IS v Regina [2017] NSWCCA 116

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: IS v Regina [2017] NSWCCA 116 Hearing dates: 26 September 2016 Date of orders: 30 May 2017 Decision date: 30 May 2017 Before: Gleeson JA at [1] Harrison J at [2] Campbell J at [3] Decision: (1) Grant leave to appeal and allow the appeal in part;

(2) Confirm the sentence imposed in the District Court for Count 2, adjusting the commencement date from 7 December 2014 to 2 November 2014. That is, impose a sentence of 15 months imprisonment, having a non-parole period of 9 months commencing on 2 November 2014 and expiring on 1 August 2015 with an additional term of 6 months commencing on 2 August 2015 and expiring on 1 February 2016; and

(3) Quash the sentence imposed in the District Court for Count 1 and instead impose a sentence of imprisonment of 5 years, having a non-parole period of 2 years and 10 months commencing on 2 May 2015 and expiring on 1 March 2018 and an additional term of 2 years and 2 months commencing on 2 March 2018 and expiring on 1 May 2020.

(4) The applicant will be first eligible for release on parole after the expiration of the non-parole period for Count 1 on 1 March 2018.

(5) Direct that the sentences of imprisonment proposed be served as a juvenile offender in accordance with, and subject to, the provisions of s 19 Children (Criminal Proceedings) Act 1987 (NSW). Catchwords: CRIMINAL LAW – sentencing – aggravated robbery– intentionally destroy property– where robbery committed in company and under the influence of "ice" – where offender a juvenile – where offender's upbringing engages the principle in Bugmy v The Queen – where primary judge emphasised general deterrence and community protection – where primary judge accepted the offender's remorse and expressed confidence in his prospects of rehabilitation – balance between the principle in Bugmy v The Queen, remorse, rehabilitation and general deterrence – held that the primary judge erred in applying the principles applicable to the offender's deprived background – held that the primary judge erred in applying the principles applicable to the sentencing of juveniles Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Criminal Appeal Act 1912 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 CS v The Queen [2014] NSWCCA 229; (2014) 245 A Crim R 249 R v Engert (1995) 84 A Crim R 67 R v Henry (1999) 46 NSWLR 346; [1999] NSW CCA 111 Kiernan v R [2016] NSWCCA 12 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Pham (1991) 55 A Crim R 128 Veen v the Queen [No 2] (1988) 164 CLR 465 White v R [2016] NSWCCA 190 YS v R [2010] NSWCCA 98 Category: Principal judgment Parties: IS (Applicant) Regina (Crown) Representation: Counsel: D.T. Kell with M Pulsford (Crown) N. Mikhaiel (Appellant)