BG v Young
[2019] ACTSC 230
•21 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | BG v Young |
Citation: | [2019] ACTSC 230 |
Hearing Date: | 21 August 2019 |
DecisionDate: | 21 August 2019 |
Before: | Murrell CJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – APPEAL AGAINST SENTENCE – Where the appellant was a young person at the time of the offending – Where the Magistrates Court imposed a sentence of six weeks’ imprisonment for common assault – Whether the sentence is manifestly excessive. |
Legislation Cited: | Crime (Sentencing) Act 2005 (ACT) ss 7, 33, 133C, 133D, 133G Magistrates Court Act 1930 (ACT) Pt 3.10 |
Cases Cited: | Dalton v The Queen [2015] ACTCA 48 |
Parties: | BG (Appellant) Robert Campbell Young (Respondent) |
Representation: | Counsel R Davies (Appellant) C Wanigaratne (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 31 of 2019 |
Murrell CJ
The appeal
The appellant appealed against a sentence of six weeks’ imprisonment imposed by Chief Magistrate Walker on 13 May 2019, on the ground that it was manifestly excessive.
On 13 May 2019, the Chief Magistrate imposed the following sentences:
Common assault six weeks’ imprisonment from 13 May 2019
Minor theft six months’ supervised good behaviour order
Fail to appear two weeks’ imprisonment fully suspended on a 12-month supervised good behaviour order
Fail to appear four weeks’ imprisonment fully suspended on a 12-month supervised good behaviour order
As a result of the convictions, the appellant was placed in breach of five good behaviour orders that had been imposed by the Chief Magistrate on 13 November 2017. Her Honour decided to take no further action in relation to those breaches.
The appeal is brought under Pt 3.10 of the Magistrates Court Act 1930 (ACT), which is by way of rehearing. It is also necessary to identify an error of law or fact or an unreasonable exercise of discretion for the appellant to succeed.
Where it is claimed that a sentence is manifestly excessive, the question is whether the sentence is unreasonable or plainly unjust: Dalton v The Queen [2015] ACTCA 48 at [18]. It is well-established that an appeal court will not interfere with the exercise of the sentencing discretion simply because it would have imposed a different sentence.
Facts
At 11:30 AM on 30 August 2018, the appellant (who was then 17 years old) attempted to exit the David Jones Canberra store carrying stolen items in his bag. The alarm was activated. A security officer approached the appellant and called for him to stop. The appellant continued to walk away. The security officer grabbed the shoulder strap of the bag containing the stolen items. The appellant turned and threw a punch, striking the security officer on the side of his face. The appellant continued to strike the security officer repeatedly to his face. The security officer sustained swelling and bruising to the left side of his face. The appellant also kicked the lower part of the security officer’s body. The appellant was restrained by other security officers.
Chief Magistrate’s decision
In the course of her Honour’s reasons, the Chief Magistrate observed that:
(a)The maximum penalty for common assault is two years’ imprisonment.
(b)The offence was committed in breach of good behaviour orders, three of which related to assaults.
(c)Objectively, the assault was in the mid-range of seriousness for such an offence.
(d)The appellant was 17 years old, nearly 18 years old, at the date of sentence.
(e)The appellant had experienced a highly disadvantaged, dysfunctional, and traumatic upbringing (upon which her Honour elaborated). Her Honour considered a pre-sentence report that highlighted the trauma, abuse, and neglect experienced by the appellant during his childhood.
(f)The appellant had a complex psychological profile and had been diagnosed with anxiety, attention deficit hyperactivity disorder (ADHD), post-traumatic stress disorder (PTSD), depression, and other disorders. Her Honour attributed the appellant’s psychological problems to his traumatic early life.
(g)The appellant’s difficulties were complicated by his history of using illicit substances.
(h)The appellant was unwilling to engage meaningfully with support and drug rehabilitation services. The appellant disrespected authority. Her Honour was satisfied that it was “highly unlikely that [the appellant would] comply with supervision in the community in the short term” and “highly unlikely” that he would comply with any community service order.
(i)The appellant was at a “very high risk” of reoffending in the future.
(j)The appellant had a significant history of violent offences, including offences of common assault and breach of a domestic violence order in NSW, and three previous common assaults in the ACT. Her Honour described this record as “a pretty appalling record of violence”.
(k)The appellant had expressed remorse. After the offence, he had encountered the security guard and shaken hands with him as a way of apologising for his actions.
(l)There was a real need for specific deterrence.
(m)Because of the appellant’s difficult background, he was “a less suitable vehicle for general deterrence”.
(n)Rehabilitation was the primary sentencing purpose.
(o)Relevant provisions of the Crime (Sentencing) Act 2005 (ACT) (Sentencing Act), including ss 7 (sentencing purposes), 33 (non-exhaustive list of sentencing considerations), 133C (rehabilitation as a dominant purpose in sentencing a young offender), and 133D (maturity, development, and family circumstances of a young offender) were to be taken into account.
(p)Imprisonment was a sentence of last resort, particularly for a young person, and any sentence of imprisonment that was necessary should be for the shortest possible term. While her Honour did not expressly refer to s 133G of the Sentencing Act, she stated its effect.
(q)Her Honour had regard to the overall impact of the sentences.
(r)The sentence of six weeks’ imprisonment reflected a 25 per cent reduction for the plea of guilty.
Appellant’s submissions
On appeal, the appellant took no issue with the characterisation of the objective seriousness of the offence as being in the mid-range. The appellant repeatedly hit and also kicked a security officer who was trying to do his job. There were a number of punches to the face, the most vulnerable part of a person body. The victim sustained significant soft tissue injuries.
The appellant conceded that he had a significant record for offences of violence. In 2016, a NSW court imposed a six-week control order for violent offences. The appellant noted that the three ACT convictions for common assault related to the same day, 9 September 2017.
The appellant noted that, at the hearing, a Youth Justice officer had advised that the appellant was transitioning into independent living and complying with residence and curfew conditions. He also appeared to be quite motivated to obtain employment and learn a trade.
However, the Chief Magistrate also had the pre-sentence report before her, which indicated that, as at the time when the report was written in March 2019 (about two months before the sentence hearing), the appellant was non-compliant with his bail order to a level and was considered to be performing unsatisfactorily. He had missed numerous supervision appointments, refused to attend appointments with his carers, and failed to attend urinalysis appointments.
On the appeal, the appellant also noted a conclusion made by the authors of the pre-sentence report:
Imprisonment: [the appellant] is aware that the court may make an order of imprisonment. In relation to a committal, the author respectively does not view remand as an environment that can best meet [the appellant]’s needs regarding developing routine and re-engaging with education, as well as helping him address his emotional and mental health needs as well as drug use. It is understood that this would be best met in the community.
The appellant conceded that this was only a recommendation and, ultimately, the decision was for the Chief Magistrate.
Consideration
The maximum penalty of two years’ imprisonment was the critical sentencing parameter. Objectively, the offence was serious and appropriately characterised as being in the mid-range of objective seriousness. The appellant had a significant history of violence. Less than 12 months prior to the subject offence, he had committed three common assaults in the ACT. For those offences, the Chief Magistrate had imposed good behaviour orders in November 2017. Consequently, at the time of the subject offence, the appellant was on conditional liberty in the community. The Chief Magistrate found that there was a very high risk of recidivism and the appellant has taken no issue with that finding.
Undoubtedly, the appellant advanced very strong subjective considerations. But there is no suggestion that her Honour failed to take those considerations into account.
The Chief Magistrate identified rehabilitation as a primary purpose when sentencing young offenders. While there were some positive aspects related to the appellant’s recent conduct (for example, he had not committed further offences since August 2018, he was in residential care, and he was in a supportive relationship), there was no clear prospect of rehabilitation. In addition to the sentencing purpose of rehabilitation, her Honour was required to consider other relevant sentencing purposes. In the circumstances of this case, personal deterrence was another very important sentencing purpose identified by her Honour.
The sentence for common assault must be viewed in context. Overall, the sentences were designed to address a variety of sentencing purposes. The punitive impact of the sentence imposed for common assault must be viewed in the context that her Honour took a lenient approach to the breach of good behaviour orders associated with earlier offences of common assault (deciding to take no action on the breaches) and imposed good behaviour orders for other offences (supporting the possibility of rehabilitation).
The appellant has not established that the sentence was excessive, let alone manifestly excessive, in the sense that it was unreasonable or plainly unjust.
The appeal is dismissed.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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