New South Wales Supreme Court CITATION : R v PL [2000] NSWSC 918 revised - 24/10/2000 FILE NUMBER(S) : SC 70210/99 HEARING DATE(S) : 04/08/00 11/08/00 JUDGMENT DATE : 11 August 2000 PARTIES : Regina PL JUDGMENT OF : Dowd J at 1 COUNSEL : Ms L Flannery- Young Person SOLICITORS : Mr M Stollery- Crown CATCHWORDS : Criminal law - Sentence - Robbery in company - Juvenile LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 Crimes Act 1900 CASES CITED : R v R (1993) 71 A Crim R 95. R v Ellis (1986) 6 NSWLR 603. DECISION : 1. The young person is to be released on probation for two years subject to the following conditions: (a) that the young person subject himself to the guidance of the Juvenile Justice Department, and obey that department's reasonable guidance and directions; (b) that the young person is to reside with his mother, and in the event of his mother having to go overseas, that he be placed in the care of another responsible adult person nominated by his mother; (c) that the young person is to continue his present schooling or such other schooling as may be considered appropriate depending on his state of development; and (d) that the young person is not to commit any further criminal offences, and is to keep the peace. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION DOWD J Friday 11th August 2000 N70210/99 REGINA v PL SENTENCE 1 HIS HONOUR: This matter, being heard under the provisions of the Children (Criminal Proceedings) Act 1987, s11 of that Act applies, which relates to the non-publication of the name, not only of the young person before the Court, but other young people. People who are not involved in the proceedings, with the exception of course of members of the press, should not remain in the Court. 2 On 30 April 1999, the young person, who I shall refer to by his initials, PL, was committed to this Court together with his co-accused, for trial on a number of serious offences, including murder and robbery in company. A trial date was fixed for 7 August 2000, but was vacated after PL indicated that he wished to change his plea to guilty of robbery in company. 3 On 22 June 2000, the Crown presented an indictment charging PL with one count of robbery in company, contrary to s99(1) of the Crimes Act 1900 ("the Act"). 4 On 11 January 1999, at Berkeley, in the State of New South Wales, whilst in the company of two other young persons and Johnathon Whitfield, PL was charged with robbing Ralph Mason of one compact disc player and one mobile phone, both of which were the property of Ralph Mason. 5 PL pleaded guilty to that charge, and the matter was stood over to 4 August 2000 for sentence, and in turn to today for submissions on sentence. 6 The facts are that on 11 January 1999, at 12.45 am, a neighbour of Ralph Mason, Mr Galea, was watching television at his home in Berkeley Street, Berkeley, and heard his dog bark and a person screaming for help. Mr Galea went to his front window and looked towards the front yard of the neighbour's premises. Mr Galea noticed that a person was standing near the white picket fence that divided the two properties, and that that person was waving an arm. That person then moved from Mr Galea's line of vision, and Mr Galea returned to watching television, believing that it was just the local kids playing around. 7 As Mr Galea walked towards the back of his house to resume watching television, he noticed that another neighbour had a light on in the backyard. Mr Galea then walked outside and had a short conversation with his neighbour, and later returned to watching television. 8 As he went back into his house, Mr. Galea went into the laundry area which looks out on to the deceased's property. Mr Galea looked out the window, and observed someone walking quickly inside the deceased's premises next door, leap forward on to something and then take a couple of steps forward and fall to the floor. Mr Galea contacted the police and then returned to his laundry window, where he could still see someone on the floor at the deceased's premises. 9 Shortly after 1am, police officers attended 29 Berkeley Road, Berkeley. As they approached the front door of the house, a sensor light came on and they observed a trail of blood on the concrete leading to the front door. The front screen door was buckled. At the rear of the house, police found bloodstains on the carpet. The deceased was lying on the floor beside a lounge. A telephone cord stretched from the wall to the deceased, with the handset under the deceased. Bloodstains on the carpet were present in the room adjacent to the front door, and the pot-plant was knocked over. 10 The deceased was conveyed to Wollongong Hospital, where a post-mortem examination was conducted. The examination revealed two stab wounds in the deceased's back, one penetrating the aorta, inferior vena cava and the kidney. There were also some additional head injuries, causing a fracture to the skull. 11 On 16 January 1999, PL was arrested and taken to Warilla Police Station, where he was questioned. During an electronically recorded police interview, PL admitted to being at the scene of the murder with three other youths. PL said that Johnathon Whitfield had kicked the screen door, and that Whitfield had forced his way into the premises, and that he was followed by the other two. PL said that one of the other youths took a metal pole from him, and gave the PL a knife. PL admitted during the interview that he knew who stabbed the deceased. PL said that Whitfield said- after running away from the premises and catching up with the other youths- "I stabbed him", whilst Whitfield was washing the blood off. 12 PL admitted during the interview that some pre-planning had been discussed concerning the incident. They had chosen the deceased's premises to rob because he was a rich man, and that they were going to "tie the bloke up and just keep all the stuff". PL claimed that there had been no talk of hurting the deceased. 13 PL was born on 2 May 1986. He was twelve years of age when he was involved in this offence. It is, therefore, necessary to have regard to the provisions of the Children (Criminal Proceedings) Act 1987 in imposing sentence. 14 Part 2 Div 4 of that Act, which deals with penalties imposed, provides as follows: Application 16. This Division applies to a person - (a) who has pleaded guilty to an indictable offence in, or has been found guilty or convicted of an indictable offence by, a court other than the Children's Court; (b) who was a child when the offence was committed; and (c) who was under the age of twenty-one years when charged before the court with the offence." 15 If the conviction was for a "serious indictable offence", then the matter must be dealt with according to law. This is not a serious indictable offence and, therefore, the Court may deal with the offender according to law, or in accordance with Div 4 Pt 3 of the Children (Criminal Proceedings) Act. 16 The offence of robbery in company, contrary to s97 of the Act, carries a penalty of imprisonment for twenty years. It is, therefore, not a serious indictable offence for the purposes of the Children (Criminal Proceedings) Act. 17 In determining whether a sentencing judge deals with an offender according to law or according to the less harsh regime of the Children's Court, it has been held in R v R (1993) 71 A Crim R 95, a decision of Hunt CJ at CL at 98-99, that some of the matters to be taken into account are the nature of the particular offence for which the offender is standing for sentence, the age and maturity of that offender, both at the time of the offence and when standing for sentence, and the nature of the penalty which would be appropriate in the circumstances. 18 The prisoner was born in Australia, and is the only son of his mother. PL's mother, together with her husband, had two other children. It is not clear whether PL's natural father is the same father of the other two children. 19 In December last year, PL's father and mother separated, causing the family to each go their own separate ways. The father and his two daughters went to New Zealand, and PL and his mother stayed in Australia. Whilst the elder daughter now lives with her father, the younger daughter resides with some relatives. There is no contact between the children any more. Prior to the separation, they were an apparently close family with regular church and community involvement. 20 In 1989, PL's father was seriously injured after he fell under a train. The accident left him with a number of serious health problems, and he was incapacitated and required regular treatment and operations. As a result, the family suffered some financial hardship, and they became financially dependent on welfare assistance and had to live quite frugally. 21 In May 2000, PL's father received a large financial compensation settlement, and the family were able to buy a home in Marrickville. The father then returned to Tonga to establish a small business, and has built a home for him and his daughter there. PL's father has returned to Australia on one occasion since he left for Tonga, to demand that PL's mother release to him the remainder of the compensation pay-out. When she refused to release the money, she was physically assaulted, which forced her to obtain an Apprehended Violence Order against him. PL's father then removed the two daughters from Australia against her wishes. 22 As a result of the separation, PL's mother has been absent from the family home for a number of extended periods. Each time she has had to leave, PL was placed under the supervision and care of his uncle, who resides at the family home at Marrickville. 23 To add to this disharmony, in July 2000 PL's mother suffered a stroke that has left her with some facial paralysis. She is unable to work and cannot afford to pay the bills. 24 At the time of the offence, the PL was living in the family home and attending Year Seven at Marrickville High School. It appears that PL was not the greatest model student, and would often find himself in fights with other students. He found that there was racial discrimination against him, which tended to cause him to be friendly with older youths of Islander origin. 25 He currently attends Edgeware School at Dulwich Hill, which is a school for youths with emotional and behavioural problems. Initially, he attended lessons on a one-on-one basis, but now he is in a classroom with other students. 26 It has been conceded by the Crown that the case against Whitfield would be a weak case without the evidence of PL. The evidence before me is that PL gave a complete and truthful account to the police. That was the evidence of Det. Snr. Const. Atlas. 27 PL was in custody for some 177 days on this charge until bail was granted and, although it was on a number of relatively minor matters committed earlier and unrelated to this offence, he has, of course, spent just over a month in custody since he was originally released. Those matters do not, however, concern this Court. It is, however, of some consequence that he has had a further period in custody, and understands the nature of that custody. 28 Offences such as robbery in company, for adults, have been the subject of a guideline judgment emphasising the seriousness of the offence but, of course, his youth means that he is not subject to that regime. I merely note that the seriousness of this offence has been underlined by that guideline judgment. He did enter a plea at the earliest opportunity, and is entitled, for his actions since he was apprehended, on the authority of R v Ellis (1986) 6 NSWLR 603, to a significant reduction as a matter of the policy of the law. 29 It is, in the circumstances of the case, appropriate that PL be dealt with in accordance with Div 4 Pt 3 of the Children (Criminal Proceedings) Act. 30 In considering the matters which the Court must take into account, I have received a very helpful report from Louise Kemp, who is with the Department of Juvenile Justice and, of course, a School Report, from which I have been able to determine the extent of the racism that PL had demonstrated to him, and his anger and sense of injustice. It was difficult to find a school that accepted PL, in the light of the charges which he then faced, one of which was of a more serious nature in respect of which he is no longer the subject of proceedings. 31 The assessment of PL is that Miss Kemp found him to be extremely honest. He was clearly young and lacked confidence and self-esteem during the first contact. He has, because of his concern about diabetes, undertaken a weight loss and exercise programme, which has been very successful, and is evidence of part of his maturing process. 32 His cultural background and youth has meant that his verbal skills are not highly developed, but he has co-operated in the counselling process. He has been punctual attending appointments, something not common with people of his age. He has had a series of crises with which he has coped. 33 The opinion of Miss Kemp, which I accept, is that there has been a high degree of turn-around by PL. He is performing well at school. He is regularly attending counselling. I accept that there has been a high level of rehabilitation which the Court is bound to take into account. He has demonstrated his ability and willingness to comply with stringent supervisory requirements, and he would gain from supervision. 34 It seems to me, in the circumstances, that the appropriate order which the Court should make is not that PL should serve a custodial sentence, but that he should be released on probation on conditions for a period of two years. 35 The conditions that I would impose are: that PL subject himself to the guidance of the Juvenile Justice Department, and obey that department's reasonable guidance and directions; that he is to reside with his mother, and in the event of his mother having to go overseas, that he be placed in the care of another responsible adult person nominated by his mother. He is also to continue his present schooling or such other schooling as may be considered appropriate depending on his state of development. He is not to commit any further criminal offences, and is to keep the peace. 36 I, therefore, make that probation order and impose those conditions on the order. 37 HIS HONOUR: Do you understand that? 38 PL: Yes. 39 HIS HONOUR: You accept the conditions that I have laid out? 40 PL: Yes. 41 HIS HONOUR: Good luck with your schooling and good luck with the next few years ahead. 42 PL: Thank you. oOo Last Modified: 11/02/2000 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.