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District Court 23 November 2007

R v Plum

[2007] NSWDC 365

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE JUVENILE OFFENDER ELDERLY FEMALE VICTIM PARITY WITH SENTENCE OF CO OFFENDER

Citation: R v Plum [2007] NSWDC 365
Court: District Court of New South Wales
Date: 23 November 2007
Judge(s): Cogswell SC DCJ

Background

The offender, referred to by the pseudonym "Mr Plum," was sentenced for aggravated break and enter and commit a serious indictable offence (robbery), contrary to s 112(2) of the Crimes Act 1900. The offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The aggravation arose from Mr Plum carrying a golf club as an offensive weapon at the time of the offence.

The offence was committed on 30 December 2005, when Mr Plum was 17 years old. He and two co-offenders, including a person referred to as "Mr Wheat," forced their way into the home of a 73-year-old woman who was resting alone. One offender pointed what appeared to be a firearm at the victim, while Mr Plum and Mr Wheat each held golf clubs. The victim was confronted in her lounge room and handed over $300 before the offenders fled.

Because Mr Plum was under 18 at the time of the offence, pseudonyms were adopted for him and others involved, and the court was required to consider whether to sentence him under the ordinary criminal law or within the framework available to the Children's Court under the Children (Criminal Proceedings) Act 1987.

  • Whether Mr Plum should be sentenced according to the ordinary adult criminal law or dealt with under the sentencing range available to the Children's Court pursuant to s 18 of the Children (Criminal Proceedings) Act 1987
  • How to balance the serious nature of the offence against Mr Plum's prospects of rehabilitation as a young offender
  • What weight to give the need for specific deterrence, given Mr Plum's prior criminal record compared to his co-offender Mr Wheat
  • Whether the sentence imposed should maintain parity with the sentence received by Mr Wheat

Decision

His Honour resolved to deal with Mr Plum under the Children's Court sentencing framework rather than as an adult, despite the gravity of the offence. The court weighed the seriousness of the crime, described as shocking and terrifying for the elderly victim, against evidence of genuine rehabilitation prospects supported by a stable family environment, consistent employment, and a committed relationship.

The Juvenile Justice report noted that the circumstances driving Mr Plum's offending in 2005, including a deteriorating relationship with his mother, financial insecurity, and a period of homelessness, no longer existed. His grandfather provided stable accommodation and employment, and his girlfriend and father were described as supportive. A Juvenile Justice officer gave evidence expressing optimism about Mr Plum's prospects, recommending a brief period of custody in a Juvenile Detention Centre followed by supervised parole.

The court distinguished Mr Plum's position from that of co-offender Mr Wheat in three respects: Mr Plum pleaded guilty slightly later, he made no offer to assist authorities, and he had a prior record for break, enter and steal. These factors made specific deterrence a more significant consideration for Mr Plum than it had been for Mr Wheat. Mr Wheat had ultimately received a control order with a 12-month non-parole period after a successful appeal to the District Court.

Taking all factors into account, the court imposed a control order of two years with a non-parole period of 18 months, to be served in a Juvenile Detention Centre. The additional term allowed for parole supervision addressing peer associations, impulse control, decision-making, and anger management.

Orders Made

  • Control order of two years, with a non-parole period of 18 months commencing 23 November 2007
  • Release on parole on 22 May 2009 for the remaining six-month additional term
  • Custody to be served in a Juvenile Detention Centre
  • Parole supervision by Community Offender Services at Liverpool
  • Report to the Liverpool office of Community Offender Services within seven days of release on parole
  • Compliance with all reasonable recommendations from Community Offender Services concerning peer associations, impulse control, decision-making, and anger management

Key Takeaways

  • The District Court confirmed that the sentencing of a juvenile offender under the Children (Criminal Proceedings) Act 1987 requires explicit consideration of whether the offence's seriousness outweighs the benefits of the Children's Court sentencing range, with the court here deciding rehabilitation prospects justified the juvenile framework despite a very serious offence.
  • Even where an offence is grave enough to attract a standard non-parole period of five years under the adult regime, a juvenile offender's circumstances, including stable family support, employment, and changed personal environment, can justify a substantially more lenient outcome.
  • Parity with a co-offender's sentence remains a relevant consideration in juvenile sentencing, but differences in timing of plea, cooperation with authorities, and prior criminal history can justify meaningful departures from that parity.
  • A prior record, even one for which the offender was not charged until after the index offence, increases the weight given to specific deterrence in juvenile sentencing.
  • Under s 18 of the Children (Criminal Proceedings) Act 1987, a court dealing with a juvenile offender must weigh the nature and circumstances of the offence alongside rehabilitative considerations; the decision does not automatically favour one over the other, and each case turns on its specific facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 18, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 50

Cases
- The Queen v MSS [2005] NSWCCA 227