CA v R [2019] NSWCCA 93

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CA v R [2019] NSWCCA 93 Hearing dates: 29 March 2019 Decision date: 08 May 2019 Before: Hoeben CJ at CL at [1]; Garling J at [91]; Hidden AJ at [130] Decision: (1) Grant leave to appeal. (2) Appeal upheld. (3) Quash the sentence imposed by Acting Judge Marien SC on 14 September 2018. (4) Sentence the applicant to a term of imprisonment for a non-parole period of 1 year and 4 months commencing on 29 August 2018 and concluding on 28 December 2019 with a balance of term of 1 year and 8 months concluding on 28 August 2021. (5) Order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that the whole of the sentence be served as a juvenile offender. Catchwords: CRIMINAL LAW – sentence appeal – specially aggravated break and enter and commit a serious indictable offence – applicant sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years – applicant aged 12 years and 10 months – 78 year old woman severely beaten with bricks and a piece of wood – significant psychological and physical injuries – lack of contrition and remorse – whether proper allowance made for applicant's youth – whether proper allowance made for immaturity and impulsiveness of youth – whether proper allowance made for applicant's deprived and violent background – whether too much weight given to protection of community – whether proper allowance made for time in custody solely related to this offence – whether totality properly taken into account – whether sentence was manifestly excessive – one appeal ground made out – re-sentence. Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) – ss 6, 19, 33(1)(e) Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Crimes Act 1900 (NSW) – s 112(3) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(2)(g) Cases Cited: Aslan v R [2014] NSWCCA 114 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Ciaron McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Engert v R (1995) 84 A Crim R 67 Hughes v R [2018] NSWCCA 2 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Lehn v R [2016] NSWCCA 255; 93 NSWLR 205 MS2 and Ors v Regina [2005] NSWCCA 397 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 249 CLR 600 R v Pham & Ly (1991) 55 A Crim R 128 Regina v Fernando [2002] NSWCCA 28 Vaiusu v R [2017] NSWCCA 71 Category: Principal judgment Parties: CA – Applicant Regina – Respondent Crown Representation: Counsel: M Johnston SC – Applicant B Hatfield – Respondent Crown