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District Court 16 July 2015

R v JT

[2015] NSWDC 203

Assault & violenceTheft & property
CRIMINAL LAW CROWN APPEAL ROBBERY IN COMPANY JOINT CRIMINAL ENTERPRISE VIOLENCE SIGNIFICANT INJURY TO VICTIMS.

Citation: R v JT [2015] NSWDC 203
Court: District Court of New South Wales
Date: 16 July 2015
Judge: Berman SC DCJ

Background

The prosecution appealed against sentences imposed by a magistrate on a young person, JT, who was 16 and a half years old at the time of the offences. JT had pleaded guilty to two offences of robbery in company arising from a violent incident in the early hours of the morning near Macquarie Fields Police Station. The incident was captured on CCTV footage.

JT was part of a group of five who encountered two young men walking to get food. What began as a request for cigarettes escalated when one of JT's co-offenders reached into a victim's pocket and demanded property. JT, who had briefly moved away, returned and participated actively in the violence that followed. The violence included kicking one unconscious victim in the head and striking the other victim on the head with a beer bottle.

The magistrate had imposed a control order of 14 months with a non-parole period of six months on one offence, and 150 hours of community service on the other. The prosecution contended those sentences failed to reflect the objective gravity of the conduct.

  • Whether the original sentences adequately reflected the objective seriousness of two offences of robbery in company involving significant violence
  • Whether custodial sentences were required for both offences when re-sentencing a juvenile offender
  • How the principles in s 6 of the Children (Criminal Proceedings) Act, including rehabilitation, should be balanced against the objective gravity of the offending conduct

Decision

Berman SC DCJ allowed the Crown appeal, finding the original sentences were manifestly inadequate given the extreme violence involved. The judge noted that CCTV footage showed the group using superior numbers to inflict serious injuries, including kicking an unconscious victim in the head and leaving both victims unconscious in a public road. He found this conduct warranted custodial sentences for both offences, not merely one.

The court acknowledged mitigating factors in JT's favour: the offending was unplanned and opportunistic, JT had no prior criminal history, he entered early pleas of guilty, he expressed genuine remorse upon seeing the CCTV footage, and Juvenile Justice assessed him as susceptible to negative peer influence rather than inherently violent. The judge also accepted good prospects of rehabilitation.

Nonetheless, the court found that even when sentencing a juvenile under s 6 of the Children (Criminal Proceedings) Act, the sentence must reflect the objective gravity of the conduct. Berman SC DCJ observed that basic awareness of the wrongfulness of kicking an unconscious person and striking someone with a bottle did not require adult maturity. The judge imposed identical sentences on both robbery counts, noting the level of violence was equivalent across both offences and the difference in injury outcomes was essentially accidental.

The court directed that JT serve the entirety of his non-parole period in juvenile detention, with supervision to follow upon release.

Orders Made

  • Crown appeal allowed
  • Sequence 1 (first robbery): control order with a non-parole period of nine months commencing 21 January 2015 and a head sentence of 15 months
  • Sequence 3 (second robbery): control order with a non-parole period of nine months commencing 21 April 2015 and a head sentence of 15 months
  • Overall sentence: non-parole period of one year from 21 January 2015; head sentence of one year and six months
  • Release to parole on 20 January 2016
  • Entirety of non-parole period to be served in juvenile detention
  • Supervision ordered upon release from custody

Key Takeaways

  • The District Court confirmed that even in juvenile sentencing, the objective gravity of offending conduct remains a fundamental consideration, though it operates with somewhat less force than in adult sentencing.
  • Under s 6 of the Children (Criminal Proceedings) Act, a court must have regard to rehabilitation principles when sentencing a young person, but those principles do not override the need for sentences that properly reflect the seriousness of violent offending.
  • Participation in a joint criminal enterprise renders an offender criminally responsible for violence committed by co-offenders in the course of that enterprise, even where the offender did not personally inflict every act of violence.
  • In dismissing the adequacy of the original sentences, the court found that the combination of superior numbers, serious injury, and targeting of unconscious victims demanded custodial orders on both counts, not a split of custodial and community service orders.
  • Good character, lack of prior criminal history, early pleas, and remorse all operated as mitigating factors, but were insufficient to displace the need for significant custodial terms where the violence was of this character.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act (NSW), s 6 (principles governing sentencing of young persons)

Cases cited: None identified in the judgment text or metadata.