Citation: Regina v JJH (a young person) [2007] NSWDC 368
Court: District Court of New South Wales
Date: 7 December 2007
Judge(s): Cogswell SC DCJ
Background
The appellant, JJH, was a seventeen-year-old who had been sentenced in the Children's Court on two counts of armed robbery with an offensive weapon under s 97 of the Crimes Act 1900. Both offences involved knife-point robberies of service station attendants on consecutive nights in July 2007. The magistrate imposed concurrent control orders of twenty-one months each, comprising a fifteen-month minimum term and a six-month additional term.
JJH appealed against those sentences, seeking an adjustment to the ratio between the minimum and additional terms. His counsel submitted that significant rehabilitative progress made during custody, combined with his profound personal disadvantages, justified an earlier supervised release into the community.
The DPP did not oppose some adjustment to the ratio but urged the District Court to keep in mind both the seriousness of the offences and the significant aggravating factor that they were committed while JJH was on parole.
Legal Issues
- Whether the appeal against the sentences imposed by the Children's Court should be allowed under s 20(2)(a) of the Crimes (Appeal and Review) Act 2001
- Whether special circumstances existed to justify adjusting the ratio between the minimum and additional terms of the control orders
- How to balance the seriousness of the offences and the parole-breach aggravating factor against the legislative emphasis on rehabilitation for young offenders
- Whether the whole term of custody should be directed to be served in a juvenile detention centre, given that JJH would turn eighteen during the sentence
Decision
The District Court allowed the appeal and reduced the non-parole period from fifteen months to twelve months, while leaving the total control order of twenty-one months unchanged. The court accepted that special circumstances existed to justify the adjusted ratio, pointing to JJH's significant personal disadvantages, his efforts at rehabilitation in custody, and the legislative priority placed on rehabilitation for young offenders under the Children (Criminal Proceedings) Act 1987.
At the same time, the court held that a minimum term of less than twelve months would be inappropriately low. The two robberies were serious, terrifying for the victims, and had been committed while JJH was already on parole. That parole breach was treated as an aggravating factor, reflecting the court's view that offending while at liberty on the justice system's terms constitutes an abuse of that liberty.
The court was also impressed by concrete signs of progress: JJH had completed Year 10 in custody, undertaken a bricklaying course, engaged in drug and alcohol counselling, and seen a psychologist. The court expressed the view that a young person with his background, including a mother who was thirteen and a drug addict at his birth, parents who were both in custody, and drug use beginning at age eleven, must be given every reasonable opportunity to pursue rehabilitation.
Regarding the question of detention centre placement after JJH turned eighteen, the court directed, to the extent it had power to do so, that the entire custodial term be served in a juvenile detention centre.
Orders Made
- Appeal allowed; sentence of the Children's Court magistrate set aside
- Control order of twenty-one months imposed under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 for each offence (concurrent), commencing 31 October 2007
- Non-parole period of twelve months, from 31 October 2007 to 30 October 2008
- Additional (parole) term of nine months, from 31 October 2008 to 30 July 2009
- Supervised parole conditions imposed, including participation in programmes provided or recommended by the Department of Juvenile Justice, with specific emphasis on drug and alcohol rehabilitation
- Direction that the entire custodial term be served in a juvenile detention centre
Key Takeaways
- Offending while on parole constitutes an aggravating factor in sentencing because it represents an abuse of the liberty extended by the justice system, and the District Court treated it as such even in a juvenile matter.
- Under the Children (Criminal Proceedings) Act 1987, the legislative framework places priority on rehabilitation and education for young offenders, and this consideration can justify adjusting the ratio between minimum and additional terms where genuine progress is demonstrated.
- A minimum term of twelve months was considered the lowest appropriate period for two serious knife-point armed robberies committed on parole, even accounting for the offender's significant personal disadvantages.
- Severe background disadvantage, including exposure to parental drug use from early childhood, a parent's criminal history, and drug dependency beginning before adolescence, formed part of the sentencing court's assessment of what had driven the offending, without diminishing the gravity of the crimes themselves.
- Where a juvenile offender will turn eighteen during a sentence that commenced as a juvenile, the District Court directed that the custodial term be served entirely in a juvenile detention centre, though the court noted some uncertainty about the precise scope of its power to make that direction.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97 (armed robbery with an offensive weapon)
- Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(g) (control orders)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)(a) (appeal against sentence)
- Children (Detention Centres) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 50, 51
Cases cited: None identified in the judgment.