AEL v The Queen

[2007] NSWCCA 97

Reported Decision: 170 A Crim R 355

New South Wales

Court of Criminal Appeal

CITATION:	AEL v R [2007] NSWCCA 97
HEARING DATE(S):	20 March 2007
JUDGMENT DATE:	4 April 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Barr J at 36; Hoeben J at 37
DECISION:	1. Grant leave to appeal and uphold the appeal; 2. The sentence imposed on 3 March 2006 is quashed; 3. The applicant is sentenced to a non-parole period commencing on 3 March 2006 and expiring 4 April 2007 with a further term expiring on 16 December 2008 (being the applicant's 19th birthday); 4. I direct the applicant's release to parole as soon as arrangements can be made for his accommodation in the Youth off the Streets Program. It is a condition of his parole that he accept the direction and supervision of the Department of Juvenile Justice including any direction as to his accommodation until the end of his parole period.
CATCHWORDS:	CRIMINAL LAW - Appeal against sentence - sexual intercourse by a child on sibling under 10 years - sentenced imposed after breach of s. 9 bond - applicant unable to complete rehabilitative program due to lack of funding - evidence of behavioural and psychological problems
LEGISLATION CITED:	Crimes Act 1900 Children (Criminal Proceedings) Act 1987 Children Criminal Proceedings Regulation 2000 No 433 (repealed) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v JDB (2005) 153 A Crim R 164; NSWCCA 102 R v KLH (2004) 148 A Crim R 515; NSWCCA 312 R v KBM [2004] NSWCCA 123
PARTIES:	AEL (Appl) The Crown
FILE NUMBER(S):	CCA 2006/2616
COUNSEL:	M Ierace SC (Appl) D M L Woodburne (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0146
LOWER COURT JUDICIAL OFFICER:	Freeman DCJ
LOWER COURT DATE OF DECISION:	3 March 2006

2006/2616

McCLELLAN CJ at CL
BARR J
HOEBEN J

WEDNESDAY 4 APRIL 2007

AEL v R

Judgment

1 McCLELLAN CJ at CL: The applicant, AEL, pleaded guilty at Wyong Children’s Court on 6 May 2003 to one count of sexual intercourse with a child beneath the age of 10. Three further matters of indecent assault upon another child under the age of 10 were included on a Form 1. At the time of the offences the applicant was aged no more than 13 years and possibly 12. The victims in each case were his siblings, his brother then aged about 8 and his sister aged about 5.

2 The sexual intercourse count was a breach of s 66A of the Crimes Act 1900 and at the time of the offence carried a maximum penalty of 20 years imprisonment. The matters on the Form 1 were breaches of s 61M(2) of the Act for which the maximum penalty is 10 years imprisonment.

3 The sentencing judge, correctly, determined that the offence contrary to s 66A was a serious children’s indictable offence and accordingly the applicant was required to be dealt with according to law (ss 3 and 17 Children (Criminal Proceedings) Act 1987 and Children Criminal Proceedings Regulation 2000 No 433 (repealed)). The contraventions of s 61M(2) are indictable offences which, pursuant to s 18 Children (Criminal Proceedings) Act 1987 may be dealt with according to law or in accordance with Division 4 of Part 3 of the Act. In the present case the matters were taken into account on a Form 1 pursuant to the procedure provided for in Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999.

4 When the applicant first came before the sentencing judge on 18 August 2003 his Honour concluded that the primary focus of the Court must be on the applicant’s rehabilitation. His Honour also recognised the need to have regard to the protection of his sibling victims.

5 After the offences were originally discovered the applicant had been removed from his home and came under the care of the Department of Community Services. His Honour recognised that there had been conflicts between the Department of Community Services and the Department of Juvenile Justice in relation to the appropriate rehabilitation program for the applicant but at that stage concluded that the “proper sentencing option is for me to place the young person on a good behaviour bond.” His Honour determined that a condition of any bond should be that the applicant enter into the residential program conducted at Mirvac House, a residential rehabilitative unit for young people. Accordingly, his Honour determined to defer passing sentence upon the applicant entering into a good behaviour bond for the term of 3 years under the following conditions:

“That you enter the residential program conducted at Mirvac House, that you remain there as long as the requirements of that program dictate, that you cooperate fully with those who are there in charge of your treatment, education and counselling.
It is a further condition that upon your release you become subject to the supervision of the Department of Juvenile Justice and obey the directions of the officers of that Department. That supervision is to continue for as long as the Department of Juvenile Justice considers appropriate up to the full term of the bond and you will comply with the requirements of those officers concerning attendance at counselling or other therapeutic programs as may be required.”

6 As it happened the applicant was unable to complete his rehabilitative program at Mirvac House before funding was withdrawn by the Department of Community Services. The circumstances in which this funding was withdrawn are not clear but the sentencing judge found, in the subsequent sentencing hearing on 3 March 2006, that it was through no fault of the applicant. Upon his release from Mirvac House the applicant led “a very chequered career.” The sentencing judge said of his circumstances that he “bounced around the community, sometimes staying in recognised organisations which were in a position to and did offer him the prospect of assistance, sometimes staying in accommodation he organised for himself, for a time returning to his family home from which of course he had been expelled because of the nature of the offences he had committed against his siblings.” His Honour found that all of the accommodation had been temporary, most of it unsatisfactory and on a number of occasions “at least in a technical and often in a very practical sense, breached the conditions of his bond and his status as a now registered sexual offender.”

7 It was as a consequence of the breaches of his bond that the applicant came to be sentenced at a hearing which, as I have indicated, took place in March 2006. By this time the applicant was aged 16 and during the years since the original offences had displayed many and significant behavioural problems. Juvenile Justice had intended that after leaving Mirvac House the applicant would be treated by a psychiatrist specialising in children’s problems, but this did not occur. His Honour found that although the applicant was intelligent he was manipulative and suffered from an inability to control his anger. Notwithstanding a plea by the applicant’s counsel that his bond be further extended his Honour determined that a period of incarceration was necessary. His Honour said:

“I have come regretfully to the conclusion that it is necessary to sentence him to a term of incarceration. I am still committed to the idea that his rehabilitation comes first and I find very special circumstances in his clear need for prolonged supervision in the community once he has been released. At the age of 16 he needs a lot of help. He needs to help himself. He needs to be brought to the realisation that that is what he must do.”

8 His Honour revoked the bond and sentenced the applicant to a non-parole period of 18 months with a further term of 3 years and 6 months. His Honour provided that the applicant would be eligible for parole on 2 September 2007 with his sentence expiring on 2 March 2011.

The facts

9 On 15 January 2003 5 year old CL and 8 year old AL each disclosed to their mother that the applicant had sexually assaulted them. The parents contacted the police. The facts before the sentencing judge disclosed that the applicant had penetrated his brother’s anus with his penis when his brother was aged between 7 and 8 years. This constituted the count on the indictment. The matters on the Form 1 were occasions when the applicant had placed his penis against his sister’s anus at various times when she was 5 years old.

10 The fact sheet which was tendered to his Honour indicated that the applicant had admitted committing the offences and accepted during an interview that while committing those offences he was aware that his actions were wrong. He said he could not prevent his behaviour and accepted that he needed assistance to address these problems.

11 The evidence before the sentencing judge disclosed the nature and extent of the applicant’s psychological problems. He is the eldest of 3 children and was born a healthy child. From an early age his parents observed that he adopted an unusual crouch position and rocked back and forth when sleeping. Concerned that he may be autistic his parents took him to various medical specialists for assessment but no definitive diagnosis was provided. However, it was thought that the applicant had Attention Deficit Disorder and he was prescribed Ritalin and Catapres at about pre-school age. His behaviour did not change.

12 As a child the applicant commonly engaged in screaming fits, hitting his head on walls, and kicking people who looked at him. His behaviour had restricted him from participating in team sports.

13 When assessed by a psychologist from the Juvenile Justice Sex Offender Program he was found to be articulate with a capacity to process information in an analytical manner. It was reported that he had been suspended from school for periods of time because of aggressive outbursts towards teachers. The psychologist concluded that his outbursts may be a response to anxiety when he found himself unable to handle a particular situation. He was found to have a negative response to frustration and quickly reacted in a verbally abusive manner. The psychologist concluded that the applicant had “significant problems suggesting that he was a person that was anxious and/or depressed, had attention problems, had significant delinquent and aggressive behaviour problems to a clinical degree.” The psychologist concluded that the applicant was probably not a delinquent person but “that a cluster of issues that (the applicant) identified as problems in his life had now reached a significant level, culminating with his removal from his home.” It was concluded that the applicant’s abusive behaviour “might be a dysfunctional coping response to the problems that (the applicant) has encountered.”

14 A number of recommendations were made with an overarching recommendation that he be supervised and guided by staff of the Department of Juvenile Justice.

The appeal

15 The applicant submitted that the sentence imposed in March 2006 was excessive. In my opinion that submission should be accepted.

16 In written submissions prepared on the applicant’s behalf counsel acknowledged that there was a lack of decided cases from which a pattern of sentencing for the instant offences could be determined. There are too few like cases to establish a relevant sentencing pattern.

17 In R v KLH (2004) 148 A Crim R 515; NSWCCA 312 a young boy aged 13 at the time of the offence was convicted following trial on three counts of sexual intercourse with a child aged 7. There were three offences relating to the same victim with whom the offender was sharing a bedroom on a sleep-over. The first occasion was of fellatio, the second penile/anal intercourse and the third another act of fellatio. The resulting sentences imposed a minimum term of full-time custody of 3 years and a total sentence of 5½ years. There was evidence before the Court that at the time of the offences the offender had many substantial physical handicaps which had occasioned him social difficulties. By the time of sentence he had been assessed as having a low risk of potential future offending and there was evidence that he no longer represented a threat to the community.

18 An appeal to this Court was upheld and a sentence comprising a minimum term of 1 year and an overall sentence of 2 years was substituted.

19 The applicant accepted that in his case this Court could not conclude that at the time he was sentenced in August 2006 he was not a future risk to the community. However, it was submitted that a characteristic of his behaviour by this time was general unruliness. Importantly the applicant emphasised that there was no evidence of any further deviant sexual behaviour. Furthermore, there was no suggestion that the applicant’s behaviour at Mirvac House had been inappropriate or had led to his removal from the program.

20 In R v JDB (2005) 153 A Crim R 164; NSWCCA 102 this Court considered an appeal in respect of a young male aged 13 at the time of the offences. His offences involved sexual assaults upon his half-sister who was 8 years old at the time. He was sentenced to a non-parole period of 12 months imprisonment with a balance of term of 2 years. This Court upheld an appeal and reduced the sentence to a non-parole period of approximately 8 months with a total sentence of 3 years.

21 In R v KBM [2004] NSWCCA 123 this Court considered an appeal with respect to an offence committed by a 13 year old boy who forced a 9 year old girl to fellate him. The sentencing judge imposed a non-parole period of 12 months with an overall term of 3 years. This Court upheld an appeal and reduced the non-parole period to 5 months with an overall term of 3 years.

22 Although it may be accepted that from these decisions a definitive sentencing pattern cannot be determined – there are simply not enough decisions – the sentence which was imposed on the applicant was significantly greater than any sentence imposed for similar offences of which this Court is aware. The Crown accepted that the sentence was high. In my opinion it was excessively so.

23 This case presents peculiar difficulties. When the sentencing judge first imposed a bond the applicant apparently performed satisfactorily and was making progress in Mirvac House. There is nothing to suggest that if he had been able to continue in that program he would not have achieved a successful outcome. It is a matter of great regret that his residency was terminated through no fault of his own.

24 Being without the support of Mirvac House his behaviour deteriorated and it was necessary for him to be dealt with as a person who had committed many breaches of the conditions of his bond. However, in my view, an appropriate sentence would have provided for a continuation of a program involving close supervision of the applicant with attention being given to his development so that he could ultimately function as a responsible member of the community. The sentence which his Honour imposed did not meet this objective.

Resentencing

25 The applicant tendered on this appeal reports from Dr Bath, a clinical psychologist working with child sex offenders and an accredited counsellor under the scheme operated by the NSW Commission for Children and Young People. In the event that this Court believed it necessary to resentence the Crown takes no objection to the Court considering these reports. I am satisfied that in the unusual circumstances of this case the reports should be admitted into evidence.

26 Dr Bath reports on the progress which the applicant made in Mirvac House including his progress at school where he began to experience academic success. Apparently Dr Bath personally resisted the withdrawal of the applicant from the program entitled “New Pathways Program” which he was then undertaking. There can be no question that the opposition of Dr Bath and some of his colleagues to the applicant’s removal from the program was justified. The fears which they held as to the applicant’s likely future behaviour if he was removed unfortunately materialised.

27 Dr Bath is of the opinion that the complex pattern of behaviour of the applicant is indicative of an autistic spectrum disorder (ASD). He has problems around non verbal communication, failure to develop peer relationships and lacks social and emotional reciprocity. He has poor fine and gross motor skills, sensory abnormalities, rigid thinking patterns with explosiveness, an early focus on transport themes (trains), problems around motivation, unusual memory skills, and speech abnormalities. Dr Bath believes that he may have a narcissistic personality.

28 Dr Bath indicated that people with ASD have difficulties:

· Understanding the impact of their behaviour on others

· Reading and responding to non verbal cues (such as indications of distress)

· Understanding social context (eg issues of age differences, roles etc) unless it has been explicitly explained or pointed out. For example, for most people the social context of pornography (paid actors, willing participants, all adults, its fringe status) is picked up intuitively. People with ASD do not intuitively pick up the unspoken rules of social transactions and can mimic the behaviours they see out of context

· Translating abstract principles (such as empathy, responsibility, respect) into specific behaviours – they tend to make sense of human transactions by means of rigid, idiosyncractic rules rather than principles

· Weighing up and working through consequences and adjusting behaviours accordingly (one of the so-called executive functions that requires what has been termed “working memory”)

· Mentalising in general, for example, being able to work through a fantasy in their minds without the need to touch or see for something to become ‘real’ to them

29 Dr Bath’s research indicates that “research into the behavioural difficulties of people with ASD is in its infancy.” However, he believes that for someone like the applicant the following intervention principles would apply:

“1. He needs a clear social structure in which to operate, where the rules and expectations are explicit, where socially appropriate behaviours are rewarded and where, if necessary, realistic, mildly-adversive sanctions apply. Supervision orders can be designed to address some of these needs. For (AEL), a supervision framework that encourages and supports him to attend school and to develop his cognitive strengths and interests is imperative. His cognitive abilities (including reading, comprehension, knowledge retention) are amongst his greatest strengths and these need to be nurtured. Clear guidelines, expectations and practical support around his living circumstances are also needed as it is apparent that he yet lacks the maturity and wisdom to find stable living options and to maintain a stable friendship group.

2. He needs a sound support structure in place where there are people he trusts and to whom he can turn when he needs help. It has been observed that people with ASD have difficulties generalising learning and therefore need ongoing social coaching to help them interpret situations and respond appropriately to social demands. This is in contrast to learning that relies on the application of adverse (painful) consequences that are applied after problems occur. Asperger himself observed that with such young people all learning has to proceed via the intellect.

3. Formal intervention relating to sexual offending behaviours needs to focus on rules to maintain safe, non abusive social interaction, time accountability and realistic supervision and monitoring, along with positive social coaching. Insight-related approaches or those that focus on abstract principles such as empathy or respect are less likely to be effective.

4. Those who work with (AEL) will need to understand that he needs focused help on translating cognitive knowledge into behaviour and to “teach for meaning” rather than knowledge per se; that he will need longer to process information; that he will learn better using both visual and auditory modalities rather than “talk therapy” alone; that traditional cognitive-behavioural approaches will not be effective (given their reliance on mentalising and working memory); and that group-based interventions are likely to be problematic. Computer-based learning, and the use of a laptop computer to keep notes would be useful for (AEL) given his manifest difficulties with hand writing and hand-eye coordination.

5. As with most treatment approaches, it is ultimately more beneficial and motivating to focus energies on what is referred to as developing a “good life” (ie one that leads to the development of realistic life goals, sound work practices, safe parenting roles, supportive friendships, positive habits etc) than to focus on the suppression of inappropriate thoughts and behaviours. Focusing on developing (AEL)’s cognitive and verbal strengths is one aspect of this ‘strength-based’ approach.”

30 In a further report Dr Bath expressed detailed views as to the appropriate treatment and supervision of the applicant in the future. He said:

“Background: (AEL) who is 16 years of age, is currently serving a sentence for the sexual abuse of his younger siblings which occurred when he was 12 years of age and younger. As outlined in the earlier report, young people with ASD's appear to be at risk of engaging in inappropriate sexual behaviours (and a number of other challenging behaviours) for a number of reasons that are related to their condition, including the fact that they have an impaired empathic capacity, they tend to be egocentric, they have difficulty reading nonverbal communications (such as facial expressions), and they have difficulty considering and weighing up the consequences of decisions. They also tend to choose behaviours and repeat them on the basis of the salience (effect, impact) rather than social significance. Thus, if it feels good, provides a sense of power or control, or is effective, the behaviour is more likely to be repeated - the social meaning or significance of the behaviours tends to be overlooked. Addressing the question of why and what should happen:
1. (AEL) would be best placed in a situation in which there is a good understanding of his personality style and day-to-day coaching (and if possible, group work) is available to him to help him learn about and understand normal social expectations and behaviours. Such a placement was provided during his time at Mirvac House (now New Pathways) in the Southern Highlands where, after a few difficult months, he settled into the program and made good social and academic gains. (AEL) has a history of getting into conflict with his peers and he needs both coaching around social skills and protection from the peer aggression that he sometimes tends to provoke.
2. He needs clear structure in terms of daily programming and expectations, and a reasonable amount of supervision and accountability. He probably receives this in the detention facility, but it is a regimented, controlled environment that does little to enhance his ability to make safe and appropriate social choices and to learn from these. In the months prior to his incarceration when he had little clear daily structure and accountability, (AEL) was experiencing a great deal of social difficulty, making rash and inappropriate decisions and getting into conflicts with peers. Any program into which (AEL) is placed will need to have a well-developed, clearly articulated model of care, an emphasis on daily and weekly timetabling, a case management program that addresses a range of social, familial, therapeutic and recreational needs, and a requirement that he attends school or work, keeps the program rules, and makes acceptable progress.
3. A program to address (AEL)'s therapeutic needs will also need to be in place as suggested below in (b).
4. It is likely that (AEL) will always benefit from some level of social coaching as people with his pattern of behaviour often find the generalisation of learning to new settings to be particularly difficult. It is unlikely that he would be able to stay more than a year in the highly-structured program recommended in 2 for an extended period of time so it would be helpful if such a program could gradually provide him with more independence as he learns to take responsibility and to make wise decisions. Ideally, he would move on to a less supervised and structured setting (operated by the same organisation) which would maintain some level of supervision and support.
5. Some level of statutory supervision would be of benefit to (AEL). He is likely to need such external accountability to help keep him focused on his commitment to his schooling and the new program as well as his statutory obligations.
(b) (AEL)'s therapy issues, especially in the future
(AEL) was placed in the Mirvac House program for over a year. During this time he made substantial progress with respect to his social skills, his schooling, and his therapeutic needs. For example, he made good progress in covering the exercises in his workbooks around sexual offending and participated in the other exercises that were required by program participants. His progress was slower in achieving improvements in his social interactions with peers although even here, significant progress was achieved overtime.
In terms of the risk that he may pose to children, the recent assessment reports suggest that this significantly lower than a few years ago. He does not appear to have a significant problem around deviant fantasy patterns involving children (these appear to be age appropriate) and his offences were essentially opportunistic, taking advantage of the proximity and vulnerability of his siblings. He has also learnt a great deal about his particular pattern of offending and structuring for safety. The risk that (AEL) carries pertains mainly to what are termed `static' factors - those that have to do with the historical facts of his background and offence history. Keeping a strong focus on sexually-specific issues is likely to be iatrogenic and to risk giving him a perception of himself as a sexual offender. This carries a danger that he will eventually act out the expectation. He will, however, benefit from periodic reminders and reviews of his safety plan.
Although his counsellor/s will need to be aware of potential risks around sexual behaviours, the focus of any direct therapeutic intervention should be on his social and emotional adjustment, and particularly on assisting him to relate with others successfully and on developing his positive attributes and talents. This is consistent with the current emphasis of sex offender treatment in which so-called `approach' goals are emphasised such as developing positive attitudes and ethics, working out employment and training goals, and strengthening social support networks. This is sometimes referred to as the "Good Lives" focus (Ward, 2000) and contrasts with an exclusive focus on so-called `avoidance' goals such as suppressing negative thoughts and attitudes.
(c & d) Possible future case supervisor and possible program
These two items are linked as the choice of counsellor will depend on where and with whom (AEL) will be living. It is unrealistic to think that (AEL) may be able to return to the family home. Both (AEL) and his parents accept that this will not be possible. He will need to go to a structured residential program that meets the requirements for structure and programming outlined above. The only realistic possibility I can see at this point is a Youth Off The Streets (YOTS) program, either in Sydney or the Southern Highlands of NSW. I have been in contact with YOTS and they state that they are willing to consider accepting (AEL) into one of their programs in the Southern Highlands. They will need to speak with him first to establish whether he wants to go and will commit to keeping the rules and any probation conditions that are set for him. I understand that Ms McKay is currently arranging to visit (AEL) to assess whether they can formally offer him a place.
Funding for such a program will need to be obtained. Normally such funding is provided by either the Department of Community Services or the Department of Juvenile Justice. The former is unlikely to contribute as they withdrew their funding some time ago and do not consider there to be a current child protection concern that warrant's their involvement. It is uncertain whether the Department of Juvenile Justice will consider funding (AEL)'s placement at YOTS. If these two funding sources fail an appeal might be lodged with Fr Chris Riley (CEO of YOTS) who may still consider taking (AEL) as he has been a past client of the organisation.
If YOTS is able to accommodate (AEL), I would recommend that he reside in a more structured facility for a year (or the best part of a year) whilst he attends school, TAFE or a combination of these, as some young people are currently doing. Foundation House, one of the YOTS facilities in the Southern Highlands has a few young people who are currently in year 11 and who intend to complete their year 12. The case plan should incorporate the need for moving (AEL) into a less supervised setting after the initial year and/or when he has demonstrated a marked improvement in his ability to safely manage his social relationships and has achieved stability around work or education.
I would recommend that a senior caseworker of the organisation in which he is placed take on the role of case supervisor for the period of time that he is with them - this is likely to be the case if he is accepted into a YOTS facility. He should also be allocated a counsellor from within the organisation to undertake a formal counselling program based on his broader adjustment as well as the offence-specific needs as outlined in the previous report. This counsellor should either be accredited or receive regular supervision from an accredited sex offender counsellor.
In addition to any such arrangements that are made, the structure provided by statutory supervision would also be beneficial for (AEL). I would recommend that any bond conditions specify the living situation to which (AEL) should be moved; the type of program that should be offered (as outlined above); the length of time he should be in this program; the expectations (in terms of education/work and cooperation); and other normal statutory accountability requirements.”

31 The offence which the applicant committed and the matters on the Form 1 were serious. However they should be understood as aberrant behaviour engaged in by a troubled boy in early adolescence. There is no suggestion that since the offences were committed the applicant has engaged in any deviant sexual behaviour although he has experienced great difficulty adjusting to his circumstances. This is not surprising given that he started life with significant handicaps and, once his offending was identified, an appropriate regime for his care could not be established. I do not diminish the potential impact of his offending upon his siblings and the likely impact on the whole of the family. Although the sentencing judge had no alternative but to deal with him according to law, the breaches of his original bond should be accepted as a product of the failure in the community to effectively respond to his problems.

32 It may be that the sentencing judge was not provided with evidence of the true nature of the applicant’s condition. He was also not provided with evidence of an effective plan for the care and ongoing rehabilitation of the applicant. That position has changed in this Court.

33 Evidence from an officer of the Department of Juvenile Justice was tendered on the appeal. This indicates that if the applicant is released to parole he will be able to be accommodated, without cost, in the Youth Off the Streets Program for a period of 12 months with a view to him thereafter moving into independent residential accommodation. His placement will be conditional on his continuing appropriate behaviour. I understand that this opportunity will provide the applicant with access to the discipline, guidance, education and care which he clearly needs if he is to take his place as a responsible member of the community. In my opinion in resentencing the applicant the orders of the court should condition his parole so that he resides at Youth Off the Streets. A condition should also be imposed that he attends sex offending counselling as directed by the Department of Juvenile Justice.

34 There is evidence before this Court which indicates that his period of incarceration may have jolted the applicant into a realisation of the need to address his aberrant behaviour and take responsibility for his actions. If further progress is to be made the applicant’s period of incarceration should now be brought to an end. A further condition of his parole must be that he accept the supervision of the Department of Juvenile Justice until the end of his parole period, which in my view should be on his 19th birthday.

Orders

35 In my view the appropriate orders:

1. Grant leave to appeal and uphold the appeal.
2. The sentence imposed on 3 March 2006 is quashed.
3. The applicant is sentenced to a non-parole period commencing on 3 March 2006 and expiring today with a further term expiring on 16 December 2008 (being the applicant’s 19th birthday).
4. I direct the applicant’s release to parole as soon as arrangements can be made for his accommodation in the Youth off the Streets Program. It is a condition of his parole that he accept the direction and supervision of the Department of Juvenile Justice including any direction as to his accommodation until the end of his parole period.

36 BARR J: I agree with McClellan CJ at CL.

37 HOEBEN J: I agree with McClellan CJ at CL.

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