District Court New South Wales

• Medium Neutral Citation: R v BW [2014] NSWDC 45
• Hearing dates: 27 March 2014
• Decision date: 27 March 2014
• Before: Berman SC DCJ

Decision

The offender is sentenced to imprisonment consisting of a non-parole period of two years and head sentence of four years. Ordered that the whole of the sentence be served as a juvenile offender

• Catchwords: CRIMINAL LAW - Sentence - Assault with intent to rob whilst armed with an offensive weapon and causing wounding - Young offender - Offender exposed to serious child protection violations - Intimidation of victim - Totality - Offender of probation and parole at time of commission of offence
• Legislation Cited: Children (Criminal Proceedings) Act
• Category: Sentence
• Parties: The Crown; BW
• Representation: Counsel: Ms A Cook - Offender; Solicitors: Director of Public Prosecutions; Legal Aid Commission - Offender
• File Number(s): 2013/133873
• Publication restriction: There is to be no publication of the name of the offender

SENTENCE

1 HIS HONOUR: Judges have to deal with young people who commit serious offences with depressing regulatory. One thing is particularly important to be borne in mind, and that is that children of 15, as the offender was when he committed his serious offence, do not have the same level of maturity as a 25 or 30 year old. Sometimes we hear phrases like, "If a child is going to act like an adult, he or she should be sentenced like an adult". Certainly serious offending requires appropriate responses from the Courts, but nothing should dilute the important principle which assesses the moral culpability of an immature 15 year old as being less than the moral culpability of an adult who committed a similar offence.

2 I have begun these remarks on sentence with that observation because of the two most important matters in this sentencing exercise, the seriousness of his misconduct and his youth.

3 On 29 April 2013 the offender came across a Mr Wong, the ultimate victim of the offender's crime. It appears that this was a case of mistaken identity, that the offender for his own reasons wanted to intimidate a person who looked like Mr Wong, in order to keep him out of the Kings Cross area. That explains some of the things that the offender said to Mr Wong when they met up.

4 The offender said to him, "This is my turf, get off my turf. You have to go that way," and pointed Mr Wong in the direction away from a popular street into a relatively isolated lane. Not wanting any trouble, Mr Wong complied with the offender's direction. He felt a push to his back and felt someone pulling at his backpack. He turned around and saw the offender standing in front of him. He said, "Give me your bag, I want your phone and money." When Mr Wong did not respond, he repeated "Give me your bag." Mr Wong loudly said, "No, I don't have anything, leave me alone." At this the offender produced a knife. He pointed it directly at Mr Wong's chest, about 20 centimetres away. He said, "Give me your phone and money now."

5 The commotion attracted the attention of people living nearby, who called police. Another woman yelled out from a nearby apartment. The young person briefly looked towards her and then lunged towards Mr Wong with the knife in his right hand. In order to protect himself, Mr Wong put his left arm in front of his stomach. The blade hit his inner left forearm. He immediately felt a lot of pain and became dizzy. The offender ran away, still carrying the knife.

6 Mr Wong went to a liquor store on Macleay Street. A staff member bandaged his wound and an ambulance and police were called. Mr Wong was taken to hospital. He required 20 stitches to close the wound he had suffered. He remained in hospital for three days until discharging himself.

7 Police looked at CCTV footage from around the area and when they came across the offender the next day they arrested him.

8 He has now pleaded guilty to an offence of assault with intent to rob whilst armed with an offensive weapon and causing wounding. That is a serious offence, carrying a maximum penalty of 25 years imprisonment. It means that the offender, although only 15 at the time of the offence and 16 now, must be dealt with according to law.

9 The offence that I have described is serious enough, but at the time the offender was on probation for seven other offences and on bail for three more. On top of that, a few hours before he committed this offence, he committed an offence of robbery in Parramatta.

10 Although due to his youth the offender has not been committing offences for very long, in that short space of time he has clearly demonstrated a continuing attitude of disobedience towards the law.

11 As well as sentencing for an offence, I must sentence the offender. In another jurisdiction of this Court judges are called to decide child custody matters where FACS, and previously DOCS, have intervened in order to protect the welfare of children. Judges see some terrible circumstances and wonder what will happen to many of the children who are the subject of such proceedings. These proceedings demonstrate what can happen.

12 In a large part, this offender's behaviour and misconduct can be traced to his terrible upbringing involving interventions by the authorities in order to protect his welfare. When he was four months old he was removed from his parents' care due to concerns about his physical welfare and the risk of sexual abuse. His parents exposed him to their drug use and criminal behaviour. The offender at one stage sought access to his FACS file and knows now the terrible way in which he was brought up. It is clear that the offender was exposed to serious child protection violations, to use the words in the psychological report tendered on behalf of the offender today.

13 After being removed from his parents, he was placed with his paternal aunt. She was a loving and caring woman. He enjoyed living with her because he felt that someone cared about him. Unfortunately the offender behaved badly. Again to use the words of the psychologist, he was a behaviourally difficult child, and so when he was nine his aunt relinquished care of him to the State. She was unable to cope with his misconduct.

14 Due to the level of his misbehaviour, he was apparently not suitable for foster care and was placed in community based group homes. They apparently offered little to him by way of care or nurturing and he began to engage in criminal conduct, such as theft. He was also often aggressive with staff when his needs were not met. As he has grown up, his criminal behaviour has worsened.

15 As if that were not enough, other tragedies have befallen him. The aunt with whom he had previously resided, accidentally caused the death of his cousin, by running over her with a car. Quite irrationally the offender blames himself for this. He believes that if he had remained living with his aunt, he would have been able to look after his cousin and thus prevent her death.

16 I mentioned before that the offender obtained access to his FACS file. The details within that document were apparently quite disturbing to him. It is easy to understand why he would want to know where he came from, but the answer does not appear to have been terribly helpful.

17 At one stage he was placed in Juvenile Detention. When he left at the age of 15, shortly before committing this offence, he was placed in a group home but rarely lived there. Instead he was staying with friends around the city or living on the streets in the Kings Cross area. He had been doing this for about a month before he committed the offence for which I must now sentence him.

18 A psychologist summarises it this way, "Overall BW is a young boy who has been exposed to serious child protection violations and significant inconsistency in care."

19 What I have described thus far is concerning indeed. The Juvenile Justice report also paints a very bleak picture regarding the offender, his propensity for aggression and the prospects for his future. Things are not all one way however. Since going into custody the offender's behaviour has improved. He has received a visit from his mother and one from his sister, a person about whom Juvenile Justice speaks very highly. He hopes to live with his sister upon his release from custody.

20 He is now completing year 10 and says that he is doing well. He has recently completed a bricklaying, block laying certificate involving a number of separate subjects. He told the psychologist and he told me as well that he was motivated to continue his schooling. Education is one way that the offender might be able to turn off the path on which he is apparently currently headed.

21 As I began these remarks on sentence it is important to remember that despite the seriousness of his misconduct, the offender is still a child. Section 6 of the Children (Criminal Proceedings) Act sets out the principles which I must have regard to when I sentence the offender. Clearly rehabilitation is an important aim. Clearly also, however, that does not mean that the principles of general deterrence and punishment are unimportant.

22 I take into account very much in the offender's favour the following circumstances. He was 15, well short of 18, at the time of the offence. He was immature. He lacked any sort of ongoing adequate support as he grew up and his upbringing was very unstable. Ms Cook also refers to what she describes as mental health fragilities that have arisen as a result of the offender's upbringing and childhood. I take those into account as well.

23 I also take into account the offender's expressed motivation towards rehabilitation, but I would be the first to note that it is easy to promise rehabilitation, but much harder to demonstrate it.

24 The offender pleaded guilty at the earliest opportunity and so the sentence I impose upon him will be 25% less than it would otherwise have been. Since committing the offence the offender has been dealt with in the Children's Court for a number of matters, including the one committed earlier that night. Thus not all the offender's time in custody since being arrested relates solely to this offence. The principle of totality of course applies and so in considering questions of accumulation I have taken into account the overall sentence which takes into account both the Children's Court matters, and my sentence must be appropriate for the offender's overall criminality.

25 It is also important that no offence goes unpunished. No offender, including young offenders, should ever get the impression that they can commit offences without being punished. For that reason the sentence I will shortly announce will date from 30 July 2013. The offender thus remains punished for the offences which resulted in him being dealt with in the Children's Court.

26 It is, of course, a seriously aggravating factor that he was on probation and bail at the time of this offence, but I have to be careful not to double count by both extending the sentence from that I would have imposed in the absence of that aggravating feature and also selecting a starting date which does not take into account the principle of totality. I have not done that, of course.

27 As the Crown reminded me, this was a very serious offence. The offender diverted Mr Wong from a place where there were many people to a place where he was effectively isolated. The offender was armed with a knife and it was his deliberate act of producing it and then lunging towards Mr Wong which led to him suffering the serious injury to his arm which he suffered. It is conceded that the offender must receive a sentence of imprisonment.

28 I make a finding of special circumstances in the offender's favour. They result from, of course, the mathematical effect of accumulation, as well as the need for very close supervision upon the offender's release, given the bleak nature of the Juvenile Justice report. Such close supervision will be necessary to ensure, as much as possible, that the offender does not commit offences in the future. The community and the offender himself will both benefit from that close supervision.

29 The offender expressed his remorse in court today. He said that were Mr Wong in court he would apologise to him for what he has done. I accept that expression of remorse as genuine.

30 The offender is sentenced to imprisonment. I set a nonparole period of two years, to date from 30 July 2013, and a head sentence of four years. The nonparole period will thus expire on 29 July 2015, on which date the offender is eligible to be released to parole.

31 I make an order under s 19 of the Children (Criminal Proceedings) Act that the whole of the sentence be served as a juvenile offender. There are special circumstances in this case under s 19(4A). They are that the offender's schooling should be continued for as long as necessary. Education is very important in this case as part of the process of aiding the offender to become a productive member of society. Also as regards these special circumstances, I note and accept the contents of para 50 of the psychological report of Ms Laura Durkin. I will not read that paragraph out, it is to be found in one of the exhibits should further attention to this matter be required.

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Decision last updated: 07 May 2014