R v Bendt
[2003] NSWCCA 78
•14 March 2003
CITATION: R v Bendt [2003] NSWCCA 78 HEARING DATE(S): 14/03/03 JUDGMENT DATE:
14 March 2003JUDGMENT OF: Meagher JA at 1, 26; Dowd J at 24; Barr J at 25 DECISION: See Para 20, page 5. CATCHWORDS: s. 18 Children (Criminal Proceedings) Act 1987 - Whether serious indictable offence or not - Whether defendant a 'child' within the meaning of Act - exercise of trial judge's discretion under s. 18 - Factors to be taken into account. LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 PARTIES :
Regina
v
BendtFILE NUMBER(S): CCA 60502 of 2002 COUNSEL: Crown: D M L Woodburne
Respondent: T Molomby SCSOLICITORS: Crown: S E O'Connor
Respondent: D J Humphreys
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 02/21/3296 LOWER COURT
JUDICIAL OFFICER :Moore J
CCA 60502 of 2002
Friday, 14 March 2003MEAGHER JA
DOWD J
BARR J
1 MEAGHER JA: This is an appeal by the Director of Public Prosecutions pursuant to s.5D of the Criminal Appeal Act against the sentence imposed by Judge Moore at the Campbelltown District Court on 12 October 2002.
2 Mr Bendt, the respondent, pleaded guilty to two counts of robbery in company at the Campbelltown Children’s Court on 18 June 2002. The indictment presented to the District Court replaced a plea of committal in substantially the same terms and Mr Bendt, in effect, adhered to his plea in front of Judge Moore. He also asked for two further charges of robbery in company arising from the same incident to be taken into account on sentence.
3 His Honour sentenced Mr Bendt as a child under the Children (Criminal Proceedings) Act 1987. His Honour’s precise order appears to be:
- “There will be a control order of 18 months, which I will suspend from your entry into a bond to be of good behaviour for that period. If there is any breach of that bond in that 18 months, then you can expect you will go into a juvenile detention institution in that 18 months at whatever time that breach may occur."
4 In so doing, his Honour was presumably exercising his powers under s.33(1)(g) of the Children (Criminal Proceedings) Act 1987, and also s.33(1)B of the same Act.
5 The circumstances out of which the matter arise are fairly horrendous. Mr Bendt, with seven other young males, some of them adults, entered into an institution, Liverpool Catholic Club, at 10.40 pm on Wednesday 2 May 2001. They hid their faces with beanies or other clothing and, at least, two of them had machetes. A number of them wore gloves.
6 After entering the front of the premises, several of them leapt over the front counter. The receptionist of the Club, a Mr Caletti was hit in the chin with a machete and fell backwards onto the floor where he was held face down by a foot on the back of his neck. A machete was held to the back of his neck while demands were made for money. A total of $885 was taken from the cash draw, and Mr Caletti’s mobile telephone was taken from him.
7 The supervisor of the poker machine area, a Mr Parisi, was confronted by one or two gentlemen wielding a machete and was told to “Get down. Get down on the floor.” He dropped to the floor and was later grabbed in a headlock and dragged to the main bar where demands were made for money, and he was forced to open cash registers.
8 A large quantity of money was stolen. He was then dragged to the till in the coffee shop and a cash bar. He was forced to open the change box with a pin number and was held in the safe area with another employee, Miss Farnese, by a time lock. He was forced to put bags containing money and bags containing coins into a sports bag. During this time, Mr Bendt stood by ready to assist.
9 Miss Farnese had been working the change box when one of those men had vaulted a six foot glass window by holding the top of the glass with his hand and swinging over his legs. He grabbed her by the back of the neck and then let go and grabbed all the nearby money. He grabbed her and again dragged her to the safe box. He demanded the key to the safe. She replied and said she thought one of the manager’s had it. He dragged her out to one of the managers, Mr Filipe, who gave her the key. She was forced back to the change box. She was terrified and fumbling with the key. She activated the lock. Again, Mr Bendt stood by ready to assist.
10 One of the patrons, a Mr Woods, was with his wife when he heard yelling and a man yelled out, “It’s a robbery.” Mr Woods and his wife fled out the rear door, and he rang 000. Shortly afterwards, he was confronted by one of the gentlemen, who was holding a machete about 50 centimetres in length. The male ran over to Mr Woods and was holding the machete over his shoulders “like he was ready to hit me with it.” He told Mr Woods, “Put the phone down. Hang up”, and poked him with the machete in the forearm before taking the phone from him and forcing him into the Club. The man then swung the machete and struck him in the side of the head.
11 During the course of the robbery, the hotel had approximately 30 people, including patrons and staff, who were forced to lie on the floor and who were threatened with violence if they did not comply. I set out these details so as may be realised the seriousness of the crime involved.
12 Indeed, Mr Molomby, who appeared for Mr Bendt, did not seek to argue that the matters were not serious. But I want to emphasise again, if not for the first time, that honest members of the community should not have to live in terror or be attacked by gangs or armed thugs as in the present case.
13 His Honour, in arriving at the conclusion which he did arrive at, considered the options open to him under s.18 of the Children (Criminal Proceedings) Act 1987 and he did so. Subsection (1) of that section provides that, in relation to an indictable offence, other than a serious indictable offence, it should be dealt with and then the alternatives given, either (a) according to law, or (b) in accordance with Provision 4 of Part 3.
14 Now, I should point out that, while in the general sense the offence was very serious indeed, it was not a serious indictable offence within the meaning of that term in the Act. So his Honour was free to exercise his discretion under s.18. His Honour exercised it by proceeding under paragraph (b), that is in regard to Provision 4 Part 3 rejecting the other alternative of proceeding according to law.
15 It is basically against his Honour’s decision in this regard that the Crown brings this appeal. It seems to me that the appeal is well justified and should be upheld. His Honour whilst making passing reference to the serious nature of the offence does not really seem to have appreciated quite how appalling it was. Many of the officers of the Club or patrons of the Club must have felt that they were in danger for their lives. It is probably more by good luck than good management that one or more of them did not lose their lives.
16 The most disturbing thing about it is that whilst Mr Bendt was technically a child within the meaning of the Act, he was only just so. A child within the meaning of the Act is a person under the age of 18. Mr Bendt was a child but not by much. He was 17 years and 9 months, I think. His Honour should have treated him as an adult, unless there was some real reason why he should be treated as a child. There was, in my view, no real reason why that should take place. It would be a most extraordinary thing if he would be treated differently had he been four months older.
17 Mr Molomby has said, and said perfectly correctly, that there must be some facts that the judge can take into account in exercising his discretion and, indeed, that there is no limit to the circumstances which the judge can take into account. That is as a matter of law perfectly true. But in the present case, the facts on which Mr Bendt relies hardly justify the departure from the obvious course of proceeding according to law.
18 This is particularly so as his Honour made a specific finding that Mr Bendt was intelligent and was not suffering from any intellectual disability. He was suffering from a form of dyslexia, which had to be quantified as a well known state but otherwise it cannot be suggested that he was in any way mentally deficient. He had all his wits about him. He knew exactly what course of action his co-offenders intended to undertake and knowing that and knowing the possible consequences, he consented to join them and, in fact, joined them.
19 In such circumstances, such substantive features as exist, (and there are some of them, a case of remorse and regret and a degree of rehabilitation), should not dissuade the judge from taking the course which should prevail in these circumstances. I think the following course should be adopted.
20 The appeal should be allowed and the sentences below quashed. The respondent, Mr Bendt, should be re-sentenced according to law taking into account the matters in Form 1. He should be sentenced on the first count to imprisonment for one year and six months commencing on 14 March 2003, we felt, the prima facie proportion between the parole period and the non-parole period, in order to promote the rehabilitation of Mr Bendt, of which there are emerging prospects.
21 We fix a non-parole period of one year to expire on 13 March 2004, and we direct the release of the respondent, Mr Bendt, to parole on that day.
22 We sentence the respondent on the second count to a fixed term of imprisonment for one year. All terms of imprisonment are to be served in a detention centre.
23 The one year on the second count is, of course, concurrent.
24 DOWD J: I agree.
25 BARR J: I also agree.
26 MEAGHER JA: Those are the orders of the court.
Last Modified: 03/31/2003
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