District Court New South Wales Medium Neutral Citation: R v TL [2017] NSWDC 178 Hearing dates: 23 May 2017 Date of orders: 25 May 2017 Decision date: 25 May 2017 Jurisdiction: Criminal Before: Sides QC DCJ Decision: The Court convicts you and sentences you to imprisonment. It fixes a non-parole period of three years and a total term of six years to commence on 18 March 2016. The Court orders that your parole eligibility date is 17 March 2019. Pursuant to ss(19)(1) the Court orders that you serve the sentence as a juvenile offender until you have completed your Higher School Certificate. Catchwords: Criminal Law – Sentence: Young offender wound with intent to do GBH; Possession and use of knife by young offender; Delay in District Court Parramatta; Discount for guilty plea at arraignment in District Court Cases Cited: R v Jeffries [2016] NSWDC 433 R v Koekoe [2012] NSWDC 254 R v AB [2017] NSWCCA 88 Texts Cited: Crimes (Sentencing Procedure) Act Children (Criminal Proceedings) Act Category: Sentence Parties: The Crown TL Representation: Counsel: Ms A Bhat for Crown Mr A Terracini for offender File Number(s): 2016/00085450 Publication restriction: Non publication of offender's name Judgment 1. The Young Offender TL appears for sentence consequent upon his pleaded guilty on 9 March 2017 to wounding the victim Falite Paseka with intent to cause grievous bodily harm on 4 March 2016. 2. This offence has a maximum penalty of 25 years imprisonment. The standard non parole period is not applicable because of the Young Offender's age. As it is a serious children's indictable offence, it cannot be dealt with summarily. 3. The Court notes that the Young Offender was committed for trial on 15 December 2016. On 9 February 2017, by consent and without arraignment, the Court fixed a trial date of 24 July 2017. On 2 February 2017, the Court was told that there was a possibility that the Young Offender would enter a plea of guilty and he did that, as I have indicated, on 9 March. 4. In the criminal trial list at the Parramatta District Court there have been delays that have come about for a variety of reasons including the increasing workload and length of trials. This has led to the parties frequently requesting the Court to fix a trial date without an accused being arraigned. That request is most frequently made on the first occasion a matter is listed in this Court at Parramatta after the committal for trial. 5. The Court notes that, yesterday, the New South Wales Bureau of Crime Statistics and Research released its report on the New South Wales criminal court statistics for 2016. That disclosed an increase in the delays in finalisation of criminal trials in the District Court. Those statistics reflect the State-wide situation. The Court has available to it statistics that show that the Parramatta District Court is one of the worst performing centres in terms of delays and in terms of matters being marked not reached. Hence, trial dates are at a premium, particularly in the context of matters proceeding on the date allotted. 6. The trial workload at Parramatta District Court is such that the delay in fixing a trial date can be adversely affected if the time the date is affixed is adjourned by even a matter of weeks. This can have the consequence of the trial date being months later than what would otherwise have been the case. 7. In this case when the indictment was first presented on 9 March this year it was about 19 weeks before the allocated trial date. Unlike R v Reggie Winters, a matter that I heard on 22 May 2017, there was no period between the date when the Young Offender entered the guilty plea and his allotted trial date when the Court was not sitting because there will be Judges sitting during the mid year vacation at Parramatta. Although, in the first two weeks, there will only be four Judges sitting in trials, whereas normally there would be seven during the court term and, as currently advised, in the last two weeks of the mid year vacation there will only be three trial judges sitting at Parramatta, where normally during the term there are seven. That contrasts with the Christmas New Year vacation period when no Judges sit at Parramatta. 8. When this Young Offender pleaded guilty his trial date was vacated. That did not mean that another trial could be slotted in on that date because he has two co accused, but had there not been those two co accused the time slot for his trial of 24 July would have been available and there would have been ample time to fix another priority trial on that day. 9. Consistent with the approach I took in R v Jeffries [2016] NSWDC 433 (7 June 2016) the Court will extend a discount of 20% that, in this case, amounts to 18 months to reflect the utility of his guilty plea. The Court should note that it has not been made aware of any appeal from its decision in Jeffries case. 10. Jeffries was one of a number of accused who pleaded guilty during the week long super call-over held at the Parramatta District Court late in May and early June 2016. That call-over freed up about 21 trial slots in the last five months of 2016 and the first four months of 2017 and had a significant impact in arresting the number of trials being marked not reached at Parramatta. 11. The approach that I have taken in this case is consistent with my decision in R v Koekoe [2012] NSWDC 254, which until R v AB [2017] NSWCCA at 88 had not been challenged by the DPP. That challenge failed but the Court does note that the decision reflects that it was not referred to the decision of Koekoe. 12. As the statistics from the New South Wales Bureau of Crime Statistics and Research indicate, delays in the disposal of trials have increased in the period since 2012 when I handed down the decision in Koekoe. In the Court's view, so far as Parramatta is concerned as the list judge in that period and, indeed, since 2010 the following have attributed to the increase in delays at the Parramatta District Court, amongst other things: 1. increasing number of committals for trial, as well as committals for sentence; 2. increasing length of trials, including increasing length of jury deliberations; 3. tendency and coincidence evidence; and 4. the allocation of judicial resources to Parramatta. For example, for all of 2017 to date, with the exception of a fortnight, Parramatta has not had its full complement of allotted judges to preside in criminal trials. In some weeks there have only been six judges available when seven should have been available and on occasions there have only been five judges available to do trials when there should have been seven. 1. As I pointed out in Koekoe, the Court needs to take whatever steps are necessary while still reflecting appropriate sentencing principles to attempt to address these delays. 2. Although a guilty plea that is entered after a trial date is allocated may indicate an absence of remorse, the Court is satisfied on the evidence, including the Young Offender's evidence, that he is genuinely remorseful and that the conditions referred to in subpara 21A(3)(i) Crimes (Sentencing Procedure) Act are met. Accordingly, the Court has reflected that remorse in the sentence it will shortly impose. 3. At about 7.30pm on 4 March 2016 the victim, who at the time was 18, was drinking alcohol at Berala with six of his mates, being: the Young Offender; the offender's brother P who was 18; the co-offender Joseph Santino who was 19; and the young co-offenders DP and VK both of whom were 17. They had purchased two cases of beer from a bottle shop and went to a nearby park where they consumed that beer. 4. During the early hours of 5 March 2016, they all went to an 18th birthday party of an acquaintance that was being held at an address in Asquith Street, Silverwater. There was a tent in the front yard where a number of males and females were sitting around. The victim and his mates sat on the furthest right side facing each other in a circle. At the party they drank more liquor. 5. At some stage the victim was pushed to have a one-on-one fight by one of the other guests at the party. The victim said words to the effect: "I don't even know you. I don't want to fight you. I don't even know you." The victim ended up with the guest in the middle of the road and they pushed and punched each other in a one-on-one fight. A number of people at the party surrounded them in a circle. The two were eventually separated from each other. 6. The Young Offender's brother was speaking to the victim and said something to him. In response the victim said words to the effect; "I just need some space. I just want to go home." He raised his left hand and pushed the Young Offender's brother P in the chest, causing P to move back slightly. 7. The Young Offender observed his brother being pushed and immediately ran from several metres away in the victim's direction and said: "What the fuck are you doing that to my brother for? Are you fucking serious?" The victim did not answer and the Young Offender took hold of the victim's head area and pulled it in a downward motion causing the victim to bend forward with his head towards the ground. The Young Offender then took a knife from the pocket of his pants and stabbed the victim twice, once in the arm and once in the stomach. This was done from what is described as "from an arm's length". The knife apparently had a black coloured handle and a longer silver blade. The victim had his hands up around his head and was still standing but leaning forward. Blood started coming from his stomach. The co-offenders and another male then surrounded the victim. 1. Paragraph 10 of the agreed facts sets out a number of propositions that the Crown allege in relation to the conduct of the co offenders. Those allegations are that: 2. the Young Offender's brother punched the victim to the ribs twice whilst the victim was leaning forward with his hands over the head; 3. the young co-offender DP kicked the victim two or three times to the lower back and then pulled out a bottle and smashed it on the roadway and approached the victim; 4. the co-offender Santino came up to the victim and punched him in the ribs on the left side; and 5. the young co-offender VK approached the victim and kicked him once in the face. He then took out a knife and thrust it into the victim's chest a number of times. The knife was apparently silver and bigger than a butter knife. 1. Paragraph 11 of the facts goes on to state that the victim tried to stand up and was swinging his arms in front of him, punching out with both hands while the boys were around him and kicking and punching him. The victim yelled out: "Stop." a number of times. When somebody yelled out: "Run for it", the victim ran in an easterly direction along Asquith Street holding a hand onto his body. All the boys - which the Court understands is a reference to the Young Offender and his co offenders - chased after the victim until police sirens could be heard getting louder. 2. Within minutes of receiving reports of a fight, police attended the address. They located the Young Offender in nearby street a short distance from where the offence had been committed. At the time, he was bleeding from the knuckle of his little finger where there was a laceration. There was also a small laceration on his forehead and he had blood on his shirt. When the police spoke to him about what had happened, he said he was bottled. He said he was in the house and ran out and saw people fighting and: "I think they thought I was someone and they threw a bottle." He did not provide the police with a statement. He was not arrested and was issued with a move-on direction. 3. Police found splatters of blood on the road in the area where the offence had been committed and a trail of blood going along the middle of the street. There were some stains on cars that were parked on the street and a handprint on one of the driver's windows of the car. Police located a black handled knife in a square shaped drain on the footpath. 4. They located the victim in the yard of a nearby residence. He was on the ground unable to move and in a semiconscious state. They could smell alcohol on him. He had a collapsed lung, a punctured diaphragm and a total of seven full thickness stab wounds, in other words wounds penetrating the dermis and epidermis, six of which were to the left side of his chest and stomach and one to his left arm. The victim underwent emergency surgery to repair his diaphragm and lung. All seven stab wounds were washed out and closed with skin staples. He was discharged four days later with follow-up arranged in the trauma clinic. 5. Police arrested the Young Offender on 18 March. 6. The Young Offender was four months shy of his eighteenth birthday when he committed the offence. He will turn 19 in July. There is no evidence he has the disadvantage of a dysfunctional upbringing. He is the second-eldest of his parents' five children. They moved from Melbourne to Sydney in 2001 because of his paternal grandmother's failing health. 7. When living in Melbourne, he was an active participant in Australian Rules. Rather than continue in that sport in Sydney, he tried unsuccessfully to switch codes. Apparently he did not continue with sporting outlets thereafter. He attends church with his family and plays the guitar. 8. He did not display any behavioural issues in the first two years of high school at Christian Brothers High School at Regents Park. At his request, he was enrolled at Granville Boys' High School in March 2014. According to the Juvenile Justice Report, he requested this as his friends attended that school. With hindsight, this seems to have been a change adverse to his interests, although is parents probably did not know that at the time. Although being academically highly capable and having a sophisticated understanding of literature, he was easily distracted, became disobedient and ultimately became involved in an altercation with a fellow pupil. He also started truanting. He left that school on 12 October 2015 and enrolled at Arthur Phillip school where, although he did not have behaviour issues, he continued to truant until "he signed out" according to the Juvenile Justice Report on 7 December 2015. He did not return to school in 2016 until after his arrest. 9. When truanting from school, he mixed with negative peers. After going into custody, he enrolled in Year 12. He has displayed a strong commitment to his schooling and is very focused. The principal reports that the Young Offender faces adverse conditions positively and works hard. The Young Offender has plans to pursue tertiary studies. 10. The Young Offender has insight into the negative peers and claims he does not trust them anymore and will only trust relatives he told the Juvenile Justice Officer. However, some of his negative peers are relatives, including his older brother who was involved in this offence. 11. He told the Juvenile Justice Officer he had used alcohol and cocaine almost every weekend for approximately a year and, before his arrest, his usage had escalated. It seems that his substance abuse was with co offenders either at hotels or at a friend's house. He has participated in drug and alcohol interventions in custody and displayed good insight. He also has insight into the link between negative peers, substance abuse and offending behaviour. 12. The offender appreciates that he has an anger-management issue. Unfortunately, he has not, since being in custody, had not had any assistance to address this matter. 13. The Young Offender does not have the benefit of prior good character. On 16 November 2015, he was placed on a bond for four months for goods in custody and on another bond for 12 months for affray. On 12 January 2016, he was placed on probation for 13 months for robbery in company. It is an aggravating feature he was subject to the bonds and probation at the time of the offence. His response to supervision was poor, apparently because he did not regard the sentence as serious. There are two breaches of discipline in custody, but otherwise has displayed maturity, participated in education, sport, physical training and cultural programs. 14. The Young Offender has no mental health issues. 15. The physical interactions of young males reflected in the facts is an example of alcohol fuelled hot headedness of young males that the Court sees too frequently arising on celebratory occasions where, as was the case here, some preloading as it is called takes place before attending the event. It can be seen perhaps as a reflection of the interaction of excessive alcohol and testosterone which, on occasions, as was the case here, can have serious consequences. 16. One suspects that the Young Offender became involved out of loyalty to his brother and a desire to demonstrate that he could assist his brother even though he said his brother was capable of looking after himself. His involvement had an element of big noting in the Court's view. 17. Viewed objectively, the attitude of the victim demonstrated that he did not pose any really danger to the Young Offender's brother. The Young Offender was not the one who goaded the victim into a fight. The Court notes that the victim had pushed the Young Offender's brother but that was after he had said to the Young Offender's brother that he wanted some space and he wanted to go home. The fact that he pushed the Young Offender's brother indicates that he was not respecting the victim's space and his wishes to go home. 18. The Young Offender took the events to another level that brought about the serious consequences. Clearly, the pulling down of the victim's head was calculated and put him in a position to neutralise the possibility of the victim responding to the offender's attack. There was an element of cowardice to the Young Offender's actions because, in addition to producing the knife and having pulled down the victim's head, all of this was occurring in the context where there had been no resistance on the part of the victim. 19. Whilst the offence was not premeditated, it was committed in the context of the events that preceded it and his conduct was calculated and deliberate and done with the intention of causing grievous bodily harm and, in the Court's view, in circumstances where the victim posed no real danger to the Young Offender's brother and had not been provocative or disrespectful to the Young Offender's brother. 20. The Court is satisfied he did not have the knife intending to commit the offence, claiming it was normal to have one and he also made a suggestion that it was out of fear of some elements within the community. The Court notes that one of his co offenders was armed and used that knife. However, the offender's possession of the knife was in the context of him having some awareness that he had anger-management issues and, of course, being at conditional liberty. Clearly, had he not have had it in his possession, it is unlikely that the situation would have escalated in the way that occurred on this occasion. Obviously the Court's past attempts to deter young people, particularly young males, from carrying knives have not worked and, hence, more emphasis on that aspect of sentencing is called for. However, in this context the Court does note the failure of the media that, unlike 40 years ago, does not publish the details of many cases and does not publish sufficient details of cases, preferring to focus on sensational aspects of them. Rather than broadcasting judgments in a meaningful way pursuant to part 5 of the District Court Act, the practice of the media has been generally to edit what is broadcast to such an extent that a few words, or rarely more than a sentence or two, is broadcast and done so out of context making it quite meaningless. 21. The offender stabbed the victim twice. The stabs were directed to a vulnerable part of the body. These two stabs probably did not result in the puncture to the lung. Without knowing more about the location of them, one does not know whether one of them might have resulted in the damage to the diaphragm. 22. The Court is satisfied beyond a reasonable doubt that his actions encouraged the co-offenders to join the fray. Whilst para 10 is expressed in a way previously criticised by the Court of Criminal Appeal, there is no dispute that his co-offenders set upon the victim, which resulted in his suffering a further five stab wounds, one or more of which resulted in the collapse of the lung which, without medical attention, may well have been fatal. 23. There is no dispute that the offender did nothing and said nothing to get his brother and the other co-offenders to stop. Rather than withdraw he and his co-offenders pursued the victim until the sirens could be heard. There is no dispute that, at the time the co-offenders were attacking the victim, the Young Offender was present participating in a joint criminal enterprise. 24. As the Court has already noted, there is an element of the Young Offender big noting himself by going to his brother's aid. His actions in stabbing the victim encouraged the four others to join the fray and for one of those to use the knife to stab the victim a further five times. 25. The Court is satisfied beyond a reasonable doubt that, had the Young Offender not acted as he did and stabbed the victim, it is highly unlikely that the attack would have progressed, but would have fizzled out because the victim was an unwilling participant and wanted to go home as well as wanting his own space. He is an example of a mature approach by a person who has been drinking and is confronted by an aggressor. It is in stark contrast to the hot headedness of the Young Offender and his co-offenders and the party-goer who goaded the victim into a fight in the first place. 26. Whilst the Young Offender stabbed the victim only twice, as the person who instigated the use of the weapon and as the one who encouraged the others to join in, he is both criminally and morally responsible for the acts of the other four. This encouragement of the others in the Court's view compounds the cowardliness of his attack because it meant the victim was outnumbered five to one. 27. Regrettably, as is often the case, the parties did not provide the Court with evidence concerning the victim's recovery. There is no evidence he did not make a full recovery. There is no evidence that he was left with any permanent physical disability. The facts simply refer to him being sent for follow-up to the trauma clinic. 28. The Court is satisfied that there would be permanent scarring from the wounds and the Court is satisfied that that scarring is likely to be a constant reminder to the victim of the events surrounding the offence. The Court is satisfied the victim would have found the offence traumatic. There is no victim impact statement, but the Court would be surprised if the victim has not continued to have emotional or psychological problems to date and it would be surprised if that does not continue into the future. The Court notes that the victim was only 18 at the time. 29. By encouraging others to join the attack, it became a prolonged one and only stopped when somebody said "Run." The Young Offender's judgment may have been affected by the company he was in and the liquor he had consumed. However, as noted, his actions were deliberate, calculated and intentional. He ran off when somebody yelled "Run for it" and stopped chasing the victim when the sirens could be heard and was able to deflect suspicion when the police located him nearby. These matters indicate that he knew what he was doing at the time and of the consequences for himself. 30. Whilst the consequences for the victim were serious, they were not as serious as in the case of R v AB previously referred to or in the cases discussed in paras 23 to 28 therein. This offence is nonetheless a very serious offence under this provision. 31. Overall the Young Offender has progressed well in custody and has positive plans. These have not been tested in the community. The Court notes that he has a positive mentor. In all the circumstances, the Court is of the view that his prospects of rehabilitation and not re-offending are good. 32. Bearing in mind what the Court of Criminal Appeal has said about them, the Court took into account for sentencing statistics. For people in his age group, they involve a very small number of individuals. 33. The Court took into account all the matters that s6 Children (Criminal Proceedings) Act requires it to take into account. 34. The Court has taken into account all the purposes of sentencing. It is not necessary to refer to all of them as they are well known and some can be found in the legislation. However, because of his young age, consistent with authority the Court gave greater weight to rehabilitation and less weight to deterrence. That does not mean that the Court gave no weight to deterrence. As previously noted, the Courts have consistently given considerable weight to deterrence in cases where knives are used. This is necessary even taking into account the impetuosity of youth. 35. The Court took into account that a custodial sentence is a sentence of last resort and came to the view that nothing other than a full-time term of imprisonment is appropriate. The Court found special circumstances because of his need for an extended period of supervised parole. 36. The Court is satisfied that there are special circumstances as referred to in ss (19)(3) Children (Criminal Proceedings) Act. Those special circumstances is the one identified in subpara (19)(4)(b). The Court came to this conclusion because the Young Offender would not be able to complete his Higher School Certificate in adult custody. It is very important that he complete this aspect of his education because it will have an impact upon future education and vocational choices. As I say unless he remains in juvenile custody he will not be able to complete it. 37. TL, the Court convicts you and sentences you to imprisonment. It fixes a non-parole period of three years and a total term of six years to commence on 18 March 2016. The Court orders that your parole eligibility date is 17 March 2019. 38. Pursuant to ss(19)(1) the Court orders that you serve the sentence as a juvenile offender until you have completed your Higher School Certificate. 39. I have sentenced you to six years imprisonment with three years non parole commencing when the police arrested you. This means you become eligible for release to parole on 17 March 2019. Release to parole is not automatic however. You will go, I think, before the State Parole Authority who will determine whether they are going to release you to parole, the date of your release and your conditions. One condition of parole will be that you do not commit offences on parole. There will be many other conditions of parole, including doing as your parole officers tell you to do. So if you are told to report to them and you do not report or if you are told to go off and do some program and you do not do it, that is a breach of your parole and, if you breach your parole, the State Parole Authority will revoke it and you will go back into custody to serve the balance of the sentence. 40. The orders I have made are that, subject to your behaviour, you will remain in juvenile detention until you have completed your Higher School Certificate and then you will be transferred into the adult custodial system, do you understand that? ********** 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: 10 July 2017