R v SP (Young Person)

[2021] NSWDC 617

District Court

New South Wales

Medium Neutral Citation:

R v SP (Young Person) [2021] NSWDC 617

Hearing dates:

10 September 2021

Date of orders:

14 September 2021

Decision date:

14 September 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentence imposed one of 22 months imprisonment with a non-parole period of 10 months

Catchwords:

SENTENCING — Juvenile offenders — Sentence of imprisonment

CRIME — Violent offences — Cause grievous bodily harm with intent

Legislation Cited:

Crimes Act 1900 (NSW), s 33(1)(a)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1)(c), s 21A(2)(ea), 21A(2)(g)

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 17

Cases Cited:

Bugmy v The Queen [2013] HCA 37

KT v The Queen [2008] NSWCCA 51

Category:

Sentence

Parties:

SP (Offender)
Director of Public Prosecutions (Crown)

Representation:

Counsel:

Mr Brock (Young Person)
Ms Narayan (Crown)

File Number(s):

2020/333346

Publication restriction:

Name of young person

SENTENCE

Introduction

1. The young person stands to be sentenced at law having pleaded guilty to the following offence:

2. That on 23 November 2020 at Parramatta he wounded AA with the intention of causing him grievous bodily harm. That is an offence under s 33(1)(a) of the Crimes Act and has a maximum penalty of 25 years imprisonment. There is no applicable standard non-parole period because of the age of the young person.

The Facts

3. The facts are agreed and the following is taken from the agreed facts.

4. The young person attended Arthur Phillip High School along with the victim, AA, and they attended in the same year.

5. On 24 August 2020 the young person brought a knife to school and showed friends in the school bathroom. After school the victim was walking home and realised the young person was following him. The young person said, “Come on I want to talk to you”. The victim was near a police officer. He told the officer he did not feel comfortable. The officer told the young person to leave the victim alone.

6. On 27 August 2020 the young person had an argument with the victim in class following which the young person punched the victim and the victim retaliated by punching him back. Two days later the young person was arrested outside Woolworths in Mascot. The young person was charged with affray and armed with intent. He was granted bail in relation to that matter. The young person was still subject to those bail conditions at the time of the current offence.

7. As a result of the 27 August 2020 incident, the young person was suspended from school for three months. He was due to return to school on 23 November 2020, the date of the present offence. Before his return to school a meeting with the school occurred where he agreed to comply with random bag searches for knives.

8. At about 7.30am on 23 November 2020 a fellow student, NT, caught the 802 public bus travelling towards the Parramatta railway station. At about five minutes into the journey the young person boarded the bus and sat directly behind NT. The young person told NT that he wanted to stab the victim because the victim was “talking bad stuff about my family a while ago”. The young person invited NT to feel his shoe, which he did. NT felt what appeared to be a knife inside the young person’s shoe and the young person agreed that he had a knife in there. The young person said, “I have to stab [the victim]. I want to do it and even if I get expelled I want to go out with a bang. I want people to know me and ask about me”. The young person also said to NT, “When I’m done should I run out of the school or should I stay in the school? If I get arrested in school everyone will see and I will get famous.” When NT suggested the young person should just talk to the victim, the young person replied, “Nah I will I’ve already set my mind on it. I don’t wanna kill him I just want to stab him in the thigh and the belly”.

9. Later whilst at school the young person approached NT and his friends near the toilets. The young person asked what time the victim would be arriving at school. He said, “I’m going to shank [the victim] and do it today. He’s such a piece of shit.” He again said that he had a knife in his shoe. The young person then entered the bathroom, removed the knife from his shoe and placed it down the front of his pants. He left the bathroom and told another student, “I put the knife on my belt. If you tell anyone about this I’m going to shank you and (no named included).” The young person then walked towards the front gate near the turnstiles. From 8.03am to 8.25am the young person was captured on CCTV footage waiting. The young person is captured near the entrance of the school where the turnstiles are located.

10. At about 8.25am the victim arrived at school. The young person immediately approached him and said, “Come here I want to talk to you.” The victim replied, “Not now. I’m talking to you later after class”. The victim turned away from the young person. Several students then observed the young person remove a black-handled kitchen knife from the front of his pants. The young person held the knife in his right hand and stabbed the victim twice in the upper back. The victim felt “a little sting” towards his shoulder. The victim held up his right arm to protect himself and the young person stabbed the victim twice in his right forearm. The victim was scared and saw that his arm was bleeding. He ran from the young person, but the young person pursued him. The young person chased the victim around the school still armed with the knife.

11. A student support officer, Ms Catherine McFarlane, saw the young person chasing the victim through the handball courts. She saw him slip and fall on the wet ground, but that he immediately got up and continued pursuing the victim. He looked enraged. Ms McFarlane yelled, “Stop, stop”. Another teacher, Ms Siddiqui, saw the young person chasing the victim whilst holding a knife in his right hand. The victim ran into a group of Year 11 boys. The young person yelled, “Fucking pussy”. The victim approached a Year 11 student. He said, “Please help me, help me”. The victim was holding his left upper shoulder area with his hand. He said, ‘I got stabbed. I got stabbed.”

12. The Year 11 student saw the young person running towards them holding a knife. He was concerned he would also be stabbed, so he lunged at the young person and grabbed him. He forced the young person up against a recycling bin and repeatedly told him to drop the knife.

13. Ms Siddiqui also approached them and demanded the young person drop the knife. The young person held out his hand and dropped the knife on the concrete floor. Ms Siddiqui placed her foot over the knife to secure it.

14. At about 8.33am the young person ran from the school. He was last seen ducking underneath the turnstiles and running on Macquarie Street. Meanwhile the victim had run to the office to seek help. Police and paramedics were called. Many students and teachers observed a trail of blood throughout the school where the young person had chased the victim.

15. Shortly after 8.33am police and paramedics arrived. The victim was then taken to the Westmead Children’s Hospital. Police were also directed to a black-handled kitchen knife which was dropped by the young person. The 22 centimetre knife was seized, its serrated blade was 12 centimetres long with a 10 centimetre long black handle.

16. At 10.00am the young person’s mother arrived at school. She made numerous attempts to contact her son, however, the young person would not answer her calls. Ms A told investigators that she had searched the young person’s bag at 6.30pm the night before and did not find any knives.

17. After the offence the young person posted several messages on Instagram with a number of smiling emojis. He posted, “Still not caught” followed by smiling emojis, “No more being a hard cunt for ya”. The young person also shared a video compilation with four images. The first image was that of a bleeding finger followed by the words “see yars in 6 months”, followed by a news article about the stabbing, followed by smiling emojis. In a thread headed “victory or death”, the young person messaged a friend. The friend asked, “where did ya stab him”, and the young person replied, “back” and “put 3”. The friend then messaged, “your going to get done mad”. The young person replied, “IK” (a reference to I know) and “I’m on the run”. He then wrote “wanna a kb (reference to kickback) at parra after school”.

18. Police attended the home of the young person’s father at an address in Merrylands. Mr P indicated that he had tried several times to call his son, however, the young person did not answer the calls. The young person’s parents consented to a search of their premises. During the search the young person’s mother told police that she hid all the knives in the house. The young person’s mother did this as she was worried about the young person accessing the knives.

19. At 8.00pm the young person presented to the Auburn Police Station with his father where he was placed under arrest. At the time of arrest the young person had a small laceration to his index finger consistent with the Instagram video posted earlier that day. The young person was also wearing the same clothing as seen on the CCTV. He declined to participate in a record of interview exercising his rights.

20. The victim presented to the Westmead Children’s Hospital and was treated for his injuries. A CT scan was performed and the victim was taken to an operating theatre for assessment, exploration and repair of the forearm wounds. He was discharged the following day. Medical records indicate the following:

21. The victim sustained four stab wounds in total, two in his back and two in his right forearm. All stab wounds were approximately 1.5 centimetres in length. The victim also sustained several other superficial lacerations as a result of other attempts by the young person to stab him. One of the wounds on the victim’s back was a 1.7 centimetre soft tissue laceration to the left of his vertebral column at the upper thoracic level. It was about 3 centimetres deep and was sutured closed. The other stab wound on his back was near his right shoulder. The wound was about 2 centimetres deep and stopped at the scapula. The victim sustained two wounds to his right forearm. One of the wounds penetrated the arm and exited the other side. This wound required surgery. Doctors noted some mild muscle damage. The wound was cleaned and Steristrips were used to close the entry and exit wound.

22. The victim attended the Wound Clinic seven days later where the sutures were removed. The opinion of the paediatric surgeon, who treated and assessed the victim on 23 November 2020, was that, “The wounds on the back were of a minor nature and the outcome is expected to be good”.

23. The Crown included in its tender bundle a document dated 13 November 2020 by a school counsellor which recorded, in effect, the basis upon which the young person was permitted to return to school. That document records that the young person had agreed to allow the school to search his bags and demonstrate that he was not carrying any prohibited items such as a knife upon entry to school. It also records that the young person indicated that he would choose to disengage in verbal and physical conflict even when agitated by others. The content of that document serves to highlight the level of planning that the young person took in order to have a knife on the school premises in order to commit the offence.

24. The Victim Impact Statement details the significant impact the offence has had upon the young victim. It will clearly take some time for him to be able to put behind him the physical and emotional scars left by the attack upon him when all he was doing was attending school. I note in particular that he has left the school where he was settled as a consequence of the attack. The Crown did not submit that the aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act that substantial harm was made out here, but also submitted that the injuries could not be said to be so minor as to be not substantial. In my opinion the injuries remain serious although towards the lower end of the range of seriousness.

Objective seriousness

25. I turn then to my assessment of the objective seriousness of the offence.

26. All offences of this type are serious because of the intention required in order to commit the offence. The intention is an intention to inflict grievous bodily harm upon a person. That intention can satisfy the elements of the offence of murder should the victim die, hence the inherent serious nature of the offence.

27. In this case there are a number of features of the offence that bear upon its level of objective seriousness. There was considerable planning involved in the young person secreting a knife in his shoe, knowing that his bag would be searched for weapons upon his arrival at school. Telling a fellow student on the bus to school that he wanted to stab the victim along, with waiting at the turnstile entrance of the school for the arrival of the victim, also shows that this was a planned attack. The attack upon the victim was clearly unprovoked and it appears motivated by some type of revenge for a perceived slight to the young person or his family. The young person pursued the victim and stabbed him a number of times; twice in the back and twice in the right forearm. He continued to pursue the victim after the intervention of a teacher, and but for the brave actions of a Year 11 student to prevent the pursuit and attempt to disarm the young person, the facts suggest he would have continued to attack the victim with the knife with possible catastrophic consequences, both for the young person and for the victim. The stabbing occurred in the presence of other children in the school grounds.

28. Fortunately, the stab wounds to the victim were not life-threatening although there can be no doubt it would have been a terrifying experience for the young victim as is reflected in his Victim Impact Statement. In terms of the particulars of the victim’s injuries, he sustained four wounds in total all of which were said to be approximately 1.5 centimetres in length. He also sustained several superficial lacerations as a result of other attempts by the young person to stab him. One of the wounds to the arm was particularly serious and required surgery and there was some mild muscle damage. The facts refer to the opinion of the paediatric surgeon, who treated and assessed the victim, that the wounds on the back were of a minor nature and the outcome fortunately was expected to be good.

29. Clearly the assessment of the objective seriousness of an offence such as this is not determined solely by the level of injury sustained although that is clearly a relevant factor. The Crown submitted the offence here objectively was well above midrange and counsel for the young person submitted the objective seriousness was below midrange tending towards a lower range.

30. In my assessment, the objective seriousness of this offence, given the level of planning and the pursuit of the victim falls just within the lower end of the midrange of objective seriousness for such offences of its type.

31. In terms of objective aggravating factors the Crown submitted that the use of the knife meant that the aggravating factor in s 21A(1)(c) of the Crimes (Sentencing Procedure) Act was engaged, being the use of a weapon. While the factor is made out here, the nature of the offence being a wounding often involves the use of a weapon such as a knife.

32. The Crown submitted that the aggravating factor that the offence was committed in the presence of a child under 18 was present here. (See s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act). This factor is established given the context in which the offence occurred being school premises and the presence of other school children at the time of the offence who clearly witnessed it.

33. I have taken the aggravating factors established here into account in my assessment of the degree of objective seriousness in order to avoid double-counting.

The young person’s subjective case

34. Turning then to the young person’s subjective case. The young person is a 15 year old male born to Afghani parents. He was born in Australia although the material before me says he identifies as an Afghani. He was 14 years of age as at the time of the offence. The young person has no recorded criminal history. The offence is aggravated by the fact that it was committed while the young person was on conditional bail.

Documentary material

35. In terms of documentary material I have before me the following: A New South Wales Mental Health Assessment dated 27 November 2020 and supplementary material provided by Youth Justice Health Records. The young person’s Justice Health and Forensic Mental Health Network Mental Health Report dated 12 April 2021. Two Juvenile Justice Reports containing information relating to bail dated respectively 24 February and 19 May 2021. A letter from Marc Chaussivert, psychologist, at START, which is a New South Wales Service for the treatment and rehabilitation of torture and trauma survivors dated 6 August 2021. A report of Dr Katie Seidler, a clinical and forensic psychologist, dated 1 September 2021. A Juvenile Justice Background Report provided by Youth Justice dated 7 September 2021, and a letter from the young person’s father dated 3 September 2021. The young person also gave evidence before me on sentence.

36. Overall, keeping in mind the age of the young person and his relative immaturity, I consider that the young person was an acceptable witness. He appeared thoughtful in relation to a number of his responses to questions. While it is sometimes tempting to be cynical about evidence one hears from persons awaiting sentence, especially about their remorse for their offending, it is important when hearing evidence from a 15 year old with no prior criminal record to ensure that that cynicism plays no part in my assessment of the young person’s evidence.

Family background

37. In terms of the young person’s family background, the young person is the eldest of four children. His mother hailed from Afghanistan and came to this country fleeing the Taliban. His father and mother were married in 2005, however, their relationship ended in 2017 due to ongoing conflict. When the young person was around ten years of age his parents separated and following this breakdown the young person’s father travelled to and from Afghanistan approximately every six months for three years. The young person had little to no contact with his father during those years which the psychologist, Dr Seidler, noted it would have been very difficult for the young person to make sense of and cope with emotionally and “contributed to his increased experience of anger”.

38. There is some evidence which I accept that the young person and his mother were the victims of domestic violence from the young person’s father when the family unit remained together. The young person’s family has been known to Community Services since 2013 due to domestic violence. There were seven risk of significant harm reports during 2013 and 2020.

39. The evidence suggests that the young person’s mother suffers significant mental health issues which have impacted upon her ability to care for her children. Consequently, the young person commented that while living with his mother, “he was able to do as he pleased without limit or sanction”.

40. The young person, in some of the documentary material, has been recorded as being afraid of his father and with age increasingly angry at his father’s behaviour. The young person in more recent times, however, has said that his relationship with his father has improved and, in fact, the young person reportedly has said that upon release he would like to reside at his father’s address in Marayong in order to “start afresh and stay away from the negative environment in Merrylands”. The young person has been able to remain in contact with both his parents while in custody. The Juvenile Justice Background Report records that both parents appear to promote a prosocial lifestyle to the young person.

37. The young person’s father remarried in 2020 which reportedly left the young person feeling “shocked” although it is said that he gets on well with his father’s new wife. The current proposal is that when he is released from detention the young person will reside with his father and his current wife along with the young person’s sisters.

38. In relation to his social influences, Dr Seidler opined that the young person has been “increasingly involved in a delinquent subculture in recent years which has emulated antisocial attitudes and behaviours”. The Background Report from Juvenile Justice also records that in the past the young person has had negative peers, that is friends, associations which are of concern and a criminogenic risk factor.

Education and employment history

43. In terms of the young person’s education; he commenced Year 7 at Merrylands High School but left two months later due to his enrolment in Arthur Phillip High School. Whilst at Merrylands he had received one suspension for negative behaviours. According to the Principal of Arthur Phillip High School the young person commenced there in August 2019 and presented with no significant behavioural issues although his school attendance was poor, just under 50%.

44. In early 2020 he received a suspension for allegedly pretending to assault another student which was filmed at the school. He later received a long term suspension for making threats towards another student. Following this suspension the young person was able to return to school, but subsequently committed this current offence on the first day of his return. The young person is consequently unable to return to Arthur Phillip High School. He is currently studying Year 9 at the school in Cobham Juvenile Justice Centre.

45. There are comments in the documentary material before me to the effect that the young person has shown little interest in his education to date, which is no doubt reflected in his poor attendance at school when he has been in the community. It is not certain what school he will attend upon his release although Juvenile Justice is endeavouring with the Department of Education to find a school which will accept the young person. In May this year he had been accepted into the Eagle Raps School, but at the hearing of the submissions last Friday it was not clear to me that the young person would still be able to enrol in that school.

46. In answer to some questions from me the young person appeared to have some interest in at least one of the subjects he is currently studying and expressed an interest in progressing to Year 12. If he is serious about that interest he will need to change his attitude to school attendance, in particular, when in the community. The young person’s education is, of course, of vital importance if he is to develop into a law-abiding and contributing member of society.

Substance use

47. There is no suggestion in any of the material that the young person is a regular user of illicit substances or alcohol.

Psychological/psychiatric history

48. Turning then to the young person’s psychological history. According to the psychological report of Dr Seidler the young person stated that he has never been concerned about his mental health nor has he experience notable symptoms of psychopathology such as symptoms of depression, anxiety or Post Traumatic Stress Disorder. The young person told the author of the Background Report, however, that he had difficulties maintaining positive behaviours due to his inability to regulate his emotions. Dr Seidler considered that the young person was vulnerable and had been exposed to violence within the family home and his attachment experience has been disturbed. The doctor considered that the young person experiences, as a consequence, intense feelings of anger that he struggles to regulate. Dr Seidler concluded in her report that the young person, “Is a disgruntled, angry and resentful youth who suppresses emotional difficulties and has few skills of communicating with others about his needs as well as little insight into his experiences”.

49. The overall material before me indicates that the young person has a propensity to become irritated and has difficulty controlling his anger which leads him on occasions to act violently. He is currently on a trial of medication for his irritability which the young person considers is having a positive impact on him. He gave evidence that he has found the medication to be of assistance to him and that he is willing to continue to take it. Clearly, when next in the community he will need support in learning to manage appropriately his irritability, his anger and his responses to it. In both the Justice Health Mental Health report prepared in April this year and Dr Seidler’s report, concerns arose that the young person may have had or having prodromal psychotic experiences and this will need careful monitoring when he is next in the community.

Response to supervision if relevant

50. According to the Background Report the young person has struggled to cope with the custodial environment having been issued a total of 57 misbehaviour reports for disobedience, harassment, bad language, fighting and damage property. The Background Report from Juvenile Justice in that regard somewhat surprisingly records that he is said to relate well with staff at the current detention centre where he is housed, but that he has had difficulty building positive relationships with peers while in custody. I note in that regard that since being moved to Cobham Detention Centre on 25 July 2021 he has been involved in four instances of fighting. The young person has obviously struggled in the detention centre environment although the fact that he is considered to relate well to staff in his current centre suggests that he is able to accept aspects of a more regulated life.

Attitude to the offence

51. Turning then to the young person’s attitude to the offence. The mental health assessment which is dated 27 November 2020, conducted four days after the offence, noted that he showed no remorse for his offending and smirked and smiled inappropriately about it when talking about the offending. It was recorded he had very poor insight and judgement. Those observations are consistent with the young person’s inappropriate and immature apparent bragging about the offence and the fact that he had not been caught on social media, as detailed in the agreed facts.

52. There is some evidence, including some evidence the young person gave last Friday, that during the time he spent in detention his attitude to the offence has changed. The young person told Dr Seidler by way of the context of the offending that he had a longstanding conflict with the victim although this was not substantiated by any reasons other than “not getting on”.

53. The young person stated that the victim had been “talking shit” on social media and when he confronted the victim about this the victim allegedly suggested that he would fight the young person the following day at school. The young person came to school armed with a knife for the purposes of “revenge”.

54. According to the psychologist, Dr Seidler, the young person expressed regret for his offending commenting that he “could have ended it by words”. The young person further expressed recognition of the harm suffered by the victim and that others too had been affected by his behaviour such as his family and that of the victim. This perhaps indicates that the young person has had time to reflect upon his actions and their consequences whilst in detention.

55. In the Juvenile Justice Background Report it is recorded that the young person accepted responsibility for the offence, understood its seriousness and that he felt “bad” in relation to it and would like to say sorry to the victim. In his evidence before me the young person expressed similar sentiments to that expressed to Dr Seidler. He gave evidence that back when the offence was committed he thought of himself as having a “tough guy” image and that the social medial posts reflected that. His evidence before me was that having been in custody for more than nine months his thinking about the offences changed. He maintained that stance under some pointed cross-examination.

56. As I said earlier, I found the young person to essentially be an acceptable witness. I am prepared to accept his evidence that his time in custody has allowed him to reflect upon the nature of the offence and his attitude towards it and there has been some significant change in that regard. There is some genuine belated contrition and remorse for the offence in my opinion.

The future and risk of re-offending

57. The psychologist, Dr Seidler, assessed the young person as having a moderate to high risk of future violent offending. His primary risks relate to his exposure to violence within the family environment, ongoing anger management concerns and poor emotional coping skills. It is also clear from all the material before me that he will need to give up associating with peers, that is friends, who get themselves involved in the criminal Justice system, although there is no suggestion the young person has been involved in criminal activity with others.

Imposition of sentence

58. In this case the discount to be applied for the utilitarian value for the plea of guilty is not governed by Division 1A of the Crimes (Sentencing Procedure) Act because of the young person’s age. The plea was entered on 6 July 2021 when the trial was fixed to commence on 5 November 2021, in other words, well before the trial date. Currently, this Court sitting at Parramatta is unable to conduct jury trials due to the re-emergence of the Covid-19 pandemic. This has been the case since 28 June 2021 although jury trials that were already commenced by that date were permitted to continue to finality. Throughout the State, due to the pandemic, hundreds of trials have not been able to be conducted and the backlog and the hearing of criminal trials will no doubt be very substantial once the Court is able to recommence hearing trials by jury. Currently, it is not clear when that will occur at Parramatta.

59. In these circumstances I do consider that there is real additional utilitarian value in the young person’s plea of guilty given the circumstances in which it was entered and I propose to allow the young person a discount of 20% of his sentence. For reasons I gave earlier, I consider that there is some late, but genuine, remorse and contrition by the young person in relation to his offending.

60. The young person is very young. He has a supportive family. Given the Risk Assessment made by Dr Seidler he is going to need very considerable support in the community if he is to be fully rehabilitated and have no further contact with the criminal justice system.

61. In the circumstances, I am satisfied that he does have reasonable prospects of rehabilitation.

62. There is no issue that the offence for which the young person is to be sentenced is a serious children’s indictable offence and, therefore, the young person is to be sentenced according to law. (See s 17 of the Children (Criminal Proceedings) Act).

63. It is still appropriate to have regard to the principles contained in s 6 of that legislation when sentencing a child at law. Relevantly those principles are: Children who commit offences bear responsibility for their actions, but because of their state of dependency and immaturity require guidance and assistance.

64. It is desirable wherever possible to allow the education or employment of the child to proceed without any interruption.

65. It is desirable wherever possible to allow a child to reside in his or her own home.

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

67. It is desirable that children who commit offences accept responsibility for their actions and wherever possible make reparations for them.

68. Subject to the other principles that I have mentioned, consideration should be given to the effect of any crime on the victim.

69. I have had regard to the principles contained in s 6 in determining what is the appropriate sentence to impose on the young person. The approach to be taken in sentencing a child at law is well known. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of the young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. The weight to be given to the fact of the offender’s youth does not vary depending upon 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 less than if the same offence was committed by an adult. The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity.

70. In determining whether a young offender has engaged in adult behaviour, the Court will look to various matters including the use of weapons, planning or premeditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present, the need for rehabilitation of the offender may be diminished by the need to protect society. The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, however, the younger the offender the greater the weight to be afforded to the element of youth.    Those principles are essentially derived from the summary of relevant principles in KT v The Queen [2008] NSWCCA 51.

71. Here the young person was 14 years of age as at the date of the offence, a long way short of obtaining his majority. As discussed in my findings about the objective seriousness of the offence, there was a degree of planning, but that does not mean in my opinion the young person conducted himself as an adult would. Here the attack on the victim was brazen. It appears to have been motivated by revenge for some perceived slight in the past and produced immature bragging by the young person about what he had done and the fact for a short period of time he had evaded being caught. All of those factors suggest an offence committed by an immature boy well short of his majority, which is what has occurred here.

72. The evidence establishes that the young person has had a difficult early life being exposed to domestic violence at a young age, one parent unfortunately absent for considerable periods of time from the family home, the other with mental health issues which have impeded her ability to fulfil the parenting role. I accept that the principles concerning the relevance of social disadvantage discussed in Bugmy v The Queen [2013] HCA 37 are engaged here. Where an offender is young, like this young person, it is likely that his engagement in an act of violence is linked to his exposure during his youth to violence within the home. Comments to some of the report writers here say essentially that. In my opinion, consistent with the Bugmy principles, there is some reduction in the young person’s moral culpability for the offence.

73. Counsel for the young person submitted that the offending did not call for a sentence of imprisonment and can be dealt with by way of a non-custodial sentence. It was submitted that a Community Corrections Order was within the sentencing range. It was submitted that such an option would provide for a longer period of supervision in the community. The Crown submitted that the only appropriate sentence was one of imprisonment. In my opinion, the offence is of such seriousness that a sentence of imprisonment is the only appropriate sentence even having regard to the young person’s compelling subjective case.

74. It is well known that the Covid-19 pandemic has now infiltrated the prison population in this State. I commenced a Judge Alone Trial two weeks ago which had to be adjourned because the accused had tested positive for the disease during the course of the trial. The young person gave unchallenged evidence that a detainee at his current detention centre had tested positive to Covid-19 in recent times resulting in the young person and other detainees being kept in their cells for extended periods of time with no or little contact with others. It is, of course, unknown for how long the pandemic will have an impact upon custodial environments. This is also the young person’s first time in custody. Given his age, together with those factors I will make a finding of substantial special circumstances and fixing a non-parole period.

75. The sentence will be backdated to 23 November 2020, being the date the young person entered custody.

76. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victim and the community and rehabilitation of the offender. This was a serious offence and that is reflected by the maximum penalty and the circumstances in which it was committed.

77. Consistent with the principles I have outlined earlier, less weight here should be given to the concepts of general and specific deterrence and the denunciation of the young person’s conduct. A meaningful penalty must be imposed, however, to bring home to the young person just how serious his conduct was and that it will not be tolerated by a Court. The maximum penalty has been taken into account as a legislative guidepost.

78. The young person is convicted of the offence to which he has pleaded guilty.

79. He is sentenced to a term of imprisonment consisting of non-parole period of ten months and a balance of term of 12 months. The sentence is a total sentence of 22 months. It commences on 23 November 2020 and expires on 22 September 2022. The non-parole period expires on 22 September 2021. I direct he serve the whole of the sentence in a juvenile facility.

80. The earliest date the young person is eligible to be released to parole is the date of the expiry of the non-parole period which is 22 September 2021. S can expect to be released that day in about nine days’ time.

81. He will be on parole for a period of 12 months.

82. He will need to be very careful that he fully complies with his parole conditions if he wants to stay out of detention.

Orders

1. The young person is convicted of the offence to which he pleaded guilty

2. Impose a sentence of 22 months imprisonment with a non-parole period of 10 months. The sentence commences on 23 November 2020 and expires on 22 September 2022. The non-parole period expires on 22 September 2021.

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Decision last updated: 16 November 2021