R v JT

[2015] NSWDC 203

District Court

New South Wales

Medium Neutral Citation:	R v JT [2015] NSWDC 203
Hearing dates:	16 July 2015
Date of orders:	16 July 2015
Decision date:	16 July 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The Crown appeal is allowed and the offender is re-sentenced. The effective overall sentence consists of control orders with a non-parole period of 12 months and head sentence of one year and six month. Direct that he serve the entirety of his non-parole period in juvenile detention.
Catchwords:	CRIMINAL LAW – Crown appeal – Robbery in company – Joint criminal enterprise – Violence – Significant injury to victims.
Legislation Cited:	Children (Criminal Proceedings) Act
Category:	Principal judgment
Parties:	The Crown - Appellant JT - Respondent
Representation:	Solicitors: Director of Public Prosecutions T & A Legal Pty Limited - Offender
File Number(s):	2014/169078
Publication restriction:	There is to be no publication of the name of the offender or of any material which may tend to identify the offender

Judgment

1. HIS HONOUR: This is an appeal by the prosecution against sentences imposed on a young person, JT. He committed two very serious offences of robbery in company. It is difficult to tell them apart in seriousness. Despite that, the magistrate imposed a control order consisting of a total term of 14 months with a non-parole period of six months on one offence and community service of 150 hours on the other.

2. I will say immediately having considered this material I am satisfied that the Crown should succeed on its appeal and I should re-sentence JT to sentences which properly reflect the objective gravity of his awful conduct. It is quite easy to determine with some precision exactly what that conduct was because the offences I am about to describe were all committed just outside the Macquarie Fields Police Station and CCTV cameras captured almost everything which occurred.

3. It was at about 3 o’clock one morning when two relatively young men, Stephen Lechner who was 23 and Aiden Lutzo who was 18, decided to go and get some McDonald’s. They walked along the road. Walking in the opposite direction was the respondent to this appeal and four other people of varying ages. Initially it seemed that the groups would pass without incident, but one of the respondent’s friends, Mr Usoalii, approached the two, I will call them “victims” because they were, and asked for cigarettes. Mr Lechner pulled out his cigarettes. By this stage all offenders surrounded the two victims. It seemed, however, that after the cigarettes had been obtained that would be the end of it.

4. This offender, along with others, started to walk away. But one offender, Mr S, put his hand in one of the victims’ pockets and someone said “hand over your stuff”. This caused the respondent and the two people he was with to return back towards the victims. Various of the offenders began going through the pockets of the victims, someone said “take his jacket”, and when there was some slight resistance from the victims a whole lot of violence ensued.

5. Of course in sentencing the offender it is important to take into account not only what he did, which was bad enough, but by participating, as he continued to do, in a joint criminal enterprise involving violence committed by others with whom he was acting he is also criminally responsible for the actions of those others.

6. It is frightening to consider what this violent group of young men did in the early hours of that morning. The Crown tendered the CCTV footage. It was distressing in the extreme to see how human beings can treat other human beings. It was not enough that there were five of them and only two of the others, it was not enough that at least this offender appeared to be significantly larger than the victims, they used their superior numbers to inflict significant injuries upon the victims including, and this is perhaps the worst aspect of what I have to say, kicking an unconscious person in the head whilst he was lying on the ground and then simply walking away leaving him unconscious and, for all the offenders knew, dead in the middle of the road.

7. To emphasise. After Mr Lechner had been subject to a great deal of violence, he ended up on the ground. Mr S, one of the co-offenders, stopped going through his pockets and stomped on his head twice and then kicked him to his head. After that, he went up and himself kicked Mr Lechner in the head and simply walked away.

8. Having inflicted that significant level of violence on one human being, one might have thought that any decent person would pause and reflect on the wrongfulness of what had just occurred. But this offender was not finished. He ran up to the other offender, picked up a beer bottle which happened to be lying nearby and struck Mr Lutzo in the head with it. Fortunately for both Mr Lutzo and the offender the beer bottle did not break, but it was clearly the offender’s intention that this bottle would be used as a very significant weapon.

9. After that occurred Mr Lutzo managed to run away, away from where his unconscious friend was lying on the ground. But he, too, was kicked in the head by Mr S which caused him to fall backwards where he remained unconscious.

10. Fortunately, the offenders had had enough by this stage and they left, leaving two victims, Mr Lutzo and Mr Lechner, lying in the ground unconscious and, for all they knew, dead.

11. Not surprisingly, the injuries were significant. Mr Lechner had a number of injuries, including peri orbital swelling disclosed on a CT brain scan, abrasions, bruising and ongoing neck pain. Mr Lutzo had more significant injuries because his CT scan showed bleeding in the brain which is of obvious seriousness.

12. Despite the difference in injuries, I have decided to impose identical sentences on both matters. The level of violence was the same. It was really an accident that Mr Lechner was not injured as significantly as Mr Lutzo was.

13. The five offenders were arrested fairly soon afterwards. In a recorded interview with police this offender admitted responsibility, said that he had been drinking since six in the afternoon and expressed his remorse when shown the CCTV footage. Somewhat remarkably although the offender was 16 and a half at the time of this offending, he has no criminal history. I say somewhat remarkably because it is unusual for an offender to commit offences of such seriousness as his first offence .

14. The offender was brought up by both parents initially but they separated in 2008 with the offender having minimal contact with his father since then. The offender lives with his mother and his siblings in Canley Heights. He was not exposed to any domestic violence as he grew up, so it could not be said that violence was a way of life for him.

15. A Juvenile Justice report was, of course, prepared. The offender’s mother noted that as this offender became older, he began to ignore her rules and mix with undesirable associates, consume alcohol and use drugs. At one stage he was at high school but often truanted, which led to a number of suspensions. Following a period of custody relating to these offences, he stopped going to school. There were no suggestions while he was at school, however, of any violence or aggression towards staff or other students.

16. The Juvenile Justice report says “a major contributing factor to JT’s offending is his susceptibility towards negative peers”. It is always difficult to determine, when sentencing someone who is said to have mixed with the wrong crowd, who in fact is the “wrong crowd”. Is the offender himself partly responsible for the violent behaviour of his co‑offenders? I will accept, however, the Juvenile Justice report on face value which paints this offender as someone who has been led astray by negative peers. Certainly on the night that these offences were committed the offender’s interaction before the violence ensued was brief and indeed he was walking away when things turned ugly, but once violence did erupt he participated enthusiastically and significantly.

17. I should mention in that light that although he was 16 and a half at the time of his offending, he was the tallest of the offenders; in fact the tallest of the seven people involved. He is a person who looks much older and larger than his years would suggest.

18. I accept that the offender is ashamed of his actions and was shocked at seeing what he did. He claimed that he could not remember too much of the evening because of his intoxication.

19. I am sentencing him as a juvenile and so s 6 of the Children (Criminal Proceedings) Act is important in that I must exercise my functions having regard to the principles set out there. I have re-read them, as I do every time I sentence a juvenile, in order to ensure that I overlook no principle which I must follow.

20. I fully accept that 16 and a half year olds do not think like adults and that rehabilitation of a young person is very important indeed. But I do have to say that you do not have to be terribly mature to know just how wrong it is to kick an unconscious person in the head and to hit someone on the head with a beer bottle and then to walk away leaving both unfortunate victims unconscious in the middle of the road.

21. I take into account of course, in the offender’s favour, that this was clearly unplanned. It seems that someone other than the offender decided to rob both of the victims and resort to violence on the spur of the moment when they saw the two victims in the early hours of the morning. I take into account that the use of the bottle, as I have already mentioned I think, was also a spur of the moment decision by the respondent. He did not have the bottle with him, just saw it in the course of inflicting violence upon one of the victims and decided that he would use it against him.

22. There is a fundamental rule of sentencing which applies, albeit with less force in the case of sentencing a juvenile, and that is that the sentence must reflect the objective gravity of an offender’s conduct.

23. I accept that there are good prospects of rehabilitation. I accept that the offender is remorseful and I, of course, take into account his prior good character as well as his early pleas of guilty. But it remains the case that custodial sentences are required for both offences, custodial sentences longer than that imposed by the magistrate on one count alone.

24. The order I therefore make is that I allow the appeal.

25. For the offence consisting of sequence 1, I impose a sentence consisting of a control order containing a non-parole period of nine months to commence from 21 January 2015 and a head sentence of 15 months.

26. For the offence which is sequence 3, I impose a control order consisting of a non-parole period of nine months commencing from 21 April 2015 and a head sentence of 15 months.

27. The overall sentence, thus, consists of a non-parole period of one year commencing from 21 January 2015 and the head sentence of one year six months.

28. The offender will be released to parole on 20 January 2016 and, for more abundant caution, I direct that he serve the entirety of his non‑parole period in juvenile detention. He is to be supervised upon his release from custody.

**********

Decision last updated: 18 September 2015