ZXT (a pseudonym) v R

1. [1]

   ADAMSON JA: ZXT (a pseudonym) (the applicant) seeks leave to appeal against the sentence imposed on him by Herbert DCJ (the sentencing judge) on 21 April 2023 for the offence of reckless wounding in company contrary to s 35(3) of the Crimes Act 1900 (NSW). The sentencing judge imposed a control order for 18 months pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW) (the Act), commencing on 19 February 2023 and expiring on 18 August 2024, with a non-parole period of 9 months commencing on 19 February 2023 and expiring on 18 November 2023.

2. [2]

   The sentence imposed allowed for a discount of 25% for the applicant’s plea of guilty to the offence, which was count 2 on an indictment which also charged, in count 1, an offence of wound person with intent to cause grievous bodily harm. The sentencing judge (as trial judge in a trial by judge alone) acquitted him of count 1 and convicted him of count 2, to which he had offered, in the Children’s Court, to plead guilty.

3. [3]

   The applicant seeks leave to appeal on the following grounds:

4. [4]

   For the reasons which follow, I consider that leave ought be granted and that ground 1 has been made out. In these circumstances, it is not necessary to address ground 2. This Court is required to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The sentence I have independently arrived at is not less than the sentence imposed by the sentencing judge. Accordingly, the appeal ought be dismissed.

The proceedings in the District Court

1. [5]

   The applicant had been committed for trial from the Children’s Court. At the time of the commission of the offence, 6 March 2021, the applicant was 17 years and 4 months old and was therefore a young person. As the offence of reckless wounding in company was not a serious children’s indictable offence within the definition in s 3 of the Act, the sentencing judge was required to decide whether the applicant should be dealt with at law or in accordance with Division 4 of Part 3 of the Act. The sentencing judge determined that the applicant should be dealt with in accordance with Division 4 of Part 3 of the Act. Thus, the sentencing judge (and this Court, on resentencing) exercised the same functions of the Children’s Court as if the court were the Children’s Court and the offence was an offence to which that Division applied: s 18(2) of the Act.

2. [6]

   The sentence proceedings were heard on 31 March 2023. The Crown tendered documents, including the applicant’s criminal history, custodial history and a Victim Impact Statement of Nicholas Wright (the victim) dated 21 January 2023. The Crown also tendered a Youth Justice Background Report prepared by Caseworker Lindsay Aubrey and Assistant Manager Scott Salt dated 31 January 2023.

3. [7]

   KS, the applicant’s girlfriend, gave a character reference dated 2 February 2023 which was tendered on behalf of the applicant.

4. [8]

   Both parties relied on written submissions, which they addressed orally. Ms Fernando, who appeared on behalf of the applicant before the sentencing judge and in this Court, submitted in writing to the sentencing judge:

5. [9]

   At the conclusion of the hearing on 31 March 2023, the sentencing judge reserved her decision. On 21 April 2023, her Honour delivered reasons and imposed the sentence, following which the applicant was taken into custody.

The sentencing judgment

1. [10]

   There was no challenge to the findings of fact made by the sentencing judge, which are summarised in the narrative below.

2. [11]

   On Saturday 6 March 2021, Leighton Vella hosted his 22nd birthday party at his home in Rouse Hill. The victim attended with friends. At about 9pm, the applicant and two friends (Mr Rata and young person OL) went to Rouse Hill to attend a party held by Corey Weiss (to which the applicant knew that they had not been invited). They inadvertently went to Mr Vella’s home instead.

3. [12]

   The victim happened to be outside when he saw the applicant and his friends enter the property through a side gate. As he did not recognise them, he ran towards them, calling out to them to stop. The group kept walking. The victim positioned himself in front of the group and asked them who they were, why they were there and whether they knew anyone at the party. A member of the group said they knew Corey. As the victim did not know Corey, he told the group to leave the property.

4. [13]

   An argument ensued following which the applicant and his friends walked back towards the gate to leave the property. Ben Jones joined the victim and started telling the applicant and his friends to “get lost”, “get the hell out of here” and “fuck off”.

5. [14]

   The applicant and his friends got to the end of the driveway before one of his friends, Mr Rata, a tall, heavily-built male of Pacific Islander background, returned to the side gate with the applicant and OL. Mr Rata and “at least one other person” threw several punches over the gate at the victim.

6. [15]

   Mr Vella and some guests at the party approached the applicant and his friends at the side gate. When Mr Vella asked the group to leave, Mr Rata punched Mr Vella on the face. The victim said, “Fuck off back to Penrith you dog cunts”. The applicant pulled out a hunting-style knife with a four-to-five-inch blade from his pocket and held it by his side.

7. [16]

   Mr Rata punched one of Mr Vella’s guests, Jayson Pellizzer, in the face, following which the victim approached the applicant and his two friends, with a view to “get[ting] into a fight with the males”. The applicant and his two companions approached the victim and followed him as he backed away onto the lawn. Mr Rata and OL punched the victim and surrounded him. The victim tried to punch them back. When the victim saw a gap between Mr Rata and OL, he ran away onto the street. The applicant, Mr Rata and OL chased and encircled the victim. The applicant struck the victim with the knife in the lower back. The victim believed he had been punched until he saw blood. He yelled out “I think I’ve just been stabbed. I think this guy just stabbed me”. One of the three males said, “Oh shit”. All three ran off.

8. [17]

   The victim was taken to hospital suffering from a wound to an artery, which caused significant blood loss. He needed surgery and blood transfusions and was in hospital for four days.

9. [18]

   The sentencing judge found that while Mr Rata was the “most aggressive”, the applicant and OL were “clearly backing him up”. The victim and his friends were not aggressors. The applicant was arrested on 18 March 2021, almost two weeks after the assault.

10. [19]

    The sentencing judge noted the Victim Impact Statement in which the victim said that he suffered severe back pain for months after the offence and could neither work nor enjoy his normal life. He continues to experience feelings of insecurity and is fearful in public settings. The victim described himself as having low self-esteem and confidence, being in a rut, gaining weight and struggling to adopt a healthy lifestyle. The sentencing judge accepted that the offence had had a significant and ongoing impact on the victim but “no greater than is to be expected for an offence of this nature.”

11. [20]

    The sentencing judge found that the injury was potentially life-threatening and required surgical intervention. Although the offence was not premeditated, the applicant brought the weapon with him to the party and gave thought to using the weapon for protection. The fact that the applicant attacked the victim at a time when no weapons had been produced or used and while the victim was being “aggressively pursued” by the co-offenders Mr Rata and OL “increased the seriousness of the offence”.

12. [21]

    The applicant intentionally struck the victim with a knife in the back, in circumstances where the victim was unable to defend himself. The use of a weapon was an aggravating factor.

13. [22]

    The sentencing judge found the offence to be a “serious example of an in-company offence” which was “objectively serious”.

14. [23]

    The applicant was born in November 2003. As referred to above, he was 17 years old at the time of the offence. He was 19 years old at the time of sentence. On 11 March 2022, the applicant was sentenced to a bond pursuant to s 33(1)(a)(ii) of the Act for a period of six months for an offence of affray arising out of the same incident on the same day as the instant offence. The sentencing judge regarded the offending as “very much out of character” for the applicant and referred to the character evidence in his favour given at trial by Kevin Ofri and the written reference from KS which was tendered at the sentence hearing.

15. [24]

    The sentencing judge referred to the Background Report from Juvenile Justice and noted its contents, which, to the extent relevant, are summarised below.

16. [25]

    The applicant is the younger of his parents’ two children. His parents and older sister were born in Ghana and migrated to Australia due to political unrest when his sister was two years old. The applicant was born in Australia. At the time of the offence, he lived with his family in the Blacktown and Cumberland area. The applicant said that he had a positive relationship with his parents and sister, who continued to provide him with emotional, practical and financial support. At the time of the offences, the applicant’s parents were both working full time and often left him unsupervised, which his mother considered may have contributed to the applicant choosing to spend more time with his peers.

17. [26]

    The applicant went to St Mark’s Catholic College between years 7 and 10. He was suspended on three occasions for bullying and misbehaviour towards teachers. After being asked to leave this school, he attended Riverstone High School, followed by Wyndham College Senior High School.

18. [27]

    Since his arrest on 18 March 2021, the applicant said that he had ceased contact with his co-offenders and tried to spend more time with his girlfriend, who was accepted to be a positive influence. Since February 2022, he began attending Anytime Fitness several times a week to “keep fit, reduce stress” and “make him feel good”. From September 2022 until he was taken into custody on 21 April 2023, he was employed full time at H & M Distribution Centre in Marsden Park.

19. [28]

    The applicant had not been diagnosed with any mental health condition and did not have any substance abuse issues. Whilst he consumed two vodka cruisers before the offence, he said that this did not contribute to his decision to commit the offence.

20. [29]

    The applicant told Juvenile Justice that he pulled out a knife to ‘scare’ the victim and bring the altercation to an end (this was rejected by the sentencing judge, see below). He said that he did not know that he had stabbed the victim until he heard the victim say he had been stabbed. He said that he had found the knife at Rouse Hill earlier that evening and had kept it for “protection” as he had previously been to parties where verbal and physical altercations had occurred.

21. [30]

    When arrested for the offences, he reported becoming aware of the extent of the victim’s injuries and feeling “sad” and “remorseful”. Since being on bail, the applicant had been subject to a curfew with restricted movements in the community, “largely able to only attend school and return home”.

22. [31]

    The sentencing judge rejected the applicant’s account of only using the knife to scare the victim without an intention to strike him. Her Honour said, “[i]t is very clear that it was an intentional striking of the victim, and he was only acquitted on the more serious offence because he struck him once and once only”.

23. [32]

    The sentencing judge noted that, following the applicant’s arrest, he spent time (in custody) at the Youth Justice Centre, following which he was “subjected to lengthy bail conditions.” Her Honour backdated the sentence by two months to reflect these stringent bail conditions.

24. [33]

    I note that it was accepted before the sentencing judge that the applicant complied with bail for the period of approximately two years from the time of its grant on 19 March 2021 (the day after his arrest on 18 March 2021) until the imposition of the sentence on 21 April 2023. Initially, the conditions of bail were akin to house arrest and permitted the applicant only to leave his home to attend school. On 2 July 2021, bail was varied and a curfew from 8pm-6am was introduced. On 10 November 2021, curfew hours were reduced to 10pm-4.30am but only while the applicant was employed with 360 Personnel. On 10 February 2022 bail was varied to remove the curfew and introduce twice weekly reporting.

25. [34]

    As referred to above, a discount of 25% was allowed for the plea to count 2 which had been entered in the Children’s Court.

26. [35]

    The sentencing judge found that the applicant demonstrated some remorse and insight, although his remorse was “not fulsome as it involves minimisation”.

27. [36]

    The sentencing judge found that the applicant was unlikely to reoffend and had good prospects of rehabilitation.

28. [37]

    The sentencing judge accepted that the applicant’s youth and immaturity contributed to the offence such that it reduced the weight to be given to general deterrence. However, her Honour found that the “use of violence, particularly with knives, to solve issues means that the moderation of youth on the consideration of general deterrence will not be as significant”. Her Honour also found that protection of the community and personal deterrence remained relevant factors on sentence.

29. [38]

    The sentencing judge found special circumstances and reduced the non-parole period to 50% of the total sentence, due to the age of the applicant, and this being his first custodial sentence. Her Honour also referred to the greater emphasis to be placed on the applicant’s rehabilitation and “allowing his education to proceed without interruption”.

30. [39]

    The sentencing judge stated that she had considered s 33(2) of the Act and was satisfied that it would be wholly inappropriate to deal with the applicant under s 33(1)(a) to (f1) because “this is a serious offence involving the use of a weapon resulting in a serious injury and any lesser penalty would fail to reflect the seriousness of the conduct and the relevant sentencing considerations”.

Consideration

1. [40]

   Section 6 of the Act sets out the principles to which a person having functions under the Act (including the sentencing judge and this Court) is to have regard. These include the desirability of allowing a child’s education and employment to proceed without interruption (s 6(c)) and of allowing a child to reside at home (s 6(d)). They also include the principle in s 6(h), as follows:

2. [41]

   Section 33(1) of the Act provides for various penalties in increasing order of severity: dismissal of a charge (s 33(1)(a)), a good behaviour bond (s 33(1)(b)), a limited fine (s 33(1)(c)), a conditional release order (s 33(1)(c1)), an adjournment, including to permit assessment and demonstration of rehabilitation (s 33(1)(c2)), release on probation (s 33(1)(d)), a community service order (s 33(1)(f)) and, finally, a control order for a period not exceeding 2 years (s 33(1)(g)). A control order is taken to be a sentence of imprisonment for the purposes of the Crimes (Administration of Sentences) Act 1999 (NSW): s 33(1C) of the Act.

3. [42]

   A court exercising the jurisdiction of the Children’s Court may suspend a control order: s 33(1B)(a) of the Act.

4. [43]

   Section 33(2) of the Act prohibits the Children’s Court from dealing with a person under s 33(1)(g) “unless it is satisfied that it would be wholly inappropriate to deal with the person under subsection 33(1)(a)–(f1).”

5. [44]

   It was common ground that, while the sentencing judge addressed s 33(2) of the Act, her Honour did not refer to s 33(1B)(a). As is evident from the extract from the applicant’s submissions before the sentencing judge, Ms Fernando submitted that, if a control order were made, the sentence ought be suspended under s 33(1B)(a) of the Act.

6. [45]

   The Crown submitted in this Court that it was necessarily implicit in the reasons for judgment that the sentencing judge considered whether to suspend the control order and decided not to do so. I reject this submission. The sentencing judge’s determination under s 33(2) of the Act and the making of the control order under s 33(1)(g) of the Act were the prelude for a consideration whether to suspend the control order. As this Court (Howie J, Hodgson JA and Levine J agreeing) said in R v Zamagias [2002] NSWCCA 17 at [25]:

7. [46]

   The sentencing judge was obliged to consider whether to suspend the control order since the applicant had submitted that this would be an available (and appropriate) course. I infer from her Honour’s failure to refer to any such considerations in her reasons that this matter was not considered. Ground 1(a) has been made out. A failure to consider whether to suspend the sentence has caused the sentencing discretion to miscarry. Accordingly, it is not necessary to address grounds 1(b) (alleged lack of reasons) or 2 (alleged manifest excess). The Court must proceed to re-sentence the applicant.

8. [47]

   Ms Fernando relied on two affidavits on re-sentence: the applicant’s affidavit of 25 July 2023 and the affidavit of Danka Durovic, his solicitor from the Legal Aid Commission. Ms Durovic’s affidavit annexes a document from Michael Bowman, the applicant’s case worker, who said that the applicant has been in Frank Baxter Youth Justice Centre since about May 2023; he attends a Horticulture Program on weekdays; gets on well with staff and other young people at the centre; and was, as at 13 July 2023, at the third of four stages of the Youth Justice New South Wales Incentive Scheme. Mr Bowman reported that the applicant had two misbehaviour reports while at the centre but had “been able to reflect after these reports on his behaviour and deal with it in a mature way.” Ms Durovic’s affidavit also annexes a letter from the applicant’s parents in which they refer to the detrimental effect of incarceration on the applicant’s mental health.

9. [48]

   The applicant deposes in his affidavit that after he was sentenced he was sent to Cobham Youth Justice Centre. On 4 May 2023, he was transferred to Frank Baxter Youth Justice Centre. He is currently doing the Horticulture Program on weekdays and also does an Icebergs Program which involves swimming in a squad of 10 at 5.30am three mornings a week. He referred to two instances where he had been found guilty of misconduct as follows:

10. [49]

    The Crown relied on an affidavit of Jessica Van Lieven to which the misconduct reports were attached. According to the reports, the first incident occurred on 25 May 2023. Following a touch football game, staff observed the applicant and another young person “shaping up to each other as if they were going to fight”. When staff told them to stop, the young persons ignored them. A physical altercation took place. The applicant and the other assailant ignored further requests from staff to stop. Eventually the two were separated by the staff and another young person. The applicant pleaded not guilty to the charge of misconduct. He was found guilty on the basis of CCTV footage of the incident. As punishment, he was confined to his room for a period of 18 hours.

11. [50]

    The second report of misconduct recorded the following:

12. [51]

    Ms Fernando submitted that it would be open to this Court not to be satisfied of the matters in s 33(2) and therefore not to impose a control order. However, she confirmed that her primary submission was that any control order imposed by this Court ought be suspended. In the alternative, she submitted that the period of the control order ought be less than that imposed by the sentencing judge. Further, she submitted that this Court ought consider not convicting the applicant because of the findings of likelihood of reoffending, prospects of rehabilitation and the effect of a conviction on the applicant’s future.

13. [52]

    In response, the Crown submitted that this Court ought make a control order pursuant to s 33(1)(g) and that it ought not be suspended under s 33(1B)(a) of the Act because it was necessary to reflect the gravity of the offence, including the harm to the victim, as well as the need for general deterrence (because of the prevalence of knife crime in Western Sydney) and, to a lesser extent, specific deterrence.

14. [53]

    As referred to above, none of the findings of the sentencing judge has been challenged. The applicant is to be re-sentenced on the basis of these facts, which include that he armed himself with a hunting-style knife with a four-to-five inch blade when attending a party to which he knew that he was not invited (since he knew that they had not been invited to Corey Weiss’s party), in circumstances where the potential for conflict was real. There is a need for general deterrence because of the prevalence of knife attacks (and their capacity to inflict serious injuries and death, resulting in, as in the present case, loss of blood). The applicant is entitled to a discount of 25% by reason of his plea of guilty in the Children’s Court.

15. [54]

    The applicant’s rehabilitation was demonstrated by his compliance with bail conditions for the period of about two years from the time of his release on bail following his arrest. It is to his credit that he was able to complete school and obtain employment during this period. He continues to have considerable support from his parents and from his girlfriend, who remain in close touch with him.

16. [55]

    While the applicant’s prospects of rehabilitation were assessed as good and his likelihood of re-offending low, the misconduct reports in the Frank Baxter Youth Juvenile Centre in June and July 2023 show that the applicant, at times when he perceives provocation or when things do not go the way he would like them to, still resorts to violence. It can be accepted that the conditions within juvenile detention centres are challenging for both inmates and the staff who try to manage them. Young men are removed from family supports and housed collectively in circumstances where aggression from one inmate may lead to other inmates also responding aggressively. However, the applicant’s recent conduct does not indicate that his rehabilitation is such that he is ready for the conditional liberty which would follow his release.

17. [56]

    I am satisfied that, having particular regard to the seriousness of the offence and the applicant’s age at the time of offending, it would be wholly inappropriate to deal with the applicant pursuant to ss 33(1)(a)–(f1) and that a control order ought be imposed pursuant to s 33(1)(g) of the Act. I have considered whether the control order ought be suspended. I am not persuaded that suspension of the control order would be appropriate in the circumstance of the present case. Although the applicant was a young person, he was not far short of adulthood. The crime was violent, as the sentencing judge has outlined, and was objectively serious. The victim suffered life-threatening injuries.

18. [57]

    In order to undertake the sentencing exercise afresh, I have considered the evidence before the sentencing judge, the unchallenged findings of her Honour and the further evidence on re-sentencing. Having completed that exercise, I am not persuaded that a lesser sentence is warranted. In accordance with the approach endorsed by Beech-Jones CJ at CL (Bathurst CJ and N Adams J agreeing) in RO v R [2019] NSWCCA 183, I do not propose, in these circumstances, to state what sentence I would have imposed.

Proposed orders

1. [58]

   For the reasons given above, I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [59]

   WRIGHT J: I have had the advantage of reading the judgment of Adamson JA in draft and I agree with her Honour’s reasons for concluding that Ground 1(a) has been made out. My consideration for the purposes of re-sentencing also led me to the conclusion that no lesser sentence was warranted. I agree with the orders proposed by Adamson JA.

3. [60]

   FAGAN J: I agree with the orders proposed by Adamson JA and with her Honour’s reasons. A clear submission was made to the learned sentencing judge that if a control order were made it should be suspended. Having determined that it would be “wholly inappropriate” to deal with the young person under one of the less punitive dispositions provided for in s 33(1)(a)-(f1) of the Children (Criminal Proceedings) Act, it was necessary for her Honour to engage with the submission that had been put and to exercise the discretion under s 33(1B). Because there is no reference to this in the remarks on sentence, it is not apparent that her Honour did so.

4. [61]

   A suspended control order is a significantly more lenient penalty than full-time detention under an immediately effective control order. That is self-evident and has been referred to in decisions of this Court, for example, R v Zamagias at [32] (Howie J, Hodgson JA and Levine J agreeing). Given the objective seriousness of the offending in this case, the submission to the learned sentencing judge that a control order in respect of the applicant should have been wholly suspended was in my view unrealistic.

5. [62]

   By force of s 33(1C) of the Children (Criminal Proceedings) Act, the order made by her Honour is subject to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) so that the applicant will be entitled to conditional release at the expiry of the 9 months non-parole period. The effect of her Honour having backdated the commencement date is that he will remain in juvenile detention for only 7 months before being paroled. I find the applicant’s submission to this Court that a lesser penalty was warranted than that imposed by the learned judge unacceptable. The submission does not take sufficient account of the seriousness of the offending.

6. [63]

   The stab wound was inflicted to the victim’s back as he attempted to escape from the combined assault of the applicant and his two companions. As Adamson JA has described, the wound was life-threatening, requiring emergency surgery. The victim required four days hospitalisation to recover and has suffered months of subsequent back pain and significant subsequent psychological impact. At the age of 17 years and 4 months when the offence was committed, the applicant was only eight months from adulthood. There was nothing before the sentencing judge to suggest any compromise to his ability to understand the wrongfulness of such violence. There was no evidence of disadvantage in his family background or early life experiences that would reduce moral culpability.

7. [64]

   The applicant told his Youth Justice caseworkers that he “kept the knife for ‘protection’” because he had previously been at parties where verbal and physical altercations had taken place and “that he felt he needed a weapon to protect himself in future situations”. The caseworkers were right to say that this thinking on the part of the young person “appears to be an area that would require further intervention”. It is an offence to be in possession of a knife in a public place without reasonable excuse: s 11C(1) of the Summary Offences Act 1988 (NSW). Self defence is not a reasonable excuse: sub-s (3). The commission of this offence was spontaneous, not premeditated, but the possibility of its occurrence was plainly foreseeable to the applicant from when he went out, armed, to find a party with his two companions.

8. [65]

   The applicant’s submissions to this Court emphasised the importance of rehabilitation, his positive efforts and expressions of remorse that appear favourable to that end and the desirability of the applicant being able to progress with training and employment. Those considerations are statutorily recognised in pars (c), (d) and (f) of s 6 of the Children (Criminal Proceedings) Act. In my view they are given full effect in the sentence fixed by the learned judge. Her Honour’s decision accords substantial lenience, in the length of the full term (18 months), in the proportion of the non-parole period (50%) and in the backdating of the commencement (two months). Any lesser sentence would be inadequate to recognise the gravity of the offending and “the effect of [the] crime on the victim”, as required by s 6(h) of the Act.