Local Court of New South Wales CITATION: Police v OWP [2008] NSWLC 8 JURISDICTION: Children's Court PARTIES: Police OWP FILE NUMBER: PLACE OF HEARING: Wagga Wagga DATE OF DECISION: 05/19/2008 MAGISTRATE: Magistrate G Lerve CATCHWORDS: Sentence – juvenile offender – malicious damage by fire to school – substantial damage – full time custodial sentence called for LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 R –v- AN [2005] NSWCCA 239 R –v- Barlow [2008] NSWCCA 96 R –v- Dodd (1991) 57 A Crim R 349 R –v- KT [2008] NSWCCA 51 CASES CITED: R –v- Leese [2007] NSWCCA 108 R –v- LNT [2005] NSWCCA 307 R –v- Mazur (2000) 113 A Crim R 67 R –V- MSS [2005] NSWCCA 227 R –v- WKR (1993) 32 NSWLR 447 R –v- Zamagias [2002] NSWCCA 17 TEXTS CITED: REPRESENTATION: S/Sgt. S. Turner, Police Prosecutor Mr. J. Barnett of Counsel for and with young offender ORDERS: Remarks on Sentence 1. This matter came before me on 15 April 2008 when I was sitting at Wagga Wagga hearing another matter and I offered assistance. Counsel for the offender and the prosecutor made submissions on that date. The matter was adjourned to 19 May 2008 to suit the availability of Counsel. 2. The young person stands charged for that: "(He) on 27 January 2008 at Wagga Wagga in the State of New South Wales, did break and enter the school of St. Joseph's Primary School of the Catholic Diocese of Wagga Wagga, situate at the corner of Johnston and Tarcutta Streets, then did commit a serious indictable offence, (namely) malicious damage by fire, contrary to s. 112(1) of the Crimes Act 1900. 3. Before I proceed any further in this matter there is a preliminary question of jurisdiction. Material tendered on sentence by the prosecution indicates that the amount of damage occasioned by reason of the young person's offending was $2.24 million, plus GST. The prosecution raised the issue and initially submitted that I should at least give thought to sending the matter to the District Court for sentence. Sections 31 (1) – (3) of the Children (Criminal Proceedings) Act 1978 provides: " Hearing of charges in the Children's Court (1) If a person is charged before the Children's Court with an offence (whether indictable or otherwise) other than a serious children's indictable offence, the proceedings for the offence shall be dealt with summarily. (2) Notwithstanding subsection (1): (a) if a person is charged before the Children's Court with an indictable offence (other than an offence that is punishable summarily without the consent of the accused), and (b) if the person informs the Children's Court (at any time during, or at the close of, the case for the prosecution) that the person wishes to take his or her trial according to law, the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2–4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act. (3) Notwithstanding subsection (1): (a) if a person is charged before the Children's Court with an indictable offence, and (b) if the Children's Court states that it is of the opinion, after all the evidence for the prosecution has been taken: (i) that, having regard to all the evidence before the Children's Court, the evidence is capable of satisfying a jury beyond reasonable doubt that the person has committed an indictable offence, and (ii) that the charge may not properly be disposed of in a summary manner, the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2–4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act and as if the Children's Court had formed the opinion referred to in section 62 of that Act. 4. There was apparently no suggestion made by the prosecution on 4 March 2008 when the matter was first before the Court that there would be any application for the Court to commit the matter to the District Court for sentence. Nor was any action taken in that regard by the prosecution up to the date on which the matter came before me. I note that in his submissions the prosecutor submitted that "the least" sentence that would be considered appropriate was a suspended sentence. I also note however, that the prosecutor before me was called upon at very short notice to appear after I indicated that I would be available to take matters from the other court. The application that the matter goes to the District Court for sentence was not vigorously pursued. Mr. Barnett of counsel was not expecting any such submission, and indeed, he was prepared to make his submissions on sentence. Given these circumstances, albeit with some misgivings, I will continue to deal with the matter. 5. A plea of guilty was entered on 4 March 2008, that being the date the matter was first before the Court. The matter was thereafter adjourned to 15 April 2008. A juvenile justice background report was ordered, and has since been prepared. The 4 March 2008 was the first occasion the matter was before the Court. Accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. Facts 6. As is the usual practice in the Local and Children's Court the facts were presented in a Police Fact Sheet. The learned Magistrate who presided on 4 March 2008 noted on the Fact Sheet that that document was tendered with the consent of Counsel for the offender. I will proceed on the basis that what is contained within those facts are agreed facts. Those facts are: "St. Josephs Primary School is a privately run Catholic School within the Catholic Diocese of Wagga Wagga. About 4am on Sunday 27 January 2008 the young person, police spoke to OWP on the corner of Johnston and Tarcutta Streets. Shortly after, police discovered a fire in a classroom at the location. Fire Brigade immediately attended the scene and attempted to extinguish the fire. The whole building on the northwest side was engulfed in fire. The fire was extinguished at 8.19am and handed to police as a crime scene. As a result of the fire, the building has suffered extensive damage to 70 percent of the school buildings with a conservative estimate of $2.2 million. The following rooms have been totally destroyed by fire. Rooms 6, 5 and 4. Administration, Principal's office, Hallway and Kindergarten. The library and two other classrooms were not destroyed by fire, however (there is) considerable smoke and water damage. AT 11.45 am on Sunday 27 January 2008 police attended the young person's residence. He was spoken to in relation to the fire, making partial admissions to his involvement. He was arrested and conveyed to the Wagga Wagga Police Station were all safeguards of LEPRA were followed. The young person nominated a witness, Gus Ashby, as being present during the offence, however playing no active role. Ashby was spoken to and interviewed by police, confirming the young person's commission of the offence. The young person was electronically interviewed in the presence of his father, making full and frank admissions to the offence. During the interview he stated he broke the door handle from a classroom door on the western side of the building. He used this handle to smash the window, enabling him to place his hand inside the room and open the door. Inside the room he removed numerous articles from the cupboards, scattering them around the room. The young person removed a religious statue (Mary) and a number of computer monitors, placing them outside the door. He placed two textbooks on the floor adjacent to the doorway. He spread paint around the books and wall to assist in ignition. He lit one book with a cigarette lighter and placed it on the pile of books, causing the pile to catch fire. He stated that he did not intend on burning the school down. When questioned over the likelihood of the fire spreading through the entire school, the young person stated that it was not his intention, however, he acknowledged when put to him that this was a real possibility. The description of the offence as described by the young person is consistent with the evidence gathered at the crime scene. Police have obtained forensic evidence from the scene and will make application for a forensic procedure upon the young person's first court appearance". 7. In addition to the Agreed Facts, the prosecution tendered in the sentence proceedings an assessment as to the quantum of damage. The report prepared by Mark G. Golden and Associates, Architects indicates that the total sum required to rectify the damage is $2,244,961.00, plus GST. Assessment of the Criminality 8. The young offender deliberately broke into the school. He deliberately set a fire after ransacking one of the rooms. Books and the like were placed around in order to assist in ignition of the fire and to provide fuel for that fire. The fire caused extensive damage. There is no evidence before me but it must be the case that the fire would have caused very considerable disruption to the staff and pupils of the school, noting in particular that the fire occurred very close in time the commencement of the 2008 school year. The damage caused is conservatively estimated to be in the vicinity of $2.2 million (plus GST). In all of these circumstances, I am firmly of the opinion that given the amount of damage occasioned, this matter is very much towards the upper end of the range of seriousness for offences of that type. Maximum Penalty 9. The maximum penalty if dealt with on Indictment is 14 years imprisonment. However, this is a matter to be determined in the Children's Court. The maximum sentence available pursuant to s. 33(1)(g) of the Children (Criminal Proceedings) Act 1987 is a sentence of Control of the Minister for a period of two years. Matters of General Principle 10. Although the charge is one brought contrary to s. 112(1) of the Crimes Act, the real criminality with which I am dealing is the malicious damage by fire. In the decision of the Victorian Court of Appeal in R-v- Mazur (2000) 113 A Crim R 67 at 74 Winneke P said at [27]: "…I agree with Brooking JA that courts imposing sentences for arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate". The Court was, of course, dealing with adult offenders. However, it is a very clear statement as to how serious the crime of malicious damage by fire (arson) is regarded. 11. Section 33(2) of the Children (Criminal Proceedings) Act 1987 provides that the Court shall not (and is therefore in mandatory terms) deal with a person under subsection (1)(g) (i.e. a sentence of Control Order or custody) unless it is satisfied that it would be wholly inappropriate to deal with the person under subsection (1)(a)-(f). 12. Generally, the aspect of rehabilitation will be of much greater significance when sentencing juvenile offenders. However, the criminality and other aspects of the sentencing process cannot be overlooked, particularly in circumstances where the criminal offence under consideration is a serious one. Sully J. in R –v- WKR (1993) 32 NSWLR 447 at p. 465 (paragraph F): "In my opinion, it needs to be said without apology or diffidence that there is a great deal wrong with such aberrant 'standards of behaviour' and that young boys (and girls), who think otherwise must understand that, should they act accordingly, they will be held accountable according to the law as set by parliament, that being a process which will normally entail a period of imprisonment. In my opinion, cases such as the present one both entitle the court, and impose a duty on the court, to give such a warning in the hope of deterring other teenagers, especially very young teenagers, who might be tempted to offend in the way in which the present applicant has offended". 13. Sully J. was, of course, dealing with offences of a different nature than those with which I am sentencing this young offender. However, it is my opinion, with unfeigned respect to Sully J., that as matters of general principle his Honour's remarks are equally applicable. Again, with unfeigned respect to Sully J., his observations are particularly apposite in the case with which I am now dealing. 14. More recently, the Court of Criminal Appeal has further considered the aspect of sentencing juvenile offenders in the decisions of: · R –v- MSS [2005] NSWCCA 227 · R –v AN [2005] NSWCCA 239; and · R –v- LNT [2005] NSWCCA 307. 15. R –v- MSS deals particularly with the issue of whether the superior Courts should deal with a juvenile according to law, or as a juvenile. The Children's Court generally does not have that option. However, the decision of the Court of Criminal Appeal in R –v- WKR (1993) 32 NSWLR 447 has certainly been confirmed in that regard. 16. McClellan CJ at CL in the more recent decision of R –v- KT [2008] NSWCCA 51 reviewed the authorities relating to sentencing juveniles. At [21]-[26] his Honour said: "21 Section 6 of that Act provides legislative guidelines in the treatment of young offenders: "A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles: (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind." 22 The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. 23 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. ( R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence ( Hearne at [24]). 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. ( Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). 24 Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135): "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes , particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society." 25 The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity ( R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" ( Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence ( Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. 26 The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity ( R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age ( R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth ( Hearne at [27]). 17. In the matter presently under consideration the Court is dealing with a young offender who was 16 years and 8 months of age. Clearly, rehabilitation remains a very important consideration in dealing with this offender. However, as the various authorities referred to by McClellan CJ at CL in KT the seriousness of the offending, the extent of the damage, retribution and denunciation do not cease to be relevant considerations in the sentencing exercise. This matter did not include the use of a weapon, although it does involve the deliberate setting of fire within a school building. There was not significant planning or pre-meditation, but the matter does involve planning to the extent of entering the building, and spreading flammable and combustible material in order to assist the establishment and spread of the fire. The young offender has no criminal history. It needs to be acknowledged, that although the consequences are almost invariably very serious, offences involving arson at schools are generally committed by juvenile offenders. Juvenile Justice Background Report 18. As usual, the Background Report from the Department of Juvenile Justice is comprehensive and thorough. The report recounts the offender's account that he did not intend to cause the damage that was done. There is nothing within the material before me to cause me to doubt this. The report also recounts that the decision to set the fire was very much on the "spur of the moment." 19. Further, the report indicates that the parents of the young offender separated in 1999. In the past few years the two parents have had "shared custody". Although the separation was "amicable" it seems that at least recently there has been conflict. Both parents indicated that they were "shocked" at the involvement of their son in this offence. The offender has been living with his father while on bail for this offence. 20. The offender attended the school, which was the object of the crime on which I am to pass sentence. He was apparently an "above average" student, and he excelled in the school sports. He is apparently to some extent uncertain about what he wants to do with himself, but has contemplated an apprenticeship in plumbing or "heading north to work in the mines". The offender is financially dependent on his parents. 21. The report indicates that the offender is involved in the normal type of social activities normally pursued by young men of the offender's age. There are no apparent concerns held by the offender's parents about the peer group with which the offender associates. 22. It was (and presumably remains) the opinion of the author of the report that the offender would benefit from entering the work force. 23. For the purposes of proceeding to sentence, I accept the various matters contained within the report. However, in all the circumstances, I cannot adopt the sentencing recommendation of the author. The author of the reports recommends that the young offender be referred to a Youth Justice Conference. Apparently, a representative of the St. Joseph's School P & C Committee is prepared to make further inquiries to gauge the level of support for such an outcome. As a secondary recommendation the report recommends Community Service, or at most, a sentence of Control Order but which is suspended. Psychologist's Report – Dr. Roger Blake 24. In this matter I am also substantially assisted by a report prepared by Dr. Roger Blake, Registered Psychologist. The Court was informed today (19 May 2008) that the young offender's mother took him to Dr. Blake in an effort to assist. The attendance was not initially intended for the Report that has since been tendered. The report indicates that the offender is not operating under any cognitive limitations and is of sound intellectual ability. Further, the report reveals that the offender may well have limited insight into his own psychological state. Clearly there are some "interpersonal" issues. Elevation exists on the "persecutory ideas" subscales. 25. Dr. Blake is of the view that the offence for which the offender now stands for sentence was "impulsive and not reflective of premeditated arson". This is generally consistent with the contents of the Juvenile Justice Background report, and indeed, the manner I have assessed the criminality. 26. However, Dr. Blake's report sheds very considerable light on the personal background of the offender. The offender's parents have been estranged for nine years. The offender's father it seems has been in conflict with the law over the years for drink driving and assault matters. Further, and significantly, the relationship between the offender and his father has been one of "mateship and confidant" rather than the traditional father/teenage son relationship. 27. The report also reveals that on the day of the commission of the offence the offender had been to the Wagga Wagga Races where he had consumed about five alcoholic drinks. Dr. Blake reports that attendance at the races is a "quasi right of passage for many Wagga teenagers". Alcohol is not seen as a relevant factor. However, the offender was "ruminating on what the injustice of what he perceived to be endless rumours about his father and his father's alleged aberrant behaviour in Wagga and what would seem to be his own powerless passivity to do anything about the rumours". 29. Then, the report goes on to recount the offender's version. He entered the grounds to get a drink, it was his old primary school that the offender thought "was just another place where I was treated unfairly by people who didn't listen". He thought he would "just mess up the room a bit" and "it would burn a hole in the carpet, that's all". Regrettably, that was "not all". 30. Dr. Blake's report gives considerable insight as to the circumstances in which the offence occurred. There is no reason to doubt any of the contents of Dr. Blake's report. Subjective case 31. Four testimonial references were tendered, the authors of which seem to be aware of the predicament in which the offender now finds himself. Those references speak well of the offender and indicate that at least to them he appears remorseful. Ms. Ragnedge speaks highly of the offender's work ethic. Further, the referees indicate that the conduct of setting fire to the school is very much "out of character". 32. Mr. Barnett in his comprehensive plea in mitigation submitted that the plea of guilty was at the first opportunity, and further that the plea in this matter was very valuable. This must be correct. Indeed, Mr. Barnett was at pains to remind the Court of the value of the plea in further brief submissions today. He indicated that there were 15 police and 20 civilian witnesses. If this matter had proceeded on a defended basis, it would have taken several days of Court time. Much of the detail that is known about the fire has come from the admissions made by the offender. As I observed to Mr. Barnett today, the facts do not of themselves indicate a particularly strong or overwhelming prosecution case. Mr. Barnett however, recognised the seriousness of the offence given the amount of damage that was caused. 33. Further, Mr. Barnett relied heavily on the contents of the Juvenile Justice Report and Dr. Blake's report. The submission went that the offender must have "impressed" the author of the Juvenile Justice Background report. Superficially, that submission has substance, but it is the court's experience that the Juvenile Justice Background reports are almost invariably favourable, and moreover, almost invariably optimistic in their recommendations as to sentence. 34. It was put, and I accept that despite their differences, the offender's parents are "united in supporting their son". Mr. Barnett elaborated on the issue of some of the inappropriate aspects of the relationship between the offender and the offender's father. It was put, and I accept that in the course of that relationship the father placed too much reliance on his son, which in turn induced undue pressure on his son. 35. Mr. Barnett went on to make submissions about the "immediate precursor" to the offence, namely, the attendance at the races and the inappropriate comment from one of his female acquaintances, such comment being to the effect that she had been warned by her mother to stay away from him because he would "turn out like his father". 36. It was emphasised on behalf of the offender that he did not intend to cause the amount of damage that did occur. That much is accepted. This is also consistent with the contents of the Juvenile Justice Background Report and Dr. Blake's Report. The fact remains that over two million dollars damage was occasioned to a school as a result of the offender's criminal conduct. 37. Since the fire the offender has made contact with representatives of the Fire Brigade and has spent some hours with that representative. The offender is to be commended on this, and it is hoped that this has given the offender greater insight into the consequences of his offending. It was put and I accept that the offender is genuinely remorseful. Further, it was put and I accept that the offender has found the matter overwhelming. Today, Mr. Barnett tendered two further references, one from a Mr. Reynolds, now a practicing solicitor, but previously the foundation Principal of the School, and the other from Fr. O'Reilly. Both speak highly of the young man. Fr. O'Reilly is to be commended on his attitude to the young offender. Both indicate that the offence with which I am now dealing is out of character. Both speak well of the young offender. General Remarks 38. Although I am dealing with a juvenile offender, given the amount of damage occasioned I am dealing with a very serious crime. Not only is the material value of repairing the damage very high, there is also the undoubted and very considerable disruption to the students and teachers of the school. As I have already observed, this offence was committed at or very near the commencement of the school year. As discussed above when referring to the relevant authorities in sentencing juvenile offenders, although rehabilitation must feature prominently in the sentencing exercise, the usual considerations present in any sentencing exercise cannot be overlooked. Even in the Children's Court, there must be some proportionality between the offending and the penalty imposed. 39. In this regard, the Court of Criminal Appeal (Gleeson CJ; Lee CJ at CL and Hunt J.) in R –v- Dodd (1991) 57 A Crim R 349 said at p. 354: "As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594." 40. The author of the Juvenile Justice Background Report recommends that the offender be referred to a Youth Justice Conference. If that course were taken, and the offender completed his obligations, the matter would ultimately be marked "dismissed". If this young offender was referred to a Youth Justice Conference, the community would in my view be justifiably outraged at the manifest inadequacy of the sentence. Exception was taken to a similar expression on the appeal in the matter of R –v- Leese [2007] NSWCCA 108. Hoeben J. (McClellan CJ at CL, Hall J. agreeing) said at [22]: "In my opinion no error on the part of his Honour has been identified. By referring to community outrage his Honour was doing no more than taking into account that right minded members of the community would regard the criminality of this offence as such that it ought be denounced by a sentence of imprisonment". With respect, for the author of the Report to recommend a Youth Justice Conference was merely giving the young offender false hope. 41. At the hearing on sentence on 15 April 2008 I indicated that my preliminary view was that a substantial sentence of full time custody was the only appropriate sentence. I have reviewed the relevant authorities, and have given very close consideration to the Background Report, Dr. Blake's Report, the testimonials and the submissions made on behalf of the young offender. However, in all of the circumstances, despite all of those matters, I have come to the conclusion that no other sentence other than full time custody is available. This is despite the fact that the prosecutor submitted that "the least" sentence the court should be considering was a suspended sentence. I am not bound by that submission by the prosecutor. 42. The next issue is whether that sentence should be suspended. Howie J. in R –v- Zamagias [2002] NSWCCA 17 said at [32]: "Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." The decision of the Court of Criminal Appeal in Zamagias was recently affirmed by the Court of Criminal Appeal in R –v- Barlow [2008] NSWCCA 96 at [58]-[59]. 43. I again remind myself that I am dealing with a juvenile offender. However, in all of the circumstances, I am of the opinion that the objective seriousness of this offence is such that I am unable to suspend the sentence of Control Order that I am about to impose. Although I am dealing with a juvenile, there must be some element of general and specific deterrence in the sentence. However, given the offender's age, and lack of record I am satisfied that there are "Special Circumstances", and accordingly, I will slightly vary the statutory ratio. 44. Although I have found that this matter is towards the upper end of the range of seriousness, I have not found that it is within the "worst type category". In the matter presently under consideration while the fire was deliberately lit, there was no great degree of planning, and I accept that it was not intended that there be the very substantial amount of damage that there was actually occasioned. 45. In all of the circumstances, taking into account the various matters of principle to which I have referred, the objective seriousness of the offending, the amount of damage occasioned, the various reports and testimonials and the subjective matters put, given the maximum sentence available is a Control Order of two years I assess the criminality worthy of a total sentence of 22 months. Allowing the discount for the plea of guilty and some mathematical "rounding down" (which is in favour of the offender) the total sentence is one of 16 months. Formal Orders 46. The offender is convicted. Consequent upon that conviction the offender is sentenced to the Control of the Minister for a non-parole period of 11 months to commence on 19 May 2008 and to expire on 18 April 2009. Thereafter, I specify a balance of term of 5 months to commence on 19 April 2009 and expire on 18 October 2009. Gordon Lerve Children's Magistrate Wagga Wagga Children's Court 19 May 2008. 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.