R v SL; R v RT; R v WS

Sentencing order for RT 1. In respect of the offence of robbery with a dangerous weapon I sentence the offender, RT, to a non-parole period of 2 years and 3 months commencing on 11 June 2006 and expiring on 10 September 2008 with a balance of term of 2 years expiring on 10 September 2010. 2. I direct that the balance of the non-parole period be served in a juvenile detention centre. 3. I direct that a copy of these sentencing remarks be made available to the relevant parole authorities in order that every consideration be given to providing for RT's release from detention at the expiration of the non-parole period. The calculation of sentence, in particular the non-parole period, has been fixed referable to the considerable assistance I have been given by officers of the Department of Juvenile Justice in reports tendered on sentence as to the services available and the extent of intervention called for in supervising RT on conditional liberty.

CATCHWORDS : CRIMINAL LAW - sentence - robbery with a dangerous weapon - child offenders - significance of age in circumstances of serious offending - established prospects of rehabilitation

Children (Criminal Proceedings) Act 1987 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996

Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 R v BB [2005] NSWCCA 215 R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 R v De Simoni (1981) 147 CLR 383 R v Doridis, NSWCCA, 18 December 1986, unreported R v Dowd [2005] NSWCCA 113 R v Dukino; R v Moshref [2003] NSWCCA 379 CASES CITED : R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hoschke [2001] NSWCCA 317 R v McIlwraith [2005] NSWCCA 137 R v Mastronardi [2000] NSWCCA 12; 111 A Crim R 306 R v SDM [2001] NSWCCA 158; 51 NSWLR 530 R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510 R v Tran [1999] NSWCCA 109

SL (Offender) PARTIES : RT (Offender) WS (Offender) The Crown

FILE NUMBER(S) : SC 2007/2578; 2007/4226; 2007/4205

A Barber (SL) COUNSEL : D Price (RT) I Wallach (WS) T Thorpe (Crown)

Patricia White and Associates (SL) SOLICITORS : Voros Lawyers (RT) Timothy Heenan Solicitors (WS) Director of Public Prosecutions (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

2007/2578 R v SL 2007/4226 R v RT 2007/4205 R v WS

1 HER HONOUR: SL, RT and WS were all joint participants in an armed robbery of the White Horse Hotel on the Princes Highway at St Peters on 9 June 2006.

2 On 7 April 2008 each of the three offenders entered pleas of guilty to the offence of armed robbery with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900. The maximum penalty provided for is 25 years imprisonment. Mr Ken Jankievski (the bar manager of the hotel) was named as the victim of the armed robbery. $2500 was specified in the indictment as the money taken from him. The dangerous weapon was a shotgun which satisfied the statutory definition by reason of it being a gun that was at one time capable of propelling a projectile by means of an explosive (see s 3 of the Crimes Act and s 4 of the Firearms Act 1996). It was not capable of firing a projectile at the time of the robbery. The ballistician was unable to say when it was last capable of firing a projectile. His evidence as to capability was sourced by reference to the date of manufacture of the gun in the USA. 3 The White Horse Hotel is located on the corner of Victoria Street and the Princes Highway at St Peters. Victoria Street extends over a distance of about 100 metres to the intersection with Church Street and is at right angles to the Princes Highway. The offenders were driven to the area by another offender, a young female. She remained with the car in Church Street while the male offenders made their way to the Hotel. They entered the hotel through the public entrance off Victoria Street into the public bar at approximately 11:55pm. They each had their faces obscured and were wearing latex gloves. I am satisfied that SL was carrying the shotgun, RT was carrying a knife and WS a meat cleaver. A fourth offender had a bag for the express purpose of carrying away the proceeds of the robbery. 4 The patrons and the manager of the hotel were subjected to physical violence, and threats of physical violence, by each of the three offenders in the process of being robbed of money and other items of personal property. The robbery extended over a period of about 10 minutes. The entire sequence was recorded on CCTV footage. It is clear that the patrons were put in fear of real and immediate physical harm given the level of aggression displayed by each of the offenders. Some patrons were pushed to the ground and held under threat by one or more of the offenders. One patron sustained an abrasion in the region of the eyebrow as he was flung to or fell to the ground. Offences on the Form 1 5 Although the robbery of the patrons was not charged on indictment I have been asked by each of the three offenders to take 11 additional offences of robbery in company as itemised on the Form 1 into account in the sentencing exercise in accordance with s 37 of the Crimes (Sentencing Procedure) Act 1999. These offences were committed against 11 individual patrons. The property taken from them comprised a total of $4205 in cash, four mobile phones, a watch, a cigarette lighter and a number of wallets. Consistent with authority, these offences do not have the effect of increasing the objective gravity of the offending for which the three offenders stand to be sentenced (R v Dowd [2005] NSWCCA 113). However, since they are each intimately and temporally connected with the principal offence, I am in a position in imposing sentence for the principal offence to sentence each of the offenders for the totality of their outstanding criminality (see R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 at [31]). I am also mindful that consistent with the guideline judgment in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146, it is necessary that the sentence to be imposed reflects the need for each of the three offenders to be deterred from committing offences of this kind (or any similar kind) in the future and that this is called for independently of the fact that the offences on the Form 1 are intimately and temporally connected with the principal offence (see R v BB [2005] NSWCCA 215 at [24]). 6 After the robbery RT, WS and the fourth man ran out of the hotel in advance of SL. SL remained with the shotgun pointed at the bar manager in an effort to shepherd the escape of the others and, ultimately, himself. While he was still in the bar, the bar manager succeeded in wresting the shotgun from SL's grip after which SL also ran from the hotel with the barman in pursuit. At this time the working parts of the shotgun, which were apparently taped together to give the appearance of it being in functioning order, broke into at least two parts. 7 Within a very short period of time a number of other patrons, who had by that time armed themselves with pool cues, also gave chase along Victoria Street and ultimately along Church Street. Some distance along Church Street the two groups of men - the offenders on the one hand and the bar manager and patrons on the other - were embroiled in a physical fight in the course of which one of the patrons was fatally stabbed. The offenders made their escape from the area in the vehicle driven by the young woman. The knife that killed the deceased was abandoned at the scene. Some of the property stolen from patrons, in particular a number of mobile phones, were located at the scene of the fight in Church Street. The balance of the property stolen was not recovered. The car was abandoned a short distance away. 8 On 10 June 2008 WS and RT were arrested. At that time they were aged respectively 17 and 16. By reason of their age they both qualified as "children" as provided for in s 3(1) of the Children (Criminal Proceedings) Act 1987, and as such, and in accordance with s 11 of the Act they were each referred to by their initials for the purposes of trial and sentence. They have both been detained in a Juvenile Detention Centre since their arrest. 9 At the time of sentence WS and RT are respectively 19 and 18 years of age. Accordingly, they are to be sentenced by reference to the Children (Criminal Proceedings) Act. However since the offence against s 97(2) is a "serious children's indictable offence", by operation of s 17 of the Act they are to be dealt with according to law. 10 On 6 July 2006, SL voluntarily presented himself to police. He was aged 20 at the time. He has been detained as a remand and serving prisoner in the adult prison since that time and is to be sentenced consistent with general sentencing principles. It was only to ensure the anonymity of his co-offenders that he was also referred to by his initials in the trial and in the sentence proceedings. A brief history of the proceedings 11 On 10 March 2008, each of the three offenders along with two others were jointly indicted to stand trial on one count of murder and one count of armed robbery. Each pleaded not guilty to both counts.

12 On 7 April 2008, at the close of the Crown case, I heard argument as to whether I should direct the jury to acquit each of the five accused on the charge of murder on the basis that the evidence was incapable of satisfying the jury that the act causing death was a deliberate or voluntary act of any one of the accused. In light of the evidence of the pathologist, the Crown conceded that the evidence was deficient in that respect. I also heard argument as to whether I should direct the jury to acquit the fourth male - a person who was known as FT in the proceedings - of the charge of armed robbery on the basis that the evidence directly admissible against him was insufficient to support a verdict of guilty on that charge. The Crown did not seek to persuade me against that course.

13 Counsel for SL, RT and WS, together with counsel for the female offender, were then invited by me to confer with their respective clients as to their attitude to the remaining count of armed robbery with a dangerous weapon since each of them had participated in records of interview on arrest and where each had admitted knowledge of and, to varying degrees, participation in the robbery. Upon being re-arraigned before me each of the three male offenders pleaded guilty to the remaining count on the indictment. 14 Accordingly, the following morning, 8 April 2008, I directed the jury to enter verdicts of not guilty on the murder charge for each of the five accused. I also directed the jury to enter a verdict of not guilty on the armed robbery charge in respect of FT. The sentence proceedings in respect of the three young men were then adjourned to 6 June 2008 to allow for preparation of a range of reports and to assemble other evidence bearing upon sentence. 15 The female offender reserved her position on the remaining count on the indictment until 8 April 2008 when the Crown accepted a plea of guilty to a charge of robbery in company in full discharge of the indictment against her. On 11 April 2008, I sentenced her to a non-parole period of 21 months commencing on 11 June 2006 and expiring on 10 March 2008 with a balance of term of 15 months expiring on 10 June 2009. In accordance with s 50(1) of the Crimes (Sentencing Procedure) Act, I directed that she be discharged from custody forthwith.

16 Although she was part of the same criminal enterprise to rob the White Horse Hotel, the female offender pleaded to a different and comparatively less serious offence than the offence to which each of the three young men pleaded guilty. In addition, she was sentenced on the basis that she did not enter the hotel at any time and was unaware until after the robbery that any of the three young men were armed. For this reason alone parity considerations do not arise in the sentence of these three offenders. The pleas of guilty 17 There is also a marked difference in the weight to be given to the pleas of guilty in the case of these three offenders as compared to the case of the female offender. In her case I discounted the sentence by 10 per cent in recognition of the fact that although the plea was late it nevertheless had some utilitarian value since the Crown case against her on armed robbery was not overwhelming (a matter fairly conceded by the Crown). The same cannot be said in the case of these three offenders. I do not regard their pleas of guilty as having any utility at all in view of the time that the pleas were entered and in view of the fact that each of accused admitted their involvement in an armed robbery in recorded interviews with the police on their arrest. While I understand that defence counsel perceived a weakness in the Crown case in so far as the ballistic evidence was concerned, which at one time left in doubt whether the Crown could prove that the shotgun was a dangerous weapon as defined, and that this was the reason the plea was withheld, consistent with the views of Howie J in R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510 I am not satisfied that this has any relevance in determining the utilitarian value in the plea or moderating the fact that the plea was late. The Crown submits that in these circumstances the discount for the plea should be at the bottom of the range. I propose to allow a 5 per cent discount only.

The facts upon which an assessment of the objective criminality of each of the offenders is made including their records of interview

18 For sentencing purposes I have had the advantage of the Crown having presented all the available evidence in proof of the offence of armed robbery with a dangerous weapon in the course of the joint trial of each of the offenders. 19 In assessing the objective criminality, I place particular reliance on the CCTV footage, together with the evidence of the bar manager and the patrons as evidencing the circumstances in which the robbery was committed and the events thereafter. In addition, each of the offenders participated in an electronically recorded interview upon their arrest which were tendered at trial. SL and WS both made full, frank and detailed admissions of their involvement in the armed robbery and their movements before and after the robbery. RT gave a very short interview wherein he simply admitted that he was involved in the robbery after which he exercised his right to refuse to answer any further questions. I note that none of the offenders admitted to either stabbing the deceased or having witnessed a stabbing by either one of their co-offenders, or at the hand of any other person. I will refer to the content of the records of interview when I come to consider the individual cases of each of the three offenders. The significance of the guideline judgment 20 The features of the offence for which each of the offenders is to be sentenced are not dissimilar from the typical case identified as the subject of the guideline judgment of this court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 380. This is so despite the fact that the offence with which Henry was concerned was robbery with an offensive weapon contrary to s 97(1) of the Crimes Act, which provides for a maximum penalty of imprisonment for 20 years, whereas the offence with which I am concerned is aggravated by reason of the weapon being a dangerous weapon and, as I have noted, provides for a maximum penalty of imprisonment for 25 years. 21 In Henry the Court identified a category of robbery under s 97 of the Crimes Act which was sufficiently common for the purposes of determining a guideline. The typical robbery case identified by the Court contained the following seven elements: (i) Young offender with little or no criminal history. (ii) Weapon like a knife, capable of killing or inflicting serious injury. (iii) Limited degree of planning. (iv) Limited, if any, actual violence but a real threat thereof. (v) Victim in a vulnerable position, such as a shopkeeper or taxi driver. (vi) Small amount taken. (vii) Plea of guilty, the significance of which is limited by a strong Crown case.

22 The Court also emphasised that it did not propose to fix a starting point for a sentence in a case which contained these elements, rather, it proposed "a narrow sentencing range" of between a full-time term of four and five years within which the court would expect sentences in such cases to fall. The Court recognized that the seven characteristics do not represent the full range of factors relevant to the sentencing exercise, and that some factors have an inherent variability depending upon the facts in any given case. It is also clear that the sentencing range of between four to five years is only a starting point, since aggravating and mitigating factors may justify a sentence falling below or above the range. Other factors, such as the age of the offender, the extent of the offender's criminal record, positive steps taken towards rehabilitation, and any abuse of conditional liberty in the past, will also have an effect on the sentence. To varying degrees, each of these factors has a bearing on the individual sentences that are to be imposed in this case. 23 The Court in Henry also identified a number of circumstances which are particular to the offence of armed robbery, including: (i) The nature of the weapon. (ii) The vulnerability of the victim. (iii) The position on a scale of impulsiveness/planning. (iv) The intensity of threat, or actual use, of force. (v) The amount taken. (vi) The effect on the victims.

24 For sentencing purposes appropriate weight has to be given to the fact that the shotgun, a weapon that otherwise met the statutory definition of a dangerous weapon, was defective in a range of respects rendering it incapable of firing a projectile. On any view, it was substantially less dangerous than the weapon contemplated in Henry, namely a "weapon like a knife, capable of killing or inflicting serious injury". While the shotgun undoubtedly inspired fear in those patrons who had it pointed at them, and despite the fact that SL handled the gun in an overtly aggressive manner such as to give the pretence that he was preparing to fire it if necessary, the shotgun was not in fact dangerous given its condition at that time. In this respect, at least, the objective seriousness of the offence for which the offenders are to be sentenced is appreciably less serious than one contemplated by reference to the guideline judgment. That is not to suggest that because the gun was defective the primary offence was trivial. It was a serious breach of the law on any view. 25 Another feature that distinguishes the conduct of each of the three offenders from offending of a more serious kind is the fact that none of the hotel patrons were seriously harmed. The fact that the offenders each claim to have had no intention of harming anyone, and that the weapons were only ever intended to subdue the patrons so as to more easily rob them and the hotel, is not however to the point. There remained a real risk of serious injury to the patrons in the course of the robbery from the knife and meat cleaver alone. Although WS and RT are not charged with being individually armed (whether on indictment or on the Form 1) and will not be sentenced as such, I propose to take into account the fact that they were armed with a knife and meat cleaver as part of the context and circumstances in which they committed the offence charged and the offences I am asked to take into account on the Form 1. It cannot be overlooked that it was the knife used in the robbery that ultimately caused the death of the deceased. Having said that I note the Crown's concession that this is a matter that cannot be taken into account on sentence in proper recognition of the principle in R v De Simoni (1981) 147 CLR 383. 26 I am satisfied that the nature of the weapons used and the force that was both threatened and applied in combination, serve to position the level of criminality above mid range. In addition, there is no view of the facts that would justify a finding that the offence was committed on impulse. To the contrary, I am satisfied that the robbery was clearly well planned with careful thought given to how it might be successfully executed. I am satisfied that there was some degree of pre-planning on the part of each of the three offenders in the sense that they prepared themselves with weapons and disguises (even if makeshift on the part of WS) before leaving in the car to make their way to the hotel, and that they assumed, or were assigned, the roles they were to each perform. While it would appear that at least SL knew the hotel which it was intended they rob, and that he must have had some degree of familiarity with the surrounding streets in order to plan for their escape, it appears that the offenders only settled on the plan on the night of the robbery.

27 Despite the fact that I regard the objective facts as reflecting offending of considerable seriousness, I propose to adopt the guideline judgment as a starting point, making necessary adjustments to reflect the circumstances of the individual offenders. Consistent with R v SDM [2001] NSWCCA 158; 51 NSWLR 530 the guideline is applicable even in the case of WS and RT who were children at the time of the robbery. The extent to which their age attracts any particular leniency in the calculation of sentence is a matter to which specific reference will be made when I come to consider their cases individually.

28 Despite the fact that the three offenders performed different roles in the course of the robbery, and despite the fact that SL on his own admission assumed the role of leader and carried the shotgun, I do not consider that it is appropriate to differentiate between the roles they each played in what was on any view a joint criminal enterprise. As a matter of principle, since each were involved together, they should each bear equal responsibility for the commission of the offence since the objective criminality involved in the offending is the same: see R v Hoschke [2001] NSWCCA 317 at [18]-[19]; R v McIlwraith [2005] NSWCCA 137 at [17] and R v Dukino; R v Moshref [2003] NSWCCA 379 at [27]-[28]. In this case, it is plain from the CCTV footage that the three offenders acted as members of a coordinated group and that they not only wielded their own weapons but were aware that the shotgun would be used, and that it was in fact used by SL, in a threatening manner.

29 I turn now to consider the case of each of the three offenders individually.

30 The following evidence was tendered by the Crown on sentence: A1 Criminal history; A2 Custody record; A3 Form 1; A4 Pre-sentence report dated 6 June 2008; and A5 Drug and Alcohol Report from the Department of Corrective Services dated May 2008 and supplementary report dated 27 May 2008. 31 The offender tendered the following evidence: 1 Report from Anita Duffy, Duffy Robilliard Psychologists, dated 30 May 2008; 2 Character reference from Meleseini Sulaki, dated 6 June 2008; 3 Character reference from Pastor Sione Lolohea, dated 6 June 2008; and 4 Credit certificate from Emmaus Correspondence School. 32 SL voluntarily presented himself to police on 6 July 2006. That is to his credit as is the fact that he gave a detailed and forthright account to police demonstrating a preparedness to accept responsibility for the robbery.

33 SL stated the following in his record of interview: "Q. Is there anything you can tell us about the armed robbery at the White Horse Hotel on Friday the 9th of June, 2006? A. Yeah. Q. What can you tell us about that? A. …we ran in to the hotel, I was the leader , I was holding the shotgun and … I told everyone to get down while one of the boys went to get the money and … I was telling people to [sic] their wallets and shit and then I was left in the hotel, I think the boys ran out in front of me… and then … I ran out and I think the owner of the pub took the gun off me and then … I ran around the corner ... "(emphasis added) 34 SL also made admissions regarding the extent of planning and organisation undertaken before the commission of the offence. He said that before going to the hotel he was drinking alcohol with other friends including RT and WS, at an apartment in Punchbowl. He said that it was then that he decided to recruit the other male offenders for the purposes of the robbery: "Q. When did you decide on that night that you were going to do a robbery at the White Horse Hotel? A. Um, just that night. Q. Just that night. And whose idea was it? A. Mine. Q. O.K. Did you just happen to be with the boys there at the time when you decided and they decided to join you or did you go and find those particular boys to do the job with you? A. Um, I went and found them. Q. Yeah. So did you have it in your head how many blokes that you wanted to do the job with? A. Yeah." 35 Later that night he recruited the female offender to whom I have already referred as the driver of the getaway car. He stated in his record of interview that he approached her during the course of the night whilst she was visiting a friend who lived in the same apartment block where he and the other male offenders were drinking. He said that he went to her friend's unit with the shotgun concealed in a white bag and asked her whether she would borrow and drive her friend's car as the getaway car. He said that she agreed and that the two of them then went downstairs to the carpark where the other male offenders were waiting inside the car. 36 This account differs from the facts upon which it was agreed I should proceed to sentence the female offender. I accepted in her case that she only became complicit in the joint criminal enterprise once inside the car and en route to the hotel when she overheard the other male offenders talking. I also accepted in her case, consistent with her plea to a charge of robbery in company, that she was not aware of the fact that the offenders were armed until after the robbery. Based upon the admissions that SL made in his record of interview, I propose to sentence him on the basis that he recruited the female offender as the driver of the getaway car at a much earlier stage of the night than what I accepted was established by the facts in her sentence proceedings. That said, there is nothing to suggest that this involved him applying any pressure or coercion of any kind. Each of the other offenders were willing, indeed it would seem eager, participants. Although SL assumed a leadership role, in fact that consisted of him simply advising the other male offenders of what their respective roles would be and, on his own admission, providing each of them with their weapons. In his record of interview he described his role in the following terms: "I just told the boys the positions… I just told Frank to get their money from the till and the safe…and… the rest were crowd control".

He said that he gave RT and WS knives and that he gave the fourth offender, who he described as the "money man", a white bag to collect the money. (I note that this is in conflict with WS who says he assumed responsibility for obtaining the knife and meat cleaver. This is not, of course, evidence admissible in the sentence proceedings of SL.) When arriving at the hotel he told the female offender where to park the car and that she was to wait for them to return. Although on one view SL's conduct as initiator and notional leader is more egregious than the others since I am satisfied that there should be no differentiation in the roles they actually played in the robbery as executed, I do not propose to impose a heavier sentence upon him for that reason. The material difference in sentencing terms between his sentence and that of WS and RT is as a result of the different subjective case he advances, the fact that his criminal record is a matter of aggravation and the fact that he was older, although in my view for reasons which will become obvious, still relatively immature.

37 Although SL's criminal record is not of inordinate length, it nevertheless reveals repeated breaches of the law and an apparent disregard of the leniency that has been extended to him in the past. 38 His record commences with an offence of robbery in company when he was 16 years of age for which he received a two year supervised good behaviour bond pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act. Departmental records indicate that his response to supervision was unsatisfactory due to a failure to maintain contact with the supervising service and to follow directions in regard to his drug use. On 28 January 2005, he was prosecuted for a breach of the good behaviour bond but was subsequently released subject to an unsupervised 10-month good behaviour bond. Thereafter it would appear he was convicted in his absence of various offences involving damage to property and assaulting a police officer in the execution of his duty. He was released under a further 12-month good behaviour bond however, when he failed to comply with directions, action was taken for breach. On 31 January 2006, he failed to appear at court in relation to the breach and a warrant for his arrest issued. That warrant was not executed until his arrest in respect of this matter in July 2006. On 24 July 2006, three weeks after he was detained in custody, he was sentenced to a 6-month fixed jail term effective from that date. That term expired on 6 January 2007. Accordingly, SL has been in custody in respect of the current matter only from 6 January 2007 - a period of 17 months and 22 days. Accordingly, the sentence for this offence will commence from that date. Although it is not clear from the materials, it would appear that the fixed term was imposed because SL was otherwise in custody with no prospect in the short term of being released on parole. The Crown conceded that this is a matter which I am entitled to have regard to in considering whether special circumstances should be found and the extent to which the statutory ratio is disturbed.

39 Due weight must also be given to the fact that SL committed this offence while subject to a good behaviour bond. Despite the fact that it appears, from the sentences imposed, that the previous offending was not in the same category of seriousness as that for which he is to be sentenced, the fact that he has repeatedly breached good behaviour bonds is nevertheless a circumstance of aggravation (see R v Doridis, NSWCCA, 18 December 1986, unreported and R v Tran [1999] NSWCCA 109).

40 The pre-sentence report and a report prepared by Ms Duffy, psychologist, reflect the fact that SL's criminal offending is a direct result of his involvement in a criminal subculture, which is in turn directly related to a breakdown in his family relationships both before and after his father's death in 2000 when SL was 14 years of age. SL is the eldest of six children. It would appear from the material tendered on sentence, and the evidence of SL's mother, that SL's father was an alcoholic who imposed a strict corporal regime within the family. Mrs L corroborated her son's account of having been beaten regularly by his father for the slightest of transgressions. She was also the victim of violence at her husband's hand. On at least one occasion SL was beaten so badly he was hospitalised. He gave evidence that while he remembers being in hospital he has no memory of what he did to merit the punishment from his father. In Ms Duffy's assessment, the relationship with his father was both traumatic and complex. Although SL is close to his mother, after his father's death he rejected her efforts to control him and the efforts of other members of his extended family. It would seem that dating from this time he would stay away from the family home for weeks at a time in rebellion against the regime he was subjected to whilst his father was alive and in defiance of his mother's wishes after his father's death. I have read and taken into account the testimonial of Meleseini Sulaki, SL's cousin, who is also the eldest child in her family. She reports that she has been witness to SL's self-destructive behaviour and expresses her sadness at the damage he has done to himself, his family and the wider community as a result. 41 Having regard to her evidence, the pre-sentence report and the report from Ms Duffy I am satisfied that it was at a time when SL was very young and vulnerable to loss, trauma and an absence of an adult male mentor that he commenced using drugs and alcohol and mixing in a peer group where violence was an accepted social code and where defiance of the law was commonplace. There is a forged link between that state of affairs and his conduct in committing the armed robbery. In Ms Duffy's assessment his underlying personality is also to be explained as a result of his traumatic and disrupted family life. She reports that his self-perception is stymied by feelings of worthlessness, inadequacy and fear. As a consequence he has learnt to expect criticism, which in turn results in resentment and outward displays of anger and conduct in defiance of social rules and constraints. On the other hand, Ms Duffy considers that he has intellectual capacities to benefit from counselling directed to deal with what she regards as the residual effect of post-traumatic symptoms in relation to the brutality he suffered at his father's hand.

42 The trauma in his life as a young teenager was also, not surprisingly, commensurate with a crucial break in his education. After his father's death SL was sent to Tonga to stay with his relatives to give his mother some respite. Upon his return he found it difficult to readjust to family life and to resume his schooling. It would appear that he was suspended from school soon thereafter for fighting and for his membership in a gang. He has not resumed his education in the community since that time. Although he claims to have held several labouring positions for short periods, it is also clear that this was interspersed with lengthy periods of unemployment. He was, at the time of his arrest, supplementing his Newstart Allowance with casual work with his brother mowing lawns and lopping trees.

43 SL reports that he was on a "24 hour binge on ice and alcohol" the day before the robbery. It was in that state he led others into committing the offence for which he and they stand to be sentenced. He reports that the decision to rob the hotel was a consequence of coming down from the effects of ice which he tried to ameliorate by consuming a bottle of whisky over a four hour period. He admits that the robbery was in order to obtain money for more drugs and/or alcohol.

44 His efforts in the past to obtain treatment for his drug problem have been short-lived and not productive of abstinence for any extended period. By contrast, whilst in custody, he has been proactive in seeking treatment. On his own initiative he was placed on a methadone program in May 2007 when he used heroin as a means of coping with what he then feared would, or might well be, en extended period in custody since he was facing a murder charge. He remained subject to that program until May 2008, when he voluntarily removed himself with a determination to be drug-free, without a synthetic substitute, in preparation for his release. This was with the encouragement of Ms Danylanko, the Drug and Alcohol officer. I also note in her report that SL has expressed a desire to participate in a live-in rehabilitation program upon his release from custody and with his voluntary withdrawal from the methadone program, and with a demonstrated ability to remain drug-free in the meantime, he may well be eligible for acceptance within a therapeutic unit in the community in the future. Ms Duffy advises that a treatment plan for SL should entail comprehensive drug and alcohol rehabilitation both within the prison system and upon release. She recommends the intensive program at Ngara Nura at Long Bay jail prior to release. She also recommends that he undertake drug and alcohol relapse prevention programs and other counselling whilst in custody. I commend her views to the Probation and Parole Service and endorse them.

45 I also note Ms Danylanko's concern that a proven commitment to remaining abstinent from drugs can only be successfully monitored if SL subjects himself to the discipline and authority of those who administer the live-in programs and provide counselling in the custodial environment. In his evidence before me SL acknowledged and accepted not only that he would be obliged to submit to the intervention and the supervision of the Probation and Parole Service upon his releases to parole, but, in particular, to be compliant with strategies designed to ensure against any relapse into drug and alcohol use or antisocial behaviour. To the extent that he remains resistant to the authority placed upon him within the prison system he has only a guarded prospect of being able to successfully participate in a program within the community. It is in that connection that I note that since entering custody he has incurred 11 documented breaches of discipline and that he has been described in the management file as being disruptive and showing little respect for staff. On the other hand, I also note that he has received little disciplinary action due to his willingness to apologise for his actions.

46 In spite of some misgivings, I accept that it would appear that SL has a growing insight into the causal connection between drug and alcohol abuse, an itinerant and unfocused lifestyle and the criminal offending that has resulted in him being sentenced as an adult for very serious offending. It would also appear that he has progressively taken the opportunity over the last two years to reflect upon his actions and to formulate new goals to the point where I have some confidence that he can make a new start upon his release. Until his arrest he was resistant to seeing his drug and alcohol use as anything other than a dimension to the hedonistic lifestyle he was apparently enjoying with reckless abandon. Although his prospects for rehabilitation must be somewhat guarded, I am prepared to accept that he is genuinely committed to maintaining his resolve to conduct himself appropriately for the duration of his sentence in preparation for his release into the wider community. I acknowledge the courage that it took for SL to give evidence before me since I understand from other evidence that he is hesitant in speaking openly about matters of an emotional nature. However having heard from him and making my own assessment of his commitment to change, I regard his prognosis as positive and, that to a very real extent and despite the fact that he was 20 at the time of the offence, he is at the crossroads between a life of continued criminality and a life within the law (see R v Tran [1999] NSWCCA 109 per Wood CJ at CL at [9]).

47 I encourage SL to maintain the drug and alcohol counselling that he is offered within the prison system with the view to maximising his prospects for continued abstinence whilst at his liberty in the community. I also encourage him to continue to see the importance of his family and community of the church as a source of support for the adjustments he will have to make upon his release.

48 I am also satisfied, having regard to the fact that the period on remand was lengthy, and that he served a fixed term for breach of the bond as a result, together with the necessity that he have an extended period subject to the supervision of the Probation and Parole Service, that special circumstances exist justifying a departure from the statutory ratio that would otherwise obtain pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The sentence of WS

49 The following evidence was tendered by the Crown on sentence: C1 Criminal history C2 Form 1 C3 Report from NSW Department of Juvenile Justice dated 4 June 2008. 50 The offender tendered the following evidence: 1 Report from Dr Christopher J Lennings, dated 30 May 2008 2 Six references from Seventh Day Adventist Church 3 Bundle of reports from Girrakool Education and Training Unit 4 Bundle of certificates 5 Letter from Mrs Jenny Gibbons, Mountain View Adventist College, dated 4 June 2008. Involvement in the offence 51 This offender also participated in a lengthy record of interview with police on his arrest on 10 June 2006 in which he admitted his role in the robbery. 52 In the interview, and in the course of the more recent interviews with the officer from the Department of Juvenile Justice and Doctor Lennings, WS has repeatedly provided what I am satisfied is a full and frank account of his involvement in the robbery. He has neither sought to avoid responsibility for his behaviour nor minimised the effect that this has had on others, even if he lacked the insight on the night to appreciate the consequences of his actions. 53 It would appear that on the day of the offence, a Friday, he went to school then sought his aunt's permission to visit friends to watch a football match on the television that evening. In truth he met up with his co-offenders at SL's brother's residence at Punchbowl with the intention of consuming alcohol but without any specific plan as to how the night would unfold. It was during the course of the evening, although at a time when he was only slightly affected by alcohol, that he agreed to participate in the proposed robbery. He admitted to being motivated by money and "so I could look good in front of my mates and get a big name".

54 He told the departmental officer that he obtained the knife (that was later used by his co-offender RT) and the meat cleaver and put them in the car before leaving the flat at Punchbowl. He said that he knew where they were and that no one told him to take them. He said he put them in the car with the intention they would be used in the course of the robbery. He confirmed this account under cross-examination from the Crown prosecutor on sentence. He also frankly admitted under cross-examination that he was aware that there was a shotgun that was to be used in the robbery although he didn't know whether or not the gun was in working condition.

55 WS is the eldest of three children. His parents migrated to Australia independently of each other over 20 years ago and have since made their home in this country. He has a brother who is currently aged 15 and a sister who is aged 14, each of whom reside with his parents.

56 It would appear from the information provided in the report from the Department of Juvenile Justice, and a report from Dr Christopher Lennings, psychologist, together with testimonials from both the pastor of the Seventh Day Adventist Church at Strathfield and various church elders, that he was brought up in a loving and committed family who regularly participate in the fellowship of the church. WS's family also enjoy the close support of a large network of maternal extended family members who live close to the family home and who share reciprocal visits on a regular basis. It is also apparent that he is a much-favoured grandson of his maternal grandparents.

57 According to his parents, up until 12 months prior to the commission of the offence, WS was responsive to parental boundaries and fulfilled their expectations that he commit himself to his schooling with a view to completing years 11 and 12 at the Strathfield Adventist College. In that same time frame however he reported an increasing inability to cope with the workload expected of him from the school authorities and an increasing inability to cope with parental pressure to continue with his studies. He sought his parents' permission to leave school and take up an apprenticeship as a carpenter, which they refused. I am satisfied that there is a causal connection between his poor performance academically in the twelve months prior to the offence and his developing abuse of alcohol, which was in turn causally connected with truancy and his association with a new peer group including his co-offenders.

58 A month prior to the offending, WS was given permission to leave Strathfield Adventist College and look for work, however this permission was then countermanded, and he was sent to the Mountain View Adventist College at Doonside. In order to ease the burden of travel he took up residence with a maternal aunt at Berala. It was whilst he was a student at the Mountain View Adventist College in Year 12, and a guest in his aunt's home, that he committed the offence for which he stands to be sentenced. I have been provided with a report from the College although it was of little assistance given that he was an enrolled student for only a short period of time before he committed the robbery. 59 Within a month of being in custody WS enrolled at Girrakool Education and Training Unit. Since being in custody he has been actively involved in a variety of school programs, including a General Education course to improve his literacy and numeracy skills and a Furnishings Preliminary Higher School Certificate course. The various units comprising that course are oriented toward the trade qualification he wishes to pursue upon his release. It is clear from the materials tendered on sentence, and WS's evidence, that whilst he is a competent student in general academe, his preference is to refine his skills as a carpenter by taking up as course of study at a TAFE College with a view to obtaining work in the building trade.

60 As I have noted, WS has been in detention at the Baxter Juvenile Detention Centre since his arrest. It would appear that whilst he experienced initial problems adjusting to custody, since then he has consistently displayed a positive attitude towards his custodial situation and to those who have responsibility for him as custodians. He is said to respond well to instructions and directions and to mix well with other detainees. He actively participates in the centre's recreational sports and music programs and has consistently performed well in that regard.

61 Ms Hass, the acting Unit Coordinator at the Detention Centre, described WS as a quiet young man who is a model student and detainee. She does note however that "it's like he's here but not here". Doctor Lennings performed both a psychological assessment and psychometric assessment with a view to providing some insights into why a young man with no previous criminal record would become involved in offending of this kind, and to predict the likelihood of the re-presentation of delinquent behaviour or other social maladjustment upon his return to the community. Doctor Lennings reported that despite the fact that WS is a somewhat inarticulate person with poor communication skills, he has a gathering insight into the triggers to his offending. It would also appear that whilst in custody WS has been proactive in leading other detainees of Pacific Islander origin by example in his active participation in the centre's recreational and music programs. I am urged to take this into account in his favour as demonstrating self-awareness in the importance of maintaining sound social conduct and behaviour while in detention as a reflection of his determination to conduct himself appropriately in the wider community. 62 I am satisfied that at the time of the robbery, and it would appear in preparation for it, he had not given any thought to the potential consequences of his actions and it is only in hindsight that he appreciates the potentially serious consequences of participating in a robbery with a dangerous weapon while in the company of others who were also armed. In his evidence before me he has demonstrated an appreciation of the shock and fear that the patrons of the hotel must have suffered, when he ran into the bar armed with a meat cleaver in the company of his co-offenders who were also armed. He also reported empathy for the pain and suffering that was occasioned to the deceased's widow and their children. I accept this as a genuine expression of remorse. 63 Whilst I am prepared to find that WS has also gained a renewed respect and regard for his family, the question is whether he will be able to maintain that line of focus without being deflected by the temptation to drink to excess or to otherwise misconduct himself when at his liberty. It is as much to WS's credit as it is to his family's credit that their relationship has survived two years of his being incarcerated. I note that WS has two younger siblings who he tells me he is concerned to mentor in such a way as to ensure that they do not become involved with the wrong peer group or fall prey to peer group pressures in the way that he did.

64 He has not only the support of his family, including their willingness to have him resume his place in the family home, but he also has the support of his church. I have testimonials from Pastor Bavari of the Seventh Day Adventist Church and Mr Lenati, a senior church elder of that church. Both express unqualified surprise that WS offended in the way he has. He was remembered by Mr Lenati as: "a quiet attentive lad who was cooperative and polite. He was an active participant in our Pathfinder and youth programs and very much involved in prayer meetings, bible studies, sport and social activities which contributed towards his virtual social and physical wellbeing." 65 Mr Lenati considers that WS has repented his part in the robbery and has a great deal to offer the church community and society at large upon his release. Mr Lenati is also willing to personally assist in his rehabilitation. 66 Pastor Bavari was particularly shocked and disappointed at WS's conduct since he set up various meetings with WS in an effort to try to divert him from the misconduct which was beginning to manifest itself in the 12 months prior to his arrest. It would appear that he visited WS during his lunch hour at the College at Doonside and also endeavoured to facilitate a meeting with WS and his parents with a view to discussing matters that were obviously at issue within the family. He says: "…two weeks later he was in prison: a life of youth and innocence lost forever. As a father of a teenage boy I saw firsthand the spell-like influence his peers had on him. It still haunts my ministry and I'm humbled by the experience." 67 Again the question presents as to whether WS is capable of re-establishing the links to the church to assist him to observe the law and as an expression of respect for those who have supported him. 68 I accept that the trajectory of antisocial behaviour that he was committed to for the 12 months prior to the offence appears to have been uncharacteristic of his behaviour or personality overall. It is perfectly clear that his disregard of the expectations of his family and their support for him has been triggered by alcohol use and antisocial peer associates. In his evidence before me WS acknowledged that alcohol was one of the primary triggers for his failure to apply himself to his studies which in turn led to him mixing with young men, most of whom were older than he. He identified the need for money as another trigger to his becoming involved in the robbery. While he accepts the reality that he will be living with his family until he is completes his trade course and finds work in the building industry, and that for a time at least he will be financially dependent on them, I accept that he is committed to becoming self-reliant and that in the meantime he will make a positive contribution to family life. 69 I am encouraged by the fact that WS also went into the witness box to enable me to gain an appreciation of his change in attitude. 70 In combination, I am of the view that WS's subjective circumstances should be given weight in the fixing of sentence. In particular, I take into account the fact that this offence is his first encounter with the criminal law, that he has been detained for two years on remand and, as a consequence, he has irretrievably lost two years of his adolescence and the freedom and privileges that that entails. I am satisfied that there is every indication that it has served as a salutary lesson he will reflect upon for the rest of his life. I consider that he has gained valuable insights from what he has been exposed to as a result of his offending and has grown in maturity as a result. Significance of his age 71 While I acknowledge that WS turned 17 less than a month prior to committing the offence, given the objective seriousness of his offending, inclusive of his willing and active participation in the robbery, the degree of leniency that might otherwise be extended to him as a result of his youth is diminished. 72 In R v Mastronardi [2000] NSWCCA 12; 111 A Crim R 306 Sully J at [20] said:- "…[the] deliberate participation in an armed robbery is, in the sense discussed by the relevant authorities, an adult crime even when committed by comparatively young people. In my opinion, it is timely to make plain, yet again, that youth - whether it is real, or merely comparative, or defined with a generous elasticity - is not a cloak of convenience behind which, relevantly, those who deliberately engage in armed robbery can shelter from the just consequences of their conduct."

73 In R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 Spigelman CJ observed at [74] that there are exceptions to the general principle with respect to armed robberies committed by youthful offenders: "Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender."

74 Having said that, I do take into account the importance of rehabilitation in the sentencing of young offenders both for the individual offender and for the protection of the community. In WS's case I consider that he has demonstrated a commitment and willingness to continue along that path.

75 It is vital, of course, that the weight of subjective matters not overwhelm the sentencing discretion thereby diminishing the importance of general deterrence (and to a lesser extent in this case) specific deterrence, or inhibit the role that the passing of sentence plays in reflecting the communities justifiable abhorrence for offending of this kind. Application of the Children (Criminal Proceedings) Act 1987 76 The offence for which WS stands to be sentenced is a serious children's indictable offence as defined by s 3(1) of the Children (Criminal Proceedings) Act. As a result, pursuant to s 17, it is necessary for him to be dealt with "according to law". In this way the broad sentencing options otherwise available in Part 3 of the Act are not available in this sentencing exercise. That does not however exclude the application of principles stated in s 6 of the Act. They are as follows: " 6 Principles relating to the exercise of criminal jurisdiction A court, in exercising criminal jurisdiction with respect to children, shall have 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."

77 As Giles J noted in R v SDM at 538, these principles are to be applied in light of all relevant circumstances including, in this case, the seriousness of the crime for which WS is to be sentenced. There is no suggestion that the imposition of a full time custodial sentence can be avoided in all the circumstances. 78 As I have noted, WS is currently 19 years of age. Since he is to be sentenced to imprisonment in respect of a serious children's indictable offence, he is not eligible to serve a sentence of imprisonment as a juvenile unless I am satisfied there are special circumstances justifying his detention as a juvenile offender as provided for in s 19(5). In determining whether there are special circumstances, I am entitled to have regard to the availability of services or programs at the place that he will be detained and any other matter I regard as appropriate. I am satisfied that in order to maintain the continuity of his custody and his continued participation in counselling services available within the juvenile detention centre, it is appropriate that the balance of the non-parole period be served in a juvenile detention centre. 79 I am also satisfied having regard to the fact that the period on remand was lengthy, that this offence is the first occasion in which WS has been sentenced for any criminal conduct and the necessity that he have an extended period subject to the supervision of the Probation and Parole Service, that special circumstances exist justifying a departure from the statutory ratio that would otherwise obtain pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 80 I am informed by the officers of the Department of Juvenile Justice that the Probation and Parole Service can provide WS with group work counselling as well as being in a position to perform random urinalysis, a function which the Department of Juvenile Justice is not mandated to perform. Performing random urinalysis will serve to facilitate intervention, if necessary, to decrease any risk of WS re-offending. I note that in the view of the Department of Juvenile Justice, that supervision by the Probation and Parole Service will focus on the following matters: 1. Community-based supervision and monitoring; 2. Referral to community-based counseling to assist WS to resolve the residual alcohol-related issues; 3. Referral to employment agencies, as well as Job Network agencies, to assist WS to gain secure employment on his release and to be there to assist him with his community reintegration; and 4. Referral to a TAFE course in order to facilitate WS's access to the labour market. The sentence of RT

81 The following evidence was tendered by the Crown on sentence: B1 Criminal history B2 Form 1 B3 Report from NSW Department of Juvenile Justice dated 5 June 2008. 82 The offender tendered the following evidence: 1 Report from Kathryn Wakely, Duffy Robilliard Psychologists, dated 8 May 2008 2 Report from Judy-Ann Cluff, Walpole School, dated 5 June 2008 3 Two folders of certificates 4 Letter from Rodney Taufa, dated 26 May 2008 5 83rd Annual Report of Canterbury-Bankstown District Junior Rugby League Inc.

RT's involvement 83 RT was interviewed on his arrest on the day after the robbery. Having remained silent for the major part of what was a very brief interview the offender when asked what he did last night offered the following admission: "I was just, oh, no, I was at White Horse, I was there, I did do the armed rob, and that's it".

84 On the night of the offence, RT says that he was in a divided mind as to whether to spend the night in the company of one of his best friends at a Church event or to join with his brother and other friends. He was at that time subject to a 9 pm curfew. He was concerned that if he spent the night with his friend he would be likely to break the curfew and so instead decided to go to his sister's flat at Punchbowl with his brother with a view to being home at the appointed hour. He there met SL and WS. Unfortunately the amount of alcohol the others were consuming, and the amount he ultimately consumed, meant that he was destined to break the curfew in any event. He said that he drank beer and undiluted bourbon which he was endeavouring to conceal from his older brother by drinking large quantities in a short period of time out of his brother's view. He said for this reason he was feeling the effects of alcohol and that it was in that state of mind that he joined with the others, initially to discuss the idea of robbing the hotel. He says that his brother was adamant that he not get involved although another of his co-offenders was of a different view. An argument between RT's brother and the co-offender resulted in his brother reluctantly agreeing that he could join in. By this time RT reports that he felt "pumped and ready to go". He said: "…when they chose me I had no say in anything…I was just lucky to come". He said the role that he was to perform in the robbery was assigned to him.

85 RT reported being scared and nervous prior to entering the hotel and he was concentrating on trying to keep his emotions in control. He said that "when we got out of the car everything happened fast" and that following the robbery and after they returned to the car "we were all panicking". RT reports that while he had the knife when he left the car and entered the hotel he had no intention of using it and certainly didn't intend hurting anybody. He said the knife was in his custody just to "scare people".

Significance of his age 86 While I acknowledge that RT turned 16 within months of committing the offence, given the objective seriousness of his offending, inclusive of his willing and active participation in the robbery, the degree of leniency that might otherwise be extended to him as a result of his youth is diminished. 87 In R v Mastronardi [2000] NSWCCA 12; 111 A Crim R 306 Sully J at [20] said:- "…[the] deliberate participation in an armed robbery is, in the sense discussed by the relevant authorities, an adult crime even when committed by comparatively young people. In my opinion, it is timely to make plain, yet again, that youth - whether it is real, or merely comparative, or defined with a generous elasticity - is not a cloak of convenience behind which, relevantly, those who deliberately engage in armed robbery can shelter from the just consequences of their conduct."

88 In R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 Spigelman CJ observed at [74] that there are exceptions to the general principle with respect to armed robberies committed by youthful offenders: "Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender."

89 Having said that, I do take into account the importance of rehabilitation in the sentencing of young offenders both for the individual offender and for the protection of the community. As with WS, in RT's case I consider that he has also demonstrated a commitment and willingness to continue along that path.

90 It is vital, of course, that the weight of subjective matters not overwhelm the sentencing discretion thereby diminishing the importance of general (and to a lesser extent in this case) specific deterrence, or inhibit the role that the passing of sentence plays in reflecting the communities justifiable abhorrence for offending of this kind.

91 RT was born in New Zealand on 22 April 1990 and is currently 18 years of age. He is the fourth of six children. Although he was born in New Zealand his family is of Tongan origin. His family moved to Australia when he was four years of age. RT was living with his family at the time of his arrest including his older brother, the fourth person originally indicted for murder and armed robbery.

92 It would appear that after RT's father died in 2003 parental control over the family was markedly lessened and, over time, both RT and his older brother became involved with a peer group that were either involved in criminal activities or at the very least antisocial activities. RT was aged 12 when his father died. It would appear RT was very much influenced by his older brother and was included as a junior member of the group at his invitation. RT was even at that time a tall and well-built young person who looked older that his actual age. 93 He played representative football for the Canterbury Bulldogs Football Club from age 14 and was regarded as a player with considerable potential. In this connection I have been provided with affidavit evidence from Mr Larry Hunter and Mr Chris Haddad. Mr Hunter is the President of the Padstow Panthers Rugby League Football Club where his son is a coach. I am given to understand that the Padstow Panthers are part of the Canterbury Bankstown District Junior Rugby League Inc. Mr Haddad is a manager/agent for football players.

94 In Mr Hunter's assessment, RT was a particularly talented footballer and had a very bright future in the game reflected by the awards he had won at representative level. Prior to RT's father's death, Mr Hunter described RT as a "very respectful kid who was well-mannered and would willingly help out around the club especially with the youngest players". He was observed to be a focused and fair player and never a bully. When Mr Hunter observed the change in RT's behaviour after his father's death he endeavoured to address his concern with RT's mother but it would seem she had little influence over him. Mr Hunter was nevertheless shocked when RT was arrested and regarded the behaviour reflected in the charge to which he has pleaded guilty as totally out of character. 95 Mr Hunter is encouraged by the fact that RT has been working hard at his schoolwork while in custody and that he has endeavoured to maintain an optimum level of fitness despite the injury to his knee and the slow process of rehabilitation while in detention. He is prepared to take an active role and interest in RT upon his release from custody. This is encouraging, particularly given that, on one view, the absence of a responsible male mentor would seem to explain his capitulation in criminal conduct as a young teenager. 96 Despite the break in his playing career, in Mr Haddad's view RT continues to have a bright future in rugby league. Of his own volition he has spoken to football clubs about the prospect of RT joining and playing for them when he is released from custody and has received positive response in that regard. Mr Haddad also confirms that there are a number of clubs that are interested in having RT play for them when he is released. This is conditional upon RT's ability to stay out of trouble and to commit himself to the training and discipline demanded of a professional player. Mr Haddad also expresses the view that the behaviour for which RT is to be sentenced is entirely out of character. 97 Two months prior to his arrest his football career was interrupted as a result of the knee injury to which I have referred. This, together with the negative influence of his older brother, appears to have been a precipitating event in him becoming involved in the robbery. It was also whilst associating with an older group of boys that he was charged with his first criminal offence, namely possession of a prohibited drug. He was dealt with in the Children's Court and was placed on a good behaviour bond which was current at the time he committed the robbery. This is a matter in aggravation of sentence. I note that he has not been prosecuted for breach of the bond for what might be thought to be understandable reasons given the serious charges that resulted in him being bail refused since June 2006.

98 It would also appear that RT's first use of alcohol was in the company of his older brother and his friends although he does not appear to drink to excess. He claims to know when to stop having passed out once from drinking too much alcohol and does not wish to repeat the experience. Although the only offence in his criminal record concerns possession of a prohibited drug, it would appear that he is not a drug user but had acquired the drug for a friend. In short, he does not appear to have a drug and alcohol problem.

99 I accept that on reflection RT is ashamed of having been impressed by being asked to join in the robbery and by the bravado that was called for. I also accept that he is ashamed of having been an inmate in a detention centre for the last two years when he was well regarded in the community as a talented footballer. Even at this stage, however, as Kathryn Wakeley, psychologist, observes, RT's emotional maturity remains behind his relative age and is not commensurate with his appearance. As I have already observed, he is a young man of considerable height and physical stature and I suspect that it was for these reasons that he was both included as a member of an older peer group from which he gained a misplaced sense of self-importance. I accept that developmentally RT was at a vulnerable age when his father died and that the previously controlled parental environment dissipated at that time. I can only hope that his older brother is suitably ashamed of the fact that rather than assisting his younger brother to set boundaries in his life, and to learn to exercise the control and restraint that is called for in late adolescence, he led him astray.

100 Despite having what Ms Wakeley regards as some insight into his offending, it is the view of Ms Pick, the Juvenile Justice Officer, and Mr Mariner, the Assistant Manager of the Petersham office of the NSW Department of Juvenile Justice, that RT continues to have a very limited appreciation of the manifold consequences of violent behaviour in the community. This is of concern since it is perfectly clear that RT's conduct on the night of the robbery reflected little regard for those who were the victims of the threat he personally posed as a masked robber brandishing a large knife, and little appreciation of the potential risk to himself by having participated in an armed robbery in the company of others. It was the view of Ms Pick and Mr Mariner that his peer associations remain an area of concern. Ms Pick and Mr Mariner express the hope that a violent offender program assessment would have been completed in preparation for the sentence proceeding. However, time did not permit that to be done. It was envisaged that an assessment of that kind would enable RT to gain deeper insight into his offending and would enable the Department to assist and guide him in further intervention strategies. It was nevertheless the view of both Ms Pick and Mr Mariner that the absence of such an assessment may be able to be accommodated in the structure of the sentence to be imposed. 101 Without objection by the Crown, I have received a letter from RT where he openly acknowledges responsibility for his actions and extends apologies to those who were most affected by the robbery including the family of the deceased. He says "never again do I want to hurt anyone else". Without disregarding the views of Ms Pick and Mr Mariner, I accept that that is a genuine statement of his remorse and his future intentions. The question remains however whether upon release RT can maintain his resolve to conduct himself in strict compliance with the law.

102 As I noted earlier, whilst RT has no criminal record, the report from the Department of Juvenile Justice makes it clear that RT was the subject of a 12-month good behaviour bond with departmental supervision which was current at the time of the offending. Departmental records also indicate that during the currency of the bond RT did not maintain regular contact with the Department, was dismissive of efforts to supervise him and unwilling at that time to address his offending behaviour. In light of his past contact with supervisory services, I expressed concern in the course of the sentence proceeding as to how RT might be successfully integrated into the community upon his release in circumstances where I am minded to structure a sentence which involves a lengthy period of supervision.

103 Having reviewed all the materials, and with RT being two years older, I consider that he is able to cooperate and comply with the directions of a relevant supervisory service. In coming to that view, I am encouraged by the considerable effort that RT has committed to utilising his time in custody to the resumption of his academic studies (such that he has now completed year 9 and earned his year 10 School Certificate as well as having undertaken a variety of trade courses with a view to his gaining employment upon release). The Assistant Principal reports that he is a good student who has attained some fine results. She describes him as helpful, enthusiastic, cooperative and well behaved. She strongly recommends that he continue with his studies. 104 In a supplementary report produced by the Department of Juvenile Justice I am informed that it funds a post-release support program through Barnardo's, a non-government organisation that assists young people released from custody to reintegrate into the community. I am also informed that the administrators of that program have offered RT secure accommodation and access to employment/training/education options and to facilitate any such program or services as I might direct in the sentencing order that is ultimately made. Application of the Children (Criminal Proceedings) Act 1987 105 The offence for which RT stands to be sentenced is a serious children's indictable offence as defined by s 3(1) of the Children (Criminal Proceedings) Act. As a result, pursuant to s 17, it is necessary for him to be dealt with "according to law". In this way the broad sentencing options otherwise available in Part 3 of the Act are not available in this sentencing exercise. That does not however exclude the application of principles stated in s 6 of the Act. They are as follows: " 6 Principles relating to the exercise of criminal jurisdiction A court, in exercising criminal jurisdiction with respect to children, shall have 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."

106 As Giles J noted in R v SDM at 538, these principles are to be applied in light of all relevant circumstances including, in this case, the seriousness of the crime for which RT is to be sentenced. There is no suggestion that the imposition of a full time custodial sentence can be avoided in all the circumstances. 107 As I have noted, RT is currently 18 years of age. Since he is to be sentenced to imprisonment in respect of a serious children's indictable offence, he is not eligible to serve a sentence of imprisonment as a juvenile unless I am satisfied there are special circumstances justifying his detention as a juvenile offender as provided for in s 19(5). In determining whether there are special circumstances, I am entitled to have regard to the availability of services or programs at the place that he will be detained and any other matter I regard as appropriate. I am satisfied that in order to maintain the continuity of his custody and his continued participation in counselling services available within the juvenile detention centre, it is appropriate that the balance of the non-parole period be served in a juvenile detention centre. 108 I am also satisfied having regard to the fact that the period on remand was lengthy, that this offence is the first occasion in which RT has been sentenced for any criminal conduct and the necessity that he have an extended period subject to the supervision of the Probation and Parole Service, that special circumstances exist justifying a departure from the statutory ratio that would otherwise obtain pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Sentencing order for SL 1. In respect of the offence of robbery with a dangerous weapon I sentence the offender, SL, to a non-parole period of 2 years and 9 months commencing on 6 January 2007 and expiring on 5 October 2009 with a balance of term of 2 years expiring on 5 October 2011.

Sentencing order for WS 1. In respect of the offence of robbery with a dangerous weapon I sentence the offender, WS, to a non-parole period of 2 years and 3 months commencing on 11 June 2006 and expiring on 10 September 2008 with a balance of term of 2 years expiring on 10 September 2010.

2. I direct that the balance of the non-parole period be served in a juvenile detention centre.

3. I direct that a copy of these sentencing remarks be made available to the relevant parole authorities in order that every consideration be given to providing for WS's release from detention at the expiration of the non-parole period. The calculation of sentence, in particular the non-parole period, has been fixed referable to the considerable assistance I have been given by officers of the Department of Juvenile Justice in reports tendered on sentence as to the services available and the extent of intervention called for in supervising WS on conditional liberty.

Sentencing order for RT 1. In respect of the offence of robbery with a dangerous weapon I sentence the offender, RT, to a non-parole period of 2 years and 3 months commencing on 11 June 2006 and expiring on 10 September 2008 with a balance of term of 2 years expiring on 10 September 2010.

2. I direct that the balance of the non-parole period be served in a juvenile detention centre.

3. I direct that a copy of these sentencing remarks be made available to the relevant parole authorities in order that every consideration be given to providing for RT's release from detention at the expiration of the non-parole period. The calculation of sentence, in particular the non-parole period, has been fixed referable to the considerable assistance I have been given by officers of the Department of Juvenile Justice in reports tendered on sentence as to the services available and the extent of intervention called for in supervising RT on conditional liberty.

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