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District Court 5 March 2007

Regina v MM

[2007] NSWDC 275

Theft & property
JUVENILE AT TIME OF OFFENCES FIRST TIME IN ADULT CUSTODY BREAK, ENTER AND STEAL (2) RECEIVING STOLEN PROPERTY LARCENY <$2,000 ON PAROLE AT TIME OF OFFENCES

Citation: Regina v MM [2007] NSWDC 275
Court: District Court of New South Wales
Date: 5 March 2007
Judge(s): Cogswell SC DCJ

Background

The offender, referred to as MM to protect his anonymity, was under 18 at the time he committed four offences across mid-2005: two counts of break, enter and steal (at Chippendale and Kirribilli), receiving stolen property, and larceny under $2,000. All offences were committed while MM was on parole for an earlier break, enter and steal. By the time of sentencing and appeal, MM was 19 years old.

MM had a substantial criminal history for a juvenile, including multiple prior break, enter and steal convictions dating back to 2001. His background was severely disadvantaged: both parents were heroin addicts who had since died, and MM himself had a serious heroin addiction. The court noted he showed little empathy for victims or genuine insight into his offending.

MM appealed to the District Court against sentences imposed by Magistrate Hannam at the Local Court on 11 January 2007. Three of the original seven convictions were no longer pursued on appeal, as the time for those had already been served. The appeal proceeded as a rehearing on the four remaining matters.

  • Whether the sentences imposed by the magistrate for the four offences were appropriate, having regard to the objective seriousness of the offending, the offender's criminal history, and his personal circumstances
  • Whether the control order terms and non-parole periods were excessive
  • Whether an order should be made under s 19(1) of the Children (Criminal Proceedings) Act 1987 directing that the balance of MM's sentence be served as a juvenile offender, rather than in adult custody

Decision

Cogswell SC DCJ conducted a full rehearing of the sentencing exercise. His Honour found that the offences were serious: the Kirribilli break, enter and steal alone involved $9,500 worth of stolen property. The offending was aggravated by MM being on conditional liberty at the time. One offence occurred just three days after his non-parole period expired on a prior sentence.

His Honour also weighed the personal deterrence element, noting that it was necessary to signal clearly to MM that breaking into homes to fund a drug habit is unacceptable, and that the public required protection from such conduct. Taking all factors together, his Honour independently reached the same conclusion as the magistrate: control orders of 20 months for the two break, enter and steal offences, with 12-month non-parole periods, were appropriate. The shorter concurrent orders for receiving and larceny were also confirmed.

The single point on which the appeal succeeded was different in character. MM was serving his sentence in an adult prison for the first time, and his Honour considered it appropriate, given MM's age of 19, to direct that the balance of the sentence be served in a juvenile facility. This outcome did not alter the length or structure of the sentences; it changed only where and how they were to be served.

His Honour also clarified that the jurisdictional limit on sentences a magistrate may impose under the Children (Criminal Proceedings) Act operates as a jurisdictional cap, not as a maximum penalty in the usual sentencing sense.

Orders Made

  • The sentences imposed by the Local Court were confirmed in their length and structure.
  • An order was made under s 19(1) of the Children (Criminal Proceedings) Act 1987 directing that the whole of the balance of the control order be served by MM as a juvenile offender.

Key Takeaways

  • The District Court confirmed that being on parole or conditional liberty at the time of offending is a significant aggravating factor in the sentencing of juvenile offenders, as it represents a breach of an opportunity for rehabilitation provided by the courts.
  • Under s 19(1) of the Children (Criminal Proceedings) Act 1987, a court dealing with a sentence appeal may direct that the balance of a sentence be served in a juvenile facility, even where the underlying sentences are otherwise upheld in full.
  • A seriously disadvantaged background, including the death of both parents to heroin addiction and the offender's own addiction, was acknowledged in the sentencing exercise but did not reduce the length of the control orders given the gravity and pattern of the offending.
  • The District Court treated the jurisdictional limit on sentences imposable by magistrates under the Children (Criminal Proceedings) Act as a cap on jurisdiction rather than a conventional sentencing maximum.
  • In dismissing the substantive challenge to sentence length, the court conducted an independent sentencing exercise on rehearing and arrived at the same result as the magistrate, reinforcing the appropriateness of the original orders.

Legislation and Cases Referenced

Legislation:
- Crimes (Local Courts) Appeal and Review Act 2001, s 11 (appeal to District Court)
- Children (Criminal Proceedings) Act 1987, s 33(1)(g) (control orders) and s 19(1) (direction to serve sentence as a juvenile)
- Crimes Act 1900

Cases:
- Regina v Doan (2000) 50 NSWLR 115