R v JW; R v DH

[2022] NSWDC 169

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

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

1. 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.

2. 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.

3. 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.

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

1. Robbery of Josh Craig on 6 April 2021 armed with a dangerous weapon contrary to s 97(2) Crimes Act 1900, when dealing with the principal offence referred to in 1(a).

3. The offender also stands to be sentenced for the following related offences to which he pleaded guilty in the Children’s Court:

1. Possess unauthorised pistol contrary to s 7(1) Firearms Act 1996, taking into account a further count of the same offence on a Form 1. The maximum penalty for the offence is 14 years imprisonment.

2. Possess unregistered firearm contrary to s 36(1) Firearms Act 1996, taking into account a further count of the same offence on a Form 1. The maximum penalty for the offence is 14 years imprisonment.

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

1. Robbery of BB 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.

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

5. JW and DH are co-offenders for the offences committed on 29 June 2021 against BB and EM.

Approach to Sentencing

6. Parliament has specified standard non-parole periods for a number of these offences, but they do not apply when sentencing young persons and I have not had regard to them: s 54D(3) Children (Criminal Proceedings) Act 1987 (the CCP Act).

7. The s 97(2) offence committed by JW and the s 98 offence committed by JW and DH are defined in s 3 of the CCP Act as “serious children’s indictable offences” and must be dealt with according to law: s 17 of the CCP Act.

8. The Court has a discretion to deal with the other indictable offences according to law or in accordance with Division 4 of Part 3 of the CCP Act as if it was exercising the functions of the Children’s Court. Section 18 of the CCP Act provides that in exercising that discretion, the Court must have regard to:

1. the seriousness of the indictable offence,

2. the nature of the indictable offence,

3. the age and maturity of the person at the time of the offence and at the time of sentencing,

4. the seriousness, nature and number of any prior offences committed by the person, and

5. such other matters as the Court considers relevant.

9. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

10. The Court must also have regard to the principles set out in s 6 of the CCP Act, in exercising functions under the Act, being:

1. that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

2. that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

3. that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

4. that it is desirable, wherever possible, to allow a child to reside in his or her own home,

5. that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

6. that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

7. that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

8. that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

11. Where there is any conflict between the s 6 principles and the purposes of sentencing set out in s 3A Crimes (Sentencing 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).

12. In the sentencing of young persons, general deterrence and retribution will in most cases be of less significance that they would be in sentencing an adult for the same offence. The capacity for young 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).

13. The law recognises the potential for cognitive, emotional and/or psychological immaturity to contribute to a young person’s breach of the law. Allowance should be made for the offender’s youth and not just their biological age. The weight to be given to the offender’s youth does not depend on the seriousness of the offence. Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be reduced compared to that of an adult: KT at [23].

14. The consideration of general deterrence and retribution cannot be completely ignored in sentencing young persons, because there is a significant public interest in deterring antisocial conduct, such as serious personal violence offences: KT at [24].

15. The emphasis given to rehabilitation may be moderated when a young person has conducted themselves in a way that an adult might and has committed a crime of violence or considerable gravity. In determining if a young person has participated in adult behaviour, the Court will consider the use of weapons, the degree of planning, the extent of their criminal history and the nature and circumstances of the offences. The need for rehabilitation may be diminished by the need to protect the community: KT at [25].

16. The weight to be given to the consideration of a person’s youth diminishes as they approach the age of majority. An offender of almost 18 years cannot expect to be treated substantially differently from an offender of just over 18 years of age: KT at [26].

17. An offender’s youth does not automatically lead to a reduced sentence. The greater the objective gravity of an offence the less likely it is that general deterrence and retribution will cede to the interests of rehabilitation: IE v R (2008) 183 A Crim R 150 at [16]. However, it is the particular circumstances 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: YS v R [2010] NSWCCA 98 at [22] (Rothman J).

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%.

Agreed facts

19. The parties tendered agreed statements of facts relating to the offenders. The following recitation of the facts is taken from the agreed facts. To the extent that I make findings of fact adverse to an offender, I am satisfied of that fact beyond reasonable 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).

JW offences of 6 & 7 April 2021

20. At about 11pm on 6 April 2021, Henny Hildas and Josh Craig were walking on Quarry Street Ultimo. JW and a co-offender, Kaylan Makouk, ran up behind them and stood in front of them. JW was described as being really short with the voice of a child and estimated to be 9 years of age. He was wearing a black balaclava covering his face except for his eyes, a black long-sleeved t-shirt and black trousers. The two offenders pointed guns at the victims. Mr Craig feared for his life and the life of Ms Hildas. Ms Hildas was not sure if the guns were real or not and was very confused, she considered saying no but followed what Mr Craig did.

21. The co-offender said “Hand over your things”. JW said “Give us your wallets and your phones”. One of the offenders said “Stay quiet”.

22. Mr Craig handed over his Apple iPhone 6, a Westpac debit card, driver’s licence, student card and university pass. One of the offender’s said “What else do you have?” to which Mr Craig responded “I only have change” and was told “I will take that as well”. Mr Craig handed over $5.

23. Ms Hildas handed over her backpack and a Huawei phone to one of the offenders. The backpack contained items including her passport, student card, sunglasses and wallet containing bank cards. The co-offender looked at Mr Craig and said “He’s got a bag as well”. Mr Craig handed over his backpack containing items including, two sets of keys, wireless earbuds, a hard drive, battery pack and a limited edition Nintendo switch valued at $660. One of the offenders then said “Have a good night” and Mr Craig replied “You too”. The offenders walked away laughing at which time Ms Hildas said to the young person “How old are you?”.

24. Mr Craig and Ms Hildas continued to walk towards Wentworth Park, before flagging down a car to seek help. About 10 minutes later Police began patrolling the area.

25. At about 12.15am on 7 April 2021, Police noticed a person matching the description given by Mr Craig and Ms Hildas. They approached and spoke to the co-offender, who was arrested.

26. Further examination of CCTV footage led Police to a unit within the Oaks Goldsborough Hotel where the offenders had been staying with JZ (a young person), where a search was conducted. JW was arrested at the unit and was wearing clothing matching the description given by the victims.

27. Police located two handguns and a balaclava under a mattress. A forensic firearms examiner examined the handguns and opined that they were battery operated air pistols that fired gel or water beads, similar to a paint ball, and are illegal in NSW and defined as a pistol by s 4(1) Firearms Act 1996. Both were unregistered and JW did not hold a licence or a permit to possess the pistols. One of the pistols did not work. Police also located clothing matching the descriptions given by the victims and items of property belonging to the victims.

28. Later on 7 April 2021, Police executed a search warrant at the home of JW and located other relevant clothing and items of property taken from the victims.

JW and DH offences of 29 June 2021

29. The victims EM and BB were 15 years of age at the time of the offences.

30. At about 1pm on 29 June 2021 EM received a message on Snapchat from JZ inviting him to come over and smoke cannabis with her at an address in Glebe. EM sent a text to BB inviting him to come. EM and BB caught the bus to Glebe.

31. When they arrived at the address, EM walked through the door followed by BB. There was a set of stairs to the left and a garden courtyard to the right. JZ was standing at the bottom of the stairs. EM walked over to her and gave her a hug.

32. As EM was facing JZ, BB noticed JW approach EM from the right and call out “Eddie!”. EM turned around and felt something hit his face. He saw JW standing in front of him holding a wooden object that looked like a baseball bat. BB saw JW lunging towards EM with his right hand out.

33. JW tried to hit EM around the head with the wooden object, but EM blocked the blows with his forearms. JW was about 1 metre away from EM when he dropped the wooden object and pulled out a black knife with a curved blade from the waistband of his pants. JW pointed the knife towards EM’s stomach and lunged towards him. EM grabbed the blade of the knife to avoid being stabbed. EM kicked JW in the neck causing him to stumble backwards.

34. At the same time that the assault on EM started, BB felt a blunt force blow to the top of his head. He turned and saw DH with a wooden object in his hand that looked like a bat. DH was wearing a balaclava with blond hair coming out from near his eyes. DH struck BB a number of times towards his head and body. BB had his arms up protecting his head and took several big blows to the forearms and hands. BB saw EM kick JW to the neck and yelled out “Run Eddie, I’m right behind you”.

35. EM ran through the courtyard and JW ran after him.

36. BB had his back against the stairs with DH on top of him swinging the wooden object at him. BB managed to push DH’s head away and then grab the wooden object and hit DH twice in the head with it. DH then removed a knife from his waistband and moved it back and forward in a stabbing motion. BB had his arm across his chest and was stabbed in the arm. The precise whereabouts of JW at this time is unknown. JW by his plea accepts that he was responsible for the reckless wounding of BB on the basis of a joint criminal enterprise to assault BB and EM with weapons.

37. DH got off BB at which time JW returned. They were both facing BB at the bottom of the stairs and both holding knives. BB noticed that his arm was bleeding. BB said “You just stabbed me”. JW said, “I don’t give a fuck, give me everything”. BB took off his black puffer jacket worth $120 and black Nike satchel, containing his wallet with $30 in cash in it, an ID card, a Rebel gift card, his keys, some cologne and sunglasses and gave it to one of them. Both young persons said “Give me your phone”. BB gave his iPhone 12 worth $1,000 to one of them. One of them took his shoes and his ASICS hat. One of them said, “Get the fuck out”.

38. BB ran out of the front door and obtained assistance from a passer-by. He was taken by ambulance to the Sydney Children’s Hospital. BB suffered:

1. A 3cm vertical stab wound to the upper arm. The incision breached the fascia and bicep muscle. The bleeding was stopped using diathermy. The wound was irrigated and closed with stitches.

2. A 2.5cm curvilinear incision to the antero-lateral mid-upper arm. The incision breached the muscle. The wound was closed with stitches.

3. A 5cm laceration to the posterior part of the mid-upper arm. This wound was actively bleeding on his admission to the hospital. The laceration extended deep into the fascia and through to the triceps. There was intramuscular extension of the wound about 8cm in depth to the bone. The wound was irrigated and the muscle wound was loosely closed with stitches with the fascia left open. The bleeding was controlled with diathermy.

4. A 8cm anterior curvilinear incision to the fat of the left thigh. The wound was closed with stitches.

5. A 6mm laceration near the left angle of the mandible. This was closed with a steristrip.

6. Small bruise on the right parieto-occipital region.

7. A 1.5cm superficial laceration on the dorsal of the right hand with surrounding oedema.

39. BB was discharged on 30 June 2021 and referred for follow-up in the wound clinic.

40. EM ran out of the complex and tried to flag down a car that did not stop. He got help from 2 women exercising nearby. He had a lot of blood coming from his finger and the bone was protruding out. They called an ambulance.

41. EM was assessed in the Emergency Department. He sustained a 3-4cm laceration to the right chest that was cleaned and closed with glue and steri-strips. Surgery was scheduled for 30 June 2021 to repair the injuries to his hand. EM suffered:

1. A 100% laceration to the flexor digitorum superficialis and flexor digitorum profundos tendon.

2. A 90% laceration to the first dorsal interossi muscle.

3. A 100% laceration to the ulnar nerve.

4. A 100% laceration to the ulnar digital artery.

5. A distally based superficial shelving flap laceration over the radial aspect of the proximal interphalangeal joint of the thumb.

6. A superficial laceration of the ulnar aspect of the interphalangeal joint of the thumb.

42. A splint was applied to EM’s thumb to be worn for 6 weeks. He was discharged from hospital on 1 July 2021 and advised to return for follow up on 7 July 2021. EM was reviewed on 17 September 2021 and had regained full range of movement in his fingers. He had some tender scarring, weakened grip strength and ongoing loss of sensation in part of his index finger. It is expected that EM will make a full functional recovery but that could take up to 2 years and he may be left with permanent loss of sensation in the ulnar aspect of his left index finger.

43. Police arrived at the scene at about 3.20pm. JW, DH and JZ were seen running down the stairs. JZ was observed placing a purple bin bag into a bin. Police searched the bin and recovered BB’s black puffer jacket, property taken from BB and EM, and JZ’s wallet containing identity documents. Police entered the unit block and located the 2 knives matching the descriptions given by the victims.

44. JW and DH were seen leaving the unit block at about 3.30pm. They were arrested and taken to Newtown Police Station.

JW’s Subjective Circumstances, Remorse, and Prospects of Rehabilitation

45. The Court was provided with a Confidential Background Report on JW from Youth Justice NSW dated 9 May 2022. JW also tendered a report of Dr Thomas Dornan, psychologist dated 26 April 2022, a report of Sarah Connaughton, psychologist dated 30 September 2021 and a report of Dr Leigh Haysom dated 22 September 2021.

46. The Crown did not challenge the matters advanced on behalf of JW and to some extent they were established by reference to contemporaneous records. On that basis, I make findings of fact in accordance with the following matters.

45. JW was born on 15 December 2003. He is presently 18 years old, but was 17 at the time of the offences. JW’s parents separated when he was 6 years old, but he does not remember his father. He has a younger sister and a younger half-brother.

46. JW was diagnosed with Hirschsprung’s Disease (HD) as a baby. HD is a congenital condition caused by a missing nerve in the colon that affects the large intestine making it difficult to pass stools. By age 5, JW had undergone 30-40 surgeries including the removal of his colon and the construction of a stoma in his abdominal wall. He is required to follow a strict no fibre, high protein diet.

47. JW’s parents separated following a long history of domestic violence, including an incident where his father stabbed his mother in the face in the family home. JW’s mother was addicted to methylamphetamine (ice) leading her to abuse and neglect her children. JW and his sister were removed from her care and eventually placed in long term foster care. JW’s medical condition was too difficult for those carers to manage and he was returned to short term care and separated from his sister. By age 10, JW had been in multiple foster care placements. By age 12, he was placed in a refuge. After 6 months he ran away from the refuge because he was scared of the older, bigger, rougher residents.

48. JW attended at least 2 primary schools. Whilst he made friends easily, the movement through multiple foster care placements made it difficult to maintain long term friendships. JW ceased going to school in Year 7. He reengaged in 2019 and successfully completed Year 10, before his drug use prevented him from progressing further.

49. After a final foster placement broke down, JW became homeless, living on the street, “couch surfing” and staying with his mother. During the period of his homelessness, JW began using a number of drugs to manage his emotions, his HD was unmanaged leading to him feeling hungry, malnourished and sick and he was physically assaulted a number of times.

50. JW first tried cannabis at age 11, to cope with his emotions. He became dependent on it and continued smoking cannabis until the time of his arrest. JW first used alcohol at age 12 and engaged in binge drinking every few days with peers and alone. He used Xanax from age 14 and MDMA and cocaine from age 16. He meets the criteria for substance use disorder for alcohol and various drugs.

51. At age 16, he was provided with an independent living unit in Glebe. He lived alone there until his arrest.

52. JW continues to experience digestive problems as a result of his HD, including constipation, incontinence and inflammation of the digestive tract. Since being in custody he has been better able to manage his condition.

53. JW suffers from major depressive disorder (MDD) and posttraumatic stress disorder (PTSD). He experiences emotional insecurity, social isolation and has developed maladaptive coping mechanisms resulting in drug addiction. He has been depressed since childhood, experiencing social isolation and withdrawal, negative self-talk, poor self-esteem, amotivation, disturbed sleep (including long-term insomnia), lethargy, reduced appetite and libido. He suffers from anxiety arising from a fear of rejection, abandonment and lack of stability. He experiences symptoms of nervousness, increased heart rate, rapid breathing, sweating, tiredness and problems with concentration. JW continues to suffer recurrent, involuntary and intrusive distressing memories of his past traumas. He has nightmares, disturbed sleep and often hears a woman screaming. He has had intense periods of distress followed by dissociative symptoms, hypervigilance and flashbacks.

54. JW has developed some insight into the seriousness of his offences and the consequences of his actions, including the impact of the offences on the victims. He expressed remorse to Dr Dornan and did not seek to minimise his conduct. He told his Youth Justice caseworkers that he felt a deep sense of “remorse and shame” for his offences.

55. Dr Dornan opined that the primary contributors to JW’s offending were poor decision making, impoverished background, lack of consequential reasoning and antisocial attitudes exacerbated by his drug use and negative experience of the child protection system. JW’s childhood left him immature and impaired to the extent that his ability to understand the consequences of his actions was limited. He was not equipped to make adult value judgments, understand adult experience or appreciate adult consequences. Further, HD has impacted his physical development and that together with his mental condition made him vulnerable to the influence of his co-offenders.

56. JW presented to Dr Dornan as ready and motivated to participate in treatment. His caseworkers describe him as displaying positive behaviours in custody and as being engaged in educational and recreational programs.

57. JW has not engaged with mental health treatment in custody, seeing psychologists only occasionally and stating a preference to access mental health support when he re-enters the community.

DH’s Subjective Circumstances, Remorse, and Prospects of Rehabilitation

60. The Court was provided with a Confidential Background Report from Youth Justice NSW dated 9 May 2022. DH tendered a report of Ms Kris North, forensic psychologist dated 4 May 2022 and called his Youth Justice caseworker to give evidence.

61. The Crown did not challenge the matters put forward by DH, with the exception of one issue that I have resolved at [72] below. On that basis I make findings of fact in accordance with the following matters.

62. DH was born on 28 February 2004. He is presently 18 years old, but was 17 at the time of the offences.

63. DH was born in South Africa and resided there until he was 8 years of age, when his family relocated to Australia. DH had limited memories of his early life in South Africa but reported that he had witnessed violence, including seeing people being held at gunpoint and that his family had been the victims of crime including a carjacking and a home invasion.

64. DH had an older half-brother on his mother’s side and a younger half-sister on his father’s side. His parents divorced when he was 10 years of age, shortly after the family relocated to Australia. His father had been back and forth between Australia and South Africa since this time, travelling for his import/export business, whilst his mother, who was employed in the financial sector, remained in Australia. DH reported that he had never shared close relationships with his parents, having been predominantly cared for by a nanny when he was young. Ms North opined that DH’s history was suggestive of attachment issues commonly associated with later difficulties in forming healthy relationships and self-regulation.

65. DH commenced his schooling in South Africa and entered Year 2 when he came to Australia. He attended Bellevue Hill Public School followed by Rose Bay Secondary College. Between the ages of 10 and 15 years, he resided alternately with both parents. He left school halfway through Year 9 subsequent to commencing drug use which resulted in him being excluded from the family home and moving into a refuge at age 15. DH described experiences of trauma around this time, including witnessing shootings, stabbings and overdoses, in addition to having been stabbed himself at age 14. Ms North assessed these experiences as being associated with DH’s antisocial lifestyle including his negative peer associations and drug use.

66. DH was diagnosed with Attention-Deficient/Hyperactivity Disorder (ADHD) at age 6 in relation to attention issues, hyperactivity and impulsivity. At age 13, he was diagnosed with Oppositional Defiant Disorder (ODD) following the onset of defiant behaviours and repeated suspensions from school. He was diagnosed with depression and anxiety at age 15 and has continued to experience symptoms including, increased levels of physiological arousal and a tendency to overthink, a history of self-harm and suicide attempts. DH gave a history of poor emotional regulation, anger management leading to physically aggressive behaviours.

67. DH started using cannabis and alcohol from age 12, ecstasy from age 13, and lysergic acid (LSD) and benzodiazepines from age 14. He also described the past use of methamphetamines, cocaine, and ketamine. He identified benzodiazepines as his primary drug of concern and also disclosed a history of binge drinking behaviours from age 13 which led him to experiencing liver problems at age 16. He described using drugs to avoid dealing with stress, stating that he didn’t feel anything when using.

68. DH was first charged at age 16 in relation to dishonestly obtain property by deception and robbery for which he received probation. He was subsequently charged with attempt stalk/intimidate and possess prohibited drug for which he received probation and a community bond.

69. DH had been living independently in a private rental apartment for about eight months prior to his lease ending about two weeks before the offences. He described using cannabis and ketamine in the period preceding the offences, and also reported experiencing major stress due as a result of conflict with his mother after moving back in with her. He reported that he had hardly slept on the day preceding the offences and described his memory as fragmented due to drug use. DH could not recall the details of the incident or the motivation behind his behaviour.

70. Ms North agreed with DH’s childhood diagnoses of ADHD, Combined Presentation and ODD. However, she was of the opinion that DH’s presentation and history, including his difficulties related to relating to emotional dysregulation, impulsivity, poor anger control and a history of self-harming, were more consistent with a diagnosis of Borderline Personality Disorder (BPD). Ms North also opined that DH’s symptoms were consistent with with mixed substance use disorder of moderate severity.

71. Ms North recommended that future treatment focus on addressing DH’s drug use and mental health issues concurrently, with drug use being DH’s main criminogenic risk factor and a contributing factor in the present offences. She opined that DH’s risk of reoffending could be reduced should he engage in appropriate and ongoing treatment. He was motivated towards engaging in treatment and reported that he had already made progress in addressing his mental health issues since engaging in therapy in custody. DH is currently completing Year 11. He is performing well academically and plans to complete Year 12 and then to study at university. DH displayed insight into the link between his underlying mental health and substance use issues and expressed remorse for his offending behaviour.

72. Shortly after being taken into custody DH was identified as having mental health issues and included in the Enhanced Support Program (ESP) at Frank Baxter Youth Justice Centre. In the ESP he has increased access to psychologists and other allied health professionals. He has been engaging in weekly treatment with his psychologist since about August 2021 and has been provided with a new regime of medications. He is mostly compliant with staff directions and has asked for continued assistance. The level of support that he is presently receiving is only available in the Youth Justice system through the ESP. His caseworker could not comment on what access he would have to similar services in an adult correctional centre.

Objective Seriousness, Deterrence, Aggravating and Mitigating Factors and Parity

Objective Seriousness

JW offences of 6 & 7 April 2021

73. The 6 April offence was committed at night when there were not many people around, as the victims were walking home. There was no actual violence but a real threat of violence by pointing the firearms at the victims. JW held a firearm and made demands for the victims’ property. There was some limited planning, in that JW had a firearm and was wearing a balaclava. The value of the property taken was modest. The firearms were gel blasters that were not capable of inflicting injury, but they looked real. The offence would have been a terrifying experience for the victim.

74. The firearms were located at JZ’s residence within hours of the robbery offence committed against Ms Hildas. One of the firearms was not in working order. It is not known whether the other firearm was in working order. The firearms looked real and the victims would not have known that they were not capable of inflicting injury. The extent of possession of the firearms by JW was significantly less than the co-offender, who used one of them in a robbery on 4 April 2021. The extent of JW’s possession of the firearms was for a matter of hours.

JW and DH offences of 29 June 2021

75. The reckless wounding in company offence caused a number of wounds to EM’s hand and involved significant violence for a relatively short period. JW attacked EM with a wooden bat and a large knife. The victim was stuck a number of times with the wooden bat and required surgery to repair his wounds. He had an extended period of recovery. DH was present in support of JW in the attack. The attack was unprovoked and unjustified. The victim was 15 years of age and vulnerable. The victim was defenceless. There was some degree of planning in that the offenders were waiting for the victims, they were armed with weapons and DH was wearing a balaclava. The attack would have been a terrifying experience for the victim.

76. The robbery with wounding offence caused 4 significant wounds and involved significant violence over a longer period than the reckless wounding offence. BB required stitches, diathermy and hospitalisation to treat his injuries. DH inflicted a number of blows to BB’s head and body with the bat, before wounding him with the knife. JW was not present for this part of the attack on BB but accepts that he was criminally responsible for it. JW and DH both made demands for BB’s property. The value of the property taken was modest. The attack was unprovoked and unjustified. The victim was 15 years of age and vulnerable. The victim was defenceless. There was some degree of planning in that the offenders were waiting for the victims, they were armed with weapons and DH was wearing a balaclava. The attack would have been a terrifying experience for the victim.

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 committed by JW and the offence committed by JW and DH are more serious than the types of offences considered in Henry, but also that the Henry guideline related to late pleas of guilty where the appropriate discount was in the order of 10%. The guideline 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 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).

78. The circumstances of JW’s physical condition and deprived upbringing resulting in his mental condition justify a finding that his moral culpability for the offences is reduced. He was exposed to violence, drug use, neglect and instability as a child. I accept Dr Dornan’s opinion that his capacity to understand the consequences of his actions and to make adult value judgments was limited and that this capacity was further reduced by his drug use.

79. The circumstances of DH’s exposure to violence growing up in South Africa, his family circumstances and resultant mental conditions justify a finding that his moral culpability for the offences is reduced. DH’s social deprivation started later in his life but has had a significant impact. I accept Ms North’s opinion that his mental condition made him impulsive and angry and more likely to commit acts of violence.

80. I have taken into account the maximum penalties for the offences.

Deterrence

81. General deterrence is significant when dealing with serious personal violence and firearms offences.

82. Specific deterrence is remains of some importance, notwithstanding my findings as to the offenders’ prospects of rehabilitation. JW and DH have committed serious offences and they need to understand by reference to the penalties imposed on them that committing acts of violence will result in condign punishment. I have also taken into account that without appropriate support and engagement with treatment for their relative conditions, the offenders present a risk to the community.

Aggravating factors

83. The s 97(2) offence committed by JW involved the use of a firearm in that it was pointed at the victims and was committed in company: ss 21A(2)(c) and (e) Crimes (Sentencing Procedure) Act 1999.

84. The reckless wounding in company involved the use of multiple weapons and the use of 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).

85. The robbery with wounding offence involved the use of multiple weapons: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999.

86. At the time of the 29 June 2021 offences, JW and DH were on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. JW was on bail for the April offences and required not to leave the premises were the June offences occurred. DH was on two good behaviour bonds imposed by the Children’s Court for earlier offences.

Mitigating factors

87. JW did not have a record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. This is particularly significant taking into account his appalling social circumstances.

88. DH did not have a significant record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Whilst DH had some prior convictions, bearing in mind his ADHD and ODD they were not significant.

89. The offenders have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. JW has demonstrated that when he has stability in his life that he can live within the law. Whilst in custody he has engaged positively with education and recreation. I am satisfied that with proper support that JW has good prospects of rehabilitation, but I am concerned that to date he has not chosen to actively engage in mental health treatment. DH’s engagement with treatment and educational opportunities in custody is particularly impressive. Against a very complex background of mental illness and deprivation, DH has demonstrated that with appropriate support he has good prospects of rehabilitation.

90. JW was not fully aware of the consequences of his actions as a result of his immaturity and mental condition: s 21A(3)(j) Crimes (Sentencing Procedure) Act 1999. I accept the opinions of the psychologists that JW’s judgement and decision-making capacity was impaired by his impoverished background, life experience and resulting mental state.

91. To describe JW’s childhood deprivation as “profound” would be a profound understatement. JW was exposed to significant domestic violence and drug use as a child, leading to abuse and neglect. The overlay of his serious medical condition led to instability in his foster placements and separation from his sister. He ended up homeless and reliant on drugs to regulate his emotions. His childhood has been spent without any stable support 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).

87. JW’s mental condition has been caused by his physical condition and deprived upbringing. His resort 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 JW with some stability and allowed him to control his HD.

88. DH’s exposure to violence, a broken home and his mental conditions justify a finding of significant social deprivation that reduces his moral culpability for the offences: Bugmy.

89. DH has a significant longstanding mental condition. He also began using drugs and alcohol to self-medicate at a young age when he did not have the capacity to make an informed choice: Henry and Todorovic. Being in custody has provided DH with the opportunity to receive intensive treatment for his mental condition and to reengage positively with educational opportunities. He has made strong progress in both endeavours.

90. General deterrence, denunciation and retribution should be afforded less weight in this sentencing exercise 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 would be. Third, for the reasons given the moral culpability of each offender is reduced.

91. I have taken into account that the pandemic has made conditions more difficult for all persons in custody.

Parity

97. I must consider the issue of parity when sentencing JW for the 6 and 7 April offences, by reference to the penalty imposed on Mr Makouk. It is appropriate impose a lesser penalty on JW for the following reasons. First, JW was about 15 months younger than Mr Makouk and on the evidence markedly less mature at the time of the offences. Second, the robbery offence was the third similar offence committed by Mr Makouk, albeit in a matter of a few days, whereas it was JW’s first offence. I am satisfied on the basis of Dr Dornan’s evidence that Mr Makouk’s influence was a significant matter in JW’s decision to participate in the offence. Third, the standard non-parole period does not apply to the s 7(1) Firearms Act 1996 offence. Fourth, the extent of JW’s possession of the firearms was substantially less than the possession of the co-offender. Mr Makouk used one of the firearms to commit a similar robbery on 4 April 2021. At its highest, the Crown case against JW involves possession of the firearms for a period of hours. Finally, JW is a young person and I must consider the principles in s 6 of the CCP Act and exercise the discretion in s 18 of the CCP Act, which potentially involves applying a different penalty regime.

98. I have also considered the issue of parity between the sentences to be imposed on JW and DH for the 29 June 2021 offences. I am satisfied that this is an appropriate case to impose the same terms of imprisonment, taking into account the nature of the offences, the joint criminal enterprise that is accepted by the pleas of guilty and the existence of significant, albeit slightly different, subjective factors that justify a reduction of the sentence imposed. I have partially accumulated the sentences differently to reflect the slightly superior nature of JW’s subjective case.

Application of s 18 of the CCP Act

99. It is appropriate to deal with the firearms offences in accordance with Division 4 of Part 3 of the CCP Act, on the basis of the short period of possession of the firearms, the age and maturity of JW at the time of the offences and presently, JW’s lack of prior record at the time of the offences, the exclusion of the standard non-parole period and the s 6 principles.

100. The reckless wounding in company offence is a serious offence involving significant violence against 2 vulnerable victims. It forms part of the totality of the criminal conduct of the offenders on 29 June 2021 and will be partly accumulated with the sentence for the s 98 offence, which must be dealt with at law. Whilst I have made findings of fact on the other factors to be considered under s 18 of the CCP Act that are mostly favourable to the offenders, I am satisfied that the reckless wounding in company offence should be dealt with at law.

Penalty – JW

101. JW is convicted of the firearms offences being:

1. sequence 3 (H29948098), taking into account sequence 6 on a Form 1, and

2. sequence 7 (H29948098), taking into account sequence 8 on a Form 1.

102. For each of these 2 offences, JW is released on probation pursuant to s 33(1)(e) of the CCP Act for 12 months on condition that he is of good behaviour and that he not commit any offence.

103. For the remaining offences, I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all other alternatives that no penalty other than imprisonment is appropriate.

104. JW is convicted of:

1. The s 97(2) offence, sequence 5 (H29948098),

2. The s 35(3) offence, sequence 1 (H109272090), and

3. The s 98 offence, sequence 2 (H109272090).

105. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

1. The s 97(2) offence, sequence 5 (H29948098) taking into account sequence 1 on a Form 1 – 4 years

2. The s 35(3) offence, sequence 1 (H109272090) – 3 years

3. The s 98 offence, sequence 2 (H109272090) – 5 years.

106. I find that there are special circumstances that justify a variation to the statutory ratio. The offender is young and it is his first time in custody. He has physical and mental health conditions as well as addiction issues that justify an extended parole period.

107. I impose an aggregate term of imprisonment comprising of 5 years and 9 months, with a non-parole period of 3 years and 3 months to date from 17 June 2021 to account for his two periods of presentence custody. The non-parole period will expire on 16 September 2024 and the head sentence will expire on 16 March 2027. The offender will be eligible to be released on parole on 17 September 2024.

108. I have had regard to s 19 of the CCP Act and I direct that JW serve his sentence of imprisonment as a juvenile offender, on the basis of the following special circumstances. First, JW is vulnerable on account of his HD and mental condition. Second, there is an unacceptable risk that JW would suffer physical or psychological harm in a correctional centre by reference to his lack of physical development caused by his HD and the adverse impact a custodial sentence in a correctional centre would have on his impaired mental state.

Penalty – DH

109. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all other alternatives that no penalty other than imprisonment is appropriate.

110. DH is convicted of:

1. The s 35(3) offence, sequence 1 (H83501516), and

2. The s 98 offence, sequence 2 (H83501516).

111. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

1. Sequence 1 – 3 years

2. Sequence 2 – 5 years.

112. I find that there are special circumstances that justify a variation to the statutory ratio. The offender is young and it is his first time in custody. He has mental health conditions and addiction issues that justify an extended parole period.

113. I impose an aggregate term of imprisonment comprising of 5 years and 6 months, with a non-parole period of 3 years to date from 28 June 2021. The non-parole period will expire on 27 June 2024 and the head sentence will expire on 27 December 2026. The offender will be eligible to be released on parole on 28 June 2024.

114. I have had regard to s 19 of the CCP Act and I direct that DH serve his sentence of imprisonment as a juvenile offender, on the basis of the following special circumstances. First, DH is vulnerable on account of his mental conditions. Second, the therapeutic and educational programs available to him in the ESP which he is engaged in are only available in a detention centre.

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Decision last updated: 19 May 2022