Police v JS

[2006] NSWLC 43

Local Court of New South Wales

CITATION:	Police v JS [2006] NSWLC 43
JURISDICTION:	Children's Court
PARTIES:	Police JS
FILE NUMBER:
PLACE OF HEARING:	Moree Local Court
DATE OF DECISION:	11/21/2006
MAGISTRATE:	Magistrate G Lerve
CATCHWORDS:	Sentence – juvenile offenders – multiple offending – late guilty plea – breach of conditional liberty – Aggravated Break, Enter and commit serious indictable offence (malicious damage by fire) – substantial damage – threaten witness – cumulation of sentence for public justice offences
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R –v- AN [2005] NSWCCA 227 R –v- Carberry & Weldon (2002) 136 A Crim R 55 R-v- Carr (2002) 135 A Crim R 171 R –v- D’amico [2006] NSWCCA 316 R –v- Dibb [2003] NSWCCA 117 R –v- Elyard [2006] NSWCCA 43 R –v- Harrigan [2005] NSWCCA 449 R –v- Higgins [2006] NSWCCA 326 R –v- Jones unrep. NSWCCA 30.6.1994. R –v- Leonard & Fail [2006] NSWCCA 345 R –v- LNT [2005] NSWCCA 307 R –v- MA [2004] NSWCCA 92 R –v- Marinellis [2006] NSWCCA 307 R –v- MSS [2005] NSWCCA 227 R –v- Pearce (1998) 103 A Crim R 372 R –v- Pham & Ly (1991) 55 A Crim R 135 R –v- Ponfield & Ors. (1999) 48 NSWLR 435 R –v- Simpson (2001) 53 NSWLR 723 R –v- Tadrosse [2005] NSWCCA 145 R –v- WKR (1993) 32 NSWLR 447
REPRESENTATION:	Sgt. M. Westman Mr. B. Hoffman
ORDERS:

Remarks on Sentence

The Young Person appears for sentence in respect of the following matters:

1. That (he) between 15 July 2006 and 17 July 2006, at Moree in the State of New South Wales, did break and enter the shop owned by BB and leased by DS and TG, and then in the said building did commit a serious indictable offence, namely, malicious damage by fire, in circumstances of aggravation, namely, that he was in company with another person; and

2. That (he) between 15 July 2006 and 17 July 2006 at Moree in the State of New South Wales did attempt to steal a motor vehicle, namely a 2006 Holden Crewman utility, the property of Moree Holden; and

3. That (he) on 17 July 2006 at Moree in the State of New South Wales did break and enter the store of New South Wales T.A.F.E. situate on Newell Highway, and while in the said store did steal a Yamaha Quadbike, the property of the said New South Wales T.A.F.E.; and

4. That (he) on or about 20 July 2006 at Moree in the State of New South Wales did threaten to cause injury to BC on account of a thing lawfully done by BC as a witness in judicial proceedings.

In respect of the charges of Aggravated Break and Enter and Attempt Steal Motor Vehicle offences he was charged on 25 July 2006. On 26 July 2006 he had his initial appearance before the Court on which occasion pleas of not guilty were entered. The usual brief orders were made. The pleas of not guilty were confirmed on 4 September 2006 and the matter listed for hearing on 17 October 2006. On that date pleas of guilty were entered.

In respect of the break enter and steal offence the young person was arrested on 19 July 2006. The initial appearance was again on 26 July 2006 on which date a plea of not guilty was entered. The plea of not guilty was confirmed on the reply date of 4 September 2006 and the matter listed for hearing on 18 October 2006. A plea of guilty was entered on that date.

The young person was arrested on 21 July 2006 in respect of the Threaten Witness charge. It too came before the Children’s Court on 26 July 2006 on which date a plea of not guilty was entered. That plea was confirmed on the reply date, 4 September 2006. A hearing date of 18 October 2006 was set, and a plea of guilty was entered on that date.

There was no alteration to the charges with which the young person was faced. There have been some deletions from the original fact sheet, but nothing it would seem that significantly impacts on the criminality alleged against the young person. I am of the opinion that in all circumstances that the pleas of guilty were entered quite late the proceedings. Accordingly, the discount for the utilitarian value of the plea is reduced significantly, to in my opinion no more than ten percent: see for e.g. R –v- D’amico [2006] NSWCCA 316 and R –v- Dib [2003] NSWCCA 117.

Facts

I turn initially to the matters within the papers numbered H27463054, namely the Aggravated Break and Enter and Attempt Larceny of a motor vehicle. On Saturday 15 July 2006 the young person was walking around Moree with his co-offenders. They walked to the south of Moree, towards the local airport. At Blueberry Road, which borders the land on which the airport is located, the young person and the co offenders went to the premises set out in the charge. The young person observed through a window that within the premises, which were a smash repair/panel-beating/spray-painting type business, was a brand new and yet unregistered 2006 Holden Crewman utility that he wanted to steal. He went to the side of the shed, peeled down a grate, creating a hole large enough through which to enter the premises. He then opened a door allowing his co offenders access to the premises.

Once inside, the offenders searched unsuccessfully for the keys to the vehicle. This offender then smashed one of the windows in order attempt to steal it. This caused the vehicle’s theft alarm to activate. The offender lifted the bonnet and disconnected the battery in order to stop the alarm. This young offender broke the ignition of the utility with a screwdriver in his attempt to steal the vehicle. Some of the co offenders apparently told police that they were in the shed for about five hours.

While this offender was attempting to steal the utility, the co offenders threw paint over other vehicles within the premises that were there for repairs. One of the co offenders acted as a “look out” while the others were in the shed.

Not being able to start the Crewman utility the offender took a 40 litre drum of fuel that was in the shed and doused the utility with the fuel. The offender lit the fuel and yelled at his co offenders to run, which they did. There was an explosion and a substantial fire. The shed was very substantially damaged and much of its contents, including the new utility vehicle and a number of other vehicles that were within the premises for repairs, were completely destroyed in the resulting explosion and fire. The business was not able to operate for a number of weeks because of the damage caused and mess created.

I am not informed of the monetary damage. However, it seems to me that I would be entitled to find beyond reasonable doubt for the purpose of proceeding to sentence, that the damage, including the loss of the vehicles within the premises, would have been very substantial, and indeed in the hundreds of thousands of dollars.

The offender was arrested on 25 July 2006, and as was his right, declined to be interviewed by police.

I turn now to the facts of the Break Enter and Steal offence contained within H29458684. At about 7.30pm on 17 July 2006 the offender went to the Moree Agricultural TAFE, which is located some 7km to the north of Moree township. He applied sufficient force by pushing on a roller door to create sufficient space to enter the shed. Once inside the shed he came across a YFM 400 Yamaha Quadbike that had the key in the ignition. The offender opened a sliding door and rode the Quadbike from the shed. The bike apparently became caught in the boundary fence and was abandoned by the offender. The entry into the premises by the offender apparently activated an alarm. Police and security personnel went to the premises, but there was no sign of the offender.

The offender was arrested on 19 July 2006, and (as was his right) declined to be interviewed by police.

I turn now to the Threaten Witness charge. In the afternoon of 18 July 2006, BC, one of the co offenders involved in the break-in at the spray painting business, went to the police station and gave a statement to police, in which he nominated the offender with whom I am now dealing as being involved. It came to the attention of the offender with whom I am now dealing that BC informed on him. The offender approached one JC (who was also involved in the Aggravated Break and Enter Offence) and said words to the effect of, “S’s (reference to BC) dead…the cops said he dobbed me in for rolling TAFE”. When JC inquired as to when it was going to be done, the offender replied with words to the effect of, “Dunno, but I’m going to get someone from Toowoomba to do it, a close relative”. Apparently threats were also made in respect of the proprietors of the spray-painting business.

BO (another co offender in the Aggravated Break and Enter offence) told police that the offender approached him and said to him words to the effect of, “I’m going to get one of my mates down from Toowoomba to take care of BC because he snitched on me about breaking into TAFE and stealing the Quadrunner.” When BO expressed doubts about the offender going through with this threat the offender apparently replied with words to the effect of, “nah, I’m going to get one of my mates from Toowoomba to do it”.

On 18 July 2006 BO and JC approached BC at his home, and informed him that the offender had made threats to have him shot.

The offender when arrested on 21 July 2006 was interviewed to police, and I am informed by the contents of the Police Fact Sheet, made admissions to the offence.

CSO Matters of 12 July 2006

In the event that this decision is reviewed, I will for the sake of completeness, set out the facts of the matters that were before me on 12 July 2006 in respect of which I imposed orders of Community Service.

The offence of Take and Drive Motor Vehicle involved the offender breaking into a vehicle (by smashing a rear quarter window) parked at the car park of a local supermarket, damaging the surrounds of the ignition and “hotwiring” the vehicle in order to start it. The vehicle was driven to the “Ticklebelly” stock reserve some few kilometres south of Moree and abandoned. The offender was detected through the location of fingerprints on the plastic surrounds of the ignition switch that were damaged and left in the vehicle in the course of the commission of the offence. The matter was defended, but the offender was found guilty and convicted. I imposed a Community Service Order (CSO) of 120 hours.

The Possess Offensive Implement charge relates to the offender being in possession of a large piece of Perspex while walking in the main street of Moree. He was detected on closed-circuit security television at a local business. A CSO of 30 hours (concurrent was imposed)

At about 4.30pm on 11 May 2006 the offender went to the local Target store where he went to the shoe section. He placed a pair of shoes on his feet and left the store without making any attempt to pay for the shoes. When challenged by security staff the offender said that a mate had bought them for him. Ultimately, however, he admitted to stealing the shoes to the security staff. A concurrent CSO of 50 hours was imposed.

Assessment of the Criminality (fresh matters)

I assess the Aggravated Break Enter offence to be a serious example of that type of offence, and indeed, well over the halfway mark on the scale of seriousness. However, in my opinion it is not within the worst category of case. The damage was substantial. The setting of the fire was deliberate – a volatile accelerant being used, and in my opinion calculated to cause the maximum amount of damage. The business was unable to operate for a number of weeks. Substantial hardship would have been caused to the proprietors of the business. Indeed, the setting of the fire was nothing other than wanton vandalism. However, there does not appear to be a great deal of pre planning. Be that is it may, I am of the opinion that a number of the aggravating features (beyond the aggravation pleaded in the averment in the Court Attendance Notice) referred to by Grove J. in R –v- Ponfield & Ors. [1999] NSWCCA 435 at [48] are present in the matter, in particular (i) that the offender was on conditional liberty; (v) that there was vandalism and significant damage and (viii) that the damage occasioned was substantial. These issues are expanded upon in these remarks. I have made a conscious effort not to “double count” these factors.

The Break Enter and Steal offence I assess to be at about, or slightly less than the mid-range of seriousness. The offence occurred at after dark, although it was not particularly late. The premises were some 7 km out of town. I am satisfied beyond reasonable doubt that the offender set out to go to the premises with the intention of breaking into them. I am fortified in this finding by the contents of the Juvenile Justice Report that recites, “he stated that he remembered there being property at the TAFE that could be exchanged for money…”

The offence of Threaten Witness is a particularly serious offence, and one that strikes at the very heart of the criminal justice system. Clearly enough the offender made the threats, and made those threats in order to frighten and concern the young person BC. However, one is left wondering whether the offender had the intention or the wherewithal to carry out the threat. I am not satisfied beyond reasonable doubt that he did, but that does not affect the fact that the threat was made. Accordingly, while the offence is serious, I am of the view that it is not a serious example, and accordingly, it is below the halfway mark on the scale of seriousness for that type of offence.

Be that as it may, the very offence of Threaten Witness is a serious offence. It threatens the integrity of the criminal justice system, and thus calls for “condign punishment”: Beazley JA (reciting submissions, with apparent approval, made to the Court) in R –v- Lenard and Fail [2006] NSWCCA 345 at [15]. The offence with which the Court of Criminal Appeal was dealing was not precisely the same as the one with which I am dealing, but however, it was a similar type of “public justice offence”. In a similar vein, in dealing with a different type of public justice offence, and as a matter of general principle, McColl JA in R –v- Marinellis [2006] NSWCCA 307 observed at [10] that:

“Offences such as perverting the course of justice require strong deterrent sentences. They ‘strike at the very heart of the justice system and…must be severely punished whenever…detected’”.

Maximum Penalty

The maximum penalty available for each of the offences is a Control Order pursuant to s. 33(1)(g) of the Children (Criminal Proceedings) Act 1987 for two years. The Court can accumulate up to a maximum of three years.

The prosecution did not submit that I exercise the discretion that I have pursuant to s. 31(5) of the Children (Criminal Proceedings) Act 1987 and commit the offender for sentence to the District Court of New South Wales. I contemplated exercising that discretion. I have decided to deal with the matter. In dealing with the Aggravated Break and Enter offence I am able to deal with all of the other matters at the same time. In any event, I propose to impose substantial sentences of Control Orders.

The offender on conditional liberty

At the time of the commission of the offences with which I am now dealing the offender was subject to a number of orders of conditional liberty. Most significantly, he was subject to a Bond to be of good behaviour for two years, imposed by the Court of Criminal Appeal on 9 June 2005. That Bond was imposed in respect of a charge of Indecent Assault on a person under 10, and followed an appeal on sentence by the offender after a Bond of five years duration was imposed by the District Court at first instance.

The offender appeared before me for sentence on 12 July 2006 in respect of charges of Take and Drive Conveyance (s. 154A Crimes Act), Possession of an Offensive Implement in a Public Place, and Larceny. I imposed Community Service Orders in respect of those matters. I note that there was no appeal lodged in respect of those orders. Accordingly, these offences were committed within a week or so of the offender being sentenced to substantial (in the context of the Children’s Court) orders of Community Service.

Indeed, it seems to me that I am left with no practical or real alternative than to revoke those orders of Community Service and impose custodial sentences in respect of those matters.

I am constrained to comment that the orders I made, and what I said in my remarks on sentence on 12 July 2006 was of little or no consequence to the offender. The commission of these further offences so soon after release on conditional liberty amounts to little other than a “thumbing of his nose” at the Court.

The commission of further offences while subject to conditional liberty is a matter of “major aggravation” – see for e.g. R –v- Andrew Skillan Jones unrep. NSWCCA 30.6.1994 per Finlay J. It seems to me that this is a matter of general principle whether the offender be a juvenile or and adult.

Matters of General Principle

Section 33(2) 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).

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 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”.

His Honour, Sully J. went on to say (in WKR) 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”.

Sully J. was, of course, dealing with offences of a different nature than those with which I am sentencing this young offender. However, it is my opinion, with unfeigned respect to Sully J., that as matters of general principle his Honour’s remarks are equally applicable. Again, with unfeigned respect to Sully J., his observations are particularly apposite in the case with which I am now dealing.

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.

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.

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”.

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…”

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 treat the offender as if he or she were an adult”.

This offender was born on 13 August 1988, and accordingly, is now 18 years of age. He was almost 18 at the time of the commission of these offences. Given the seriousness of the offending, particularly in respect of the Aggravated Break and Enter offence, the fact that the offender is now 18, and the fact that he was subject to orders of conditional liberty, I am of the opinion that rehabilitation in this instance is not the overriding consideration, but that the other aspects of criminal punishment must be given appropriate effect. The relative youth of the offender is relevant, inter alia, to whether there are “Special Circumstances” to justify the variation of the statutory formula of the non-parole period and balance of term.

Juvenile Justice Report

As an example of the inevitable and unwavering optimism shown by the authors of Juvenile Justice Reports, Ms. Terry says in her most recent report that, “Based on the young man’s record and that fact that he is already subject to a number of supervised orders, the court may be considering a Control Order”. With respect to the author of the Report, the imposition of substantial Control Orders is inevitable. However, the Department of Juvenile Justice have obviously expended considerable time and resources on this young man, apparently, to little or no avail. The Report is extremely helpful as to matters relating to the offender’s background.

The Report indicates that he thought he committed the offences as he and his friends became bored so they drank alcohol to amuse themselves. He was under the influence of alcohol at the time these offences were committed, but apparently regretted them when he was sober. He appeared to the author of the Report to accept responsibility, and was remorseful for his actions. He was also concerned about the effects of his criminal offending on his grandparents, with whom he lived prior to being taken into custody.

The offender apparently wishes to eventually obtain work in the rural industries. Mr. Hoffman, solicitor for the offender, substantially expanded upon this issue in the course of the oral submissions on sentence.

As indicated above, the offender lived with his grandparents prior to being taken into custody. His grandparents have indicated a willingness to have the offender live with them upon his eventual release. His parents have been separated for a number of years, and he does have some little contact with his mother, who according to the report has “an extensive drug habit”.

Further, the Report indicates that the offender has had some casual work in the rural industries, with droving and the like. He is eligible for Centrelink benefits of $183 per fortnight. He spends a considerable amount of his free time at the Moree Skate Park, but also spends time with the proprietors of a local bike shop.

The Report indicates that the offender’s use of alcohol is an area requiring attention. He has apparently been consuming substantial quantities of liquor on a daily basis.

Matters put in mitigation

The Court is indebted to Mr. Hoffman, the solicitor for the offender, who obviously put a substantial amount of effort and research into the very comprehensive plea in mitigation. The ultimate result in this matter should not be seen as any reflection whatsoever on the manner in which the plea was presented. I am constrained to comment that the offender should be grateful to Mr. Hoffman for the obvious care and attention he paid to the matter.

The offender was 17 years of age at the time of the commission of these offences. However, he was very close to his 18th birthday. It was put, and I accept, that the offender now appreciates the gravity of his offending. Further, I accept that he acknowledges that the offences with which I am dealing are very serious.

It was put, and I accept, that the offender has not had a great deal of contact with his mother from an early age, principally because of his mother’s drug use. He has been cared for by his grandparents for many years. His grandfather has recently been diagnosed with cancer and the prognosis is uncertain. His grandmother is restricted to a wheelchair. I accept that the offender is concerned that because of his offending behaviour, will not be able to assist in attending to and looking after his sick and ailing grandparents.

On the subject of the young person’s grandparents, it would be remiss of me not to thank them for the obvious concern they have shown for the offender. I have a very clear recollection of them being in Court in July when I sentenced the offender to community service. They were clearly distressed at the proceedings before me on 14 November 2006.

In the course of the plea in mitigation I was shown a number of certificates awarded to the offender by the school he has been attending since being taken into custody. The record will reflect I was particularly impressed with a composition about the effects of drought in rural area. That piece of work demonstrates clearly enough that the offender has insight, has intelligence and in some ways is thoughtful. That makes his serious offending even more regrettable. The spray-painting business was operated by a relative of the offender.

It was put on behalf of the offender that he has been abusing alcohol for two to three years. All of these offences were committed while he had been drinking alcohol, and was under its effect.

Further, it was put that these were all crimes of opportunity and that he did not pause to think through his actions fully. That cannot be so in respect of the offence of Threaten Witness because of the very nature of that offence. The Break and Enter offence at the TAFE premises clearly involved some pre planning, particularly given what appears in the Juvenile Justice Report. The offender was in the shed at the spray-painting business for five hours. Even so, none of the offences show any real degree of sophistication, either in planning or execution.

The offender accepts that these offences were committed while on conditional liberty. In the circumstances, he could do little else.

Upon his eventual release the offender wishes to obtain work in the rural industries. Droving and a local feedlot were mentioned as realistic possibilities. I accept that the offender is able to apply himself to this type of work, and given his age, is quite good at it.

It was put, and I accept that the offender is very scared for himself. He apparently understands that the Court has no alternative but to impose substantial sentences. He is understandably very concerned that he might be required to serve at least part of his sentence in an adult gaol. It was put, and I accept that he is scared for his own future. Now that the seriousness of his predicament has finally dawned on the offender, it has apparently been a significant “wake up” call for him.

I accede to the submission that there are “Special Circumstances” present to justify the variation of the statutory ratio between the non-parole period and the balance of term. The offender is very young, this is his first time in custody, and he will require substantial and intense supervision upon his eventual release.

Parity issues

On 18 October 2006 I was informed that the co offenders involved in the Aggravated Break and Enter offence at the spray-painting business were dealt with by way of police caution. With respect that is within my experience, the most inappropriate use of police caution that I have ever encountered, or for that matter, ever likely to encounter. It is my very firm opinion that those co offenders should have been placed before the Children’s Court. They are apparently around the same age as this offender. I was informed that none of them had any criminal antecedents. However, the offending was extremely serious, and the results of the offending were equally serious. To deal with them by way of police caution was, in my opinion, totally and utterly inappropriate, and reeks of “manifest inadequacy”.

This offender’s part in the Aggravated Break and Enter offence was very significantly greater than that of his co offenders.

Given these matters, and the substantial antecedents of this offender, I do not consider myself bound by any issue of parity. However, because of the extremely lenient and inadequate manner with which the co offenders were dealt, I consider myself obliged to reduce the sentence that I would otherwise have imposed in respect of the Aggravated Break and Enter offence.

Issues of concurrence/cumulation

I am going to revoke the Community Service Orders that I imposed on 12 July 2006. The issue arises as to whether the sentences imposed in respect of the four offences with which I am now dealing should be served cumulatively, at least in part, and then whether those sentences should be cumulative on those that I impose in respect of the matters where I have revoked the Community Service Orders.

The New South Wales Court of Criminal Appeal in Carr (2002) 135 A Crim R 171; [2002] NSWCCA 434 examined this aspect of sentencing. In that decision Levine J. said at paragraphs [4] – [6]:

“As was said in R –v- AEM (Snr) at par 70:

“The principle of totality can be simply stated. It requires that the effective sentence imposed upon an offender represent a proper period of incarceration for the total criminality involved. In R –v- Kalache (2000) 111 A Crim R 152 Sully J at 184 quoted from Thomas, Principles of Sentencing 2nd Ed 1979 at 56-7:
“…the court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”

See also Mill –v- The Queen (1988) 166 CLR 59 at 62-63.

…

Thus it can be observed that the initial ‘ Pearce’ step, namely the fixing of a sentence in respect of each offence, is critical. The further ‘ Pearce’ step is the determination of the question of totality. The resolution of that second question may or may not require cumulation in whole or in part. It is in my view too easy for an appellate court to come to the view that a sentence considered by it subjectively to be lenient is therefore erroneous merely because there has been no cumulation in whole or in part.

I agree that in circumstances where specific submissions have been made by one party or the other (here the Crown) on the question of cumulation, the sentencing judge should be otherwise than silent on that aspect of the exercise of the sentencing discretion”.

The Court of Criminal Appeal has emphasised on many occasions that it is essential that judicial officers sentence in accordance with the principles enunciated by the High Court in Pearce. Howie J. in Carr at paragraph [35] said:

“The failure to sentence in the way that Pearce –v- The Queen requires, that is, by fixing an appropriate sentence for each offence and then determining whether to accumulate them in whole or I part to reflect the totality of the criminality is no matter of technicality. Nor is it mere pedantry to criticise the exercise of a sentencing discretion which does not accord with the view expressed by members of the High Court and which has been applied on numerous occasions by this Court. In R –v- AEM (Snr) it was described as a ‘fundamental principle’”.

Cumulation of sentence will be appropriate when wholly concurrent sentences would not take into account the differences in conduct in the various offences with which the Court is dealing, or put another way where there are completely different episodes of criminality. Ipp JA (Hulme & Bell JJ agreeing) said in R –v- Carberry & Weldon (2002) 136 A Crim R 55; [2002] NSWCCA 475 said at paragraphs [46] – [48]:

“A paramount principle of law relating to sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct: Veen –v- The Queen (No. 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence having regard to all the circumstances of the case: Hoare –v- The Queen (1989) 167 CLR 348.

The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.

It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed – but this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J; Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject punishment on each count: Pearce –v- The Queen 194 CLR 610 at 624.”

Where custodial sentences are being imposed and the Court is cumulating those sentences either in whole or in part care will need to be taken so far as s. 44 of the Crimes (Sentencing Procedure) Act 1999. As was observed by Spigelman CJ (Mason P, Grove J, Sully J and Newman AJ agreeing) in R –v- Simpson (2001) 53 NSWLR 723; [2001] NSWCCA 534 at p. 713 (paragraph [36]):

“However, accumulation may require adjustment of a single sentence to re-establish the statutory proportion for the total sentence”.

In the matters presently under consideration, taking into account these matters, I am of the opinion that it would be wholly inappropriate to impose wholly concurrent sentences in respect of all matters. I accept that the two break and enter offences are part of the same episode of criminality, and accordingly, I will make those sentences concurrent with each other. Although the Threaten Witness was committed at about the same time, it is my view that the very nature of the offence suggests against the imposition of a concurrent sentence in respect of that offence. See also R –v- Harrigan [2005] NSWCCA 449.

I am also of the opinion that the sentences that will now be imposed in respect of the matters initially before me on 12 July 2006 should also be cumulative. Those offences involved entirely different criminality. The new offences were committed within a few days of the imposition of the Community Service Orders.

Other Remarks

I am required to take into account the principles enunciated by the High Court in Pearce (1998) 103 A Crim R. Despite s. 33(2) of the Children (Criminal Proceedings) Act 1987, I am of the opinion that it would wholly inappropriate to deal with this young offender other than by a Control Order. He was on conditional liberty at the time, and as I have already found, the Aggravated Break and Enter offence is in the upper range of seriousness for that type of offence. The young offender has shown a disinclination to comply with orders of conditional liberty, even a Good Behaviour Bond imposed by the Court of Criminal Appeal. I have set out what I consider to be the aggravating and mitigating features, and will not otherwise go through the matters set out within s. 21A of the Crimes (Sentencing Procedure) Act 1999: see for e.g. Tadrosse [2005] NSWCCA 145 (especially at [17] per Howie J.), Elyard [2006] NSWCCA 43 and Higgins [2006] NSWCCA 326 per Grove J. at [13]. Further, I have to pay appropriate consideration to the issue of totality.

Formal Orders

Matters of 12 July 2006 – Breach of Community Service Orders:

In each of the three matters: I REVOKE THE COMMUNITY SERVICE ORDER

In respect of the offence of Take and Drive Conveyance:

Sentenced to the Control of the Minister for a fixed term of THREE MONTHS to commence on 25 July 2006 and to expire on 24 October 2006.

In respect of the offences of Possess Offensive Implement and Larceny:

On Each: Sentenced to the Control of the Minister for a fixed term of ONE MONTH to commence on 25 July 2006 and expire on 24 August 2006.

Fresh Matters

H27742506 – Threaten Witness:

The offender is convicted. Sentenced to the Control of the Minister for a fixed term of 3 months to date from 25 October 2006 and expire on 24 January 2007.

H27463054

Sequence 1 – Aggravated Break and Enter and Commit Serious Indictable Offence, namely, Malicious Damage by Fire:

The offender is convicted. The offender is sentenced to a non-parole of 12 months to date from 25 January 2007 and expire on 24 January 2008.

Thereafter, sentenced to a balance of term of six months to date from 25 January 2008 and expire on 24 July 2008.

Sequence 3 – Attempt Larceny of Motor Vehicle:

The offender is convicted. The offender is sentenced to a fixed term of FOUR MONTHS, to commence on 25 January 2007 and expire on 24 May 2007.

Sequence 2 – Break enter and Commit Serious Indictable Offence:

This matter was “back up” to Sequence 1, and accordingly, is marked

“Withdrawn and Dismissed”

H29458684 – Break Enter and Steal on 17 July 2006.

The offender is convicted. The offender is sentenced to a fixed term of SIX MONTHS to date from 25 January 2007 and to expire on 24 July 2007.

I have imposed a fixed term in respect of the Break Enter and Steal offence of 17 July 2006 as I have this day imposed a non-parole period on another matter that exceeds that period of six months.

I direct that the Registrar of this Court notify the Registrar of the Court of Criminal Appeal of these orders, as the matters with which I am dealing constitute breaches of a Good Behaviour Bond imposed by that Court.

Where offender is to serve his sentence

I am of the opinion that the offender is relatively immature for his age. He presents as a vulnerable person. This is his first time in custody. I therefore direct that the sentences in their entirety be served in a Juvenile Justice Institution.

Gordon Lerve

Children’s Magistrate

Moree Children’s Court

21 November 2006.