Police v JMP; Police v KJP; Police v BJW

[2008] NSWLC 9

Local Court of New South Wales

CITATION:	Police v JMP; Police v KJP; Police v BJW [2008] NSWLC 9
JURISDICTION:	Children's Court
PARTIES:	Police v JMP Police v KJP Police v BJW
FILE NUMBER:
PLACE OF HEARING:	Young
DATE OF DECISION:	05/20/2008
MAGISTRATE:	Magistrate P Dare
CATCHWORDS:	Arson – school premises - juvenile offenders – sentencing principles – subjective considerations not to outweigh objective seriousness - pleas of guilty not "early" and limited utilitarian value – who is “the victim” - relevance of “community outrage” – convictions not recorded
LEGISLATION CITED:	Crimes Act, 1900 s 195 (1)(b) Children (Criminal Proceedings) Act, 1987 ss 6, 14, 33(1)(g), 33 (2)
CASES CITED:	Cameron v The Queen (2002) 209 CLR 339, Leese v Regina [2007] NSWCCA 108 Markarian v The Queen (2005) HCA 25 Mill v The Queen (1988) 166 CLR 59 MSS v The Queen (2005) 158 A Crim R 93 Regina v Adamson (2002) 132 A Crim R 511 Regina v AEM Snr, KEM and MM [2002] NSWCCA 58 Regina v Barlow [2008] NSWCCA 98 Regina v Bus,(Unrep), NSWCCA, 3 November 1995, Regina v Cardoso [2003] NSWCCA 15. Regina v Dib [2003] NSWCCA 117 Regina v Dodd (1991) 57 A Crim R 349 Regina v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) Regina v Elfar [2003] NSWCCA 358 R v El-Hayek (2004) 144 A Crim R 90 R v Fidow [2004] NSWCCA 172 Regina v GDP (1991) 53 A Crim R 112 Regina v Harmouche [2005] NSWCCA 398, Regina v Hearne (2001) 124 A Crim R 451; Regina v Hoang [2003] NSWCCA 380 Regina v KT [2008] NSWCCA Regina v LC [2001] NSWCCA 175 R v Mazur (2000) 113 A Crim R 67 R v Nimmo [2005] NSWCCA 295. Regina v Oinonen [1999] NSWCCA 310 Regina v Pham & Ly (1991) 55 A Crim R 128 Regina v Rushby [1977] 1 NSWLR 594 Regina v Saad [2007] NSWCCA 98 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 Regina v Stambolis [2006] NSWCCA 56 R v Thomson and Houlton (2000) 49 NSWLR 383 Regina v TJP [1999] NSWCCA 408 Regina v Tran [1999] NSWCCA 109 Regina v Voss [2003] NSWCCA 182 Regina v WKR (1993) 32 NSWLR 447 Regina v Zamagias [2002] NSWCCA 17 Siganto v The Queen (1998) 194 CLR 656 Todd v Regina [1982] 2 NSWLR 517 Veen v The Queen (No 2) (1987-88) 164 CLR 465
TEXTS CITED:
REPRESENTATION:	Sergeant A Bobin, Police Prosecutor, for the Informant Mr Z. Tankard, Solicitor, f/w JMP Mr S. Hausman, Solicitor, f/w KJP Mr S. Groch, Solicitor, f/w BJW
ORDERS:

REMARKS ON SENTENCE

1. On the evening of 10th May, 2007, into the early morning of 11th May, 2007, several fires were lit in rubbish bins in the central business district of Young. Another was lit in bush at the rear of the nearby Young Museum. But by far the worst was the total destruction of the kindergarten classroom block at Young Primary School. In circumstances to be set out, three young persons, JMP, KJP and BJW, were arrested for and charged with causing these fires. They now appear for sentence in respect of a series of charges ultimately negotiated with the prosecuting authorities. I say, “…charges ultimately negotiated …” because, according to the Court file, a number of the original charges which included one of “Aggravated Break and Enter and commit a Serious Indictable Offence in Company”, contrary to Section 112 (2) of the Crimes Act, 1900, were withdrawn on 18th April, 2008,

2. Pleas of not guilty had been entered to the original charges, brief service orders made, Local Court Listing Advices filed, and a defended hearing set for 16th April, 2008. The Listing Advices required the attendance of 14 prosecution witnesses with an estimated time of two to three days.

3. On 16th April, 2008, the hearing date was vacated – the Court being advised that “fresh” charges were to be laid. On 18th April, 2008, those charges were indeed laid and pleas of guilty entered to Sequences 2,3,4 and 7 (which I will set out in tabular form shortly). Sequences 1, 5 and 6 – Seq. 1 being the “Aggravated Break and Enter” - were marked ‘withdrawn and dismissed’. This is relevant to the timing of the pleas and what, if any, benefit flows to the young offenders – about which, more later.

4. The young offenders entered pleas of guilty to the following offences –

No.	Offence	Young Person
1	Between 6pm on 10th May, 2007 and 5.30am on 11th May, 2007, did destroy by fire a fixed garbage bin belonging to Young Shire Council.	JMP
2	Between 6pm on 10th May, 2007 and 5.30am on 11th May, 2007, did destroy by fire a fixed garbage bin belonging to Young Shire Council.	JMP
3	Between 6pm on 10th May, 2007 and 5.30am on 11th May, 2007, did destroy by fire 3 wheelie bins belonging to Young Shire Council.	JMP; KJP; BJW
4	Between 6pm on 10th May, 2007 and 5.30am on 11th May, 2007, did destroy by fire bush scrub, a small tree and leaf litter.	KJP; BJW
5.	Between 6pm on 10th May, 2007 and 5.30am on 11th May, 2007, did destroy by fire a school classroom belonging to the N.S.W Department of Education.	JMP; KJP; BJW

5. The charges are all contrary to Section 195 (1) (b) of the Crimes Act, 1900 which provides, relevantly, as follows:-

(1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:

(a) …

(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.

6. The maximum penalty if dealt with on Indictment is 10 years imprisonment. However, this is a matter to be determined in the Children’s Court. The maximum sentence available pursuant to Section 33 (1) (g) Children (Criminal Proceedings) Act 1987 is a sentence of Control of the Minister for a period of two years.

7. The Court Attendance Notices might have been better drafted in that they aver the young offenders, “…intentionally or recklessly…” damaged property, “… by fire/explosive …”. Given that they have each pleaded guilty to their respective charges and given the number of instances involved, “recklessness” is out of the question. I take the view, and I read the charges as if, they should aver, “… did intentionally damage property by fire …”

8. The following extracts are taken from the Fact Sheet:-

On Thursday 10th May 2007 the three young persons all met at the skate-park in Edwards Street, Young, along with a number of other young persons. At this location the three young persons consumed various amounts of alcohol believed to be rum, whisky and cask wine.

Approximately 10.30pm the three young persons (hereinafter referred to as “they”) were stopped by Police at the BP Service Station, Elizabeth Street, Young, where they were spoken to and details obtained. … From this location (they) walked to a friend’s premises …where they continued to consume alcohol.

A short time later (they) left the friend’s premises and walked to Anderson Park, Lovell Street, Young, where they remained and continued to consume alcohol.

(They) attended outside the Mill Tavern, Boorowa Street, Young, where JMP set fire to a bin causing damage to the bin’s structure and contents. KJP and BJW were present. The bin is owned by Young Shire Council and compensation in the amount of $600.00 is sought.

After running from the scene outside the Mill Tavern, (they) gathered outside the Post Office in Lynch Street, Young, where one spoke on a public telephone. JMP set fire to a bin causing damage to its structure and contents. (The bin is owned by Young Shire Council.) Compensation in the amount of $600.00 is sought.

(They) then ran from the scene through the car park of the Young S & C Club towards parkland known as Captain’s Weir. (They) set fire to three wheelie bins located in the laneway behind the Federation Motel. (The bins are owned by Young Shire Council). Compensation in the amount of $180.00 is sought. (They) went to the rear of the Young Museum located on Campbell Street, Young. KJP and BJW ignited a further two scrub fires at the rear of these premises. They used available leaf litter and similar items to create these fires.

(They) went to the grounds of Young Public School … (They) gathered at the kindergarten block (which is) made of brick with a tiled roof. This is a large building with a number of classrooms. Within each of the classrooms were numerous student artworks. There, a material (cloth) jumper was located and placed through a screen door to the room. This was draped over the wooden door frame and set alight causing significant charring to the door. This fire did not continue and burnt out. Together with this fire, a hole was kicked into a fibro panel underneath a window around the middle of the building. A window above was smashed and a fire set within paperwork across a desk. Police rely on joint criminal enterprise in relation to the involvement of all three young persons.

The premises were totally destroyed by fire. Numerous emergency services were deployed and contained the fire. As a result, the school was closed for a period of time which caused significant disruptions. Enquiries conducted by Police identified (them) with having been dealt with (sic) during the course of the evening.

Young persons KJP and BJW attended Young Police Station on the afternoon of 11th May, 2007 regarding another matter. (They) were arrested shortly after … support persons were contacted a short time later. JMP was contacted and he attended the Young Police Station in the company of his mother.

9. The Fact Sheet says that KJP and BJW took part in recorded interviews in which they, “made admissions.” I have read those interviews but did not find much of significance within them. JMP, as was his right, declined to be so interviewed and no inference adverse to him is taken in this regard.

10. The School Principal, Mr Ruskin, provided Police with an estimate as to costs involved in the clean-up, re-building and replacement of extras to the damaged school premises of something of the order of $940,000.00.

11. It needs be said at once that even if the offences numbered 1 to 4 inclusive outlined in the Table in paragraph 4 above could be described as mere wanton vandalism by idle youths (and I do not share that view), the offence numbered 5 is in an entirely different category. It was a deliberate and calculated act designed to destroy valuable public property and resulting, as I have no doubt it did, in considerable inconvenience, stress, upset and trauma to both teaching staff and pupils alike. The objective seriousness of this particular offence cannot be denied. Nor can it be stressed enough. It is, in my view, at the middle to higher end of the scale of criminality (although not “worst case”) and has to be dealt with accordingly. This is not a case of small boys playing with a box of matches.

12. JMP was born on 8th May, 1991. At the time of the commission of his respective offences he was aged 16 years. He has no prior criminal history. The Juvenile Justice Report of Georgina Marshall, says the young offender had been living with his father in Bateman’s Bay when, due to difficulties at school, he decided he would do better completing his studies at TAFE. He moved to Young to live with his mother and attend TAFE two weeks before the offences. He told Ms Marshall that 4 hours prior to the offences he had been at the Weir with “heaps of mates” drinking and drank some cans of bourbon mix and other alcohol that was being passed around. His description of events in the Report is, in the main, largely exculpatory and does not sit well with the pleas of guilty entered.

13. Subjectively, JMP is one of two children, having a younger sister. His father was a musician with a drinking problem but who, nonetheless, doted on his children. The father was much later diagnosed with bipolar disorder. The parents separated with his mother moving to Young and commencing a new relationship resulting in two children. His mother reports that JMP never bonded with his stepfather and their relationship could only be described as ‘extremely bad’. JMP was described as being a good student until about Year 7 when he started struggling. He went from being an above-average student to below-average resulting in him trying to get a TAFE Certificate. He is in receipt of Centrelink benefits of $180.00 per fortnight.

14. Due to the impending sentence proceedings he opted out of his TAFE course. He is said to have become quite ill over the past month, has had trouble eating and has lost a significant amount of weight. He is reported to have lost motivation. Since his guilty plea has withdrawn from society and become physically sick. I observe this is not an unusual phenomenon in persons awaiting sentence for serious crime. The Report says JMP appears in need of some mental health intervention. Because alcohol was involved while these offences were being committed, alcohol and other drug (AOD) intervention is recommended.

15. Mr Tankard tendered to the Court a comprehensive report from Doctor Joanna Rose, Psychiatrist, dated 12th May, 2008. She noted him to be a 17 year old boy who has shown aggression to people, some destruction of property, some deceitfulness and some violation of rules consistent with a Conduct Disorder. This disorder would appear to be of adolescent onset and to be in context of peer interactions. It appears to occur in the context of James’ father having a history of possible Attention Deficit Disorder and recently diagnosed Bipolar Disorder. Doctor Rose noted the young offender suffered a disrupted and unstable early family background as well as instability after his parent’s marital break-up with movement between his mother’s and father’s residence. He appears to be a boy who has marked affective dysregulation and volatility with clear signs of distractibility, impulsivity and poor frustration tolerance. His temperamental traits of volatility and instability, together with his ADHD spectrum symptoms and his drug and alcohol abuse increase his vulnerability and suggestibility to anti-social acts.

16. I have read the letter to the Court from his paternal grandmother who impresses as an intelligent, educated and caring person. I have also read the handwritten letter from the young person and while I note the criticism of such a practice in Regina v Elfar [2003] NSWCCA 358 at [25] I will accept its content as at least a measure of contrition and remorse. So, too, the letter the young offender has written to the School Principal.

17. I note with some surprise that a Youth Justice Conference has been suggested as a possible outcome to these sentencing proceedings. For an offence involving the deliberate destruction of a school building by fire, such an outcome is out of the question. Indeed, were I to adopt such a course there would be a justifiable sense of community outrage on the basis of manifest inadequacy. I note the other sentencing options put forward. Mr Tankard has made comprehensive submissions on behalf of the young offender and has said all that could possibly be said.

18. KJP was born on 29th April, 1991. At the time of the commission of his respective offences he, too, was aged 16 years and resided at the family home in Young. He was said to be employed and earning $500.00 per week. He has no prior criminal history. On the night of the offences, the young offender claims to have jointly consumed 3 casks of wine, 8 or so cans of rum mix and a large bottle of whisky. He also claims to have used other illicit substances during the evening. He says he does not remember much about the events of the evening due to intoxication. It was he who forced entry into the classroom by wrapping his shirt around his forearm and putting it through the window.

19. KJP did not have a particularly happy early life. His father was described as not being often at home and when he was he was extremely volatile. He and his sister would hide when his parents were yelling at each other. KJP developed suicidal tendencies and was referred for counselling and placed on antidepressant medication. His mother formed a new relationship and KJP has bonded well with her partner who has been mentoring KJP and guiding him in work.

20. When KJP moved to Young he immediately became involved with young people involved in the Juvenile Justice system – many of whom were not a positive influence on him. He obviously has a problem with drug and alcohol issues as outlined in the Juvenile Justice Report of Georgina Marshall of 19th May, 2008. She says that at the time of these offences, KJP was in a very confusing place surrounded by negative peers, alcohol, drugs and many unresolved emotional issues, as well as not having access to medical treatment for his behavioural disorders. She says KJP still has a long way to go and is in need of support in the areas of anger management, separation and self-esteem issues. I note the sentencing options outlined.

21. Mr Hausman, in similar vein to Mr Tankard, has submitted that a full-time custodial penalty is not inevitable and ought not be applied to the young offender for the reasons he outlined.

22. BJW was born on 10th September, 1990, and at the time of the commission of his respective offences was aged 17 years. He resided with his disabled father and under the care of his brother at the family home in Young and was in receipt of Centrelink payments. He does have prior matters on his criminal history – in 2005 for possession of prohibited drugs for which he was fined, and in 2007 for traffic matters. I am prepared to disregard those matters for present purposes. He completed Year 10 at a local High School. Upon admission to Riverina Juvenile Justice Centre (where he was held in custody for 2 days) he was noted to be showing signs of drug and alcohol withdrawal.

23. He lost his mother 4 years ago but both he and his father were described as being very closed on the subject. The Juvenile Justice Report author, Ms Marshall, suspects that BJW is in need of grief and loss intervention, accommodation intervention, drug and alcohol intervention and employment intervention. I reject the suggested outcome of a Youth Justice Conference for the reasons outlined in paragraph 15 above. I note the other suggested sentencing options and have paid careful attention to the helpful submissions made on behalf of the young offender by Mr Groch.

Matters of General Principle

24. Subject to some exceptions not applicable here, the Children’s Court has jurisdiction to deal with offences alleged to have been committed by a person who was a child when the offence was committed and was under the age of 21 years when charged before the Children’s Court: s 28(1). The Act defines a child as a person under the age of 18 years: s 3(1).

25. The charge is one brought contrary to Section 195 (1) (b) of the Crimes Act1900. The real criminality with which I am here dealing is the malicious destruction by fire. In the decision of the Victorian Court of Appeal in R-v- Mazur (2000) 113 A Crim R 67 at 74 Winneke P., said at [27]:

“…I agree with Brooking JA that courts imposing sentences for arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate”.

26. The Court was, of course, there dealing with adult offenders. However, it is a very clear statement as to how serious the crime of malicious damage by fire (arson) is regarded.

27. Section 33(2) of the Children (Criminal Proceedings) Act 1987 provides that the Court shall not (and is therefore in mandatory terms) deal with a person under subsection (1)(g) (i.e. a sentence of Control Order or custody) unless it is satisfied that it would be wholly inappropriate to deal with the person under subsection (1)(a)-(f).

28. Generally, the aspect of rehabilitation will be of much greater significance when sentencing juvenile offenders. However, the criminality and other aspects of the sentencing process cannot be overlooked, particularly in circumstances where the criminal offence under consideration is a serious one. Sully J. in Regina v WKR (1993) 32 NSWLR 447 at p. 465F:

“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”.

29. Sully J. was, of course, dealing with offences of a different nature than that with which I am sentencing this young offender. However, in my view, as matters of general principle, his Honour’s remarks are equally applicable. Indeed, his observations are particularly apposite in the case with which I am now dealing.

30. More recently, the Court of Criminal Appeal further considered the aspect of sentencing juvenile offenders in the decisions of:

• Regina –v- MSS [2005] NSWCCA 227
• Regina –v AN [2005] NSWCCA 239; and
• Regina –v- LNT [2005] NSWCCA 307.

31. Regina 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 Regina v WKR (supra) has certainly been confirmed in that regard.

32. McClellan CJ at CL in the more recent decision of Regina v KT [2008] NSWCCA reviewed the authorities relating to sentencing juveniles. At [21]-[26] his Honour said:

“21. Section 6 of that Act provides legislative guidelines in the treatment of young offenders:

"A court, in exercising criminal jurisdiction with respect to children, shall have 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."

22. 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 Regina v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), Regina v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and Regina 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. (Regina 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]; MSS 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 Regina v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

"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 i.e., coercive action is fundamental to correctional treatment in our society."

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 (Regina v Bus,(Unrep), NSWCCA, 3 November 1995, Hunt CJ at CL; Regina v Tran [1999] NSWCCA 109 at [9]-[10]; Regina v TJP [1999] NSWCCA 408 at [23]; Regina v LC [2001] NSWCCA 175 at [48]; Regina v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; Regina v Adamson (2002) 132 A Crim R 511 at [31]; Regina 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.

26. The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (Regina 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 (Bus (supra),; Voss (supra) at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne (supra)at [27]).

33. In the matter presently under consideration the Court is dealing with young offenders who were 16 years, 16 years and 17 years of age respectively. Clearly, rehabilitation remains a very important consideration in dealing with them. However, as the various authorities referred to by McClellan CJ at CL in KT disclose - the seriousness of the offending, the extent of the damage, retribution and denunciation do not cease to be relevant considerations in the sentencing exercise. This matter did not include the use of a weapon, although it does involve the deliberate setting of fire within a school building. There was not significant planning or pre-meditation, but the matter did involve planning to the extent of forcing an entrance to the building, and spreading flammable and combustible material in order to assist the establishment and spread of the fire. The young offenders have no, or no relevant, criminal history.

34. It needs to be acknowledged that, although the consequences are almost invariably very serious, offences involving arson at schools are generally committed by juvenile offenders. There is rarely a school holiday period goes by without some school, somewhere in New South Wales, being destroyed in whole or in part by fire. It is an occurrence of alarming prevalence for which offenders are seldom caught. The cost of reconstruction of buildings and replacement of contents is considerable requiring, as it must, the diversion of finite Government funds away from other essential services, not to mention the gross effrontery of such conduct upon the wider community.

Plea of Guilty

35. A plea of guilty is an acknowledgment of each of the intrinsic elements of the offence, including the intention to commit the offence. It is also a circumstance that the Court is obliged to take into account.

36. The manner in which a plea of guilty is to be approached by Courts is subject to the guideline judgment of R-v- Thomson and Houlton (2000) 49 NSWLR 383 wherein the Court said, inter alia

(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant – contrition, witness vulnerability and utilitarian value – but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, eg assistance to authorities, a single combined quantification will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

(v) The utilitarian value of the plea does not depend upon the strength of the Crown case.

37. Earlier in these Remarks (paras 2 & 3) I referred to a chronology of sorts culminating in the setting down for hearing of the original charges. The pleas of guilty, when forthcoming, were flagged on the day of hearing, 16th April, 2008, and entered two days later. The timing of the plea of guilty, particularly after negotiations with prosecuting authorities, was considered in Regina v Stambolis [2006] NSWCCA 56. Howie J., at [11] made the following observations:-

11. Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity.

12. I accept that there may be exceptional cases where, as a matter of fairness to the offender, a discount will be given even though there was no utilitarian value in it. One such situation that has been recognised is where the Crown rejects the accused’s plea of guilty to manslaughter and the accused is later acquitted of murder but convicted of manslaughter after trial: Regina v Oinonen [1999] NSWCCA 310 ; Regina v Cardoso [2003] NSWCCA 15 . But in Regina v Harmouche [2005] NSWCCA 398 , Hulme J., with whom Sully J., and Latham J., agreed, wrote:


[38]. Undoubtedly, the Respondent on the evidence before, and findings of, Judge Delaney made out an impressive subjective case. He had the factors of a plea, delay and youth arguing for a lesser penalty than would have been appropriate in their absence and was also entitled to have taken into account 134 days, i.e. something over 4 months, pre-sentence custody.

[39]. That said, the 25% discount for the Respondent’s plea was unduly generous. In giving it his Honour seems to have made a mistake commonly seen in this Court that because a plea was entered at the earliest opportunity (commonly shortly after the Crown reduces a charge) an offender is entitled to that discount. Such an approach is to misread R v Thompson and Houlton (2000) 49 NSWLR 383 and to ignore the rationale for a discount of that degree. The Chief Justice made it clear, at [154-5], that the rationale for a 25% discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided. Certainly his Honour made reference to a plea being entered at the earliest opportunity but that was in the context to which I have referred and where his Honour was obviously contemplating the committal stage of criminal proceedings where the community would be saved the costs associated with prosecution of the case from (the beginning of) that stage.

[40]. That what I have said correctly reflects what the Chief Justice said derives support from observations of Hodgson JA, with whose remarks Barr J agreed, in Regina v Dib [2003] NSWCCA 117 where, dealing with a complaint that only 16.7% had been allowed in the case of a plea entered in response to a lesser charge than originally preferred, his Honour said, at [5 - 6]:
-

“If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.”
[41] I myself would go further. Albeit the extent of any discount is a matter in which a sentencing judge has some discretion - although as R v Thompson and Houlton at [159] makes clear, one subject to appellate review – where the rationale for a discount as high as 25% does not exist, a discount of that degree should not be given.

38. Howie J’s remarks were cited with approval in Regina v Saad [2007] NSWCCA 98 per Hoeben J., at [23] to [32]. Hoeben J., also dealt with a criticism of the Judge at first instance failing to quantify any particular discount. He said at [30] – [32]:-

“30. That criticism is not appropriate to his Honour’s approach in this case. It is true that his Honour did not specify a percentage. He did, however, make it clear how he regarded the relative utilitarian value of the plea. His Honour found it to be towards the bottom of the range. I agree. In percentage terms the highest at which the discount for the utilitarian value of the plea could be assessed would be 10 percent and even that would be generous in favour of the applicant. Insofar as any discount for contrition was concerned there was, as his Honour pointed out, no evidence of any contrition other than the plea of guilty which of itself was of limited value. Any discount for contrition would be well and truly included in a discount of up to 10 percent for the utilitarian value of the plea of guilty.

31. While this Court has said on a number of occasions that in the interests of transparency it is desirable that sentencing judges should specify the extent of any discount for the utilitarian value of a plea of guilty it is not error for a judge to fail to mathematically quantify such a discount provided it is taken into account. ( Markarian v The Queen (2005) HCA 25 ). Given the circumstances of this case and his Honour’s express reference to the discount and its limited utilitarian value, I am satisfied that his Honour did take it into account in formulating his sentence and that the applicant did obtain an appropriate discount for his plea of guilty.

32. This ground of appeal has not been made out.”

39. Even approaching the matter on the rationale preferred by the majority in Cameron v The Queen (2002) 209 CLR 339, by treating the discount as reflecting a willingness to assist the administration of justice, there was no such willingness evident in this case until April, 2008. I wish to make it clear that I regard the utilitarian value of the pleas as towards the middle of the range. Nothing I have said regarding the timing of the pleas is to be taken as placing little or no weight on the pleas entered. To the contrary. Every plea of guilty, whether entered at a late or later stage, is to be welcomed and given a proper recognition as to its utilitarian value. And I have done so in these cases.

Special Circumstances.

40. I have considered the question of “special circumstances”. The finding of special circumstances is a discretionary finding of fact (see R v El-Hayek (2004) 144 A Crim R 90 at [103]) and, even if special circumstances are found, the court is not obliged to vary the statutory ratio. The non-parole period must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence: see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at 718.

41. Merely because there is present a circumstance which is capable of constituting “special circumstances” does not mean that a sentencing judge is obliged to vary the statutory proportion: R v Fidow [2004] NSWCCA 172. The circumstances must be sufficiently special to justify a variation: R v Nimmo [2005] NSWCCA 295.

42. In Fidow Spigelman CJ said at [20]–[22]:

“There is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing ‘special’ about many cases in which the finding is made. Research by the Judicial Commission of New South Wales of the sentences imposed on 2,801 offenders in the Supreme and District Courts during 2002 suggest that Parliament’s intention that the statutory proportion apply unless ‘special circumstances’ exist that justify departure from it, is not being carried out.

43. I am prepared to find special circumstances due to the age of the young offenders, the need for supervision upon release and that this will be their first time in custody.

Effect on the Victim/s.

44. The common law required sentencers to have regard to the effect of the crime on the victim. In Siganto v The Queen (1998) 194 CLR 656 Gleeson CJ, Gummow, Hayne and Callinan JJ at [29] referred to:

“… the undoubted proposition that a sentencing judge is entitled to have regard to the harm done to the victim by the commission of the crime. That is the rule at common law.”

45. Who is the ‘victim’ in a case dealing with the destruction of a school building? Undoubtedly, the Government is a victim in that it is the owner of the property and, through taxpayers, is responsible for replacement. But it seems to me that the very nature of the property destroyed, and what was destroyed within it, must also include as ‘victims’ the teaching staff, school pupils and the wider community of Young. Indeed, Section 3A (g) of the Crimes (Sentencing Procedure) Act, 1999 provides that one of the purposes for which a Court may impose a sentence on an offender is “to recognise the harm done to the victim of the crime and the community. (emphasis added).

46. The inclusion of the “wider community of Young” is warranted also in connection with the imposition of any penalty. In Leese v Regina [2007] NSWCCA 108 exception was taken on appeal to a remark by the Judge at first instance who said, “… the community would be horrified were it to think that anything other than a full-time custodial sentence would be appropriate.” Hoeben J., at [21] had this to say:-

“21. By referring to community outrage his Honour was doing no more than taking into account that right minded members of the community would regard the criminality of this offence as such that it ought be denounced by a sentence of imprisonment. It is not without significance that in the context of what part antecedent criminal history should play in the sentencing process that the High Court said:

‘Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalty." ( Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 477-78. )’”

General Remarks

47. Although I am dealing with juvenile offenders, given the nature of the offences and the amount of damage occasioned, particularly to the school, I am dealing with very serious crime. Not only is the material value of repairing the damage very high, there is also the undoubted and very considerable disruption to the pupils and teachers of the school. As discussed above when referring to the relevant authorities in sentencing juvenile offenders, although rehabilitation must feature prominently in the sentencing exercise, the usual considerations present in any sentencing exercise cannot be overlooked. Even in the Children’s Court, there must be some proportionality between the offending and the penalty imposed.

48. In this regard, the Court of Criminal Appeal (Gleeson CJ; Lee CJ at CL and Hunt J.) in Regina –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 .”

49. I have reviewed the relevant authorities, and have given very close consideration to the Background Reports, the medical reports, the testimonials and the submissions made on behalf of the young offenders. However, in all of the circumstances, despite all of those matters, I have come to the conclusion that no sentence other than full time custody is available.

50. The next issue is whether that sentence should be suspended. Howie J. in Regina –v- Zamagias [2002] NSWCCA 17 said at [32]:

“32. Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.”

51. The decision of the Court of Criminal Appeal in Zamagias was recently affirmed by the Court of Criminal Appeal in Regina –v- Barlow [2008] NSWCCA 98 at [58]-[59].

52. I again remind myself that I am dealing with juvenile offenders. However, in all of the circumstances, I am of the opinion that the objective seriousness of the offences, but in particular the destruction of the school building by fire, are such that I am unable to suspend the sentence of Control Order that I am about to impose. Although I am dealing with juvenile offenders, there must be some element of general and specific deterrence in the sentence. However, given the offenders’ ages, and lack of record, the need for supervision upon release and that this will be their first time in custody, I am satisfied that there are “Special Circumstances”, and accordingly, I will vary the statutory ratio.

53. I find that while, in particular, the destruction of the school building by fire is towards the upper end of the range of seriousness, I do not find that it is within the “worst type category”. In the matter presently under consideration while the fire was deliberately lit, there was no great degree of planning, and I accept that it was probably not intended that there be the very substantial amount of damage that was actually occasioned. I find there is no difference in the level of criminality of the young offenders and that each is a culpable as the other.

54. A final question needs to be addressed and it concerns the recording of convictions. Section 14 of the Children (Criminal Proceedings) Act, 1987, restricts the circumstances in which a conviction can be recorded so as to, as far as possible, avoid stigmatising the child. Section 14(1) provides that:

“(1) Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court:

(a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years; and

(b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.”

55. I take into account the present ages of the young offenders and that they have no, or no relevant, prior criminal history. In the exercise of my discretion under Section 14 (1) (b) , while I find the offences proved, I decline to record such findings as convictions

Formal Orders

Sentences for JMP:-

Between 6pm on 10th May, 2007 and 5.30am on 11th May, 2007, did destroy by fire a fixed garbage bin belonging to Young Shire Council. The offence is proved. A conviction will not be recorded. Pursuant to Section 33 (1) (a) the charge is dismissed with a caution.

Between 6pm on 10th May, 2007 and 5.30am on 11th May, 2007, did destroy by fire a fixed garbage bin belonging to Young Shire Council. The offence is proved. A conviction will not be recorded. Pursuant to Section 33 (1) (a) the charge is dismissed with a caution.

Sentences for KJP and BJW:-

Between 6pm on 10th May, 2007 and 5.30am on 11th May, 2007, did destroy by fire bush scrub, a small tree and leaf litter . The offence is proved. A conviction will not be recorded. Pursuant to Section 33 (1) (a) the charge is dismissed with a caution.

Sentences for JMP, KJP and BJW:-

Between 6pm on 10th May, 2007 and 5.30am on 11th May, 2007, did destroy by fire three wheelie bins belonging to Young Shire Council. The offence is proved. A conviction will not be recorded. Pursuant to Section 33 (1) (b), the child is released upon entering a bond to be of good behaviour for a period of 18 months . The bond is subject to the following conditions:-

• The child will be of good behaviour;
• The child will inform the Registrar of this Children’s Court of any change of residential address during the currency of the bond;
• The child will place himself under the supervision of the Department of Juvenile Justice for such period as the Department deems necessary and obey all reasonable directions relating to drug and alcohol counselling, education (including attending school or TAFE regularly) and/or obtaining employment;
• The child is not to consume alcohol or any drugs other than prescription medicine.

56. In all of the circumstances, taking into account the various matters of principle to which I have referred, the objective seriousness of the offending, the amount of damage occasioned, the various reports and testimonials and the subjective matters put - given the maximum sentence available is a Control Order of two years, I assess the criminality worthy of a total sentence of 22 months. Allowing some discount for the plea of guilty and the finding of special circumstances - the total sentence is one of 16 months.

Between 6pm on 10th May, 2007 and 5.40am on 11th May, 2007, did destroy by fire a school classroom belonging to the N.S.W. Department of Education.

I have considered Sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999 and its application to Section 6 of the Children (Criminal Proceedings) Act, 1987 – see R v GDP (1991) 53 A Crim R 112. See also R v DM [2005] NSWCCA 181 per Hulme J., and R v Hearne (2001) 124 A Crim R 451. I am satisfied, having considered all possible alternatives, that it would be inappropriate to deal with this matter in any other way, having regard, principally, to the objective seriousness of the offences – see R v Pham & Ly (1991) 55 A Crim R 128 ; R v TJP [1999] NSWCCA 408 ; R v Stanley [2003] NSWCCA 233 and, I regret to observe, the prevalence of the offence in the community and the need for general deterrence.



JMP is committed to the control of the Minister administering the Children (Detention Centres) Act, 1987 for a non-parole period of eleven (11) months to commence on 13th May, 2008, to expire on 12th April, 2009, and a balance of term of five (5) months to commence on 13th April, 2009 and expire on 12th September, 2009. The total sentence imposed is one (1) year and four (4) months. He is to be released to parole on 13th April, 2009 and is eligible for parole on that date.

BJW is committed to the control of the Minister administering the Children (Detention Centres) Act, 1987 for a non-parole period of eleven (11) months to commence on 9th May, 2008, to expire on 8th April, 2009, and a balance of term of five (5) months to commence on 9th April, 2009 and expire on 8th September, 2009. The total sentence imposed is one (1) years and four (4) months. He is to be released to parole on 9th April, 2009, and is eligible for parole on that date.

KJP is committed to the control of the Minister administering the Children (Detention Centres) Act, 1987 for a non-parole period of eleven (11) months to commence on 24th April, 2008, to expire on 23rd March, 2009, and a balance of term of five (5) months to commence on 24th March, 2009 and expire on 23rd August, 2009. The total sentence imposed is one (1) year and four (4 ) months. He is to be released to parole on 23rd March, 2009 and is eligible for parole on that date.

I find circumstances are sufficiently special for the statutory proportion to be reduced owing to the offender’s age; the need for extended supervision upon release; that this sentence will be the offender’s first time in custody – see Regina v Simpson (2001) 53 NSWLR 704 and Regina v Fidow [2004] NSWCCA 172 .

In relation to each young offender, I take into account the periods of continuous and irregular pre-sentence custody by back-dating the sentences: see Regina v Newman & Simpson (2004) 145 A Crim R 361 per Howie J. See also Regina v Galati [2003] NSWCCA 148 and Regina v Howard [2001] NSWCCA 309.

I direct the release of the child to parole subject to the following conditions:- The child -
• Will place himself under the supervision of the Department of Juvenile Justice and obey all reasonable directions relating to drug and alcohol counselling, and any other identified areas of criminogenic behaviour, education (including attending school or TAFE regularly) and / or obtaining employment;
• Is prohibited from associating with persons advised of in writing by the Department of Juvenile Justice or a parent or carer;
• Is prohibited from attending premises or places advised of in writing by the Department of Juvenile Justice or a parent or carer;
• Not to consume alcohol or drugs other than prescribed medication.

Peter S. Dare SC

Magistrate

Children’s Court,

Young

20th May, 2008.