Regina v A Young Offender

[2007] NSWDC 336

Pending Appeal:

District Court

CITATION:	Regina v A Young Offender [2007] NSWDC 336 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	25 May 2007
JUDGMENT DATE:	1 June 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Overall head sentence of 8 years with an overall non-parole period of 4 years, 3 months and 7 days.
CATCHWORDS:	Criminal law - Sentence - Juvenile offender - One serious children's indictable offence - Assault with intent to rob armed with an offensve weapon with wounding - Armed robbery (x2) - Offender on conditional liberty - Victim impact statements - Victim's fingers severed - Form 1 offences - Criminal antecedents of the offender - Offender drank alcohol to excess daily - Significant abandonment and grief issues - Remorse - Rehabilitation - Education in custody - Excellent behaviour and progress in custody - Middle of the range of objective seriousness - Standard non-parole period - Sentences of co-offenders - Offender to remain in juvenile detention - Special circumstances
LEGISLATION CITED:	ss 6, 19 Children (Criminal Proceedings) Act 1987 ss 21A, 23(2), 32 Crimes (Sentencing Procedure) Act 1999 ss 97(1), 98 Crimes Act 1900
CASES CITED:	Regina v Henry (1999) 46 NSWLR 346
PARTIES:	Regina A Young Offender
FILE NUMBER(S):	06/21/3145
COUNSEL:	Mr Gunning for the Young Offender
SOLICITORS:	Mr Kotsis for the NSW DPP

JUDGMENT

1. The young offender has pleaded guilty to three very serious offences. One is assault with intent to rob armed with an offensive weapon with wounding. That is an offence contrary to s 98 of the Crimes Act1900 and carries a maximum of twenty-five years imprisonment. The other two are both armed robberies with an offensive weapon contrary to s 97(1) of the Crimes Act and each of them carries a maximum of twenty years imprisonment. In respect of the s 98 armed robbery with wounding, that crime carries a standard non-parole period of seven years.

2. I refer to the young person or the young offender because he is entitled to the protection of the law which requires that his identity not be disclosed. The young person was born on 31 August 1988 so that he has turned eighteen now. He was committed for sentence on 24 July 2006 from Campbelltown Children’s Court having been arrested on 22 November 2005 and he has been in custody continuously from that date in respect of the matters for which I am sentencing him.

3. At the time of the offences for which I am sentencing him, the young person was subject to two good behaviour bonds imposed by the Campbelltown Children’s Court on 16 May 2005. There is also a document entitled Form 1, a list of additional charges, issued pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 containing four offences which I propose to take into account when I sentence the young person in respect of the assault with intent to rob armed with an offensive weapon with wounding.

4. I first turn to a brief consideration of the facts of each offence. For completeness I commence with the offences which are the subject of the Form 1. Each of those four offences was committed on 20 September 2005. Three of the offences are robbery in company and the fourth is attempted robbery in company. Briefly, on that day the young person was at school with some friends. One of the friends thought that his, the friend’s, girlfriend had a mobile phone which had been stolen. She was attending another school. The young person joined his friend and others to go and look for the person who, they had thought, had stolen the girlfriend’s phone. They got to an area called Glen Alpine and were driving past the Glen Alpine golf course when they saw some young men on the golf links looking for golf balls. One of the co-offenders assaulted by slapping and punching one of the young men whilst the other co-offenders stood around. A bumbag was stolen from one of the young men.

5. The young person’s role in the robbery was to keep a lookout and provide physical presence. Another young victim had his mobile phone stolen and a third one had his mobile phone stolen. The young person accepts that his participation in the offences was being present at the time of their commission with the knowledge that they were being committed and he intentionally assisted the co-offenders by acting as a lookout and by his physical presence. He received no property from the offences and made no demands of any of the victims and did not physically assault any of the victims. They were the circumstances of the Form 1 offences. I note that there is a victim impact statement provided by a young person who was one of the victims. He said that since the robbery he has become more wary during the day, always watching behind himself. He never used to worry about things such as this because he did not think that they could happen in Australia. He used to feel safe.

6. I turn now to the facts of one of the armed robberies, which occurred at an establishment called Bernie’s Take Away at Leumeah. It occurred on 9 November 2005. The young person and two co-offenders were driving around looking for a suitable business to rob. They identified Bernie’s Take Away. The young person and the co-offender got out of the car and went to Bernie’s, which contained a number of customers and some employees. Amongst the customers were girls aged eleven, twelve, fourteen, seventeen and eighteen. As the young person and the co-offender were entering the store the co-offender was yelling out to the customers at the front of the store, “Get the fuck inside”. The young person and the co-offender entered the store brandishing machete style knives described by witnesses as being around thirty to forty centimetres in length and one and a half to three inches wide. They demanded the money.

7. The young person attempted to jump over the counter but the counter broke. The customers were told, “Don’t look at us, don’t look at us, look down”, as well as, “Shut your fuckin’ eyes, get down, just stay there”. The young person and the co-offender obtained almost $2,000 from the till. None of the victims suffered any injuries as a result of the incident. The young person had his face covered and was carrying a machete. Needless to say, the circumstances of that armed robbery must have been terrifying for everyone involved. It would be almost a nightmarish experience.

8. The second armed robbery was similar. It occurred the next day, on 10 November 2005. This time the target was a Domino’s Pizza shop. They had jumpers to disguise themselves and socks on their hands. The young person was accompanied by a co-offender. Once again the young person was carrying a machete, this time on the inside of his pants beside his leg. They crossed the road and went towards the Domino’s Pizza. The co-offender kept guard. The young person entered the store, jumped the counter and produced the thirty centimetre long machete. He was wearing a blue hooded jumper. He held the knife at two victims, one of them was a sixteen year old. He demanded money. The employee gave him money from the register. Then he demanded money from the safe. He jumped back over the front counter and left through the front door. This time they secured about $500 in cash. Once again it must have been a nightmarish experience for those who were involved.

9. The most serious offence, the armed robbery with wounding, occurred at a place called Woodbine on 21 November 2005. Once again the young person was with a co-offender. They discussed doing a robbery. They drove around Campbelltown looking for a suitable store. They found one which was called the Woodbine Neighbourhood Store. It was between 8.00 and 8.15 at night. Once again the young person walked towards the store carrying a machete on the inside, this time, of his jumper. A Mr Pham and his mother were the only employees working at the store and there were two young girls aged seventeen and twenty who were customers looking for lollies to buy.

10. The young person entered the store with his machete, jumped onto the counter and said repeatedly, “Where’s the money?” He jumped off the counter, approached Mr Pham holding the machete while the girls left the store fearing, understandably, for their safety. They hid next door. Mr Pham grabbed hold of the blade of the machete that was being carried by the young person. They struggled and the young person kept holding the machete although he did not pull on it during the struggle. Mr Pham received a deep laceration to his right hand which severed his fingers. On this occasion no property was taken.

11. It is appropriate to note here that I have two medical reports from Associate Professor Graham Gumley, hand, wrist and microsurgery, who treated Mr Pham. One of the reports records that Mr Pham was admitted to Liverpool Hospital on 21 November 2005 with severe injuries to his right hand. He had machete lacerations producing deep lacerations on the flexor aspect of his right index, middle and ring fingers with division of nerves, arteries and the multiple tendons to these digits. He required extensive surgery. The doctor said that it was indeed a severe injury to the right hand and despite the surgery it will leave him with a degree of permanent impairment. In a more recent report, 16 February this year, Dr Gumley noted that Mr Pham exhibited substantial impairment of the nerve function of his right index, middle and ring fingers. He was going to assess him again but if there was no improvement on the next time then the doctor concluded that Mr Pham would indeed have substantial hand impairment based on those injuries, since loss of sensation at this level would render fine motor tasks, and many of the hand functions, either unsafe or not possible. This is a very serious consequence of the offence committed by the young person in this particular case.

12. The young person had a criminal record. On 16 May 2005 he had been dealt with at the Campbelltown Children’s Court in respect of an assault occasioning actual bodily harm and affray. He had in respect of each offence received bonds of twelve months to date from 16 May 2005. Hence the bonds expired on 16 May 2006 and he was subject to the bonds at the time that he committed the offences with which I am dealing.

13. I turn now to a brief review of the evidence which was called before me. The young person went into the witness box and told me that he is presently in the Baxter Detention Centre. He likes sport and he is presently studying his HSC, doing English, visual art, sports, lifestyle and recreation, biology and music. His mother had died in 1997 in a car crash and he did not know very much about her but knew that he was loved by her. After his mother died he stayed with his grandmother because his father was not around. He stayed with his grandmother up until he went into custody. He said that it was a different lifestyle with his grandmother, it was strict in a good way. He meant that the lifestyle involved church, chores, cleaning, everything. He repeated it was strict in a good way.

14. He told me about a particularly traumatic event when a friend of his called Jeremiah died on 23 October 2005 as a result of a stabbing. The young person described Jeremiah as more than a friend, he was like a big brother to him. He heard the news about the stabbing and went to the scene and was there at the scene when his friend Jeremiah apparently died from his stab wounds. The next day he met up with his friends at school and they all went down to the spot where Jeremiah had died and had a drink. This re-occurred over the following days, he met with his friends and they kept drinking. They were drinking, said the young person, because they were stressed and depressed about the death of Jeremiah. He then continued to drink every day, more than twenty cans of mixed bourbon and cola. He was still drinking up to the time of the offence and claimed that before the offence at Woodbine he had had more than thirty cans.

15. Asked how he felt he said he felt very sorry and very hurt, very sorry for each victim and he would like to apologise to them personally if they were here. He understood the extent of the injuries caused to Mr Pham and indeed I recommended that he read the medical reports and this he did. Once again he repeated his regret for the injuries and damage which were caused by his behaviour. Asked what the reason was for his robberies, he said it was for money for alcohol.

16. The young person preferred being at Baxter. He had previously been at Cobham. He preferred Baxter because there were lots of opportunities, TAFE courses, sporting events and school. His goals are to achieve the HSC and to get a good job when he gets out and to play sport. He says that he has grown up a lot whilst he has been in custody. He feels he is more mature about his attitude and is able to make more mature decisions and right choices. He said on his release he wants to go back and return to living with his grandmother and to look after her. He has been engaged in counselling whilst he has been in custody. He acknowledged that he had been involved in the planning of the various offences and that he had had the idea of doing the robbery at the Woodbine Neighbourhood Store. He agreed that he had instigated that whole offence including finding a suitable target and arranging for his co-offender to drive to the store. He acknowledged that he was on a good behaviour bond at the time of the offences.

17. There is a particular person involved in the young person’s rehabilitation whilst in custody called Mr Strachan. He has been seeing him from May through to October for weekly sessions. In other words, he had been seeing Mr Strachan as a result of the conditional bond which had been imposed upon him at the Campbelltown Children’s Court in May. Cross-examined by Mr Kotsis the young person acknowledged that instead of committing the offences when he became distressed about the death of his friend Jeremiah he could have gone to Mr Strachan but that he was not thinking straight. He could have gone to his teachers as well. He said that he has now learned from his mistakes. He acknowledged a fairly telling question asked by Mr Kotsis about the fact that he had previously given a court at Campbelltown an undertaking that he would not commit offences again. He acknowledged the hurt which he had caused to his family.

18. Mr Strachan was called by Mr Gunning who appeared for the young person. He is a juvenile justice officer attached to the Campbelltown District Office of the Department of Juvenile Justice. He has been involved with the young person since the bond was imposed in May 2005. He said that up until these offences he could not fault the young person in any way during his period of supervision. In fact he thought very highly of him. He was very commendable about his efforts at keeping appointments. He has spoken with a lot of members of the department and counsellors who have worked with the young person. He noted that everywhere that the young person has gone in the system whilst he has been in custody his behaviour has been what he described as uniformly excellent. He has not been faulted on one occasion. He said that in itself is pretty amazing. Considering the type of young person that would normally come into the juvenile justice system as a result of these offences they are usually apt to be violent or resistant. That has not been demonstrated one bit by this young person. In fact Mr Strachan said it has been compliance all the way. The young person has acted as a leader, a role model for younger prisoners. He did that at Cobham and is doing it again at Baxter. By past performance Mr Strachan thought that he had grown up a lot. He has been thinking about what he has done and certainly talked at great length to Mr Strachan realising how much he has harmed his victims and he is very, very ashamed.

19. The counselling he has engaged in gave Mr Strachan a certain amount of hope that the young person will be able to work through the issues that he needs to work through. It is very important that he continues to focus on counselling in the juvenile justice setup. He says it is extremely important for the very reason that he is now eighteen years of age. If he gets released to the community he knows that if he goes down this path again he is looking at lengthy periods of incarceration. So, as Mr Strachan said, we make it our utmost priority to work on these issues in custody to make sure that he does not relapse into re-offending. The counselling will start intensively as soon as the sentence is imposed. Such counselling is vitally important. If his issues are not addressed, further offending could eventuate. As Mr Strachan said, they will continue to assist him whilst he is in their custody.

20. Asked of his assessment of his rehabilitation prospects if he remains within as a juvenile offender, Mr Strachan said he thought the young person’s prospects will be very good. He said that because he is performing excellently already, when he is going to be released they would like to see a parole order. He did not offer a guarantee that the young person would be completely rehabilitated but was very hopeful with good reason that this would occur. I should add here that I was very impressed by the evidence of Mr Strachan, by his commitment to his work and in particular by his commitment to this young person’s welfare.

21. Mr Strachan returned to give evidence to me on 25 May 2007 and noted that the young person had had a lot more time to reflect in custody regarding the choices in his life and that he had a firmer realisation of the consequences of his wrong behaviour. He said that the programs in custody are much more intensive than community based programs and that he is unlikely to re-offend if he takes on board what he has been taught in custody. Evidently the young person has told Mr Strachan that he thinks his best chances of future employment are in the building trade and there are facilities in Baxter for trade training which he can undertake once he has been sentenced.

22. I also heard evidence from the young person’s sister who indicated that the young person wishes to go home to his grandmother’s place.

23. Turning briefly to the exhibits, I note exhibits B and C, which are references, are provided before the young person’s offending behaviour on this occasion. They were provided in support of his sentence in Campbelltown in May of this year and record that he is very sorry for what he has done and demonstrates genuine remorse. As Mr Kotsis has invited me to do, I take those into account in assessing the genuineness of the young person’s remorse. I do, however, find that he is genuine this time in his remorse. His behaviour has been much more extreme and the consequences have been much more severe. This time he has been incarcerated for some considerable period of time and confronted by a good deal of treatment in the form of counselling. I expect that this has brought about a more realistic realisation of what he has done and the consequences.

24. I note that I have read the contents of exhibit D and I have taken the contents of exhibit D into account and I direct that exhibit D not be opened - I have resealed it - except by order of a judge of this court or a superior court.

25. I have read the juvenile justice report prepared by Mr Strachan and a co-officer. They note the history of his friend Jeremiah being stabbed to death and record that the young person became deeply traumatised, distressed and depressed by this event so that he lost all hope for the future, hence he started drinking and got drunk every day. He expressed to the officers his remorse for the pain and trauma caused to the victims and his desire to apologise to the victims face to face, as well as acknowledging that some of the victims would give them cause to dislike or be suspicious of people of Pacific Islander origin. He also acknowledged that he had hurt his family.

26. It is recorded that the young person’s mother died aged thirty-four in a car accident in 1996 and he has a number of siblings, brothers and sisters. He attended Sarah Redfern High School as a year eleven student in 2005. It also noted that the young person’s father has established contact with the young person at Baxter in the last few weeks, or at least in the last few weeks before 8 March 2007, and has visited him. Discussions with teaching staff at Cobham and Baxter confirm that the young person is one of the best behaved students at the school. He works well in class, he is rarely distracted and is currently studying for his HSC. His academic progress has been attributed by his teachers to the provision of appropriate structures and supports in custody as well as his inability to access alcohol and other drugs.

27. He had been actively involved in sport whilst he was at school and attended the Minto Youth Centre where he provided some guidance and acted in the role of a peacemaker when there was friction. When he was previously under supervision he regularly attended his appointments. Once again those officers involved in his detention describe his behaviour as being exceptional and a role model for other detainees. Looking at areas requiring attention, it noted that the young person has suffered significant personal grief and abandonment issues as well as dislocations. Supervision by this, or an age appropriate supervising service, should seek to address these issues.

28. There was a report from the South West Sydney Psychological Services under the hand of Terry Smith, clinical psychologist. He said that the emotional collapse suffered by the young person has precipitated his offending behaviour. The young person impressed the psychologist as a man whose personality is positive but whose identity is poorly formed. He discussed counselling and the young person felt it would be of benefit for issues such as substance abuse, vocational guidance and grief. The psychologist was of the opinion that the young person would be immeasurably assisted if he could gain an apprenticeship such as plumbing, concreting or carpentry and be mentored through an organisation such as the PCYC or someone whom he respects. The prognosis for the young person was considered by Mr Smith to be positive. His prospects of rehabilitation are considered excellent given his positive value system, his aspirations and the incessant psychological momentum to make something of his life. Evidently the current offences have caused a profound awakening for him and he has taken the opportunity to engage in counselling and to progress his education.

29. Mission Australia is prepared to work intensively with the young person post release to assist him in achieving his goals and to help him reintegrate back into mainstream society.

30. I have read exhibit 3, which is a letter from the young person to the judge who would be presiding over his sentencing. I also read the impressive collection of certificates of achievement which the young person has attained during the period of his custody.

31. I turn now to the submissions. Mr Gunning addressed the Glen Alpine Form 1 matters first and pointed out that it should be acknowledged that the young person was not directly involved in the sense that he was not assaulting or demanding belongings from the victims and that his actions were limited to being a lookout. Nor did he receive any property and he had just turned seventeen at the time of the offence. He also made full admissions to the police. I accept those submissions. There are clearly objective aspects of the Glen Alpine offences which render the offending behaviour less serious compared to the offending behaviour of those colleagues who were with him.

32. Turning to the two armed robberies, Bernie’s Take Away and Domino’s Pizza, Mr Gunning first addressed the guideline judgment in Regina v Henry (1999) 46 NSWLR 346. He highlighted the criteria by reference to which that guideline judgment might operate and submitted that the guideline judgment is not indicative of the range of appropriate sentences for various reasons, one being that the young offender was a child at the time of these offences. I note in this regard that the guideline judgment is, as the authorities suggest, just that, a guideline. It is not appropriate to approach it as one would construe a statute as to whether it is applicable to a particular circumstance or not. It is relevant to take into account so far as under age offenders are concerned, or children I should say, but clearly its impact will also be affected by the various other factors which must be taken into account when sentencing a young person. One of those that was drawn to my attention by both Mr Gunning and Mr Kotsis is of course s 6 of the Children (Criminal Proceedings) Act 1987 which I take into account.

33. Mr Gunning submitted that the starting point for any sentences of imprisonment in respect of the armed robbery should be significantly less than the guideline of four to five years full term. Mr Kotsis also reviewed the criteria referred to in Henry and pointed out their applicability to this particular offence and highlighted, for example, that there was a degree of organisation or planning which exceeded that which might be expected to be associated with the kind of offence to which the guideline would normally apply. Nevertheless, I accept because of the impact of s 6 of the Children (Criminal Proceedings) Act that the starting point of sentences would be below those which would normally be the case with the guideline.

34. In looking at the sentencing options in respect of Bernie’s Take Away and Domino’s Pizza, Mr Gunning pointed out that they could be dealt with under Div 4 Pt 3 of the Children (Criminal Proceedings) Act because they were not serious children’s indictable offences and he pointed to the factors which the court might consider relevant. Mr Kotsis also dealt with those issues and highlighted the seriousness of the offences in this particular case, the nature of the offences including the fact that they were carrying large machete knives, or at least the young person was, they were in company and what he described as the brazen, objective criminality. Also he was seventeen years and three months old for two of the offences and was the subject of good behaviour bonds. I accept the submissions of Mr Kotsis in this regard and I propose to deal with the two armed robbery offences according to law.

35. In the case of the Woodbine offence under s 98, that is an offence which I must deal with according to law because it is a serious children’s indictable offence.

36. Mr Gunning addressed the non-parole period and special circumstances in respect of the two armed robberies and said that greater significance should be placed upon the young person’s rehabilitation when fixing the minimum term given that his prospects are assessed as excellent. He said the special circumstances for adjusting the relationship between the non-parole period and the balance of the term are the young person’s age and his prospects of rehabilitation and the importance of a case plan being able to be developed successfully for him. He pointed to s 19 of the Children (Criminal Proceedings) Act on the question whether the court should direct that the young person serve the whole or part of his sentence of imprisonment as a juvenile offender. His submission was that it would be appropriate to do so. He pointed out that the effect of s 19(2) of that Act is if the court sets a non-parole period that ends no later than six months after the young person turns twenty-one, then he will continue to be eligible to serve imprisonment as a juvenile offender.

37. Turning to the Woodbine matter, the most serious offence, Mr Gunning commenced by acknowledging the maximum penalty and the standard non-parole period of seven years. Mr Kotsis submitted that the objective seriousness of the Woodbine offence is above the middle range of objective seriousness. In my opinion the offence is within the middle of the range of objective seriousness. I form this opinion because of the nature of the offence, the weapon involved and the shocking circumstances in which it occurred. I do not regard it as above the middle of the range of objective seriousness only because the wounding occurred as a result of the victim grabbing the machete rather than the machete being used to strike the victim. But nevertheless I do find that it was in the middle of the range of objective seriousness.

38. Nevertheless I do not propose to impose the standard non-parole period in respect of this particular offence and for reasons referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999. The particular provisions in that section to which I have reference and which I have taken into account in determining not to impose the standard non-parole period are s 21A(3)(k) which is the plea of guilty which in this case was recorded at the earliest opportunity, (m) which speaks for itself, (j) the offender’s age and whether he was not fully aware of the consequences of his action (in that regard I do not take into account the degree of intoxication) and (h) that he has good prospects of rehabilitation. For those reasons, in my opinion, it is not appropriate to impose the standard non-parole period in this case.

39. Special circumstances, argues Mr Gunning, apply to this offence as well and I accept that submission. He also argues that any term of imprisonment in respect of this offence should be served as a juvenile offender. In making that submission he refers me to s 19 of the Children (Criminal Proceedings) Act and to its requirement that given that the offence is a serious children’s indictable offence the young person is only eligible to serve any sentence of imprisonment as a juvenile offender if there are special circumstances justifying detention at his age. Mr Gunning submits that there are appropriate services and programs available within the juvenile justice system and that the impact of adult incarceration based on his psychological wellbeing and his rehabilitation would be negative and that he has developed a good relationship with his juvenile justice officer. In my opinion all of those submissions are correct and I propose to direct that he serve his term of imprisonment in a juvenile justice detention centre.

40. I have taken into account the co-offenders and how they were dealt with and the far more significant offending behaviour of this particular young person. Mr Gunning points out that his client will turn twenty-one on 31 August 2009. His submission is that a sentence would meet the community’s expectation of an appropriate punishment and the young person’s interests in being rehabilitated, if the term was served as a juvenile offender and he was not forced to go into an adult facility. Mr Kotsis pointed to the aggravating nature of the offences because they were committed on conditional liberty and I accept that submission. I have not taken into account the matters very appropriately pointed out by Mr Kotsis as being elements of the substantive offences and hence not separate aggravating features. I note the vulnerability of all of the victims being shopkeepers and I give him credit for his plea of guilty.

41. The submission of Mr Kotsis is that parity is not a significant factor in this case because there is no obligation to follow the principle of parity where differences between the two offenders justify the different result. In my opinion that is the case here. The role played by the young person in each of the offences was the most active and the most aggressive. He was the one who jumped onto the counter bearing the machete. I accept that intoxication is not a mitigating factor in this offence and I take into account and accept the submission of both parties that it is open for me to reduce the sentence because of s 23(2) of the Crimes (Sentencing Procedure) Act.

42. I have taken into account the oral submissions made by both legal representatives. Mr Kotsis made no submission on the length of the sentence, in particular so far as the proposition that the non-parole period should expire at or just after the young person turns twenty-one, but drew my attention to the importance of not double counting some of the factors and of the objective seriousness in particular of the Woodbine offence. So I take into account in respect of all these matters the various objective features which I have listed and the subjective circumstances of the young person which I have referred to and which have been the subject of submissions and evidence before me.

43. Before applying any discount I would consider that an overall sentence for the complete criminality involved in these very serious offences would be something in the region of thirteen years. However, I have taken into account the plea of guilty, the real remorse and the contents of exhibit D and I propose to discount the sentence by some thirty-five per cent. In addition I take into account, to a limited extent, certain subjective features and I have determined that the head sentence should be in the region of eight years.

Stand up, Mr [young person]. Now, gentlemen, I know you’re paying attention but just listen to the sums. My associate and I have worked these out but tell me if I’m wrong.

44. Mr [young person], in respect of the armed robbery of Domino’s Pizza, I sentence you to two years imprisonment. That is to date from 22 November 2005 and to expire on 21 November 2007 and I decline to set a non-parole period because that sentence will be taken up by one of the other sentences, be subsumed as they say. In respect of the armed robbery of Bernie’s Take Away, I also sentence you to two years imprisonment to date from 22 May 2006 and to expire on 21 May 2008. Once again for the same reasons I do not set a non-parole period. In respect of the armed robbery with wounding at Woodbine, I set a non-parole period of three years, three months and seven days to date from 22 November 2006 and to expire on 28 February 2010. I set the balance of the term of the sentence as three years, eight months and twenty-four days commencing on 1 March 2010 and expiring on 22 November 2013. In sentencing you in respect of the Woodbine matter I have taken into account the Glen Alpine offences, which were on the Form 1 as we say.

45. In adjusting the period between the non-parole period and the balance of the term I have found special circumstances. They are these: that your rehabilitation is well under way and that if the additional term were the normal term you would be likely to go into an adult facility and in my opinion that would be a significant setback for your rehabilitation and negate much of the progress which you have already demonstrated. The emphasis in sentencing a young person is on rehabilitation and that is why I have adjusted the balance. Just have a seat again, [young person].

HIS HONOUR: Do you want me to run through those again, gentlemen? So we have got two years fixed, so to speak, for Domino’s, 22 November 2005 to 21 November 2007, two years fixed for Bernie’s, 22 May 2006 to 21 May 2008, seven years overall in respect of Woodbine, 22/11/06 to 21/11/13, with a non-parole period of three years, three months and seven days, which should expire on 28 February 2010, which is six months after the young person’s twenty-first birthday. And a balance of three years, eight months and twenty-four days, which should be a total of seven years. How does that sound, Mr Gunning? I don’t mean for an assessment, I mean the sums.

GUNNING: The sums sound right to me, your Honour.

HIS HONOUR: I’ll just wait, Mr Kotsis. When you’re ready.

KOTSIS: I think the only difficulty, your Honour, is the balance of term for the Woodbine offence. I think it should be three years, eight months and twenty-two days. Did your Honour expire that term on 22 November?

HIS HONOUR: I did, yes. What did you think it should be?

KOTSIS: I think it should be twenty-two days. I think your Honour might have said twenty-four unless I’ve written that down wrong.

HIS HONOUR: No, I said twenty-four. I said three years, eight months and twenty-four days.

KOTSIS: I think it’s three years, eight months and twenty-two days.

HIS HONOUR: My associate has some sort of special calculator that she uses for these things. We think that the non-parole period plus that balance would equal seven years exactly.

KOTSIS: Your Honour, that’s from 22 November 06 to 21 November 2013.

HIS HONOUR: I’m sorry, I should have said the balance of term expires on 21 November 2013.

KOTSIS: That would mean that it would be twenty-one days.

HIS HONOUR: Yes, that’s so.

KOTSIS: There’s definitely some difficulty there because I agree that 22 November 06 through to 21 November 13 would be seven years. That was your Honour’s intent I understand.

HIS HONOUR: That’s the intent.

KOTSIS: And I agree with the non-parole period of three years, three months and seven days as from 22 November through to 28 February.

HIS HONOUR: Good, 2010.

KOTSIS: The balance will commence on - is it a leap year? Which would mean that that balance of term should commence on the 29th. It’s not a leap year.

HIS HONOUR: 2010 is not, no.

KOTSIS: No, of course it’s not, that’s right.

HIS HONOUR: So the balance commences on 1 March 2010. So three years would be 1 March 2013 and eight months--

KOTSIS: Is 1 November. From the 1st to the 21st is twenty-one days not twenty-four.

HIS HONOUR: No, eight months would be to 31 October and then--

KOTSIS: Yes, you’re right, sorry, your Honour. That would be twenty-two days.

HIS HONOUR: Then we’d need twenty-two days to get to 21 November, wouldn’t we?

KOTSIS: Yes, I think that’s right.

HIS HONOUR: I think it should be twenty-two days.

GUNNING: Is that right? The eight months expires on--

HIS HONOUR: Expires on 31 October 2013.

GUNNING: Isn’t that another twenty-one days.

KOTSIS: No, because you’ve got to count the thirty-one.

HIS HONOUR: The three years is from 1 March 2010 to, I suppose, 28 February 2013 and the eight months would be from 1 March 2013 to 31 October, I think, 2013 and then in order to get to 21 November we need to add twenty-two days.

KOTSIS: Yes, I think that’s right. I think that’s what I will say.

HIS HONOUR: The balance of the term is three years, eight months and twenty-two days and it expires on 21 November 2013.

GUNNING: Your Honour, do you only add twenty-one days? Once you get to 31 October that’s when the eight months expires.

HIS HONOUR: No, I was adding twenty-two days. So that would end us up on 21 November 2013 just when I want to finish it.

GUNNING: I suppose the question for me is whether the eight months includes 31 October because if it does then you only add twenty-one days to get to 21 November.

HIS HONOUR: Yes, I see your point.

GUNNING: It’s getting late in the day so--

HIS HONOUR: It is. I see your point. Let’s say the eight months expires at midnight on 31 October 2013.

46. So I will fix the balance of the term as three years, eight months and twenty-one days, which expires on 21 November 2013. So the balance is three years, eight months and twenty-one days and expires on 21 November 2013.

KOTSIS: I agree with that, your Honour. The total sentence your Honour imposes is seven years.

HIS HONOUR: Correct.

KOTSIS: That’s from 22 November 05 through to 21 November 13.

HIS HONOUR: Correct.

KOTSIS: And the non-parole period commences on 22 November 05 and expires on 28 February 2010.

HIS HONOUR: Correct.

KOTSIS: I haven’t worked out what that non-parole period term is.

HIS HONOUR: I think it is three years, three months and seven days.

KOTSIS: It couldn’t be, it would have to be four years, three months and seven days for the total non-parole period.

HIS HONOUR: You’re quite right. The total of the non-parole period would be four years, three months and seven days.

KOTSIS: Thank you, your Honour.

HIS HONOUR: But it’s not actually a non-parole period because the first year of the sentence is two fixed terms and the only sentence which has a non-parole period is the last one which commences on 22 November 06. So technically the non-parole period commences then.

KOTSIS: But the sum effect of the sentence your Honour has imposed is an eight year head sentence.

HIS HONOUR: No, seven years. No, you’re right, I’m sorry. You’re right, Mr Kotsis. Eight year head sentence, yes.

KOTSIS: Yes, with a total non-parole period of four years, three months and seven days.

HIS HONOUR: Correct. That is correct. Do you understand that, Mr Gunning?

GUNNING: That’s right.

HIS HONOUR: Eight year sentence from 22 November 05 to 21 November 13 and a total period in custody of four years, three months and seven days.

GUNNING: Just to clarify that even further, in relation to the Woodbine matter the head sentence is eight years starting from--

HIS HONOUR: No, seven years.

GUNNING: Right, starting from--

HIS HONOUR: Because I’ve staggered them. I’ve whatever you call them.

GUNNING: And that’s starting from 22 November 06 to 21 November 13.

HIS HONOUR: Correct.

GUNNING: Thank you, your Honour.

KOTSIS: Your Honour, I think that at one or more points in your Honour’s outline of the facts and/or your Honour’s judgment, I think your Honour referred to the Woodbine offence as a robbery with wounding offence. In other areas of your Honour’s remarks you indicated it was an assault with intent to rob. I’ll just confirm your Honour has taken it into account as an assault with intent to rob with wounding as opposed to a robbery with wounding.

HIS HONOUR: You’re quite right. It was because there wasn’t a robbery, he didn’t get any money.

KOTSIS: That’s right and that’s clearly in the facts, your Honour.

HIS HONOUR: You’re quite right. It is serious and I think it’s a breach of the same section as an armed robbery with wounding but because there was no actual robbery or theft it’s an assault with intent to rob with wounding. Yes, I have taken it into account or I do and my judgment doesn’t vary, my sentence doesn’t vary.

KOTSIS: Thank you, your Honour. There’s only one other thing that I’d ask to clarify. In your Honour’s remarks your Honour outlined the facts. Your Honour obviously paraphrased much of the facts and some of the items that were in the agreed statement of facts your Honour didn’t indicate in your Honour’s outline of those facts. I’d ask whether your Honour accepts all of the facts as in the agreed statement of facts as having been found?

HIS HONOUR: If there are agreed, yes and I think they are, Mr Gunning?

KOTSIS: Yes, they were agreed facts, your Honour. But I understand that your Honour gave an outline of those facts and I think your Honour said that it was an outline. I just ask your Honour to confirm whether or not your Honour has found as a matter of fact finding all of those facts that were agreed.

HIS HONOUR: Yes, I do. They have been admitted without objection and I have found them all as facts and I, however, didn’t find it necessary to outline them all in my judgment because they are part of exhibit A and that’s why I outlined them in summary form.

KOTSIS: Thank you, your Honour.

GUNNING: If it assists, your Honour, I believe that they were an agreed statement of facts and were signed by the young person on 24 July 2006.

HIS HONOUR: Thanks, Mr Gunning. I’ll return exhibits B, C, E, F.

KOTSIS: I don’t ask for any exhibits to be returned, your Honour.

HIS HONOUR: Should they stay with the papers?

KOTSIS: My view is they should all remain with the papers.

HIS HONOUR: All right. And in particular exhibit D will stay with the papers because it’s subject to that order. You probably want exhibits 1, 2, 3 and 4 back, Mr Gunning, do you? It’s up to you as to whether they stay with the papers or go back.

GUNNING: I’m happy for them to stay with the papers, your Honour.

HIS HONOUR: I’ll place all of the exhibits with the papers as well as the Form 1, which I’ll place with the papers. My associate has correctly pointed out, exhibit 4 comprises your client’s certificates. Do you want those back?

GUNNING: I probably should ask for them to be returned.

HIS HONOUR: I’ll return to you exhibit 4 because of what they are.

47. Mr [young person], you understand that I have kept you in a juvenile detention centre until six months after you turn twenty-one. That means that you are to stay in the juvenile detention centre and not to go to an adult facility because I think it is best for your rehabilitation that you stay where you are. You have committed some very serious crimes which is why the sentence is as long as it is and why the non-parole period is as long as it is, because they were very serious crimes. On the other hand I was very impressed by the evidence of your rehabilitation. You have had a lot to deal with and it seems to me that you have been dealing with all that sort of stuff and I want you to continue doing that and to give yourself the best chance on your release. Do you understand that? Good luck.

Before I go there’s court staff here, there’s a court officer, there’s a monitor and corrective services staff and I want to publicly thank them. I warned them that I might be sitting on. It’s now 5.15, well beyond the time that they would normally be expected to perform these duties. It’s been partly caused by the hold up with the young person not being available this morning and it’s been important to sentence him today and Mr Lane and I’m very grateful to the staff for facilitating the course of justice, as well as my associate staying on as well.

KOTSIS: Your Honour, can I order an urgent transcript of the remarks on sentence of this matter for the co-offenders’ proceedings?

HIS HONOUR: I direct that an urgent transcript of the remarks on sentence be taken out.

oOo

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