The Factual Findings
5 His Honour summarised the Agreed Statement of Facts as follows:
"The agreed facts are in evidence; I will give a short précis of them. At 10.35pm on 16 January 2008 the victim, Alan Sin, arrived at Allawah train station and walked along a path. The three co-offenders were sitting on a park bench. As the victim walked past the offenders, one of them kicked him in the back from behind and he fell to his knees. The first offender then put a knife to the victim's throat, holding it in his right hand with the blade very close. The first offender said, 'Give me all your money; where's your money?' The victim removed his wallet from his pocket and took all the cash totalling $100 which he handed to the first offender who placed it in a pocket. The first offender was described by the victim as an Islander approximately sixteen years of age wearing a white hooded jumper and a white baseball cap with a large rim. The offender said to the victim, 'Is that all you've got?' and then kneed him in the right side which unbalanced him. He supported himself on his left hand as a second offender came up and also put a knife to his throat with his left hand whilst holding him in a gridlock around the chest. This offender said, 'Where's your phone?' The victim was unbalanced. He instinctively raised his hand to grab the blade when he felt it touch his throat, in doing so cutting three of his fingers. The third offender then said, 'How much money did you give us?' and the victim replied, 'It's a lot.' The first male patted his pockets as another said, ''Where's your phone?' The third offender was given the phone and then threw it away saying, 'Go fetch.' All three offenders ran away to the station.
CCTV footage tracked the offenders' movements to Rockdale Station. They left the station, turned left into the street after looking around and walking away. The victim of the first robbery was treated by a Dr O'Connor and his wound was cleaned and dressed with Steri-Strips and it did not require stitches. These facts relate to the first charge on the indictment.
The second offence: at around 11.10pm on the same evening the second victim, Mohammed Islam, alighted a train at Rockdale Station and rang his uncle. He asked his uncle to meet him at the station to walk him home. He walked into the street to meet his uncle. The second victim and his uncle then walked together along the street where they saw the three offenders this time sitting on a wall. They did not take much notice of them. After passing them the second victim, Mr Islam, felt that they were being followed and he has asked his uncle to check. They increased their walking pace and were nearly running. They ran towards their home and noticed the offenders were getting closer. The victim stopped at his house and opened the front gate to enter whilst his uncle ran up the side of the house. When the offenders reached the house the victim noticed they were all approximately fifteen to sixteen years of age. The first offender was wearing a black hooded jumper with the hood up over his head making it difficult to see him in the dim light. He stood outside with the other offender. The victim could not describe this offender. The third offender was skinny, had short brown hair and light skin. He was shorter than the victim, probably 160 centimetres tall, and wearing a white tee-shirt. He walked though the front gate and came up the stairs towards the victim. 'What do you want?' the victim said. The third offender replied, 'I need money, give me money'. The victim said, 'I will give you money, this is my house, I will give you money.' The third offender then reached the top of the stairs and approached the victim who said he looked to be drunk and had glazed eyes. This offender reached into his pants and produced a flick-knife with a white handle and flicked it open. He said, 'I want money.' The blade was about twenty centimetres long. He held it in his right hand near his body rather than pointing it at the victim. The victim grabbed the knife with both hands saying, 'I will give you money, I'm just going to call the police.' One of the other offenders said, 'Let's go.' The victim released the knife and he stepped away from the third offender. This offender ran away. As he did, the other two also left. In this offence the victim suffered a small wound to his left index finger and another to his right index finger with a slight right wrist strain.
Following the arrest of all three on 17 January 2008, a ten centimetre serrated knife was found on this offender. Whilst being placed in the police caged truck a further knife fell out of his right pants' leg. This had a jagged blade and a light-reddish wooden handle. It was about twenty centimetres in length. Both knives were of the flick-knife variety."
6 It will be necessary to refer to additional facts to deal with particular grounds of appeal.
7 An important aspect of the case concerned the subjective circumstances of the respondent. A number of expert reports were tendered on his behalf and his mother also gave evidence. North DCJ made findings of fact based on this evidence to which I will further refer below. His Honour also referred to the sentencing proceedings for the two co-offenders - JC and JM.
8 In addition to the Agreed Statement of Facts his Honour had before him a statement by the first victim. Furthermore, evidence was called from the co-offender JM. Some of this evidence, as will be seen, expanded upon, and was not consistent with, the contents of the Agreed Statement.
9 His Honour made the following specific findings:
"The agreed facts in this matter that I have to decide refer to the first, second and third offender, without nominating participants. The combined effect of exhibit 4, a statement of the first victim, and the evidence of JM is that on sentence I am left without any evidence of this offender actually producing or using a knife in either robbery. I recognise that on arrest he was found to be carrying two knives, an unnecessary abundance, one might think. However, it fits with all of the other subjective evidence that this offender may not be the brightest or the most entrepreneurial of the three young men.
If I had been left with just the agreed facts, then perhaps I could not have come to this decision regarding the production or use of a knife by this offender."
10 His Honour went on to refer to the evidence of JM and said:
" … in his evidence in the incident which he gave before me he did not put a knife in this offender's grasp during the first incident. In the second incident, not only did he not put a knife in the grasp of this offender, but he agreed that because the offender at the time was overweight, weighing as much as 105 kilograms, in the chase up the street to the second victim's house he lagged well behind. Indeed, the attempted armed robbery carried out by JC at that stage with the wounding may nearly have been completed by the time this offender arrived on the scene. That is slightly different to the agreed facts where the second victim says that he sees three people aged about fifteen or sixteen outside his house."
11 With respect to both offences his Honour formed the opinion that the offender's role was not as serious as either of his co-offenders. On the basis of the evidence before him, North DCJ indicated that he was driven to make findings of fact that were not the same as those made about the respondent's conduct by the judge who sentenced the two co-offenders.
12 His Honour set out and made findings about the subjective circumstances of the offender to which I will further refer below. A report of a clinical psychologist, Mr Peter Champion, identified the risk factors in the respondent's prognosis. His Honour took this Report into account when expressing his conclusions about the subjective circumstances of the offender, as follows:
"Given the guarded prognosis of Mr Champion and the lack of any proper explanation for why a boy hitherto without any criminal antecedents should commit such objectively serious crimes it is difficult to assess his prospects of rehabilitation. These offences have clearly penetrated his consciousness and I am heartened by the fact that he has not only remained trouble free, but has acknowledged his remorse to Mr Champion and in the background reports. Eighteen months is a considerable period in any teenager's life and I trust that he has learnt enough from this dreadful first experience with crime and the legal system to decide not to re-offend. As mentioned, both these crimes are objectively serious: innocent victims at night going about their everyday lives were accosted shortly after leaving a railway station; both were wounded, albeit fortunately not seriously. The offenders acted in company and they showed a disregard for public safety. There must have been some degree of planning in both offences, although it can hardly be described as sophisticated. They had knives, although there is no evidence that this possession was initially for the purpose of committing robberies."
13 His Honour went on to state, on the basis of the submissions made to him by both the prosecution and the defence, that there was a standard non-parole period for this offence. His Honour made further findings as required by s 21A of the Crimes (Sentencing Procedure) Act based on this assumption. This assumption was not correct. Nevertheless, it explains why his Honour expressed some findings in this particular context.
14 His Honour said:
"I take into account that the offender was only fifteen at the time and due to his age and intellectual disabilities which I have canvassed he may not be fully aware of the consequences of his actions. I believe given his eighteen months of trouble-free behaviour since his arrest that he does have reasonable prospects of rehabilitation. Further, the midrange of seriousness covers a broad spectrum and I am of the view that neither offence falls within the midrange of objective seriousness of an aggravated offences of this type, and of this offender, taking into account the facts that I have found regarding his complicity an the subjective features, I assess it to fall well below that middle range. I would not have found this had the wounding been more deliberate and serious in each case. As stated, the standard non-parole period remains relevant to sentence: the law is quite clear that other than in exceptional circumstances a sentence of full-time imprisonment is warranted for offences of this kind. The offender is a child. Because these offences are so serious he is to be sentenced at law; that is, in accordance with adult penalties. The sentencing considerations relevant to children are to be taken into account as well as those that normally attend the sentencing procedure. Section 6 of the Children (Criminal Proceedings) Act 1987 sets out the principles to be applied when sentencing children for all offences, including serious children's indictable offences; see The Queen v GDP (1991) 53 ACR 112. How to apply these principles and the extent to which they should be applied is a matter for balance and judgment. With young people, rehabilitation assumes a greater importance than general deterrence and punishment. It is desirable that young people be allowed, if possible, to continue their education and employment and reside at home with family; see The Queen v Smith (1984) CrimLR 70. In DB (2007) 167 ACR 393, the CCA reaffirmed the principle that in sentencing juvenile offenders regard should be had to their immaturity and vulnerability and the importance of rehabilitation. This is an important aspect of this matter given the young age of the offender, his complete lack of criminal antecedents both before and after these charges and his undoubted disabilities. At the time of these offences, being fifteen, he was a long way from adulthood; all the evidence clearly demonstrates his lack of capacity to properly consider the consequences of his actions. This is a matter in which I find that general deterrence and punishment which usually follow such objectively serious crimes should be subordinated to rehabilitation.
Taking into account his young age, his immaturity, his good character, his remorse, his eighteen months of strict bail and moves towards rehabilitation, his intellectual and physical deficits, I am satisfied that together they constitute exceptional circumstances. Accordingly, except for what follows, I do not propose to impose a term of full-time imprisonment."
15 Prior to imposing the sentence his Honour said:
"In relation to the first charge and taking into account the discount for the plea, I will impose a sentence of twenty-four months imprisonment. I intend to order that this sentence be wholly suspended. On the second charge, also a very serious offence, it is appropriate to impose a sentence that will allow his rehabilitation to continue and to be focused along the lines suggested in the background report by Juvenile Justice and Mr Champion. I will order the offender complete a community service order of eighty hours that will allow him to participate in both educational and counselling programs recommended by the Juvenile Justice system."