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Supreme Court 11 August 2000

R v PL

[2000] NSWSC 918 revised - 24

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY JUVENILE

Citation: R v PL [2000] NSWSC 918
Court: NSW Supreme Court (Criminal Division)
Date: 11 August 2000
Judge(s): Dowd J

Background

The offender, referred to as PL, was a 12-year-old boy when, in the early hours of 11 January 1999, he participated with three others in a planned robbery at a residential premises in Berkeley, NSW. The group entered the home and stole a compact disc player and a mobile phone. During the same incident, one of PL's co-offenders fatally stabbed the occupant. PL was not the person who inflicted the stab wounds.

PL was originally committed for trial on charges including murder and robbery in company. He ultimately pleaded guilty to one count of robbery in company under s 99(1) of the Crimes Act 1900, and the matter came before Dowd J for sentencing. The proceedings were conducted under the Children (Criminal Proceedings) Act 1987, with the non-publication of PL's name and the names of other young persons involved.

By the time of sentencing in August 2000, PL was 14 years old. His circumstances had changed considerably since the offence, including family breakdown, engagement with counselling, and a return to regular schooling.

  • Whether PL should be sentenced under the ordinary adult regime or the less punitive regime available under the Children (Criminal Proceedings) Act 1987
  • Whether robbery in company under s 97 of the Crimes Act 1900 constituted a "serious indictable offence" for the purposes of that Act, triggering mandatory sentencing according to law
  • What weight to give PL's age, background, and demonstrated rehabilitation in determining the appropriate sentence
  • Whether a custodial sentence or a non-custodial order, such as probation, was the appropriate disposition

Decision

Dowd J first determined that robbery in company, which carries a maximum of 20 years imprisonment, did not constitute a "serious indictable offence" for the purposes of the Children (Criminal Proceedings) Act 1987. This meant the Court retained a discretion to sentence PL either according to the ordinary adult law or under the less harsh Children's Court regime.

Drawing on R v R (1993) 71 A Crim R 95, his Honour identified the relevant considerations as the nature of the offence, the offender's age and maturity at the time of both the offence and sentencing, and the nature of an appropriate penalty. PL had been only 12 years old when the offence occurred, placing his culpability in a distinct category from an adult offender.

The Court heard evidence from a counsellor, Miss Kemp, whose assessment Dowd J accepted in full. She described PL as extremely honest, increasingly mature, punctual in attending appointments, and as having achieved a high degree of rehabilitation. He had lost significant weight through a self-directed health programme, was performing well at school, and had coped with a series of family crises including his parents' separation and the departure of his siblings.

Dowd J concluded that a custodial sentence was not appropriate. The combination of PL's very young age at the time of the offence, his considerable personal difficulties, the absence of prior record (implicit in the judgment), and the high level of demonstrated rehabilitation pointed firmly toward a non-custodial disposition. A two-year probation order with structured conditions was imposed.

Orders Made

  • PL to be released on probation for two years, subject to the following conditions:
  • To submit to the guidance of the Juvenile Justice Department and comply with its reasonable directions
  • To reside with his mother, or, if she travels overseas, with another responsible adult nominated by her
  • To continue his current schooling or such other schooling as appropriate to his development
  • Not to commit any further criminal offences and to keep the peace

Key Takeaways

  • Robbery in company under s 97 of the Crimes Act 1900 (maximum 20 years) does not constitute a "serious indictable offence" under the Children (Criminal Proceedings) Act 1987, preserving a sentencing court's discretion to apply the less punitive children's regime.
  • Under the framework confirmed in R v R (1993) 71 A Crim R 95, the age and maturity of a young offender, both at the time of the offence and at sentencing, are central considerations in choosing between the adult and children's sentencing regimes.
  • A high degree of demonstrated rehabilitation, including engagement with counselling, school attendance, and personal development, can decisively favour a non-custodial sentence even for a serious offence committed in the company of co-offenders who caused greater harm.
  • Participation in a robbery during which a co-offender commits murder does not automatically require a custodial outcome for a 12-year-old who did not inflict the fatal injuries, where the sentencing court properly applies the children's sentencing framework.
  • Non-publication orders under s 11 of the Children (Criminal Proceedings) Act 1987 apply not only to the young offender's name but also to the names of other young persons connected with the proceedings.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 11, 16 and Part 2 Division 4
- Crimes Act 1900 (NSW), ss 97, 99(1)

Cases
- R v R (1993) 71 A Crim R 95 (Hunt CJ at CL)
- R v Ellis (1986) 6 NSWLR 603