R v PHL

[1999] NSWSC 961

CITATION:	R v PHL [1999] NSWSC 961
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70037/98
HEARING DATE(S):	18/06/99; 13/08/99
JUDGMENT DATE:	13 August 1999
PARTIES :	Regina PHL
JUDGMENT OF:	Hidden J at 1

COUNSEL :	M M Cunneen (Crown) J W Black QC (PHL)
SOLICITORS:	Director Public Prosecutions (Crown ) Sydney Regional Aboriginal Corporation ( PHL)
CATCHWORDS:	Sentence - juvenile - s33(1)(e) Children (Criminal Proceedings) Act 1987
ACTS CITED:	Children (Criminal Proceedings) Act 1987
DECISION:	Probation order

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HIDDEN J
Friday 13 August 1999

70037/98 - REGINA v PHL

Closed Court - Juvenile

Remarks on Sentence - ex-tempore

1     HIS HONOUR: The young offender was charged with murder arising from a tragic incident which took place at Chester Hill on the afternoon of Friday, 5 September 1997.

2     Upon arraignment he pleaded guilty to an alternative charge of robbery, which the Crown accepted in full satisfaction of the indictment.

3     Shortly put, the facts are these. On that afternoon the offender was a passenger in a vehicle being driven by an adult co-offender, Jason Paul Maslen. To Maslen's knowledge, he was looking for someone from whom to steal property. The victim selected was a 73 year old woman, Mrs Joan Wills, in Chester Hill Road. Maslen stopped the car. The young offender got out and snatched Mrs Wills' handbag. She resisted and as a result she fell to the ground. She suffered a fracture to the neck of her left femur and unfortunately died in hospital the next day as a result of internal bleeding.

4     It must be borne firmly in mind that the young offender does not stand for sentence for any form of criminal responsibility in respect of that unfortunate lady's death. He stands for sentence only for the crime of robbery, serious as that crime is.

5     In an electronically recorded interview with police in the presence of his mother on 10 September 1997, the offender admitted the offence. There is conflicting evidence about his motive for committing it but I do not find that necessary to resolve.

6     As I have said, the offence is a serious one which, in other circumstances, would call for a significant deterrent sentence. This particular case, however, is attended by some most unusual circumstances. This offender was but thirteen years old at the time of this offence and is now only fifteen. He was in custody from 10 to 29 September 1997. He was then released on bail but, being in breach of the terms of bail, he was returned to custody on 28 October 1997 and remained in custody until released again on bail by order of a judge of this Court on 10 July 1999. In all, he has served a little over twenty months in custody referable to this offence.

7     He has a prior criminal history but its significance must be determined in the light of his age and background.

8     I have had the benefit of a comprehensive and very helpful report of Ms Gina Proudlove of the Department of Juvenile Justice. Today I have received a further updated report of Bernadette Logo of that Department. It is sufficient to say that that material discloses a very disturbed childhood. It is unnecessary to recite the detail of it comprising, as it does, conflict at the parental home, periods in various centres in an attempt to find some stability in his life and periods when he was in fact a street dweller. It was during one of those periods that this offence was committed.

9     The reports disclose that this young man has a lot of ground to make up in terms of his personal stability, his education and his employment skills. What is encouraging is that, since his release on bail a little over a month ago, he appears to have made significant progress in that regard.

10     He has re-established contact with his mother, at least, and is making efforts in secondary school education. Plans are in place, should he remain at liberty, for his being accommodated and being assisted and supervised by officers of the Department.

11     In the whole of his troubled life this period presents as that with the most promise. Given his youth, and for that reason only, I consider that the period he has spent in custody is sufficient custodial punishment for his crime. The community interest is now best served by his rehabilitation and that is best achieved by his remaining at liberty under the supervision of the Department of Juvenile Justice.

12     I considered imposing a sentence under the Sentencing Act, backdated in such a way as to enable his immediate release on parole. That would have symbolic force as a denunciation of his crime and it would be an attractive option if he were older. Given his youth, however, I don't think an order of that kind is called for.

13 I think there is much to be said for the orders proposed by Mr Black QC who has appeared for him today, and that is an order releasing him on probation pursuant to s33(1)(e) of the Children (Criminal Proceedings) Act 1987.

14     This is a power granted to a Children’s Court under that Act but by virtue of s18(2) of the Act I have the power to deal with him in the same way. Section 33 places a two year limit on the period of probation which I might impose but in my view that period is required.

15     Accordingly, I order that the offender be released on probation for a period of two years.

16     The conditions of his probation are that he accept the supervision and guidance of the Juvenile Justice Community Service, that he reside as directed by Juvenile Justice Community Service and that he attempt to obtain and remain in employment.

17     In making the probation orders I have taken into account the matters on the Form One presented to me this morning.

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Last Modified: 09/30/1999