Regina v A.S [2006] NSWCCA 309

Reported Decision : 165 A Crim R 100

New South Wales Court of Criminal Appeal

CITATION: Regina v A.S [2006] NSWCCA 309

HEARING DATE(S): 7 September 2006

JUDGMENT DATE: 22 September 2006

JUDGMENT OF: Mason P at 1; Sully J at 2; Latham J at 51

DECISION: Crown appeal allowed. Sentences at first instance quashed; Re-sentenced as per page 24 of judgment; Order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that the whole term be served in a juvenile institution

Crimes Act 1900 (NSW) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Children (Criminal Proceedings) Act 1987 (NSW)

CASES CITED: The Queen v Veen (No. 2) (1988) 168 CLR 456 at 476 Pearce v The Queen (1998) 194 CLR 610

PARTIES: Regina A.S

FILE NUMBER(S): CCA 2006/1356

COUNSEL: W. Dawe QC - Crown C. J. Smith - Defendant

SOLICITORS: S. Kavanagh - Crown R. Shamas - Defendant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1078

LOWER COURT JUDICIAL OFFICER: Walmsley DCJ

LOWER COURT DATE OF DECISION: 7 April 2006

IN THE COURT OF CRIMINAL APPEAL 2006/1356

MASON P SULLY J LATHAM J

22 September 2006 REGINA v A.S Judgment

[THERE IS TO BE NO PUBLICATION OF THE NAME OF THE RESPONDENT TO THIS APPEAL OR OF ANY OTHER MATERIAL FROM WHICH HIS IDENTITY MIGHT BE ASCERTAINED]

Introduction 1 MASON P: I agree with Sully J. 2 SULLY J: Before the Court is a Crown appeal brought against the asserted inadequacy of sentences passed upon a juvenile offender to whom I shall refer only as A.S. The sentences were passed on 21 April 2006 in the Sydney District Court. 3 A.S was presented before the District Court on 9 March 2006 and upon an indictment containing two counts. 4 Count 1 charged A.S with having assaulted, on 23 May 2005, a named victim with intent to rob her, A.S being then armed with an offensive weapon, namely a knife, and he having at the time of the assault inflicted upon the victim grievous bodily harm. Such an offence contravenes section 98 of the Crimes Act 1900 (NSW) and attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. The offence attracts as well the operation of the scheme of standard minimum non-parole periods for which provision is made by Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That scheme provides, in the case of a section 98 offence, a standard non-parole period of imprisonment for 7 years. 5 Count 2 charged A.S with having robbed, on 23 May 2005, from the person of another named victim. Such an offence contravenes section 94 of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. 6 A.S pleaded, upon arraignment, guilty to both counts. He asked that there be taken into account in connection with his sentencing a number of additional offences, and that was done pursuant to the relevant provisions of Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act. There were before the sentencing Judge, in addition, three further matters brought to the District Court pursuant to Court Attendance Notices. 7 Because of the number of offences, both indicted and additional, which were thus required to be considered by the learned sentencing Judge, it is useful to collate the following particulars respecting those offences: Item Offence Date of Offence Statutory Maximum Penalty 1 Conspiracy to commit an armed robbery Crimes Act 1900 (NSW) s 97(2 2.3.05 Imprisonment for 25 years 2 Robbery with wounding: [do] s 98 – Count 1 in indictment 23.5.05 [do] Standard non-parole period: imprisonment for 7 years 3 Robbery from the person: [do] s 94 – Count 2 in the indictment 23.5.05 Imprisonment for 14 years 4 Assault – [do] s 61 24.5.05 Imprisonment for 2 years 5 Assault occasioning actual bodily harm - [do] – s 59 24.5.05 Imprisonment for 5 years 6 Robbery in company [do] s 97(1) 17.6.05 Imprisonment for 20 years 7 Resist arrest [do] s 58 27.6.05 Imprisonment for 5 years 8 Intimidate police officer in execution of his duty – [do] –s 60(1) 27.6.05 [do] 9 Offensive language - Summary Offences Act 1988 (NSW) s 4A 27.6.05 Six penalty units 10 Drive a motor vehicle while unlicensed - Road Transport (Driver Licensing) Act 1998 (NSW) s 25(2) 1.9.05 Imprisonment for 18 months 11 Malicious wounding - Crimes Act s 35(1)(a) 5.10.05 Imprisonment for 7 years 12 Assault police officer – [do] – s 58 5.10.05 Imprisonment for 5 years 13 [do] 5.10.05 [do]