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District Court 21 August 2009

R v J.S.S

[2009] NSWDC 268

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING STATE OFFENCE AGGRAVATED ROBBERY AGED 23 AT TIME OF SENTENCING AGED UNDER 17 AT TIME OF OFFENDING

Citation: R v J.S.S [2009] NSWDC 268
Court: District Court of New South Wales
Date: 21 August 2009
Judge(s): Nicholson SC DCJ

Background

The offender, J.S.S., pleaded guilty to aggravated robbery committed on the night of 3 to 4 July 2003 at Eastgardens Shopping Centre in Pagewood. He was sixteen years and eleven months old at the time of the offence. By the time of sentencing in 2009, he was twenty-three.

The offence involved a sustained and serious physical assault on a female victim who was alone in a car park late at night. The offender punched her, forced her to the ground, struck her head against concrete, dragged her across the surface, and lay on top of her to suppress her screams. He stole her backpack containing identification documents, bank cards, a mobile phone, and $130 in cash.

Sentencing was complicated by the offender's custodial status. At an earlier hearing, the court had made bail orders under section 11 of the Crimes (Sentencing Procedure) Act, intending to test prospects for rehabilitation. It later emerged the offender was serving a balance of parole at the time those orders were made, raising a jurisdictional problem. Both parties agreed to proceed directly to sentence.

  • Whether the section 11 bail orders made at the earlier hearing remained valid, given the offender was serving a balance of parole at the time they were made.
  • How to assess the objective seriousness of the aggravated robbery for sentencing purposes.
  • What weight to give the offender's age at the time of offending (under 17), given he was being sentenced as an adult some six years later.
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio, in light of rehabilitation needs.

Decision

The court addressed the jurisdictional issue at the outset. Nicholson SC DCJ concluded that the section 11 bail orders were likely made without jurisdiction, as the offender was serving a balance of parole when they were granted. The court treated the orders as null and void, and in the alternative revoked them. Both parties agreed sentence should proceed.

On objective seriousness, the court characterised this as a particularly serious instance of aggravated robbery. The level of physical violence used, including multiple blows and the deliberate use of body weight to restrain the victim, was the primary aggravating feature. The court noted the victim was alone and at her most vulnerable. While the court could not establish the offence was planned in a sophisticated sense, it accepted the offender had likely gone to the area to commit a robbery and targeted a vulnerable person.

In assessing subjective matters, the court weighed the offender's age at the time of offending as a significant mitigating factor, even though he was being sentenced at law as an adult. The offender had a serious history of alcohol abuse beginning at sixteen, and alcohol was accepted as a contributing factor to the violence. Against that, the court noted strong family support, completion of alcohol and violence prevention programs in custody, apparent drug freedom, and no identified mental health concerns.

The court found special circumstances justifying a departure from the standard ratio between non-parole period and balance of term. The longer supervision period on parole was intended to support the offender's rehabilitation and provide a structured transition from custody.

Orders Made

  • Convicted of aggravated robbery of Gillian B, committed between 11:50 pm on 3 July 2003 and approximately 12:05 am on 4 July 2003 at Pagewood.
  • Sentenced to imprisonment for 2 years and 3 months.
  • Non-parole period of 15 months, commencing 27 October 2008 and expiring 26 January 2010.
  • Balance of term of 12 months, expiring 26 January 2011.
  • Parole condition imposed under section 52 of the Crimes (Sentencing Procedure) Act: the offender was not to consume any alcoholic beverages for the entire 12-month parole period.
  • Section 11 bail orders revoked.
  • A related charge (inflicting actual bodily harm with intent to have sexual intercourse) withdrawn by the Crown pursuant to section 166 of the Criminal Procedure Act, with leave granted.

Key Takeaways

  • Where section 11 bail orders are made while an offender is serving a balance of parole, the District Court found those orders were likely made without jurisdiction and treated them as null and void, with revocation ordered in the alternative.
  • An offender's age at the time of offending remains a relevant mitigating factor at sentencing even when the person is sentenced as an adult several years later and is significantly older at the time of sentence.
  • The court identified the sustained and targeted nature of physical violence against a lone, vulnerable victim at night as the feature elevating this robbery to a serious example of the offence, notwithstanding that no sophisticated planning was established.
  • Special circumstances were found on the basis of the offender's rehabilitation needs and the value of extended supervised parole, supporting a longer balance of term relative to the non-parole period.
  • Under section 52 of the Crimes (Sentencing Procedure) Act, the sentencing court imposed a specific parole condition prohibiting alcohol consumption for the full 12-month parole period, in addition to any conditions the Parole Board might separately impose.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), including sections 11 and 52
- Children (Criminal Procedure) Act (NSW)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), section 166

Cases:
- Hearne (2007) 124 ACrR 457