Police v ATM
[2009] NSWLC 7
•26/03/2009
Local Court of New South Wales
CITATION: Police v ATM [2009] NSWLC 7 JURISDICTION: Criminal PARTIES: Police
ATMFILE NUMBER: PLACE OF HEARING: Albury Local Court DATE OF DECISION: 03/26/2009 MAGISTRATE: Magistrate Lerve CATCHWORDS: Break enter and Steal - Steal Firearm - Take and Drive Conveyance without Consent LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002CASES CITED: MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397
Pearce –v- The Queen (1998) 103 A Crim R 372
R –v- AD [2008] NSWCCA 289
R -v- Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349
R -v- AEM Snr, KEM and MM [2002] NSWCCA 58
R –v AN [2005] NSWCCA 239
R –v- Bolter [2002] NSWCCA 435
R –v- Bus (NSWCCA unrep 3.11.95)
R –v- Doan (2000) 50 NSWLR 115
R –v- Dodd (1991) 57 A Crim R 349
R -v- E (a child) (1993) 66 A Crim R 14
R -v- Harris [2007] NSWCCA 130
R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37
R –v- Jones unrep. NSWCCA 30.6.1994
R -v- KM [2004] NSWCCA 65
R –v- KT [2008] NSWCCA 51
R -v- LC [2001] NSWCCA 175
R –v- LNT[2005] NSWCCA 307
R –v- MA [2004]NSWCCA 92
R –v- Merrin [2007] NSWCCA 255
R –v- MSS [2005] NSWCCA 227
R –v- Pham and Ly (1991) 55 A Crim R 135
R -v- Ponfield and Ors
R -v- TJP [1999] NSWCCA 408
R -v- Tran [1999] NSWCCA 109
R –v- Vaovousa [2007] NSWCCA 253
R -v- Voss [2003] NSWCCA 182
R v Weldon and Carberry (2002) 136 A Crim R 55
R v Wilson [2005] NSWCCA 219
R –v- WKR (1993) 32 NSWLR 447TEXTS CITED: REPRESENTATION: Sgt. A. Seccull, Police Prosecutor
Mr. P. Woodhouse, Solicitor for and with young personORDERS:
Remarks on Sentence
1. I record at the outset that I have found the formulation of the sentence in this matter particularly difficult. The young person (I use that expression not through any desire to depersonalise the young man, but rather in the interests of his remaining unidentified) is 14 years of age. Clearly rehabilitation must take a very important role. However, there are 55 charges before me, most of them being Break Enter and Steal Offences, some in the aggravated form of that charge. The offending in respect of which I have to pass sentence is very significant.
2. I realise that the young person may not understand some if not most of what is contained within these remarks on sentence. After stating matters of principle I will attempt to put the issues into simple language that the young person might more readily understand. In doing so, I might lapse into the vernacular and be a little imprecise in my expression. That is merely in an attempt to make the concept more readily understood by the young person. However, given the complexity of this matter it is appropriate that I fully expose my reasoning process in the event that either party wishes to have my decision reviewed.
3. When the young offender first appeared before the Court on 30 August 2008 there was a total of 30 charges before the Court, most of those being Break Enter and Steal offences, some of them of the Aggravated form. Since the first appearance a further 25 charges have been added over time. Almost all of those additional charges were break and enter type offences.
4. Pleas of not guilty were maintained up until at least 30 September 2008. However on 11 November 2008 the Court was informed that representations had been made concerning the ultimate disposition of these matters, and on 16 December 2008 the Court was informed that plea of guilty would be entered. Matters were still being added up until 6 March 2009 on which date I took submissions from the parties. A brief was ordered, but the matter has never been listed for hearing.
5. The young person was born on 14 April 1994, and accordingly is 14 years of age. Given his age, the issues involved, the number of matters and the manner in which matters were continually added to the papers it is appropriate in my opinion to extend, as a matter of general principle, the full 25% discount for the utilitarian value of the pleas of guilty to the young person. Given the vast number of matters there is real and significant utilitarian value to the pleas of guilty. However, it is my opinion that the young person has already received very considerable leniency by having the matters dealt with by the Children’s Court. For the benefit of the young person the length of the sentence is reduced because of the guilty pleas.
Facts
6. Agreed Facts were tendered in respect of each matter. I have divided the facts into the substantive matters on which I have to pass sentence in one group and the facts relating to the “Form 1” Matters in another group. Each of the Aggravated Break Enter and Steal offences are serious, however, in passing sentence in respect of Sequence 55, a count that involves the theft of property to the value of $13,520 I will take into account the 42 matters on the Form 1 Document.
7. The Facts in respect of each of the charges of Aggravated Break Enter and Steal are very similar. All of the offending occurred on dates between October 2007 and the end of February 2008. The offending was detected largely because of fingerprints.
8. Going initially to Sequence 55, which is the matter in respect of which I will take into account the matters on the Form 1 document. Mr. & Mrs. Galvin on 24 January 2008 secured their Burrows Road premises before leaving the area for a few days. On 27 January 2008 family members informed them of the break in and they returned to their home. They found that front security door had been pulled open and damaged, and a glass panel next to the front door had been smashed. A home safe had been smashed from a bedroom wall and was taken. The main bedroom had been ransacked. Jewellery and cash (and the safe) to the value of $13,520 was taken. None of the property has been recovered. Fingerprints of the young person were located within a cup inside the premises. The young person made full admissions to police. The young person was in the company of a Trevor Kennedy (an adult) at the time of the commission of the offence.
9. I will attempt to deal with the remaining charges of Aggravated Break Enter and Steal in chronological order.
10. Sequences 7 & 8: Sequence 7 is a charge of Aggravated Break Enter and Steal and Sequence 8 is a charge of Take and Drive Conveyance without Consent. In the afternoon of 16 October 2007 Mr. Daryl Rose left his premises in Salander Street, Albury secured and with his motor vehicle AG-34-KT parked under the carport. The following morning Mr. Rose returned to his premises to find the security gates open, and found a window to the laundry had been smashed. The vehicle and personal property including a coin collection and compact discs were taken. The vehicle was driven from the scene but later recovered. The fingerprints of the young person and a juvenile co offender were located on the vehicle. Although the vehicle was recovered, the other personal property was not. The house was ransacked in the course of the commission of the break enter and steal offence.
11. Sequence 31 – Aggravated Break Enter and Steal: On 18 October, 2007, Ms. Styles left her home at Chenery Street, Albury secure save for a kitchen window that was left partially open to allow for some air to enter the house. That window was however, covered by a secure fly screen. She returned to her home in the afternoon to find that entry had been obtained through the kitchen window. Virtually every room in the house had been ransacked. A camera, DVDs, CDs and jewellery to the value of $4,000 was taken. The jewellery was recovered. The jewellery was her engagement ring. Fingerprints of this, and another young offender were found within the house.
12. Sequence 1 – Aggravated Break Enter and Steal: This was also committed on 18 October 2007. Mr. Urban left his premises in Kurnell Street secure at about 7.30am. He returned at about 9.15pm and noticed a side gate open, and cans of drink in the back yard. He found that a fly screen at the toilet window had been cut and there was a screwdriver on the ground nearby. He found the house had been ransacked. A television, electronic games and cash to the value of $3,382.00 were missing. Police found the fingerprints of this and another young offender inside the premises. None of the property taken has been recovered.
13. Sequence 32 – Aggravated Break Enter and Steal: This was committed on 26 October 2007. Messrs. Justin Fulton and Dean Pound shared a unit in Kaylock Street. Before they left for work they secured the premises. Mr. Fulton returned home for lunch, but again secured the premises before returning to work. The two of them arrived home at about 3pm to find the premises broken into and ransacked. Personal property had been taken from each of their respective bedrooms. Property including cash, liquor, and electronic equipment to the value of $1600 was taken. The fingerprints of this young offender and another young offender were located.
14. Sequence 2 – Aggravated Break Enter and Steal: At about 2.45 pm on 26 October 2007 Ms. MacTavish left her Glenroy premises secure. At about 2.30 am on 27 October 2007 she returned to find a glass sliding door had been smashed. The premises had been “trashed”. Her wedding and engagement rings and two other rings to the total value of $8,200 were missing. None of the items of jewellery have been recovered. Fingerprints belonging to this young person were found on the exterior of a screen door. Fingerprints of another young offender were also located within the premises.
15. Sequence 3 – Aggravated Break Enter and Steal: At about 5pm on the afternoon of 30 October 2007 Ms. Vicki Palethorpe left her premises in Kaylock Road, Lavington secure. Upon returning hoe at 2am on 31 October 2007 and found her premises had been broken into. Entry had been gained by smashing a bedroom window. Drawers of an entertainment unit had been opened. Jewellery including an engagement ring and television set to the total value of $2,730 was stolen. None of the property has been recovered. Fingerprints of this and another young offender were found on the glass of the broken window.
16. Sequence 4 – Aggravated Break Enter and Steal: Mr. Laurie McGrath left his premises in Fairview Drive Albury in order to attend a meeting. His premises were secure when he left. He returned at about 10.30pm to find the gate and front door open. Upon entering the hallway he saw a young female at his fridge filling a pillow case with food from the fridge. Mr. McGrath called out and a number of youths ran down the hallway, out through the back door and jumped the back fence. All bedrooms within the house had been ransacked. Fingerprints belonging to this young person were found on a mirrored door in one of the bedrooms. A mobile phone and food to the total value of $490 was taken.
17. Sequence 34 – Aggravated Break Enter and Steal: Ms. Joanne Ellis lived at and address in Sarson Road, Glenroy in January 2008. At about lunchtime on 28 January 2008 she left her premises with her children. The premises were secure. He mother discovered that the premises had been broken into the following morning and telephoned her daughter. The house had been ransacked. Jewellery (including a family heirloom piece), electronic games and equipment, food and clothing to the value of $7,096 were taken. The fingerprints of this and another young offender were found within the premises. The facts indicate that Ms. Ellis suffered a “nervous breakdown” as a result of the offence.
18. Sequence 48 – Aggravated Break Enter and Steal: Ms. Rebecca McConnell left her residential unit in Fairview Drive, Albury at 8.15am on 22 February 2008. The premises were secure. She returned at about 9.20pm and found that a window in the second bedroom had been smashed. DVDs to the value of $900 were taken. The fingerprints of this and another young offender were located within the premises. None of the property taken has been recovered.
19. Sequence 6 – Steal Firearms: This offence is related to the Break Enter and Steal offence, sequence 5 on the Form 1 document. On 10 February 2008 a 12 guage shotgun, a 0.17 calibre rifle and a 0.223 calibre rifle and scope were taken from the residential premises of Mr. Nicholas Hallam at 1.514 Nathan Avenue, Albury. The firearms were kept in an appropriate gun safe that was bolted to the wall. The gun safe was jemmied from the wall and the firearms to the value of $5,500 were taken. None of them have been recovered.
20. Sequences 29 & 30 - Take and Drive Conveyance and Be Carried in Stolen Conveyance:
At about 6pm on 26 February 2008 Mr. Bradley Just parked his vehicle registered RHM-914 outside his home in Lavington. The vehicle was taken either late at night on 26 February 2008 or in the early hours of the morning on 27 February 2008. Police found the vehicle dumped in Ryan Road, Albury. The fingerprints of this young person, and a further two young offenders were located on various parts of the vehicle.
21. Form One matters: All of the break and enter offences relate to private residential dwellings. The total value of the property taken, on my calculations is very close to $50,000. The offences were committed over a period from the middle of October 2007 to the end of March in 2008. The criminality involved in these offences is very substantial indeed. That is to say that the matters are very serious.
Jurisdiction
22. When the pleas of guilty were first entered in these matters I indicated that I would be minded to commit the young offender for sentence in the District Court. I indicated that I wanted to hear both parties on whether the matters should remain in the Children’s Court or whether they should be sent to the District Court for sentence. Section 31 of the Children (Criminal Proceedings) Act 1987 provides:
“(1) If a person is charged before the Children’s Court with an offence (whether indictable or otherwise) other than a serious children’s indictable offence, the proceedings for the offence shall be dealt with summarily.
(2) Notwithstanding subsection (1):
- (a) if a person is charged before the Children’s Court with an indictable offence (other than an offence that is punishable summarily without the consent of the accused), and
(b) if the person informs the Children’s Court (at any time during, or at the close of, the case for the prosecution) that the person wishes to take his or her trial according to law,
the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2–4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act.
(3) Notwithstanding subsection (1):
- (a) if a person is charged before the Children’s Court with an indictable offence, and
(b) if the Children’s Court states that it is of the opinion, after all the evidence for the prosecution has been taken:
- (i) that, having regard to all the evidence before the Children’s Court, the evidence is capable of satisfying a jury beyond reasonable doubt that the person has committed an indictable offence, and
(ii) that the charge may not properly be disposed of in a summary manner,
(5) Notwithstanding subsection (1):
- (a) if a person is charged before the Children’s Court with an indictable offence, and
(b) if, at any stage of the proceedings, the person pleads guilty to the charge, and
(c) if the Children’s Court states that it is of the opinion that, having regard to all the evidence before it, the charge may not properly be disposed of in a summary manner,
the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 as if the offence were a serious children’s indictable offence in respect of which the person had pleaded guilty as referred to in that section”.
23. Not surprisingly, the solicitor for the young offender submitted that the matter should remain in the Children’s Court. The prosecutor although indicating a personal preference for the matters to go the District Court indicated that the authorities concerned were content for the matters to remain in the Children’s Court. Although I accept that the ultimate decision is mine, given the attitude of the authorities, and with some considerable misgivings, I will retain the matters in the Children’s Court. Given the extent of the criminality involved I consider that leaving all matters in the Children’s Court is an extension of very considerable leniency to the young offender. For the benefit of the young person, I could have sent this to a higher court, which could impose much higher sentences.
Maximum Penalty
24. The maximum sentence that I can impose in respect of any one offence is an order that the young offender be kept to the Control of the Minister for a period “not exceeding” two years. I can cumulate sentences but only to a maximum of three years.
25. It is a moot point as to whether the principles enunciated by the Court of Criminal Appeal in R –v- Doan (2000) 50 NSWLR 115 (see especially the judgment of Grove J at [35]) and affirmed by the Court of Criminal Appeal in Attorney General’s Application Pursuant to s. 37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (Guideline Judgment on Assault Police) (2002) 137 A Crim R 196 at [27] apply to the Children’s Court. I am of the opinion that because of s. 31 of the Children (Criminal Proceedings) Act 1987 that they do not.
Assessment of the Criminality
26. Each of the substantive matters of Aggravated Break Enter and Steal on which I have to pass sentence involved some obvious planning, although it would seem, the planning was not done by this offender. The fact that the young offender was in company is an element of the offence and therefore is not an aggravating circumstance. However, all of the premises were private dwellings, virtually all of them were ransacked and in many cases substantial amounts of property was taken.
27. Given the circumstances of the offences, namely the fact that they were private dwellings, the premises were ransacked and substantial property taken I am of the opinion that the matters contained within Sequences 55, 7, 31, 1, 32, 2, 4 and 34 are above, but not by much, the half way mark on the scale of seriousness. I assess the matters contained within Sequences 3 and 48 to at or about the half way mark on the scale of seriousness. I assess Sequence 6, involving as it does three firearms to at or about the mid range of seriousness for an offence of that type. The matters of Take and Drive Conveyance and Be Carried in Stolen Conveyance are unremarkable examples of those type of offences that routinely come before the Children’s Court.
28. For the benefit of the young person the 10 charges of break enter and steal on which I have to pass a sentence are serious examples of that type of offence.
Matters of General Principle – Break Enter and Steal offences
29. Again, for the benefit of the young person, the higher courts have said a number of times that stern sentences must be imposed on people who do a lot of break and enter offences.
30. The Court of Criminal Appeal has on several occasions emphasised the seriousness of the offences of break enter and steal. The effect of the offence of break enter and steal on the victims and the community at large were referred to by the Court of Criminal Appeal in the decision of R –v- Bolter [2002] NSWCCA 435. Sully J (Howie J. agreeing) cited with “complete and respectful agreement” observations made by the learned sentencing judge at first instance, namely (see [6] – [7] of CCA judgment):
“It has been said time and time again that the invasion of people’s homes and the plundering of their property is a social evil from which the community looks for protection. Householders should be able to leave their homes confident that their belongings will be there upon their return. The trauma of entering a home to find that it has been broken into and property stolen is no light matter. Particularly where the victims are elderly…Added to this of course is the emotional distress at the loss of treasured items of jewellery…Of course the sentimental value far outweighs their monetary value. Even those who are not the immediate victims of burglaries nevertheless feel the effects in escalating insurance premiums by insurers for insurance of the risk of its occurrence”.
31. The decision in Bolter I note is particularly apposite in a significant number of the matters on which I have to pass sentence. In a number of the matters the items of jewellery taken included engagement and/or weddings rings or family heirlooms. I note in particular that the victim in Sequence 34 became so distraught as a result of the offence that she suffered what the facts describe as a “nervous breakdown” and further that she was hospitalised. I observe that this young offender, like so many other young offenders who commit the offence of Break Enter and Steal do not realise how serious an effect their crime can have on their victims.
32. For the benefit of the young person, he should understand that he caused very great upset to the people who lived in the houses he broke into. One of the ladies has suffered a “nervous breakdown”.
33. In Harris [2007] NSWCCA 130 the Court (McClellan CJ at CL, Hulme & Hislop JJ said at [30]-[31]:
- “30 It is also to be observed that nowhere in Attorney-General’s Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors was doubt cast on the appropriateness of most of the remarks the Court has quoted from the earlier cases. Indeed in R v Scott [1999] NSWCCA 434, one of four cases considered and in which judgement was delivered at that same time as the guideline judgment, Sully J, with whom the other judges agreed, quoted remarks of the sentencing judge in that case and observed that they were correct in principle. These remarks were: -
- “The incidence of break, enter and steal throughout the State, but in particular on the Central Coast of New South Wales, is such as to cause grave disquiet in the community.
In the court of the first trial, a fingerprint expert gave evidence to the effect that he attends some ten locations a day in the course of investigating burglaries. The burglar seems to act with impunity, such is the frequency of this crime, which is carried out with brazen contempt for the law and the rights of innocent householders.
Right thinking members of the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar. Their dwellings are ransacked. Their goods spirited away where they will be inevitably received by some Cash Converter, loan office or pawn broker. The operators of such businesses deal with vast volumes of stolen goods on a daily basis. The fact that successive governments neglect to pass efficacious laws which might tend to hinder the daily conversion of stolen goods into money is of great comfort to the burglar and of no assistance whatsoever to the victim.
It is a notorious fact that householders face huge premiums, as well as the vast expense of endeavouring to make their homes secure, against those who apparently consider it their right to break into households and take whatever goods suit their purposes.
Clearly the community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted.
Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment.”
31 Although in Attorney-General’s Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors the Court declined the Crown’s application to provide a guideline in quantitative terms, the Court indicated that a court should regard the seriousness of an offence contrary to s112 (1) as enhanced and reflect that enhancement in the quantum of sentence if any of a number of specified factors are present. Included among the factors mentioned and relevant to the situation of the Respondent here were:-
- (i) The offence is committed whilst the offender is at conditional liberty;
(ii) The offender has a prior record, particularly of like offences;
(iii) The multiplicity of offences (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the Criminal Law Procedure Act);
(iv) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.
34. A little later in 2007, the Court of Criminal Appeal handed down its decision in R –v- Merrin [2007] NSWCCA 255. Howie J. (Gyles JA, Fullerton J. agreeing) said at [38]:
38 In relation to multiple offences of break enter and steal the appropriateness of concurrent sentences has been specifically considered by this Court in R v Harris [2007] NSWCCA 130, a decision handed down a month before the Judge sentenced the respondent. That was a case that emphasised that heavy sentences should generally be imposed for break enter and steal offences committed by repeat offenders on domestic premises, whether or not they were aggravated forms of the offence.
35. R –v- Merrin is also authority for the proposition that concurrent sentences should not be imposed in respect of multiple Break, Enter and Steal offences. Howie J. (Gyles JA, Fullterton J agreeing) said at [36]:
36 This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in R v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court. With respect, the Judge has simply failed to approach the structuring of the sentence according to established principle.
36. For the benefit of the young person what I have just read out are examples of what the higher courts have said about break and enters being very serious. Also, it means that a sentence must be set for each break and enter.
Matters of General Principle – juvenile offenders
37. Section 6 of the Children (Criminal Proceedings) Act 1987 provides:
- “A person or body that has functions under this Act is to exercise those functions having regard to the following principles:
- (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,
(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,
(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,
(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
38. Note that s. 33(2) of the Act provides that the Court shall not (and therefore is in mandatory terms) deal with a person under subsection (1)(g) (i.e. a sentence of a Control Order) unless it is satisfied that it would be “wholly inappropriate” do deal with a person under subsections (1)(a)-(f). For the benefit of the young person I cannot send him to be locked up in a Juvenile Justice Centre unless I think that I cannot do anything else.
39. The aspect of rehabilitation attains a much greater emphasis in a sentencing exercise involving a juvenile offender. However, the objective criminality and other aspects of the sentencing process are not overlooked merely because the offender is a juvenile, particularly where the offending is serious. It is my opinion that in sentencing juvenile offenders sub paragraphs (g) and (h) of section 6 of the Act can be too easily overlooked. Sully J. in R –v- WKR (1993) 32 NSWLR 447 at 460 (paragraphs F-G) cited with approval part of the judgment of Lee CJ at CL in R –v- Pham and Ly (1991) 55 A Crim R 135, namely:
“It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes”.
40. His Honour went on to say at p. 465 (paragraph F):
“In my opinion, it needs to be said without apology or diffidence that there is a great deal wrong with such aberrant ‘standards of behaviour’ and that young boys (and girls), who think otherwise must understand that, should they act accordingly, they will be held accountable according to the law as set by parliament, that being a process which will normally entail a period of imprisonment. In my opinion, cases such as the present one both entitle the court, and impose a duty on the court, to give such a warning in the hope of deterring other teenagers, especially very young teenagers, who might be tempted to offend in the way in which the present applicant has offended”.
41. The decision in WKR dealt principally with the issue as to whether the offender should have been dealt with “at law” or as a juvenile by the District Court. However, it is submitted that the parts of the judgment of Sully J extracted above are still very relevant on the issue of sentencing in the Children’s Court. More recently, the Court of Criminal Appeal has further considered the aspect of sentencing juvenile offenders in the decisions of:
· R –v- MSS [2005] NSWCCA 227
· R –v AN[2005] NSWCCA 239; and
· R –v- LNT[2005] NSWCCA 307.
42. R –v- MSS deals particularly with the issue of whether the superior Courts should deal with a juvenile according to law, or as a juvenile. The Children’s Court generally does not have that option. However, the decision of the Court of Criminal Appeal in R –v- WKR (1993) 32 NSWLR 447 has certainly been confirmed in that regard.
43. However, the Court (of Criminal Appeal) has made some observations that have a more general application to matters in the Children’s Court. Rothman J. (Simpson & Johnson JJ agreeing) said in LNT at [30]:
“The Court has, on a number of occasions, set out the principles which govern the sentencing of young offenders. In R –v- MA [2004]NSWCCA 92 Dunford J. with whom Studdert and James JJ agreed said:
“It is true that in the case of young offenders, there is generally greater emphasis given to rehabilitation and less to deterrence than in the case of adult offenders, but that depends in part on the age of the young person and the circumstances of the offence; there comes a point at which the seriousness of the crime committed by a young offender, particularly if a crime of violence is so great that the special attention normally given to rehabilitation in the case of young offenders must give way and greater emphasis must be given to punishment and deterrence”.
44. Later, at [32] Rothman J in that same decision referred to the judgment of Howie J in R –v- AN [2005] NSWCCA 239. in that:
“The full passage from R –v- Bus (NSWCCA unrep 3.11.95) is as follows: “…it is obvious that the relevant of the principles stated in s. 6 of the Children’s (Criminal Proceedings) Act to which individual case depends to a very large extent upon the age of the particular offender and the nature of the particular offence committed. An offender almost 18 years of age cannot expect to be treated according to law substantially differently to an offender just over 18 years of age. In both cases, the youth of the offender remains very relevant. Rehabilitation plays a more important role and general deterrence a lesser role. But that principle is subject to the qualification that, where a youth conducts himself in a way an adult might conduct himself and commits a crime of considerable gravity, the function of the Courts to protect the community requires deterrence and retribution to remain significant elements in sentencing him…”
45. Rothman J. went on to quote paragraph [57] of the judgment of Howie J. in AN:
“It is obvious that chronological age can not be the determining factor in deciding how much weight should be attributed to general deterrence and I do not believe that the cases espousing the approach adopted in Bus consider either the age or the acts of the offender in isolation without having regard to the mental state and circumstances of the offender at the time of the offending. In cases where this approach has been adopted for sentencing younger offenders there is nothing about the offending or the offender, other than age, that makes it inappropriate to threat the offender as if he or she were an adult”.
46. McClellan CJ at CL in R –v- KT [2008] NSWCCA 51 at [21]-[26] succinctly summarised the authorities relating to sentencing juvenile offenders. His Honour was ultimately in dissent on the ultimate issue, however, with unfeigned respect, that part of the judgment is an excellent summary of the relevant principles. His Honour said at [22]-[26]:
The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].
23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. ( R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence ( Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. ( Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).
24 Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):25 The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity ( R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" ( Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence ( Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.
"It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes , particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society."
26 The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity ( R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age ( R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth ( Hearne at [27]).
47. For the benefit of the young person I have just read out a lot of what the higher courts have said about dealing with young people like him. Rehabilitation is very important, but the Court must not ignore the serious nature of the crimes.
48. It needs to the borne in mind that the young offender on which I have to pass sentence was 13 years of age at the time of the commission of all of the offences. Given his age it is difficult indeed to come to any conclusion that he conducted himself as an adult. I accept that he was under the influence of an adult, who it would seem, was principally responsible for planning the criminality. Clearly, given the young offender’s age rehabilitation is an important consideration. Be that as it may, the sheer number of offences cannot be ignored.
49. I have presided at Albury Children’s Court since January 2008. I have been appalled at the number of young persons who come before the Court charged with Break Enter and Steal type offences. I have commented in the past that it seems to me that many such young persons regard such offences as recreational activity. I have made it plain to such young offenders that it is serious criminal offending and will be treated accordingly. I accept however, that it is not appropriate to use a fourteen year old boy as a vehicle for general deterrence.
50. In my opinion given the extent of the offending by this young offender a very substantial custodial sentence must be imposed. For the benefit of the young person, because of very high number of break and enters he did, I say that he must go to a Juvenile Justice Institution for a long time.
Breach of conditional liberty
51. This young offender has had numerous appearances before the Children’s Court in 2008. From my reading of his criminal history he was not subject to any good behaviour bond at the time of the commission of any of the offences on which I have to pass sentence. However, it would seem that he was on bail from at least an order of the Griffith Children’s Court for offences of Break Enter and Steal, Assault and offences relating to knives. The commission of offences while on bail is a matter of aggravation – see for e.g. R –v- Jones unrep. NSWCCA 30.6.1994, which was recently approved and followed by the Court of Criminal Appeal in R –v- AD [2008] NSWCCA 289. For the benefit of the young person, the crimes are more serious because he was on bail at the time he did some of the break and enters.
Multiple offending
52. There is not only Sequence 55 in respect of which I have to take into account the Form 1 matters but there are 12 other sequences involving substantive matters on which I also have to pass sentence. I will return to the Form 1 matters shortly in these remarks. It could be argued that all of the offences were committed during the course of one ongoing episode of criminality. It does not necessarily follow, however, that concurrent sentences will be imposed. Howie J. in giving the judgment of the Court of Criminal Appeal in Cahyadi [2007] NSWCCA 1 said at [27]:
“27…there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is no regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both”.
53. A similar issue arose in R –v- Vaovousa [2007] NSWCCA 253. After reciting the above extract from Cahyadi Howie J. said at [16]:
“This is not a new principle. Similar observations have been frequently made in this Court since Pearce was taken to require that each individual sentence imposed reflect only the criminality of the conduct to which it related and that the totality principle be addressed by an order making the individual sentences concurrent or at least partly cumulative. In R v Weldon and Carberry (2002) 136 A Crim R 55 at [48] Ipp JA stated that there is no inflexible rule that concurrent sentences should be imposed for multiple offences arising out of the one criminal enterprise. There are a number of cases that indicate that the fact that there are a number of victims will generally require an increase in the otherwise appropriate sentence where one victim only was involved: R v Wilson [2005] NSWCCA 219; R v KM [2004] NSWCCA 65”.
54. It is difficult to put these concepts into more simple terms. At the risk of being a little imprecise and basic, for the benefit of the young person, just because he did a high number of break and enters he does not “get some of them for nothing”.
Form 1 matters
55. I am asked to take into account, when passing sentence on the young offender, 42 matters on a Form 1 Schedule. In respect of the approach to the taken in such matters, Spigelman CJ giving the judgment of the Court of Criminal Appeal in Attorney General’s Application under s. 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 said at [42]:
- “The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another”.
56. The sheer number of matters on the Form 1 Document cannot be overlooked. For the benefit of the young person, this is much the same point I was making a little while ago – i.e. “he does not get some of them for nothing”.
Deleted at the Direction of the Presiding Magistrate.
Background Report
63. I am indebted to Mr. Wilson of the local office of the Department of Juvenile Justice for his helpful and comprehensive background report. The report indicates that the young offender was spending a great deal of time with the adult co offender, and that he was “sorry” for the offences he had committed. The young person was apparently associating with an inappropriate peer group in Griffith, which precipitated the family’s move to the Albury area.
64. The young person attended the local schools in Griffith but it seems there were “behavioural issues” during Year 8 at High School. The Principal of Albury High School informed the Department of Juvenile Justice that the young offender would not be enrolled in that school because of his violent and aggressive behaviours while at Griffith. The young offender eventually wants to enrol in a TAFE course related to building or carpentry.
65. The author of the report records his concern that upon his eventual release the young offender will return to the inappropriate peer group that he had before he went into custody.
66. It seems that the young offender has displayed considerable talent with sporting endeavours, in particular, Rugby League. He also expresses an interest in boxing. The PCYC in both Albury and Griffith operate boxing type programmes.
67. While in custody the young offender has been treated by a psychologist and a psychiatrist. There is apparently a history of mood instability and auditory hallucinations. He has apparently responded well to medication and other treatment. The young offender has a history of poly substance abuse, and it seems that there may well be a connection between the young offender’s consumption of cannabis and his mental health issues.
68. Since being taken into custody in respect of these matters the young person has been held at the Orana Juvenile Justice Centre and the Riverina Juvenile Justice Centre. He was held at Orana (Dubbo) because of behavioural issues within the centre at Wagga. The report indicates that despite erratic behaviours, the young offender has worked well at reducing his classification to one where he can be held at Wagga Wagga, which is closer to family.
69. Clearly, as the report indicates there will need to be attention paid to a plan to address risks of re offending. As a result of the sentences I am imposing today the offender will be on parole for a considerable period. Any re offending would almost inevitably lead to further and more substantial periods in custody.
70. The report realistically acknowledges that there is no alternative but a period of full time custody.
Plea in mitigation
71. I again acknowledge the comprehensive and helpful written submissions provided by the solicitor for the young offender. The offender is now 14 (15 in April) and is the youngest of a family of 6 children. He began abusing alcohol and cannabis when he turned 14. I note that that was in April 2008, and accordingly, at a time after the vast bulk of the offending on which I have to pass sentence was committed.
72. The submissions indicate that the offender was 13 when most of the offences were committed. I accept that the offender was under the influence of an adult, and accordingly, it is not one of the typical types of juvenile break and enter offences where the bravado feeds off one another. That adult offender is an uncle of the young offender. I accept the submission made on behalf of the young offender that, “(the uncle) has abused his familial position and the importance of this position in the Aboriginal culture, to his benefit and to Anthony’s detriment”.
73. Further, the submissions refer me to a number of authorities, most of which I have referred to above under the heading of matters of general principle relating to juvenile offenders. Realistically, it is conceded that the criminality on which I have to pass sentence is of “considerable gravity”. It is submitted that the young person was not acting as an adult. It is put on behalf of the young offender that “The circumstances of his offending in particular the involvement of the adult and his age, do not call for a shift in the balance between rehabilitation and deterrence when dealing with juvenile offenders”.
74. I have already indicated that I regard the retention of this matter in the Children’s Court as an extension of considerable leniency to this young offender. Clearly, the fact that the offender was under the influence of the older adult offender is a matter that needs to be factored into the sentence.
75. It is submitted that the primary focus in this sentencing exercise is rehabilitation. Given the young offender’s age, rehabilitation is an important factor. However, I cannot overlook the sheer volume of the offending on which I have to pass sentence.
Deleted at the Direction of the Presiding Magistrate.
77. It is realistically accepted that I have no alternative but to impose sentences of full time custody of this young offender. It is submitted that I would not impose a “crushing” sentence on the offender, and further that I would find that there are special circumstances as such to entitle me to vary the statutory ration between the non-parole period and balance of term. I accept that given the age of the young offender and the need for supervision that there are special circumstances.
78. I was concerned about what is to happen with the young person upon his eventual release. After all, he was living with his parents at the time of all of the offending on which I have to pass sentence. I heard further submissions today from Mr. Woodhouse. I also heard directly from Mr. Wilson from Juvenile Justice. From my experiences with Mr. Wilson, I have formed a very positive opinion of him and the work that he does with young offenders. I am assured that Juvenile Justice will subject the young person to very strict supervision, including but not limited to a curfew. It is proposed that the young person will enrol in a TAFE course related to the carpentry trade. Further, It is proposed he will be involved with the Mungabareena Aboriginal Corporation. Mr. Beresford of that organisation is known to the Court for his input and assistance with young aboriginal males. It is proposed that the young person will take part in a mentoring group. The young person will be encouraged to pursue his interests in football. Arrangements will be put in place if necessary with the Albury Mental Health Team. Juvenile Justice propose that the young person will take part in classes directed towards behavioural and cognitive issues. Juvenile Justice will arrange anger management, drug and alcohol counselling if that is deemed necessary or appropriate. Having had experience with Mr. Wilson of Juvenile Justice I am quite confident in his ability to determine whether such counselling is indeed necessary. The young person’s mother is present in Court today. I accept that she is aware of the need for the intensive supervision upon her son’s eventual release.
79. For the benefit of the young person, his lawyer and JJ have told me about his personal life and background. In particular, he was being “controlled” by his uncle who has done something very bad by getting so many young boys to do the break and enter offences. I have taken all of what I have been told into account.
General Remarks
80. I have already referred to s. 6 of the Children (Criminal Proceedings) Act 1987. It should already be tolerably plain that I am very clearly of the opinion that no other sentence other than a sentence of full time custody is appropriate. The young offender went into custody on 30 August 2008 and accordingly, it is appropriate to back date the sentence to commence on that date. I also have to give proper regard to the decision of the High Court in Pearce –v- The Queen (1998) 103 A Crim R 372.
81. I note that because of the young person’s age I cannot record convictions in any of these matters.
82. Further, despite the fact that I am dealing with a juvenile offender, given the number of offences with which I have to pass sentence it is appropriate to remind by self of the decision of the Court of Criminal Appeal (Gleeson CJ; Lee CJ at CL and Hunt J.) in R –v- Dodd (1991) 57 A Crim R 349 said at p. 354:
- “As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594.”
83. On a number of occasions within these remarks I have used the expression or words to the effect of “as a matter of principle”. While I accept that there must be the appropriate discount for the combined pleas of guilty and the assistance, it is my very firm opinion that the young person has already received very considerable consideration by the fact of the matters remaining in the Children’s Court. Accordingly, I am of the view that the young person should not receive the full mathematical benefit of the discount, at least so far as the total sentence is concerned. Apart from anything else, there is a real and significant need for intensive supervision upon the young person’s release. In respect of Sequence 55 I am prepared to reduce the non-parole period to accord with what has been established by the authorities. However, I am not prepared for these reasons to reduce the total sentence. Given the constraints of dealing with matters in the Children’s Court and the extent of the offending in respect of which I have to pass sentence this matter practically defies the proper and technical application of Pearce and the other authorities. The structure of the sentences is something that has caused me considerable anguish. I have attempted as best I can, taking all of the matters to which I have referred into account to arrive at a proper sentence. Be that as it may, the “starting point” in respect of Sequence 55, taking into account the Form 1 matters must be the maximum of 2 years.
Formal Orders
In respect of Sequences 7, 31 and 1(Aggravated Break Enter and Steal charges) the young person is sentenced to the Control of Minister for a non-parole period of 3 months commencing on 30 August 2008 and expiring on 29 November 2008. Thereafter I specify a balance of term of 6 months to commence on 30 November 2008 and expire on 30 May 2009.
In respect of Sequences 32,2 and 3 (Aggravated Break Enter and Steal charges) the young person is sentenced to the Control of the Minister for a non-parole period of 3 months commencing on 30 October 2008 and expiring on 29 January 2009. Thereafter I specify a balance of term of 6 months to commence on 30 January 2009 and expiring on 29 July 2009.
In respect of Sequences 4, 34 and 48 (Aggravated Break Enter and Steal Charges) the young person is sentenced to the Control of the Minister for non-parole period of 3 months commencing on 30 December 2008 and expiring on 29 March 2009. Thereafter I specify a balance of term of 6 months to commence on 30 March 2009 and expiring on 29 September 2009.
In respect of Sequence 8 (Take and Drive Conveyance) the young offender is sentenced to the Control of the Minister for a fixed term of 1 month to commence on 30 August 2008 and expiring on 29 September 2008.
In respect of Sequence 6 (Steal Firearms) the young person is sentenced to the Control of the Minister for a Fixed Term of 3 months to commence on 30 December 2008 and expiring on 29 March 2009. I have specified a concurrent fixed term as this offence is very closely related to one of the Break Enter and Steal offences on the Form 1 document.
In respect of Sequences 29 and 30 (Take and Drive Conveyance; Be Carried in Stolen Conveyance) the young person is sentenced to the Control of the Minister for a fixed term of 2 months to commence on 30 December 2008 and to expire on 28 February 2009. I have imposed concurrent fixed terms as these offences are incidental to the Break and enter offences, taking into account as best I can the matters set out within these remarks on sentence.
In respect of Sequence 55, taking into account the matters on the Form 1 document, and making the allowance for the plea of guilty and the assistance I sentence the young offender to the Control of the Minister for a non parole period of 7 months to commence on 30 March 2009 and to expire on 29 October 2009. Thereafter I specify a balance of term of 12 months to commence on 30 October 2009 to expire on 29 October 2010.
Gordon Lerve
Children’s Magistrate
Albury Children’s Court
26 March 2009.
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