R v KMD [1999] NSWSC 1171

New South Wales Supreme Court CITATION : R v KMD [1999] NSWSC 1171 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 70009/99 HEARING DATE(S) : 26 November 1999 JUDGMENT DATE : 1 December 1999

PARTIES : REGINA v KMD JUDGMENT OF : Barr J at 1

COUNSEL : Crown: P Lynch Prisoner: L Flannery SOLICITORS : Crown: S E O'Connor Prisoner: Legal Aid Commission of NSW CATCHWORDS : DECISION : See paragraph 24

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Wednesday, 1 December 1999

70009/99 - REGINA v KMD

JUDGMENT 1 HIS HONOUR: On 27 January 1999 the prisoner, whom I shall refer to by his initials KMD, was committed to this Court for trial on a number of serious offences, including murder and several counts of aggravated robbery. On 1 October 1999 the Crown presented an indictment containing two counts and the prisoner pleaded guilty to them both. They were that on 9 March 1998 at Marrickville he robbed Toan Van Doan of a gold chain, a wallet and some money and at the same time used corporal violence upon him and that at the same time and place he robbed Cong Hai Nguyen of a television receiver, a video cassette recorder, some hi-fi equipment, two leather jackets, a gold chain, a telephone and a wallet and at the same time used corporal violence upon him. 2 The prisoner was born on 12 September 1981, so he was sixteen and a half years old when he committed the offences. It is therefore necessary to have regard to the provisions of the Children (Criminal Proceedings) Act 1987 in imposing sentence. By s 95 Crimes Act these offences attract a maximum penalty of twenty years' penal servitude. They are not serious indictable offences for the purposes of the Children (Criminal Proceedings) Act: ss 3, 17, reg 5. In accordance with s 18 of the same Act, therefore, the Court may deal with the prisoner according to law or in accordance with Div 4 of Pt 3 of the Act. 3 On 9 March 1998 the prisoner and six other youths or young men went together to a house in Marrickville where Cong Hai Nguyen lived, intending to buy heroin from him. The others were Aaron Anderson, Michael Poa, David Hooker and three youths to whom I shall refer by their initials, which are PS, SB and RA. 4 A man called Duc Hoang Do was visiting Mr Nguyen at the time. The prisoner and his colleagues purchased and smoked heroin and while that was going on one of them suggested that they rob Mr Nguyen and Mr Do. They all agreed. As Mr Do walked into the lounge room from the kitchen he was punched by Michael Poa and knocked across the room. He was there punched and kicked and lay unconscious in the corner of the room. Mr Nguyen entered the lounge room and he too was attacked, being kicked and punched in the face and in the head. His trousers were ripped as his attackers removed his wallet and he was kicked in the chest. Some of the offenders began to remove property from the flat. As that happened Mr Nguyen managed to get away. 5 During the course of the robbery Toan Van Doan, another friend of Mr Nguyen entered the flat. He was forcibly carried into a bedroom and attacked. He lost consciousness. 6 During the attack David Hooker was searching a lounge chair, hoping to find concealed drugs, and found a large knife. He used it to stab Mr Do and Mr Doan. Mr Do died of his wounds and Mr Doan was seriously hurt. He had to have thirty-seven sutures to the head and had to undergo an operation to remove a blood clot from his brain. 7 The belongings which I mentioned earlier in summarising the charges were removed by the attackers and they all got away in a car. 8 Although the prisoner joined in the attack and was thereby responsible for the punching and kicking of Mr Doan and Mr Nguyen it is no part of the Crown case that the prisoner personally caused any injury. Of course, the finding of the knife by Hooker was never contemplated by the prisoner and it has not been suggested that he is responsible for injuries inflicted by its use. 9 I accept that the attack was launched on the spur of the moment and that the only intent of the prisoner in going to the flat was to purchase heroin. 10 The prisoner was born in South Vietnam and lived in that country until 1989. He went to primary school there. He never knew his father. He came to Australia in 1989 with his brother and they lived with their mother, their step-father and their five children. Although the prisoner formed a strong bond with his brother and his half brothers and sisters he never related well to his step-father, who was cruel and a drunkard. He left home and lived mainly on the streets, though he spent some time with his maternal grandparents and some time in the Liverpool Youth Refuge. His understanding of English was poor and he did not do well in high school. He was dealt with in the Children's Court in 1997 and 1998 for possessing a prohibited drug, possessing car breaking implements, maliciously destroying or damaging property and entering a vehicle without consent. Control and probation orders were made. Apparently the first serious attempt he made at any educational course was during a period he spent at Mount Penang Juvenile Justice Centre in 1997. 11 After his arrest on 1 April 1998 he went to Kariong Juvenile Justice Centre and took up educational programs he had begun the previous year at Mount Penang. He completed a number of courses including practical courses. 12 His experience in the juvenile justice system was not trouble-free. For the seventeen-month period between April 1998 and October 1999 he was at Kariong Juvenile Justice Centre and Mr Harry Smith was his crisis manager. He was involved in about ten incidents, ranging from hitting other residents with a tennis racket to possessing tobacco. He refused instruction. Five of the ten incidents occurred during the first five months. Even so, the prisoner was not considered a management problem by staff. 13 Early in 1999 a program was introduced at Kariong in which detainees who were involved in full-time or school programs and whose behaviour was of a good standard would be placed in a privileged unit. The prisoner was selected and maintained his place in that unit for most of the year. He eventually became the elected unit representative, demonstrating a mature approach to the program and volunteering for necessary tasks. Those in charge of him were impressed and other detainees responded to his maturity and leadership. 14 For most of time at Kariong he was in school full-time. He was always polite and co-operative with his crisis manager, prepared to answer questions about his personal life and willing to work towards solutions to his problems. He was amenable to counselling, including group counselling. At the same time he was building his relationship with his family, who supported him. 15 His stay in the juvenile justice system came to an end in October 1999 when he was sentenced to six months' imprisonment in the adult penal system following his conviction by a magistrate of a charge of assaulting one of the staff at Kariong. Apparently he had an altercation with another inmate and threw a broom at him. The broom missed the target and hit the staff member, causing a nasty injury. The incident arose out of tension between Asian and Aboriginal inmates. On 26 November I granted him bail pending his appeal to the District Court against the sentence and the effect will be, at least for the time being, that he will be able to continue in the juvenile justice system. 16 I accept the submission of counsel for the prisoner that, given appropriate supervision, guidance and opportunity he will respond and continue his course of rehabilitation as he matures. Because he was only sixteen when he committed these offences, any sentence imposed by this Court must concentrate on the need for rehabilitation. 17 Three of the prisoner's six companions have been dealt with in the courts. Hooker was convicted and sentenced for the murder of the man who died and for counts identical to those to which the prisoner has pleaded guilty. On the robbery counts Hooker received an effective sentence of five years, comprising a minimum term of three years and an additional term of two years. However, Hooker used the knife and his sentences took that important fact into account. The prisoner, on the other hand, was not responsible for Hooker's use of the knife. 18 The remaining offenders were dealt with in the Children's Court. PS pleaded guilty to one count of robbery in company and was sentenced to one year's probation, after five months in custody were taken into account. SB pleaded guilty to two counts of aggravated robbery. On one he received eighteen months' probation and on the other a control order comprising a minimum term of nine months and an additional term of three months. 19 A report was provided for the Court by Ms Emma Collins, intern psychologist at the Blacktown Intensive Programs Unit of the Department of Juvenile Justice. Ms Collins also gave oral evidence which I found impressive. As a result of that evidence I am left with the overall impression that while the prisoner continues to have serious problems of anger management and impulsivity, he has a substantial chance of turning around if required to live and work in a controlled environment. 20 Ms Collins reviewed the sentencing options, including those in Pt 3, Div 4 Children (Criminal Proceedings) Act. In view of the seriousness of the offences the only realistic orders that could be made in this case, other than dealing with the prisoner according to law, are those set forth in s 33(1)(e)-(g), which provide for probation not exceeding two years, community service work and an order of committal to the control of the Minister for a period not exceeding two years. 21 Ms Collins considered the prisoner unsuitable for community service work. In her written report she considered a control order unsuitable but that, I think, was because of her knowledge that in the meantime the prisoner had been sentenced to serve six months in an adult gaol. In her oral evidence she observed that her recommendation would change if the prisoner ceased to be in the adult gaol. She would then, she said, probably recommend a control order. A control order is the most serious of the orders that may be made under the provisions of Pt 3 Div 4 of the Act. 22 Barnardos Post Release Options Project is a program funded by the Department of Juvenile Justice which assists young people in the final weeks of a custodial sentence with accommodation and re-entry into the community. The co-ordinator and staff of the program are aware of the prisoner and will help him when he is ready to be released, especially in fostering support from his family. 23 It seems to me that I should not deal with the prisoner according to law but that I should impose a control order and a probation order the effect of which will be to allow the maximum possible flexibility in structuring programs for the prisoner's rehabilitation. I think that he should be given the opportunity to enter the Barnardos program as soon as he is ready. I accept the opinion of Ms Collins that it is desirable for the prisoner to attend a violent offender program and that he would benefit from drug related counselling. 24 KMD, for the robbery with corporal violence of Toan Van Doan I commit you for a period of two years to the control of the Minister administering the Children (Detention Centres) Act 1987. The two-year period will comprise a minimum term of one year and nine months which will be taken to have commenced on the day of your arrest, 1 April 1998 and will expire on 31 December 1999 and an additional term of three months which will commence on 1 January 2000 and expire on 31 March 2000. For the robbery with corporal violence of Cong Hai Nguyen I release you on probation for a period of eighteen months, commencing today. It will be a condition of your probation that you attend such violent offender and drug and alcohol counselling and other programs as the officers of the Department of Juvenile Justice consider appropriate. **********