Citation: R v TM [2009] NSWDC 111
Court: District Court of New South Wales
Date: 4 April 2009
Judge(s): Cogswell SC DCJ
Background
The offender, referred to as TM to protect his identity as a juvenile, was eighteen years old at the time of sentencing. In December 2008, when he was still seventeen, he participated with two others in an armed robbery of a bottle shop at a Cherrybrook shopping centre. The group wore balaclavas and dark hooded clothing to conceal their identities, and two of the three were armed with a machete and a pistol respectively.
During the robbery, the machete was held to a customer's neck and later pressed against the back of the shop attendant. One offender demanded the attendant open the safe while another threatened the victims with phrases including "Do you want blood? This is for real." The group took approximately $950 in cash and cigarettes before fleeing. A security guard who approached the scene was deterred when one offender pointed the pistol at him.
TM pleaded guilty to armed robbery with a dangerous weapon under s 92(2) of the Crimes Act 1900, which carries a maximum penalty of twenty-five years imprisonment. The sentencing hearing required the court to weigh a substantial array of aggravating factors against TM's youth, personal circumstances, and prospects for rehabilitation.
Legal Issues
- Whether TM should be dealt with according to law or under the more rehabilitative framework available for juveniles under the Children (Criminal Proceedings) Act 1987
- What weight to give the multiple aggravating features of the offence, including premeditation, offending in company, the vulnerability of one victim, and commission while on conditional liberty
- How to apply the Henry guideline judgment on armed robbery sentencing to a juvenile offender
- What mitigating weight should be given to TM's youth, disrupted background, Juvenile Justice reports, and letter of apology
- What the appropriate head sentence and non-parole period should be
Decision
The court determined that the offence was sufficiently serious to warrant dealing with TM according to law rather than under the more lenient juvenile dispositions available. The robbery was planned, involved multiple armed offenders, targeted a vulnerable victim in his workplace, and was committed only five months after TM had been given a good behaviour bond for a prior serious offence of aggravated entering a building with intent and in company.
Cogswell SC DCJ identified several aggravating factors: the use of dangerous weapons, the crime being committed in company, premeditation evidenced by the procurement of weapons and disguises, the vulnerability of the bottle shop attendant as a service industry worker, and TM's status on conditional liberty at the time. The court also noted a prior entry on TM's record for possessing a knife in a public place, which it considered significant given the present offence involved a machete.
Against these factors, the court weighed TM's youth, his difficult upbringing marked by parental drug and alcohol abuse and domestic violence, positive Juvenile Justice reports, a letter of genuine apology written to the victims, no drug or alcohol issues of his own, and a supportive family. The court accepted the guilty plea as a mitigating factor.
While acknowledging the Henry guideline for armed robbery, the court held that the guideline required modification in the context of a juvenile offender, particularly given the strong rehabilitation prospects that TM's circumstances indicated. A sentence of four and a half years imprisonment was imposed, comprising a two-year non-parole period and a balance of term of two and a half years. The entire term was ordered to be served as a juvenile offender.
Orders Made
- TM convicted of armed robbery with a dangerous weapon contrary to s 92(2) of the Crimes Act 1900
- Sentenced to a total term of four and a half years imprisonment, comprising:
- Non-parole period of 2 years (commencing 6 December 2008, expiring 5 December 2010)
- Balance of term of 2 years and 6 months (expiring 5 June 2013)
- Order made under s 19 of the Children (Criminal Proceedings) Act 1987 directing that the entire term be served as a juvenile offender
Key Takeaways
- The District Court confirmed that a juvenile offender charged with an adult offence may still be dealt with according to law where the objective seriousness of the offence, combined with aggravating features, warrants it.
- Armed robbery with a dangerous weapon under s 92(2) of the Crimes Act 1900 carries a maximum of twenty-five years imprisonment, placing it in the same legislative tier as manslaughter and sexual intercourse with a child under ten.
- Where an offence involves planning, multiple offenders, dangerous weapons, and is committed while the offender is on conditional liberty, those factors collectively attract significant weight in sentencing even for a young offender.
- The Henry guideline judgment on armed robbery sentencing is not automatically applied to juvenile offenders in its standard form; the court held it required modification to account for rehabilitation prospects, personal background, and the mitigating weight of youth.
- Positive Juvenile Justice reports, a genuine letter of apology to victims, absence of substance abuse issues, and a supportive family environment can all operate as meaningful mitigating factors in juvenile sentencing, even where the objective seriousness of the offence is high.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 92(2) (armed robbery with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g) (substantial emotional harm as aggravating factor) and s 21A(2)(l) (vulnerable victim as aggravating factor)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 18 and 19 (sentencing of juvenile offenders and service as juvenile offender)
Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on sentencing for armed robbery)