Citation: R v SM [2018] NSWDC 4
Court: District Court of New South Wales
Date: 22 January 2018
Judge: Berman SC DCJ
Background
The offender, SM, was a 17-year-old at the time of the offences. Over approximately 16 hours in July 2016, she participated with a male co-offender in taking and detaining two victims by force, during which both victims were subjected to sustained violence, threats, and terror. The offending included punching victims, threatening them with a knife and methylated spirits, binding one victim with duct tape, and making demands for money. The ordeal ended when one victim jumped from a moving vehicle to escape.
SM was arrested shortly after the offending and voluntarily made admissions to police. She was held in custody from shortly after the offences, during which time she made significant progress in her behaviour and rehabilitation.
SM pleaded guilty after committal to the District Court. She also signed an undertaking to give evidence against her co-offender. The sentencing proceedings concerned the principal charge of taking and detaining a person while in company with intent to obtain a financial advantage, where actual bodily harm was occasioned, which carries a maximum penalty of 25 years imprisonment. A second, identical offence involving the other victim was placed on a Form 1 (meaning it was taken into account in the one sentence rather than attracting a separate penalty).
Legal Issues
- What sentence was appropriate for a juvenile offender who committed serious offences involving violence and deprivation of liberty, given her youth, personal background, and rehabilitation while in custody?
- What discount, if any, applied to reflect the guilty plea and the offer to give evidence against the co-offender?
- Whether SM should serve her sentence in a juvenile detention centre rather than an adult correctional centre, under section 19 of the Children (Criminal Proceedings) Act.
- Whether special circumstances existed to justify varying the standard statutory ratio between the non-parole period and the head sentence.
Decision
Berman SC DCJ accepted that a custodial sentence was necessary given the objective seriousness of the offending, which involved sustained violence, threats with weapons, deprivation of liberty, and the psychological terror inflicted on both victims. The judge emphasised that SM was not a bystander: she struck one victim, threatened both victims with a knife and with burning, controlled one victim's movements inside her home, and independently threatened to torture and terrorise. The offending warranted a significant custodial response.
At the same time, the court gave substantial weight to SM's youth and personal circumstances. SM had a disrupted and traumatic childhood, suffered from post-traumatic stress disorder and depression, and was found to be more immature than an average 17-year-old. The court noted that general deterrence and retribution carry reduced weight when sentencing juveniles, and that rehabilitation must be a primary consideration. SM's progress in custody was described as remarkable.
The court accepted that some discount was warranted for the guilty plea and for SM's undertaking to give evidence against her co-offender, though the precise percentage was not specified. The judge directed that the sentence be served in a juvenile detention centre under section 19 of the Children (Criminal Proceedings) Act, noting that SM was vulnerable due to her mental health conditions and that transfer to an adult correctional centre would carry an unacceptable risk of psychological harm and potential danger associated with her status as a Crown witness.
Special circumstances were found to exist, justifying a departure from the standard statutory ratio between the non-parole period and the head sentence. The court linked this finding to the need for a longer period of supervised parole to address SM's depression, post-traumatic stress disorder, and drug use, with the goal of reducing the risk of reoffending.
Orders Made
- Non-parole period of one year and nine months imposed, with a head sentence of three years and six months imprisonment.
- SM eligible for release to parole on 14 April 2018.
- Order made under section 19 of the Children (Criminal Proceedings) Act directing that the sentence be served in a juvenile detention centre.
- Finding of special circumstances recorded, varying the statutory ratio between non-parole period and head sentence.
- Second offence (involving the second victim) taken into account on a Form 1.
Key Takeaways
- The District Court confirmed that even for juvenile offenders charged with very serious violence, a custodial sentence may be unavoidable, but the principles of youth justice, including reduced weight for general deterrence and retribution, and greater emphasis on rehabilitation, still significantly shape the outcome.
- A finding of special circumstances justifying a variation from the standard non-parole ratio need not reflect leniency; the District Court here made the finding specifically to extend the supervisory parole period and reduce the risk of reoffending.
- Under section 19 of the Children (Criminal Proceedings) Act, a court may direct that a sentence be served in a juvenile detention centre where the offender remains under the relevant age threshold and special circumstances, such as vulnerability, mental health conditions, or risk of harm in an adult facility, are established.
- An offender's voluntary admissions to police and undertaking to give evidence against a co-offender are relevant mitigating factors at sentence, even where that undertaking does not ultimately result in a co-offender pleading not guilty or proceeding to trial.
- Participation as a co-offender does not diminish individual culpability where the evidence shows the offender independently threatened, controlled, and harmed victims beyond the conduct of the principal offender.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act (NSW), section 19
Cases: No cases were cited in the judgment.