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District Court 19 May 2022

R v JW; R v DH

[2022] NSWDC 169

Assault & violenceTheft & propertyFirearms & weapons
UNAUTHORISED USE/POSSESSION OF FIREARM

Citation: R v JW; R v DH [2022] NSWDC 169
Court: District Court of New South Wales
Date: 19 May 2022
Judge(s): Scotting DCJ

Background

Two young persons, identified only as JW and DH, appeared for sentence in the District Court after pleading guilty in the Children's Court to serious violent offences committed in 2021. JW faced charges arising from two separate incidents: armed robberies in April 2021 and a further robbery with wounding in June 2021. DH was a co-offender in the June 2021 offences only.

The April 2021 offences involved JW and a co-offender approaching two pedestrians in Ultimo late at night, pointing guns at them, and demanding wallets and phones. JW, who appeared very young and was wearing a balaclava, participated alongside an older co-offender. The June 2021 offences involved both JW and DH in an armed robbery and wounding of two further young victims.

JW was also sentenced for possessing an unauthorised pistol and an unregistered firearm under the Firearms Act 1996. Both offenders had personal circumstances including mental health conditions, and JW had a condition affecting his physical development. Both received early guilty pleas, attracting a 25 per cent discount on sentence.

  • Whether standard non-parole periods applied when sentencing young persons under the Children (Criminal Proceedings) Act 1987 (CCP Act)
  • How to balance the sentencing principles under s 3A of the Crimes (Sentencing Procedure) Act 1999 with the child-specific principles in s 6 of the CCP Act
  • What weight to give rehabilitation, general deterrence, and retribution given the offenders' youth and the gravity of the offences
  • Whether the serious offences should be dealt with "according to law" or under the Children's Court regime
  • Whether special circumstances existed to justify a non-standard ratio between the non-parole period and the head sentence, and to direct each offender to serve their sentence as a juvenile offender under s 19 of the CCP Act

Decision

Standard non-parole periods did not apply to the sentencing of either young person, by operation of s 54D(3) of the CCP Act. The serious offences, being armed robbery with wounding under s 98 and armed robbery with a dangerous weapon under s 97(2), were classified as "serious children's indictable offences" and were required to be dealt with according to law under s 17 of the CCP Act.

Scotting DCJ applied the established principle that general deterrence and retribution carry less weight when sentencing young persons, with rehabilitation taking on greater significance. However, his Honour noted that rehabilitation's primacy is moderated where a young person has engaged in conduct of considerable gravity, including the use of weapons. The extent of violence alone does not establish that a young person was behaving as an adult; rather, the particular circumstances of both the offender and the offences determine the appropriate balance.

Both offenders received aggregate custodial sentences. JW received an aggregate term of 5 years and 6 months, with a non-parole period of 3 years and 3 months, running from 17 June 2021, reflecting the greater number and seriousness of his offences. DH received an aggregate term of 5 years and 6 months, with a non-parole period of 3 years, running from 28 June 2021.

Special circumstances were found for both offenders, justifying a variation to the statutory ratio between the non-parole period and head sentence, and directing each to serve their sentences as juvenile offenders under s 19 of the CCP Act. For JW, the primary reasons were his vulnerability arising from a physical development condition and mental health concerns, which created unacceptable risk of harm in an adult correctional centre. For DH, the therapeutic and educational programs he was engaged in were only available within a detention centre.

Orders Made

JW:
- Convicted of armed robbery with a dangerous weapon (s 97(2)), armed robbery with wounding (s 98), reckless wounding in company (s 35(3)), possessing an unauthorised pistol (s 7(1)), and possessing an unregistered firearm (s 36(1)), with additional matters taken into account on a Form 1
- Aggregate sentence of 5 years and 6 months imprisonment, with a non-parole period of 3 years and 3 months
- Non-parole period to run from 17 June 2021, expiring 16 September 2024; head sentence expiring 16 March 2027
- Directed to serve sentence as a juvenile offender under s 19 of the CCP Act

DH:
- Convicted of armed robbery with wounding (s 98) and reckless wounding in company (s 35(3))
- Aggregate sentence of 5 years and 6 months imprisonment, with a non-parole period of 3 years
- Non-parole period to run from 28 June 2021, expiring 27 June 2024; head sentence expiring 27 December 2026
- Directed to serve sentence as a juvenile offender under s 19 of the CCP Act

Key Takeaways

  • Standard non-parole periods do not apply when sentencing young persons in the District Court; s 54D(3) of the CCP Act expressly excludes them.
  • Under the CCP Act framework, rehabilitation ordinarily carries greater weight than general deterrence or retribution when sentencing young offenders, but this emphasis diminishes where the offences involve serious personal violence and the use of weapons.
  • The extent of violence in an offence does not, by itself, establish that a young person was acting in an adult manner; courts must assess the particular circumstances of both the offender and the offence when calibrating the sentencing balance.
  • A direction under s 19 of the CCP Act for a young person to serve imprisonment as a juvenile offender may be appropriate where the young person is vulnerable to physical or psychological harm in an adult correctional centre, or where necessary therapeutic programs are only available in a detention centre.
  • Early guilty pleas in proceedings involving young persons retain significant utilitarian value; both offenders here received a 25 per cent discount on their sentences.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17, 18, 19, 54D(3)
- Crimes Act 1900 (NSW), ss 35(3), 97(2), 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 53A
- Firearms Act 1996 (NSW), ss 7(1), 36(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Hoskins v R [2021] NSWCCA 169
- IE v R (2008) 183 A Crim R 150
- KT v R [2008] NSWCCA 51
- Legge v The Queen [2007] NSWCCA 244
- Muldrock v R (2011) 244 CLR 120
- R v Borkowski (2009) 195 A Crim R 1
- R v Dickinson [2004] NSWCCA 457
- R v Henry (1999) 46 NSWLR 346
- R v Olbrich (1999) 199 CLR 270
- R v SDM (2001) 51 NSWLR 530
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Todorovic [2008] NSWCCA 49
- SBF v R [2009] NSWCCA 231
- YS v R [2010] NSWCCA 98