R v RG [2000] NSWSC 1057

New South Wales Supreme Court

CITATION : R v RG [2000] NSWSC 1057 FILE NUMBER(S) : SC 70034/99 4/8/00 HEARING DATE(S) : 20/10/00 27/10/00 JUDGMENT DATE : 27 October 2000

PARTIES : Regina RG JUDGMENT OF : Dowd J at 1

COUNSEL : Mr P Zahra- Prisoner SOLICITORS : Mr M Stollery- Crown CATCHWORDS : Criminal law - Sentence - Robbery in company - Juvenile - Children's Court LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 Crimes Act 1900 CASES CITED : R v R (1993) A Crim R 95. Lowe v The Queen (1984) 154 CLR 620. DECISION : The prisoner is released on a two year probation order, subject to the conditions enumerated in paragraph 40 of the reasons for judgment.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

DOWD J Friday 27 October 2000

N70034/99

REGINA v RG SENTENCE

1 HIS HONOUR: This matter, in view of the age of the young person, is a hearing under the provisions of the Children (Criminal Proceedings) Act 1987, s11 of which provides for the non-publication of the young person's name. I will therefore describe him in the published judgment under the initials set out in the heading to these remarks on sentence, and other young persons by their initials. 2 RG was committed to this court, together with a co-accused, PL, for trial of a number of serious offences, including murder and robbery in company. Although a trial date was fixed, that was vacated after PL indicated that he wished to change his plea to guilty of robbery in company. 3 On 4 August 2000, the Crown presented an indictment charging RG with one count of robbery in company, contrary to s97(1) of the Crimes Act 1900 ('the Act'), to which he pleaded guilty. That plea of guilty is taken into account by me in the decision that I make in relation to RG. 4 The original indictment was that on 11 January 1999, at Berkeley, in the State of New South Wales, whilst in the company of two other young persons, one of whom was PL, and a Johnathon Whitfield, RG was charged with robbing Ralph Mason of one compact disc player and one mobile phone. Both items were the property of Ralph Mason. 5 RG pleaded guilty to that charge, and the matter was stood over to 20 October 2000 for submissions on sentence. 6 The facts of the proceedings are that on 11 January 1999, at 12.45am, a neighbour of Ralph Mason, a Mr Galea, was watching television at his home in Berkeley Street, Berkeley. He heard his dog bark and a person screaming for help. Mr Galea went and looked towards the front yard of his neighbour's home and noticed that a person was standing near the white picket fence that divided the two properties, and that the person was waving an arm. That person then moved from Mr Galea's line of vision. 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 the house, he noticed that another neighbour had a light on in the backyard. Mr Galea then had a short conversation with the neighbour and returned to his television set. 8 As he went back to his house, Mr Galea went into the laundry which looks out on to Mr Mason's property. Mr Galea looked out and observed someone walking quickly inside the Mason premises, leap forward onto something and then take a couple of steps forward and fall to the floor. Mr Galea contacted the police and returned to his laundry window, where he could see someone on the floor of the premises. 9 What had happened was that the three young people and Johnathon Whitfield had gone onto the premises, that RG and PL had run away when the deceased came towards them, but that RG observed Johnathon Whitfield striking the deceased with a pole which had been taken by the young people. 10 Police attended shortly after 1am, and as they approached 29 Berkeley Road, a sensor light came on. 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, and discovered the deceased lying on the floor beside a lounge. A telephone cord was stretched from the wall to the deceased, with the handset under the deceased. Bloodstains on the carpet were in the room adjacent to the front door, and a pot-plant had been knocked over. 11 After being conveyed to Wollongong Hospital, a post-mortem examination was conducted which revealed two stab wounds to the deceased's back, one penetrating the aorta, inferior vena cava and the kidney. There were some head injuries, causing a fracture to the skull. 12 During an electronically recorded interview with police, RG admitted to being at the scene of the murder with three other youths. RG said that he was with PL, and that Johnathon Whitfield had kicked the screen door, that Whitfield had forced his way into the premises, and that he was followed by the other two. PL had a metal pole with him and there was also a knife. 13 During the interview, RG admitted that some pre-planning had been discussed concerning the incident, but there was no planning that there would be any injury to the deceased. They had chosen the deceased's premises to rob because he was a rich man, and that they were going to "just keep all the stuff", to use their words. 14 RG was twelve years of age when he was involved in the offence. He is now fourteen. It is, therefore, necessary to have regard to the provisions of the Children (Criminal Proceedings) Act 1987 in looking at sentencing. 15 Part 2 Div 4 of that Act provides that where there has been a plea to an indictable offence and it is not a "serious indictable offence", the matter can be dealt with at a Children's Court. 16 If the conviction had been for a "serious indictable offence", then the matter must be dealt with according to law. The offence of robbery in company, contrary to s97 of the Act, carries a penalty of imprisonment for twenty years. It is not a serious indictable offence for the purposes of the Children (Criminal Proceedings) Act, and it may therefore be dealt with under Part 3 of that Act as though this court were exercising the powers of a Children's Court. 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 pp 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 Clearly RG is an offender who, because of age and circumstances of the offence, and the likely penalty, it is appropriate that he be dealt with under the Children (Criminal Proceedings) Act, and that this court should sit as a Children's Court. 19 RG is, as I have indicated, fourteen years of age. His mother has an Australian-Greek culture, and his father is South African. Both RG and his younger brother reside with their mother at Marrickville. 20 When RG was two years of age, his parents separated. He has had minimal contact with his father since then, seeing him only for birthdays and Christmas. At the age of three, according to his mother, RG displayed tantrums. His mother attributes his behaviour to his reaction to the parental separation. 21 RG's mother has indicated that since RG became of school age, his relationship with his brother deteriorated. RG would be unkind and would tease his younger brother, leading to fighting amongst the siblings. RG, being the instigator, would be punished and this created sibling rivalry and tension, until the young person's grandparents raised the question of whether the younger brother was being favoured. Consequently, the mother re-evaluated the parenting and attempted to treat the two as equally as possible. 22 RG has had little social contact in his local area. His peers included other "black youth", to quote from the Juvenile Justice report, some of whom are known by Juvenile Justice. 23 RG's first encounter with Juvenile Justice arose out of his aggressive and volatile behaviour towards his mother. According to his mother, RG would break windows, doors and mirrors in the house, and would push her. This aggressive behaviour led to the mother not accepting him in the home, and in taking out an Apprehended Violence Order against RG. 24 However, since the time of this offence, the young person's mother has noticed significant changes in his behaviour and says that he no longer has been violent at home, and that his relationship with his younger brother has improved. He has been positive in his interactions both with his mother and his younger brother, and he has also displayed a keen interest in discussing matters such as the safety and security of the home. RG has also demonstrated very clearly that he wants a higher level of security around the home, and that he is concerned at how fragile the human body is. 25 According to the Juvenile Justice report, RG has a keen interest in his dogs and displays affection and interest towards them. His interest is shared with other peers with similar dogs. 26 RG has been under the supervision of the Stanmore Intensive Programs Unit of the Department of Juvenile Justice, a unit which comprises psychologists and social workers. The Unit has supervised RG since 10 February 1998. RG maintains a satisfactory attendance and response attitude towards his supervision requirements, however he failed to comply with some of the bail conditions. 27 RG has been extremely co-operative with the assessment procedure, and has discussed his conduct with the counsellor, despite the anger and conflict which is still within him. 28 I accept that the loss of RG's father and lack of role models and cultural identity issues and racial enmity shown towards him, make him very much subject to peer pressures. 29 The Stanmore Intensive Programs Unit is capable of supervising RG in any program that this court may impose. It appeared to the author of the report to this court that RG had no awareness of the degree of harm and injury a pole such as the one that was taken could inflict. According to RG, as the deceased charged towards them, he held the pole in the air and said, "Get back into the room", and when the man kept charging, RG stated that he and PL ran from the house. RG stated that he was scared and felt that the man would knock them over, and that his only response was to run into the street. While in the street, RG states that he looked back for a moment and then ran to TCP's house. 30 RG states that he felt scared at the time of the incident, especially when he saw Johnny Whitfield beating the deceased. RG mentioned that he wanted to stop Johnny from hitting the man, but felt that he could not because he was just twelve years old and Johnny was sixteen or seventeen years old. 31 According to RG, if he could change one thing in his life it would be never to have gone and robbed the deceased. It appears that RG felt powerless in the situation. RG states that he had never broken into someone's home before, and that he did not know what to expect. As a consequence, RG said that he would never break into someone's home again. 32 I am satisfied that RG appreciates the seriousness of the actions in which he was involved, and that it has had a significant change in his attitude. 33 RG is now attending the Edgeware School at Dulwich Hill, a school for youths with emotional and behavioural problems. 34 The Crown case against Whitfield was considerably strengthened by the evidence of PL, who had undertaken to give evidence, that undertaking being a matter which I took into account when sentencing PL recently. 35 RG has also given an undertaking to the Crown that he will similarly give evidence against Whitfield, a matter which I have also taken into account in the assessment of the way in which I deal with RG. I also take into account, as I indicated, RG's plea of guilty. 36 RG was in custody in respect of this charge until he was granted bail, for 176 days. It is conceded by the Crown, and I accept, that the actions of RG in relation to the offence were of a similar level of criminality to that of PL. 37 The offence of robbery in company is a serious one and has been the subject of a guideline judgment. However, the youth of RG means that he is not subject to the regime proposed by that judgment, and I have indicated that it is appropriate that he be dealt with under Part 3, Division 4 of the Children (Criminal Proceedings) Act. 38 I have taken into account the carefully prepared and impressive report by Adelaide White, Juvenile Justice Counsellor. The report conveys that there is still a level of aggression within RG, but that he is young and subject to peer group pressures and racial enmity, causing him to be alienated from other people of his age. 39 I also take into account, noting the objective seriousness, that it would cause a justifiable sense of grievance if there was disparity between the sentence of PL and RG. There is no justifiable sense of grievance if the co-offender is sentenced on different facts or is less seriously involved. As held in Lowe v The Queen (1984) 154 CLR 620: " It is obviously desirable that persons who have been parties to the commission of the same offence should, if things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender and the part which he or she played in the commission of the offence have to be taken into account" (at 623). 40 Clearly, the role of RG and PL in these proceedings are identical. It seems to me, therefore, that similarly to PL, RG should not serve a custodial sentence, but that he should be released on strict conditions for two years and that a probation order be imposed. The conditions that I impose are: 1. That he is to obey the reasonable directions and guidance of the Department of Juvenile Justice. 2. That he is to attend programs as directed by the Manager of the Intensive Programs Unit. 3. That he is to attend counselling as directed by the Manager of the Intensive Programs Unit. 4. That he is to make reasonable efforts to gain and maintain educational training. 5. That he is to reside as directed by the Manager of the Intensive Programs Unit. 6. That he is to be of good behaviour and commit no further criminal offences, and is to keep the peace. 7. That he is to give evidence in accordance with the undertaking that he has given. 41 I therefore impose a probation order for two years on the conditions that I have just enumerated.