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Supreme Court 1 September 2023

R v DJD

[2023] NSWSC 1049

Assault & violenceTheft & property
CRIME SENTENCE OFFENDER FOUND GUILTY AFTER TRIAL YOUNG OFFENDER SIGNIFICANT MENTAL HEALTH ISSUES LACK OF REMORSE

Citation: R v DJD [2023] NSWSC 1049
Court: Supreme Court of New South Wales
Date: 1 September 2023
Judge: Wright J

Background

Following a joint trial, the offender DJD (identified by initials due to his age at the time of the offence) was acquitted of assault with intent to rob in company, murder, and entering a dwelling in circumstances of special aggravation. He was, however, found guilty of the statutory alternative: entering a dwelling house with intent to intimidate, in company, contrary to s 111(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years' imprisonment, and no standard non-parole period applies.

The offence occurred in the early hours of 24 May 2020, when DJD and four others travelled to a house in Riverstone. The group forced their way inside, confronted the occupants, and demanded drugs. One co-offender carried a shortened .22 calibre rifle; another carried a knife. The victim was physically assaulted and stabbed multiple times, losing two teeth. The jury's verdict required the court to find that DJD was unaware of the rifle at any relevant time.

DJD was approximately 17 years old at the time of the offence and under 21 when charged, making the Children (Criminal Proceedings) Act 1987 (NSW) potentially applicable. His co-accused Mr Murdoch had already been sentenced, raising parity considerations. The court also had to account for additional offences DJD committed while in custody.

  • Whether DJD should be sentenced under the ordinary criminal law or under Part 3 Division 4 of the Children (Criminal Proceedings) Act 1987 (NSW)
  • What facts, consistent with the jury's verdict, could be found beyond reasonable doubt for sentencing purposes
  • How to weigh DJD's youth, significant mental health issues, and lack of remorse against the objective seriousness of the offence
  • Whether special circumstances existed to justify a longer-than-usual balance of term relative to the non-parole period
  • How parity with the sentence imposed on co-offender Mr Murdoch, and totality across all offences including those committed in custody, should be reflected in the sentence

Decision

Wright J determined that DJD should be dealt with according to the ordinary adult criminal law rather than the children's sentencing regime, having regard to the seriousness and nature of the offence, DJD's prior offending, and the other matters specified in s 18(1A) of the Children (Criminal Proceedings) Act. The court found the facts consistent with the jury's verdict, including that DJD did not know about the rifle, and constructed a factual basis for sentencing effectively agreed between the parties, modelled closely on the findings made when sentencing Mr Murdoch.

On objective seriousness, the court placed the offence in the mid-range. The home invasion was planned, conducted in the early hours by a group of five, involved serious violence to the victim, and caused significant harm to multiple occupants. The court treated DJD's youth and mental health difficulties as significant mitigating factors, while his lack of remorse and failure to demonstrate insight were weighed against him. The court noted that rehabilitation remained a genuine prospect despite the concerning circumstances, given his age.

The court found special circumstances existed, warranting a departure from the usual ratio between the non-parole period and the balance of term. DJD's youth, mental health needs, and the importance of supervised post-release support all pointed toward a longer balance of term to facilitate his transition back into the community. The court also addressed totality, incorporating additional offences committed while DJD was in custody into the overall sentencing structure.

On parity, the court was conscious that any sentence for DJD should not produce a result that would be considered unjustly disparate when compared with Mr Murdoch's sentence, having regard to the differences and similarities in their respective circumstances.

Orders Made

  • The back-up offence of having his face disguised with intent to commit an indictable offence (s 114(1)(c), Crimes Act 1900) was dismissed pursuant to s 167(1)(a) of the Criminal Procedure Act 1986 (NSW).
  • The related offence of destroying or damaging property (s 195(1), Crimes Act 1900) was dismissed pursuant to ss 168 and 202 of the Criminal Procedure Act 1986 (NSW).
  • DJD was sentenced for the offence of entering a dwelling house with intent to commit a serious indictable offence (intimidation) in company, contrary to s 111(2) of the Crimes Act 1900 (NSW): non-parole period of 2 years and 10 months, commencing 26 September 2022 and expiring 25 July 2025, with a balance of term of 2 years expiring 25 July 2027.
  • DJD will first be eligible for release on parole on 25 July 2025.

Key Takeaways

  • Where a young offender is charged with an offence that is not a "serious children's indictable offence," the sentencing court must actively decide whether to apply the children's sentencing regime or the ordinary law, weighing the factors in s 18(1A) of the Children (Criminal Proceedings) Act 1987 (NSW), including offence seriousness and prior criminal history.
  • Facts found against an offender at sentence must be established beyond reasonable doubt, while facts found in the offender's favour need only be established on the balance of probabilities, consistent with Olbrich and Cheung.
  • A finding of special circumstances, justifying a non-parole period that is a smaller proportion of the total sentence than the statutory norm, remains available where an offender's youth, mental health, and rehabilitation needs call for extended supervised support upon release.
  • Lack of remorse does not automatically foreclose a finding that rehabilitation prospects exist, particularly where the offender is young, but it does limit the weight the sentencing court can give to prospects of reform as a mitigating factor.
  • Parity principles require a sentencing court to avoid unjustifiably disparate outcomes between co-offenders, while still accounting for individual differences in culpability, background, and personal circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1), 97(2), 111(2), 111(3), 114(1)(c), 195(1)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3(1), 6, 16, 18, Pt 3 Div 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 55, 56, Pt 3 Div 2
- Criminal Procedure Act 1986 (NSW), ss 166, 167(1)(a), 168, 202
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 90, 92

Cases
- Aslan v R [2014] NSWCCA 114
- Carreno v R [2023] NSWCCA 20
- Cheung v The Queen (2001) 209 CLR 1
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Filippou v The Queen (2015) 256 CLR 47
- GAS v The Queen (2004) 217 CLR 198
- Green v The Queen (2011) 244 CLR 462
- Martinez v The Queen [2022] NSWCCA 12
- R v Dunn [2004] NSWCCA 346
- The Queen v Olbrich (1999) 199 CLR 270
- Waterstone v R [2020] NSWCCA 117