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R v JW; R v DH

R v JW; R v DH

Case [2022] NSWDC 169 19 May 2022

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District Court

New South Wales

Medium Neutral Citation: R v JW; R v DH [2022] NSWDC 169
Hearing dates: 12 May 2022
Date of orders: 19 May 2022
Decision date: 19 May 2022
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
Penalty – JW
1. For the firearms offences, JW is released on probation pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 for 12 months on condition that he is of good behaviour and that he not commit any offence.
2. For the remaining offences, an aggregate term of imprisonment for 5 years and 9 months with a non parole period of 3 years and 3 months to date from 17 June 2021.
Penalty – DH
1. An aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years to date from 28 June 2021.

Catchwords:
CRIME — Violent offences — Armed robbery — Dangerous weapon - Offensive weapon
CRIME — Violent offences — Reckless wounding
CRIME — Firearms offences — Unregistered - Unauthorised use/possession of firearm

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996

Cases Cited:
Bugmy v The Queen (2103) 249 CLR 571
Hoskins v R [2021] NSWCCA 169
IE v R (2008) 183 A Crim R 150
KT v R [2008] NSWCCA 51
Legge v The Queen [2007] NSWCCA 244
Muldrock v R (2011) 244 CLR 120
R v Borkowski (2009) 195 A Crim R 1
R v Dickinson [2004] NSWCCA 457
R v Henry (1999) 46 NSWLR 346
R v Olbrich (1999) 199 CLR 270
R v SDM (2001) 51 NSWLR 530
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Todorovic [2008] NSWCCA 49
SBF v R [2009] NSWCCA 231
YS v R [2010] NSWCCA 98

Category: Sentence
Parties: R v JW; R v DH
Representation:
Counsel:
C O’Neill (Defendant JW)
S Orman-Hales (Defendant DH)
Solicitors:
R Thoms-Packer (Prosecutor)
Children’s Legal Service, Legal Aid NSW (JW)
Veronica Love (DH)

File Number(s): 2021/186917
2021/95724
2021/187001
Publication restriction: None

Judgment

Introduction

JW (a young person) appears for sentence after pleading guilty in the Children’s Court to the following offences:

Robbery of Henny Hildas on 6 April 2021 armed with a dangerous weapon contrary to s 97(2) Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment.

Robbery of BB (a young person) on 29 June 2021 armed with an offensive weapon and causing wounding to BB contrary to s 98 Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment.

Reckless wounding of EM (a young person) on 29 June 2021 in company contrary to s 35(3) Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment.

JW also asks the Court to take into account the following offences on a Form 1:

Robbery of Josh Craig on 6 April 2021 armed with a dangerous weapon contrary to s 97(2) Crimes Act 1900, when…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v JW; R v DH

Details

AGLC: R v JW; R v DH [2022] NSWDC 169
Case: [2022] NSWDC 169
Decision Date: 19 May 2022

CaseChat Overview and Summary

The two appellants, JW and DH, were convicted of various charges stemming from an armed robbery where a dangerous weapon was used. The case came before the court for determination of the appropriate sentences. The legal issues before the court included the severity of the crimes committed, the nature of the weapons used, and the appropriate penalties under the relevant legislation.

The court considered the gravity of the offences, including the use of a firearm and the potential for causing serious harm. In determining the sentences, the court evaluated the individual circumstances of each appellant, including their roles in the crime and their previous criminal histories. The court also took into account the potential deterrent effect of the sentences on future criminal behaviour.

In its reasoning, the court acknowledged the seriousness of the crimes committed but also recognised the appellants' potential for rehabilitation. The court imposed sentences that reflected the gravity of the offences while also considering the possibility of rehabilitation. For JW, the court imposed a sentence of probation for the firearms offences and a term of imprisonment for the other charges. For DH, the court imposed a term of imprisonment. The court's decision provided clarity on the appropriate penalties for such serious crimes, taking into account the individual circumstances of each appellant.

Orders

Orders of the court

Penalty – JW

1. For the firearms offences, JW is released on probation pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 for 12 months on condition that he is of good behaviour and that he not commit any offence.

2. For the remaining offences, an aggregate term of imprisonment for 5 years and 9 months with a non parole period of 3 years and 3 months to date from 17 June 2021.

Penalty – DH

1. An aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years to date from 28 June 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v JW; R v DH [2022] NSWDC 169

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Cases cited in this decision · 14 of 14 shown

Hoskins v R
[2021] NSWCCA 169 Para 91

…ws that there should be a significant reduction in his moral culpability for the offences: Bugmy v The Queen (2103) 249 CLR 571 and Hoskins v R [2021] NSWCCA 169 at [57]-[61] (Brereton JA).…
Bugmy v The Queen
[2013] HCA 37 Para 91

…pport structures in place. It follows that there should be a significant reduction in his moral culpability for the offences: Bugmy v The Queen (2103) 249 CLR 571 and Hoskins v R [2021] NSWCCA 169 at [57]-[61] (Brereton JA).…
Muldrock v The Queen
[2011] HCA 39 Para 90

…se for the following reasons. First, each offender suffers from a mental condition and it is not appropriate to make an example of them: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. Second, each offender was immature at the time of their offending conduct and they should not be treated in the same way that adults wo…
YS v R
[2010] NSWCCA 98 Para 17

…[143] (Johnson J). The extent of violence perpetrated in an offence does not by itself establish that a young person was acting as an adult: YS v R [2010] NSWCCA 98 at [22] (Rothman J).…
SBF v R
[2009] NSWCCA 231 Para 17

…cumstances of the offender and the offence that determine the weight to be given to general deterrence, retribution and the s 6 principles: SBF v R [2009] NSWCCA 231 at [142]-[143] (Johnson J). The extent of violence perpetrated in an offence does not by itself establish that a young person was acting as an adult: Y…
KT v R
[2008] NSWCCA 51 Para 12

…g people to reform and mould their character to conform with social norms, places more emphasis on providing opportunities for rehabilitation: KT v R [2008] NSWCCA 51 at [22] (McClellan CJ at CL).…
R v Todorovic
[2008] NSWCCA 49 Para 87

…esort to drug use was a form of self-medication and commenced at an age when he was incapable of making an informed choice: Henry and R v Todorovic [2008] NSWCCA 49. His drug use at the time of the offences is some explanation for his actions that were significantly out of character. Being in custody has provided J…
Legge v R
[2007] NSWCCA 244 Para 77

…line judgment is not prescriptive, but rather operates as a check or a sounding board for the imposition of an appropriate penalty: Legge v The Queen [2007] NSWCCA 244 at [40] and [48]–[59]. The guideline judgment applies to offenders who are young persons, while making due allowance for the circumstances of the off…
Regina v A.S
[2006] NSWCCA 309 Para 11

…Procedure) Act 1999 , any tension should be resolved through an intuitive synthesis based on a “judgement of experience and discernment”: R v AS [2006] NSWCCA 309 at [25]-[26] (Sully J, Mason P and Latham agreeing).…
R v Dickinson
[2004] NSWCCA 457 Para 84

…f a knife to inflict wounds specially aggravates the seriousness of the offence: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999 and R v Dickinson [2004] NSWCCA 457 at [23] (Barr J, Wood CJ at CL and Simpson agreeing).…
R v SDM
[2001] NSWCCA 158 Para 77

…ng persons, while making due allowance for the circumstances of the offence, the offender and the principles set out in s 6 of the CCP Act: R v SDM (2001) 51 NSWLR 530 at [14]-[18] (Wood CJ at CL).…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 18

…Each offender entered an early pleas of guilty that have significant utilitarian value and demonstrate remorse: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The appropriate discount on sentence for each offender is 25%.…
R v Olbrich
[1999] HCA 54 Para 19

…doubt. To the extent that I make findings of fact favourable to an offender I am satisfied of that fact, on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).…
R v Henry
[1999] NSWCA 111 Para 77

…The Henry guideline is applicable in these sentence proceedings: R v Henry (1999) 46 NSWLR 346. The guideline provides that where the offence is characterised by certain features, the head sentence imposed should fall between four to five years imprisonment. It should be noted that the s 97(2) robbery offence committe…

Legislation cited in this decision · 4

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 6)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 9)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Firearms Act 1996 (TAS)
1 mention (from Para 2)

Medium Neutral Citation:	R v JW; R v DH [2022] NSWDC 169
Hearing dates:	12 May 2022
Date of orders:	19 May 2022
Decision date:	19 May 2022
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	Penalty – JW 1. For the firearms offences, JW is released on probation pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 for 12 months on condition that he is of good behaviour and that he not commit any offence. 2. For the remaining offences, an aggregate term of imprisonment for 5 years and 9 months with a non parole period of 3 years and 3 months to date from 17 June 2021. Penalty – DH 1. An aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years to date from 28 June 2021.
Catchwords:	CRIME — Violent offences — Armed robbery — Dangerous weapon - Offensive weapon CRIME — Violent offences — Reckless wounding CRIME — Firearms offences — Unregistered - Unauthorised use/possession of firearm
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
Cases Cited:	Bugmy v The Queen (2103) 249 CLR 571 Hoskins v R [2021] NSWCCA 169 IE v R (2008) 183 A Crim R 150 KT v R [2008] NSWCCA 51 Legge v The Queen [2007] NSWCCA 244 Muldrock v R (2011) 244 CLR 120 R v Borkowski (2009) 195 A Crim R 1 R v Dickinson [2004] NSWCCA 457 R v Henry (1999) 46 NSWLR 346 R v Olbrich (1999) 199 CLR 270 R v SDM (2001) 51 NSWLR 530 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Todorovic [2008] NSWCCA 49 SBF v R [2009] NSWCCA 231 YS v R [2010] NSWCCA 98
Category:	Sentence
Parties:	R v JW; R v DH
Representation:	Counsel: C O’Neill (Defendant JW) S Orman-Hales (Defendant DH) Solicitors: R Thoms-Packer (Prosecutor) Children’s Legal Service, Legal Aid NSW (JW) Veronica Love (DH)
File Number(s):	2021/186917 2021/95724 2021/187001
Publication restriction:	None