R v SL; R v RT; R v WS

R v SL; R v RT; R v WS - [2008] NSWSC 651 - NSWSC 2008 case summary — Zoe

[15]

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.

[20]

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]

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]

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".

[29]

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.

[31]

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.

[46]

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.

[47]

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."

[51]

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

[62]

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.

[67]

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."

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Cases Cited (14)

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