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Supreme Court 13 August 1999

R v PHL

[1999] NSWSC 961

Assault & violenceTheft & property
SENTENCE JUVENILE

Citation: R v PHL [1999] NSWSC 961
Court: Supreme Court of New South Wales, Criminal Division
Date: 13 August 1999
Judge(s): Hidden J

Background

A thirteen-year-old offender was originally charged with murder arising from an incident at Chester Hill in September 1997. The offender snatched the handbag of a 73-year-old woman, who fell during the struggle and sustained a fractured femur. She died in hospital the following day from internal bleeding.

Upon arraignment, the offender pleaded guilty to robbery, which the Crown accepted in full satisfaction of the indictment. The offender was therefore sentenced for robbery only, with the court emphasising that no criminal responsibility for the woman's death attached to him in these proceedings.

The offender had spent a little over twenty months in custody referable to the offence by the time of sentencing. He had a prior criminal history, a deeply troubled background including periods of homelessness, and had been represented by the Sydney Regional Aboriginal Corporation.

  • Whether the time already served in custody was sufficient custodial punishment for the robbery, given the offender's age and circumstances.
  • Whether the Supreme Court could exercise the probation power available to the Children's Court under section 33(1)(e) of the Children (Criminal Proceedings) Act 1987.
  • What sentencing outcome would best serve both community interests and the offender's rehabilitation.

Decision

Hidden J accepted that robbery is a serious offence that would ordinarily attract a significant deterrent sentence. However, the court identified a combination of highly unusual circumstances that warranted a different approach. The offender was only thirteen at the time of the offence and fifteen at sentencing, had already served over twenty months in custody, and was showing meaningful signs of rehabilitation since his release on bail approximately one month before the sentencing hearing.

The court concluded that the period already spent in custody constituted sufficient custodial punishment. The community interest, the court found, was best served by the offender's continued rehabilitation in the community under supervision, rather than by further incarceration.

Hidden J considered imposing a backdated sentence under the Sentencing Act structured to allow immediate parole, but declined that option as inappropriate given the offender's youth. Instead, the court accepted the defence submission that a probation order under section 33(1)(e) of the Children (Criminal Proceedings) Act 1987 was the appropriate disposition.

The court confirmed it had power to make such an order by virtue of section 18(2) of that Act, which extends the Children's Court's sentencing options to the Supreme Court when dealing with a juvenile offender. The maximum two-year probation period was imposed, with conditions directed at stability, supervision, accommodation, and employment.

Orders Made

  • The offender was released on probation for a period of two years.
  • Conditions of probation included: accepting the supervision and guidance of the Juvenile Justice Community Service; residing as directed by the Juvenile Justice Community Service; and attempting to obtain and remain in employment.
  • Matters on the Form One presented at the hearing were taken into account in making the orders.

Key Takeaways

  • Under section 18(2) of the Children (Criminal Proceedings) Act 1987, the Supreme Court holds the same sentencing powers as the Children's Court, including the power to impose a probation order under section 33(1)(e) of that Act.
  • A maximum two-year cap applies to probation orders made under section 33(1)(e) of the Children (Criminal Proceedings) Act 1987.
  • Where a juvenile offender has already served a substantial period in pre-sentence custody, a sentencing court may treat that time as sufficient custodial punishment and elect not to impose further imprisonment, particularly where rehabilitation prospects are strong.
  • The Supreme Court distinguished between a backdated Sentencing Act sentence with immediate parole and a probation order, treating the former as more appropriate for older offenders and the latter as better suited to a very young juvenile in this context.
  • Severely disadvantaged personal circumstances, including a history of homelessness, family instability, and absence of educational and employment foundations, are relevant considerations in juvenile sentencing and can weigh in favour of rehabilitative over punitive outcomes.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), sections 18(2) and 33(1)(e)
- Sentencing Act (NSW) (referenced but not cited by full title in the judgment)

Cases cited: None cited in the judgment.