R v Plum [2007] NSWDC 365

District Court New South Wales

Medium Neutral Citation: R v Plum [2007] NSWDC 365 Decision date: 23 November 2007 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Control order of 2 years with a non-parole period of 18 months to be served in juvenile detention. Catchwords: Criminal law - Sentence - Juvenile offender - Aggravated break and enter and commit serious indictable offence (robbery) - Elderly female victim - Serious crime weighing against rehabilitation - Parity with sentence of co-offender - Need for specific deterrence Legislation Cited: s112(2) Crimes Act 1900 ss 18, 33, Children (Criminal Proceedings) Act 1987 ss 44, 50 Crimes (Sentencing Procedure) Act 1999 Cases Cited: The Queen v MSS [2005] NSWCCA 227 Category: Sentence Parties: Regina (Crown) K Plum (Offender) Representation: Counsel: Mr Hunt for the offender

Solicitors: Ms Fitzpatrick for the NSW DPP File Number(s): 07/21/0017 Publication restriction: There is a non-publication order regarding the offender's name or anything that could tend to identify him. Pseudonyms have been adopted for the names of the offender, the offender's girlfriend, the offender's grandfather and the co-offender.

SENTENCE 1. I am sentencing a young man named Mr Plum. He committed a serious and shocking crime when he was under eighteen. As such a pseudonym has been adopted for his name. The main issue to be considered in this sentence is whether the fact that he is a young man with good prospects of rehabilitation will outweigh an appropriate and severe penalty for the shocking crime that was committed. 2. The crime is called aggravated break and enter and commit serious indictable offence, namely robbery. The aggravation was that in this case Mr Plum was carrying an offensive weapon in the form of a golf club. The crime is an offence against s 112(2) of the Crimes Act 1900 . It carries a maximum penalty of twenty years imprisonment. Indeed not only that, but Parliament has also provided for a standard non-parole period for this crime of five years. 3. The crime was committed on 30 December 2005. Mr Plum's date of birth is 15 March 1988 so that the crime was committed some months before he turned eighteen. Briefly, this is what happened. An elderly woman, Mrs Thi Le, was at home at her house in Villawood. She lived alone and was aged seventy-three. She had a security door and a wooden door at the front of the house. She got back from shopping that morning and closed both the doors. After lunch she went to her bedroom for a rest, closing her bedroom door. 4. At about half past twelve, Mr Plum, together with another young man named Mr Wheat (a pseudonym has been adopted for his name) and a third man whose identity is not known, prised open the security screen door and forced entry through the wooden door. In fact the wooden door was forced off its hinges. Mrs Le was awoken by their efforts to get in. She opened the bedroom door and was confronted by the three young men standing in her lounge room. One of them was holding a firearm which was pointed at her, or at least an item which resembled a firearm. 5. Mr Plum and Mr Wheat were each holding golf clubs, one of them over his right shoulder. The unidentified man asked her for money. She obtained her purse and handed over $300. Voices were heard outside and the young men fled. The police were alerted and arrived quickly at the scene. Quite an extensive pursuit followed. 6. Mr Plum eventually surrendered himself. Mr Wheat, after swimming across the river and attempting to escape on a golf cart was also arrested. The third man has not been found. 7. One can immediately appreciate how serious this crime is and how shocking an experience it must have been for Mrs Le. Mrs Le was not only alone in the house at the time, but was elderly. That kind of experience is one which will probably affect her for the rest of her life. I say that without having any evidence about the impact that it has had upon her which is why I qualify it as a likelihood. It is understandably regarded by Parliament as so serious an offence that it has attached as I said, twenty years maximum to it and a standard non-parole period of five years. 8. It is relevant to observe at this stage that the co-offender Mr Wheat has been dealt with already. He apparently pleaded guilty a little earlier than Mr Plum and also offered to provide assistance. He was dealt with in the Children's Court by a Children's Magistrate on 30 August 2007. 9. Mr Plum and Mr Wheat's roles in the offence were very similar. The learned Children's Court Magistrate sentenced Mr Wheat to a control order of eighteen months with an additional term of six months subject to Juvenile Justice supervision upon his release. Mr Wheat appealed to this Court against that sentence. I do not have the transcript of the appeal proceedings but I am informed that a District Court judge upheld the appeal. A control order was still made for a period of two years but the non-parole period was reduced from eighteen months to twelve months. Apart from the fact that their participation in this crime was very similar on the day, there are three features which distinguished Mr Wheat's case. 10. The first is that he pleaded guilty slightly earlier than Mr Plum. The second is that he made an offer to assist the authorities and the third is that Mr Plum comes before me with a significant item on his criminal record, namely a break enter and steal. That offence was committed in February 2005 although he was not identified as the offender for two years and was charged on 15 May 2007 and sentenced on 6 August 2007 to a bond. Nevertheless, Mr Plum comes before me as a person in respect of whom specific deterrence, that is, the need to ensure that he does not commit these sorts of crimes again, is more important than it was for Mr Wheat. 11. I heard evidence from Mr Stephen Strachan, a very experienced Juvenile Justice officer. Mr Strachan was the co-author of a Juvenile Justice report which was dated 8 November 2007 and part of exhibit A. It records that the offence was committed because of a need for money. It notes that Mr Plum appreciated that the victim would have been traumatised and afraid to stay home by herself. It noted that he attempted to minimise his responsibility. It noted his relationship with his fiancé of two years who lives with him in the family home which is his grandparents' home. 12. It notes that his grandfather will employ him in his grandfather's business immediately upon his release. He is in fact employed there now. It notes the bond which was imposed on 6 August 2007 and notes that he failed to report for supervision on numerous occasions and appeared to be non-responsive to attempts to have him address issues related to his criminal behaviour. It thought that issues requiring attention included negative peer associations and poor impulse control, perhaps anger management issues as well. It suggests a brief period of incarceration followed by a lengthier period of parole supervision. 13. Mr Strachan, when he gave evidence, elaborated on his remarks concerning Mr Plum's response to the bond imposed in August this year. He said in his experience it takes some time for young people to respond to supervision. He thought this would be the case in Mr Plum's circumstances because this was the first occasion on which he was the subject of supervision. His experience was that it takes some time for a young person to engage in the process of supervision. 14. He was optimistic about Mr Plum's prospects because he has an engaged and supportive father, grandparents and girlfriend. He strongly recommended that Mr Plum be dealt with by any custody being served in a Juvenile Detention Centre. Available in a Juvenile Detention Centre is counselling which will address his criminal behaviour, the availability of a counsellor twice a week, and a programme called "Targets for Effective Change". He thought that Mr Plum would be well suited to vocational training. 15. He was of the view that Mr Plum's offending behaviour both in February 05 and in December 05, the December 05 offence being the one I am dealing with, was significantly affected by three circumstances: a deteriorating relationship with his mother, financial insecurity and homelessness for a period of time. These were significant factors existing at that time, which are no longer in existence. 16. I heard evidence from Mr Plum's grandfather, Mr T Plum. He owns a business. He has taken in his grandson who lives with him and his wife. Not only that, but his grandson's girlfriend, Ms Yellow, is also living in the household. Mr T Plum, the grandfather, set clear rules for Mr Plum his grandson when he moved in. His grandson is employed in his business. 17. Mr Plum, the offender's own father, lives on the Central Coast where he has a business, and his father is supportive. Mr T Plum the grandfather intends to leave his business to Mr Plum the offender, and his uncle. He has noted significant changes in his grandson since he has moved in. 18. Ms Yellow was called to give evidence. She is undertaking a diploma in Children's Services and hopes to proceed to university for a course in kindergarten teaching. She has known the offender since they were both in Year 7. She has noticed a significant change in the offender since he moved in with his grandparents. Beforehand he had no goals or ambitions but now she observes that he is focused on work as well as getting married which they hope to do, and raising a family. He is also focused on leaving behind the behaviour which brings him before court. She is supportive of him and looks forward to the prospect of their getting married. 19. One of the issues which I need to determine is whether I deal with Mr Plum according to law, or in accordance with the range of penalties available to the Children's Court. That question is posed for me to address by the Children (Criminal Proceedings) Act 1987 s 18. Section 18(1A) provides a list of matters for me to take into account. 20. As for the seriousness of the indictable offence, this is a serious indictable offence. I use the word "serious" in a general sense. The nature of the crime was significant and terrifying for the victim. The age of Mr Plum at the time was just a few months short of eighteen. On the one hand he was nearly an adult but on the other hand he is some three years short of the age of twenty-one, which is the oldest a young person can be to be dealt with according to these provisions, so I regard his age as slightly in his favour. He has a prior offence which counts against him. 21. So far, in considering these factors, they tend to weigh against him and towards dealing with him according to law rather than according to the available penalties for a Children's Court. Section 18(1A) provides that I may also take into account such other matters as I consider relevant. I consider two things to be of particular significance here. One is what appears to be very good rehabilitation undertaken by Mr Plum since moving in with his grandparents. All of the witnesses were positive in their description of his change and I regard his prospects of rehabilitation as very good. 22. The second factor which I take into account is the fact that his co-offender, Mr Wheat, was dealt with by the Children's Court. Hence as a matter of parity, Mr Plum may feel aggrieved if he was to be dealt with in a different way or at least under a different sentencing regime which had available to me far more serious sentencing options. I regard parity as relevant for me to take into account in this case. 23. I have read the judgment of the Court of Criminal Appeal in The Queen v MSS [2005] NSWCCA 227. That case is different to this because the sentencing judge dealt with the offender at law because the co-offender had been dealt with at law but in circumstances where the co-offender was being sentenced for a far more serious offence and there was no option. The Court of Criminal Appeal regarded that as an erroneous application of the parity principle. In this case, I am wishing to take the parity principle into account in the offender's favour and I regard it as a relevant consideration under s 18(1A)(e). Accordingly, I have for those reasons, determined that I will deal with Mr Plum's case in accordance with Division 4 Part 3 of the Children (Criminal Proceedings) Act 1987 . 24. Mr Hunt who appeared for Mr Plum realistically advanced the proposition that the only real option was for a control order which is available to me under s 33(1)(g). I am not permitted to deal with a person under that provision unless I am satisfied that it would be wholly inappropriate to deal with a young person in any other way which is less serious, or less severe. I am satisfied that this is the only appropriate course because I regard the offence as so serious, for the reasons which I outlined at the beginning of these remarks, that it must attract a custodial sentence. Mr Plum had a criminal record for breaking, entering and stealing and, as I said, that means that personal deterrence is important. The circumstances of the offence were shocking to the victim. I regard a custodial sentence as really the only alternative. 25. Mr Hunt further submitted that he would not cavil with a control order which specified a non-parole period of eighteen months. He said that in the context of the maximum period of time available to me for a control order is two years, hence the non-parole period would be the statutory ratio of three-quarters. I regard that as appropriate in this case, once again because of the seriousness of the offending behaviour. I also regard Mr Plum's circumstances as distinguishable from Mr Wheat for the reasons that I have already set out. 26. Mr Plum, I am now going to sentence you. For the crime which you have committed, and under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 , I make an order committing you for two years to the control of the Minister administering the Children (Detention Centres) Act 1987 . That period of two years will commence today 23 November 2007 and expire on 22 November 2009. Under s 44 of the Crimes (Sentencing Procedure) Act 1999 I set a non-parole period of eighteen months to commence today, 23 November 2007 and to expire on 22 May 2009. The balance of the term is six months to commence on 24 May 2009 and to expire on 23 November 2009. Mr Plum, I will explain that to you in a moment. Mr Lee or Ms Kroon, I think I've got to direct that he's released on parole haven't I? LEE: That parole date should start from 23 May, I think you said 24 May 09. 1. It should read 23 May 2009. I make an order directing the release of Mr Plum on parole on 23 May 2009. I make that order under s 50 of the Crimes (Sentencing Procedure) Act. What about conditions for parole? LEE: In a matter this serious your Honour, it would be usual supervision provisions be put in, six months your Honour. HIS HONOUR: And the supervision is undertaken by whom? LEE: With the Parole that's in his area your Honour, so where Mr Plum is. HIS HONOUR: Is it the-- OFFENDER: Liverpool. KROON: Liverpool, your Honour. HIS HONOUR: This is the Community Offender Services, is that right? KROON: Yes that's correct. HIS HONOUR: Yes, there's no juvenile equivalent is there, for supervision? KROON: No. LEE: Sorry I'm not familiar with a juvenile one your Honour. I think that Mr Plum would attend the Liverpool office if you direct to attend the Liverpool office seven days from his release. And depending on what's taken place in his time in the Detention Centre, they'll determine whether he needs further supervision then your Honour. 1. I fix the following conditions of parole: that he is of good behaviour; that he be the subject of supervision for the whole of the period of his parole; that supervision to be by the Community Offender Services at Liverpool; and he is to report to the Liverpool office of the Community Offender Services seven days after his release on parole; he is to accept all of their reasonable recommendations concerning peer associations, impulse control, and decision making and anger management issues. Now I will explain that to Mr Plum in a moment but Mr Lee and Ms Kroon, is there anything else that I need to do or order? LEE: No your Honour. KROON: No. 1. All right Mr Plum, as I said I have sentenced you, so to speak, to two years. I say so to speak because it is not an adult sentence, it is a control order. You will be serving it in a Juvenile Detention Centre with young people and you have a minimum time that you have to stay in there of eighteen months. That will start today and I have ordered that you be released on parole in eighteen months from now on 22 May 2009. Then you have got six months on parole. You will be supervised and the people who supervise you will continue the support and help that you will hopefully get in the Juvenile Detention Centre. 2. You heard me say in my reasons that I had to balance the seriousness of what you did which is a very serious crime against your rehabilitation which seems to be well on track, thanks to a lot of very good people around you, so I want to balance that out and that is one of the things that I took into account in dealing with you as a young person rather than as an adult. Do you understand that? OFFENDER: Yes. 1. When you get out on parole, you have got to be on good behaviour, you got to behave yourself. No more trouble because if you do not, you will come back and breach your parole, you do something during that six months, you will be back in court again and they could send you back into a Detention Centre for six months or the rest of it. Do you understand? OFFENDER: Yes. HIS HONOUR: Anything else? LEE: No your Honour. HIS HONOUR: All right. You can go and sit with your grandparents now and because you are about to be taken away so if you just stay in the court, Ms Kroon will just take you across. I'm just going to let him say goodbye to his grandparents.