Colbalt v The Queen
[2012] NSWDC 305
•26 October 2012
District Court
New South Wales
Medium Neutral Citation: Colbalt v R [2012] NSWDC 305 Hearing dates: 26, 30 October and 2, 13 November 2012 Decision date: 26 October 2012 Before: Cogswell SC DCJ Decision: 1. Leave granted to withdraw appeals from probation orders and the bond.
2. Sentence appeals upheld (on 13 November 2012).
Catchwords: CRIMINAL LAW - Appeal against sentences - particular offences - larceny, assault police, intimidate police - young girl engaged in spree of uncontrolled behaviour - no prior criminality - diagnosed mental disorders - favourable Juvenile Justice report - compliant with Juvenile Justice supervision - succeeding at distance education - appeals allowed - suspended control order substituted with probation order, fine set aside. Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 20, 67(1).
Children (Criminal Proceedings) Act 1987 (NSW), ss 33(1)(b), 33(1)(e), 33(1B).Category: Principal judgment Parties: Brook Cobalt (Appellant)
Regina (Respondent)Representation: Solicitor:
Aboriginal Legal Service NSW/ACT (Appellant)
Office of Director of Public Prosecutions (Respondent)
File Number(s): DC 2012/00062786; 2012/00049394; 2012/00052461; 2012/00062774. Publication restriction: * Pseudonyms have been used in this judgment Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender. Identifying information has been removed from this version of the judgment to comply with the statute and, in some cases, replaced with pseudonyms.
Judgment
Brook Cobalt is a teenager who is said to have been diagnosed with attention deficit disorder and oppositional defiance disorder. Probably related to those disorders, over about 10 days or so in February this year she embarked on a spree of uncontrolled behaviour which became criminal. She was charged and came before the [place] Children's Court on 11 July 2012 before a magistrate. For most of the offences his Honour made a probation order. For one of the offences his Honour ordered her to enter into a good behaviour bond. For one of the offences his Honour imposed a control order but suspended it. Brook Cobalt has appealed against the severity of her sentences to the District Court.
HIS HONOUR: I will just depart from my reasons. Mr Barnes, am I right in thinking - and I may not be, I don't know - do you contest the probation orders at all? Are they being appealed from? Do you want to think about it and get instructions?
BARNES: Your Honour, my instructions were mostly in relation to the suspended control order.
HIS HONOUR: I gathered that.
BARNES: Yes. As I understand the approach that the magistrate took was that the contravene personal violence orders and the subsequent assaults were more serious than the initial assault in relation to the--
HIS HONOUR: I can understand that. I just need to know what I'm actually dealing with. Are you inviting me to - are you appealing from the probation orders? Now you may know the answer to that now or you may want to defer the answer until you get instructions. I just need to know whether I'm dealing with only two appeals, or one appeal perhaps, from the suspended sentence, so to speak, or whether I'm dealing with appeals for all of them, which in fact have been included in the appeal notice.
BARNES: Yes your Honour. They have all been included in the appeal notice. The young person instructs me in relation to the suspended control order your Honour and also in relation to the fine.
HIS HONOUR: Okay, and anything else?
BARNES: No your Honour.
HIS HONOUR: So are you seeking leave to withdraw the appeals from the probation orders and the bond?
BARNES: Yes your Honour.
Although Brook Cobalt appealed from all of the sentences, Mr A J Barnes who appears for her in this appeal indicates that she no longer wishes to press her appeal against the probation orders and the bond. She maintains her appeal against the suspended control order and a fine which was imposed for one of the offences. The fine was $150.
HIS HONOUR: Ms Siriwardana, do you oppose leave to withdraw?
SIRIWARDANA: No your Honour, not opposed.
Mr Barnes has sought leave to withdraw the appeals from the probation orders and the bonds. That application is not opposed by Ms I Siriwardana, who appears for the respondent Director of Public Prosecutions, and I grant leave to withdraw those appeals.
The result is that there are two appeals, one from the suspended control order and one from the fine. The fine was imposed for a larceny offence and the suspended control order was imposed for assaulting police.
I need to say a little about what kind of behaviour Brook Cobalt engaged in to bring about these charges. She apparently had a falling out with another girl at school called May Grey. The falling out was so serious that Brook Cobalt was served with an apprehended personal violence order. That happened on 10 August 2011. They were both at the same school although a year apart.
On 13 February this year Brook Cobalt started screaming at May Grey and threatening her. She was very abusive to her during the day. At one stage Brook Cobalt grabbed May Grey's hair and pushed her knee into the girl's face a number of times. She then punched her. Despite members of staff trying to stop her she still tried to punch the other girl. She persevered in this behaviour. That resulted in a charge of common assault and a charge of contravening the personal violence order. For the common assault his Honour imposed the good behaviour bond under s 33(1)(b) of the Children (Criminal Procedure) Act 1987 (NSW). For contravening the personal violence order his Honour ordered Brook Cobalt to go onto probation for 12 months.
The next morning Brook Cobalt was suspended from school. She was told to leave the school ground. She abused the School Principal but on her way she ran into May Grey again and a confrontation was about to happen when a teacher stood between them. Brook Cobalt attempted to push her way past the teacher and she tried to punch May Grey. The Principal stepped in as well. Brook Cobalt grabbed the Principal by the top of her dress and pulled her backwards. She grabbed hold of May Grey and tried to kick and punch her. The other teacher who had first intervened tried to grab Brook Cobalt who threw a punch at that teacher and narrowly missed. That behaviour resulted in three charges of common assault, one against May Grey, one against the School Principal and one against the teacher. It also resulted in a charge of contravening - again - the personal violence order. For all of those offences his Honour imposed probation orders for 12 months.
Just over a week later Brook Cobalt turned up at a video store in [place]. She was with four other girls. She stole an item from the video store. It was worth $15. She was arrested by the police later that day. They tried to put her into the back of the police truck. While that was happening Brook Cobalt thrashed out again and kicked one of the police in her stomach. She had previously tried to get away from the police. That behaviour resulted in charges of assault police and resist arrest.
When she was at the [place] Police Station she yelled at one of the police officers saying, "I know where you live, I have cousins in [place] that have just been released from gaol and they will come and kill you." She persisted, "I will give you whatever, I know where you live, you will get a bullet." Referring to another police officer she said, "And that other police officer with the kid, I'm going to get her and kick her kid." When the other police officer entered, the one whom Brook Cobalt had kicked in the stomach, she said, "I'm gonna fucking get you, I know where you fucking live and your fucking daughter." She persisted in saying, "I'm gonna get your daughter, string her fucking up and slit her fucking throat and guts while you watch her, then I'm gonna fucking kill you." As she did that she made a throat cutting gesture with her hand. She persevered saying, "Yes I fucking am, I'm going to kill your daughter." Both of the police officers concerned were women. Understandably her abusive language resulted in charges of intimidating the police. His Honour imposed a probation order on Brook Cobalt for the offences of resisting police and intimidating the police and imposed a control order for 16 months for the offence of assaulting police but suspended that control order.
Brook Cobalt has no criminal record. There is a helpful report from Juvenile Justice. One of the authors is Carmel Carmine, a Juvenile Justice officer from [place]. The report is dated 10 July 2012, the day before she was dealt with by his Honour. Her parents are separated. She said she wants to live with her mother and her mother's partner. The report records the diagnoses which I referred to at the outset of these remarks. The mother acknowledged that Brook Cobalt's behaviour had got out of control. There have been discussions about her being admitted to a psychiatric hospital but it has not yet reached that stage. Brook's father lives in [place] and maintains regular contact. Brook Cobalt was apparently regularly suspended from school but during suspensions has undertaken distance education. She is doing well in her distance education and is approximately 6 weeks ahead of the planned lesson schedule. Brook Cobalt explained to Ms Carmine that she has been involved in what she described as a negative peer group in [place]. That association was a contributing factor to her behaviour. She wants to recommence physical fitness and is apparently a very good long distance runner. There is a treating psychiatrist, Dr [name]. She regularly sees a mental health consultant at the Community Adolescent Mental Health in [place]. She is presently on prescribed medication Zoloft and Epilim.
She has been supervised since 27 February 2012 by Juvenile Justice. Ms Carmine's records that since the supervision commenced, Brook Cobalt "has complied with all directions from this agency including, attending and participating in counselling, educational programs and has undertaken an anger management course". She is apparently wanting to improve her behaviour. Ms Carmine was of the opinion that she will need to continue with regular mental health interventions. She wants to gain her Year 10 School Certificate. Ms Carmine notes that Brook Cobalt is "now able to demonstrate that she has insight into her negative behaviours and wants to continue to address the issues as outlined ... this report. [Brook] has also reported a commitment with counselling, education and case management from this agency and Mission Australia." The recommendation was that she be dealt with by way of a good behaviour bond and probation orders. The report acknowledged that a suspended sentence would be a harsher available alternative.
Mr Barnes points out that the focus of his attention on the appeal is the fine of $150 and the suspended control order. Given the extraordinarily bad and criminal behaviour of this teenage girl earlier this year but her very promising report in July this year I would not want to dispose of this appeal without hearing fresh evidence from Ms Carmine. I am happy for that to be in the form of oral evidence given in court. For that reason I propose to adjourn the proceedings to Monday 29 October 2012 at 10.00am for mention for the purpose of fixing a date next week for the conclusion of the hearing after hearing Ms Carmine and in the presence of Brook Cobalt.
HIS HONOUR: Is there anything else I need to do?
SIRIWARDANA: No your Honour. In relation to this appeal your Honour or any other?
HIS HONOUR: No, in relation to this appeal.
SIRIWARDANA: No your Honour, that's all.
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Decision last updated: 12 March 2014
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