R v XX, R v ZZ

District Court of NSW|2023-12-13|Before: Spigelman CJ

Solicitors: Greg Willis, Guy Draper, Clair Magni File Number(s): 2022/00372958, 2022/00347156, 2022/00356591, 2022/00350536, 2022/00369033

JUDGMENT

These are the reasons on sentence of two young persons, XX and ZZ. The sentencing hearing occurred on 13 December 2023, and these reasons have been prepared carefully but with some haste to be delivered today, 15 December, so that the uncertainty of result for the offenders and their families does not continue over the court vacation period.
XX was born on 14 May 2006 and ZZ on 26 May 2006. The offending occurred in late 2022 so that each young person was then aged 16.
Both of the offenders are to be dealt with at law in respect of six serious children's indictable offences. Five of those offences are contraventions of section 98 of the Crimes Act and one of them is in contravention of section 33 of the Crimes Act. In addition to that there is in the case of XX five matters to be dealt with by way of the Form 1 procedure and he is also to be dealt with summarily in respect of two offences on a section 166 certificate. In the case of ZZ there are four matters to be dealt with by way of the Form 1 procedure being the same matters being dealt with on the Form 1 in the case of XX but for one take and drive conveyance charge. There is at the end of these reasons a table setting out all of these various charges, and also the maximum sentence for each charge as well as the assessment of objective seriousness of the matters other than for the Form 1 matters. The table also sets out the indicative sentences before and after the discount for the pleas of guilty.

Facts and objective seriousness

In McLaren v R [2012] NSWCCA 284 Justice McCallum stated at [29]: The decision in Muldrock does not, however, derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the "objective seriousness" of the offence perhaps contributes to the misconception. I do not understand the High Court to have suggested in Muldrock that a sentencing judge cannot have regard to an offender's mental state when undertaking that task (as an aspect of his or her instinctive synthesis of all of the factors relevant to sentencing)."
What was being spoken of in Muldrock as objective seriousness based on matters entirely objective and not personal was a reference to that term as found in the provisions of a standard non-parole period in section 54A. It follows on the above reasoning that in assessing objective seriousness as part of the ordinary sentencing process free of a need to consider a standard non-parole period or certainly in a case where there is no standard non-parole period, that matters subjective, at least so far as the state of mental well-being can be considered.
The assessment of objective seriousness of the offending that follows is on what might be called the "section 54A" basis. That section is of no application in this case, however there are two offenders here, and a convenient way of making the assessment is to approach it as a strictly objective exercise, and with the assessment of their "moral culpability" (also sometimes referred to as objective seriousness) being undertaken in consideration of the respective subjective cases of the offenders in line with the instinctive synthesis approach.
Section 98 of the Crimes Act provides as follows: Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to imprisonment for 25 years.
Count 1 is particularised as an offence where there was the infliction of grievous bodily harm. The other four counts under this section are particularised as offences where the victim suffered a wound. One of the points made on behalf of each of the offenders is that in matters of this character a major determinant of objective seriousness is the extent of injury. It is submitted that the extent of the injuries suffered by the various victims is, in the context of a section 98 charge, not great with the result that the offending should be assessed as being low in objective seriousness.
The first offence occurred on 23 October 2022. The victim was aged 49 and had an intellectual disability though it is not established that was known to the offenders. The offenders organised to meet the victim by using the dating app "Grindr". The victim told his neighbour he was going to meet somebody and returned to his unit at 5 PM. Sometime thereafter he was confronted by the offenders. It is accepted by XX that as between him and ZZ it was XX who delivered blows to the victim. XX was in fact filmed by ZZ doing so. The film shows XX punching the victim and calling him a paedophile. XX kicks him in the face. XX stomped on the victim's face. ZZ takes the victim's wallet albeit that it is empty.
The victim suffered fractures of his facial bones including nasal bones, in at least three places, the cheekbones and his right orbit or eye socket and also left orbit. He suffered a broken finger and air in his chest cavity. There was what is described in layman's terms as air in the soft tissues of the face and the base of the skull in the neck as well as bruising around both eyes. The victim was in hospital for three days and then discharged to his parents home as he was too scared to return to his home.
The modus operandi of this count in broad terms is what occurs on each of the following occasions in that there is an initial contact between the offenders and the victim (except for count 6) and a subsequent meeting at which an assault is carried out. In five of those occasions there was a robbery also. A feature of the case argued for by the offenders is the suggestion that the offending is motivated by some kind of vigilante crusade against paedophiles, a matter which, in line with the comments above, is considered in dealing with the offenders' subjective cases. On any view the cases are not really about robbery at all despite five of them being charged under section 98. Rather the modus operandi is to lure the victim to a location where they can be beaten and what is the subject of the robbery is either an afterthought and or of a value of little significance.
There is no suggestion that the offences are not properly charged as offences under section 98; the point really is that conduct such as this has often been seen to be charged as assault occasioning actual bodily harm with or without robbery and which is a matter of a type commonly dealt with in the Children's Court. That the matters are being dealt with in the manner that they are reflects the seriousness of the assaults, for they would be viewed far more seriously in the context of an assault occasioning charge as opposed to a section 98 charge, and because of their repetitive nature.
Turning to the objective seriousness of count 1, for the reasons relied on by both offenders as to the nature of the injury the offending is less than the middle range of seriousness. That said, the injuries are serious, the victim was severely beaten about the head as the broken bones attest. Hence the grievous bodily harm element. In assessing objective seriousness I take into account the fact that albeit unbeknownst to the offenders the victim was suffering from an intellectual disability and was therefore vulnerable, and the offending occurred at his home. Contrary to the submission, I do not draw the inference, based only on the agreed facts, that the contact had been made on the basis of the victim being interested in having sex with a person under the age of 18. The agreed facts are of the victim using Grindr to meet men, not boys under 18.
The video of this showed the conduct of XX to be particularly concerning and serious. It shows him stomping on the head of the victim lying prone on the ground having already been assaulted. His conduct is more objectively serious than ZZ.
Count 1 is the only count charged as grievous bodily harm. The injuries suffered are the most serious of the offences. The section covers a wide range of injury, as borne out by the facts showing the offences charged as "wounding" included relatively minor lacerations, albeit with other physical harm that needs to be taken into consideration. Those other injuries are in some cases similar to the injuries of count 1, but they are not as serious, and the ultimate sentences reflect this.
The second offence under section 98 occurs on 31 October, eight days later at Evans Head. Contact was made on the dating site "daddyhunt". The victim, David King, thought he was talking to an 18 year old. He drove to a beach at 5:30 PM. As he waited in his car the two offenders approached his car and accused him of trying to meet a 14-year-old boy. The victim said the app was for people over 18 and the offenders told him he was in deep trouble and they were calling the police. XX grabbed the keys to the car and both offenders pulled the victim out of the car. It cannot be determined by whom the victim was hit on the back of the head with a glass beer bottle; one of them punched him in the right eye. ZZ grabbed his phone. With blood all over his face the victim ran toward some fishermen who rang 000.
The victim's injuries were bruising of soft tissues of his right eye region and in front of his left ear region, abrasions over his scalp and right elbow and laceration to the skin under his right eye. There was a 1 cm wound.
The offenders took the victim's car with XX driving, and this is the Form 1 offence of being carried in a conveyance taken without consent.
I accept the submission that due to the relatively minor nature of these injuries in the context of the offence that is charged the offending must be below the mid range. It is important however not to forget that this has occurred by luring the victim by false pretences to a certain spot. Further as with count 1 there is nothing expressed in the facts that supports the view that the victim wished to have sex with a child. The agreed fact is the victim thought he was chatting to an 18-year-old. It transpired the victim had child abuse material on his phone but that was not known at the time of the attack and in any event is not mitigatory and if anything aggravates the matter by the added aspect of vigilantism.
The parties again filmed part of the offending which recorded them discussing the need for gloves and to not leave their fingerprints. This shows an awareness of their conduct and some added degree of sophistication but in my view it does not add meaningfully to the seriousness of the matter.
These factors lead me to conclude that the offending, whilst again in the low range, is far from the lowest range of seriousness.
The victim of count 3 was named Brian Mullens. This occurred on 5 November 2022. The offenders were in a group with XX saying he hated paedophiles. One of the group downloaded Grindr and set up a profile, telling the victim they were 15 and the victim said he was okay with that. A meeting place was set and a third offender dealt with in the Children's Court lured the victim from his car down a dark path pretending to be the fictional 15 year old boy. Others including the offenders then descended upon the victim with XX being the offender leading the charge yelling "let's get this cunt let's get him". A group of four including the offenders assaulted Mullens and took his keys. XX then drove the car (Form 1 s154 in respect of XX only) and dashcam footage shows this as well as showing ZZ standing over the victim who was motionless.
The victim suffered fractures of his nasal bones, his right orbit and his sixth and seventh ribs. There is a 2 cm laceration on his cheekbone. There were grazes and skin tears on the back of his head and the left eyebrow. There was bruising on both cheeks and around his skull and of his abdominal wall and left thigh.
The submission as to the nature and extent of injuries is again made which is accepted but at the same time it should be observed that these are injuries consistent with a thorough beating. It cannot be determined just what each of the two offenders did with any particularity but in my view it is more serious than the second count. As already noted this was particularised as a wounding. The facts clearly show XX to be the most enthusiastic participant. I would assess his offending as slightly more serious than ZZ's.
Count 4 is under section 33(1)(a), the offence of wounding with intent to cause grievous bodily harm. Whilst this offence has the same maximum sentence as the section 98 matters the mental element here is an intention to cause grievous bodily harm. On the one hand this again reflects just how serious the offending being dealt with is but at the same time supports a submission being made that the offending in the context of what is actually being charged is towards the lower end of the range of seriousness.
In this instance, which occurred on 6 November 2022, the offenders were with a group of friends and communications again began on Grindr with the victim Matthew Belford. One of the group aged 16 years, CC told the victim she was under 19 to which he replied he did not want anything to do with younger than 18. CC arranged to meet the victim saying "I maybe maybe not be 15" and he replied "also what you mean about 15? Cause girl please don't tell me you're underage". As with the first two counts this again shows the asserted reason d'etre of this conduct as being anti-paedophilia to be somewhat overstated, at least on the strictly objective facts.
In any event about 3:06 AM after another expressed concern by the victim about the young person being under 18 a meeting occurred. Like EE in count 3 Ms CC was the lure; she met him and then disappeared whereupon the others including the offenders emerged from nearby bushes and chased and attacked him. The two offenders and one other each assaulted him. The evidence leaves open the clear inference beyond reasonable doubt that he was hit with a piece of wood by one of them but it cannot be said by whom. There is video of this assault also which the court has seen. The victim managed to get off the ground and run to his car whereupon XX jumped on the bonnet and smashed the windscreen. The victim then got into his car and locked the doors with ZZ continuing smashing the car. That conduct is the section 195 damage property in company Form 1 matter.
The injuries suffered here were of two 5 cm long lacerations to the scalp and further lacerations to the left forearm and left finger. There was partial dislocation of the jaw and various abrasions and soft tissue injuries in various places around the body. These injuries are arguably line with those of count 3 and made notably worse by the jaw injury. Like the other matters though there is no evidence of ongoing sequelae. There is as with the other offending a degree of planning. As already noted this is not impulsive behaviour. The submission was put that the offending seems to occur on weekends when they are sitting around drinking. That may be so, but repeated offending of this type is not impulsive but rather a course of conduct in this case over a period of some three weeks and in my view should not be seen as impulsive in the way that somebody momentarily losing their control and striking out at somebody may be impulsive. There is a very concerning degree of thought and consideration which goes into this offending. I would assess this as below the mid range in respect of each offender.
The fifth count occurs on 12 November 2022. Contact with the victim Mr Proudfoot was again made by Grindr by either the offenders or someone connected with them. They told the victim they were 15 years old and albeit with hesitation he agreed to meet and the next thing that occurred is, in a similar fashion to Mr Nixon, they arrived at the victim's home. They asked the victim to come outside which he did and they accused him of being a paedophile and said they were going to the police and when the victim went back to his unit they followed him in. They demanded his bank details and pushed him onto the lounge. One did a karate kick to Proudfoot and another hit him on the head with a certificate from his wall. His leg was lacerated. They damaged his car by scratching the word "pedo" on it. XX grabbed his laptop and ZZ his wallet and phone. $300 in cash was also taken along with a credit union card.
The injuries are similar to those of count 3, although not as severe, with fractures of the facial bones, the nasal bones and the right orbit and laceration of the right thigh 8 cm deep which was closed with sutures. The victim was in hospital for 13 days. It occurs in a person's home. This too is below the mid range.
The last of the serious children's indictable matters occurs on 12 November 2022 as well. The victim in this case, Mr Rennie, is homeless and lives in his van. He does not identify as homosexual and does not use any dating applications like some of the others. He was camping in Ballina on Canal Road. He was sitting in his van. The offenders with other unidentified young persons approached him accusing him of being on Grindr looking for 15 year old boys which he denied. One of the group threw a glass bottle and hit the victim in the left eye. The victim fought back. Another bottle was thrown hitting the victim in the face. The whole group joined in hitting and kicking the victim.
They tried to take his van unsuccessfully and so smashed his windows which is a further section 195 charge on the Form 1.
The offender stole $200 in cash and a Commonwealth Bank card and other cards.
The injuries suffered were again a fracture to the right orbit, lacerations to the left eyelid of about 1 cm and to the left side of the chin 3 cm and on the right eyebrow 1 cm. The soft tissue injury was bruising around the eyes and to the right chest wall.
In terms of injuries this is one of the less serious of the matters. The attack seems to be totally random and whilst it does not favour the offenders that there is no connection to paedophilia as argued for at the time of the offending, for no submission is made to that effect, it does show the randomness and mindlessness of the conduct. I would assess this as in the low range for both offenders.
In the case of XX there were two further matters, to be dealt with on the summary basis. One was the offence of affray which occurred on 30 October 2022 at Ballina Central. A bystander reported an assault by four young boys on a man. The boys were punching and kicking a man on the ground. XX was seen punching and kicking the man while he was on the ground. The man later walked away with blood on his shirt with difficulty and no report was made. That offence has a maximum sentence of 10 years. This is by the scant description necessarily in the low range. At the same time it is another example of XX's tendency to wanton violence.
The second summary matter is under section 323 of the Crimes Act of doing an act with the intent to influence a witness. It again involves violence, albeit a threat of violence. XX contacted a person he knew was a witness to one of the robbery offences telling her that somebody was "snitching". He told her not to speak to the police and to answer with no comment. He said he would hurt her and another girl if they snitched. He repeatedly said "snitches get stitches".
This in itself is a serious offence striking at the integrity of the justice system. Despite that it must be said the facts here are brief and amount to one phone call and a verbal threat, and it is a low level example of such offending.
The point made by the XX's counsel that these are matters often dealt with in the Children's Court, so possibly by way of some conditional order and possibly without conviction is well-made. Of course, the offences do not occur in isolation, but the point made does put in context the processes by which offending by children other than the serious children's indictable matters are commonly dealt with.
Before turning to the subjective matters of the offenders, two points should be made. Firstly, the s98 offences are of course offences where there is guidance given by the judgment of Henry (1999) 46 NSWLR 346. That guideline is of reduced significance in this case. As was said by Howie J in R v Henry [2007] NSWCCA 90, (and stated in the Sentencing Bench Book at [20-270]) the Henry guideline judgment of 1999 has a reduced role to play in determining a sentence for a s 98 offence even without the standard non-parole provisions, because there is a higher maximum penalty for such offences by reason of the fact that there has been a wounding (or grievous bodily harm): at [34]. If a court imposes a sentence for a s98 offence that is less than that proposed in the armed robbery R v Henry guideline, that fact alone should cause the court to consider whether the sentence is justified, given that s 98 has a higher maximum penalty than s 97(1): at [34]. At [35] Howie J said: I do not see anything inconsistent between the Henry guideline and the standard non-parole period for the s 98 offence. The Henry guideline looks to the total sentence and it is dealing with the normal case for an offence under s 97. Therefore, it is considering an offence in the midrange of seriousness where the maximum penalty is imprisonment for 20 years. The sentence suggested in the guideline, however, is the end result of the application of the relevant s 21A matters to an offence objectively of midrange seriousness. So it takes into account the young age of the offender and the lack of serious record. It also takes into account a late plea. Bearing those matters in mind, it still represents a guide to the sentencing for related offences, such as an offence under s 98 even though that offence carries a standard non-parole period. It is another reference point but one indicating a range of sentences that would not normally be appropriate for a s 98 offence.
R v PB [2008] NSWCCA 109 at [25] is authority that the relevance of the R v Henry guideline is that it states a range that is below the range appropriate for a s 98 offence.
The factors of the offence referred to in Henry are to some degree present here; the offenders are young, the victims were vulnerable, small amounts were taken, and there are pleas of guilty. Yet these cases are also markedly different, to the extent that Henry is of little application. First and foremost it is because the offenders are not just young, but as Mr Cochrane submitted, they are children. That in turn means that the principles set out at s6 of the Childrens (Criminal Proceedings) Act (CCPA) apply. I also accept the submission that the "real gravamen" in the present cases is not the robbery, but the group violence.
As noted above, in four of the six counts there was no reference to the age of the "lure", or any obvious statement of the victim seeking sex with a child. The disturbing aspect of the case is the willingness of the offenders to engage in acts of marked violence against strangers for an asserted reason that is to some notable degree at odds with the objective facts. In the case of ZZ that view is tempered due to the traumatic scenes he witnessed of his sister being sexually and physically assaulted, and that is addressed below. The case for XX does not have this additional aspect that helps to understand why the behaviour occurs (though the reference to a sexual assault of somebody close to him in the subjective material is noted); there is about XX's offending a streak of viciousness and senseless viciousness at that. At the same time he obviously is a child and has not only the limitations of his youth but also the difficulties of his history of ADHD and depression.
It was a key point of the parties' submissions that these considerations reflect offending by persons of immature years. It is said the offending is foolish and impulsive, consistent with the behaviour of children. The fact of the offenders being children undoubtedly has a role to play in this offending, but the very nature of the offending itself shows that there is more involved than the offenders being naughty children, something that is well recognised given the appreciation of the likely outcomes.
There was in evidence a victim impact statement from Mr Nixon, the victim of count 1. It is clear the attack had a marked effect upon him and I take it into consideration. I do not rely on that statement as evidence of any sequelae of any injury.

Subjective case of XX and consideration

The evidence relied on in the subjective case of XX was a report of a psychologist Laura Durkin dated 6 December 2023 and a total of seven references. Additionally, the Crown bundle contained a confidential background report dated 13 October 2023 authored by a caseworker and assistant manager of the Department of Communities and Justice, Youth Justice. From that report the following can be stated: 1. The present offences are the first criminal charges against XX: 2. Soon after going into custody on 18 July his behaviour declined with reports of disobedience, subversive behaviour and fighting. 3. He is engaging in regular counselling and has made positive progress. His attitude has improved after a period of suspension from the custodial school. He received a certificate for positive behaviour. 4. His background is set out in the report and it suffices to say that he comes from a stable prosocial family and background. The behaviour of XX appeared to alter in the lead up to his offending. Previously he had been constructively engaged in activities including the upkeep of the family farm. That said his mother reports that he had displayed autism spectrum disorder traits and defiance. He suffers from oppositional defiant disorder and ADHD. 5. It is said for a time he was prescribed Ritalin consistent with the ADHD. This assisted him but ultimately affected his diet and made him ill so it was ceased. 6. It would seem that entering high school led to behavioural challenges. He struggled to make positive relationships and there were a series of detentions and suspensions for bad behaviour. 7. In custody he has shown some initiative in engaging in a manual tasks program. 8. He was expelled from Lismore High School in late October 2021 for fighting. He claims he was acting in self defence. 9. The report says that ADHD may impair decision making and lead to impulsive behaviour. 10. When he left school he did undertake an apprenticeship in bricklaying and worked full-time and had a good relationship with his employer. 11. He has a history of being very good at football which ended due to injury. He is described as loyal. 12. He is described as having black-and-white thinking. 13. Prior to September 2022 he was invested in fitness and was anti-alcohol and drug use but then began drinking with a new friend group including it would seem the co-offender. He would drink to get drunk. He commenced using cannabis after his arrest. He described that, at the age of 16, is making him feel good and able to kick back. 14. Prior to being on remand and I presume whilst on bail he was attending a psychologist there is no evidence of what was if any progress. 15. Page 7 of the report refers to a good friend of XX experiencing a traumatic sex offence when younger and the police did nothing. It is unclear if that is a reference to what ZZ observed of his sister. There was talk about bashing paedophiles. XX's view was that "it sounded like fun I wanted to get one". 16. He claims the offending was not premeditated but the set ups emerged when the group was together. He claims to be affected by drugs and alcohol at the time. Even at the time of the report he was justifying his behaviour as saving vulnerable children. He described it as fun. He could not explain the degree of violence used and in accordance with the report writer's view "seem to lack the capacity to show remorse for the injuries inflicted". He regretted the impact of his actions on his family.
That report with respect paints a fairly unpromising picture of a youth who seems to lack appreciation for the wrongfulness of his conduct, who considers it fun and continues to seek to justify his behaviour. There is no expression of remorse for his actions generally or to the victims in particular.
In the report of Ms Durkin a similar history is outlined. Similar to the department interview he struggled to communicate. His relationships with his parents seem positive, though he appears to be argumentative and openly hostile, on his own account. He has not suffered any form of abuse.
There was a suggestion to the report writer as there had been in the earlier report of bullying at school although he would not confirm that. There was a time he would not stand up for himself but later adopted a tough persona on the basis that if people were scared of him they would not be "smart arses". he considers this has led to him not becoming victimised anymore and that he has assumed a leadership role in his peer group. This peer group he established after leaving school and he refers to as his "boys".
Ms Durkin says he impresses as psychologically fragile and egocentric and seems to be an impulsive and angry boy.
As to the offending he said he was unsure of his motivation. He then said he identified the victims as he believes the authorities were not apprehending sexual offenders adequately. He could not say why excessive force was appropriate, nor any force. It says there is a positive that he is now attempting to moderate himself because he has been disadvantaged by his conduct. Any progress perhaps is a positive here but it is notable that it emerges from the impact on himself.
It says he was diagnosed with ADHD in 2022 which is supported by the use of Ritalin at that time.
A number of psychometric tests were undertaken. There is also an interview with his mother. She expressed the view that even as a toddler he was displaying challenging conduct and she felt something was not right. She described him as impulsive and risk-taking and objects. Seeing or expressing or exhibiting emotional dysregulation. She found it difficult to influence his conduct.
The psychologist's formulation refers to the possibility of autism spectrum disorder and more affirmatively refers to a presentation clinically of ADHD and likely ADD as a child, these conditions making him more impulsive. He struggles to regulate himself and has a propensity towards anger and aggressiveness.
At [48] it is said XX presents with notable mental health concerns that elevate the risk of his offending but "antisocial attitudes and beliefs including with regards to aggression and the use of violence antisocial peers and substance abuse appeared to be the greatest contributors to his risk for offending". It favours him that he has a supportive family and there is a desire for change based on the positive conduct in custody, but his attitudes and beliefs cannot be ignored.
It is recommended he engage in an anger management program and gain support for his ADHD and possibly drug and alcohol intervention. The CHARTs program is also referred to which is the changing habits and reaching targets program.
As to the range of references they are from family members and friends. They reflect a great deal of support for XX. It shows positive conduct on his part in assisting others that he is close to including doing manual work such as lawns and gates and fencing. It is clear that there is more to this young person than the person reflected by his offending. A letter from his bricklaying employer spoke well of his work ethic.
The submissions made by the offender based on this material are: 1. The psychological evidence supports a finding that XX has ADHD and likely also ODD. There was no real argument against this and I accept that submission. I also accept that the evidence supports a finding that he is impulsive and has what is referred to as emotional dysregulation. 2. Reliance is placed on Ms Durkin's views at [47] of her report, namely that these conditions of mental health have rendered XX a generally more impulsive and reckless individual who struggles to regulate himself and engage with those around him particularly given a propensity towards anger and aggressiveness. On that basis the principles of De la Rosa are called in aid. That case is authority for the propositions set out at [177] as follows: 3. That where a person's mental health contributes to the offending in a material way the moral culpability may be reduced as well as the need to denounce the crime leading to a reduced sentence. 4. It may also mean the offender is a less appropriate vehicle for general deterrence also reducing the sentence. 5. A custodial sentence may weigh more heavily on the offender. 6. It may reduce or eliminate the need for specific deterrence. 7. Conversely it may be due to the mental illness they present more of a danger to the community so that the need for specific deterrence is increased as is of course the need to protect the community.
I accept that the ADHD and ODD conditions have contributed to this offending. I also take into account that in the Department report XX described the offending as fun. The report writer considered that the offender appeared unable to show remorse. When asked by Ms Durkin about the offending he could not adequately explain his motivation, nor explain why such excessive force, indeed any, was necessary. These comments reinforce my earlier view that there is something about XX that is troubling, and not explicable simply by categorising it as due to ADHD and ODD.
I note also the view of Ms Durkin set out at her paragraph [48] and set out above at [61]. By that paragraph the mental health concerns are noted but these are not considered the greatest contributors to his risk of offending which were identified as his antisocial attitudes and beliefs including as to the use of violence and substance abuse.
The Crown very fairly did not challenge the submissions made as to the subjective case. There were some propositions contended for in relation to matters going to objective seriousness that I have taken into account.
The mental health state of XX has contributed to the offending as it has made him more susceptible to acting out in the way that he has but, as noted in combination with the significant features of his antisocial views, tendency to violence and substance abuse. The evidence shows that the mental health state has been long-term; the offending commences after substance abuse. The decision to use and the attitude towards drugs is something that is consistent with immaturity. The principles of De la Rosa have application here in all respects and will be given appropriate weight, including as the offender's submissions acknowledged, the fifth factor of as to a heightened risk of reoffending, and in general terms a need to protect the community.
Both parties have properly taken the court to the provisions of section 6 of the CCPA which sets out the principles to be applied when exercising functions under the CCPA and which it is accepted has application in determining the present matters. Section 6 provides as follows: A person or body that has functions under this Act is to exercise those functions having regard to the following principles-- (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind, (f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties, (g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
The application of these principles assists XX. In particular subsection (b). In addition to the point made for XX relying on De la Rosa a submission was made, which I accept, that part of the explanation as to why this offending occurred was the very lack of maturity and the great need for guidance and assistance reflecting the fact of the offender being a child. That is his lack of restraint and discipline and the excessive violence he meted out is because at least in part he is so young and does not fully appreciate the significance of these actions or alternatively is not of sufficient maturity to act in a more responsible way. That combined with his mental state has contributed in part but not wholly to the offending. By reason of both his youth and his mental state the offender's moral culpability is reduced, and the sentence imposed will reflect that. There is further discussion of the principles applicable to sentencing children in the consideration of ZZ's case below, and they are of equal application here, and have been taken into account in respect of XX.
The purposes of sentencing set out in section 3A of the CSPA are applicable as the offenders are to be sentenced at law, though with the section 6 principles in mind. Section 3A also requires consideration of an order being made which promotes rehabilitation. But for the fact of his youth XX's prospects of rehabilitation and not reoffending are unfavourable to him. Yet in line with section 6 rehabilitation should be promoted and a sentence structured that promotes his development from immature child to a more mature and more responsible adult. There are features of his case which give cause for optimism in that regard as is borne out by the references and also by his demonstration in the past of being able to be disciplined, as reflected in his work history and at least for a time his engagement with fitness activities. It would also be of assistance to him if he could seek proper assistance and medication that does not react adversely to him for his ADHD as well as to receive counselling for his drug and alcohol abuse. His attitude to substance use is immature and irresponsible, and as noted drug use was followed by the offending.
The other purposes of sentencing set out in s3A have also been taken into account. In particular, the need for denunciation, which may be ameliorated but remains relevant, and similarly, in not particularly, the need for specific deterrence. The harm to the victims should also be recognised.
In terms of dealing with the Form 1 matters I have taken them into account in the way that process allows for. I accept the submission made for XX that because those matters could be dealt with in the Children's Court and not at law the weight they add to the sentence of the principal offence is lessened. They are in any event minor matters with two of the offences being of driving a car for a short time and the 3 other matters being in the nature of vandalism, though the damage to Mr Rennie's van was more significant.
In respect of the two summary matters it is appropriate that there be convictions recorded. I do however accept the submission that they would be matters that if they were the first offences for the offender to be dealt with in the Children's Court would likely be dealt with by way of a non-custodial sentence. There would most likely be the imposition of the bond. Due to the fact that there will be a term of imprisonment imposed and that the parole period will be of some length the appropriate way to dispose of these matters is by way of section 10 A of the CS PA.
This is plainly a matter where the principle of totality has work to do. The offender has referred to R v MMK [2006] NSWCCA 272 and the judgment of Street CJ recognising the disproportionality of a lineal mathematical approach and the need for there to be an assessment of the overall criminality involved in all of the offences and making if necessary a downward adjustment. To similar effect is the judgment of Hulme J in Hall v The Queen [2021] NSWCCA 220, where his honour cited R v Holder [1983] 3 NSWLR 245 and also Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one can comprehend the criminality of another: "This is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will affect the criminality of both."
There will be a significant degree of concurrency reflected in the aggregate sentence. This is a course of conduct over a period of approximately three weeks. Without concurrency the sentences would plainly be disproportionate.
One issue on which the parties were in dispute was what is the appropriate ratio of the balance of any term to the non-parole period. In this regard the parties made reference to a number of cases. Those cases assist in showing two things. The first is the imposition of what appeared to be very lenient sentences for very serious offences when the offender is a child. The second is that as would be expected in applying the principles of sentencing relevant to children there is a lesser non-parole period than may ordinarily be the case in an adult so as to promote the offenders rehabilitation but also to give effect to the provisions of section 6 and in particular subsection (c ), (d) and (f). Nor however should be forgotten that (g) refers to giving consideration, subject to the other principles, to the effect of any crime on the victim.
T.M v R [2023] NSWCCA 185 was a case where the appellant had pleaded guilty to aggravated robbery causing grievous bodily harm contrary to section 96 of the Crimes Act. A further charge of robbery in company was taken into account on a Form 1. The applicant was 15 years and three months old at the time of the offending. At first instance he was sentenced to a term of imprisonment of three years with a non-parole period of 12 months. The starting point of the sentence was four years as there was a 25% discount for an early plea of guilty.
The appeal was successful on the basis that the sentencing judge did not have regard to the applicant's young age in assessing moral culpability, nor did the sentencing judge take it into account when considering the emphasis to be given to general deterrence. Error having been established the court proceeded to re-sentence the applicant to a non-parole period of nine months with an additional term of two years and three months.
The parties rely on this case to show the significant variation from the statutory ratio that can be found in sentences of children in respect of the ratio of the balance of term to the non-parole period. The decision otherwise reflects the principles of sentencing children with greater emphasis being placed on rehabilitation and hence a longer period of supervision. The case is also fairly on point factually albeit only one offence was being sentenced as opposed to 6. Mr Etkind for ZZ emphasised that in his view this case should not be used as a launchpad or starting point for what the appropriate sentence might be. This was because whilst the nature of the offending may be similar the injuries were much more serious. With respect the mechanics of the assault are very similar to the present. The point of difference is that there were skull fractures and a subdural haematoma and ongoing difficulties of maintaining balance. Whilst these injuries are more serious than the present case I do not consider the distinction quite as marked as was submitted.
The parties also referred to ZXT v R [2023] NSWCCA 222. The offender in that case was charged with reckless wounding in company. A control order for 18 months was imposed with a non-parole period of 9 months pursuant to section 33 of the CCPA. The offender appealed that sentence. The offender attended a party to which he was not invited and when asked to leave punches were thrown. The offender produced a knife and chased after the victim and struck him to the lower back causing a life-threatening wound requiring emergency surgery and four days hospitalisation. The second ground of appeal was that the sentence was manifestly excessive. The court held that no lesser sentence was warranted.
The parties also referred to a matter of R v EE [2023] NSWSC 104. The case was referred to in respect of how to deal with section 19 of the CCPA. I note however that it was a sentence in respect of murder with a robbery charge on the form 1. The sentence imposed there was a non-parole period of four years and two months and a balance of term of two years and one month. The basis of criminal liability was joint criminal enterprise as the victim died by reason of a stabbing that occurred when the offender was not in the room.
In the submissions for ZZ reference was made to KG v R [2012] NSWCCA 10. In that case the appellant held a hunting knife and the co-offender a loaded gun and three shots were fired when they were robbing a victim in his house. The sentence imposed was a non-parole period of 18 months and a further term of 12 months. It was argued that this was a more serious offence. Notably however the applicant did not fire the gun though wielding a knife was clearly serious.
Little was said in submissions as to the principle of parity. The sentence that will be imposed on each offender will differ. This is because in a number of the offences the conduct of XX was objectively more serious, specifically count 1 and count 3. In addition to that I consider that the subjective case of ZZ is far more favourable to him than the subjective case of XX.
The sentence for XX is set out below. It is an aggregate sentence. The result after taking into account the Form 1 matters and applying the 25% discount to the indicative sentences as set out in the table is an aggregate term of 5 years with a non-parole period of 2 years. That term will commence from 14 July 2023. From that it can be seen that no allowance is made for the terms of the bail conditions arithmetically, though it is taken into account generally. In this respect it would appear that the time on bail filtered their lives back into that of more normal teenagers. I do not consider the imposition on their liberty of the curfew has the same impact on a 17 year old as it would do on an independently living adult.

Subjective case of ZZ and consideration

The subjective case of ZZ is founded in large part on the fact that as a 12-year-old boy he witnessed his sister then aged 13 being sexually assaulted and shortly thereafter for reasons connected to the assault witnessed her being physically assaulted. This was a traumatic experience. It impacted on his pre-existing mental health conditions and led to maladaptive coping mechanisms, namely drug use.
The submission seeking a finding of reduced moral culpability is well made out for these reasons. The fact of his youth further reduces his moral culpability as it did with XX.
The submission based on the traumatic experience extends so far as to say that the vigilante type conduct of the offending was to prevent other young persons from experiencing what his family went through.
There is some difficulty factually in that submission for two reasons. Firstly, the fact that four of the six victims in accordance with the agreed facts were not people seeking to have sex with children. The second factual difficulty is that the evidence shows that the people who sexually assaulted the sister of ZZ were themselves youths. To then target people the age of the victims does not sit well with the vigilante argument.
In answer to these factual difficulties Mr Etkind made what I consider to be an effective submission which is accepted. The submission was to the effect that whilst the points made against the argument were valid the position needs to be seen in a broader context of a young boy traumatised by witnessing his sister being assaulted and subsequently acting in a way which seeks to punish people who similarly assault young people of an age comparable to his sister. The point perhaps is not so much specifically to punish people of the same class of offender who assaulted his sister but to protect victims such as his sister. Further the point might be not so much to punish people of the same class of the offenders but to punish anybody who hurts victims such as his sister, that is young people in a sexual way.
This does not wholly account for the fact that four of the victims were not seeking out children. However, when looked at subjectively through the eyes of the ZZ, distinctions between looking for a person who is 18 or thereabouts or under will not likely have been bright lines of distinction in what was occurring.
It is of course in no way a defence or an excuse for the offending, but this argument shows how the offending should be viewed and gives it context, and assists in the overall assessment of ZZ's criminality.
In terms of general principles of sentencing children, the general passages of this judgment relating to XX are equally applicable to ZZ. In submissions for ZZ, reference was helpfully made to KT v R [2008] NSWCCA 51 and in particular that less significance is given to general deterrence and retribution and emphasis is placed on rehabilitation. Further "the law recognises the potential for the cognitive emotional and/or psychological maturity of the young person to contribute to their breach of the law". This in short form is a reference to immaturity as discussed above.
Particularly apt in this case and even more so for XX is what was said at [49] of KT: Here the applicant engaged in violent conduct resulting in serious injury to the victim. However the conduct had all the hallmarks of youth including immaturity, absence of impulse control, poor self-regulation and a tendency to go along with the group.
The reference to section 6 and the principles for sentencing young people set out above are as applicable to ZZ as they were for XX.
A feature of this case that needs to be borne in mind is that these mitigating principles tending towards leniency are largely examples of cases of one-off offences. In this case there are six occasions within three weeks. That does not mean the principles do not apply but the number of offences plainly has an impact on the end result.
The evidence that was relied upon to support these submissions included a psychological report of John Machlin of October 2023, a letter of a psychologist from 2011 referring to ZZ's ADHD condition, and a letter of Laura Williams psychologist from January 2019 giving the history of the trauma concerning his sister. It is that letter that sets out that there were two very violent attacks on his sister perpetrated by local youths. That aspect has been discussed above. The letter goes on to say that following those events ZZ experienced extreme anxiety, fear avoidance of various situations and triggers, low mood, heightened startle response, nightmares and difficulty sleeping. The view was expressed that he experienced acute stress disorder.
Also in 2019 so well before the offending was a letter from a paediatrician concerning a condition consistent with PTSD and emotional dysregulation as well as ADHD and ODD which had been well controlled until the traumatic events of then 12 months ago namely the assaults of his sister.
I accept the submission being made that there is a clear connection between the mental state of the offender and the commission of the offences. The result is in line with De la Rosa that there is lesser moral culpability of the offender. This is in addition to the lesser moral culpability by reason of his youth.
In regard to his youth as was submitted in writing, it is not simply a chronological question but one involving consideration of the mental state and circumstances of the offender. In that regard the offender relies on the psychological report indicating his IQ to be at the 6th percentile, well below the average range albeit above disability level. That was at the date of the report. The report states that he was mentally and emotionally younger than his years at age 16. He was said to be behind his cohort in his level of maturity both intellectually and emotionally.
The evidence also identifies emotional dysregulation and possible major depressive disorder.
In addition to the impact on moral culpability as is well recognised it makes the offender less suitable vehicle for general deterrence and it may mean a prison sentence will weigh more heavily on him. I accept these submissions and these are matters that will be taken into account in determining the sentence. They are clearly applicable in this case.
The evidence shows that there is nothing remarkable about the background history of ZZ in terms of the environment in which he grew up. Rather his life has been marked by the trauma he witnessed regarding his sister and also by the fact that he suffers from the mental health concerns set out above. The offender has helpfully set out at page 17 of his submissions passages of the psychological material describing how his behaviours relate to the trauma of his sister. It is said the offences were a means of squaring the injustices against his sister as well as a means of coping with his guilt and powerlessness as he was unable to assist her.
In the juvenile justice report the unchallenged material is of the assault having a significant effect on the whole family. The offender's father said that ZZ was consumed with anger and guilt by his inability to do anything to help his sister. The offender said that his life changed the very next day.
Prior to the offending in what is described as a maladaptive coping strategy due to the conditions from which he was suffering ZZ commenced drug use and at the time of the offending was using LSD, MDMA and cocaine as well as smoking cannabis regularly and drinking straight bourbon.
This would obviously impact upon his decision-making and by way of it being connected to his trauma relevant to take into account. That is not to be confused with using it as a mitigating factor in isolation
The offender also sought to call in aid the principles of Bugmy. This is not a case of a disadvantaged background in the sense described in Bugmy. Rather this is a case where there has clearly been a significant traumatic event comparable perhaps to a person who suffered sexual abuse and then adopts maladaptive coping strategies. In any event the result is the same which is a reduction in the person's moral culpability
At the risk of being repetitive various passages of T.M v R [2023] NSWCCA 185 were referred to including the need to focus on rehabilitation in sentencing children, to have regard to their immaturity and poor self-regulation and reduced capacity for consequential thinking and the impact that may have on moral blameworthiness.
Also in evidence was a letter written by the offender. In that letter he makes a sincere apology and a sincere statement of regret for what he has done. He acknowledges that what he did was wrong. He states that two wrongs don't make it right and that violence is not the answer. He said that after he was charged he realised how much he wanted to change. He started training and quit smoking and drinking. He obtained his year 10 certificate. He got a motorbike licence. He started boxing. He has a certificate III in fitness. He is now doing a certificate IV. He is going to school and I infer actively participating in it in a meaningful way; the offender says "there is a pretty good education system in juvie". Given his young age and recognised immaturity he states with some maturity that he is working on his trauma with a psychologist. He says he is healing in a healthy manner. He says in a way that I find convincing "all I think about every day is I'm never coming back to a place like this ever again and how hard I'm going to work when I get out".
He then sets out what he wants to do involving being a diesel mechanic as well as being a personal trainer. He apologises for his actions and says if he could apologise to them he would. Albeit not on oath and not tested I find that letter compelling. There are deep statements of remorse, regret, acknowledgement of wrongdoing and affirmations to not do so into the future which are accepted.
Forming that view as to that letter together with the positive steps he has taken prior to going into custody supports the submissions as to good prospects of rehabilitation and a low likelihood of reoffending which I accept.
This positive view of the future is supported by the remaining subjective material. This includes a letter from his father and his mother. It is obvious that they have made great efforts to assist their son whilst he was on bail given the things that ZZ achieved. That shows the offender has significant and meaningful family support which aids his prospects. The contents of that letter are consistent with the matters set out above. It talks of them noticing his difficulties with what became diagnosed as ADHD and ODD and of the traumatic circumstances of the assault on their daughter and the impact that had on ZZ.
Other family members show their support including from an older half brother who is a personal trainer. He is 33 years old so clearly significantly older than ZZ. He offers to assist ZZ so far as he wishes to pursue his interest in the fitness industry. Not only is this evidence of good prospects in furthering his career ambitions but it is another indicator of the pro social and strong family support available to him. Lastly there was a letter from a person who had met ZZ through his boxing activities who found find him to be a young man with good characteristics.
It will be apparent from these reasons that subjectively the case of ZZ is markedly stronger than that of XX.
The principle of totality applies to the case of ZZ in the same way as set out above in connection with XX. The comments as to parity are also relevant.
Also when considering the matter of XX reference was also made to section 3A in those same considerations have been taken into account here. Specifically there will be less emphasis placed on deterrence and retribution and a greater emphasis placed on rehabilitation and arriving at orders which seek to achieve or put into practice the principles of section 6. In particular in that regard to see him return to mainstream life in the pursuit of his employment ambitions.
In arriving at the sentence for ZZ all of the above matters have been taken into account which includes the favourable findings made above most notably the various bases for reducing his moral culpability and also his good prospects. As with XX, I do not accept that there should be an allowance of quasi-custody, at least arithmetically. It has been taken into account generally. Whilst it is true that the liberty of ZZ was infringed upon, it led to him leading a life far more in keeping with a healthy advantaged teenager whilst under the curfew. The curfew resulted in him being more involved with his parents and their home and engaged in activities and that has been a positive advantage to him rather than a restriction of him. In any event the period of time being considered is approximately eight months and in light of the above views any allowance was made it would be in any event be minimal.
The indicative sentences for ZZ are set out in the table, which takes into account relevantly the Form 1 matters, and shows the sentences before and after the discount. The aggregate sentence will be a non parole period of 16 months, with a balance of term of 26 months, to date from 18 July 2023.

Section 19 CCPA

Relevantly, section 19(3) refers to a person sentenced to imprisonment in respect of a serious children's indictable offence which is the case here. Such a person is not eligible to serve a sentence of imprisonment as a juvenile offender after attaining the age of 18 unless: 1. The court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age or 2. The non-parole period will end within six months after the person has attained that age.
Relevantly subsection 4 provides the basis for a finding of special circumstances and includes that the only available educational, vocational training or therapeutic programs that are suitable to the person's needs are those available in detention centres, or that if a person was committed to a correctional Centre there would be an unacceptable risk of the person suffering physical or psychological harm whether due to the nature of the persons offence, any assistance given by the person in the prosecution of other persons or otherwise.
For ZZ it was submitted that the direction under section 19 should be made due to the availability of educational, vocational and therapeutic programs and all because of an unacceptable risk of him suffering physical or psychological harm in a correctional Centre.
The same submissions were adopted by XX.
In my view the mental health conditions of both offenders satisfy the requirement of special circumstances. The prospect of two immature just turned 18-year-olds suffering from a range of trauma and mental health issues including PTSD, ADHD, ODD and tending to the impulsive being placed into a correctional Centre would in my view results in there being an unacceptable risk of suffering physical or psychological harm.
For ZZ reference was also made to the evidence in the psychologist report to support the view that treatments of various kinds were more readily available in a detention centre. I accept that submission also. There was not evidence on a par with that in the case of XX, yet there is no challenge by the Crown to the subjective case of either party and for that reason I am prepared to infer the position would be the same for XX. The order making the direction sought will be made.

Of the six counts on the indictment the offender is convicted.
I impose an aggregate term of imprisonment with a non parole period of 2 years to date from 14 July 2023 and with a balance of term of 3 years.
In respect of the summary matters in each case there will be a conviction recorded and in accordance with the provisions of section 10A no further penalty.
Direct that pursuant to s19(1) and (3)(a) of the Children (Criminal Proceedings) Act the offender serve the whole of the non parole period of his sentence as a juvenile offender.

Of the six counts on the indictment the offender is convicted.
The offender is sentenced to an aggregate term of imprisonment with a non parole period of 16 months to date from 18 July 2023 and with a balance of term of 26 months.
Direct that pursuant to s19(1) and (3)(a) of the Children (Criminal Proceedings) Act the offender serve the whole of the non parole period of his sentence as a juvenile offender.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2024

Children (Criminal Proceedings) Act 1978(NSW)

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Cases Cited (17)