Citation: R v Peter James DAY [2010] NSWDC 40
Court: District Court of New South Wales
Date: 5 February 2010
Judge(s): Berman SC DCJ
Background
The offender, a man in his early twenties at the time of the relevant conduct, was sentenced for recruiting a 17-year-old (referred to as AC) to carry out criminal activity between May and August 2004. The offence arose from the offender's involvement with a woman he was in love with, who had complained of domestic violence at the hands of her husband. The offender devised a plan for AC to confront the husband at gunpoint, threaten him, and physically assault him in order to drive him out of the marriage and out of Australia.
AC, unknown to the offender, had already committed murder by the time he was recruited and never intended to carry out the plan. Instead, he strung the offender along over several months, extracting a total of $14,000 before the offender realised the plan would never be executed. The matter came to light when police, investigating the murder for which AC was later sentenced, intercepted phone calls revealing the discussions between the two men.
This sentencing followed a guilty plea entered only days before the hearing. The offence was closely connected to a separate offence, a break-and-enter in company with intent to intimidate the same husband, for which the offender had already been convicted and sentenced in earlier proceedings: R v Day [2009] NSWDC 359. The sentencing judge drew on findings of fact made in those earlier proceedings.
Legal Issues
- What was the appropriate sentence for an offence of recruiting a child to carry out criminal activity under the Crimes Act 1900, having regard to the maximum penalty of 10 years imprisonment?
- How did the objective seriousness of this particular offence compare to the paradigm case the legislature had in mind when enacting the offence?
- What weight should be given to the offender's subjective circumstances, including his age at the time, his assistance to authorities, his guilty plea, and his prospects of rehabilitation?
- How should the principle of totality apply, given the offender was already serving a sentence for a related offence?
Decision
Berman SC DCJ characterised this offence as sitting at the lower end of the scale for recruiting a child to criminal activity. Several factors reduced its objective seriousness: AC was barely a child within the meaning of the section, he was far from innocent (having already committed murder), he never intended to carry out the plan, and the offender was not a gang member nor acting in the manner the legislation was primarily designed to address. The judge described the provision as principally targeting adult offenders who prey on children and initiate them into gang culture, a scenario quite different from the present facts.
Despite these mitigating features, the court did not treat the offence as minor. The planned criminal activity was serious: it involved threatening a man with a pistol and striking him on the head. The offender persisted with the recruitment over months and paid a substantial sum, demonstrating genuine commitment to the plan. The offender also went on, after this scheme failed, to engage others to carry out a similar offence, which the court noted as relevant to the pattern of conduct.
On subjective matters, the court accepted that the offender expressed remorse and acknowledged the possibility of rehabilitation. However, the judge described the prospects of rehabilitation as not good, noting the offender had displayed obsessional behaviour. The court gave some weight to the offender's assistance to authorities and his guilty plea, though it noted that assistance already partially factored into the earlier sentence could not simply be double-counted. The principle of totality was also applied in calibrating the sentence against the existing custodial term.
Orders Made
- The offender was sentenced to a total term of 21 months imprisonment.
- Non-parole period: 5 months.
- Parole eligibility period: 16 months.
- Sentence to date from 20 November 2010.
- The offender to be released to parole on 19 April 2011.
Key Takeaways
- The District Court confirmed that the offence of recruiting a child to carry out criminal activity under the Crimes Act 1900 carries a maximum of 10 years imprisonment, reserved for the worst cases, and that placement on the sentencing range must be calibrated to the actual facts.
- A conviction for this offence does not require that the recruited person be an innocent or inexperienced child: AC's prior involvement in serious crime was relevant to objective seriousness but did not remove criminal liability.
- Where the recruited person never intended to carry out the criminal activity, that circumstance reduces, but does not eliminate, the culpability of the recruiter; the gravity of the intended offence remains a significant factor.
- Findings of fact made in related sentencing proceedings for a connected offence may, by agreement between the parties, be adopted in subsequent sentencing hearings without re-litigation.
- Assistance to authorities does not automatically generate the same discount in later proceedings: while it remains a relevant consideration, its weight diminishes where a discount was already applied for the same assistance in an earlier sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 351A (offence of recruiting children to engage in criminal activity)
- Crimes Amendment (Gang and Vehicle Related Offences) Bill (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Day [2009] NSWDC 359