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Local Court 21 November 2006

Police v JS

[2006] NSWLC 43

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCE JUVENILE OFFENDERS MULTIPLE OFFENDING LATE GUILTY PLEA BREACH OF CONDITIONAL LIBERTY SUBSTANTIAL DAMAGE

Citation: Police v JS [2006] NSWLC 43
Court: Local Court of New South Wales (Children's Court jurisdiction), Moree
Date: 21 November 2006
Judge(s): Magistrate G. Lerve

Background

The young person (JS) appeared for sentence in the Moree Children's Court on four charges arising from a series of offences committed in July 2006. The most serious involved breaking into a smash repair business with co-offenders, attempting to steal a new motor vehicle, and then deliberately setting the vehicle and premises alight when the theft failed. The resulting explosion caused very substantial damage, estimated to run into hundreds of thousands of dollars, and put the business out of operation for several weeks.

Two days after that incident, JS broke into the Moree Agricultural TAFE, rode a Yamaha Quadbike from the premises, and abandoned it when it became caught in a boundary fence. Shortly afterwards, upon learning that a co-offender had given a statement to police naming him, JS made explicit threats to have that witness harmed, communicating those threats through other co-offenders.

JS also appeared for sentence in respect of breaches of Community Service Orders imposed in connection with earlier offences, including take and drive conveyance, possess offensive implement, and larceny. The current proceedings therefore involved both the fresh matters and the revocation of conditional liberty previously granted.

  • Whether guilty pleas entered on the eve of hearing, after not guilty pleas had been confirmed, warranted a substantial discount for utilitarian value
  • How to sentence a juvenile for multiple serious offences committed in quick succession, including an offence of aggravated break and enter with malicious damage by fire
  • Whether the witness threat offences warranted cumulative (consecutive) sentences, given their character as public justice offences
  • How to apply the principle of totality across a complex series of cumulative and concurrent sentences
  • Whether, given the young person's relative immaturity and vulnerability, the sentences should be served in a juvenile justice institution rather than an adult facility

Decision

Late Guilty Pleas
The pleas of not guilty were formally confirmed at a reply date in September 2006, and guilty pleas were not entered until October 2006 when the matters were listed for hearing. The Magistrate found the pleas had been entered quite late and that no significant alteration to the charges had been made. Accordingly, the discount for the utilitarian value of the guilty pleas was reduced significantly, to no more than ten percent, consistent with the approach in cases such as R v D'amico and R v Dibb.

Seriousness of the Arson and Break and Enter
The Magistrate treated the aggravated break and enter with malicious damage by fire as the most serious matter. The offending involved deliberate, calculated conduct: the young person physically created entry to the premises, spent an extended period attempting to steal a vehicle, and then deliberately doused it in fuel and ignited it. The damage to the business was found to be very substantial, with multiple vehicles destroyed in addition to the premises themselves. This attracted the longest individual sentence, structured with a non-parole period and a balance of term.

Cumulation for the Witness Threat
The Magistrate treated the threaten witness charge as a distinct and serious matter warranting a cumulative sentence. Threatening a witness is a public justice offence, directed at the integrity of the justice system itself, and the court imposed a separate three-month fixed term to run consecutively to the sentences for the prior breach matters and before the fresh property offences commenced. The Magistrate expressly considered totality in structuring the overall sentence.

Juvenile Justice Institution
Despite the serious nature of the offending, the Magistrate directed that all sentences be served in a Juvenile Justice Institution. The young person was assessed as relatively immature for his age, presented as vulnerable, and was in custody for the first time. Those factors supported detention in a juvenile rather than adult facility.

Orders Made

Breach of Community Service Orders (matters of 12 July 2006):
- Community Service Orders revoked in each of the three matters
- Take and Drive Conveyance: 3-month fixed term, 25 July 2006 to 24 October 2006
- Possess Offensive Implement and Larceny: 1-month fixed term each, 25 July 2006 to 24 August 2006

Fresh Matters:
- Threaten Witness (H27742506): convicted; 3-month fixed term, 25 October 2006 to 24 January 2007
- Aggravated Break and Enter and Commit Serious Indictable Offence (Malicious Damage by Fire), Sequence 1 (H27463054): convicted; 12-month non-parole period, 25 January 2007 to 24 January 2008, followed by a 6-month balance of term, 25 January 2008 to 24 July 2008
- Attempt Larceny of Motor Vehicle, Sequence 3 (H27463054): convicted; 4-month fixed term, 25 January 2007 to 24 May 2007 (concurrent with Sequence 1)
- Break Enter and Commit Serious Indictable Offence, Sequence 2 (H27463054): withdrawn and dismissed as a back-up charge to Sequence 1
- Break Enter and Steal, 17 July 2006 (H29458684): convicted; 6-month fixed term, 25 January 2007 to 24 July 2007
- All sentences directed to be served in a Juvenile Justice Institution
- Registrar directed to notify the Registrar of the Court of Criminal Appeal, as the matters constituted breaches of a Good Behaviour Bond imposed by that Court

Key Takeaways

  • A guilty plea entered only on the hearing date, after a not guilty plea has been formally confirmed at a reply date and without any significant change to the charges, may attract a discount for utilitarian value of no more than ten percent in the Children's Court.
  • Where a young offender deliberately destroys premises and property by arson following a failed theft, the sentencing court may find the resulting damage to be very substantial even without precise monetary evidence, and the gravity of such conduct will be reflected in the longest component of the overall sentence.
  • Threatening a witness on account of evidence given to police is treated as a distinct category of offending directed at the administration of justice, warranting a cumulative rather than concurrent sentence even within a broader package of youth sentences.
  • The principle of totality remains a live consideration in juvenile sentencing even where multiple discrete and serious offences are involved; the Magistrate in this case structured the sentences so that each offence was reflected but the overall period was moderated.
  • Relative immaturity, personal vulnerability, and first-time custody status are each capable of supporting a direction that the entirety of a juvenile's sentence be served in a Juvenile Justice Institution rather than an adult correctional facility.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)

Cases
- R v AN [2005] NSWCCA 227
- R v Carberry & Weldon (2002) 136 A Crim R 55
- R v Carr (2002) 135 A Crim R 171
- R v D'amico [2006] NSWCCA 316
- R v Dibb [2003] NSWCCA 117
- R v Elyard [2006] NSWCCA 43
- R v Harrigan [2005] NSWCCA 449
- R v Higgins [2006] NSWCCA 326
- R v Jones (unreported, NSWCCA, 30 June 1994)
- R v Leonard & Fail [2006] NSWCCA 345
- R v LNT [2005] NSWCCA 307
- R v MA [2004] NSWCCA 92
- R v Marinellis [2006] NSWCCA 307
- R v MSS [2005] NSWCCA 227
- R v Pearce (1998) 103 A Crim R 372
- R v Pham & Ly (1991) 55 A Crim R 135
- R v Ponfield & Ors (1999) 48 NSWL