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District Court 22 January 2016

Jacob PLUM v R (No 2)

[2016] NSWDC 163

Theft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE JUVENILE OFFENDER AGED 15 DESTROY OR DAMAGE PROPERTY AGGRAVATED BREAK AND ENTER IN COMPANY

Citation: Jacob PLUM v R (No 2) [2016] NSWDC 163
Court: District Court of New South Wales
Date: 22 January 2016
Judge: Cogswell SC DCJ

Background

The appellant, a 15-year-old juvenile offender referred to by the pseudonym Jacob Plum, had been sentenced to a 12-month control order following convictions for destroying or damaging property and aggravated break and enter in company. He had been held at Orana Juvenile Justice Centre. His Honour had initially dealt with the matter on circuit in Orange on 26 November 2015 and adjourned the proceedings to allow for updated information to be gathered.

At the adjourned hearing, the appellant appeared by audiovisual link from Orana Juvenile Justice Centre, with his solicitor and Crown Prosecutor both appearing by telephone. The court received an updated Juvenile Justice report and heard further evidence from the appellant himself.

The appeal was brought under the Crimes (Appeal and Review) Act 2001, with the central question being whether the non-parole period of the existing sentence should be varied in light of the appellant's progress and changed circumstances.

  • Whether the sentence, and specifically the non-parole period, should be varied on appeal under s 20(2) of the Crimes (Appeal and Review) Act 2001
  • Whether the appellant's progress, diagnosed ADHD, improved attitude, and changed residential plans constituted sufficient grounds to justify varying the non-parole period and ordering immediate release on parole

Decision

His Honour accepted the updated Juvenile Justice report, which was described as positive. The report noted that the appellant had been prescribed Concerta and Melatonin to manage his ADHD, had participated in sports with good sportsmanship, and had demonstrated measurable improvement at school, including an ability to stay on task and maintain a consistent attitude. Justice Health was monitoring his condition, and multiple community support programs in Orange were identified as available to him upon release.

The appellant gave evidence again and made a strong impression on the court. His Honour observed that the appellant was exceptionally articulate and insightful for a 15-year-old, and that he demonstrated genuine understanding of why he needed to change, rather than simply repeating rehearsed intentions. His answers went beyond brief responses and reflected what appeared to be internalized insight rather than superficial compliance.

The court was also satisfied that practical arrangements were in place to support a successful period on parole. The appellant's plan had shifted from relocating to Walgett to remaining in Orange with his mother, where his school, doctor, and support services were all accessible. His Honour varied the sentence by shortening the non-parole period so that it expired on the day of the hearing, enabling immediate release on parole.

Orders Made

  • Under s 20(2) of the Crimes (Appeal and Review) Act 2001, the appeal against sentence was upheld and the sentence varied
  • The non-parole period was fixed to commence on 31 October 2015 and expire on 22 January 2016
  • The balance of the parole period was fixed to run from 23 January 2016 to 30 May 2016, with the overall sentence expiring on 30 October 2016
  • The appellant was ordered to be released on parole immediately, subject to the following conditions:
  • Be of good behaviour
  • Reside with his mother at her address in Orange
  • Notify the Orange Local Court of any change of address
  • Accept supervision by Juvenile Justice and comply with all reasonable recommendations and directions from Juvenile Justice officers

Key Takeaways

  • The District Court varied a juvenile offender's non-parole period under s 20(2) of the Crimes (Appeal and Review) Act 2001, ordering immediate release where updated evidence demonstrated meaningful progress and adequate community supports were in place.
  • A positive Juvenile Justice report, combined with credible and articulate evidence from the offender himself, provided the evidentiary foundation for the variation. The court treated the quality of the offender's testimony, not just the content of the report, as a relevant consideration.
  • Where a juvenile offender has a diagnosed condition such as ADHD, demonstrated improvement through medication and monitored treatment can be a material factor in a sentencing court's assessment of prospects on parole.
  • The court's parole conditions were deliberately broad, delegating the specific implementation of support referrals to Juvenile Justice supervision rather than listing each agency in the order itself. This reflected a practical approach to managing compliance for a juvenile offender.
  • Sentencing courts dealing with juvenile offenders may treat the availability and accessibility of community programs, medical treatment, schooling, and family support in a specific location as relevant to the suitability of immediate release on parole.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)

Cases cited: None identified in the judgment.