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District Court 20 April 2020

R v DM

[2020] NSWDC 300

Assault & violenceTheft & propertyTraffic & driving
PAROLE PERIOD — RATIO OF THE NON

Citation: R v DM [2020] NSWDC 300
Court: District Court of New South Wales
Date: 20 April 2020
Judge(s): Bennett SC DCJ

Background

The offender, referred to as DM, was 16 years old when he committed the offences on 7 August 2018 at Burwood, NSW. He robbed a victim of a motor vehicle, car keys, a wallet and two mobile phones, and in doing so used corporal violence that caused the victim grievous bodily harm (that is, really serious physical injury). He also drove the vehicle without ever having held a licence.

By the time of sentencing, DM had turned 18. Because the robbery offence carries a maximum penalty of 25 years' imprisonment, it qualified as a "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987, meaning it had to be dealt with in the District Court "according to law" rather than under the more protective Children's Court regime. The unlicensed driving charge, however, was handled as if the court were sitting as a Children's Court.

DM had an extensive prior record, including offences of police pursuit, driving while disqualified, assault on a law enforcement officer, and dishonestly obtaining a benefit. He had been subject to a 20-month aggregate control order commencing October 2018, and separately to a further 12-month control order imposed in February 2020 for assaulting a Juvenile Justice Officer.

  • Whether a 25% discount for the utilitarian value of DM's early guilty plea (entered in the Children's Court) should apply, and under which legal framework
  • How to fix the commencement date of the sentence, given DM's existing custodial orders and the complexity of pre-sentence custody
  • What weight to give DM's youth, troubled background, prospects for rehabilitation, and intoxication at the time of the offending
  • The proper ratio of the non-parole period to the head sentence, including whether special circumstances existed to justify a departure from the statutory one-third ratio
  • How to sentence for the summary driving offence when it was being dealt with under the Children's Court sentencing regime rather than the standard adult framework, and whether a s 10A order (conviction without further penalty) was available

Decision

Bennett SC DCJ identified the robbery as a serious offence involving real violence against a victim, warranting a substantial custodial sentence. The court considered the objective seriousness of the offending, the maximum penalty of 25 years, the absence of a standard non-parole period, and the need for both general and specific deterrence. The victim's attitude to the offender was also taken into account.

Significant mitigating weight was given to DM's age at the time of the offence. Following the principles in cases such as Bugmy v The Queen and R v Fernando, the court acknowledged that youth reduces the weight given to general deterrence and increases the importance of rehabilitation. DM's disadvantaged background, his state of intoxication at the time, and evidence of rehabilitative progress were all treated as relevant subjective factors favouring a less severe sentence than would apply to an adult offender.

The court applied a 25% discount for the utilitarian value of the early guilty plea, consistent with the approach in R v Borkowski, arriving at a head sentence of 6 years with a non-parole period of 3 years. The court found special circumstances justifying a departure from the standard one-third ratio between the non-parole period and the balance of term, given DM's age and the extended supervision he would require upon release.

For the unlicensed driving offence, the court imposed no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999, though a question arose at the conclusion of proceedings about whether that provision was technically available in a matter being dealt with under the Children (Criminal Proceedings) Act 1987. The court indicated it would investigate the issue further and communicate with the parties.

Orders Made

  • Robbery with corporal violence causing grievous bodily harm (s 96 Crimes Act 1900): Sentence of imprisonment with a non-parole period of 3 years commencing 30 October 2019, expiring 29 October 2022, and a head sentence of 6 years. A 25% discount was applied for the guilty plea. The sentence is to be served as a juvenile offender until DM must be removed from such custody under s 19 of the Children (Criminal Proceedings) Act 1987.
  • Drive without ever being licensed (s 53(3) Road Transport Act 2013): No further penalty imposed (s 10A Crimes (Sentencing Procedure) Act 1999); 12-month licence disqualification period commencing 4 March 2023, expiring 3 March 2024. This accumulates by six months upon existing concurrent disqualification orders.

Key Takeaways

  • A serious children's indictable offence carrying a maximum of 25 years' imprisonment must be dealt with by the District Court "according to law," not under the Children (Criminal Proceedings) Act 1987, even where the offender was a child at the time of the offence.
  • Youth significantly moderates the weight given to general deterrence in sentencing, and courts are required to treat rehabilitation as a primary consideration when sentencing juvenile offenders, consistent with Bugmy v The Queen and established NSW authority.
  • A 25% discount for the utilitarian value of a guilty plea entered in the Children's Court applies on the common law basis under R v Borkowski, rather than the statutory scheme, where the summary offence is dealt with under Children's Court procedures.
  • Special circumstances can justify a non-parole period that represents more than two-thirds of the head sentence where a young offender requires extended post-release supervision to support rehabilitation.
  • The District Court identified an unresolved question at the close of proceedings about whether s 10A of the Crimes (Sentencing Procedure) Act 1999 is available when sentencing for a summary offence being dealt with under the Children (Criminal Proceedings) Act 1987 regime, and indicated further inquiry was needed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94, 95, 96
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 25A, 54B, Part 4 Division 1A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), ss 53, 205A, 207A
- Anti-Discrimination Act 1977 (NSW)

Cases
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Director of Public Prosecutions Commonwealth v De La Rosa [2010] NSWCCA 194
- KT v R [2008] NSWCCA 51
- McCullough v R [2009] NSWCCA 94
- Melvaine v R [2019] NSWCCA 274
- R v Borkowski [2009] NSWCCA 102
- R v Darrell Terry McNaughton [2006] NSWCCA 242
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- R v K [2000] NSWCCA 24
- R v Olbrich [1999] HCA 54
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247