New South Wales Supreme Court CITATION : Regina v K.R.G. [2003] NSWSC 751 HEARING DATE(S) : 06/08/03, 07/08/03, 11/08/03, 12/08/03, 14/08/03 JUDGMENT DATE : 14 August 2003 JUDGMENT OF : Whealy J at 1 DECISION : I release K R G on Probation for a period of 12 months from today's date subject to the following conditions: 1. To obey all reasonable directions of the Department of Juvenile Justice during this period. 2. He attend Drug and Alcohol counselling as required by the Department. 3. He is to seek gainful employment cnad continue his education. 4. He is to reside with his Mother or as approved by the Department. CATCHWORDS : Plea of guilty to assault occasioning actual bodily harm while in the company of other persons LEGISLATION CITED : Children's (Criminal Proceedings) Act 1987 Sentencing Act 1989 CASES CITED : R v W K R (1993) 32 NSWLR 447 PARTIES : Regina v K. R. G. FILE NUMBER(S) : SC 70011/03 COUNSEL : Ms L. Wells - Crown Mr A. Webb - Offender SOLICITORS : NSW Director of Public Prosecutions Legal Aid IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J THURSDAY 14 August 2003 70011/03 - REGINA v K.R.G SENTENCE 1 HIS HONOUR: In this matter I shall refer to the young person as K R G. 2 On 12 August 2003 an indictment was presented against K R G in these terms: "On 25 January 2002 at Cartwright in the State of New South Wales he did assault Wayne Anthony Myers thereby occasioning actual bodily harm to him while in the company of other persons." 3 To this charge K R G pleaded guilty and the Crown indicated that it would thereafter take no further proceedings in relation to an earlier indictment presented against him alleging that on 25 January 2002 he did murder Wayne Anthony Myers. 4 The practical consequence of this situation is that K R G stands before me for sentence. I have today received submissions in relation to sentence. Mr Angus Webb, on behalf of K R G has made submissions and the Crown has responded to those matters. 5 In a moment I shall say something about the facts of the matter, but it is necessary for me to say that at the outset I have to decide how I should deal with the young person in relation to the charge to which he has pleaded guilty, having regard to the provisions of the Children's (Criminal Proceedings) Act 1987. That, in particular, requires me to consider s 18. In effect, it will be necessary to for me to determine whether the young person should be dealt with according to law or in accordance with Division 4 Pt 3 of the Children's (Criminal Proceedings) Act 1987. The charge to which K R G has pleaded guilty relates to an indictable offence other than a serious indictable offence. 6 In determining whether a person should be dealt with in accordance with law or in accordance with Division 4 Pt 3, the court must have regard to a number of matters set out in s 18 (1A). These include the seriousness of the offence concerned, the nature of the offence concerned, the age and maturity of the person at the time of the offence and at the time of sentencing, and the serious nature and number of any prior offences sentences committed by the young person and such other matters as the court considers relevant. 7 There is evidence before me from the mother of the young person which satisfies me that he is still under the age of 18. His mother gave evidence that he was born in Nepean Hospital on 24 January 1986. This means he was 16 at the time the offence was committed and he does not turn 18 until January next year. 8 I have received, by consent, Exhibit "A" which is the Crown case summary. The facts I find proved beyond reasonable doubt are these; that on Friday 25 January 2002 Wayne Myers ("the deceased") met up with his niece, Melissa Lloyd, at the unit premises of Jodie Williams. This unit is part of a complex overlooking Bendigo Place, Cartwright. There were other people present at the home at the time. 9 At about 11 pm on 25 January 2002, a taxi was called and it was agreed that the two girls for whom the taxi was ordered would give the deceased and another person, named McCormack, a lift in the taxi. The four of them were down near the parking area of the home units, in effect adjacent to a cul-de-sac formed by the extension of Bendigo Place, when they were approached by a group of at least four males who had come from a nearby laneway. This group of four persons included K R G. 10 There was general conversation between the groups. K R G requested a cigarette, but was not provided with one. One of the other men in the group then had a conversation with the deceased. He asked the deceased his name and accused him of stealing mobile phones from children. 11 The deceased put his hand in, or towards, his pocket and the other person said, "What's that? A knife? What's a knife going to do against a gun?" This person then told the person he had a gun and pointed a silver object at the deceased's head. This object was, in fact, a mobile phone but it is quite clear that a number of people there thought it was a gun. 12 The protagonist then said, "Are you prepared to die tonight?" or, "You're going to die tonight," or, "You're going to cop it." One of the other young men who had come from the laneway was then seen to kick the deceased. His name was Whitmore. I have already dealt with Mr Whitmore in sentencing proceedings earlier in the week. I shall refer to the sentencing result in that matter a little later in these remarks on sentence. 13 The two girls who had ordered the taxi by now feared that an unpleasant and dangerous situation was developing. They ran to Jodie Williams' unit to seek assistance and, no doubt, to protect themselves from the danger they perceived. Other people who lived nearby saw the events which then eventuated. 14 It would be fair to describe the situation in the following terms; the group of young men set upon the deceased and began punching him. One of the neighbours, Mr Troy Dawson, saw the deceased try to run away. The deceased was chased by two of the young men who took hold of him and he was further punched by members of the group, including K R G. The deceased was then seen to fall to the ground. In fact, during this assault the deceased was stabbed. None of the eyewitnesses saw the stabbing take place. None of them identified the person who stabbed the deceased. 15 For the purposes of this sentencing procedure, it is agreed that the deceased was not stabbed by K R G nor did K R G possess a knife that night. 16 I am satisfied that there is no evidence to suggest that K R G was aware that any of the other participants in the assault was in possession of a knife that night. 17 When the deceased fell to the ground, all the participants ran away from the scene. They ran past Jodie Williams' unit and one of the men, Whitmore, said to her, "Aunty Jodie, you'd better ring an ambulance. He's been stabbed. He's half dead, if not dead." The four of them then moved away from the area. 18 Shortly afterwards two ambulances arrived and the deceased was taken to Liverpool Hospital and was later pronounced dead. 19 Post-mortem examination revealed that the deceased died from a stab wound to the chest. This stab wound had a wound track estimated between 5 to 10 centimetres in length and the anterior of the pericardium had been cut. The anterior artery of the pulmonary tract had been cut. The deceased sustained a second wound to the buttock, but this was not a life threatening injury. Post-mortem examination revealed multiple bruises accompanied by abrasions to the back, torso, the face and swelling to the mouth, nose and chin. The deceased's nose was fractured. There was a large bruise over the right eye and petechial haemorrhaging to the corner of the left eye. There was bruising on the deceased's scalp under the hair. 20 The facts I have found show that K R G participated in the assault upon the deceased, although in circumstances where he was not aware that one of the other men had a knife and wherein he had no direct role in the circumstances that led to the stabbing of the deceased. But, the young person, K R G, certainly knew generally what was going on. He would have had no doubt that all the men in the group were physically assaulting and quite seriously assaulting the deceased. He, with that knowledge, participated in the assault himself. 21 A considerable body of subjective material has been placed before me in relation to K R G and I shall endeavour to summarise this in a moment. Before I do, I should refer to K R G's antecedents. 22 The Crown has presented me with material described as the criminal history of K R G. It is hardly a history that reflects well upon this young person's activities in the community up to the present time. It is a poor record. It shows a young person out of control in a number of respects. Most significantly, it shows that on 29 October 2001 at Campbelltown Children's Court a control order was imposed on him pursuant to the terms of s 33 (1) (g) of the Children's (Criminal Proceedings) Act, 1987. The principal matter that led to the imposition of the control order, as I understand it, was a robbery and a break and enter of a building to commit a serious indictable offence. It is fair to say that the facts of that matter have not been placed before me in any detail. But it is also apparent that the control order was for 18 months commencing on 8 December 2001 and expiring in March 2003 with a non-parole period of four months, with supervision. I infer from the length of the control order that these were regarded as serious matters. 23 There are other matters involving assaults in his criminal history as well. These are important matters, because they form part of the considerations, as I earlier indicated, that go to the question as to whether the young person should be dealt with according to law or in accordance with Division 4 Pt 3 of the relevant legislation. 24 May I now turn to that aspect of the matter. The relevant law is stated in the decision of the Court of Criminal Appeal in R v W K R, volume 32 (1993) NSWLR, at 447. In that case a youth of 16 years and 9 months had pleaded guilty to sexual intercourse with a girl under 14 years and was, in the circumstances, dealt with according to law and, moreover, in that particular case the appropriate sentence imposed was a term of imprisonment structured so as to provide a minimum term and an additional term as provided by the Sentencing Act 1989. The sentence of penal servitude was, however, ordered to be served in a detention centre. 25 At page 459 his Honour Justice Sully, in whose reasons generally Hunt CJ at CL and Campbell J agreed, said this: "The Criminal Proceedings Act does not itself provide any guidelines to which the discretion confirmed by s 18 (1) is to be expressed. The Act, however, does lay down a series of principles to which a court exercising criminal jurisdiction with respect to children shall have regard." 26 His Honour then stated the fact that there were five such principles. He stated that two of those in particular were relevant for the purposes for which his Honour was considering them. He set out those particular principles, they being (b) and (e) in s 6. 27 His Honour went on to say: "These "principles" strengthen me in the view to which I would have been inclined to come without such instruction, namely, that the threshold discretion which arises under s 18(1) of the Criminal Proceedings Act is to be exercised upon the basis of a fair and objective view of the true level of culpability - or, as I would prefer to say, of personal responsibility, - of the offender. If, in a particular case, a crime has been committed, and it is a crime which is, in its nature and incidents, an adult crime rather than a crime which can be conceptualised sensibly as deriving from the offender's '… state of dependency and immaturity …', then that factor is, in my opinion, strong warrant for the exercise of the relevant discretion in favour of dealing with the offender according to law. The graver the crime the greater the warrant." 28 His Honour continued at paragraph (c) on page 465; "In order to fix a fair and objective of the true level of personal responsibility of a particular offender, it will be appropriate to consider, as well, whether the nature and incidents of the crime, and the personal circumstances otherwise of the offender, are such that the offender should be allowed to shelter behind the accident of age so as to have the quite extraordinary advantages, in terms of penalty, that flow from the application of Div 4 of Pt 3 of the Criminal Proceedings Act." 29 Each matter, of course, as his Honour's remarks made quite clear, will need to be examined on its own facts and circumstances. 30 Looking at the matters that are to be taken into account, I turn first to consider the seriousness of the offence. Certainly it is, it must be conceded, a serious offence. Of much more importance, however, I think in this matter is the age and maturity of K R G himself at the time of the offence and, for that matter, at the present time. 31 Up until the commission of the subject offence, which occurred as I have said when he was but 16, K R G had been dealt with, as his criminal history shows, under the structure of the Children's Court legislation. 32 I think it is to be inferred from his general behaviour prior to the commission of this offence and, for that matter, his behaviour on the evening when the offence was committed, that it may be fairly said to reflect a level of immaturity and the behaviour of someone who was easily led by others who were older than himself. Moreover, another feature of his immaturity was his general involvement, no doubt due to peer pressure in alcohol and drugs. As I have said, the overall picture is a young person whose life is markedly out of control, a situation in his case at least plainly linked with his youth and then state of immaturity. 33 In my view, taking all the matters into consideration in sub-s 1 (a), it is appropriate, in the present matter, that K R G, in relation to the present sentence to which he has pleaded, should be dealt with under Division 4 Pt 3 of the Children's (Criminal Proceedings) Act 1987. 34 One other threshold matter is this; quite properly the Crown drew to my attention s 25 (2) of the legislation which requires; "(2) A court shall not sentence a person to whom this section applies to a term of imprisonment, or make an order under section 33 (1) (g) in respect of the person, in connection with an offence unless: (a) a background report, prepared in accordance with the regulations, has been tendered in evidence with respect to the circumstances surrounding the commission of the offence". 35 The Act then goes on to require that certain other procedural steps be taken. There is an issue as to whether the material placed before me on behalf of K R G sufficiently answers the statutory description in s 25(2)(a). I shall return to this at the conclusion of these remarks on sentence. 36 May I then turn to the subjective circumstances of K R G as revealed by the evidence. I have already given consideration to these in a general sense in determining the threshold question under s 18. It is necessary now however, to recite them in some detail. K R G's mother gave evidence that she and her younger children have now moved from the Cartwright area to Umina. It seems that this move to a new area has been beneficial for the whole family. Indeed, for her part K R G's mother has given evidence that she herself is in a relationship and she proposes to marry next February and to continue to reside in the Umina district. 37 According to her evidence, strange as it may seem, the fact that K R G has been in detention in relation to the murder charge, bail refused, at Kariong has had a good outcome for him. In specific terms he has improved his education and he has succeeded in obtaining his Year 10 school certificate. This happened at the end of last year, and she described this as a Christmas present to herself. Secondly, K R G has found himself not only to be capable of success at studies, but relatively accomplished in artistic matters as well. 38 She says he has come a long way and he has shown himself to be a more responsible person. The expression, I think, that emerged from the evidence was this, that he is ready to live in the community again, or as his counsel put it "ready to give it a serious go". 39 It seems on all the evidence, having regard to the various documentary material that has been placed before me, that there has been some significant stocktaking by the young person in the difficult circumstances in which he has found himself in detention since 26 January 2002. He has, in fact, been in custody for nearly nineteen months. The conditions of detention, as counsel pointed out to me, are equivalent to maximum security on remand. The fact that he has been able to achieve something during this period of time, indeed something quite noteworthy, does I think auger well for his rehabilitation. 40 The evidence of K R G's mother also confirms the fact that K R G has expressed genuine contrition and remorse for his part in the attack upon the deceased. There is a little from K R G himself which further confirms the important aspect of contrition. 41 The report done by Miss Duffy, which is exhibit 4 in the proceedings, was done quite a long time ago, back in March 2002. It was produced as a result of an interview which occurred on 26 February 2002, a very short time after K R G had been first placed in detention. It is overall a pessimistic report, and its contents contrast with the facts revealed by K R G's mother's evidence. There is no need for me to refer to it all, but what it does confirm, I think, are the following three matters. 42 One, that K R G had very extensive problems with drugs and alcohol, very extensive indeed, and that there can be no doubt that this involvement with drugs and alcohol had a considerable amount to do with his behaviour at that earlier period of time. 43 Secondly, the report shows that at that point in time he had not succeeded academically, far from it. So that too is a matter of major contrast with the evidence I have heard today about his more recent success with the School Certificate and with other matters of education and personal development. 44 Thirdly, the report indicates that there are many measures of treatment that can and should be taken to his advantage. Reference is made to anger management, counselling, and treatment for abuse of drugs and alcohol and the like. 45 Before passing to consideration as to what I should do having regard to the options contained in s.33 of the Children (Criminal Proceedings) Act 1987 I should briefly refer now to the proceedings involving Michael John Whitmore. He was indicted on a similar charge to K R G, and pleaded guilty to it on 4 August 2003. This charge arose out of the same events as I have already indicated, for which the young person K R G has been charged. 46 One significant difference between Mr Whitmore's situation and K R G's is that Mr Whitmore was two and a half years older that him, and I agree, having listened to all the submissions, that the age difference between the two is a significant matter. 47 In that case I imposed a period of three years imprisonment, reduced by fifty percent to reflect the value of the guilty plea given by Mr Whitmore and his offer of assistance to law enforcement authorities. The sentence was discounted for that person to a term of eighteen months. I found special circumstances and set a non-parole period of eleven months which, having regard to the particular structure of that sentence will expire on 4 May 2004. 48 Some of the arguments ranged before me today have examined the parity issue, quite appropriately, between Mr Whitmore's situation and that of K R G. Mr Webb put two options for consideration to the court. The first was an option of imposing a control order, structuring the order in such a way as to allow the release on parole of K R G after a period of approximately twelve months, with appropriate conditions as to supervision. Backdating the commencement of the order as was suggested, would see the immediate release of K R G but under strict supervision. 49 The second suggested option was that the court might simply deal with the matter pursuant to the terms of s 33(1)(e), that is, to make an order releasing K R G on probation, on appropriate conditions, for an appropriate period of time. The matter stressed in relation to this second proposal was that the most significant factor for consideration is that K R G has been in detention now for nearly nineteen months. 50 It was this factor related to his long period of custodial detention, that was suggested might most appropriately be contrasted with the situation of Mr Whitmore's sentence so that parity might truly be achieved. Once appropriate recognition was given to the time spent in custody by K R G, not only the period of time, but indeed the conditions of custody, being as I have already indicated akin to maximum security on remand. The comparative situation between the offenders, taking into account the important age difference between them, was capable of being achieved by an order under s 33(1)(e). 51 The Crown has very fairly highlighted to the age distinction between Mr Whitmore and K R G. It has pointed out that perhaps the criminal antecedents of Mr Whitmore are not as serious as those of K R G, and I think that is not an unfair comment. Notwithstanding that, the Crown has not I think seriously put an argument in the way of the acceptance of either of the proposals put forward by Mr Webb, provided the court is satisfied that the selected approach will effectively deal with all aspects of the sentencing process. 52 One important matter to bear in mind is related to the different aims and objectives of the Children (Criminal Proceedings) Act 1987. There are I think marked differences between the considerations that I need to reflect in the sentence to be imposed when contrasted to those that occupied me in relation to sentencing Michael John Whitmore. 53 Nevertheless I have to repeat again that the present offence was of a serious kind. The community expects that its members will be protected from the commission of acts of violence in the streets of Sydney and its suburbs by young persons who are moved by anger or other motives to act in a violent manner. This particular offence was one where one person was set upon in a most cowardly fashion by a gang of young men intent upon doing violence to him in a brutal manner. I do not consider that I should overlook that fact. 54 Nevertheless the fact is that K R G has in effect been in detention now for nineteen months, and I accept Mr Webb's argument that considerations of parity with Mr Whitmore - bearing in mind that there are some differences in their situations, both for and against – will be adequately addressed if I were to make an order within the terms of s 33(1)(e) of the Children (Criminal Proceedings) Act 1987. An order in terms of that sub-section will reflect appropriately the relevant concerns arising under the requirements of the Children's (Criminal Proceedings) Act 1987. One consequence of the decision to deal with K R G in this way is that it abirates any further need to consider the requirements of s 25 (2((a) of the legislation 55 I order the release of K R G on probation for a period of twelve months from today's date, on the following conditions: 1. That he obey all reasonable directions of the Juvenile Justice Department while the order is in force. 2. That he attend drug and alcohol counselling as required by the Juvenile Justice Department during that period of time. 3. That he seek gainful employment and continue his education during that period. 4. That he reside with his mother or as approved by the Juvenile Justice Department during that same period of time. ********** Last Modified: 11/11/2003 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.