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Supreme Court 3 March 2006

R v DW; R v KW

[2006] NSWSC 118

Assault & violencePublic order & justice offences
SENTENCE AFFRAY PLEAS OF GUILTY YOUNG OFFENDERS

Citation: R v DW; R v KW [2006] NSWSC 118
Court: Supreme Court of New South Wales (Common Law Division)
Date: 3 March 2006
Judge(s): Buddin J

Background

Two juvenile offenders, referred to as DW and KW, were sentenced in the Supreme Court following guilty pleas to affray arising from a violent incident in Wilcannia on 28 March 2004. The incident, involving a broader group conflict between two families, culminated in the death of a man on 4 April 2004. Three other participants pleaded guilty to manslaughter; DW and KW were sentenced only for their more limited role.

The two offenders had originally been charged with murder. Those charges were later no-billed, and after a trial had commenced, the Crown presented a fresh indictment to which DW and KW each pleaded guilty to affray under s 93C of the Crimes Act 1900. The agreed facts established that their conduct consisted of yelling abuse and behaving in a menacing and threatening manner towards the deceased after he had collapsed, rather than any direct physical assault.

Both offenders were Aboriginal youths from Wilcannia. DW was 17 at the time of the offence, and KW was 16. Each had spent more than 14 months in pre-sentence custody before being granted bail, after which both had relocated to Albury and complied with their bail conditions.

  • Whether the offence of affray, as committed by these juvenile offenders, needed to be dealt with "according to law" under the Children (Criminal Proceedings) Act 1987 (NSW), or whether the court could exercise its discretion to deal with the matter more leniently
  • What sentence was appropriate given the offenders' age, background, time already spent in custody, and the specific nature of their conduct

Decision

Buddin J first considered the applicable sentencing framework under the Children (Criminal Proceedings) Act 1987 (NSW). The Act distinguishes between offences that must be dealt with "according to law" (which triggers the full range of adult penalties) and those that need not be. His Honour concluded that affray, as charged in this case, did not require treatment "according to law," and that the discretion under s 18 of the Act applied. This was common ground between the parties.

Because the offence did not require full adult sentencing, His Honour noted that had the offenders been charged with affray at the outset, the matter would ordinarily have been dealt with in the Children's Court, where the maximum penalty is a control order of two years. This contextual observation informed the approach to the discretionary sentencing exercise.

His Honour identified several significant mitigating factors: the guilty pleas (entered at the first reasonable opportunity), the offenders' youth, their largely insignificant criminal records, and strong prospects of rehabilitation. Both had maintained employment or sought it while on bail, maintained good family relationships, and complied fully with bail conditions. His Honour also characterised their conduct as a spontaneous reaction to a confrontational situation rather than premeditated.

The more than 14 months each offender had already spent in pre-sentence custody weighed heavily in the sentencing outcome. Taking all these factors into account, Buddin J exercised the discretion under s 33(1)(b) of the Act to release both offenders on good behaviour bonds rather than impose any further period of detention.

Orders Made

  • Both DW and KW convicted of affray
  • Each offender released pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW) on the following conditions:
  • Enter into a good behaviour bond for a period of nine months
  • Appear before the Court if called upon to do so at any time during the term of the bond

Key Takeaways

  • Under the Children (Criminal Proceedings) Act 1987 (NSW), not all serious criminal offences committed by children must be dealt with "according to law"; where the offence falls outside that requirement, a more flexible sentencing discretion applies.
  • Affray under s 93C of the Crimes Act 1900 carries a maximum of 10 years imprisonment on indictment, but the Supreme Court confirmed it can, in appropriate circumstances involving juvenile offenders, be dealt with under the Children's Court sentencing framework.
  • Substantial pre-sentence custody, combined with demonstrated rehabilitation and compliance with bail, can weigh sufficiently in a young offender's favour to produce a non-custodial outcome even for offences arising from serious incidents.
  • The sentencing court drew a firm distinction between the conduct of DW and KW (threatening behaviour after the victim had collapsed) and the more serious conduct of those convicted of manslaughter, ensuring the offenders were punished only for the offences to which they had pleaded guilty.
  • In applying s 18 and s 33 of the Children (Criminal Proceedings) Act, the court had regard to the objects set out in s 6 of that Act, including rehabilitation and the significance of age at the time of the offence.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 16, 17, 18, 25, 33
- Crimes Act 1900 (NSW), s 93C (affray)

Cases:
- R v WKR (1993) 32 NSWLR 447