District Court New South Wales Medium Neutral Citation: R v JF [2021] NSWDC 287 Hearing dates: 10 December 2020; 15 February 2021; 8 March 2021; 15 March 2021 Date of orders: 15 March 2021 Decision date: 15 March 2021 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: Full time custodial sentence imposed. Decision at [68] – [69] Catchwords: CRIME – sentence – robbery in company – young person – sentenced as an adult Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 6 Crimes (Sentencing Procedure) Act 1900 (NSW) ss 3A; 21A Crimes Act 1900 (NSW) s 98 Cases Cited: KT v R [2008] NSWCCA 51 R v Henry (1999) 46 NSWLR 346 Texts Cited: None Category: Sentence Parties: Regina (ODPP) JF (Offender) Representation: Counsel: Mr J Viney (Offender) Solicitors: ODPP Solicitor (ODPP) File Number(s): 2020/3118 Publication restriction: Statutory prohibition on publication in relation to identity of the Offender under s578A of the Crimes Act 1900 (NSW) and s15A of the Children (Criminal Proceedings) Act 1987 (NSW) Judgment 1. In this matter JF, "the Offender", appears to be sentenced on a single charge of robbery in company with wounding in breach of s 98 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of 7 years' imprisonment. As the Offender was under the age of 18, namely 17 years 11 months and 3 weeks at the time of the offence, a standard non-parole period does not apply. The maximum sentence is a guidepost, and reflects the seriousness with which the community, through parliament, considers this offending. 2. The offending took place on 23 November 2019. The Offender was arrested on 5 January 2020. On 10 November 2020, he was committed for sentence from the Wyong Children's Court. He has spent no time in custody to date. At the time of the offending, the Offender was subject to concurrent 18 month good behaviour bonds imposed in the Children's Court on 26 September 2019, for drive recklessly/furiously and take and drive a conveyance. Those bonds have been called up and are to be dealt with today. 3. On 10 November 2020, I sentenced a co-offender, Brandon Holland. The sentence imposed was a head sentence of 5 years, with a non-parole period of 2 years 6 months. It was accepted that his role in the offending was more serious than this present Offender, and the principles of parity mean that the present Offender would receive a less severe sentence. Further, Mr Holland was also charged with possess and use a prohibited weapon. The facts relating to the offending in relation to this Offender are set out in the Statement of Agreed Facts, Exhibit A. 4. The Offender was born 30 November 2001. Mr Holland was born 3 June 2000. The victim was born 20 May 1987 and was not known to either of the offenders prior to the date of the offence. The Offender was in a relationship with Rhiannon Cook who was present at the time of the offending. Prior to going to the Doyalson RSL, the victim withdrew $5,400 in cash from his bank, intending to give it to his parents. He went to the RSL with a friend who left before the victim. The victim met a group comprising the Offender, Mr Holland, Ms Cook, Ryan Buxton and Dillon Kennedy. The victim joined the group's table in the outdoor area where they talked and drank together. 5. During the course of the evening, Mr Holland noticed that the victim's wallet was filled with cash. Mr Holland said to Mr Kennedy, "Fuck, fuck it, let's wait until the cunt leaves and roll him". Mr Kennedy declined to get involved so Mr Holland then said to the Offender, "Let's go, let's do it". As the victim was preparing to leave the club, Mr Holland said to Ms Cook, "You pretend to go home". 6. Ms Cook then invited the victim to stay at her house. Footage showed them leaving with Mr Buxton at 9.37pm. The Offender and Mr Holland left at 9.40pm, walking in the same direction. Shortly after 9.45pm, the victim, Ms Cook and Mr Buxton were near the intersection of Wentworth Avenue and Denman Street. The Offender and Mr Holland started running towards the group. They both had shirts covering their faces. Mr Holland was wearing knuckle dusters. When they caught up to the victim, the Offender said, "Are you with my missus, cunt?". The victim replied, "What?". Mr Holland punched the victim to the mouth with his knuckle dusters. The victim attempted to run away but Mr Holland grabbed him by the back of the shirt causing it to rip. The Offender also punched the victim. Mr Holland then punched the victim to the back of the head with the knuckle dusters and said, "Turn around cunt". 7. The victim turned around and Mr Holland punched him again to the mouth with the knuckle dusters. The victim lost consciousness, fell to his knees and hit his forehead on the group. Mr Holland rolled the victim onto his back to wake him and said, "You fucking make one move and I'm going to break your fucking jaw". Mr Holland then searched the victim's pockets and removed his wallet from his back pocket. As this was happening, the victim regained consciousness and lifted his head. The Offender ran up and kicked the victim to the head. 8. Witnesses from neighbouring houses observed the victim being assaulted and came to his aid. When one of the neighbours told the Offender and Mr Holland to stop, Ms Cook yelled, "This is none of your business. He tried to rape me". The Offender, Mr Holland, Ms Cook and Mr Buxton ran to the end of Denman Street and into bushland. There is no evidence suggesting the Offender knew prior to the commencement of the assaults on the victim that Mr Holland had knuckle dusters. The victim stood up but collapsed into the gutter. 9. When the witnesses arrived to assist, the victim was breathing but unresponsive and his eyes had rolled back. At 9.56pm, one of the witnesses called triple-0 and requested an ambulance. The victim regained consciousness a few minutes later. He felt his pockets and realised that his phone and wallet were missing. The wallet contained his driver's licence, bank cards, Medicare card, training cards and between $4,000 and $4,500 in cash. As the ambulance did not arrive, one of the witnesses contacted the victim's father who arrived at 10.45pm and took his son to Belmont Hospital. 10. The girlfriend of Mr Holland at the time picked up Mr Holland, the Offender, Ms Cook and Mr Buxton and drove them to Mr Holland's house in San Remo. Once there, Mr Holland split the cash from the victim's wallet between himself, the Offender, Ms Cook and Mr Buxton. He kept $1,400 for himself and gave $1,000 to the Offender and Ms Cook with $250 given to Mr Buxton. 11. The next day Mr Holland and the Offender gave Mr Holland's former girlfriend their shoes and shorts and asked her to wash grass stains out of them. She washed the items and noticed red marks on one of the Offender's shoes. 12. On 24 November 2019, he was transferred to John Hunter Hospital where he had three posterior scalp lacerations glued and subsequently underwent a CT scan and x-ray. The victim's injuries were: 1. a tetrapod fracture of the left face including a fracture of the left orbital floor; 2. a high fibular fracture of the left ankle; 3. a haematoma to the back of the head; and 4. multiple grazes to his head and body. 1. On 27 November 2019, the victim underwent surgery to insert two screws into his left ankle, and he was subsequently discharged from hospital the following day. He was required to attend follow-up appointments with the fracture clinic and maxillofacial clinic. 2. On the morning of 24 November 2019, police reviewed lawfully intercepted telephone calls from Mr Holland's mobile phone, a service ending with the numbers 977, in relation to an unrelated matter. In a phone call at 10.08pm on 23 November 2019, Mr Holland, in the course of a number of telephone calls, told a third person what had occurred that night. On 27 November 2019, police obtained a search warrant for Mr Holland's residence in San Remo. During the search, police located $750 in cash and shorts and shoes matching those worn by Mr Holland during the commission of the offence. Mr Holland returned home during the search, and was arrested and cautioned. 3. He was taken to Wyong Police Station where he participated in an electronically recorded interview, in which he confirmed he had been at the club with the Offender and Ms Cook but denied robbing and assaulting the victim. On 5 January 2020, police arrested and cautioned the Offender at his home in Lake Munmorah. The Offender said, "I ain't done no robbery" and: "I was trying to break it up. That guy was the one who attacked Mr Holland. The neighbours came running out with baseball bats so I ran." 1. The Offender was taken to Wyong police station where he declined the opportunity to be interviewed and participate in an identification parade. Also forming part of Exhibit A are photographs of the victim, which show the extensive and severe injuries suffered by him. The lacerations to his scalp caused a significant amount of bleeding to the back of his head spreading to the front of his head. 2. The Offender's criminal history includes offending on two other occasions. The first was on 5 April 2019 when he was convicted of driving recklessly, furiously or in a manner dangerous, and take/drive a conveyance without the owner's consent. As I have already noted, in respect of those charges he received concurrent good behaviour bonds pursuant to s 33(1)(b) in the Children's Court. Those bonds commenced on 26 September 2019 and were breached by the subject offending. 3. After the subject offending the Offender was convicted of supplying a prohibited drug, being a small amount of marijuana, some time between 1 April and 15 April 2020. For that he received a Community Corrections Order for a period of 18 months, which will expire 2 December 2021. It includes a community service component of 150 hours, which I understand the Offender has completed. 4. A number of exhibits were tendered on behalf of the Offender at the sentence hearing. The first was a confidential background report by Youth Justice, marked Exhibit 1. The history provided to the author of the report suggested that the Offender had a tumultuous relationship with his father, but is well supported by his mother. There is reference to peer relations at the time of the offending which suggest that they were antisocial connections. 5. His education was completed in 2017 when he finished Year 10. He had earlier transferred from another school as a result of bullying. Upon leaving school he commenced a carpentry apprenticeship before quitting that job after 18 months and then leaving home. 6. He then took up a labouring role for a bricklayer and since April 2020 has been a bricklayer's apprentice. On 2 December 2020 that role suddenly ceased due to inadequacy of shifts, and he recommenced employment with Brandon Lyon of Lyon Masonry. He attends TAFE one day per week in Newcastle. 7. The Offender's mother told the author of the report that he was diagnosed with ADHD at the age of 14 and that he displayed behaviour consistent with that diagnosis since he was a toddler. At the time of the report he was consulting a psychologist, engaged in counselling as a result of anxiety caused by this Court matter. 8. Although his recollection was affected by the substances and alcohol he had consumed prior to the offence, he appreciated the gravity of the offending and expressed remorse. 9. A psychological report dated 1 February 2021 was obtained by Mr Camacho. On mental state examination the psychologist considered that the predominant affect was one of depression. Mr Camacho identified stress, low mood, anxiety and emotional instability of psychiatric and psychological symptoms. The psychologist said that the Offender presented with features of impulsivity and expressed difficulties in concentrating and focusing. Symptoms of depression were reported. 10. Mr Camacho expressed the opinion that the Offender's condition is treatable through a combination of psychological treatment and psychopharmacological therapy. Applying the Beck Inventories for Depression and Anxiety, both depression and anxiety were assessed as being severe. 11. Consistent with my observations of the Offender in Court, he expressed remorse and demonstrated insight into his actions. I observe that the anxiety and depression suffered by the Offender will make any time spent in custody more onerous. 12. A reference was authored by his mother, Exhibit 3. She confirmed the diagnosis of ADHD, difficulties at school and immaturity. She also outlined the circumstances giving rise to the strained relationship between the Offender and his father. It was confirmed that he moved out of home at the age of 17 due to issues with his father. His mother is generally supportive. 13. I have also had regard to a letter from a close friend of the Offender and his family (Exhibit 4). She referred to the Offender as "kind, caring, respectful and friendly". She also expressed that she would provide support to the Offender. 14. A handwritten letter to the Court was prepared by another acquaintance, marked Exhibit 5. He has known the Offender for 6 or 7 years as the Offender attended school with the author's youngest son. Since August 2020 the Offender has been living with the author of the letter and his sons. 15. He has very strict rules regarding alcohol and drugs, with which the Offender has been compliant. He referred to the Offender as a good young man who will make a good life for himself with the support of family and close friends. 16. A letter from the Offender's employer was also tendered, marked Exhibit 6. He confirmed that the Offender is employed as a full-time apprentice bricklayer. He refers to the Offender as a "reliable and conscientious tradesman with increasing commitment". 17. The Offender also prepared a letter to the Court, marked Exhibit 7. He attributed his offending on the night of the incident to drugs and alcohol and expressed remorse. He acknowledged that he was spending time with inappropriate friends. He acknowledged the harm caused to the victim. 18. Written submissions were prepared for the Crown and the Offender, MFI 1 and 2 respectively. There was a high degree of consistency between the submissions made by the parties. The Crown submitted that the objective seriousness was just above the midpoint of objective seriousness for an offence of this type. It was submitted for the Offender that the objective seriousness fell in the mid-range. 19. Having regard to the duration of the offending, the degree of bodily harm suffered by the victim and the loss suffered by the victim, I accept that the submission advanced for the Offender that the objective seriousness of the offending fell at or about the mid-range. 20. I should pause to note that having regard to the bodily harm, I have not had regard to the wounding suffered by the victim as it is an element of the offence under s 98. 21. The Crown submitted that the robbery exhibited a degree of planning. Respectfully, I do not accept that submission. In my opinion, the planning did not exceed that which would ordinarily be expected for offending of this type. 22. It was submitted on behalf of the Offender that although the offending took place in company and the principles relating to joint criminal enterprise arise, it is necessary to assess the respective roles involved in the enterprise. 23. I accept that submission. It is clear that the role of Mr Holland was greater than that of the present Offender for at least the following reasons: 1. the co-offender came up with the idea of robbing the victim; 2. the co-offender brought the weapon to the scene, unknown to the Offender, and it was the knuckledusters that most likely caused the severe injury to the victim's head and face; 3. Mr Holland perpetrated more violence upon the victim than did the Offender; and 4. it was Mr Holland who robbed the victim. 1. The Crown generally agrees with the submission advanced for the Offender as to their respective roles, describing Mr Holland as "the ring-leader of the group". 2. The Crown submitted that the only factor of aggravation was that the Offender was subject to conditional liberty at the time, per s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 19999 (NSW). The Crown conceded that the mitigating factors which exist were: 1. a limited record of prior convictions relating to motor vehicle offences, 21A(3)(e); 2. the Offender's youth, limited criminal antecedents and the favourable testimonials. The Crown accepted that the Offender had reasonable prospects of success in rehabilitation and of not reoffending, per ss 21A(3)(g) and (h), 3. that the Offender may not have been fully aware of his actions due to his youth, per s 21A(3)(j); and 4. the Offender entered a plea of guilty, s 21A(3)(k). 1. I accept the Crown submissions in relation to the aggravating and mitigating factors, and make those findings accordingly. Although the Crown submitted against such a finding, I am satisfied that the Offender has demonstrated remorse in that he has acknowledged the consequences of his offending and his responsibility for same. 2. Remorse was also demonstrated in the report to the psychologist, Mr Camacho, and in the course of giving evidence in the sentence hearing. I find that the Offender is genuinely remorseful. 3. In respect of youth, the Crown referred to the decision of KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 per McClellan CJ, the Chief Justice at Common Law, where his Honour stated: The law recognises the potential for the cognitive, emotional, and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. Where the immaturity of the offender is a significant factor in the commission of the offence the criminality involved will be less than if the same offence was committed by an adult. 1. His Honour went on to talk about the added emphasis to be given to rehabilitation as a general deterrence and retribution when sentencing young offenders, although stressed that such emphasis may be moderated in circumstances where the young person acted as an adult engaged in committing a crime of violence or considerable gravity. 2. There is no doubt that the offending engaged in by the Offender was serious and the injuries suffered by the victim were significant. That, in my view, justifies some emphasis being given to general deterrence and protection of the community. Nevertheless, rehabilitation remains a dominant consideration. I also have regard to the other purposes for sentencing in s 3A of the CSP Act. 3. Counsel for the Offender referred to s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) which sets out the principles relating to sentencing a juvenile. Although the present Offender is now an adult, the offending occurred when he was a minor, and the principles referred to in s 6 still have application. I have taken those principles into account in determining the sentence in this matter again emphasising the need for rehabilitation. 4. Counsel for the Offender referred to the psychiatric conditions referenced by Mr Camacho in his report of 1 February 21. I accept that when assessed, the Offender presented with extreme symptoms of both anxiety and depression. Counsel for the Offender accepted there was no clear nexus between the condition diagnosed by Mr Camacho and the subject offending. Although Mr Camacho diagnosed a number of conditions from which the Offender would have been suffering at the time of the incident, being depression with associated symptoms, he did not in any way link that condition to the offending. 5. As mentioned previously, the psychiatric conditions from which the Offender suffers will cause his time in custody to be more onerous than for others. This is amplified by his age, and the fact that this will be his first time in custody. On that basis, I find special circumstances. 6. It is conceded by counsel for the Offender that the s 5 threshold was crossed. I accept that submission, and find that no sentence other than one of imprisonment to be served by way of full time custodial sentence is appropriate in the circumstances. 7. The Crown referred to the guideline judgment of R v Henry (1999) 46 NSWLR 346, submitting that factors (i), (ii), and (iii) fully apply, with factor (v) partially applying. In respect of (iv) (limited, if any violence but a real threat thereof) the Crown submitted that this case was more serious. I accept that submission. In relation to (vi), small amounts taken, and the Crown also submitted that this case was more serious. I also accept that submission. 8. Unlike Henry, this was not a case of late plea. The Offender pleaded guilty at an early time, and is entitled to a full discount of 25% upon sentence. I also observe that this offending was for the more serious charge under s 98. 9. In Henry, that offender was given a discount on sentence of 10% representing the late plea. The guideline judgment suggested a range of sentences of between 4 to 5 years' imprisonment. When adjusted for 25%, that range becomes 3 years, 4 months to 4 years, 2 months. The guideline judgment is, however, just that: a judgment which is for a sentencing judge. 10. Mr Viney, is your client's mother in court? 11. VINEY: She is. 12. HIS HONOUR: What other family members are there? 13. VINEY: His aunty, his girlfriend, and some other friends, your Honour. 14. HIS HONOUR: Before I convict and sentence your client, does his mother want to speak with him privately? 15. VINEY: She'd appreciate that. They had said their goodbyes at the front of the courtroom anticipating the-- 16. HIS HONOUR: I'll wait a few minutes for the Correctives anyway, so if she wants to use that time. 17. VINEY: Thank you, your Honour. 18. HIS HONOUR: Could you please call Correctives? 19. Can I explain to the mother of your client, and to your client, that ordinarily in New South Wales when someone goes to prison as you will, there's a non-parole period of 75%. That is the period during which he cannot leave prison. Based on your age, the psychologist report and your remorse, I've reduced that from 75% down to 50%, so you will be released earlier than normal, and I've given you what I considered to be the lightest sentence that I can justify in all of the circumstances. 20. VINEY: Thank you, your Honour. 21. HIS HONOUR: I do encourage you both in prison and when you get out, to change your ways. I know you've already started doing that. Take advantage of whatever courses you can do in prison and when you get out, take advantage of the family support you have and also any rehabilitation by way of counselling and the like that you can get access to. 22. OFFENDER: Thank you. 23. HIS HONOUR: What will happen in a moment is I will convict you of the charge and sentence you. Two Correctives officers will come up and handcuff you and take you into the cells downstairs and you'll be transported by a Correctives van to prison. 24. Please stand, sir. 25. JF, you are convicted of the offence of robbery with wounding in breach of s 98 of the Crimes Act 1900 (NSW). After a discount of 25% for your guilty plea, you are sentenced to a term of imprisonment comprising a non parole period of two years commencing today, expiring 14 March 2023 with a balance of term of two years which will expire on 14 March 2025. The effect of the sentence is that you will be eligible to be considered for parole on 14 March 2023. 26. In relation to the breach call-up matters, I note the convictions which were recorded on 26 September 2019 at the Woy Woy Children's Court, the breach of the good behaviour bonds imposed in respect of those convictions, and take no further action. Those bonds are revoked. 27. Do you understand the sentence? 28. OFFENDER: (No verbal reply) 29. HIS HONOUR: Okay, just take a seat. 30. I also direct that a copy of the report by Mr Camacho, psychologist, accompany the Offender's Warrant of Commitment. 31. HIS HONOUR: Do you have any questions? 32. VINEY: Thank you, your Honour. 33. OFFENDER: Can I talk with my girlfriend and my mum? 34. HIS HONOUR: Yes, of course. Just remain in the dock though, they can approach you. 35. Mr Dickinson, is there anything arising from that? 36. DICKINSON: No, your Honour, your Honour has covered everything. 37. HIS HONOUR: Mr Viney? 38. VINEY: No, nothing your Honour, thank you. 39. Thank you, Correctives officers, this is JF. Would you please take him into custody. There's a psychologist's report which will be accompanying his Warrant of Commitment. 40. CORRECTIVE OFFICER: Certainly, your Honour. 41. HIS HONOUR: Thank you. As I am of the opinion that family support both during and after the time in custody is an essential component of the Offender's rehabilitation, I respectfully ask that Corrective Services consider placing the Offender at a correctional facility being the prison closest to his family. I acknowledge that Corrective Services have many demands placed on them and do not wish to add to that. The location of your imprisonment is a matter solely for the determination of Corrective Services. ********** NOTE: A. These remarks on sentence were revised without access to the Court File. I certify that the previous 84 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC. J Bailey Associate Amendments 29 June 2021 - Correct spelling error in NOTE. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2021