R v MH [2019] NSWDC 896

District Court New South Wales

Medium Neutral Citation: R v MH [2019] NSWDC 896 Hearing dates: 12 March 2019 Date of orders: 12 March 2019 Decision date: 12 March 2019 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Control order for a period of 1 year Catchwords: CRIME — Complicity — Accessory after the fact SENTENCING — Guidelines for sentencing — Applicable to juvenile offenders SENTENCING — Juvenile offenders — To be dealt with "according to law" Legislation Cited: Children (Criminal Proceedings) Act 1987 Children (Detention Centres) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: Regina (Crown) MH (Offender) Representation: Kelly Anderson (Crown) Brian Hancock (counsel) (Offender)

Director of Public Prosecutions (NSW) (Crown) File Number(s): 2017/00231630 Publication restriction: Suppression of the Offender's name due to his age

EX TEMPORE REVISED JUDGEMENT

CLOSED COURT

SENTENCE 1. MH was born in October 1999 and is now 19 years of age, but at the time of the offence before me, 29 July 2017, he was a child at law and was arrested for the offence upon which I am to determine sentence today. He was held in juvenile detention for one year and two days from 30 July 2017 to 31 July 2018, at which point he was released to bail. 2. He pleaded guilty before me today upon an indictment alleging that he was an accessory after the fact to a person named Oznur Yildiz and others, who, on 29 July 2017, robbed RA of certain property, namely a mobile phone, whilst they were armed with a dangerous weapon. Thereafter between that day and 30 July 2017 at Merrylands, the offender before me assisted Oznur Yildiz and the others, knowing that they had committed the serious indictable offence of robbery in the manner aforesaid. 3. The offence is contrary to s 349(2) Crimes Act 1900, for which there is a maximum penalty of imprisonment for 14 years. There is no standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999. In any event he, as a child at the time of the offence, does not attract the standard non-parole period provisions in the determination of sentence. 4. There are no Form 1 offences. 5. He was committed for trial on 1 June 2018 on more serious charges, but on 16 January 2019 pleaded guilty to an indictment comparable to that which was presented today. The further indictment was presented with leave to accommodate some technical issue that arose between his first arraignment and the listing for determination of the matter today. 6. Two of the persons involved in the robbery were captured; a third unknown person was not caught. 7. The first of those, Abdullah Sabah, was sentenced on 17 September 2018 by her Honour Judge Woodburne SC to an aggregate sentence of three years ten months and twelve days, with a non‑parole period of two years. It is apparent that offender was allowed a discount of 25% for the utility of the pleas of guilty that were entered. There were two offences of robbery faced by that person, including the present event, and the sentences imposed were, respectively, three years and three months and four years and six months, to which discounts of 25% were applied, resulting in sentences which were aggregated to the period I announced. 8. The other person arrested was Oznur Yildiz, found not guilty by a jury on 22 February 2019. 9. The circumstances of the offence are that on the evening of 29 July 2017 the victim was contacted by the person Yildiz, with whom he had recently become acquainted as a Facebook friend. She told him that she needed someone to drive her; he said he would come and give her a lift, and about 9.40pm that night he arrived at an address at Smithfield near Sabah's house. Shortly after his arrival Yildiz emerged and approached the car. He opened the front passenger door and she entered. The rear driver's side door was being opened at the same time, noticed by the victim. The unknown male entered. Yildiz asked RA if he could give her two mates a lift as well and the co-accused and the unknown male thereupon were driven away with Yildiz to the vicinity of Brenan Park at Smithfield. 10. There was some discussion there, in the course of which RA was instructed to turn off the lights after he had switched off the engine. The unknown male said, "I'm trying to get my mate to text me back. My mate is coming at 9.55. We'll just wait here." RA offered cigarettes and had one himself and a short time later the unknown male, using a replica pistol, began his threat. He said, "Do you know what it feels like getting shot in the shoulder?" RA said, "It would feel more worse than being stabbed in the shoulder." At that point he felt the replica pistol held by the unknown male against the left side of his neck. He was told, "Get out of the fucking car and give me your phone." The unknown male said, "I am not kidding." Thinking he might be shot, RA left the vehicle and handed over his mobile phone. There were instructions to him to "Get on the floor", which I take to mean the ground. He was told to hand over his car keys and then told to run off. RA provided the password for his phone when the unknown male demanded it. The offenders then drove away. The victim in due course called the police and a short time later they arrived at his location. 11. The role of the offender before me was brief. At some point after the mobile phone and car were taken the offender became aware that the robbery had taken place and he received the replica pistol, which he then hid underneath a stairway at the rear of premises on Miller Street, Merrylands. He secreted it under some timber. 12. On 30 July 2017 the offender attended Merrylands Police Station. He was placed under arrest. He declined to participate in an interview but he told the investigators that he knew where the replica pistol had been hidden and that he could lead police to it. He took them to the location. The weapon was recovered. His DNA profile was matched to DNA located on a trace swab taken from the handgrip of the pistol. 13. The vehicle was recovered and returned to the victim. 14. The role of accessory after the fact to the robbery was confined to the theft of the mobile phone as particularised in the charge. The duration of the offender's misconduct was quite brief and upon his arrest, although declining the opportunity to be interviewed, he led the police to the weapon and they were able to recover it. Thus the objective gravity of the offending is well below mid-range. 15. The offender has a record of antecedents beginning upon his arrest in December 2014 for offences of possessing or attempting to possess a prescribed restricted substance and aggravated break and enter and commit serious indictable offence, the aggravation being that he was in company. He was given probation at the Children's Court in respect of those matters. Then in November 2015 he was called-up and given further probation with supervision for a period of 14 months. Then in July 2016 he was called-up for those matters and given probation for a period of 12 months. In September 2015 he was charged with stealing from the person, whereupon he was given probation for 14 months and in December 2015 for the same offence he was called-up and he was ordered to serve a control order of three months, suspended with conditions attaching. In February 2016 the order was varied to probation for four months by the District Court upon appeal from the magistrate's determination. In July 2016 he was called-up in respect of steal from the person and given probation. In December 2015 he was charged with goods in custody and sentenced to a control order for one month, suspended with conditions, and for dishonestly obtaining property by deception, three counts, he was given a control order for four months, suspended with conditions. In the District Court the order was varied to probation for 14 months. For the dishonestly obtain property by deception and for the offence of goods in custody, the order was varied to probation for 12 months, and then in July 2016 he was called-up for those matters and was ordered to submit to probation. 16. In May 2016 he was charged with driving an uninsured motor vehicle and using an unregistered motor vehicle, not wearing a helmet on a motorcycle and not being licensed, and for each of those offences he was convicted without penalty upon the application of s 10A Crimes (Sentencing Procedure) Act 1999. This was in the Local Court at Parramatta. Then there is an offence of possessing a prohibited drug charged in July 2016, which was dismissed and the drug destroyed. For an offence of disposing of property and one of shoplifting, in each case he was put on a bond for a period of six months. In June 2017 he was charged with smoking on a train and possessing a prohibited drug, each of which were dismissed with cautions. 17. He has had a troubled background, revealed in the Juvenile Justice report in the Crown material. He first came to the attention of Juvenile Justice in November 2015. He was admitted to a Juvenile Justice Centre in July 2017, where he remained bail refused until he was released in July 2018; this the period of time in respect of which he was held in custody for this present matter. During that period his attitude towards staff and other detainees was described as defiant. There were numerous misbehaviour reports due to disobedience, bad language and damage to property, all of which is not surprising when one considers his background. 18. He was born to his parents in Iran. His father was violent toward his mother and to him. The family escaped from Iran to Indonesia. The relationship between his parents was brought to an end. They ultimately found their way to Australia via Christmas Island. The family lived in Brisbane initially but then made their way to the Sydney metropolitan area but because of their conversion to Christianity they were alienated from the Muslim community and were required to move from there. 19. There has been involvement with the Department of Immigration and Home Security and the offender has been detained by that Commonwealth agency in detention centres. This gave rise to depression and anxiety, self‑harming behaviour and drug misuse. The relative youth of the offender has meant that his time among adults who engaged in antisocial behaviour has been deleterious for him. He has since ceased using marijuana and cocaine. He has some skill as a soccer player and he has been offered scholarships internationally. 20. He is said in this report to have presented as a vulnerable young person with significant childhood trauma, including exposure to and experience of domestic and family violence and other traumas associated with his migration and detention. Thereafter his past behaviour has been consistent with someone burdened with a sense of helplessness and hopelessness regarding his future, but he is said to be intelligent and resilient and there is some prospect toward his rehabilitation. 21. He is not eligible for a Youth Justice Conference. He is eligible for a community-based order, but unsuitable for community service because of his status of bail refused in respect of more recent charges, none of which are before me and which I do not bring to account in the assessment of this matter. 22. He was assessed by a psychologist, Christopher J. Lennings, who wrote on 6 March 2019 a more detailed analysis than the Juvenile Justice report. His history of disadvantage is discussed, including detention in Immigration on three occasions. His explanation for being involved in this offence was because at the time he was involved with older associates who had asked him to hide something for them, and once he had discovered what it was he felt it was too late because he had committed himself to that path. It is said that given his age, his drug-affected status and trauma in his background it would appear to be unlikely that he would have had the reflective skills necessary at the time of the offence to make a more sensible choice. 23. There is reference to his exposure as a young person in an adult setting within the Department of Immigration and Border Protection, exposure to criminal and antisocial peers. There is an allegation of sexual assault within the detention, which was not advanced for fear of consequences should he make the allegation. 24. There is no significant medical history that is discussed. There are periods of sustained low mood, some level of anxiety but not extending to panic attacks. 25. The psychologist offers the view that he is a person with relatively good cognitive skills, despite the difficulties he has experienced. His experiences have been challenging. There have been difficulties in his adjustment, which is to be expected in the circumstances. He is undergoing at present a process of maturation, which reflects some developed skills in his life and his role in the world. He is said to be emerging from a period of what would be regarded as adolescent onset criminal behaviour associated with his traumatic past, with a psychological cause for his difficult behaviours. 26. There is a report from the School of Emotional Intelligence addressed to the Department of Immigration and Border Protection reporting symptoms of depression, anxiety disorder, as well as anger problems, in turn consistent with post-traumatic stress disorder and panic disorder. His level of motivation and dedication is said to reflect a positive prognosis, but given the severity of his psychological conditions and the lack of quality friendships, unemployment and lack of support, long-term treatment combined with pharmacological treatment is required. 27. The Drug and Alcohol Multicultural Education Centre has provided a document written on 18 August 2017 and another on 4 February 2019. The first of these refers to his need for further sessions to address substance use and what is said to be mental health issues. He had accessed that service on three occasions in July: on the 10th, 18th and 28th respectively. This is a report which recommends against his return to Immigration detention. The second report refers to his re-admission to DAMEC on 6 August 2018 for reassessment, with recommendations for further sessions to address his same problems, which are said to be likely to offer him benefit. 28. On 29 August 2017 an organisation Human Rights For All provided a report under the hand of Alison Battisson, the director principal, a solicitor and registered migration agent. This was addressed to "Visa Cancellations, Department of Immigration and Border Protection". The report urges consideration to be given to not cancelling his visa, and the history and circumstances are outlined, including mental health, with a summary in the following terms: "He is a child having faced many traumatic events, the victim of sexual assault and general assault in Australia. His education and potential football career have suffered significant interruption. He has been exposed to violent and unsafe environments within administrative detention with adults and, this notwithstanding, he has attempted to continue his education, football career and reintegrate into the community." 1. As I said, I am unaware of the matters that have him in custody at the moment and I need not be aware of them because they would appear, at least on what I am told, to postdate the event with which I am concerned. 2. The first question is to decide whether I should deal with the offender according to law or in accordance with Div 4 of Part 3 Children (Criminal Proceedings) Act 1987. Section 18 (1A) of the Act provides that: "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." 1. If I come to the view that I should deal with him in accordance with Div 4 of Part 3, I shall exercise the functions of the Children's Court. 2. In light of the history experienced by this young person and bearing in mind the modest objective gravity of his misconduct in the commission of this offence, and notwithstanding that he has a significant record of antecedent offences against him in the material that has been put before me, I am of the view that it is appropriate in this case to deal with him in accordance with Div 4 of Part 3. Of course, I am required to also bring to account s 6 of this Act, which articulates the principles relating to the exercise of the sentencing function under the Act. 3. I have, as I am required to do from time to time, reviewed these provisions in s 6. I note that he is entitled to the rights and freedoms equal to those enjoyed by adults, including his right to be heard and participate in the proceedings. He must bear responsibility for his action, but because of his immaturity he is in need of guidance and assistance, also for the reasons I have articulated from the Juvenile Justice report and the psychologist's report. 4. It is desirable that he have the opportunity to pursue education and other opportunities, including his football career, if that is his intention. It is desirable that he be permitted to reside in his own home with his mother, who is present here, but that would be subject to other considerations over which I have no control and in respect of which I have no information. 5. That said, dealing with the matter in accordance with these principles and upon the material I have, I am of the view that it would be more desirable for him to be benefitting from accommodation with his mother. 6. His punishment should be no greater than what an adult would suffer for comparable misbehaviour. He needs to be assisted in his reintegration into the community. He must bear responsibility for his actions and make reparation, but that is of little significance in this case where he simply hid a replica pistol at the behest of the perpetrators of the robbery. There is not to be overlooked, of course, the experience of the victim in the principal offence, over which, upon the material I have, this offender had no control. 7. The range of sentencing options contained in s 33 of the Act do not meet the circumstances of this case for the reason that he has served already one year and two days in custody for this offence without bail. That should be the high water mark of the penalty to which he is exposed for this misconduct in the circumstances. 8. Having examined s 33(1) Children (Criminal Proceedings) Act and the paragraphs therein containing the orders that this Court might make, there is nothing that would meet the particular circumstances of the case. In my view, the misconduct is still serious enough to warrant a conviction but he should suffer no further punishment but there is no provision equivalent to s 10A Crimes (Sentencing Procedure) Act 1999. 9. I should first observe that there should be an order in the nature of a control order for this offence, notwithstanding that it was of short duration and that the police were able to recover this weapon with the assistance of the offender. 10. There is a discount for the utility of his plea of guilty that should be applied and, in light of the plea to a much less significant charge contrasting to the charges upon which he was originally committed for sentence, I am of the view that that should be a discount of 25%. 11. Section 37 of the Act provides for the term of the control order. In subs (1) it says that the order shall commence on the day that it is made. Notwithstanding this, in subs (2) the Court has power to order the control order to take effect at a specified time, at which point it takes effect or shall be taken to have taken effect; subs (3) provides that the order ceases to have effect at the end of the period specified, subject to provisions in the Children (Detention Centres) Act 1987. 12. Allowing him the discount and rounding the sentence down to 1 year, I am of the view that the appropriate order in this case is a control order from 30 July 2017 to 29 July 2018. That would mean that the order commenced on that day and concluded on the final day upon the application of s 37 of the Act, and thus I shall make the following orders: 13. I convict the offender of the offence of accessory after the fact to robbery armed with a dangerous weapon. For the reasons I have given in this judgement, I specify a control order of 1 year, commencing on 30 July 2017, to expire on 29 July 2018. 14. I shall leave the exhibits on the file for the assistance they might provide those who want to review this decision and to the extent that they might assist in the further proceedings that are pending before whatever court they might be in. 15. I order the destruction of the firearm.