriate term”. A court cannot sentence a young offender to imprisonment for life: s 133G(4).

17 There is no provision for the setting of a nonparole period for a sentence of imprisonment imposed on a young offender. Part 5.2 of the Sentencing Act deals with the setting of nonparole periods. Subsection 64(1) provides that pt 5.2 applies to “a sentence of imprisonment imposed by a court on an offender for an offence, other than an excluded sentence of imprisonment”. Section 64(3)(f) provides that a sentence of imprisonment imposed on a young offender is an “excluded period of imprisonment”.

18 Instead of setting a nonparole period for a young offender, s 133G(3) directs the court to consider making...