R v Akok Lueth Noi

[2007] NSWDC 383

CITATION:	R v Akok Lueth NOI [2007] NSWDC 383
HEARING DATE(S):	25/05/07, 14/06/07
EX TEMPORE JUDGMENT DATE:	14 June 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Term of imprisonment for 2 years pursuant to s12 Crime (Sentencing Procedure) Act. Execution of the sentence is suspended for the term of the sentence. Offender to be released from custody on condition he enter into a good behaviour bond for the term of the sentence.
CATCHWORDS:	CRIMINAL LAW - sentencing - robbery using corporeal violence with wounding in company
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987 Crimes Act 1900
CASES CITED:	R v Way [2004] NSWCCA 131 Pearce v The Queen (1998) 194 CLR 610 Wong v The Queen (2001) 207 CLR 584 Henry v The Queen (1999) 46 NSWLR 346 R v Jurisic (1998) 45 NSWLR 209 R v Lattouf (unrep, 1996 NSWCCA) Markarian v The Queen (2005) 79 ALJR 1048 R v SDM [2001] NSWCCA 158 R v Pham (1991) 55 ACR 12 The Queen v AEM & Ors [2002] NSWCCA 58 R v GDP (1991) 53 ACR 112 R v DM [2005] NSWCCA 181 DB v Regina [2007] NSWCCA 27 Blackman and Walters [2001] NSWCCA 121 Yardley v Betts (1979) 22 SASR 108 Attorney General's Application No 1 (2002) 56 NSWLR 147
PARTIES:	Regina Akok Lueth Noi
FILE NUMBER(S):	2997/11/0180
SOLICITORS:	C Allison - Director of Public Prosecutions F Way - Legal Aid Service

SENTENCE

1 HIS HONOUR: Sentencing is not a matter of absolute truths or mathematical precision. In R v Way [2004] NSWCCA 131 the Court of Criminal Appeal in discussing Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999, whilst noting that it was a further pointer towards the continuation of a wider area of discretion, it was one without resort to some rigid mechanistic or arithmetic approach, which would be unsuited to the difficult task of sentencing [126]. In Pearce v The Queen (1998) 194 CLR 610 at [39], [42] and [46], in the vicinity of that part of the judgment which has come to dominate sentencing in New South Wales, the majority of the High Court said, that it was highly undesirable that the process of sentencing should become more technical than it was already. It should be emphasised that aspects of sentencing were not to be attended by “excessive subtleties and refinements”. It also pointed out in that judgment that sentencing was not a process that leads to a single correct answer, arrived at by some process admitting of mathematical precision. This was precisely the thrust of the High Court judgment in Markarian of two years ago. In Wong v The Queen (2001) 207 CLR 584 at [77] the High Court in striking down guideline judgments for Commonwealth sentencing in New South Wales, referred to the core of the difficulty lying in the “complexity of the sentencing task”. The High Court has continually acknowledged that a sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. These matters, of course, as the High Court said in that judgment, sometimes lead to competing and contradictory considerations. Of course I am mindful that since Pearce and Wong were decided, s 3A and s 21A Crimes (Sentencing Procedure) Act in their current form have been imposed, if I might use that expression in a neutral fashion, upon sentencing in New South Wales.

2 This case presents the types of difficulties that are discussed in decisions of very high authority, that dominate the proper approach to the exercise of the sentencing discretion. This case of course, throws up considerations that were discussed in Henry v The Queen, the guideline judgment in relation to armed robbery, (1999) 46 NSWLR 346. In that judgment there was a guideline fixed in relation to the crime of armed robbery, that is, robbery with an offensive weapon, carrying a maximum penalty of twenty years. The Court reaffirmed what had been said in Jurisic concerning guideline judgments, that guideline judgments were to constrain sentencing discretion but were “intended to be indicative only”, they were not to be regarded as “rules binding on sentencing judges”. Jurisic had held that decisions of appellate courts on sentencing are not be treated as “binding precedents”. A wide sentencing discretion was still recognised even when courts were to properly take into account the guideline. The Court in Henry, through the judgment of the learned Chief Justice, adopted, in the context to discussing the appropriateness of guideline judgments, what had been said by Acting Chief Justice Mahoney in the unreported decision of Lattouf from 1996. There his Honour had said:

“General sentencing principles must be established so that the community may know that sentences which will be imposed, and so that sentencing judges will know, the kind and order of a sentence which is appropriate that they impose, but of course, principles are necessarily framed in general terms. General principles must of their nature be adjusted to the individual case if justice is to be achieved.

3 His Honour went on to say:

“There is a public interest in the adoption and articulation of sentencing principles, which will deter the commission of serious crime and punish those who commit it...but there are other interests to which the sentencing process must have regard. These are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case” (see Henry at [10]).

4 The learned Chief Justice said that these observations of the Acting Chief Justice were not in conflict with a system of guideline judgments, as had been established in Jurisic (at [11]).

5 This prisoner Akok Noi appears for sentence in relation to a very serious offence indeed. It is an offence that carries a maximum penalty of twenty-five years imprisonment. The offence is an offence of robbery using corporeal violence with wounding, committed on 20 June 2006 at Parramatta when the prisoner, in company with another man, robbed a man by the name of Praveen Kumar Suvama of a mobile phone, a Commonwealth Bank keycard and an ANZ bank keycard. Mr Suvama was a man going about his private business late at night in the Parramatta business district. There is available to me an agreed statement of facts which sets out in considerable detail the circumstances of the offence, parts of which I will refer to in this judgment. There is no need obviously, with an agreed statement of facts, to recite the entirety of the facts. The victim shortly after quarter to eleven, was making his way home, having finished work. At around about 11 o’clock he was attacked by two males. One pointed a knife at him, this was the prisoner, and the other held a small object, which appeared to be a small, black pistol. The prisoner at the time of the commission of this offence was sixteen years and ten months, approximately. The prisoner had been born, as I understand it from the available information, on 4 August 1989. The other man has been referred to by various names but is known to the police by the name of Mark Majok Chol. He was born in September 1985. He was thus approximately four years older than the prisoner. He, like the prisoner at the relevant time, had no prior criminal convictions. In any event, when attacked the victim was the subject of demands for his property. He had his mobile phone taken from his right hand by the co-offender. As he started to pull his wallet out of his pocket he was cut in the hand with the knife in circumstances which aren’t made clear in the facts. One would have to assume the act of the use of the knife was a deliberate act, although it is not entirely clear how the knife was applied to the hand, save for the fact that, on the facts available to me, it occurred as the victim was removing his wallet from his hand. Importantly, and I have not ignored this fact, the prisoner then made a sinister threat to the victim by holding the knife near the victim’s eye and said, “I’ll put one more to your eye, hurry up”. This would suggest that the earlier cutting was certainly not accidental. The prisoner received a wallet of the victim. The prisoner opened it up and the prisoner removed the victim’s Commonwealth keycard. He gave it, however, to the co-offender who went to a nearby ATM. But when told there was no balance after being given the PIN number, the victim then removed his ANZ keycard from his wallet and handed that to this prisoner. The co-offender again took the keycard from this prisoner. The victim, under threat obviously of violence, gave over his PIN number for the ANZ card and $600 was removed from the ATM.

6 The taking of the money from the ATM is reflected in the matter on the Form 1 which I am required to take into account, that is, the offence of dishonestly obtaining money by deception, being as I say, the use of the card at the ATM. The prisoner threatened the victim and he was told effectively to go in the opposite direction from which the offenders were to head. The victim asked for his cards back and apparently they were thrown away. The victim was not deterred, however, and courageously, notwithstanding the injury to his hand, pursued his attackers and was able to record the registration number of the motor vehicle in which they left the scene. The victim was finally spoken to by police about eighteen minutes after the offence was committed. He was taken to the hospital and he received fourteen sutures in the wound and I’ve seen photographs of the wound in the web of the hand between the thumb and the fingers. He was kept overnight for observation. He was released the following morning. I do not have a victim impact statement but it is quite clear on the facts of this matter that the victim would have been distressed by these events and no doubt these events would live long in his memory. The victim would appear, however, to have recovered from the injury suffered as there is no evidence of any complications.

7 Police are to be congratulated on the speed of their investigation. The motor vehicle was traced to a person living in Avalon, who had a connection with the prisoner. Police conducted a surveillance of addresses known to be connected to this prisoner, as he was known to police to have been stopped in relation to traffic offences, driving the very same car, on 30 May 2006. Police conducted a surveillance operation which involved following the prisoner who was seen to drive the vehicle some time after 9am to school. They also executed a search warrant whilst the prisoner was at school and obtained various items of clothing that were linked to the commission of the offence. Ultimately, the prisoner was arrested shortly after 1.20pm. In the motor vehicle was found a small quantity of cannabis, weighing 7.9 grams, with which the prisoner was charged for having possession of the drug. That is a matter on the Form 1 which I am to take into account in sentencing the prisoner for the principal offence. There is no evidence before me as to the origin of the cannabis, but the prisoner claimed in an interview with police, it would seem quite falsely, that the cannabis had been taken from the victim.

8 The prisoner first of all declined to be interviewed but spoke to his father and then agreed to be interviewed and made admissions of his involvement in the robbery. Clearly from the detail of the interview and from matters raised in cross-examination of the prisoner by the Crown, he sought to downplay his involvement in the commission of this offence. He denied, amongst other things, having possession of a weapon or being responsible particularly for the injury to the victim’s hands, claiming that the victim cut his hand by grabbing the keys that the prisoner had in his possession. This was clearly observed given the nature of the injuries. In any event, as the matter has unfolded, the prisoner has not in evidence before me denied his responsibility for the injuries suffered by the victim. The prisoner’s admissions of course confirm what was already a strong Crown case based upon a body of circumstantial evidence. Ultimately, DNA testing of the prisoner’s clothing revealed a match between the DNA profile of the victim and a stained area on the trousers. Also, surveillance footage obtained, subsequent to the arrest of the prisoner, confirmed persons wearing clothing similar to that obtained from the prisoner’s residence.

9 The prisoner gave evidence about the circumstance of the offence, particularly it would seem on my analysis of it, focusing upon the issue of the circumstances in which he came to commit the offence, rather than the particular perpetration of those matters set out in the facts. Clearly, the prisoner drove to Parramatta from the area in which he lived in the motor vehicle to which I have referred. I have noted that he was in company with an older man. The prisoner claims that the older man provided him with a knife. I have no reason to doubt this claim. As I understand the evidence available to me there is no evidence of the knife being found in the prisoner’s possession subsequently. In any event the critical issue that arose from the evidence of the prisoner concerned the extent to which there had been planning. I could not conclude beyond reasonable doubt that the prisoner left the area in which he lived to go to Parramatta for the purposes of committing a robbery of any type. However it is clear that the proposal to commit a robbery, which I am prepared to accept came from the older person, was one that arose sometime before the victim was chosen.

10 There was an admission in the prisoner’s interview to the police that arose in cross-examination, that the prisoner had seen the victim whilst driving the motor vehicle. The planning, of course, as the Crown conceded in its submissions, was not sophisticated. It could be fairly described as limited over a period of time, but certainly not limited to a period of a minute before the robbery, as the prisoner sought to suggest in his evidence. There was, to be fairly said, in the prisoner’s evidence before me some prevarication and some attempt, again as he had in his interview but not as extensively, to downplay his role in this matter. Particularly in his evidence before me to distance himself from matters that might be regarded as aggravations of the objective criminality. Ultimately on the totality of the evidence I must conclude that there was some planning in relation to this matter, albeit over a limited period of time. Ultimately it is, on my assessment of the matter including of course the facts the Crown present to me, the case that the older person must be seen as the primary mover, although the prisoner is clearly solely responsible for the injuries suffered by the victim.

11 I noted in relation to the facts that the prisoner, in taking property from the victim, deferred to the older person. He took command of both cards in order to remove money by the use of ATM machines. The other man of course has not been arrested. I have been informed that he has left Australia. He has lived in the United States I understand for some period of time and is believed to be back in Sudan. In due course if he returns to Australia he will be amenable to justice. The prisoner, as I mentioned in passing earlier, had no prior findings of guilt, although the facts suggest that he had been at least interviewed in relation to some traffic matters on 30 May 2006. The prisoner was at the time of the commission of this offence, attending school and has returned to that school. I will refer to material concerning his education shortly.

12 On his arrest he remained in custody for a period of thirty-five days, as I understand it, before being released on bail. He was held in custody in a Juvenile Justice establishment given his age. I am prepared to accept that to some extent his time in custody has served as a salutary experience. In sentencing the prisoner, bearing in mind he pleaded guilty at the Children’s Court as I understand it, I am prepared to give the prisoner a discount of twenty-five per cent upon the otherwise appropriate sentence for the utilitarian value of the plea of guilty. Of course, the Crown case was strong, particularly aided by the prisoner’s admissions but was strong nevertheless. However, the utilitarian value of plea of guilty is not one to be measured by reference to the strength of the Crown case and his plea was entered at the first reasonable opportunity.

13 In relation to the prisoner’s background, I have a body of material from the prisoner, to some extent the prisoner’s father who gave impressive evidence before me, a very detailed report from the Department of Juvenile Justice, which reports author gave evidence before me and a report from a psychologist. I also have some references from persons that have had association with the prisoner. I might just briefly summarise that material. As I understand the matter the prisoner was born to his parents in the Sudan. He is the eldest of six children. His parents emigrated to Australia in December 2002 through a refugee program. As I understand the matter the family are Christians, however, the country from which they come is primarily an Islamic country. The father of the prisoner was an educator who was alleged to be educating Muslim students with Christianity. The prisoner’s father has explained, and I accept, that he was forced to leave his country and his family initially because he came to the attention of certain national security persons as a result of his actions.

14 The prisoner’s father first of all fled to Egypt so he would not be detained and it would seem that after some period of time the family was reunited with him in Egypt. There the family lived for two years under circumstances of considerable hardship. One of the hardships was that Mr Noi was unable to obtain employment. After the family arrived in Australia the prisoner recommenced his education. The material available to me suggests that he had stopped receiving education at the age of ten whilst living in Sudan, mainly due to financial difficulties, exacerbated, one would have thought, by the background to which I have referred. The prisoner at a very young age obtained some employment in Egypt to support his family and on arrival in Australia he was enrolled at Patrician Brothers College. He was referred to a college at Granville to engage in intensive English lessons. I would assume that he came here with little English and returned to Patrician Brothers for the final semester of year 9. It would be quite evident from what I have outlined that his education has been severely disrupted up until the present time.

15 At the present time the prisoner is seeking to complete his Higher School Certificate and it is clear on the material available to me that whilst at school he has had to travel a very difficult and lengthy journey to arrive at where he is. A report from the school, dated 23 April 2007, points to the special educational assistance the prisoner has received. He is a regular attender at school and is said to have made a genuine attempt in all subjects studied. He is regarded as polite and cooperative at school. Due to his language problems he is said to find social problems difficult to solve and can be stressed by situations that arise out of misunderstandings, largely as a result of language difficulties. In 2006 a psychologist’s test at the school assessed him to be in the low average intelligence range. His learning difficulties were identified in the area of language and expressing himself. Also, explaining his thoughts and actions is extremely difficult for him. Writing for him is extremely difficult as well, and he has required special assistance in that regard. I note in relation to the report from the school that after his return from custody last year he was regarded as diligent and cooperative. He is regarded as a person who has behaved since his return from custody and has abided by school rules in relation to the issues of punctuality and uniform. He is said to work well in class activities, and his special needs coordinator has noticed over a period of time considerable growth for the good, both academically and socially.

16 The prisoner is an athlete who plays basketball. His family in Australia however has not had a smooth time, even allowing for the many difficulties persons from their background would face in Australia. There have been difficulties in the marriage. First of all, Mrs Noi left the family home and then Mr Noi left the family home and, as I understand it, remains separated from his wife. However, notwithstanding that separation he has maintained contact with the children of the marriage who range in age from that of the prisoner down to a child aged four. Obviously most of the children are attending school. There was a great deal of unhappiness within the family arising out of the various separations, which has not assisted them in their transition to a normal life, from the many traumas they have suffered over many years.

17 As I said earlier, I was impressed with the evidence of the prisoner’s father. He expressed concern for the prisoner and expressed, perhaps mistakenly, some responsibility for the current situation. He believes that he had not foreseen the situation that created the opportunity for the prisoner to commit the current offence and spoke of the effect upon the family of the prisoner’s arrest, his time in custody, and the threat of a term of imprisonment. I accept the family is a law abiding family, endeavouring to do their very best to adjust to a very different cultural setting. Mr Noi senior spoke of his surprise as to the arrest of the prisoner on this matter and I accept as a fact that the conduct of the prisoner in being armed with a knife, albeit for a relatively short period of time and assaulting people, is entirely uncharacteristic. There is not in the prisoner’s background, or since the commission of this offence, the hallmarks of antisocial activity which would lead one to come to the conclusion that the conduct of the offender was representative of a violent propensity. The prisoner’s father has endeavoured to take various steps to ensure the prisoner does not come in conflict with the law again. He has noted the effect upon the family and the Sudanese community of the arrest of the prisoner. Of course the extent of the effect upon the community is not a matter about which I can make much comment, but I do accept that the family has been affected and has been greatly stressed by the circumstances of this matter. Of course I naturally acknowledge that the victim of this matter has been no doubt considerably more stressed than the family, arising out of the prisoner’s conduct and the conduct of the co-offender.

18 I have in support of the evidence of Mr Noi and the prisoner, to the extent that it touches upon personal matters, a report from Anglicare, from the coordinator for southern Sudanese community members in Australia. This gentleman, as I understand it, Mr Cawuop, is familiar with the family’s circumstances and speaks of the respectful character of the prisoner and the family; the fact that the prisoner is a person who is law abiding in his general conduct; that the prisoner is a person who is seeking to better himself as are other members of his family and as a young man who is capable of rehabilitation. I have taken his opinion into account. The Juvenile Justice officer has written, as is often the case in these matters, a sympathetic report. Again, judges are not blind to the fact that people in the position of Juvenile Justice officers will write reports that might, of their nature, be prone to be sympathetic to offenders. On the other hand, the officer is an experienced officer who has seen a range of offenders over a period of time. I do not suggest for a moment that his report is biased. He concludes in his assessment that the prisoner is a generally reserved and friendly person, who is cooperative with the Juvenile Justice Service. Before the preparation of the report he was not previously known to them.

19 The officer said that his capacity to express himself was limited which caused him to have some questions about his intellectual functioning. He claimed that the prisoner did not seek to minimise his actions or offer excuses for his behaviour, although I have noted in his evidence before me some attempt in a comparatively minor way to downplay aspects of his involvement. I should say in passing in relation to this matter, that this is not an uncommon circumstance, particularly for young offenders who find it difficult to confront the seriousness of their offending behaviour. The Juvenile Justice officer has confirmed the generally positive view of the prisoner by a range of people who have seen the prisoner in a range of circumstances, the uncharacteristic nature of the offending and the support the prisoner has in the future. He notes in the report that due to the serious and violent nature of the offence, intervention by the service may be beneficial in assisting the prisoner to understand the underlying reasons for his offending behaviour and it is recommended that he receive counselling in a range of ways.

20 He also noted in the report that given the nature of the prisoner’s current offence, the issue of exposure to violence had been explored with the prisoner and his parents. The prisoner is not a person, however, who has been exposed to a significant level of violence in his home environment, either in the Sudan or in Australia. I have seen several Sudanese offenders before me, young offenders committing violent crimes, in a range of ways. One feature I have noticed of such offenders is that some of these offenders, by reason of very, very tragic and violent upbringings, appear to be immune to the effects of violence. This prisoner is not in that category and thus in my view is a person who will be able in the future to avoid situations such as that, that give rise to this matter.

21 There is a psychologist’s report which I have taken into account. Dealing with the matters that touch upon the psychologist’s qualifications, I note that he administered, if I may call it colloquially, an IQ test applying what is called the RAVENS test. He noted that Mr Noi achieved a score in the bottom half of the average range of functioning, which was consistent with his general presentation. His reading, albeit a test conducted in English, was rated at about ten and a half year old level. He has achieved what is called survival literacy but this is an area of weakness for him as one would expect. He concluded on the basis of this assessment and the history that there is no indication that Mr Noi demonstrates a developmental disability or a significant limitation in intelligence. He did not conclude that there was any suggestion of mental illness. There is no history of acting out or antisocial behaviour, as I earlier mentioned. The prisoner is a person who appears to have an interest in what is called ‘neatness and order’, which appears to be a family trait, and the prisoner denied any history of drug or alcohol abuse of any significance, although I note the possession of the cannabis.

22 He concluded ultimately that the prisoner did not suffer any relevant mental illness, but he was a person who would benefit from the assistance of professionals, particularly, in the areas of counselling in matters such as social attitudes and behaviours, victim empathy, alcohol and drug education and one might have thought, anger management, in the circumstances of this matter. I have taken into account a body of material provided to me concerning the position in Sudan. The circumstances of the prisoner’s coming to Australia no doubt reflect much of the instability of that country, although as I have pointed out this prisoner has not suffered the high levels of violence that have been visited upon other refugees that have come to the country in the past.

23 I have been provided with some statistics in relation to sentencing of offenders in relation to offences pursuant to s 96 Crimes Act who are under eighteen. The sample is so small as to provide little guidance and in any event statistics themselves provide limited assistance as has been discussed on a number of occasions by the Court of Criminal Appeal, particularly in the case of Bloomfield in 1998.

24 I have had regard, of course, to the submissions made on behalf of both the Crown and the accused. I have been provided with very helpful written submissions by the learned counsel for the accused. I might just briefly deal with those submissions in passing, although they have all been taken into account in determining this matter. I note that the Crown submits that the offence is one of the “utmost gravity”. The Crown properly pointed out that ordinarily to impose a full-time custodial sentence would be the appropriate approach and that ordinarily exceptional circumstances would apply not to do so.

25 The Crown very helpfully pointed to the use of the knife. The fact that there was limited planning. He conceded the offence was unsophisticated but certainly would have a significant impact upon the victim. He noted the prisoner was in company, in circumstances I have already commented upon. He noted of course, the terms of s 3A Crimes (Sentencing Procedure) Act and pointed to matters arising under s 21A of that Act, particularly the issue of being in company and the aspect of planning. The Crown’s essential position was that the tenderness of his age did not entitle him to escape proper weight being given to matters of general and personal deterrence.

26 With regard to the issues of specific deterrence, it was submitted on behalf of the accused that it should be noted that the prisoner had acted out of character, that he had strong family support and that he had not re-offended in the eleven months or longer since the offence occurred. It was noted he no longer associated with his older offender for obvious reasons and the prisoner had shown signs of rehabilitation by his return to education. These matters I have taken into account.

27 Reference was made to the guideline judgement in Henry and related cases. It is clear that the guideline promulgated in Henry, albeit for a less serious offence than that with which I am concerned now, but a similar offence, applies to children. The learned Crown and defence counsel have taken me through what could be called the “criteria” or features of a common case involving a young offender. I note in relation to the guideline, in its terms, that the characteristics as the learned Chief Justice described them, do not represent the full range of factors relevant to the sentencing exercise and of course there will be inherent variability in some of these characteristics. The extent of violence, the degree of vulnerability and other matters. I need not dwell upon those matters.

28 In SDM [2001] NSWCCA 158, the Court of Criminal Appeal held that the guideline judgment in Henry applied in relation to the sentencing of children. However, the court acknowledged in that case that the sentencing of children involved special requirements to be taken into account, some statutory that might operate to reduce the need for a sense to reflect general deterrence whilst requiring greater attention by the sentencing officer to rehabilitation; see para 10. The truth is that in sentencing this offender I am required to have regard to s 6 Children (Criminal Proceedings) Act. That particular provision is not to be given lip service, it is a matter of some considerable significance. There is no defined border, however, between the circumstances in which a person may be treated as an adult, even though they are a child, and a person who is a child, who should not attract the sort of attention that has been discussed in decisions such as Pham (1991) 55 ACR 12 and of course The Queen v AEM and Ors [2002] NSWCCA 58.

29 In regard to the issue of s 6 Children (Criminal Proceedings) Act I note the observation that it is desirable wherever possible to allow education or employment of a child to proceed without interruption. The desirability of allowing a child to reside in his or her own home and, of course, that children who commit offences must bear responsibility for their actions but because of their state of dependency and immaturity require guidance and assistance. One of the key features of the submissions put on behalf of the prisoner is that there is in this prisoner, both culturally, socially and intellectually, a degree of immaturity, that itself may be reflected in the very facts of the case. The willingness to follow the lead of an older person and the willingness to act precipitously, as no doubt the wounding of the victim reveals, where that kind of conduct was uncharacteristic.

30 I note, of course, that it has been long held, back to the decision of the Court of Criminal Appeal in GDP in (1991) 53 ACR 112 and before in many other decisions, the approach to the sentencing of children involves, as I have pointed out, considerations that might otherwise not have a role to play in sentencing of adults for similar offences. In R v DM [2005] NSWCCA 181 and in DB v Regina [2007] NSWCCA 27 it was noted that the principle underpinning the practice of imposing lesser sentence on youthful offenders, than those imposed on adults who commit similar crimes, lies in the recognition of the immaturity of youth. The fact that a particular offender may have been a willing participant does not dispose of the need to have regard to the extent to which his relative immaturity made him vulnerable to the influence of an older person. In the case of DB, as I understand it, it was an older family member.

31 I must say in passing, without necessarily relying upon it, that there is a debate in scientific circumstances as to the development of the brain in teenagers and the development of personality in circumstances that suggest that those of tender years by reason of biological factors are necessarily not in, if I could use the expression, a psychological state to make the type of mature judgments that adults may be expected to be capable of making. This area of scientific investigation of course is still developing and of course, as I say, I have no evidence about it as such before me. But it seems to me it reflects in parallel the way in which courts, for example, have approached the treatment of juvenile offenders. I was referred to some comparative cases which are referred to in the written submissions, such as GS [2006] NSWCCA 410, which as was fairly pointed out, is a sentence matter in relation to an offence of malicious wounding which carries much less maximum penalty, but involved much more serious injuries and one would have thought far more deliberate wounding. Of course the decision of Blackman and Walters [2001] NSWCCA 121 is noted. Comparative sentences are usually of only marginal assistance.

32 It might be fairly said in Blackman and Walters that the criminality involved there concerned criminality of greater deliberation and planning than arose in this particular matter. It might be fairly said too, that those offenders were much more mature than this offender. In one sense, given the number of victims and what was involved, the criminality was greater. Ultimately, however, for the determination of this matter, Blackman and Walters provides guidance in relation to two issues, one is a proper approach to imposing a sentence that will be suspended, confirming what had been said by the Court of Criminal Appeal in JCE, and of course, reflecting what had been said with considerable eloquence and detail in the judgment of Justice Howie, in Zamagias. I have had particular regard to Zamagias and what his Honour said about the proper approach to the determination of matters in the way in which I have foreshadowed here.

33 The other aspect of Blackman and Walters that I have taken into account is the adoption by the learned Chief Judge at Common Law of what was said by King CJ in Yardley v Betts, a South Australian decision from 1979.

34 There his Honour said at 112-3 of (1979) 22 SASR 108:

“The protection of the community is...contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance to first offenders and those who have not developed settled criminal ways. If a sentence had the effect of turning an offender towards a criminal way of life, protection of the community is to that extent impaired. If the sentence induces or assists an order to avoid offending in the future, protection of the community is to that extent enhanced. To say that the criminal law exists in the protection of the community is not to say that severity is to be regarded as the sentencing norm.”

35 In this particular matter I approach the sentencing of the prisoner on the basis that in dealing with an offence of this type for an adult offender, clearly a term of imprisonment of some length much greater than that I foreshadow, would be appropriate here. But in light of the background of the prisoner, his immaturity, his relative youth at the relevant time, in determining the ultimate outcome I believe it is appropriate, consistent with authority relevant to particular types of cases involving children, to place somewhat lesser weight upon matters of general deterrence and personal deterrence than would otherwise be appropriate.

36 In this regard I have had proper attention to s 3A Crime (Sentencing Procedure) Act, all the matters set out therein are taken into account, of course. They do not have equal weight in a particular sentencing exercise. Four of the matters identified in s 3A were specifically referred to by the High Court in Veen No 2. In that particular matter the four purposes of sentencing identified by the majority of the High Court were said to be guideposts which may point in conflicting or opposite directions, and that clearly is the case here. In this particular matter the promotion of the rehabilitation of the prisoner is, given his youth, a significant matter and it is a matter that I have given particular weight to in light of his progress since his arrest in relation to this matter.

37 I have referred in passing to s 21A, and particularly matters of aggravation identified by the Crown, which clearly arise in this particular matter. It should be noted, of course, that s 21A itself provides that the fact that any particular aggravation or mitigating factor is relevant and known to the court, does not require the court to increase or reduce the sentence for the offence. Specifically, however, in relation to the mitigating factors, it seems to me that ultimately the conclusions that are appropriate here are, firstly, that the offence was not obviously part of organised criminal activity; the prisoner did not have any record of previous convictions; that he was a person of good character; that he is unlikely to re-offend and that he has, with the support of his family and other professionals, excellent prospects of rehabilitation, particularly having regard to his age. He has expressed his remorse for his offending and in my view that was first reflected in his decision, notwithstanding legal advice, to admit his involvement in the commission of the offence, albeit that he did seek to downplay his role. I note his plea of guilty. Of course he receives a discrete discount for that. Of course there was, it should be fairly said, the fact that he, by that plea of guilty also demonstrated some remorse. He has, as I have pointed out, expressed remorse to those that have interviewed him.

38 One last matter, if I may call it of a technical nature, is of course the need to take into account the matters on the Form 1. In that regard I have obviously noted what has been said about these matters in Attorney General’s Application No 1 (2002) 56 NSWLR 147. It is observed in that judgment that matters to be taken into account on a Form 1 may mean greater weight being given to matters of personal deterrence and the community’s entitlement to extract retribution. Sometimes matters on a Form 1 fully and properly inform the true character of the criminality. In this particular matter I note one of the matters on the Form 1 is directly related to the commission of the armed robbery in circumstances I have outlined. The other matter reflects some use of cannabis, which reflects a matter about which at the current time there appears to be no personal problem for the prisoner. I appreciate of course that matters on a Form 1 may require an additional penalty for the principal sentence. Sometimes it will be small, sometimes it would be substantial. As the High Court held in Markarian and there is no need to reduce this process to mathematical precision. The Court of Criminal Appeal in the guideline judgment said so three years before Markarian in any event.

39 I have taken into account the matters on the Form 1 in accordance with the requirements of the guideline judgment. But in my view ultimately they do not substantially enhance the seriousness of the offending revealed in the principal offence. The fact of taking the $600 is a matter specifically taken into account as a fact relevant to the principal offence in any event.

40 Thus, in this particular matter I conclude that the appropriate order, taking into account the time the prisoner has spent in custody, is to impose a term of imprisonment which with the discount for the plea of guilty rounding the figure slightly upwards comes to a period of two years.

41 In relation to the offence to which you pleaded guilty, you are convicted. You are sentenced to a term of imprisonment for two years pursuant to s 12 Crime (Sentencing Procedure) Act. I order that the execution of the sentence be suspended for the term of the sentence. I direct that you be released from custody on condition that you enter into a good behaviour bond for the term of the sentence. Conditions applying during the term of the bond will be as follows: firstly, you will be required to appear before court if called to do so at any time; secondly, you are to be of good behaviour; thirdly, you are to advise the registrar of the District Court or the clerk of the criminal listing directorate of any change of residential address; fourthly, you are to accept the supervision and guidance of the Department of Juvenile Justice throughout the period of the bond and obey all reasonable directions of the officers of that service, especially as to any directions regarding alcohol and drug counselling and as to educational or work related programs; fifthly, to enable such supervision and guidance to commence you are to report to the officer in charge of the Juvenile Justice Service at Blacktown within seven days of today. I will require the Juvenile Justice Service to provide me with a report in relation to you every six months during the period of the bond from now.

42 Do you understand the terms of that bond?

43 OFFENDER: Yes, I do.

44 HIS HONOUR: What are the terms of that bond?

45 OFFENDER: ..(not transcribable)..

46 HIS HONOUR: You will have to obey all reasonable directions of the officers of the Juvenile Justice Service. What I might do in relation to the condition, Mr Crown and Ms Way, is perhaps amend that order to include possible referral to the Probation and Parole Service if the Juvenile Justice Service does not regard it as appropriate for them to continue supervision. They may get to the point where they may say that he should be referred on to Probation and Parole, not because he’s a problem but simply because he’s outgrown them, if you understand what I mean.

47 ALLISON: Yes, your Honour.

48 HIS HONOUR: You also have to report to the Department of Juvenile Justice within seven days of today, do you understand that?

49 OFFENDER: (No audible reply)

50 HIS HONOUR: I would suggest you go there today.

51 I have explained to the offender the conditions of this bond, its obligations. I should tell you the consequences of the bond are these, that if you fail to be of good behaviour or if you fail to obey the reasonable directions of the officers of the Department of Juvenile Justice you will be directed to be called up before me and you will be liable to a term of imprisonment of two years. The older you are the more likely you will go to a gaol for adults, rather than a Juvenile Justice institution. Do you agree to the conditions that I have fixed?

52 OFFENDER: Yes, I do.

53 HIS HONOUR: Having agreed to the conditions, in my view having understood them, having had them explained, I direct that the bond which I have ordered be forwarded to the prisoner by the Criminal Registry at his address. What is your current address? 15 Seabrook Crescent, Doonside, 2767. To there it will be posted.

54 Mr Crown, any technical matters, I’m sorry?

55 ALLISON: No, your Honour.

56 HIS HONOUR: Any technical matters from you Ms Way?

57 WAY: No, thank you.

58 HIS HONOUR: Mr Noi, you can leave the dock.

59 ADJOURNED

oOo