Citation: R v RG [2000] NSWSC 1057
Court: Supreme Court of New South Wales
Date: 27 October 2000
Judge(s): Dowd J
Background
A young person identified only as RG was originally committed to the Supreme Court alongside a co-accused, PL, to face trial for a number of serious offences including murder and robbery in company. The charges arose from an incident in the early hours of 11 January 1999, when RG (then aged 12) and three others, including an adult named Johnathon Whitfield, entered a residential property in Berkeley intending to rob the occupant. During the incident, Whitfield fatally attacked the occupant with a pole and a knife. RG and PL fled when the deceased came towards them but RG witnessed the assault.
The murder charges were ultimately not proceeded with against RG. On 4 August 2000, the Crown presented an indictment charging RG with one count of robbery in company under s 97(1) of the Crimes Act 1900, to which RG pleaded guilty. At the time of sentencing, RG was 14 years old.
RG had a troubled background, including parental separation at age two, limited contact with his father, a history of aggressive behaviour at home, and an Apprehended Violence Order taken out against him by his own mother. However, his mother and a Juvenile Justice report noted meaningful positive changes in his behaviour since the offending.
Legal Issues
- Whether the sentencing proceedings should be conducted under the Children (Criminal Proceedings) Act 1987 rather than according to the ordinary adult sentencing regime
- Whether robbery in company under s 97(1) of the Crimes Act 1900 constitutes a "serious indictable offence" for the purposes of that Act, triggering different sentencing treatment
- What sentence was appropriate for a 12-year-old offender who pleaded guilty to robbery in company in circumstances where the robbery resulted in a death caused by a co-participant
- Whether parity with the sentence imposed on co-offender PL was required and, if so, to what extent
Decision
Dowd J determined that robbery in company under s 97 of the Crimes Act 1900, which carries a maximum of 20 years imprisonment, is not a "serious indictable offence" for the purposes of the Children (Criminal Proceedings) Act 1987. Accordingly, the court was empowered to deal with the matter under Part 3 of that Act as if it were sitting as a Children's Court, applying the less punitive sentencing regime designed for young offenders.
In assessing the appropriate sentence, Dowd J considered RG's age at the time of the offence (12 years), his limited role in the robbery, the fact that he did not inflict the fatal violence, his guilty plea, and the positive changes in his behaviour described by his mother and the Juvenile Justice report. The court also noted that RG still displayed some aggression and faced pressures arising from peer group dynamics and racial alienation.
On the question of parity, Dowd J applied the principle confirmed in Lowe v The Queen (1984) 154 CLR 620, that co-offenders convicted of the same offence should receive the same sentence where their circumstances are equal. The court found that RG and PL played identical roles in the offence and that imposing a materially different sentence on RG would create a justifiable sense of grievance. As PL had not received a custodial sentence, neither would RG.
Dowd J concluded that a two-year probation order with strict conditions was the appropriate disposition, emphasising rehabilitation, supervision by the Department of Juvenile Justice, and the young person's obligation to give evidence in accordance with an undertaking he had provided.
Orders Made
- RG released on a two-year probation order subject to the following conditions:
- Obey the reasonable directions and guidance of the Department of Juvenile Justice
- Attend programs as directed by the Manager of the Intensive Programs Unit
- Attend counselling as directed by the Manager of the Intensive Programs Unit
- Make reasonable efforts to gain and maintain educational training
- Reside as directed by the Manager of the Intensive Programs Unit
- Be of good behaviour, commit no further criminal offences, and keep the peace
- Give evidence in accordance with the undertaking provided
Key Takeaways
- Robbery in company under s 97(1) of the Crimes Act 1900 is not a "serious indictable offence" within the meaning of the Children (Criminal Proceedings) Act 1987, which meant the Supreme Court could exercise the sentencing powers of a Children's Court in this case.
- Where an offence is not a serious indictable offence for the purposes of that Act, a sentencing court must consider the offender's age and maturity, the nature of the offence, and the likely appropriate penalty in determining whether to apply the Children's Court regime rather than the ordinary adult framework.
- The parity principle, as articulated in Lowe v The Queen, applies to juvenile co-offenders: where two young persons played identical roles in the same offence, a significantly different sentence for one would produce a justifiable sense of grievance.
- A non-custodial disposition remains available in serious indictable proceedings involving very young offenders where rehabilitation is the paramount consideration and the offender's role and personal circumstances support leniency.
- Non-publication orders under s 11 of the Children (Criminal Proceedings) Act 1987 apply to Supreme Court proceedings conducted under that Act's regime, protecting the identity of the young person involved.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), including ss 11 and Part 2 Div 4, Part 3 Div 4
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
Cases
- R v R (1993) 71 A Crim R 95 (Hunt CJ at CL) (factors relevant to choosing between adult and Children's Court sentencing regimes)
- Lowe v The Queen (1984) 154 CLR 620 (High Court) (parity principle in sentencing co-offenders)