District Court New South Wales Medium Neutral Citation: R v ST [2018] NSWDC 22 Hearing dates: 12 February 2018 Date of orders: 15 February 2018 Decision date: 15 February 2018 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 ST is convicted of each count. 2 ST is remitted to the Children's Court for the purpose of imposing penalties for the offences. 3 ST is remanded in custody to the Children's Court at Surry Hills on 19 February 2018 4 I would recommend that consideration be given to referring ST to the Youth Koori Court Catchwords: CRIME – plea of guilty – be carried in stolen conveyance – steal motor vehicle – aggravated break and enter SENTENCE – Form 1 matters – appropriate forum of sentencing – appropriate penalty – background of offender – mitigating circumstances PROCEDURAL – remittance of matter to Children's Court – appropriate course Legislation Cited: Crimes Act 1900 ss.112(2), 154A(1)(b), 154F, Children (Criminal Proceedings) Act 1987 ss. 6, 18(1A), 20, 21, 31(5)(c) Category: Principal judgment Parties: Regina (The Crown) ST (Offender) Representation: Counsel: Ms G Lewer (Offender) Solicitors: C Hyland, Solicitor for Public Prosecutions (The Crown) Aboriginal Legal Service (Offender) File Number(s): 2016/00274243; 2017/00138780 Publication restriction: None sentence 1. ST appears for sentence after pleading guilty in the Children's Court to: 1. 2 counts of being carried in a conveyance without the consent of the owner contrary to section 154A(1)(b) Crimes Act 1900; 2. 6 counts of attempt to steal a motor vehicle contrary to section 154F Crimes Act 1900; 3. 1 count of count of aggravated break and enter with intent to commit a serious indictable offence of larceny contrary to section 112(2) Crimes Act 1900; 4. 1 count of count of attempt aggravated break and enter with intent to commit a serious indictable offence of larceny contrary to section 112(2) Crimes Act 1900; and 5. 2 counts of steal motor vehicle contrary to section 154F Crimes Act 1900. 1. The maximum penalty for the section 154A offences is 5 years imprisonment, for the section 112 offences is 20 years imprisonment and for the remaining offences is 10 years imprisonment. 2. ST also asks the Court to take into account a further 3 counts of attempt steal motor vehicle and one count of steal motor vehicle on a Form 1. 3. ST seeks an order pursuant to section 20 Children (Criminal Proceedings) Act 1987 (the CCP Act) remitting him back to the Children's Court so as to enable the Children's Court to impose a penalty with respect to the offences. Facts 1. The parties tendered an agreed statement of facts that can be summarised as follows. Count 1 – Carried in stolen conveyanceCount 2 – Attempt steal motor vehicle 1. At about 3.30am on 7 March 2017 a red Peugeot 308 was stolen from Marrickville. The keys were stolen from the owners' residence whilst the occupants were asleep and the Peugeot was driven away. On 16 March 2017 the vehicle was found locked in Ivanhoe Street, Marrickville. Police installed listening devices and a tracking device in the Peugeot. 2. At 9.40pm on 23 February 2017 2 adult co-offenders got into the Peugeot and drove it to pick up ST and another young person. At 11.40pm the Peugeot was driven to an address in Lane Cove where the occupants discussed stealing an Audi SQ5 and a BMW 335i. When one of the adult co-offenders attempted to enter the residential premises to steal keys to the vehicles, a sensor light was activated and an occupant of the premises yelled out. The co-offender returned to the Peugeot and it was driven away. Count 3 – Attempt steal motor vehicle 1. At 12.10am on 24 March 2017 the offenders travelled in the Peugeot to an address in Vaucluse where a Mercedes AMG was parked. The offenders discussed stealing the Mercedes. One of the male offenders got out of the Peugeot and walked down the side of the house activating a sensor light. A resident of the premises saw the intruder and hit the window to startle the offender. The offenders ran back to the Peugeot and it was driven away. Count 4 – Attempt steal motor vehicle 1. At 12.25am on 24 March 2017 the offenders travelled in the Peugeot to an address in Bellevue Hill where an Audi A4 and an Audi Q5 were parked. One of the offenders smashed the window of both of these vehicles in an attempt to find the service key in the logbook. The service key could not be found and the offenders drove away in the Peugeot. Form 1 to Count 4 – Attempt steal motor vehicle 1. At 12.31am on 24 March 2017 the offenders travelled in the Peugeot to another address in Bellevue Hill where an Audi A3 was parked in the driveway. One of the offenders smashed the window of the Audi A3 in an attempt to find the service key in the logbook. The service key could not be found and the offenders drove away in the Peugeot. Form 1 to Count 4 – Attempt steal motor vehicle 1. At 1.14am on 24 March 2017 the offenders travelled in the Peugeot to an address in Clovelly where an Audi Q5 was parked. One of the offenders smashed the window of the Audi and attempted to find the service key in the logbook. The offenders were unable to locate the key and drove away. At 1.46am the Peugeot was driven to a 7 Eleven service station at Five Dock. ST was identified on CCTV as being a passenger in the Peugeot. Count 5 – Attempt aggravated break enter and steal 1. At 2.15am on 24 March 2017 the offenders travelled in the Peugeot to an address in Drummoyne. The victim was asleep in the house. At least one of the offenders attempted to enter the premises by removing a flyscreen to a ground floor window and then opening the window which set of the alarm. The offenders drove away in the Peugeot. The victim owned an Audi A3 that the offenders intended to steal. Count 6 – Attempt aggravated break enter and steal 1. At 3.15am on 24 March 2017 the offenders travelled in the Peugeot to an address in Collaroy. The victims were asleep in the house. At least one of the offenders entered the house through a front door that was unlocked. An unlocked Volkswagen Golf was parked in the garage. The listening device recorded one of the offenders remaining in the Peugeot. The offenders ransacked the Golf before returning to the kitchen and stealing an iPhone, a handbag and a make-up bag. The noise from the kitchen caused the occupants to wake up and run downstairs. The offenders drove away in the Peugeot. Later in the morning the owner of the iPhone used the 'Find my iPhone' application to locate it in the vicinity of 37 George Street, Marrickville where one of the adult co-offenders lived. Form 1 matters attaching to Count 6 1. At 4.00am on 24 March 2017 the offenders travelled in the Peugeot to an address in Collaroy Plateau where there was an Audi A5 parked outside. One of the offenders smashed the window and found the service key in the logbook. The Audi and the Peugeot were driven away from the scene. The Peugeot was abandoned nearby. The recorded conversations indicted the offenders discussing the theft of the Audi. The Audi has not been recovered. Count 7 – Steal motor vehicle 1. Sometime between 6.00pm and 6.00am on Sunday 2 April 2017 a white Audi Q5 was stolen from Lilyfield. On 3 April 2017 it was located in Railway Street, Glebe. Police installed listening devices and a tracking device. 2. At 12.25am on 4 April 2017 the adult co-offenders, ST and another unidentified male entered the Audi Q5. The offenders discussed stealing motor vehicles particularly Audi motor vehicles by accessing the service key. At 12.38am the offenders travelled in the Peugeot to an address in Mosman where there was an Audi A4 parked outside. The offenders smashed the front window of the Audi A4 found the service key and stole the vehicle. ST and 2 of the co-offenders drove from the scene in the Audi A4. The Audi Q5 was left in Cremorne and recovered later in the day. Count 8 – Carried in stolen conveyance 1. Between midnight and 5.00am on 4 April 2017 an Audi 4G Quattro was stolen from Seaforth. Later that day ST was depicted on CCTV footage in the vehicle at the 7 Eleven Service Station in Mosman. 2. On 9 May 2017 ST presented himself to Redfern Police Station pursuant to an agreement with his mother and Police. He declined to be interviewed and was charged. Relevant law 1. Section 20 CCP Act provides: 1. (1) A court may remit a person to whom this Division applies to the Children's Court, in respect of any indictable offence other than a serious children's indictable offence, so as to enable the Children's Court to impose a penalty on the person with respect to the offence, but may do so only in respect of a person who is under the age of 21 years. 2. (2) A court that remits a person under this section: 1. (a) may, subject to the Bail Act 2013, commit the person to custody until the person can appear or be brought before the Children's Court, and 2. (b) shall cause to be sent to the Registrar of the Children's Court a certificate that: 1. (i) sets out the nature of the offence, and 2. (ii) states that the person has been found guilty of the offence and is being remitted to the Children's Court under this section. 1. (3) The Children's Court may deal with a person who has been remitted to it in respect of an offence in any way in which it could have dealt with the person had the person been tried and found guilty of the offence by the Children's Court. 1. Section 6 CCP Act provides that a court exercising criminal jurisdictions with respect to children have regard to the following principles: 1. 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, 2. that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, 3. that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, 4. that it is desirable, wherever possible, to allow a child to reside in his or her own home, 5. 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, 6. 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, 7. that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, 8. that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim. 1. Section 21 CCP Act provides that the Children's Court has jurisdiction to hear and determine proceedings for an indictable offence (other than a serious children's indictable offence) if the offence is committed by a person under the age of 18 years and under the age of 21 years when charged before the Children's Court. 2. 'Serious childrens indictable offences' are defined in section 3 CCP Act. 3. The Children's Court had the power to commit ST for sentence to the District Court if it was satisfied that the charge could not be properly disposed of in a summary manner: section 31(5)(c) CCP Act. 4. The sentencing court must consider if ST is to be dealt with according to law or in accordance with the penalties provided for in Division 4 of Part 3 CCP Act. Crucially, he cannot be dealt with pursuant to the CCP if the overall sentence to be imposed was a term of imprisonment for a period of longer than 3 years. 5. Section 18(1A) CCP Act provides that the court must have regard to the seriousness of the indictable offence, the nature of the indictable offence, the age and maturity of the person at the time of the offence and at the time of sentencing, the seriousness and extent of the person's prior record and any other matter the court considers relevant. 6. It was common ground that the District Court does not have the power to refer a person, or in this case remit him, to the Youth Koori Court. Consideration 1. The mandatory requirements of the remittal power contained in section 20 CCP Act are all satisfied. It was common ground that none of the offences with which ST has been charged are 'serious childrens indictable offences', that he was under the age of 18 at the time of committing the offences and that he is under 21 years of age when charged before the Children's Court (he is 18). 2. I now turn to consider the objective seriousness of the offences. All but 2 of the offences occurred on the one day in the space of about 6 hours. The facts allege a joint criminal enterprise on behalf of the offenders. It should be noted that there is very little from which I can determine what ST actually did. I would infer that he entered the home of the victims in Count 6. ST was in the company of adult offenders and the facts do not disclose if ST had an organisational or leadership role in the offences. The attempt offences were largely unsophisticated and relatively clumsy. The offences involved some planning, in particular the pursuance of the idea to exploit the identified security weakness in the Audi vehicles. There was some damage sustained to a number of the vehicles by smashing a front window to gain access. The items stolen from the home in count 6 were of little value. The most significant loss was incurred in the theft of one of the vehicles on the Form 1 that attaches to count 6. All of the offences are in the low range of objective seriousness, most of them at the bottom end of that range. The principle of totality is of major significance in this case. The events of 24 March 2017 must be considered to be a continuing course of conduct and I would accumulate most of the sentences to only a very minor degree. The offences involve a series of criminal acts. 3. The 2 remaining counts are relatively isolated and in the low range of objective seriousness. 4. At the time of the offences the offender was 17 years and 4 months of age. The Juvenile Justice Report indicates that ST was acting immaturely at the time of the offences. He displayed behavioural difficulties at school as a result of ADHD and his desires to impress a negative peer group. In early 2017 he was due to commence at a mainstream private school but did not attend and his place was withdrawn. He felt anxious and unable to deal with the expectations of attending a main stream school. The offences were committed with at least 2 adult co-accused. The offending conduct and the report of his engagement in school do not demonstrate maturity consistent with his age. 5. ST has a record of offences committed from about 2015 onwards. On his first occasion before the Children's Court he was sentenced to a control order for the offences of robbery in company and aggravated break enter and steal. He next received some alternative punishments including probation and community service before receiving further control orders for break and enter type offences. He is to be called up in relation to some offences for which he was sentenced to probation on 17 January 2017. It is fair to say that the offender's record is significant but I would not consider it to be serious, taking into account his background circumstances. 6. In my view, an aggregate sentence not exceeding 3 years is the appropriate outcome to deal with the sentence matters and the breach matters. 7. The offences are of a kind commonly dealt with in the Children's Court. It is a specialist jurisdiction well familiar and best placed to administer the requirements of the CCP Act and deliver the best rehabilitation outcomes. The Children's Court also has the power to refer ST to be dealt with by the Youth Koori Court, which is power the District Court does not have. 8. The Children's Court, and more so the Youth Koori Court, have in place specialist resources and can deliver outcomes not provided for in the District Court. Those courts are also likely to be able to deal with the matters quickly and without delay. ST has been on remand for the past 9 months and has been unable to enter into plans and activities to maximise the potential for rehabilitation. 9. Dealing with the offences in the Children's Court or Youth Koori Court will make an appeal easier, if he is so advised. 10. Overall the Juvenile Justice Reports indicate that ST is making progress. He is committed to getting a job on his release rather than returning to school. He has demonstrated in custody that he can complete vocational skills training. He has undertaken and completed some alcohol and other drug programs in custody. He now has some insight into the anguish that he has caused his grandfather. He behaves respectfully to staff and is complaint with routine. He has reported a desire to deal with his offending conduct. 11. This is most likely ST's last opportunity to be dealt with under the CCP Act. His record is such that a further attempt should be made to rehabilitate him in that setting. 12. He has responded well to cultural programs in the past and has a keen interest in sport. The involvement of the Youth Koori Court is worth pursuing in his case. 13. Taking into account all of the circumstances, I am satisfied that I should exercise my discretion and remit the matter to the Children's Court pursuant to section 20 CPP Act. 14. ST is convicted of each count. 15. ST is remitted to the Children's Court for the purpose of imposing penalties for the offences. 16. ST is remanded in custody to the Children's Court at Surry Hills on 19 February 2018. 17. I would recommend that consideration be given to referring ST to the Youth Koori Court. ********** 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: 21 February 2018