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. Factual issues 14The facts are agreed and have been handed up to the Court and are less than two pages long in the case of JJ and only slightly longer in the case of SH. Leaving aside some minor differences the agreed facts for each young person are ostensibly the same. They reveal that in the early hours of the morning of 16 June 2010 JJ and SH were members of a group of males that attempted to rob the Shell service station located at Buronga. JJ and SH were in the company of three other young males. The attempt was unsuccessful as the service station attendant was able to lock the front entry to the shop area of the station. The attempt included of one of the group kicking the bottom panel of the door causing it to smash but not so as to enable entry. Another member of the group swung an object at the door, which damaged it. 15The robbery in company that forms sequence 2 for JJ and sequence 12 for SH was effected by two youths from the group attacking the late Colin Ferrier and forcing him out of and away from the utility that was ultimately taken. Michael Ferrier, the son of Colin Ferrier, was forced to intervene in order to try and protect his father. The vehicle was ultimately driven away by one of JJ and SH's accomplices. It is the Crown's position that the person who drove the vehicle away was another member of the group known as JK. Although it is not referred to in the facts, it is common ground that JK has separately been charged with various serious offences including murder. 16The facts continue on to describe how the late Colin Ferrier was run down and killed by the offender who was driving the utility. After that occurred, JJ, SH and some co-offenders who were in a different car pulled up next to the late Mr Ferrier's body. They all got out of that other car and stole the late Mr Ferrier's wallet from his body. They all then left the scene. The facts confirm that the late Mr Ferrier was deceased at the time the wallet was stolen. Legal issues 17There is very little case law dealing with the operation of section 31 of the Children (Criminal Proceedings) Act 1987. Notwithstanding this, I have had the benefit of well-formulated submissions from Mr Winch and Mr Schultink as to what course I should take in this matter. Mr Schultink addressed first and provided very helpful submissions as to why we have a Children's Court and the importance of emphasising prospects for rehabilitation when sentencing young people. He also submitted that the offences committed by JJ were not of such gravity as to require them to be dealt with in the District Court. Mr Winch addressed for SH on similar themes and also referred to section 18 of the Children (Criminal Proceedings) Act 1987, which whilst not directly on point raises issues analogous to those that arise under section 31. I have taken into account all of these arguments and I will deal with the most cogent of them below. 18The starting point for these matters is section 31 of the Children (Criminal Proceedings) Act 1987, which relevantly states: 31 Hearing of charges in the Children's Court (1) If a person is charged before the Children's Court with an offence (whether indictable or otherwise) other than a serious children's indictable offence, the proceedings for the offence shall be dealt with summarily. (2) ... (3) ... (4) ... (5) Notwithstanding subsection (1): (a) if a person is charged before the Children's Court with an indictable offence, and (b) if, at any stage of the proceedings, the person pleads guilty to the charge, and (c) if the Children's Court states that it is of the opinion that, having regard to all the evidence before it (including any background report of a kind referred to in section 25), the charge may not properly be disposed of in a summary manner, the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 as if the offence were a serious children's indictable offence in respect of which the person had pleaded guilty as referred to in that section. 19From the outset it should be noted that none of the charges levelled against JJ and SH are serious children's indictable offences and so according to sub-section (1) of the provision it is presumed that they will be dealt with in the Children's Court. However, subsection (5) creates a power on the part of the Court to order that the proceedings be dealt with as if the charges levelled against JJ and SH were serious children's indictable offences. In making this decision the Court has to take into account all of the evidence that is before it - including the content of any background report - and must be satisfied that the charge or charges may not properly be disposed of in a summary manner. Notably, section 31 provides no guidance as to what factors should be taken into account when making this decision. 20The practical effect of having the matters dealt with in accordance with Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 is that JJ and SH will face the maximum penalty for each of the substantive offences. The maximum penalty for the two most serious charges levelled against the young people is twenty years imprisonment on each count. The maximum penalty for stealing is five years imprisonment and the maximum penalty for stealing from the person is 14 years imprisonment. There would be no limit on the extent to which the sentencing judge could accumulate the terms other than the maxima themselves. Additionally, if JJ and SH were to receive a custodial sentence there is the potential that they would serve at least part of the term in an adult prison. 21By contrast, if JJ and SH are sentenced by the Children's Court the maximum penalty is reduced to two years for the two more serious charges and one year for the offences of larceny and stealing from the person. If a custodial term were imposed, JJ and SH would be made the subject of a control order, which would commit them to the control of the Minister. The maximum penalty upon accumulation - if any - would be reduced to a total term of three years, and the bulk - if not the entirety - of the sentence would almost certainly be served in a Juvenile Justice Centre as opposed to an adult prison. Therefore, from JJ and SH's perspective the course I take in relation to this issue has extremely important implications. 22In making this decision it is important to take into account the statutory framework under which the Children's Court operates. In that regard section 6 of the Children (Criminal Proceedings) Act 1987 sets out a series of principles to which the Court must have regard in considering this issue: 6 Principles relating to exercise of functions under Act A person or body that has functions under this Act is to exercise those functions having regard to the following principles: (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind, (f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties, (g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim. 23In my view these principles produce two issues that I must consider. The first issue is whether the need to ensure that JJ and SH bear responsibility for their actions outweighs the benefit to JJ, SH and the community of their receiving guidance and assistance from the authorities. This guidance and assistance would no doubt include access to educational resources at a Juvenile Justice Centre that would better cater to their needs than those that would potentially be available for them at an adult prison. 24The second issue is whether it is necessary in order to ensure that JJ and SH bear responsibility for their actions that they be subject to a harsher penalty regime, and one that in all likelihood will mean that they will be removed from the broader community and thus their homes for a substantial period of time. 25In considering these questions it is important to remember why we have a Children's Court. As referred to by Mr Schultink in his submissions, Kirby J canvassed this issue in the case PM v The Queen [2007] HCA 49 at [70]. In that regard there are two compelling public policy reasons why we have a Children's Court, the first of which is that because of their immaturity it is often inappropriate to invoke the full range of criminal punishments against young people. Secondly, having a separate Children's Court system and a separate system of detention helps to prevent young people becoming associated with older and more experienced offenders; it grants them a second chance and possibly diverts them away from a life of crime. Both of these rationales reflect the capacity young people have to reform themselves as they mature. Although Kirby J was dissenting in his judgment in PM v The Queen I feel that his observations on this issue would hardly be controversial. 26Of course general principles of sentencing also apply to varying extents when a Court sentences a child or young person. It therefore seems appropriate to consider the rationale behind the imposition of sentences. During the course of submissions I canvassed whether section 3A of the Crimes (Sentencing Procedure) Act 1999 applied to these proceedings. The consensus position reached was that regardless of whether the provision formally applied, the purposes of sentencing enunciated by section 3A would have application in that they represent the common law purposes. Relevantly, section 3A states: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. The reason why I have averted to these purposes applying to varying extents is because some of these purposes may be given more or less weight in the case of young people when compared to adults who have committed the same type of crimes. For instance, when sentencing JJ and SH the Court will give considerable weight to their capacity for rehabilitation given that the law stresses the public interest associated with promoting the rehabilitation of young offenders (KT v The Queen [2008] NSWCCA 51 at [22-26] per McLennan CJ at CL). 27A more difficult issue to deal with is what weight should be given to the issue of general deterrence and retribution. Broadly speaking the starting position on this issue is that less weight should be given to these factors when sentencing a young people such as JJ and SH (KT at [22-26]). However, this principle is by no means set in stone and sentencing courts must still have regard to the principle of general deterrence when sentencing children and young people for serious offences (R v WKR (1993) 32 NSWLR 447 at 465) and there remains a significant public interest associated with deterring antisocial conduct (R v Pham and Ly (1991) 55 A Crim R 128 at 135 per Lee CJ at CL). 28These issues are by no means easy to resolve, and from the outset it must be observed that the purposes of assisting JJ and SH and promoting their rehabilitation point the court in a different direction than the purposes associated with general deterrence and retribution, which in turn requires me to consider whether the actions of JJ and SH were so serious or antisocial as to warrant these matters not being dealt with summarily. 29In balancing all of these issues I have also been referred to section 18 of the Children (Criminal Proceedings) Act 1987. This provision is not entirely on point, but it deals with similar issues to those raised by section 31. Section 18 deals with factors to be considered by sentencing judges of the District and Supreme Courts when dealing with children and young people for indictable offences other than serious children's indictable offences. It also grants a discretion on the part of the sentencing judge to remit such matters to the Children's Court. In terms of factors to be considered section 18(1A) states: (1A) In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters: (a) the seriousness of the indictable offence concerned, (b) the nature of the indictable offence concerned, (c) the age and maturity of the person at the time of the offence and at the time of sentencing, (d) the seriousness, nature and number of any prior offences committed by the person, (e) such other matters as the court considers relevant. 30Section 18 is not entirely on issue because it deals with the inverse situation to that envisaged by section 31, but it provides some insight into this matter because it sets criteria that can be considered in deciding whether indictable matters can be appropriately dealt with in the Children's Court. I will therefore be taking these factors into consideration. Having identified the factors to be considered I will undertake an analysis of them below. Analysis of the issues Issues arising from section 6 of the Children (Criminal Proceedings) Act 1987 and the emphasis to be placed on rehabilitation. 31As highlighted above, the consideration of the factors referred to in section 6 involve balancing the need to ensure that JJ and SH are held responsible for their actions against the recognised goal of providing guidance and assistance to young offenders and the undesirability of removing young people from the community for lengthy periods of time. Incarcerating young people is an extremely undesirable measure that should only be used as a last resort; therefore the second issue virtually speaks for itself. In terms of providing guidance and assistance to young offenders, I take this to be a reference as to how the courts and authorities can assist in rehabilitating young people. 32On the issue of rehabilitation for JJ, I have taken into account the contents of the Confidential Background Report prepared by Juvenile Justice, which highlights a number of relevant issues. The first such issue is that JJ has a large and supportive family network, which would be conducive to his reform. 33Another issue is that JJ describes himself as liking school, but unfortunately his use of marijuana has prevented him from succeeding with mainstream schooling. By contrast, when in Juvenile Detention JJ attends school regularly and receives positive reports. This bodes well for his future prospects; as if his drug problem can be adequately addressed JJ may be able to get a good education, which would enhance his employment prospects and thus his potential for rehabilitation. JJ has expressed that he wishes to go to TAFE and has an interest in manual labour. It therefore seems that JJ has put together at least a rudimentary plan for his future. 34Additionally, whilst on remand JJ has engaged with a psychologist in order to address coping issues/skills, grief and loss and alcohol and other drug issues. All of these issues are significant criminogenic factors, and if JJ were able to overcome them it would lessen his likelihood of re-offending. JJ has been described as 'a pleasure to have on the unit' at Riverina Juvenile Justice Centre, and so it is obvious that with the right support and motivation JJ responds and behaves well. 35On the issue of rehabilitation for SH, I have also taken into account the contents of the Confidential Background Report prepared by Juvenile Justice. In that regard I have noted that SH also has a supportive family, which would aid in his rehabilitation. 36It has to be noted though, that SH's educational history is very poor and in the past SH has promised Juvenile Justice that he will go to school, only to then become a long-term truant. Unfortunately, SH's mainstream educational prospects have been marred by periods of incarceration. However, whilst in custody SH has been attending school and is studying for his Year 10 certificate, has participated in Aboriginal Cultural Studies and is also completing a brick laying trade skills course. Therefore, if SH can be encouraged to continue on with his education he too could have good prospects for rehabilitation. 37Like JJ, SH has also engaged in counselling whilst in custody and is addressing his problems with alcohol and other drugs. He is also currently on the highest level - that being the best - of the Kariong Juvenile Correctional Centre behavioural management programme. Unfortunately, it would also seem that he might be prone to misbehaviour, as he has previously been removed from one of the Centre's programmes due to a deterioration in his behaviour. These factors would indicate that SH mostly responds and behaves well, but there may be the need for further support to be rendered to him. 38Therefore my conclusion is that both young people have good prospects for rehabilitation if provided with the right assistance and opportunities. This is based not just on their age, but also the analysis contained in the Confidential Background Reports. Section 18(1A)(c): age and maturity at the time of the offence and at the time of sentencing 39JJ was born on 19 May 1993 and is currently 18 years old. At the time of the commission of the offences he had just turned 17. There is nothing in the material before me that would indicate that JJ's level of maturity is anything other than normal for a person his age. This would mean that he would have a reasonable level of impulse control and intellectual and moral reasoning. However, he would not have the experience and maturity level of a fully developed adult. Notwithstanding this, JJ should have a well-developed sense of right and wrong and the ability to resist peer pressure when invited to commit crimes. 40SH was born on 19 August 1993 and is currently 18 years old. At the time of the commission of the offences he was 16 years old. On this issue I have taken into account the psychological report of Ms. Player prepared on 7 November 2011. This report indicates that SH is immature for his age and is easily led into misbehaviour. There are also some indicators that SH has a lower than average intelligence level although Ms Player was not able to confirm this due to anomalous test results. In the circumstances I accept Mr Winch's submissions that SH is immature for his age. This is a relevant consideration because when considering sentences for young people it is their youth and actual maturity level that is the relevant consideration, not their age ( R v Hearne (2001) 124 A Crim R 451 at [25]). Additionally this immaturity can lessen the criminality of the offender if it was a significant causal factor in the commission of the offence ( Hearne at [25] and MS2 v The Queen (2005) 158 A Crim R 93 at [61]). Section 18(1A)(d): the seriousness nature and number of prior offences committed 41In relation to JJ I have been provided with both a New South Wales and a Victorian criminal history. The New South Wales history reveals a number of relevant property offences with offence dates starting from 30 December 2007. He also has entries for crimes of violence including assault and affray. All of these matters have been dealt with by way of sentences at the lower and middle parts of the sentencing spectrum, namely cautions, bonds and probation orders. The Victorian history shows six offences committed on 21 August 2008, which include property offences and which were dealt with by way of the equivalent of a bond and then dismissed following compliance with that bond. Overall, my assessment of JJ's criminal history is that it does not necessarily assist him in that it does include some serious offences - including counts that are strictly indictable when committed by adults but nor is it terribly damning. 42In terms of SH I have been provided with a New South Wales criminal history that shows a first offence date of 6 June 2005. Since that time SH has accumulated numerous entries for property offences and crimes of violence. He has been the subject of many sets of call-up proceedings and has received numerous control orders. Of concern is the aggravating factor that at the time of the commission of these offences SH was serving a 12 month probation order for receiving stolen property and a 6 month good behaviour bond for assaulting an officer in the execution of their duties. SH has also committed offences that for adults would be strictly indictable. Therefore SH's criminal history is of little assistance to him and may even indicate that previous attempts at rehabilitation have failed. The seriousness of the offences and the need to deter antisocial behaviour 43When dealing with young people the assessment of the seriousness of their offending often goes beyond the usual assessment as to where their individual offences fall on the scale of objective seriousness. Often the exercise examines whether the behaviour exhibited by the offenders can be characterised as adult-like or whether it is consistent with youthful criminal behaviour. Because of this I will examine each of the substantive offences from both perspectives. Of course the offending of the young people goes beyond the substantive offences and includes numerous matters that will be taken into account on sentence. I am also taking them into account, in that the sheer volume of offences committed by the young people really does make them stand out by comparison to other young offenders. 44By way of preliminary observation, it has been submitted on behalf of the young people that their conduct is not characteristic of adult conduct. I do not accept this submission. The robbery offences are very serious and they are not typical of the types of matters that are dealt with by the Children's Court. In drawing this conclusion I am taking into account not just the pattern of juvenile offending within the Broken Hill Circuit - and these matters do very much stand out from the types of matters generally dealt with in this region - but also my experience as a Children's Magistrate at Parramatta and Bidura Children's Courts. Robberies more commonly committed by young people have a much lower degree of violence than those at hand. They tend to not involve the use of weapons or implements and the value of the items stolen are generally lesser than the items taken in the subject case. 45In the case of the attempted robbery I do not accept that it could be classified as falling towards the lower end of objective seriousness. Rather it falls towards the middle range. I draw this conclusion for a number of reasons including that the service station attendant would have been very frightened by the crime that was unfolding before him. It was only his quick thinking and the sturdiness of the service station door that prevented the robbery from being perfected. Of further relevance is that when the perpetrators were frustrated in their attempt to get into the service station they attempted to smash their way in, which would have added an additional layer of menace to the victim of this crime. 46Likewise the robbery committed upon the late Mr Ferrier is well outside the lower range of objective seriousness and is squarely within the middle range. The robbery involved the late Mr Ferrier being set upon by a group of people engaging in thuggish, animalistic behaviour. The actions of JJ and SH and their co-accused would have rendered Mr Ferrier's last moments alive terrifying. This type of behaviour is extremely serious and very much atypical of the types of matters that are dealt with in the Children's Court. 47The facts associated with the larceny of the late Mr Ferrier's wallet are even more chilling. In terms of the objective seriousness they are very much towards the upper end as the facts are so grave. The act of stealing the wallet of a man who had just been run down by a car, and who was lying lifeless on the road is so morally reprehensible it almost defies description. It would stun even the most jaded observers of the human condition, and was an act of thievery so serious that it alone could be virtually beyond the purview of the Children's Court to punish. Final analysis 48As alluded to in the introduction of this judgment, the factors that need to be considered for these matters are numerous; individually they point the Court in different directions as to whether these offences can be properly disposed of in a summary manner. On the one hand, both young people may have good prospects for rehabilitation if provided with sufficient guidance. SH was at the time of the offence a relatively immature person and JJ has a limited - albeit still relevant - criminal record. These aspects are highly relevant mitigating factors. 49On the other hand, even accounting for his immaturity SH has a lengthy criminal history and has demonstrated a tendency to not make use of the opportunities afforded him through good behaviour bonds and probation orders. He has been the subject of numerous call-up applications and has received numerous control orders including for property offences and crimes of violence. This lessens his prospects for rehabilitation although it does not completely eliminate them. SH was actually the subject of a good behaviour bond and a probation order at the time these offences were committed which is an aggravating factor that must be taken into account. These factors lend weight to the argument that SH's offences cannot be properly disposed of in a summary manner. 50Additionally, JJ was sufficiently mature to know that what he was doing was extremely wrong. He could have declined to become involved in this whole episode or at the very least decided to walk away when the proposed crimes became more serious. This makes it seem more appropriate that the Children's Court not deal with the matters. 51My overall assessment of the substantive offences is that they involve dangerous, antisocial and reprehensible behaviour. The actions of the young people very much enliven the need to send a message of general deterrence to the community; this type of behaviour simply will not be tolerated and offenders - even if young people must be punished for such acts. 52Having balanced all the considerations referred to above my finding is that these matters cannot properly be disposed of in a summary manner. Rather, they should be dealt with according to law as to deal with these matters in the Children's Court would result in sentences that are too lenient. Orders 53I commit both of the young people for sentence in the District Court of New South Wales on a date to be fixed. I also order that an updated Confidential Background Report be prepared for the use of the sentencing judge. Finally, I order that pursuant to section 34(4) of the Children (Criminal Proceedings) Act 1987 this judgment be issued forthwith to the young people as a statement of reasons for my decision to commit them for sentence in the District Court. This is to be done both by this judgment being handed down to the legal representatives of the young people and by a copy of this judgment being forwarded by facsimile to the Detention Centres where the young people are being detained. Magistrate G.J. Dunlevy Broken Hill Children's Court 23 December 2011 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. Decision last updated: 08 February 2012