REGINA v RY [2001] NSWCCA 499

New South Wales Court of Criminal Appeal

CITATION : REGINA v RY [2001] NSWCCA 499 FILE NUMBER(S) : CCA 60306/01 HEARING DATE(S) : 21 November 2001 JUDGMENT DATE : 21 November 2001

Regina

PARTIES : v

RY JUDGMENT OF : Barr J at 1; Adams J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0104 LOWER COURT JUDICIAL Karpin DCJ OFFICER :

COUNSEL : Ms R Burgess for the Applicant Mr G E Smith for the Crown SOLICITORS : D J Humphreys for the Applicant S E O'Connor for the Crown CATCHWORDS : Sentence - child - whether should be dealt with according to law - whether mode of dealing with co-offenders relevant - relevant considerations - adjournment under s11 Crimes (Sentencing Procedure) Act 1999 - whether permissible to require bond Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Bail Act 1978 Children (Criminal Proceedings) Act 1987 Children (Detention Centres) Act 1987 CASES CITED: R v WKR (1993) 32 NSWLR 447 DECISION : See paragraph 35

IN THE COURT OF CRIMINAL APPEAL

60306/01 BARR J ADAMS J

WEDNESDAY 21 NOVEMBER 2001 REGINA v RY JUDGMENT

1 BARR J: The Court is in a position to give judgment. I will ask Justice Adams to give the first judgment. 2 ADAMS J: The applicant pleaded guilty to the robbery of one Gregory John Norris of certain personal property at Parramatta on 31 October 1999, using at the time corporal violence. This is a serious offence carrying a maximum of twenty years' imprisonment. The applicant had been charged with the offence of robbery with wounding, a more serious offence carrying a maximum term of imprisonment of twenty-five years but on arraignment the Crown accepted her plea to the lesser offence in discharge of the indictment. It is clear that this plea was entered at the earliest possible opportunity. 3 Briefly the facts were that at about 9 pm on 31 October 1999 the victim, aged 28, whilst walking in the Parramatta Mall was accosted by the applicant, who requested money. He refused to give her any, whereupon the applicant punched him in the face and head, yelling at the same time to two acquaintances for help. She had accosted the victim at their request. The three offenders then repeatedly punched and kicked the victim, even after he had collapsed to the ground. 4 As the assaults became more serious the applicant took a mobile phone from him and left the scene. The other two offenders continued their violence and one used a knife to stab the victim and inflict very serious injuries. The three offenders decamped together. 5 As at the date of the offence the applicant was aged thirteen and a half years. Of her co-offenders, both male, one, N, was a few months short of his fifteenth birthday and the other, B, just over eighteen years. 6 After entering the plea the matter was adjourned, her Honour ordering a Juvenile Justice report and continuing bail. On 13 December 2000 the matter was commenced and adjourned to 2 March 2001. 7 On that date several reports were tendered. It is unnecessary for present purposes for me to set out the details in those reports. It is sufficient to mention that the applicant's assessed current level of intellectual functioning is in the borderline intellectual functioning range. According to DSM IV her full scale of 77 is better than that for only about six percent of people of her own age. Her personality test results showed that she had a conduct disorder and was suffering from depression. The results demonstrated that the applicant would experience a considerable degree of conflict and would vacillate between submissive obedience and defiance; she is distressed at such conflict but is unable to resolve her ambivalence. Thus, her behaviour is somewhat erratic and she is likely to express negative feelings about herself, including guilt feelings for failing to meet the expectations of others. However, she may then express stubborn negativism and resentment over having submitted to the wishes of others on occasions. These and other unfortunate attributes of her personality were highly relevant in considering what should be the appropriate disposition of her by a court. 8 To return to the hearing, the learned sentencing Judge had already sentenced the co-offender, N, (who was approximately seven months older than the applicant) for the same offence, that is, robbery with corporal violence on 23 October 2000 and he was given a suspended sentence of fifteen months. On 9 March 2001, B was sentenced to a term of three years' imprisonment with a non-parole period of just over one year and four months. 9 Her Honour observed, when dealing with the matter on 2 March 2001, that N had been -