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Supreme Court 10 November 2000

R v TCP

[2000] NSWSC 1079

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY JUVENILE CHILDREN'S COURT

Citation: R v TCP [2000] NSWSC 1079
Court: Supreme Court of New South Wales
Date: 10 November 2000
Judge(s): Dowd J

Background

A young person, identified only by initials to preserve the suppression order made in the proceedings, pleaded guilty to robbery in company under s 97(1) of the Crimes Act 1900. The plea arose from an incident in the early hours of the morning in which the young person attended a premises with three co-accused, including an adult named Jonathan Whitfield, with the intention of committing a robbery. The victim, Ralph Mason, was fatally stabbed by Whitfield during the incident and died from stab wounds and blunt force head injuries.

The young person's role included entering the premises and taking a compact disc player and a mobile phone belonging to the deceased. He had been threatened by Whitfield prior to the offence and did not participate in the actual killing. He was arrested shortly afterwards and spent approximately eighteen months and twenty days in custody before being released on bail.

The young person appeared before the Supreme Court, which exercised the sentencing powers of the Children's Court under the Children (Criminal Proceedings) Act 1987, given that robbery in company, while carrying a maximum penalty of twenty years imprisonment, is not a "serious indictable offence" for the purposes of that Act.

  • Whether the Supreme Court should exercise the powers of the Children's Court in sentencing a juvenile offender for robbery in company under the Children (Criminal Proceedings) Act 1987
  • What weight should be given to the young person's age, background, remorse, time already served in custody, and undertaking to give evidence against a co-accused
  • How to balance the principle of sentencing parity with co-offenders against the young person's higher level of participation relative to two previously sentenced co-accused

Decision

Dowd J determined that the matter was appropriately dealt with by exercising the Children's Court powers under Part 3 of the Children (Criminal Proceedings) Act 1987. The judge noted the young person's youth, his lack of prior criminal record, his genuine remorse, and the considerable efforts he made to further his education and gain qualifications while in custody.

On the question of parity, the court applied the principle from Lowe v The Queen (1984) 154 CLR 620 that co-offenders should generally receive comparable sentences where circumstances are equal, but that individual factors, including age, background, criminal history, and level of participation, may justify differences. Although the young person was found to have been more involved in the offence than the two co-accused already sentenced, his demonstrated maturity and genuine contrition counterbalanced that higher participation.

The court also took into account the young person's undertaking, given under oath, to give evidence against Jonathan Whitfield. The extensive time already served in custody, approximately eighteen months and twenty days, was treated as a weighty mitigating factor. Having balanced all of these considerations, Dowd J concluded that a two-year probation order with strict conditions was appropriate, consistent with the orders made for the two co-accused.

Orders Made

  • The young person was convicted of robbery in company
  • Released on a probation order for a period of two years, subject to the following conditions:
  • To obey the reasonable directions and guidance of the Department of Juvenile Justice
  • To attend programs as directed by that Department
  • To make reasonable efforts to gain qualifications and continue education with a view to employment
  • To reside with his mother and to notify the Probation and Parole Department of any change of address
  • To be subject to the directions of the Department of Probation and Parole during the two-year period
  • To be of good behaviour, commit no further criminal offences, and keep the peace
  • Non-publication orders were made in respect of the names of the young persons involved in the proceedings

Key Takeaways

  • Under the Children (Criminal Proceedings) Act 1987, the Supreme Court may exercise the powers of the Children's Court when sentencing a juvenile for an offence that, while serious, does not constitute a "serious indictable offence" under that Act, regardless of the gravity of the surrounding circumstances.
  • A guilty plea entered at the earliest opportunity is a recognised mitigating factor in sentencing, and the court confirmed it was taken into account in reaching its conclusion.
  • Where a young offender was more seriously involved in the offence than co-accused who have already been sentenced, parity principles do not automatically require a harsher outcome; demonstrated remorse, maturity, and rehabilitation efforts can offset higher culpability.
  • Substantial pre-sentence custody serves as a significant mitigating factor, particularly for a juvenile offender with no prior criminal record.
  • An undertaking given under oath by a young offender to co-operate and give evidence against a co-accused is a factor that a sentencing court may weigh in determining the appropriate disposition.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), particularly Part 2 Division 4 and Part 3
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases
- Lowe v The Queen (1984) 154 CLR 620 (High Court of Australia: sentencing parity principles)
- R v R (1993) 71 A Crim R 95 (per Hunt CJ at CL: matters to be considered when sentencing juveniles)