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District Court 15 March 2021

R v JF

[2021] NSWDC 287

Assault & violenceTheft & property
CRIME SENTENCE ROBBERY IN COMPANY YOUNG PERSON SENTENCED AS AN ADULT

Citation: R v JF [2021] NSWDC 287
Court: District Court of New South Wales
Date: 15 March 2021
Judge(s): Wilson SC DCJ

Background

The offender, a young man aged 17 years and 11 months at the time of the offence, was sentenced for robbery in company with wounding under s 98 of the Crimes Act 1900 (NSW). The offence occurred on 23 November 2019 near Doyalson on the NSW Central Coast, where the offender and a co-offender, Brandon Holland, targeted a stranger who had been seen with a wallet full of cash at a local RSL club.

The victim was lured away from the club by a third party and then physically attacked by the offender and Holland, who had their faces covered. Holland used knuckle dusters during the assault, causing the victim to lose consciousness. The offender kicked the victim in the head while he was on the ground. The victim's wallet, containing between $4,000 and $4,500 in cash, was stolen. The victim sustained serious injuries including a facial fracture, a fractured ankle requiring surgery, scalp lacerations, and head trauma. He required hospitalisation at two hospitals over several days.

The offender was arrested on 5 January 2020 and committed for sentence from the Wyong Children's Court in November 2020. He had spent no time in custody prior to sentencing. He was dealt with as an adult, given the matter was committed to the District Court.

  • Whether the standard non-parole period applicable under the Crimes (Sentencing Procedure) Act 1999 (NSW) applied, given the offender was under 18 at the time of the offence
  • How the principles of parity applied, given co-offender Holland had already been sentenced to a head sentence of 5 years with a non-parole period of 2 years and 6 months
  • What weight to give the offender's youth, background, and rehabilitation prospects in determining the appropriate sentence
  • How to treat the breach of existing good behaviour bonds imposed in the Children's Court

Decision

The District Court confirmed that the standard non-parole period of 7 years did not apply because the offender was under 18 at the time of the offence. The maximum penalty of 25 years remained a guidepost, reflecting the seriousness Parliament attaches to this category of offending.

Applying the parity principle, the court noted that Holland's role was accepted as more serious: Holland had planned the robbery, used knuckle dusters, and was also charged with possessing a prohibited weapon. The offender's sentence was therefore set below Holland's. The court acknowledged, however, that the offender's conduct was still serious. He actively participated in the assault, punched the victim, and kicked him in the head while he lay unconscious on the ground.

The court gave significant weight to the offender's youth. At the time of sentencing he was 19 years old and had the benefit of a psychologist's report. The judgment reflected the principle, established in cases such as KT v R, that youth is a mitigating factor that affects both culpability and the emphasis placed on rehabilitation over punishment. The offender had shown some steps toward rehabilitation, and the court requested that Corrective Services consider placing him in a facility close to his family, noting the importance of family support to his rehabilitation.

After applying a 25% discount for the guilty plea, the court imposed a total sentence of 4 years, comprising a non-parole period of 2 years. Regarding the breached good behaviour bonds from the Children's Court, the court noted the breach but took no further action, revoking the bonds without imposing additional penalty.

Orders Made

  • The offender convicted of robbery with wounding contrary to s 98 of the Crimes Act 1900 (NSW)
  • Sentenced to imprisonment with a non-parole period of 2 years commencing 15 March 2021, expiring 14 March 2023, and a balance of term of 2 years expiring 14 March 2025
  • Eligible for parole consideration from 14 March 2023
  • Breached good behaviour bonds noted; no further action taken; bonds revoked
  • Direction that the psychologist's report accompany the offender's Warrant of Commitment

Key Takeaways

  • Under the Children (Criminal Proceedings) Act 1987 (NSW), the standard non-parole period does not apply where the offender was under 18 at the time of the offence, even when sentenced as an adult in the District Court.
  • Parity of sentencing requires that a less culpable co-offender receive a materially lighter sentence than one already sentenced, particularly where the prior sentence expressly acknowledged a greater degree of involvement.
  • Youth is a recognised mitigating factor that reduces moral culpability and shifts sentencing emphasis toward rehabilitation, consistent with the approach confirmed in KT v R [2008] NSWCCA 51.
  • A 25% discount on sentence is available for a guilty plea, and the court applied this discount to the sentence before determining the final non-parole period and balance of term.
  • Where an offender on existing Children's Court good behaviour bonds commits further offending that triggers a breach call-up, the sentencing court retains discretion to take no further action on the bonds beyond revocation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 98 (robbery in company with wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A
- Children (Criminal Proceedings) Act 1987 (NSW) s 6

Cases:
- KT v R [2008] NSWCCA 51
- R v Henry (1999) 46 NSWLR 346