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Local Court 19 May 2008

Police v OWP

[2008] NSWLC 8

Theft & property
SENTENCE JUVENILE OFFENDER MALICIOUS DAMAGE BY FIRE TO SCHOOL SUBSTANTIAL DAMAGE FULL TIME CUSTODIAL SENTENCE CALLED FOR

Citation: Police v OWP [2008] NSWLC 8
Court: Children's Court of New South Wales (Wagga Wagga)
Date: 19 May 2008
Judge: Magistrate G Lerve

Background

A juvenile offender pleaded guilty to breaking and entering St Joseph's Primary School in Wagga Wagga and maliciously damaging it by fire, contrary to section 112(1) of the Crimes Act 1900. The offence occurred in the early hours of 27 January 2008. The offender broke into a classroom, ransacked it, spread paint to assist ignition, and deliberately lit a fire using a cigarette lighter.

The resulting fire engulfed approximately 70 per cent of the school buildings, destroying multiple classrooms, the administration and principal's offices, hallways, and the kindergarten. The total assessed damage was approximately $2.24 million plus GST. The offender stated he did not intend to burn down the entire school, though he acknowledged when questioned that significant fire spread was a real possibility.

The matter was heard summarily in the Children's Court. A juvenile justice background report was prepared, and counsel for the offender made submissions on sentence. The prosecution initially raised the possibility of committing the matter to the District Court for sentence but did not vigorously pursue that course.

  • Whether the Children's Court should retain jurisdiction to sentence the offender, given the scale of the damage, or commit the matter to the District Court
  • What weight should be given to the objective seriousness of the offending against the subjective circumstances of a juvenile offender with no prior record
  • Whether a suspended sentence was appropriate, or whether the circumstances required a full-time custodial sentence (a Control Order under the Children (Criminal Proceedings) Act 1987)
  • Whether "special circumstances" existed justifying a variation to the standard non-parole period ratio
  • What discount applied for the early guilty plea

Decision

Jurisdiction: Magistrate Lerve acknowledged some misgivings but ultimately retained jurisdiction to deal with the matter. The application to commit the matter to the District Court was not pressed by the prosecution and counsel for the offender was unprepared for any such course, having come to court ready to make submissions on sentence. In those circumstances, the Magistrate proceeded to sentence.

Objective seriousness: The Magistrate assessed the offending as towards the upper end of the range of seriousness, though not in the "worst category." The fire was deliberately lit, but the Magistrate accepted there was limited planning and that the offender did not intend the full extent of the destruction that resulted. The scale of the damage, exceeding $2.24 million, was nonetheless a significant aggravating feature.

Suspension of sentence: The Magistrate declined to suspend the Control Order. Drawing on the Court of Criminal Appeal decisions in R v Zamagias and R v Barlow, the Magistrate acknowledged that a suspended sentence can serve rehabilitative purposes, but concluded that the objective gravity of the offence required an element of both general and specific deterrence. A fully suspended sentence was therefore not appropriate on these facts.

Discount and special circumstances: The offender received the full 25 per cent utilitarian discount for an early guilty plea, entered on the first occasion the matter appeared in court. The Magistrate found special circumstances existed, given the offender's age and lack of prior record, and slightly varied the statutory ratio between the non-parole period and the balance of term accordingly.

Orders Made

  • The offender was convicted of breaking and entering with malicious damage by fire, contrary to section 112(1) of the Crimes Act 1900
  • A Control Order was imposed, placing the offender under the control of the Minister for a total term of 16 months
  • Non-parole period: 11 months, commencing 19 May 2008 and expiring 18 April 2009
  • Balance of term: 5 months, commencing 19 April 2009 and expiring 18 October 2009

Key Takeaways

  • Even where a juvenile offender has no prior record and subjective circumstances are favourable, the objective seriousness of deliberately lighting a fire causing millions of dollars in damage can make a full-time custodial sentence unavoidable.
  • A guilty plea entered on the first court date attracts the full 25 per cent utilitarian discount under the sentencing framework applicable in the Children's Court.
  • Where a prosecution does not vigorously pursue committal to a higher court for sentence, and defence counsel is unprepared for such a course, the Children's Court may retain jurisdiction to sentence even where the damage is unusually large.
  • Under the principles affirmed in R v Zamagias and R v Barlow, a suspended sentence remains available in principle for serious offences where rehabilitation outweighs deterrence and denunciation. However, those principles did not assist the offender here given the scale and deliberateness of the damage.
  • Special circumstances justified a modest variation to the statutory non-parole ratio, reflecting the offender's youth and lack of criminal history, even where a custodial term was otherwise required.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), including section 31(1)-(3)
- Crimes Act 1900 (NSW), section 112(1)

Cases:
- R v AN [2005] NSWCCA 239
- R v Barlow [2008] NSWCCA 96
- R v Dodd (1991) 57 A Crim R 349
- R v KT [2008] NSWCCA 51
- R v Leese [2007] NSWCCA 108
- R v LNT [2005] NSWCCA 307
- R v Mazur (2000) 113 A Crim R 67
- R v MSS [2005] NSWCCA 227
- R v WKR (1993) 32 NSWLR 447
- R v Zamagias [2002] NSWCCA 17