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Supreme Court 26 May 2016

RC v Director of Public Prosecutions

[2016] NSWSC 665

Theft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE MULTIPLE PROPERTY OFFENCES NEED FOR SUPERVISION LENGTH OF NON PAROLE PERIOD

Citation: RC v Director of Public Prosecutions [2016] NSWSC 665
Court: Supreme Court of New South Wales
Date: 26 May 2016
Judge: Davies J

Background

The appellant was a young person of Aboriginal heritage who pleaded guilty on 14 September 2015 to 16 offences before the President of the Children's Court of NSW. The offences included multiple counts of break, enter and steal, break and enter with intent to steal, one count of aggravated break and enter and steal (committed while occupants were present), and resisting a police officer in the execution of duty. The offences were committed across several suburbs in south-western Sydney between January 2012 and July 2015.

The Children's Court imposed an aggregate control order (the youth justice equivalent of a custodial sentence) of two years, with a non-parole period of 14 months. The young person appealed against that sentence to the Supreme Court pursuant to section 22A of the Children's Court Act 1987 (NSW). The Crown did not oppose the grant of leave to appeal out of time.

Evidence before the Supreme Court included a Juvenile Justice report and a forensic psychology assessment. Those reports identified that the young person had intellectual and emotional deficits, an ADHD diagnosis, a history of peer influence, cannabis use, and had disengaged from several support programs after initially engaging with them.

  • Whether the aggregate control order of two years with a 14-month non-parole period was appropriate given the number and nature of the offences
  • Whether the earliest offences in the sequence warranted a control order at all, or whether a less restrictive order such as a good behaviour bond was more appropriate
  • How pre-sentence custody should be calculated and allocated across the offences
  • What non-parole period was appropriate having regard to the young person's personal circumstances, including his intellectual deficits, need for supervision, and the need for rehabilitation

Decision

Davies J found that the original sentencing involved error, particularly in treating the earliest offences, those committed in January 2012 and in May and September 2013, as warranting a control order. His Honour concluded that a good behaviour bond with Juvenile Justice supervision was the appropriate response to those four offences, given the young person's circumstances at the time they were committed.

For the remaining offences, Davies J resentenced the young person to an aggregate control order of one year and ten months, reduced from the original two years. His Honour also reduced the non-parole period to 12 months from 14 months, reflecting the need to balance the seriousness of the offending (including offences committed while on parole or other conditional liberty) against the young person's age, his diagnosed intellectual and emotional difficulties, and the rehabilitative purpose of youth sentencing.

The control order was backdated to 16 July 2015 to account for pre-sentence custody. Davies J calculated the backdating by crediting the full 38 days of the first pre-sentence custody period (referable solely to the aggravated break and enter offence) and half of the 45-day second period (the other half being attributable to revoked parole), arriving at a total of 60 days.

The good behaviour bond imposed for the four earliest offences included a condition, beyond the statutory conditions under section 33(1A) of the Children (Criminal Proceedings) Act 1987 (NSW), requiring the young person to accept supervision by Juvenile Justice and any other organisation or person directed by Juvenile Justice. This supervisory condition reflected the court's assessment that ongoing external oversight was essential given the young person's history of disengaging from support.

Orders Made

  • Leave to appeal extended to 14 December 2015
  • Sentence imposed by the Children's Court on 14 September 2015 set aside
  • For offences H 57849712 Sequences 5 to 13, H 58915826 Sequences 1 and 2, H 58712865 Sequence 1, and H 59456116 Sequence 4: aggregate control order of 1 year and 10 months, commencing 16 July 2015 and expiring 15 May 2017, with a non-parole period of 12 months expiring 15 July 2016
  • For offences H 57849712 Sequences 1 to 4: good behaviour bond of 2 years, with conditions including acceptance of Juvenile Justice supervision
  • Indicative sentences: one year for each of H 57849712 Sequences 5 to 13 and H 58915826 Sequences 1 and 2; one year and three months for H 58712865 Sequence 1; and three months for H 59456116 Sequence 4

Key Takeaways

  • Not all offences in a sequence necessarily warrant a control order; the Supreme Court found that the earliest offences in this matter were more appropriately dealt with by a supervised good behaviour bond, even where later offences in the same matter justified custody.
  • A young person's intellectual and emotional deficits, including an ADHD diagnosis and susceptibility to peer influence, are relevant mitigating considerations in youth sentencing, even where offending is serious, extensive, and includes conduct on conditional liberty.
  • Pre-sentence custody spanning multiple matters requires careful apportionment; Davies J applied a proportional division where one custody period was only partly referable to the offences under appeal.
  • Under the Children (Criminal Proceedings) Act 1987 (NSW), a good behaviour bond can be structured with supervisory conditions beyond the statutory defaults, enabling the court to tailor ongoing oversight to a young person's specific rehabilitation needs.
  • Reducing the non-parole period alongside the aggregate term reflects the principle that, for young offenders, the sentence must accommodate rehabilitation and reintegration, not merely reflect the cumulative weight of the offending.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), including s 33(1A)
- Children's Court Act 1987 (NSW), s 22A
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes Act 1900 (NSW), ss 58, 112(1)(a), 112(2), 113(1), 195(1)(a)

Cases:
- AI v R; R v SB and AI [2011] NSWCCA 95
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571