Citation: R v AD [2011] NSWDC 134
Court: District Court of New South Wales
Date: 11 March 2011
Judge: Berman SC DCJ
Background
The offender, an Aboriginal juvenile male who was four months short of his eighteenth birthday at the time of the offence, broke into the home of an 87-year-old woman on 2 August 2009. The victim, who had previously been a neighbour of the offender, was home alone when she discovered him crouching in her bedroom. When she confronted him, he pushed her in the chest, causing her to fall and fracture her right hip.
The victim lay helpless on the floor for over an hour until her son returned home. She underwent hip surgery carrying a risk of death, was transferred to rehabilitation and then to a nursing home as a high care patient, and was ultimately unable to return to live with her family. The offender stole her purse, wallet, and cards containing approximately $300 cash.
At the time of the offence, the offender was already subject to nine probation orders from the Children's Court for offences that included break, enter and steal. He had a significantly disadvantaged upbringing, including family separation, multiple bereavements, periods in foster care, and early exposure to drug use.
Legal Issues
- What sentence was appropriate for an offender who was a juvenile at the time of committing an aggravated break, enter and steal, given the objective seriousness of the offence and its severe consequences for the victim?
- What weight should be given to the offender's disadvantaged background, intellectual disability, and demonstrated rehabilitation while in custody?
- Whether the offender should receive a discount for his guilty plea, and whether special circumstances existed warranting a longer-than-standard parole period.
- Whether the offender should be directed to serve the sentence as a juvenile offender under the Children (Criminal Proceedings) Act.
Decision
Berman SC DCJ emphasised that even when sentencing a person who was a child at the time of the offence, the objective gravity of the conduct must not be lost. The offence had devastating consequences for the victim, whose life was permanently altered. She could no longer live with her family and described the loss of her home and independence as deeply distressing. The judge accepted that the offender did not intend to cause serious injury, as his purpose was to escape detection, but found that this did not significantly diminish the seriousness of the offending.
The court acknowledged the offender's profoundly difficult upbringing, including multiple family losses, periods in out-of-home care, and early drug use, as background factors relevant to sentence. A report from Dr Susan Hayes indicated the offender had an intellectual disability that may have contributed to his impulsive behaviour. The judge expressed reservations about the suggestion that intellectual disability explained the failure to assist the victim after she fell, observing that what was required in that moment was compassion rather than cognitive reasoning.
The court gave significant weight to the offender's rehabilitation while in custody. Since his arrest, the offender had been described as a role model detainee, had completed his School Certificate and TAFE courses, and had engaged with education for the first time. The judge found that special circumstances existed warranting a longer parole period, to allow ongoing supervision and support following release.
The offender received a 25 percent discount on the sentence that would otherwise have been imposed, reflecting the utilitarian value of his guilty plea. The judge also noted procedural concerns about the Department of Juvenile Justice's failure to report breaches of the nine probation orders to the relevant judicial officers, stating clearly that the Department should have no discretion to withhold such information from the courts.
Orders Made
- Non-parole period of two years, commencing 3 August 2009 and expiring 2 August 2011.
- Head sentence of four years imprisonment.
- Order under section 19 of the Children (Criminal Proceedings) Act that the whole term of imprisonment be served as a juvenile offender.
Key Takeaways
- Even when sentencing a juvenile offender, the District Court confirmed that the objective gravity of the offence must be weighed alongside considerations of rehabilitation and background. Focusing solely on the offender at the expense of the offence is not appropriate.
- A 25 percent discount applied where the offender had offered to plead guilty to a lesser charge at an earlier stage, the prosecution initially declined, and later accepted that plea. The offender was found to have provided the maximum utilitarian benefit available to him in the circumstances.
- Special circumstances were found to exist, warranting a ratio of parole to non-parole period that departed from the standard. An extended parole period was considered the most effective mechanism to consolidate the offender's rehabilitation progress upon release.
- The court expressed a clear view that the Department of Juvenile Justice should have no discretion to withhold from a judicial officer information that a probation order imposed by that officer has been breached. The judge stated that if such reporting could not be relied upon, courts would be less willing to make probation orders in the first place.
- Under section 19 of the Children (Criminal Proceedings) Act, the court ordered that the entire sentence be served as a juvenile offender, consistent with the offender's juvenile status at the time of the offence.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act (NSW), including section 6 and section 19
- Children Criminal Procedure Act (NSW)
Cases cited: None stated in the judgment.