Regina v ART [2003] NSWCCA 189

New South Wales Court of Criminal Appeal

CITATION : Regina v ART [2003] NSWCCA 189 revised - 14/08/2003 HEARING DATE(S) : 01/07/03 JUDGMENT DATE : 1 July 2003

JUDGMENT OF : Grove J at 20; Shaw J at 1 DECISION : Leave to appeal granted but appeal dismissed.

CATCHWORDS : Criminal Law - appeal against severity of sentence - taking account matters on the form 1 LEGISLATION CITED : Children (Criminal Proceedings) Act 1987; Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 1999 [2002] NSWCCA 518; CASES CITED : R v Harris (2001) 125 A Crim R 27; R v Lemene (2001) 118 A Crim R 131; Regina (NSW)

PARTIES : v

A.R.T. FILE NUMBER(S) : CCA 60128/03 COUNSEL : A Francis - Applicant D Howard - Crown SOLICITORS : S O'Connor - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Sides DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60128 of 2003

Grove J Shaw J

1 July 2003 Regina

v

A R T Judgment 1 Shaw J: This is an application by the applicant to appeal against the severity of a sentence imposed by his Honour Judge Sides on 18 February 2003 in the District Court sitting at Campbelltown following a plea of guilty to one charge and one further offence, committed in close proximity to the offence alleged in the substantive charge specified in the Form 1. The offences occurred on 9 and 10 June 2002 at Ulladulla and concerned sexual intercourse with the applicant's five-year-old step-sister and her friend, sleeping in the same bedroom where the applicant resided. The applicant was seventeen-and-a-half years of age at the relevant time. He has no prior criminal history. 2 The trial judge imposed a sentence of two years with a non-parole period of nine months, to be served in a juvenile detention centre pursuant to s 19 of the Children (Criminal Proceedings) Act 1987. 3 These were grave offences involving very young girls, with potentially serious consequences for the victims. In my opinion, it was obvious that a custodial sentence had to be imposed and, despite the youth of the offender, one which was not illusory but of substance. My initial reaction to the sentence was that the applicant was treated leniently by the trial judge. 4 I note that the applicant accepts that Sides DCJ dealt with the matter according to law and 'in respect of which it is not contended his Honour fell in to error ...' 5 Admittedly the episodes on the Sunday evening in question were brief. It is also apparently the case that when the first complainant indicated that the activity should stop, the applicant complied. 6 The first sentencing error which the applicant relies upon is the way his Honour dealt with the offence specified on the Form 1. His Honour took the view that the Court was required to consider the offence on the Form 1, and this could hardly be in dispute. He said that the Court should not merely pay 'lip service to it'. His Honour accepted that it was an offence committed at about the same time as the offence on the indictment, but in relation to a different individual. Accordingly, his Honour reasoned that the prima facie head sentence determined (i.e. fifteen months) should be extended by another nine months to reflect the offence on the Form 1. His Honour said this is an extension which was significantly less than would have been imposed had the matter been the subject of a separate charge. 7 The applicant draws attention to what was said by Spigelman CJ in Attorney General's Application Under Section 37 of Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 to this effect: ... the sentencing court is sentencing only for the principal offence and it is no part of the task for the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all offences and then apply a 'discount' for the use of the procedure. This is not sentencing for the principal offence."