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Court of Criminal Appeal 14 March 2003

R v Bendt

[2003] NSWCCA 78

Assault & violenceTheft & property
FACTORS TO BE TAKEN INTO ACCOUNT.

Citation: R v Bendt [2003] NSWCCA 78
Court: Court of Criminal Appeal, New South Wales
Date: 14 March 2003
Judges: Meagher JA, Dowd J, Barr J

Background

The respondent, a young male aged 17 years and 9 months at the time of the offending, pleaded guilty to two counts of robbery in company. The offences arose from a violent armed robbery at a licensed club in which eight males, some carrying machetes, terrorised approximately 30 staff and patrons, forcing several victims to the floor at machete-point and stealing a large quantity of money.

At sentencing in the Campbelltown District Court, Judge Moore treated the respondent as a child under the Children (Criminal Proceedings) Act 1987 and imposed a suspended control order of 18 months. The Director of Public Prosecutions appealed that sentence pursuant to s 5D of the Criminal Appeal Act, arguing that the discretion to proceed under the children's legislation had been wrongly exercised.

  • Whether the offences constituted a "serious indictable offence" within the meaning of the Children (Criminal Proceedings) Act 1987, which would have removed the sentencing court's discretion under s 18
  • Whether the sentencing judge correctly exercised the discretion under s 18 to deal with the respondent as a child rather than proceeding according to law
  • What factors are relevant to the exercise of that discretion, and what weight should be given to the offender's age, maturity, and personal circumstances

Decision

The Court of Criminal Appeal found that the offences, while extremely serious in their nature and execution, did not technically qualify as "serious indictable offences" within the statutory definition. This meant the sentencing judge retained a discretion under s 18 to proceed either according to law or in accordance with the children's legislation.

The Court held, however, that the discretion had been exercised incorrectly. Meagher JA concluded that the trial judge had not sufficiently appreciated the gravity of the offending. The victims faced a genuine risk of serious injury or death, and it was described as good fortune that no greater harm resulted.

Central to the Court's reasoning was the respondent's age. Although technically a child under the Act (defined as a person under 18), he was only three months short of adulthood. The Court found no real basis to depart from the ordinary course of proceeding according to law. The respondent had no intellectual disability, was found to be intelligent, and had full awareness of what the group intended to do before he participated.

While the Court acknowledged some mitigating factors, including remorse, regret, and emerging signs of rehabilitation, it found these were insufficient to justify the departure from proceeding according to law. The Crown appeal was upheld and the sentence quashed.

Orders Made

  • The appeal was allowed and the sentences below were quashed
  • The respondent was re-sentenced according to law, with the two further charges on Form 1 taken into account
  • On the first count: imprisonment for 18 months commencing 14 March 2003, with a non-parole period of one year expiring 13 March 2004; the respondent to be released to parole on that date
  • On the second count: a fixed term of one year's imprisonment, served concurrently
  • All terms to be served in a detention centre

Key Takeaways

  • Under s 18 of the Children (Criminal Proceedings) Act 1987, the discretion to deal with a young offender as a child (rather than according to law) arises only where the offence is not a "serious indictable offence" within the statutory definition, regardless of how serious the conduct may be in a general sense.
  • Where a discretion exists under s 18, there is no closed list of factors a sentencing court may consider, but proximity to adulthood is a weighty consideration when the offender is only marginally under the age of 18.
  • The Court of Criminal Appeal confirmed that the mere technical status of "child" under the Act does not automatically justify departure from adult sentencing, particularly where the offender had full cognitive awareness and participation in serious offending.
  • Mitigating factors such as remorse and rehabilitative prospects, while relevant, do not necessarily override the gravity of the offending or the significance of the offender's near-adult age.
  • In dismissing the reasoning of the court below, the Court of Criminal Appeal emphasised that the sentencing discretion must reflect the full seriousness of the offending, not merely acknowledge it in passing.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), particularly ss 18, 33(1)(g), and 33(1B)
- Criminal Appeal Act (NSW), s 5D

Cases: No cases were cited in the judgment.