Citation: Police v JMP; Police v KJP; Police v BJW [2008] NSWLC 9
Court: Local Court of New South Wales (Children's Court jurisdiction)
Date: 20 May 2008
Judge(s): Magistrate P Dare SC
Background
On the evening of 10 May 2007 and into the early hours of 11 May, three juvenile offenders (identified by initials only) went on a sustained course of arson through the town of Young, NSW. After consuming significant amounts of alcohol, they set fire to council rubbish bins in the CBD, lit scrub fires behind the Young Museum, and then destroyed the kindergarten classroom block at Young Primary School by fire. The school block was entirely gutted, causing disruption to the school community and requiring a significant emergency services response.
The three young persons were originally charged with more serious offences, including aggravated break and enter. Those charges were withdrawn following negotiations, and fresh charges were laid under section 195(1)(b) of the Crimes Act 1900 (destruction of property by fire). Pleas of guilty were entered on 18 April 2008, approximately eleven months after the offending and only after a defended hearing had already been listed, briefs served, and fourteen prosecution witnesses identified.
The matter was determined in the Children's Court, which is subject to a sentencing maximum of two years' control under the Children (Criminal Proceedings) Act 1987. The Magistrate delivered detailed remarks on sentence addressing several contested aspects of the sentencing exercise.
Legal Issues
- Whether the guilty pleas were "early" and what utilitarian discount, if any, they attracted
- How to weigh objective seriousness against subjective considerations for juvenile offenders
- Who constitutes "the victim" for sentencing purposes in offences of this kind
- What role "community outrage" may legitimately play in sentencing
- Whether the sentences should take the form of control orders (detention), and how the statutory sentencing framework under the Children (Criminal Proceedings) Act 1987 applied
- Whether convictions should be recorded
Decision
Guilty pleas: not "early" and limited utilitarian value. The Magistrate found that the pleas were entered only after pleas of not guilty had been entered to the original charges, a full hearing had been listed, fourteen witnesses had been briefed, and the charges were restructured through negotiation. The pleas were not early in any meaningful sense. The Magistrate acknowledged that some discount remained appropriate, but characterised the utilitarian value as limited.
Objective seriousness and the juvenile sentencing balance. Consistent with established authority, the Magistrate confirmed that, even for young offenders, subjective circumstances cannot be permitted to overwhelm objective seriousness. The total destruction of a primary school classroom block was treated as the gravest of the charges. The Magistrate assessed the raw criminality as warranting a notional total sentence of 22 months, reduced to 16 months after allowing for the guilty plea and a finding of special circumstances, and then expressed in the form of a 16-month control order (11-month non-parole period plus 5-month balance).
Who is the victim, and community outrage. The Magistrate examined the question of who properly counts as the victim in cases of property destruction affecting a school community. The remarks also addressed community outrage as a sentencing consideration, treating it with care and noting its limited and carefully bounded role in the sentencing calculus.
Custodial orders and no recorded convictions. The Magistrate was satisfied that, given the objective seriousness of the school fire, no alternative to a control order was appropriate for each of the three offenders on that charge. For the lesser charges (the bin fires and the scrub fire), no conviction was recorded and the matters were disposed of by caution or good behaviour bond. Pre-sentence custody was accounted for by backdating each control order.
Orders Made
JMP (school fire charge): Committed to the control of the Minister administering the Children (Detention Centres) Act 1987 for a non-parole period of 11 months (commencing 13 May 2008, expiring 12 April 2009) and a balance of term of 5 months (expiring 12 September 2009). Total sentence: 16 months. Eligible for parole on 13 April 2009.
BJW (school fire charge): Same total sentence structure. Non-parole period of 11 months commencing 9 May 2008, expiring 8 April 2009; balance of 5 months expiring 8 September 2009. Eligible for parole on 9 April 2009.
KJP (school fire charge): Same total sentence structure. Non-parole period of 11 months commencing 24 April 2008, expiring 23 March 2009; balance of 5 months expiring 23 August 2009. Eligible for parole on 23 March 2009.
Lesser charges (all three offenders):
- Destruction of fixed council bins (JMP, two charges): offence proved, no conviction recorded, charges dismissed with caution.
- Destruction of bush scrub and tree (KJP and BJW): offence proved, no conviction recorded, charges dismissed with caution.
- Destruction of three wheelie bins (all three): offence proved, no conviction recorded, each released on an 18-month good behaviour bond with conditions including supervision by the Department of Juvenile Justice, drug and alcohol counselling, education or employment engagement, and prohibition on alcohol and non-prescribed drugs.
All control order releases to parole were subject to conditions including supervision by the Department of Juvenile Justice, compliance with directions regarding drug and alcohol counselling, education or employment, restrictions on association with nominated persons, restrictions on attendance at nominated premises, and prohibition on alcohol and non-prescribed drug use.
Key Takeaways
- Guilty pleas entered only after a defended hearing is listed, witnesses briefed, and charges restructured through negotiation are unlikely to be treated as "early" pleas, and the utilitarian discount available will reflect that timing.
- Even in the Children's Court, where rehabilitation carries heightened weight, objective seriousness remains a central sentencing consideration that subjective factors cannot simply displace.
- A sentencing court must approach "community outrage" with care; the Magistrate's remarks signal that it is a factor of limited and bounded relevance rather than a freestanding justification for increased punishment.
- Under the Children (Criminal Proceedings) Act 1987, the maximum available custodial sentence is two years' control. The Magistrate applied a structured approach, identifying the notional sentence before applying reductions for the plea and special circumstances, demonstrating the same sentencing methodology used in adult proceedings.
- No convictions were recorded against any of the three offenders on any of the charges, including the most serious. This outcome reflects the Children's Court's emphasis on the long-term interests of young offenders, even where the objective conduct is grave enough to warrant detention.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 195(1)(b) (destruction of property by fire, maximum 10 years on indictment)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 14, 33(1)(a), 33(1)(b), 33(1)(g), 33(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Key cases cited:
- Cameron v The Queen (2002) 209 CLR 339
- Markarian v The Queen (2005) HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Siganto v The Queen (1998) 194 CLR 656
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Simpson (2001) 53 NSWLR 704
- Regina v AEM Snr, KEM and MM [2002] NSWCCA 58
- Regina v KT [2008] NSWCCA
- Regina v Barlow [2008] NSWCCA 98
- Regina v GDP (1991) 53 A Crim R 112
- Regina v Dodd (1991) 57 A Crim R 349
- Regina v Fidow [2004] NSWCCA 172
- Leese v Regina [2007] NSWCCA 108
- Regina v