R v DW; R v KW

[2006] NSWSC 118

CITATION:	R v DW; R v KW [2006] NSWSC 118
HEARING DATE(S):	12/12/05, 27/02/2006
JUDGMENT DATE :	3 March 2006
JUDGMENT OF:	Buddin J
DECISION:	In respect of the offence of affray, order pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act that each of the offenders DW and KW be released on condition that: 1 he enter into a good behaviour bond for a period of nine months; and 2 he appear before the Court if called on to do so at any time during the term of the bond.
CATCHWORDS:	Sentence - affray - pleas of guilty - young offenders - power to deal with matter other than "according to law" exercised
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900
CASES CITED:	R v WKR (1993) 32 NSWLR 447
PARTIES:	Regina DW; KW
FILE NUMBER(S):	SC 2005/294; 2005/271
COUNSEL:	PM Miller (Crown) G Ikners (Offender DW) C Davenport SC (Offender KW)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecution) Katsoolis & Co (Offender DW) North & Badgery (Offender KW)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 3 MARCH 2006

2005/294 - REGINA v DW
2005/271 - REGINA v KW

REMARKS ON SENTENCE

1 HIS HONOUR: The offenders stand for sentence in respect of their involvement in an incident in Wilcannia which culminated in the death of a man from head injuries on 4 April 2004. As a result of that incident, Malcolm King, Timothy Bugmy and a juvenile, whom I shall refer to as CJ, pleaded guilty to manslaughter. They have yet to be sentenced. The two offenders, who are also juveniles and whom I shall refer to as DW and KW, each pleaded guilty to the offence of affray. That offence, which is created by s 93C of the Crimes Act 1900, attracts a maximum penalty of 10 years imprisonment when prosecuted on indictment.

2 Originally Malcolm King, Timothy Bugmy, CJ, DW, KW and two other juveniles, whom I shall refer to as MK and EH, were each charged with murder. DW and KW were each charged on 1 April 2004. They remained in custody until their release on bail on 16 June 2005. Shortly before their release on bail the charge of murder in respect of each of DW, KW, MK and EH was “no-billed”. They were each then charged with having caused the victim’s death in circumstances amounting to manslaughter.

3 A jury was duly empanelled to hear the trial. After the trial had been in progress for a number of weeks, the Crown sought to present a fresh indictment which contained the charges to which the five offenders then entered the pleas to which I earlier referred. The Crown also announced that proceedings in respect of the remaining two accused, namely MK and EH, were to be discontinued. MK and EH were then discharged.

4 A statement of facts was tendered by the Crown without objection. It is agreed that it provides the factual background against which I should proceed to sentence each of the offenders. The relevant parts of it, subject to minor modifications, are in the following terms:

On Sunday 28 March 2004 each of the offenders were either living in or visiting the town of Wilcannia, a small country town with a population of about 800, the majority being Aboriginal persons. Also living in Wilcannia was the deceased, Lewis Douglas Jones (“Doolan”) who resided with his wife and children.
In the months prior to March 2004, considerable animosity had developed between 2 family groups living in the town. On the one hand were the Bugmy and King group and on the other hand were the Jones and Whyman group.
Members from both groups lived relatively close to one another in houses bordering the intersection of Hood and Byrnes Street, Wilcannia. All of the offenders were associated with the Bugmy/King group whilst the deceased and his family were associated with the Jones/Whyman group.
On 28 March 2004 police received complaints from members of both groups. Those complaints alleged firstly that members of the deceased’s family had been assaulted by members of the Bugmy/King group and secondly that the partner of the offender Malcolm King had been threatened by members of the deceased’s family.
As a result of these complaints and what appeared to be increasing tensions between the groups, police from Wilcannia went to the area of the intersection of Hood and Byrnes Streets where the Bugmy/King and Jones/Whyman houses were located.
Upon arrival, police observed that persons from both groups were armed with weapons such as sticks, branches and iron bars and that items had been thrown backwards and forwards between the homes. The offenders were among the group in the vicinity of the Bugmy/King house. Accordingly, police attempted to usher members of the Jones/Whyman group back into the Whyman yard in an effort to calm the situation down.
As this was happening the deceased was standing alone on the north eastern corner of the intersection. A group of male persons armed with weapons such as sticks, tree branches and/or iron bars then ran towards the deceased from the direction of the Bugmy/King house which was located close to the intersection on the opposite corner.
The offender CJ picked up a rock and threw it at the deceased. The offenders Malcolm King and Timothy Bugmy were both armed with unknown items which were used to assault the deceased. At some stage the deceased collapsed to the pavement. The offenders DW and KW then commenced to behave in a menacing and threatening way towards the deceased by yelling abuse at him and waving their arms around in a threatening manner.

5 I specifically record the fact that DW and KW are to be sentenced solely upon the basis that they acknowledge having committed the essential elements of the charge which is brought against them, namely affray. Putting the matter another way, they are not to be punished for the more serious offence, namely manslaughter, of which they have not been convicted.

6 Pursuant to s 25 of the Children (Criminal Proceedings) Act 1987 (NSW), I have had made available to me a background report in respect of each of the offenders. I will deal with the material which emerges from those reports in respect of each of them in turn.

7 DW was born on 27 February 1987 and was thus 17 at the time of the offence. His parents separated when he was about 4. He has little contact with his father but enjoys a good relationship with his mother, who lives with her partner in Balranald. Indeed, DW attended school in Balranald until he dropped out in Year 9.

8 Since his release on bail, DW has resided with his aunt and uncle and his co-offender KW, who is his cousin, in Albury. He enjoys a good relationship with them and he wishes to continue living with them although his mother is anxious for him to return to live with her. Although he is not presently working DW is currently awaiting placement with the CDEP in Albury which would enable him to commence work. Nevertheless, for a period of two months whilst he was on bail he was working in Balranald and that position is still available to him should he choose to return there. It would appear that he has faithfully observed the conditions of his bail. He is apparently a talented sportsman excelling in cricket and Australian Rules.

9 DW has a minor criminal record. In November 2002 he was placed on a 6 month bond for contravening an apprehended violence order and in August 2003 he was fined for committing offences of affray and behaving in an offensive manner.

10 KW was born on 21 March 1988 and was thus 16 at the time of the offence. He grew up with his parents in Wilcannia. He attended school there and completed his Year 10 school certificate. At the time of the offence he was visiting his aunt and his uncle (the offender King). He had intended completing the final two years of schooling but those plans were thwarted when he went into custody.

11 It was a condition of his release on bail that he not live in Wilcannia. This placed a considerable strain on the family which was forced to relocate to Albury where they continue to live. Also living there are his sister and, as I have said, DW. KW is currently working on a part-time basis with the local CDEP in a nursery, a job which entails planting and nurturing saplings. I have been provided with a reference from his employer which expresses in laudatory terms his commitment to that position.

12 It would appear that he too has faithfully complied with the conditions of his bail. He enjoys a good relationship with his parents who remain supportive of him. He is also an enthusiastic sportsman and plays rugby league in the local competition.

13 His criminal record is confined to a matter in March 2003 when he was placed on a 12 month probation order in respect of an offence of break and enter.

14 The Children (Criminal Proceedings) Act deals with the penalties to be imposed upon persons who were children at the time of the offence. The relevant provisions of the Act are set out below:

16 Application
This Division applies to a person:

(a) who has pleaded guilty to an indictable offence in, or has been found guilty or convicted of an indictable offence by, a court other than the Children’s Court,
(b) who was a child when the offence was committed, and
(c) who was under the age of 21 years when charged before the court with the offence.

17 Serious children’s indictable offences
A person to whom this Division applies shall, in relation to a serious children’s indictable offence, be dealt with according to law.

18 Other Indictable offences
(1) A person to whom this Division applies shall, in relation to an indictable offence other than a serious children’s indictable offence, be dealt with:
(a) according to law, or
(b) in accordance with Division 4 of Part 3.
(1A) In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters:
(a) the seriousness of the indictable offence concerned,
(b) the nature of the indictable offence concerned,
(c) the age and maturity of the person at the time of the offence and at the time of sentencing,
(d) the seriousness, nature and number of any prior offences committed by the person,
(e) such other matters as the court considers relevant.
(2) For the purpose of dealing with a person in accordance with Division 4 of Part 3, a court shall have and may exercise the functions of the Children’s Court under that Division in the same way as if:
(a) the court were the Children’s Court, and
(b) the offence were an offence to which that Division applies .
(3) If a court, in exercising the functions of the Children’s Court under subsection (2), makes:
(a) an order of recognizance under section 33 (1) (b) or (d), or
(b) an order of probation under section 33 (1) (e),
the court may, on referral from the Children’s Court under section 40 (1A), deal with the order in the same way as the Children’s Court may deal with it under section 40.

15 A “serious children’s indictable offence” is defined in s 3 of the Act. The present offence does not fall within that definition and accordingly s 17 has no application to it. As a consequence s 18 governs the manner in which the present offence is to be dealt with. The discretion which is conferred by s 18(1) is to be determined in accordance with the matters set out in subs (1A): see also R v WKR (1993) 32 NSWLR 447.

16 It is common ground between the parties, having regard to those matters, that the present offence does not require that it be dealt with “according to law”.

17 That being so, I accept the submission made on behalf of each of the offenders that had they been originally charged with affray following their arrest, then the matter would have been dealt with in the Children’s Court where the maximum penalty which may be imposed upon them is a control order for a period of 2 years.

18 It will thus be necessary to deal with each of the offenders in accordance with Division 4 of Part 3 of the Act. In doing so I have also had due regard to the principles enunciated in s 6 of the Act.

19 There are a number of matters which weigh in the favour of each of the offenders and which I expressly take into account. The list includes their pleas of guilty (which in the circumstances were entered at the first reasonable opportunity available to them), their age, their insignificant criminal records and their favourable prospects of rehabilitation. It is also appropriate to have regard to the context in which the offence took place, as reflected in the factual background to which I earlier referred. I am inclined to the view that the conduct of each of the offenders is to be properly characterised as a spontaneous reaction to the situation in which they found themselves.

20 Of considerable significance in the disposition of the present proceedings is the fact that the offenders spent in excess of 14 months in custody prior to obtaining bail. Moreover, they have each now been on bail for a number of months, a matter which in itself has been somewhat burdensome. Nevertheless, it is to their credit that the offenders have managed to conduct themselves in an appropriate manner throughout that period.

Order

21 In respect of the offence of affray, I convict each of the offenders DW and KW. I order pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act that each of the offenders DW and KW be released on condition that:

1 he enter into a good behaviour bond for a period of nine months; and

2 he appear before the Court if called on to do so at any time during the term of the bond.

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