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District Court 15 December 2022

R v KZ

[2022] NSWDC 643

Sexual offencesTheft & propertyFirearms & weaponsPublic order & justice offences
SENTENCING C OMMONWEALTH AND STATE OFFENCES ENTER DWELLING WITH INTENT LARCENY FIREARMS OFFENCES INTIMIDATION

Citation: R v KZ [2022] NSWDC 643
Court: District Court of New South Wales
Date: 15 December 2022
Judge: O'Brien AM DCJ

Background

The offender, born in March 2003, faced sentencing for 21 offences committed between May 2019 and July 2021, spanning the period from age 16 to 18. Fifteen offences were committed while he was a juvenile; six were committed as an adult at age 18. A statutory prohibition on publication of identifying details applies, given the offender was a young person for part of the relevant period.

The offending was wide-ranging and serious. It included multiple break, enter and commit serious indictable offence charges (some involving fire damage to school premises), property destruction, larceny, entering land with intent, firearms manufacturing and possession offences, intimidation, using a carriage service to transmit child abuse material, and possessing child abuse material described by the court as being of a most heinous type. Some of the offending was found to be racially motivated.

The offender pleaded guilty in the Local Court and Children's Court and was entitled to a 25% discount for the utilitarian value of those pleas. He had been in continuous custody since 9 September 2021, following re-arrest after an initial grant of bail.

  • How to balance the strong emphasis on rehabilitation and reduced moral culpability applicable to juvenile offenders against the objective seriousness of the offending
  • How to treat racially motivated offending in the assessment of objective seriousness
  • The relevance of the offender's diagnosis of autism spectrum disorder and social isolation to sentencing
  • How to apply standard non-parole periods for the two prohibited firearms offences
  • How to sentence concurrently for both Commonwealth and state offences, including the interaction between the sentencing regimes under the Crimes Act 1914 (Cth) and the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • How to apply the totality principle across 21 offences to arrive at an appropriate aggregate sentence
  • Whether the effect of COVID-19 on conditions of custody warranted adjustment to the sentences

Decision

O'Brien AM DCJ described the sentencing exercise as genuinely difficult, with factors pulling powerfully in opposing directions. The objective seriousness of the offending was substantial across most charges, with the child abuse material offences, firearms offences, and arson-related property damage each warranting significant weight. The court found that some of the offending was racially motivated, which bore on the assessment of moral culpability, though the judgment does not expand that finding beyond its specific factual context.

The offender's youth was given significant weight. The court applied established principles that young offenders have reduced moral culpability, greater capacity for rehabilitation, and a diminished capacity to weigh consequences. The offender's autism spectrum disorder and social isolation were also treated as relevant subjective factors, supported by psychological and psychiatric evidence, including reports from a psychologist, a forensic psychiatrist, and Youth Justice NSW.

On the Commonwealth charges (using a carriage service to transmit child abuse material), the court was required under s 16A(1) of the Crimes Act 1914 (Cth) to impose sentences of appropriate severity, as those offences constitute "child sex offences" under that Act. The standard non-parole periods for the prohibited firearms offences were treated, consistently with Muldrock v R (2011) 244 CLR 120 and Markarian v R (2005) 228 CLR 357, as legislative guideposts rather than mandatory starting points, to be weighed within the broader instinctive synthesis.

Applying the totality principle and taking into account the aggregate of offending, the discounts for guilty pleas, the lengthy period of presentence custody, and the competing subjective and objective factors, the court imposed sentences producing a total of three years of actual custody. The court acknowledged that this was a significant period of incarceration for a young person but concluded no lesser period was appropriate given all the circumstances.

Orders Made

  • Convicted on all 21 charges.
  • On four charges (sequences 1, 8, 11 in H832479481 and sequence 3 in H84291184): convicted under s 10A of the Crimes (Sentencing Procedure) Act with no further penalty.
  • On two charges (sequences 18 and 19 in H832479481): aggregate fixed term of 12 months imprisonment, commencing 8 September 2021 (expired 7 September 2022).
  • On the remaining 15 charges: aggregate imprisonment of 5 years and 6 months total term, with a non-parole period of 2 years and 9 months, commencing 7 December 2021.
  • Parole eligibility: 6 September 2024.
  • Sentence expiry: 6 June 2027.
  • Psychiatric, psychological, Youth Justice and sentencing assessment reports directed to be provided to the Department of Corrective Services and Justice Health.
  • Recommendation that the offender receive psychiatric risk assessment and treatment as considered necessary by Justice Health.

Key Takeaways

  • The District Court applied the well-established principle that youthful offenders attract reduced moral culpability and that rehabilitation carries greater weight in sentencing, even where the objective seriousness of the offending is high across multiple charge types.
  • A diagnosis of autism spectrum disorder, supported by expert evidence, can constitute a relevant subjective factor in sentencing, influencing the assessment of moral culpability and the weight given to specific deterrence, without necessarily reducing the objective gravity of the conduct itself.
  • Under Muldrock v R (2011) 244 CLR 120, standard non-parole periods for offences such as possession of prohibited firearms operate as legislative guideposts within the instinctive synthesis, not as mandatory starting points or presumptive outcomes.
  • Where an offender is sentenced for both Commonwealth and state offences, the respective legislative frameworks, Part 1B of the Crimes Act 1914 (Cth) and the Crimes (Sentencing Procedure) Act 1999 (NSW), apply separately to the relevant charges, requiring careful sequencing of sentences and consideration of the interaction between the two regimes.
  • Racially motivated offending was identified by the court as a factor relevant to the assessment of objective seriousness, consistent with established sentencing principles, though its precise weight was fact-specific to this case.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), ss 112(1)(a), 114(1)(d), 117, 195(1)(a), 91H(2), 547D
- Crimes Act 1914 (Cth), ss 3, 16A(1), Part 1B
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 10A, 53A
- Criminal Code Act 1995 (Cth), s 474.22
- Firearms Act 1996 (NSW), ss 7(1), 7A(1), 50A(1), 65(3)

Cases:
- Markarian v R (2005) 228 CLR 357
- Muldrock v R (2011) 244 CLR 120
- Elias v The Queen (2013) 248 CLR 483
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
- Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4
- CR v R [2020] NSWCCA 289
- CW v R [2022] NSWCCA 50
- DS v R; DM v R [2022] NSWCCA 156
- Howard v R [2019] NSWCCA 109
- Osman v R [2020] NSWCCA 78
- Paterson v R [2021] NSWCCA 273
- *Azzopardi v R