R v TCP [2000] NSWSC 1079

New South Wales Supreme Court

CITATION : R v TCP [2000] NSWSC 1079 FILE NUMBER(S) : SC 70211/00 HEARING DATE(S) : 10/11/00 JUDGMENT DATE : 10 November 2000

PARTIES : Regina TCP JUDGMENT OF : Dowd J at 1

COUNSEL : Mr J Wilson- Young person 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 : Lowe v The Queen (1984) 154 CLR 620. R v R (1993) 71 A Crim R 95. DECISION : The young person is released on a two year probation order, subject to the conditions enumerated in paragraph 25 of the reasons for judgment.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

DOWD J

FRIDAY 10 NOVEMBER 2000

N70211/00 REGINA v TCP SENTENCE

1 HIS HONOUR: In these proceedings, in view of the young person being under the age of eighteen, I have already indicated that the provisions of the Children (Criminal Proceedings) Act 1987 apply, and have made orders which provide for non-publication of the young person's name. The order will also apply for the other two young persons to whom I will refer. 2 TCP was committed to this Court together with three co-accuseds, two being young persons bearing the initials PL and RG respectively, and the third being Jonathan Whitfield, on a number of serious offences including murder. 3 The trial date had been fixed but PL indicated that he wished to change his plea, and now TCP has also changed his plea. It is conceded by the Crown that this plea was made at the earliest opportunity. The plea was entered into before me to the charge of robbery in company, contrary to s97(1) of the Crimes Act 1900. 4 The plea of guilty is taken into account by me in the decision that I make in relation to TCP. The theft is of robbery involving a compact disc player and a mobile phone, both items being the property of a Ralph Mason, now deceased. 5 The facts are that the deceased, Ralph Mason, was heard to cry out for help at about 12.45am by a neighbour. The deceased was observed inside the property, and there were some quick movements and someone falling to the floor within that property. The police eventually attended the premises, found a trail of blood on the concrete leading to the front door, and the flyscreen door buckled. The police found the deceased lying on the floor beside the lounge and bloodstains on the carpet. The handset telephone was underneath the deceased. 6 The cause of death was stab wounds to the deceased's back. There was also a severe head injury and fracturing of the skull. The stab wounds which caused the death were stab wounds to the abdomen, as well as the blunt force head injuries. 7 TCP was arrested on 15 January 1999, and RG, PL and Jonathan Whitfield were arrested on 16 January 1999. 8 In a record of interview, TCP admitted that he had gone to the premises with a view to robbery with the three co-accused. The others wore balaclavas but he did not, and the robbery was intended not to cause any injury, even though TCP observed that there was a knife and a pole from a shopping trolley carried by the co-accused. He was told by Jonathan Whitfield that he had to come. Whitfield had threatened him if he did not participate. 9 TCP observed Whitfield kicking the screen door and stabbing the deceased with the knife after Whitfield and the deceased had struggled. The deceased called out for help on several occasions. TCP saw the knife in Whitfield's hands. TCP ran. Whitfield called him into the house and said that he was to participate while the assault was going on. 10 TCP ran with Whitfield to a nearby high school where he met the others. The balaclavas, the metal pole, the knife and the mobile phone were thrown away and the four returned to the flat of TCP's sister. 11 TCP comes before the Court as a person with no criminal record, as a person of good character. He relies on the psychologist's report of Elizabeth Kusch, a psychologist with Duffy Barrier and Robilliard. TCP also relies on a Juvenile Justice report of 25 October, of Mr John Brennan and Mr Reinhard Hitzegard of the Wollongong District Office of the Department of Juvenile Justice. Additionally, TCP relies on a case conference summary as to his custody and a reference from Councillor Violet Pocock of the Wollongong City Council; and also evidence of work that TCP carried out whilst in custody. 12 TCP has spent some eighteen months and twenty days in custody before he was released on bail. This period is somewhat longer than the two co-accused, who have already pleaded guilty to this offence. 13 It is put by the Crown, and it is not contested, that the degree of TCP's involvement was of a slightly higher level, indeed significantly higher than those who have already been sentenced, in that he actively persisted in Whitfield's principal act of attacking the deceased, that he did in fact enter the premises and seize certain items, and that he did in fact spend slightly longer in custody. 14 The young person has indicated before this Court on oath that he proposes to enter into an undertaking to the Crown to give evidence against Jonathan Whitfield. I accept his evidence as given in that undertaking and on oath that he will co-operate. That is a factor which I take into account in the sentencing process which is now being carried out. 15 The Children (Criminal Proceedings) Act provides in Part 2, Division 4, that where there has been a plea to an indictable offence, which is not a serious indictable offence, the matter can be dealt with at a Children's Court. The offence of robbery in company carries a penalty of imprisonment for twenty years. It is not a serious indictable offence for the purposes of the Children (Criminal Proceedings) Act. It may therefore be dealt with under Part 3 of that Act, and I have already indicated that I shall exercise the powers of the Children's Court as it is appropriate, because of TCP's age and circumstances. 16 I have referred to, and apply, a decision of Hunt CJ at CL in R v R (1993) 71 A Crim R 95, which deals with the matters to be taken into account in such a case. 17 The offence of robbery in company is a serious offence and has been the subject of a guideline judgment. However, merely for these sentencing purposes, and in view of TCP's youth, I note that that is a factor to be taken into account, particularly as his age is approaching eighteen years. 18 In terms of background, TCP and his siblings had a difficult time with his father who was abusive towards him and his mother, but his father would apologise for what he did. TCP obviously has a very loving and caring relationship with his mother. TCP's parents were separated when he was seven years of age, and his mother formed another association which led to a further brother. TCP has been subject to a lot of moves, that is residential moves, and was subject to some peer group pressure where he began associating with some negative peers in the Wollongong area. For instance, he began smoking marijuana. Marijuana was found in his mother's de facto's room. 19 The history of moving from school to school, and from residence to residence, had a detrimental effect on TCP's schooling and on his emotional upbringing. He is an average student, although he describes himself as below average. His childhood heritage means that he is stood over and picked on by other boys as is unfortunately common. He avoided school except for sport. 20 TCP does not now have addiction problems with any drugs. He has indicated that he is very sorry for what he has done. He has shown that he has grown up. He has carried out quite a remarkable regime of study in his time in custody, which demonstrates the maturity for a young man that a lot could admire and follow. I accept the substance of the reports before me, which indicate that TCP has grown up a lot and that this terrible, tragic incident in which he was involved, has caused him to realise how serious a matter he has been involved in. I also accept that he is extremely remorseful for what has happened. 21 TCP was, I think, fairly easily led. He is now getting assistance and I commend Councillor Pocock for the effort that she has made in providing TCP with assistance in the work that he has carried out. 22 I take into account in this sentencing process, that notwithstanding the objective seriousness, it would cause a justifiable sense of grievance if there was a significant disparity between the sentence of PL, RG and TCP. There is no such sense of grievance if sentenced on different facts or if TCP is less seriously involved. In fact, TCP in this case was more seriously involved, and I refer to Lowe v The Queen (1984) 154 CLR 620, particularly the following passage (at 623):