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Supreme Court 14 August 2003

Regina v K.R.G.

[2003] NSWSC 751

Assault & violence

Citation: Regina v K.R.G. [2003] NSWSC 751
Court: Supreme Court of New South Wales
Date: 14 August 2003
Judge(s): Whealy J

Background

The offender, K.R.G., was a young person aged 16 at the time of the offence. On 25 January 2002 at Cartwright in south-western Sydney, he participated with a group of at least four males in a violent assault on the deceased, Wayne Anthony Myers, in a residential street late at night.

During the assault, the deceased was stabbed by one of the other group members and later died from a stab wound to the chest. It was agreed that K.R.G. did not stab the deceased and was not aware that any member of the group was carrying a knife. K.R.G. nonetheless participated in the physical assault, which the court described as a cowardly attack by a gang on a lone individual.

K.R.G. was originally charged with murder. He pleaded guilty to the reduced charge of assault occasioning actual bodily harm while in the company of other persons, and the Crown indicated it would take no further proceedings on the murder indictment. At the time of sentencing, K.R.G. had been in detention for approximately 19 months.

  • Whether K.R.G. should be sentenced according to law or dealt with under Division 4, Part 3 of the Children's (Criminal Proceedings) Act 1987, having regard to the factors set out in section 18(1A) of that Act.
  • What weight should be given to K.R.G.'s age, prior criminal history, subjective circumstances, and time already spent in detention when determining the appropriate sentencing outcome.
  • Whether parity with the sentence imposed on a co-offender (Whitmore) supported a particular sentencing approach.

Decision

Whealy J first determined the threshold question of which sentencing framework applied. The offence to which K.R.G. pleaded guilty was an indictable offence but not a serious indictable offence, meaning the court had a discretion to deal with him under the Children's (Criminal Proceedings) Act 1987. Taking into account K.R.G.'s age (16 at the time of the offence, not yet 18 at sentencing), the nature of the offence, and the relevant subjective material, the court elected to proceed under that Act.

The court acknowledged K.R.G.'s poor criminal record, including a control order imposed at Campbelltown Children's Court in October 2001, and described the assault as serious and cowardly. The court nonetheless noted that K.R.G.'s role was more limited than that of other participants: he did not stab the deceased, did not possess a knife, and was not aware any co-participant did.

The court accepted that K.R.G. had already served approximately 19 months in detention by the time of sentencing. Whealy J also considered parity with Whitmore, a co-offender dealt with earlier in the same week, and accepted that an order under section 33(1)(e) of the Children's (Criminal Proceedings) Act 1987 releasing K.R.G. on probation would adequately address the sentencing objectives applicable to young offenders under that legislation.

Orders Made

  • K.R.G. released on probation for a period of 12 months from 14 August 2003, subject to the following conditions:
  • Obey all reasonable directions of the Department of Juvenile Justice during the probation period.
  • Attend drug and alcohol counselling as required by the Department.
  • Seek gainful employment and continue his education.
  • Reside with his mother or as approved by the Department.

Key Takeaways

  • Under section 18(1A) of the Children's (Criminal Proceedings) Act 1987, the sentencing court must weigh the seriousness and nature of the offence, the young person's age and maturity at the time of the offence and at sentencing, and the nature and number of prior offences when deciding whether to proceed under the Act or according to law.
  • A participant in a group assault is not automatically held responsible for the full consequences of that assault where it is established, to the required standard, that the participant did not possess a weapon and was unaware that any co-participant did.
  • The principle of parity between co-offenders is relevant to sentencing young persons, though the court must account for differences in the individual circumstances of each offender when drawing comparisons.
  • Where a young offender has already served a substantial period in pre-sentence detention, that time in custody is a relevant consideration in calibrating the appropriate final order.
  • The aims and objectives of the Children's (Criminal Proceedings) Act 1987 are distinct from those governing adult sentencing, and the court applied a framework oriented toward rehabilitation alongside the broader community interest in protection from violence.

Legislation and Cases Referenced

Legislation:
- Children's (Criminal Proceedings) Act 1987 (NSW), particularly sections 18, 18(1A), 25(2)(a), and 33(1)(e)
- Sentencing Act 1989 (NSW)

Cases:
- R v W K R (1993) 32 NSWLR 447