Children's Court New South Wales

• Medium Neutral Citation: Police v JM [2011] NSWChC 1
• Hearing dates: 10 & 21/06/2011
• Decision date: 28 June 2011
• Jurisdiction: Criminal
• Before: Magistrate Lerve

Decision

Papers 2010/00357156:

In respect of the Charge of Aggravated Break Enter and Steal taking into account the 10 maters on the Form 1 Schedule:

The young person is convicted.

The young person is sentenced to the Control of the Minister for a non-parole period of 14 months to commence on 27 October 2010 and to expire on 26 December 2011. Thereafter I specify a balance of term of 10 months to commence on 27 December 2011 26 October 2012.

Parole is to be supervised by the Probation and Parole Service and conditioned inter alia that he obey all reasonable directions as to ongoing treatment and counselling for alcohol abuse, such directions to include but not limited to the entry into and remaining within a full time residential rehabilitation facility until such time that the appropriate course of treatment is completed.

Papers 2010/00322681:

On each matter:

The young person is convicted.

The young person is sentenced to the Control of the Minister for a fixed term of 1 month to commence on 27 October 2010 and to expire on 26 November 2010.

Papers 2010/00357141:

The young person is convicted.

The young person is sentenced to the Control of the Minister for a fixed term of 2 months to commence on 27 October 2010 and to expire on 26 December 2010.

• Catchwords: CRIMINAL LAW - sentence - young person - serious and multiple offences - offences committed while on parole - young person almost 18 and a repeat offender - emphasis given to rehabilitation rather than general deterrence and retribution should be moderated - "wholly inappropriate" to deal with young person other than by imposing control order
• Legislation Cited: Children (Criminal Proceedings) Act 1987; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518; Cahyadi v R [2007] NSWCCA 1; France v R [2010] NSWCCA 24; HMP v R [2010] NSWCCA 63; KT v R [2008] NSWCCA 51; R v AD [2008] NSWCCA 289; R v Harris [2007] NSWCCA 130; R v Merrin [2007] NSWCCA 255; R v Thompson & Houlton (2000) 49 NSWLR 383
• Category: Sentence
• Parties: Police; JM (young person in custody)
• Representation: Sgt G Wedge, Police Prosecutor; Mr T Hemsley, for young person in custody
• File Number(s): 2010/00357156; 2010/00322681; 2010/00357141

JUDGMENT

Remarks on Sentence

1 In respect of the matters on papers 2010/00357156 the young person pleaded guilty to the following charge:

That (he) on 20 September 2010 at South Albury in the State of New South Wales did break and enter the office of the Country Comfort Hovell Tree Motel, situate at Wodonga Place and then in the said office did commit a serious indictable offence, namely larceny in circumstances of aggravation, namely he was in company with another person namely Joshua VANDERVENTER and Joseph HARMER, contrary to s. 112(2) of the Crimes Act 1900.

2 In addition to that charge the young person asks that when passing sentence in respect of that charge I take into account a further ten matters on a Form 1 document. Those ten charges include six counts of Aggravated Break Enter and Steal, two counts of Aggravated Break Enter with Intent to Steal, one count of Break Enter and Steal simpliciter and one count of Possess Prohibited Weapon. On papers 2010/00322681 is one count of Resist Police and one count of Fail to Appeal. On papers 2010/00357141 is one count of Larceny.

3 So far as the charge of Aggravated Break Enter and Steal is concerned it is agreed between the parties that the offender is entitled to the full 25% discount for the utilitarian value of the plea. However, it is appropriate to observe that Spigelman CJ said in R v Thompson & Houlton (2000) 49 NSWLR 383 at 419 at [160(iv)]:

In some cases the plea, in combination with other relevant factors will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

4 The matters on the Form 1 document in my opinion substantially affect the outcome in this matter. I mean by this not the issue of the discount to be allowed for the plea, but the ultimate sentence. In respect of the approach to the taken in matters involving Form 1 schedules, Spigelman CJ giving the judgment of the Court of Criminal Appeal in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (Guideline Judgment on Form 1) said at [42]:

The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another".

5 It appears from the papers that the position with the other matters (Resist Police, Fail to Appear and Larceny) is such that the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty in those matters.

Facts - Principal Count

6 As is customary in the Local and Children's Courts the facts were presented by way of a Police Fact Sheet, which in this case was tendered without apparent objection. I will proceed to sentence on the basis that what is disclosed in the Fact Sheet are agreed facts. The fact sheet recites:

About 10.45 pm on Sunday 19 th September 2010 the reception building of the Country Comfort Hovell Tree Motel situated at the intersection of Wodonga Place and Hovell Street, Albury was locked and secured.

About 12.15am on Monday 20 th September 2010 the co accused Joshua Vanderventer, co accused Joseph Harmer and young person (were) stopped by police in Spencer Street Albury. Police obtained their details and left shortly thereafter.

Before 5.45am the co accused Harmer, co accused Vanderventer and the young person have attended the rear of the main reception building and forced open a locked and secured security door by forcing the door off its tracks.

The co accused Vanderventer and young person entered the premises and opened a further door allowing entry to the co accused Harmer. All three persons were wearing hand coverings and covering their heads with hoods.

The three persons made their way into the restaurant area and proceeded behind the bar where the cash register was. Nil money was contained within and a number of bottles of alcohol were taken and transported outside the building. A LG 50 inch plasma television was removed from the wall and taken from the premises.

All three persons have moved through the kitchen into the front reception area where a security grate enclosing the front reception desk was forced open. The office was ransacked and the rear office off the reception area accessed whereby the young person located the key to the safe. The safe was opened and money was stolen from the safe totalling $4,980.75.

The three persons left the premises and moved the television and bottles of alcohol to the neighbouring church grounds where they were left. The cash was retained by the offenders. The three persons made their way to outside McDonald's Restaurant on Hume Street and obtained a taxi.

About 5.45am the offence was discovered by staff of the Country Comfort and police notified. The proceeds were recovered from the church grounds and the Plasma television valued at $1,800 recovered with damage to the actual screen.

Facts - Form 1 offences

7 The facts for the individual matters are recounted on the Fact Sheet. However, as the offences are included on a Form 1 schedule I will deal briefly with them. There are six counts of Aggravated Break Enter and Steal, two counts of Aggravated Break and Enter with Intent to Steal, one count of Break Enter and Steal simpliciter and one count of Possess a Prohibited Weapon, namely a cross bow. Three of the counts on the Form 1 related to old offences committed in March and April of 2007. The aggravation relied upon in the remaining three counts of Aggravated Break Enter and Steal on the Form 1 is being in company. I note that the persons in whose company this young offender was were the same as with the principal count. In the old (i.e. 2007) matters, the property included data projectors, a small quantity of cash, a small quantity of alcohol and a briefcase. The more recent matters were committed between 9 September and 6 October 2010. The value of the property nominated on the Form 1 document is approximately $6,600.

Facts - Resist/Hinder Police, Fail to Appear

8 The matter involves a minor struggle with police and the young person in the early hours of the morning of 23 September 2010. Police saw the young person and other young persons exit a motor vehicle and run from the scene. Upon being informed he was under arrest the young person "pushed away at police and stood up in a threatening manner". He was thereafter threatened with capsicum spray and complied with directions from police. He failed to appear in accordance with a Bail Undertaking at the Albury Children's Court on 12 October 2010.

Facts - Larceny

9 This offence occurred at Maitland on 13 October 2010 while the young person was in the company of Joshua Vanderventer. The offender picked up a large black handbag that had been accidentally left behind by its owner. The owner went back to collect her bag and saw the offender rummaging through the bag. She called out "that's my handbag". The offender ran from the scene eventually throwing the bag onto rocks near the water's edge at the river. The offender was apparently identified by CCTV footage.

Assessment of the criminality

10 The offence of Resist Police is towards the bottom of the range of seriousness for offences of that type that routinely come before the court. The resist is a push, and when threatened with capsicum spray the young person became compliant. The larceny was opportunistic in nature, although no doubt very distressing to the owner of the handbag. I assess that matter at being well below the halfway on the scale of seriousness of matters of that type.

11 I turn now to the Aggravated Break Enter and Steal charge. I assess that matter at being slightly below the half way mark on the scale of seriousness. The premises were commercial and the offence occurred at a time when it was unlikely that persons would be present. Cash and other property to the value of about $6,500 was taken.

Maximum Penalty

12 The maximum penalty for the offence of Aggravated Break Enter and Steal if dealt with on Indictment is 20 years imprisonment. There is a standard non-parole period of five years. The only relevance of that in the Children's Court is that it is a clear indication of how seriously the Parliament views the offence. The offence carries the same maximum penalty as a charge of Aggravated Robbery.

13 The sentencing limit in the Children's Court is a Control Order for no more than 2 years - see s 33(1)(g) Children (Criminal Proceedings) Act 1987. On this issue, Schmidt J giving the judgment of the Court of Criminal Appeal in HMP v R [2010] NSWCCA 63 said at [59]:

The jurisdictional limit of the Children's Court may not be regarded as a sentence reserved for a worst case (see the discussion in McCullough v R [2009] NSWCCA 94 at [26]).

14 It is tolerably plain therefore that the two years provided by s 33(1)(g) is properly regarded as a jurisdictional limit rather than the maximum sentence available. I will proceed accordingly.

Criminal History - Offences committed while on Parole

15 The young person for a person of his age has a lengthy record for offences of Break Enter and Steal going back to 2007. He was sentenced to Control Orders for multiple offences of Break Enter and Steal in August 2008 in the Albury Children's Court. He committed the offence of Recklessly Cause Grievous Bodily Harm in Company on 25 March 2009. He pleaded guilty to that matter and I committed him for sentence to the District Court using powers contained within s 31 of the Children (Criminal Proceedings) Act 1987. He was sentenced to a total sentence of 2 years with a non-parole period of one year and one month.

16 Accordingly, the young person committed the principal count of Aggravated Break Enter and Steal and 7 of the matters on the Form 1 Schedule while he was on parole for a serious matter of violence. The commission of further offences while on parole is a matter of aggravation - see s 21A (2) of the Crimes (Sentencing Procedure) Act 1999 and the decision of R v AD [2008] NSWCCA 289 at [41] per Harrison J.

Matters of General Principle

17 In R v Harris [2007] NSWCCA 130 the Court (McClellan CJ at CL, Hulme & Hislop JJ) said at [30]-[31]:

30 It is also to be observed that nowhere in Attorney-General's Application (No 1) under s26 of the Criminal Appeal Act, R -v- Ponfield and Ors was doubt cast upon the appropriateness of most of the remarks the Court has quoted from the earlier cases. Indeed in R v Scott [1999] NSWCCA 434, one of four cases considered and in which judgement was delivered at that same time as the guideline judgment, Sully J, with whom the other judges agreed, quoted remarks of the sentencing judge in that case and observed that they were correct in principle. These remarks were: -

"The incidence of break, enter and steal throughout the State, but in particular on the Central Coast of New South Wales, is such as to cause grave disquiet in the community.

In the court of the first trial, a fingerprint expert gave evidence to the effect that he attends some ten locations a day in the course of investigating burglaries. The burglar seems to act with impunity, such is the frequency of this crime, which is carried out with brazen contempt for the law and the rights of innocent householders.

Right thinking members of the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar. Their dwellings are ransacked. Their goods spirited away where they will be inevitably received by some Cash Converter, loan office or pawn broker. The operators of such businesses deal with vast volumes of stolen goods on a daily basis. The fact that successive governments neglect to pass efficacious laws which might tend to hinder the daily conversion of stolen goods into money is of great comfort to the burglar and of no assistance whatsoever to the victim.

It is a notorious fact that householders face huge premiums, as well as the vast expense of endeavouring to make their homes secure, against those who apparently consider it their right to break into households and take whatever goods suit their purposes.

Clearly the community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted.

Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment."

31 Although in Attorney-General's Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors the Court declined the Crown's application to provide a guideline in quantitative terms, the Court indicated that a court should regard the seriousness of an offence contrary to s112 (1) as enhanced and reflect that enhancement in the quantum of sentence if any of a number of specified factors are present. Included among the factors mentioned and relevant to the situation of the Respondent here were:-

(i) The offence is committed whilst the offender is at conditional liberty;

(ii) The offender has a prior record, particularly of like offences;

(iii) The multiplicity of offences (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the Criminal Law Procedure Act);

(iv) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

18 A little later in 2007, the Court of Criminal Appeal handed down its decision in R v Merrin [2007] NSWCCA 255. Howie J (Gyles JA, Fullerton J agreeing) said at [38]:

38 In relation to multiple offences of break enter and steal the appropriateness of concurrent sentences has been specifically considered by this Court in R v Harris [2007] NSWCCA 130, a decision handed down a month before the Judge sentenced the respondent. That was a case that emphasised that heavy sentences should generally be imposed for break enter and steal offences committed by repeat offenders on domestic premises, whether or not they were aggravated forms of the offence.

19 There is now also authority for the proposition that the principles enunciated by the Court of Criminal Appeal in decisions such as Harris and Merrin also apply to commercial premises. In France v R [2010] NSWCCA 24 Davies J (James & Howie JJ agreeing) said at [27]-[29]:

This matter has effectively been answered when considering the totality principle under Ground 1. The Applicant had an extensive criminal history, the offence concerned was committed whilst the Applicant was on conditional liberty, the offence showed a measure of professional planning, organisation and execution, damage was done to various items of property and the value of the goods stolen was not insignificant. These were all matters that were identified as factors which enhanced the seriousness of the offence in R v Ponfield (1999) 48 NSWLR 327 at [48].

28 In R v Clifford [2008] NSWCCA 190 Price J said at [65]:

"This Court in R v Harris (2007) 171 A Crim R 267 emphasised that heavy sentences should generally be imposed for break, enter and steal offences committed by repeat offenders on domestic premises, whether or not they were aggravated forms of the offence. To my mind, there is no good reason why what was said in Harris should not apply to repeat offenders who break into business premises."

20 Given the offender's record and the multiplicity of offending with which I am dealing, I am of the view that the young person can accurately be described as a repeat offender. I often observe when presiding in the Children's Court that young offenders seem to regard Breaking and Entering into other people's home and businesses as some type of recreational activity. It is serious criminal offending, and will be treated accordingly.

21 I now turn to the matters of general principle in dealing with juvenile offenders. Section 6 of the Children (Criminal Proceedings) Act 1987 provides:

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.

22 I note that s 33(2) of the Act provides that the Court shall not (and it therefore is in mandatory terms) deal with a person under subsection (1)(g) (i.e. a sentence of a Control Order) unless it is satisfied that it would be "wholly inappropriate" to deal with a person under subsections (1)(a)-(f).

23 McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [21]-[26] succinctly summarised the authorities relating to sentencing juvenile offenders. His Honour was ultimately in dissent on the ultimate issue, however, with unfeigned respect, that part of the judgment is an excellent summary of the relevant principles. It has since been recognised as such in many decisions of the Court of Criminal Appeal. His Honour said at [22]-[26]:

The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].

23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. ( R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence ( Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. ( Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

24 Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

"It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes , particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society."

25 The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity ( R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" ( Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence ( Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

26 The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity ( R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age ( R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth ( Hearne at [27]).

24 In the matters presently under consideration the young person was on parole, had a lengthy history and was very close to his eighteenth birthday. The young offender in fact turned 18 in March of this year. I also note the circumstances of the offences. In these circumstances I am very firmly of the opinion that the emphasis given to rehabilitation rather than general deterrence and retribution should be moderated. I also note the multiplicity of the offending as detailed on the Form 1 schedule.

Juvenile Justice Background Report

25 Again, this Court is indebted to the author of the Background Report. Mr Timothy Wilson, the author has obviously invested a great deal of time and industry in the preparation of the Report, which this Courts finds extremely helpful. Appropriately, Mr Hemsley relied heavily on the Background Report.

26 It would appear that the young person has not enjoyed a stable home environment. He lived with his mother until he was about 13 years of age, and has been with other family members at various locations since then. He witnessed domestic violence in his formative years. In July 2007 the offender's mother was imprisoned in respect of a serious matter of violence towards the offender's father. It appears from the Report that the family life settled after the offender's mother was released from custody. he young offender has used a number of illicit substances over a considerable period of time.

27 Because of the unsettled home life, the schooling of the young person has been far from ideal. He attended a considerable number of schools over a relatively short period. According to the Report when the young person was in custody in 2009-2010 he did well at the Education and Training Unit within the relevant Institution. Since being back in custody the young person has again involved himself in courses. Ultimately he hopes to find employment in the building and construction industry.

28 The young person is engaged with an alcohol and other drugs counsellor. He now realises that his substance abuse and peer relations has greatly impacted on his offending behaviours. Of particular significance is that the young person has indicated a willingness to undertake a course of full time residential rehabilitation.

29 Realistically, the Report acknowledges that the court has little alternative to a custodial sentence, and recommends supervision by the Probation and Parole Service.

Subjective Matters

30 The Court is also indebted to Mr Hemsley who has done and said everything that could be done and said to assist the young person. Initially it was put that I would allow the full 25% discount for the utilitarian value of the plea. I have already dealt with this issue at the beginning of these remarks.

31 The young person has been in custody since 27 October 2010. The thrust of the submissions on behalf of the young person is that the eight months he has spent in custody should effectively be treated as the non-parole period and I should structure a sentence that has the effect of allowing the release of the young person to parole immediately.

32 In support of this proposition it was put that the young person since being in custody has undertaken education, and has now completed his Year 10 studies. There is apparently no longer a Certificate given to indicate the achievement of that milestone. Clearly enough, the young person has involved himself in education, and that can only assist him in the future.

33 Further, it was submitted that the young person has gained considerable insight into the effect that his substance abuse has had. In particular, he now realises that he needs to undertake a course of full time residential rehabilitation. I understood the submission was made on 21 June 2011 that there was a place available for the young person at the "Peppers" centre at Wagga Wagga. In that regard I have been favoured with a supplementary report from Mr Wilson of the Department of Juvenile Justice which indicates that there are no current placements available, that the young person has been placed on a waiting list and that the management of the Centre is unable to confirm when another placement would become available.

34 I observe that if the young person is successful in overcoming his addiction to illicit substances it will not only be in his interests but the interests of the broader community. I am prepared to find Special Circumstances because of the issue of rehabilitation.

35 Mr Hemsley also addressed to the effect that the principles relating to the sentencing of juvenile offenders favours rehabilitation over the other purposes of sentencing. I have also dealt with those issues earlier in these remarks. I remain firmly of the opinion that the emphasis normally given to rehabilitation should be moderated when dealing with this young person.

Parity

36 The co offenders are adults and have yet to be dealt with by the District Court. Accordingly, I do not perceive any issue of parity.

General Remarks

37 In the course of the sentence hearing on 21 June 2011 I raised with Mr Hemsley the possibility of committing this young person for sentence to the District Court. However, no application was made for that to occur. Both parties have proceeded on the basis that the Children's Court would deal with the matter. In these circumstances, I will leave the matter in the Children's Court.

38 It will be tolerably plain from what I have already said that I am very firmly of the view that it would be wholly inappropriate to deal with this matter other than by way of full time custodial sentence. While I accept that the offender is still a young person and that rehabilitation still weighs heavily in the sentencing process I cannot overlook the seriousness and multiplicity of the offending.

39 There are also the other minor matters on which I have to pass sentence. Giving due weight the principles enunciated by the Court of Criminal Appeal in Cahyadi v R [2007] NSWCCA 1 at [17] and that line of authority, I am of the view that the other minor matters can be appropriately dealt with by wholly concurrent fixed terms of Control Order. I note that those sentences have long since expired.

40 Given that seriousness and multiplicity of offending, taking into account the matters on the Form 1 schedule I am of the firm view that the total sentence should be the jurisdictional limit of the Children's Court, that is, a Control Order of to years. It follows that I am of the opinion that the starting point before the application of the discount for the plea is well above the jurisdictional limit of the Children's Court. As previously indicated, I am prepared to find special circumstances, essentially because of the young person's indicated intention to undertake residential rehabilitation. It will be a condition of the parole that he obey all reasonable directions of the Probation and Parole Service as to ongoing treatment and counselling for substance abuse.

Formal Orders

41 Papers 2010/00357156

In respect of the Charge of Aggravated Break Enter and Steal taking into account the 10 maters on the Form 1 Schedule:

The young person is convicted.

The young person is sentenced to the Control of the Minister for a non-parole period of 14 months to commence on 27 October 2010 and to expire on 26 December 2011 . Thereafter I specify a balance of term of 10 months to commence on 27 December 2011 26 October 2012.

Parole is to be supervised by the Probation and Parole Service and conditioned inter alia that he obey all reasonable directions as to ongoing treatment and counselling for alcohol abuse, such directions to include but not limited to the entry into and remaining within a full time residential rehabilitation facility until such time that the appropriate course of treatment is completed.

42 Papers 2010/00322681

On each matter:

The young person is convicted.

The young person is sentenced to the Control of the Minister for a fixed term of 1 month to commence on 27 October 2010 and to expire on 26 November 2010.

43 Papers 2010/00357141

The young person is convicted.

The young person is sentenced to the Control of the Minister for a fixed term of 2 months to commence on 27 October 2010 and to expire on 26 December 2010.

Magistrate Lerve

Albury Children's Court

28 June 2011

Decision last updated: 06 March 2012