Director of Public Prosecutions v JJ and SH [2011] NSWChC 2

Children's Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v JJ and SH [2011] NSWChC 2 Hearing dates: 22/11/11, 13/12/11 Decision date: 23 December 2011 Jurisdiction: Criminal Before: Magistrate Dunlevy Decision: See paragraph [53] Catchwords: CRIMINAL LAW - young offenders - robbery and larceny offences - pleas of guilty - whether to sentence in the Children's Court or commit for sentencing according to law - issues for consideration Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Cases Cited: KT v The Queen [2008] NSWCCA 51 PM v The Queen [2007] HCA 49 R v WKR (1993) 32 NSWLR 447 R v Pham and Ly (1991) 55 A Crim R 128 Category: Principal judgment Parties: Director of Public Prosecutions SH (a young person) JJ (a young person) Representation: Mr Winch for SH Mr Doohan for the Director of Public Prosecutions Mr Schultink for JJ File Number(s): 2010/153043, 2011/79623

JUDGMENT

Introduction 1The young person JJ has pleaded guilty to: * One charge of attempted robbery in company with the victim being Mitchell Cassidy and the property being cash belonging to the Shell service station at Buronga (sequence 1); * One charge of robbery in company with the victim being the late Colin Ferrier and the property being a Ford Ranger motor vehicle registered [xxx]30P (sequence 2); and * One charge of larceny with the victim being the late Colin Ferrier and the property being his wallet (sequence 13). 2JJ also admits a further five offences that he asks be taken into account on sentence for the charge of attempted robbery in company (sequence 1). Those offences have been placed on Form 1 documents pursuant to Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those five offences are: * Larceny of a Commodore sedan motor vehicle registered [xxx]179 (sequence 4); * Destruction by fire in company of the Commodore sedan motor vehicle registered [xxx]179 (sequence 5); * Destruction by fire in company of the motor vehicle registered [xxx]627 (sequence 6); * Destruction by fire in company of the motor vehicle registered [xxx]037 (sequence 7); * Destruction by fire in company of the motor vehicle registered [xxx]620 (sequence 8); 3Additionally, JJ also admits a further three offences and asks that they be taken into account on sentence for the charge of robbery in company (sequence 2). Those three charges have also been placed on a Form 1 and are: * Taking and driving a motor vehicle registered [xxx]323 without the consent of the owner of the vehicle (sequence 9); * Larceny of various items of personal property valued at $200 and belonging to Colin Wright (sequence 10); and * Attempting to take and drive a motor vehicle registered [xxx]210 without the consent of the owner of the vehicle (sequence 11). 4The young person SH has pleaded guilty to: * One charge of attempted robbery whilst armed with an offensive weapon with the victim being the Shell Service Station and the weapon being a knife (sequence 4); * One charge of robbery in company with the victim being the late Colin Ferrier and the property being a Ford Ranger motor vehicle registered [xxx]30P (sequence 12); and * One charge of stealing from a person, with the victim being the late Colin Ferrier and the property being the wallet of the deceased (sequence 13) 5I have noted that SH has been charged and pleaded guilty to stealing from the person of the late Mr Ferrier. It seems that this may have been done in error as the facts sheet for this part of SH's matter reads the same as that for JJ who has been charged with larceny simpliciter . The facts sheet for SH also has a sub-heading that describes the offence as being larceny. It therefore might be the case that sequence 13 for SH will be amended at a subsequent date. 6SH also admits a further four offences that have been placed on a Form 1 and which are to be taken into account on sentence for the offence of attempted robbery whilst armed (sequence 4). Those four offences are: * Larceny of a Commodore sedan motor vehicle registered [xxx]179 (sequence 2); * Destruction by fire in company of the Commodore sedan motor vehicle registered [xxx]179 (sequence 3); * Destruction by fire in company of the motor vehicle registered [xxx]620 (sequence 7); and * Destruction by fire in company of the motor vehicle registered [xxx]627 (sequence 8). 7Additionally, SH also admits a further three offences and asks that they be taken into account on sentence for the charge of robbery in company (sequence 12). Those three charges have also been placed on a Form 1 and are: * Destruction by fire in company of the motor vehicle registered [xxx]037 (sequence 9); * Taking and driving a motor vehicle registered [xxx]323 without the consent of the owner of the vehicle (sequence 10); and * Larceny of various items of personal property valued at $200 and belonging to Colin Wright (sequence 11). 8All of the offences are said to have occurred between the 15 and 16 June 2010. JJ and SH have been charged along with various co-accused who have come before the Court at various times since late June 2010. 9In the case of JJ, the proceedings were commenced by way of Court Attendance Notice and first came before Wentworth Children's Court on 11 March 2011. In the case of SH the proceedings were commenced by way of Court Attendance Notice and first came before Wentworth Children's Court on 19 June 2010. Ultimately each set of proceedings was transferred to Broken Hill Children's Court which sits more frequently and which is more regularly attended by officers of the Director of Public Prosecutions. 10JJ pleaded guilty to the substantive offences on 18 October 2011 and on that date it was indicated that a number of matters would be placed on a Form 1. The position with regards to the offences admitted by way of the Form 1 offences was confirmed on 22 November 2011. JJ has therefore pleaded guilty to the offences at a relatively early stage in proceedings, and will in all likelihood receive a substantial discount on sentence. I will not quantify the extent of that discount, as I do not intend to sentence him. I have however taken into account the likely discount in determining the issue at hand. 11SH pleaded guilty to his substantive offences on 20 September 2011 and on that date it was indicated that a number of matters would be placed on a Form 1. Like JJ, the position with regards to the offences admitted by way of the Form 1 was confirmed on 22 November 2011. SH has therefore also pleaded guilty to the offences at a relatively early stage in proceedings and will thus receive a substantial discount on sentence. Again, I will not be quantifying the extent of that discount, as I do not intend to sentence him. I have however taken into account the likely discount on sentence when determining the issue at hand. 12For some time in these proceedings it has been apparent that regardless of how the matters progressed I would have to give consideration to the issue of whether it is appropriate for the charges to remain in the Children's Court or whether it is more appropriate that they be dealt with in the District Court. In relation to this issue I have taken into account the agreed facts that have been tendered on the issue of sentence and the young people's criminal records. Additionally, Confidential Background Reports from Juvenile Justice have been made available to the Court and I have heard submissions from all of the parties as to what orders - if any - should be made with respect to the appropriate court for sentence. I have taken all of these things into account in coming to my decision. 13Not surprisingly the position of each of the young people is that the matters should remain in the Children's Court as they can be appropriately dealt with here. The position on behalf of the Director is ostensibly a neutral one, with Mr Doohan making no submissions either way as to which course these matters should take. Rather, the prosecution takes the view that it is a matter for the Court as to whether these charges should remain in the Children's Court.