Regina v JJH (a young person)

[2007] NSWDC 368

CITATION:	Regina v JJH (a young person) [2007] NSWDC 368
JUDGMENT DATE:	7 December 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Appeal allowed. Control Order of 1 year and 9 months with a non-parole period of 1 year. Supervised parole.
CATCHWORDS:	Criminal law - Sentence appeal - Juvenile offender - Armed robbery (2) - Extensive and serious criminal record - Offences committed whilst on parole - Offender born to a 13 year old drug addict - Offender began using drugs aged 11 - Both parents now in custody - Need for rehabilitation
LEGISLATION CITED:	s33(1)(g) Children (Criminal Proceedings) Act 1987 s20(2)(a) Crimes (Appeal and Review) Act 2001 Children (Detention Centres) Act 1987 ss 50, 51 Crimes (Sentencing Procedure) Act 1999
PARTIES:	Regina JJH (a young person)
FILE NUMBER(S):	07/22/0573
COUNSEL:	Ms Clifford for the young person
SOLICITORS:	Ms Fitzpatrick and Ms Tabone for the NSW DPP

JUDGMENT

1. This is an appeal by JJH. JJH was born on 30 July 1990, so that he turned seventeen this year. He is appealing against two sentences imposed upon him by the Children’s Court. The sentences were imposed for two offences of armed robbery with an offensive weapon. These are offences against s 97 of the Crimes Act 1900 . In each case the magistrate imposed a control order under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 of twenty-one months comprising a minimum term, so to speak, of fifteen months and an additional term, so to speak, of six months. Both sentences dated from 31 October 2007 and therefore ran together.

2. Briefly, the facts of the offences were these. On 30 July with another person JJH held up a service station at Normanhurst. He was armed with a knife. He stole money and a mobile phone from the attendant. Cigarettes were also stolen. The next day JJH was involved in a very similar robbery. Once again it was a service station but this time at North St Marys. Once again it involved a knife but this time JJH threatened the attendant, demanding that he open the drawer or be cut and in addition he jumped on to the counter and then leapt down to where the attendant was meant to be protected. His co-offender kicked the access door down. Once again money and cigarettes were stolen.

3. Needless to say a description of these two offences demonstrates how serious they were. They must have been terrifying experiences for each of the attendants involved. Attendants at service stations like those perform an important service for members of the public. In each case the robbery occurred at night-time. The fact that people work in those jobs enables members of the public to go about their business and refuel their cars and buy provisions as and when they are needed. But the job exposes them to crimes such as this. It is important for a court such as mine to bear in mind the need for people in those sorts of jobs to be protected.

4. JJH, for a seventeen year old, has a long criminal record. It commenced with an armed robbery with an offensive weapon on 16 December 2003 when JJH was thirteen years old. It includes, amongst numerous other entries, crimes of aggravated break and enter in company, having a knife in a public place and four counts of armed robbery with an offensive weapon.

5. When JJH’s personal background is taken into account, the Court has some insight into what has driven him to this behaviour. He was born to a mother who was a drug addict. She was thirteen when she had JJH. His own mother has been in prison for significant periods of time.

6. The report from the Department of Juvenile Justice dated 10 September 2007 details some of JJH’s personal history. He has had trouble at school and although keen on sports, has had difficulty committing himself. He has no visible means of support. He has a history of breaching community based orders. There has been in the past some history of conflict between him and his mother and his grandmother. The report recommends that any period of parole be subject to certain conditions, which I will return to.

7. JJH gave evidence before me at Parramatta on 22 November 2007. He told me how he had a history of alcohol and drug dependency and was a user of a wide range of illegal drugs. His armed robberies were committed to support his drug and alcohol habits. They were often committed on the spur of the moment and the two offences which are the subject of this appeal were like that. He commenced his drug use at the age of about eleven or twelve. Drug usage was part of his household where he lived. Both his parents are in custody. He saw them both taking drugs. He had even been involved with armed robberies with his own mother when he was ten years old.

8. In custody he has completed Year 10. He has undertaken a bricklaying course and has engaged in sport. More importantly, he has been doing a drug and alcohol course and has been seeing a psychologist. Understandably, he does not like being locked up and wants to address his own drug dependency. He is keen to enter a live-in rehabilitation centre. For the future, he is keen to get himself employment and become more involved in sport, including rugby league. He would like to, on release, live with his sisters and his mother’s mother, his own grandmother.

9. Ms Clifford, who appears for JJH, submits that the appeal should be allowed. The order which she is seeking is an adjustment of the non-parole period to the parole period. Her submission is that there has been significant progress considering JJH’s background. This progress has occurred whilst he has been in custody. An earlier release from custody would enable him to carry on with his rehabilitation but in the context of the community.

10. The respondent to the appeal, the DPP, submits through his representatives, Ms Fitzpatrick and Ms Tabone, that there is a basis for adjusting the ratio and there are special circumstances to form that basis but that I need to keep in mind the seriousness of the crime and the fact that it was committed whilst he was on parole. That is a fact which I have not yet mentioned and which aggravates these offences. The fact that any person committing a crime does so whilst they are at liberty from the courts because of bail or parole is an aggravating factor because they have abused the liberty which the justice system has allowed them.

11. In determining whether or not to allow this appeal I have to weigh the seriousness of these two crimes along with the fact that JJH has a bad criminal record and the fact that these were committed on parole against his need as a young person for rehabilitation. The legislation dealing with young people emphasises that priority is to be given to opportunities for a young person to pursue their education and rehabilitation.

12. I have decided to allow the appeal and I propose shortly to formally order that there be an adjustment in the ratio so that the minimum term is twelve months and the additional term is nine months. I regard any minimum term less than twelve months as inappropriately low because of the seriousness of these two offences and because of the fact they were committed whilst JJH was on parole. I also have regard to the need for the Court by its sentence to discourage him from committing these sorts of crimes again. On the other hand, I am impressed by his efforts to rehabilitate himself in custody. A young man with his past and background must be given, in my opinion, every opportunity to pursue his own rehabilitation.

13. Accordingly, the formal orders which I make are these. In accordance with s20(2)(a) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence of the learned magistrate. Instead of that sentence and under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 for each of the two offences I make an order committing JJH for twenty-one months to the control of the Minister administering the Children (Detention Centres) Act 1987 . I specify that that term is to commence on 31 October 2007 and to conclude on 30 July 2009. I specify a non-parole period of one year from 31 October 2007 to 30 October 2008. The balance of the term will be nine months from 31 October 2008 to 30 July 2009.

CLIFFORD: Excuse me, your Honour.

HIS HONOUR: Yes.

CLIFFORD: Sorry. My friend and I were just - there’s some concern with the date.

HIS HONOUR: Yes.

CLIFFORD: As the total sentence has remained the same - sorry, correct me, I may be wrong - but we thought that the end of the total sentence would be
30 January 2009 as previously stated.

HIS HONOUR: That makes sense, doesn’t it?

CLIFFORD: Sorry, your Honour, you are correct, sorry.

HIS HONOUR: Yes. I’m right, aren’t I?

TABONE: Yes, you are, your Honour.

CLIFFORD: Yes.

14. The balance of the term will be nine months from 31 October 2008 to 30 July 2009. Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing the release of JJH on parole on 30 October 2008. I impose the following conditions pursuant to s 51 of the Crimes (Sentencing Procedure) Act on the parole order: that JJH (1) be of good behaviour, (2) accept the supervision of the New South Wales Department of Juvenile Justice, (3) attend any educational, employment and training programmes as directed by that Department, (4) participate in any programme provided by that Department, (5) attend any appointments arranged by that Department, (6) reside as directed by that Department, and (7) participate in any mentor support programme arranged by that Department.

Now I will explain it to your client in a moment, Ms Clifford.
Ms Clifford and Ms Tabone, are there any formal orders I have not made which I need to make or correct?
TABONE: Your Honour, maybe in addition whilst the young person is going to be under the supervision of Juvenile Justice and attend education and employment training programmes perhaps there could be an additional condition about participating in any programmes with respect to an offence or drug related programmes or provisions by Juvenile Justice because the other conditions don’t - there’s nothing specific about drug.

HIS HONOUR: You’re quite right.

15. So far as condition (4), participating in any programme, I will amend that to participate in any programme provided by or recommended by the Department, especially programmes focused on drug and alcohol rehabilitation.

TABONE: Thank you, your Honour.
HIS HONOUR: Ms Clifford, any other conditions?
CLIFFORD: No, your Honour, if your Honour pleases.
HIS HONOUR: Ms Tabone, nothing else?
TABONE: No.
16. Okay. JJH, as I said, I have allowed your appeal and the twenty-one months is still in place. You are still in gaol for one year and nine months - or rather in custody - but I brought down the minimum time to one year so that you will be released on parole on 30 October 2008. Do you understand that? Then you have got nine months on parole and I have listed all those things you heard me list, which somebody will go through with you, to do with your rehabilitation, but basically you are to take the advice of the Department of Juvenile Justice. They are prepared to give you advice and they will help you find the right place for you to continue with your rehabilitation. It sounds as though you are doing well so far and I hope that you continue with that progress once you are released. I have got to keep you in custody for a certain amount of time because what you did, as I said, was very serious and it cannot happen. We cannot have people in the community doing that sort of thing, so that is why there has to be a certain amount of time in custody.

Do I need to make any order or direction about juvenile detention centre after he is aged eighteen because he turns eighteen whilst he is still in custody?


CLIFFORD: Your Honour, I don’t actually have number 2 with me today,
your Honour, but it’s my understanding that he remains and serves the sentence out as a juvenile if it is - if it’s a crime that they’ve committed as a juvenile and they have started the sentence as a juvenile they continue.

HIS HONOUR: All right.

TABONE: That was my understanding, your Honour, but I don’t have my volume 2 either.

HIS HONOUR: Yes. In case there is any doubt I recommend, and if I have the power I direct, that the whole of the term of custody be served in a juvenile detention centre.
CLIFFORD: Thank you, your Honour.
HIS HONOUR: Is there anything else?
TABONE: No, your Honour.
CLIFFORD: No, your Honour.
HIS HONOUR: Okay. Thanks. JJH, good luck.
oOo