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District Court 15 December 2023

R v XX, R v ZZ

[2023] NSWDC 585

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v XX, R v ZZ [2023] NSWDC 585
Court: District Court of New South Wales
Date: 15 December 2023
Judge: Priestley SC DCJ

Background

Two young offenders, referred to as XX and ZZ (both born in May 2006 and aged 16 at the time of the offending), were sentenced for a series of serious offences committed in late 2022. Each faced six serious children's indictable offences on the indictment, the majority charged under section 98 of the Crimes Act 1900 (NSW), which covers robbery in company with wounding or grievous bodily harm and carries a maximum of 25 years imprisonment. Additional matters were dealt with by way of a Form 1 (offences taken into account at sentencing without separate penalties) and, in XX's case, two summary offences dealt with by certificate.

The offending followed a consistent pattern: the offenders would make contact with victims through the dating app Grindr, arrange a meeting, and then assault and rob the victims. The first offence was among the most serious, involving a sustained physical assault on a 49-year-old victim with an intellectual disability, resulting in multiple facial fractures, a broken finger, and air in his chest cavity. The court noted that, despite the robbery charges, the dominant character of the conduct was violent assault rather than theft, with the offenders appearing motivated by a self-styled vigilante crusade against people they labelled as paedophiles. The court did not accept that characterisation as any form of mitigation.

Both offenders had been in custody since 18 July 2023, having initially been granted bail following their arrests in November 2022. Sentencing reasons were delivered on 15 December 2023, with the judge noting the deliberate haste in completing the judgment to avoid the uncertainty continuing over the court vacation period.

  • What were the appropriate aggregate sentences for each offender, having regard to the number and seriousness of the offences, the offenders' youth, and their subjective circumstances including mental health?
  • How should objective seriousness be assessed in circumstances where a standard non-parole period was not applicable due to the offenders' ages?
  • What weight should be given to the Form 1 procedure in the sentencing exercise?
  • Whether the mental health conditions and youth of both offenders justified a direction under section 19 of the Children (Criminal Proceedings) Act 1978 (NSW) that the non-parole periods be served in a juvenile detention facility rather than an adult correctional centre.

Decision

Objective seriousness and the sentencing framework

Priestley SC DCJ followed the approach in McLaren v R [2012] NSWCCA 284, noting that while the standard non-parole period provisions (section 54A of the Crimes (Sentencing Procedure) Act 1999) did not apply to juvenile offenders, the court was still required to assess the moral culpability of the offending. The judge assessed objective seriousness on a strictly objective basis for comparative purposes while incorporating subjective factors into the broader instinctive synthesis. The court acknowledged the submission that injuries suffered, while serious, were at the lower end for section 98 offences, but nonetheless viewed the pattern of luring and premeditated violence as aggravating the overall conduct.

The vigilante motivation

The court declined to treat the offenders' claimed vigilante motivation as meaningfully reducing their culpability. The conduct was characterised as opportunistic, premeditated violence dressed up in a moral justification. The robberies were largely incidental to the assaults. The court treated this purported motivation as a subjective consideration to be weighed, not as a factor that reframed the character of the offending.

Sentences imposed

After applying discounts for guilty pleas and taking into account the offenders' youth, mental health conditions (including PTSD, ADHD, and oppositional defiant disorder), histories of trauma, and time in custody, the court imposed differentiated aggregate sentences. XX received a longer sentence reflecting his greater role in the physical violence, including filmed footage of him punching, kicking, and stomping on the first victim's face. ZZ, whose role was comparatively less physically dominant, received a shorter aggregate term.

Juvenile detention direction

The court was satisfied that both offenders met the threshold of "special circumstances" under section 19(1) and (3)(a) of the Children (Criminal Proceedings) Act 1978. The judge found that placing two immature, recently turned 18-year-olds with significant trauma-related and mental health conditions into an adult correctional centre would create an unacceptable risk of physical or psychological harm. The direction was made for both offenders to serve their non-parole periods as juvenile offenders in a detention centre, where therapeutic and vocational programs were also more accessible.

Orders Made

XX
- Convicted on all six counts on the indictment
- Aggregate imprisonment with a non-parole period of 2 years from 14 July 2023, and a balance of term of 3 years
- Summary matters: conviction recorded, no further penalty (section 10A)
- Direction under section 19(1) and (3)(a) of the Children (Criminal Proceedings) Act 1978 that the whole of the non-parole period be served as a juvenile offender

ZZ
- Convicted on all six counts on the indictment
- Aggregate imprisonment with a non-parole period of 16 months from 18 July 2023, and a balance of term of 26 months
- Direction under section 19(1) and (3)(a) of the Children (Criminal Proceedings) Act 1978 that the whole of the non-parole period be served as a juvenile offender

Key Takeaways

  • Where the standard non-parole period provisions do not apply (as with juvenile offenders under section 54D of the Crimes (Sentencing Procedure) Act), the District Court confirmed that objective seriousness is still assessed as part of the instinctive synthesis, and subjective factors including mental health can be incorporated into the evaluation of moral culpability.

  • A claimed vigilante motivation for repeated luring and assault offences does not reduce objective seriousness; the court treated it as a subjective factor at most, giving it limited weight where the conduct was premeditated and predatory in character.

  • Under the Form 1 procedure, the primary sentencing focus remains on the principal offences, but the procedure permits greater weight to be accorded to personal deterrence and retribution than would otherwise apply.

  • The presence of significant mental health conditions, including PTSD, ADHD, and oppositional defiant disorder, combined with extreme youth and histories of trauma, was found sufficient to constitute "special circumstances" warranting a section 19 direction for juvenile detention placement, where an unacceptable risk of harm in an adult correctional centre was established.

  • Differentiated sentences within co-offender proceedings are appropriate where the physical roles of each offender differ materially, even where both are charged with identical offences arising from the same pattern of conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), sections 33 and 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 37, 54A, 54D, 166
- Children (Criminal Proceedings) Act 1978 (NSW), sections 10A, 19

Cases
- McLaren v R [2012] NSWCCA 284
- Muldrock v The Queen [2011] HCA 39
- R v Henry (1999) 46 NSWLR 346
- R v Henry [2007] NSWCCA 90
- R v PB [2008] NSWCCA 109
- T.M v R [2023] NSWCCA 185
- Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194
- R v MMK [2006] NSWCCA 272
- R v Holder [1983] 3 NSWLR 245
- Hall v The Queen [2021] NSWCCA 220
- Cahyadi v R [2007] NSWCCA 1
- ZXT v R [2023] NSWCCA 222
- R v EE [2023] NSWSC 104