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District Court 14 June 2007

R v Akok Lueth NOI

[2007] NSWDC 383

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING

Citation: R v Akok Lueth NOI [2007] NSWDC 383
Court: District Court of New South Wales
Date: 14 June 2007
Judge(s): Norrish QC DCJ

Background

The offender, aged sixteen years and ten months at the time of the offence, was sentenced for robbery using corporeal violence with wounding, committed in company at Parramatta on 20 June 2006. The offence carries a maximum penalty of 25 years imprisonment. A co-offender, approximately four years older, participated in the same robbery.

The victim was attacked late at night while walking home from work. The offender pointed a knife at the victim, while the co-offender brandished what appeared to be a small black pistol. The victim was cut on the hand during the robbery, and the offender made a further threat to stab him in the eye. The victim's mobile phone, wallet, and bank cards were taken, and $600 was later withdrawn from an ATM using the victim's PIN.

A secondary offence of dishonestly obtaining money by deception, relating to the ATM withdrawal, was included on a Form 1 and taken into account at sentencing. Neither the offender nor the co-offender had prior criminal convictions at the time of the offence.

  • What sentence was appropriate for a juvenile first offender convicted of a serious robbery involving a knife, wounding, and threats of further violence?
  • How should the court balance the objective seriousness of the offence against the offender's youth, lack of prior convictions, and prospects for rehabilitation?
  • Whether a suspended sentence with a good behaviour bond, rather than a term of full-time custody, was appropriate in the circumstances.

Decision

Norrish QC DCJ began by affirming the well-established principle that sentencing is not a mathematical exercise. Referring to high-authority decisions including Pearce v The Queen, Wong v The Queen, and Markarian v The Queen, his Honour emphasised that sentencing requires the weighing of competing and sometimes contradictory considerations, and that no single correct answer emerges from any rigid formula.

The court acknowledged the objective gravity of the offence. The robbery involved a knife, an apparent firearm, an actual wounding, and a deliberate threatening gesture toward the victim's eye. These features placed the offence at a serious level. The guideline judgment in Henry v The Queen concerning armed robbery was also considered, though the court noted that guideline judgments are indicative only and do not bind a sentencing judge to a particular outcome.

Despite the seriousness of the offending, the court placed significant weight on the offender's youth at the time. He was not yet seventeen when the offence occurred. His lack of prior convictions, his circumstances, and his prospects for rehabilitation were treated as important mitigating factors. The court determined that a fully suspended sentence, combined with structured supervision through the Department of Juvenile Justice, was the appropriate outcome.

The two-year term was suspended for its full duration under section 12 of the Crimes (Sentencing Procedure) Act 1999. The offender was released on conditions requiring supervision, compliance with reasonable directions from Juvenile Justice officers (including participation in alcohol, drug, and educational programs), and regular reporting. The court also flagged the possibility of referral to the Probation and Parole Service if the offender outgrew the Juvenile Justice framework.

Orders Made

  • A term of imprisonment of two years was imposed pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999.
  • Execution of the sentence was suspended for the full term of the sentence.
  • The offender was released from custody on condition he enter into a good behaviour bond for the term of the sentence, with the following conditions:
  • To appear before the court if called upon at any time during the bond period.
  • To be of good behaviour throughout the bond period.
  • To notify the District Court Registrar or Criminal Listing Directorate of any change of residential address.
  • To accept supervision and guidance from the Department of Juvenile Justice and obey all reasonable directions of its officers, particularly regarding alcohol and drug counselling and educational or work-related programs.
  • To report to the officer in charge of the Juvenile Justice Service at Blacktown within seven days of sentencing.
  • The Juvenile Justice Service was directed to provide the court with a progress report every six months during the bond period.
  • The court indicated a possible amendment to allow referral to the Probation and Parole Service if Juvenile Justice regarded that as appropriate in due course.

Key Takeaways

  • A conviction for robbery using corporeal violence with wounding in company carries a maximum penalty of 25 years imprisonment, reflecting its position among the most serious categories of robbery offence under the Crimes Act 1900.
  • Youth at the time of offending remains a weighty mitigating factor in NSW sentencing, capable of supporting a non-custodial outcome even where the objective circumstances of the offence are serious.
  • Guideline judgments, including the armed robbery guideline in Henry v The Queen, are indicative only. The District Court confirmed they constrain but do not eliminate the sentencing discretion, and do not operate as binding rules.
  • Under section 12 of the Crimes (Sentencing Procedure) Act 1999, a court may impose a term of imprisonment and then suspend its execution for the full term, releasing the offender on conditions including structured supervision.
  • Where a juvenile offender is supervised by the Department of Juvenile Justice, the sentencing court may build in a mechanism for transition to the Probation and Parole Service if the offender matures beyond the Juvenile Justice framework during the bond period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 12, and 21A
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW)

Cases:
- R v Way [2004] NSWCCA 131
- Pearce v The Queen (1998) 194 CLR 610
- Wong v The Queen (2001) 207 CLR 584
- Henry v The Queen (1999) 46 NSWLR 346
- R v Jurisic (1998) 45 NSWLR 209
- R v Lattouf (unrep, 1996, NSWCCA)
- Markarian v The Queen (2005) 79 ALJR 1048
- R v SDM [2001] NSWCCA 158
- R v Pham (1991) 55 ACR 12
- The Queen v AEM & Ors [2002] NSWCCA 58
- R v GDP (1991) 53 ACR 112
- R v DM [2005] NSWCCA 181
- DB v Regina [2007] NSWCCA 27
- Blackman and Walters [2001] NSWCCA 121
- Yardley v Betts (1979) 22 SASR 108
- Attorney General's Application No 1 (2002) 56 NSWLR 147