PD v R [2012] NSWCCA 242

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: PD v R [2012] NSWCCA 242 Hearing dates: 21 August 2012 Decision date: 23 November 2012 Before: Basten JA at [1]; Hall J at [2]; Beech-Jones J at [3] Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Set aside the aggregate sentence imposed by the District Court on 23 August 2011. (4) In lieu thereof: (a) impose an aggregate sentence of imprisonment of four years and six months, comprising a non-parole period of two years and three months to date from 26 July 2011 and expire on 25 October 2013, together with an additional term of two years and three months to commence on 26 October 2013 and expire on 25 January 2016; (b) the earliest date on which the offender will be entitled to release from custody is 25 October 2013; (c) the sentences that would have been imposed for each offence had separate sentences been imposed are as follows: (i) Count 1 (stealing motor vehicle) - one month imprisonment; (ii) Count 2 (break and enter dwelling house and commit serious indictable offence in circumstances of special aggravation) - four years imprisonment; (iii) Count 3 (break and enter dwelling and commit serious indictable offence ) - nine months imprisonment; and (iv) Count 4 (recklessly wounding a police officer) - nine months imprisonment. Catchwords: CRIME - appeal - aggregate sentence - steal car - aggravated break and enter - reckless wounding of police officer - juvenile offender - committed one serious children's indictable offence and three other offences - whether erroneous for all four offences to be dealt with "according to law" - whether sentencing judge failed to consider statutory principles relevant to sentencing juveniles - whether sentence manifestly excessive - no prior convictions - intellectual impairment. Legislation Cited: Children (Criminal Proceedings) Act 1987 - ss 6, 17, 8, 33(1); Pt 3, Div 4 Children (Detention Centres) Act 1987 Crimes Act 1900 - ss 33, 38, 44, 60(3), 61J, 112, 154A(1) Crimes (Administration of Sentences) Act 1999 Crimes Legislation Amendment Act 2002 - Sch 2(3) Crimes (Sentencing Procedure) Act 1999 -ss 44(2B), 53A(1), 53A(2), 54D(3); Div 1A, Pt 4 Cases Cited: DB v R [2007] NSWCCA 27; 167 A Crim R 393 House v R [1936] HCA 40; 55 CLR 499 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Muldrock v R [2011] HCA 39; 244 CLR 120 Pearce v R [1998] HCA 57; 194 CLR 610 R v Brown [2012] NSWCCA 199 R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 R v De Simoni [1981] HCA 31; 147 CLR 383 R v Fryar [2008] NSWCCA 171; 187 A Crim R 8 R v MHH [2001] NSWCCA 161 R v Nykolyn [2012] NSWCCA 219 R v SDM [2001] NSWCCA 158; 51 NSWLR 530 R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 R v WKR (1993) 32 NSWLR 447 Category: Principal judgment Parties: PD (Applicant) Crown (Respondent) Representation: Counsel: Ms R. Mathur (Applicant) Mr T. Smith (Respondent) Solicitors: Legal Aid NSW (Applicant) S. Kavanagh (Solicitor for Public Prosecutions) File Number(s): 2010/057586 Decision under appeal Date of Decision: 2011-08-23 00:00:00 Before: Robison DCJ File Number(s): 2010/057586