DC (a pseudonym) v Halstead
[2023] ACTSC 84
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | DC (a pseudonym) v Halstead | ||||
| Citation: | [2023] ACTSC 84 | ||||
| Hearing Date: | 14 April 2023 | ||||
| Decision Date: | 20 April 2023 | ||||
| Before: | Norrish AJ | ||||
| Decision: | See [89] | ||||
Catchwords: | CRIMINAL LAW – Appeal – manifestly excessive – young offender –multiple offences-multiple breaches of conditional liberty – Youth Justice sentencing principles – “Bugmy” principles – “Verdins” principles – “Henry” principles on drug dependency – | ||||
| relevance to sentencing – primacy of the promotion of rehabilitation – promotion of rehabilitation in a practical way – combination sentence – preparation for release to the community | |||||
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7,10, 12, 33, 133C, | ||||
| 133D, 133G, | |||||
| Cases Cited: | House v The King (1936) 55 CLR 499 Bright v The Queen [2018] ACTCA 48 Tracey v The Queen [2020] ACTCA 51 AB v The Queen [1999] HCA 46; 196 CLR 111 MT v The Queen [2021] ACTCA 26 Bugmy v The Queen [2013] HCA 37 R v Verdins [2007] VSCA 102 R v Henry [1999] NSWCCA 111 R v KX [2020] ACTSC 349 R v OI [2020] ACTSC 286 Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 SBT v Wright [2021] ACTSC 322 Pearce v The Queen [1998] HCA 57 Johnson v The Queen [2004] HCA 15 R v Holder [1983] 3 NSWLR 245 | ||||
| Texts Cited: | David Thomas, “Principles of Sentencing” (Heinemann, 2nd ed, | ||||
| 1979) | |||||
| Parties: | DC (a pseudonym) (Appellant) | ||||
| Tristian Halstead (First Respondent) Stephen Richardson (Second Respondent) | |||||
| Shannon Snelleksz (Third Respondent) Jessica Slater (Fourth Respondent) Jack Bigmore (Fifth Respondent) | |||||
| Ethan Waller (Sixth Respondent) Troy Lawrence (Seventh Respondent) | |||||
| Riley Snell (Eighth Respondent) Johnson Zheng (Ninth Respondent) | |||||
| Representation: | Counsel | ||||
| S McLaughlin (Appellant) | |||||
| S Janavkovic (Respondents) | |||||
| Solicitors | |||||
| ACT Legal Aid (Appellant) | |||||
| ACT Director of Public Prosecutions (Respondents) | |||||
| File Number: | SCA 15 of 2023 | ||||
| Decision under appeal: | Court/Tribunal: ACT Childrens Court | ||||
| Before: Magistrate Campbell Date of Decision: 27 January 2023 | |||||
| Case Title: The Police v DC (a pseudonym) Court File Number: CH631/2021, CH749/2021, CH750/2021, | |||||
| CH850/2021 – CH852/2021, CH858/2021, CH861/2021, | |||||
| |||||
| CH98/2022, CH379/2022, CH444/2022, CH1110/2022, CH 1111/2022, CH11115/2022 | |||||
| Norrish AJ: | |||||
| Introduction | |||||
| 1․ | The appellant appeals out of time against orders made in the ACT Children’s Court on | ||||
| 27 January 2023 when the appellant was sentenced by a Magistrate, sitting in the Warrumbul Circle Sentencing Court with Elders. The total sentence imposed was 17 months and 10 days imprisonment (ss 10 and 133G of the Crimes (Sentencing) Act | |||||
| 2005 (“the Act”) commencing on 22 February 2022 and expiring on 1 August 2023 just | |||||
| before her 18th birthday. The appellant at the time of sentencing was 17 years of age. The sentences imposed related to 25 offences committed between 4 March 2021 and 24 September 2022. The backdating of the sentence beyond the date of her arrest in respect of the last series of offences on 24 September 2022 related to various periods when the appellant was remanded in custody, subsequently to be released on bail. The sentences imposed related also to breaches of seven good behaviour orders and four suspended sentence orders. The appellant has been in continuous custody since 24 September 2022. | |||||
2․ | Leave has been granted for the appeal to proceed notwithstanding it was lodged out of time. To assist the Court in the determination of this appeal, apart from extensive written submissions from both parties, the Crown has provided a timeline of relevant events, a graph of offences for which sentences were imposed and a further graph of the actual sentences imposed as annexures to its written submissions. There is no | ||||
| issue as to the jurisdiction of this court to deal with the appeal. The appellant’s counsel | |||||
| has provided a list of sentences imposed in respect of offences and breaches of Good Behaviour Orders and suspended sentences at paragraph 1 of its written submissions. | |||||
| The Crown’s annexures A and B are annexed to this judgment as annexures A and B. | |||||
| Annexure A is the “timeline” of offending. Annexure B is a schedule of charges and | |||||
| breaches of Conditional Orders with charge case numbers and short description of each matter. | |||||
| 3․ | The ground of appeal upon which the matter proceeds is that the sentences imposed, | ||||
| in some cases individually, but also in totality, are “manifestly excessive”. There is no assertion of “patent error”. The appellant submitting that “latent” error can be found by | |||||
| consideration of the sentencing outcomes in the context of the sentencing principles applicable to indigenous offenders, offenders with mental disability and young people | |||||
| under ACT legislation, the appellant’s subjective circumstances and current sentencing practices for young people charged with “take motor vehicle” and “aggravated robbery” | |||||
| offences. The appellant contends that individual sentences particularly in relation to 3 charges of take motor vehicle and 4 charges of aggravated robbery are excessive by reference to principles identified on her behalf, as is the aggregate sentence in the | |||||
| manner in which the sentences to be served. The respondent’s position is that the | |||||
| complaints have not been made out and the appeal should be dismissed. |
Principles for appeals from the Children’s Court
| 4․ | As the parties submit the principles to be applied in an appeal of this nature are “settled” |
| They are expressed in different ways in the submissions, presumably emphasising different aspects of the principles. | |
| 5․ | The prosecution submits that the principles applicable to appeals against sentence can be summarised as follows: |
(i) An appellate Court cannot disturb sentence imposed in the Court below
simply because it would have imposed a different sentence;
(ii) An appeal can be upheld and a different sentence imposed if the appellate
court is satisfied the exercise of the sentencing discretion was infected by
error of the kind identified in House v The King (1936) 55 CLR 499; and
(iii) If the appellate Court was a specific error (such as errors of law, errors of
fact, take into account an irrelevant consideration, or failing to take into
account a relevant consideration) but finds that the original sentence
nevertheless appears to be appropriate the appellate Court may decline
to intervene and dismiss the appeal.
| 6․ | So far as the principles relevant to determining whether a sentence is “manifestly |
| excessive” the appellant cites the summary of principles in Bright v The Queen [2018] | |
| ACTCA 48, particularly at [18]. The Crown relies upon an authority, expressing those principles perhaps in a somewhat different way, Tracey v The Queen [2020] ACTCA 51 at [37]-[38]. The principles contained within both those authorities are not in conflict and are each applied in the consideration of this appeal. I note both from the defence submissions and in the Crown submissions the recognition in the authorities by which I am bound that in sentencing exercises judicial officers possess considerable discretion, that the sentencing process by way of instinctive synthesis will by definition | |
| produce outcomes “upon which reasonable minds will differ”, expressed by Hayne J in | |
| AB v The Queen [1999] HCA 46; 196 CLR 111 at [128], as “there will be a range of possible sentences that could be imposed without error”. Importantly I am not permitted | |
| to express my personal view as to what sentences should have been imposed or that I may have imposed a different sentence. Rather I must be satisfied that there is relevant error, of principle, application of the law or the proper exercise of discretion in | |
| accordance with “House principles”. |
Appellant’s Submissions
| 7․ | The appellant set out in considerable detail matters relating to “Youth Justice |
| Principles” particularly in Part 8A of the Act which provides for the sentencing of young | |
| offenders. It is noted Part 8A was comprehensively considered by the Court of Appeal in the matter of MT v The Queen [2021] ACTCA 26, particularly at [53]-[90], a significant decision examining that Part that I must take into account. | |
| 8․ | Counsel for the appellant particularly submitted, the provisions and principles discussed in MT provide that: imprisonment as a last resort and should be imposed for the shortest appropriate period (s 133G(2) of the Act); the Court must consider a combination sentence (s 133G(3) of the Act); rehabilitation of the offender may assume greater weight than the other s 7 purposes (s 133C(1) of the Act); the Court must have |
| particular regard to the common law principle of “individualised justice” (s 133C(2) of the Act); and the offender’s state of maturity, development, and family circumstances | |
| are relevant to the sentencing exercise (ss 133D(1)(a), (b) and (c) of the Act). I point out that of these matters there is no doubt. | |
| 9․ | The appellant’s counsel reminds this Court that notably, the Court of Appeal in MT |
| observed that (at [61]-[62]): |
In relation to s 133D(1)(c), the Explanatory Statement observed:
“In some cases offending behaviour by children or young people can be triggered by
family circumstances or evolve in a context of dysfunctional family life. This subsection
requires the Court to consider that context when sentencing a young offender.”
In this regard, s 133D(1)(c) anticipated the general sentencing principle that was entrenched by Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), that a dysfunctional
upbringing (for which an offender cannot be held responsible) may thwart the offender’s
capacity to mature, and explain their criminal behaviour. In Bugmy at [43] the Court said:
“The experience of growing up in an environment surrounded by alcohol abuse and
violence may leave its mark on a person throughout life. Among other things, a
background of that kind may compromise the person’s capacity to mature and to
learn.”
Mr McLaughlin submits that the appellant is a young indigenous woman who has had a depraved (sic) upbringing, suffers from intellectual and mental health difficulties and who had an early introduction to illicit substances.
| 10․ | It was submitted on behalf the appellant that the sentencing Court had a range of material available to it at the time of sentencing, including a pre-sentence report and a report from Dr Fernando Roldan. This material reflected a life of dysfunction, disadvantage, abuse and neglect. Again, of this there is no doubt and was not disputed by the Crown. |
| 11․ | It was submitted that the appellant’s circumstances were summarised aptly by Dr |
| Roldan in his report as follows: |
…[The appellant] presents with complex, varied and significant challenges. Furthermore, I
note that [the appellant’s] difficulties include intellectual disability, learning impairment,
behavioural disturbance, disruptive schooling, substance abuse disorder, possibly untreated ADHD, and possibly also some other form of psychological/psychiatric disorder, all on a background of a highly chaotic home environment which has been and continues to be highly unstable, traumatic, disruptive, lacking in discipline, lacking in consistent guidance and appropriate routine, and lacking in appropriate stimulation, as well as what is likely to be a strong family history of substance abuse, learning disability, antisocial behaviour and psychiatric disorder and what this implies in terms of environmental and genetic influences
on [the appellant’s] abilities and functioning.
Nobody disputes this.
| 12․ | It was submitted that the subjective history of the appellant is such “as to engage the |
| principles set out in Bugmy v The Queen [2013] HCA 37 and R v Verdins [2007] VSCA 102, as well as consideration of the guidance provided by Wood CJ at CL in R v Henry | |
| [1999] NSWCCA 111”. | |
| 13․ | It was acknowledged by the appellant’s counsel that the learned sentencing Magistrate |
| made reference to Bugmy, when she stated that: |
[the appellant’s] background is clearly a background to which the principles in Bugmy apply.
She has had clearly an extremely disadvantaged life from an early are, with exposure to family violence, and her childhood trauma continues and as and continues to impact on her
general day-to-day functioning, as was Dr Roldan’s view.
| 14․ | It was also conceded that the learned sentencing Magistrate accepted the importance of Verdins when stating: |
In my view it is clear that the principles of Verdins apply, in that in a number of respects her intellectual disability mostly lowers her moral culpability. Further, it makes her not an appropriate vehicle for general deterrence and also means that her experience in custody would be more burdensome to than someone who does not have such a disability.
| 15․ | It was further conceded that, consistent with the above passage, the learned Magistrate stated: |
The information shows that [the appellant] commenced drug use from a very early age, and that is a relevant factor because it ameliorates to some degree the principle that drug use is not a mitigating factor when it comes to offending. When a person commences drug use at a very early age, they do so without full knowledge of what consequences come from drug addiction. It is clear that most of the offending that [the appellant] has engaged in has either been at a time when she is under the influence of drugs, or motivated by a need for money to get those drugs.
| 16․ | The appellant’s counsel submitted: |
In the present matter, the interplay between cognition, mental health, disadvantage and drug use needs to be appreciated. It is in the context of impaired cognition and depraved circumstances that the appellant commenced illicit substance abuse at an early age. Further, the appellant was required to navigate those depraved (sic) circumstances while suffering from her intellectual impairment. All of this must lead to a conclusion that the appellant is significantly less morally culpable for offences committed while under the influence of illicit
substances or to fund that addiction. Further, the appellant’s unique circumstances must
result in general deterrence playing a markedly lesser role in the sentencing exercise.
| 17․ | The use of the word “depraved” was a considered choice of words. It was further |
| submitted that: |
The appellant’s overwhelming subjective circumstances must be assessed in light of the
paramount consideration being rehabilitation, and in light of the recent diagnosis of (and
treatment for) schizophrenia. In that regard, it is noted that the appellant’s behaviour in
custody had improved during the period of remand leading up to the sentence (a period during which the appellant had been medicated on an antipsychotic). Such circumstances warrant an approach (consistent with the Youth Justice Principles) emphasising rehabilitation and mitigating the need for specific deterrence.
| 18․ | In respect to individual sentences it was submitted that in passing sentence a Court must consider current sentencing practice under s 33(1)(za) of the Act. While it is |
| acknowledged that bare statistics are of “limited utility”, where the offender is a child and therefore there is a sparsity of published decisions, “statistics may provide some guidance”. The appellant’s counsel referred to statistical information from the ACT Sentencing Database in relation to “take motor vehicle without consent” and | |
| “aggravated robbery” sentences imposed in the Children’s Court. | |
| 19․ | Reference was also made to 2 recent decisions of the ACT Supreme Court in respect of aggravated robbery matters the details of which were summarised for comparative sentencing purposes. Those decisions were R v KX [2020] ACTSC 349, per Mossop J and again Mossop J in R v OI [2020] ACTSC 286. |
| 20․ | Counsel for the appellant submitted: |
The sentence imposed upon the appellant failed to properly balance the objective seriousness of the offending and the compelling subjective circumstances of the appellant in a manner consistent with the Youth Justice Principles.
| 21․ | It was conceded that the learned Magistrate “correctly” identified the need for significant support. It was then submitted that despite that recognition, on the basis that “the court |
| [was] not satisfied that the young person would comply with any suspended sentence | |
| or good behaviour conditions”, the learned sentencing Magistrate declined to suspend | |
| a portion of the sentence. “The failure to take such an approach (as encouraged by the | |
| Youth Justice Principles) has the practical effect that, at the end of her period in custody, the appellant will be released into the community without court sanctioned | |
| support.” | |
| 22․ | It is submitted that ‘The sentence imposed fails to place an emphasis on rehabilitation |
| for a young offender from a disadvantaged background who has mental health and illicit substance abuse issues. Such an approach is particularly unfortunate given her recent diagnosis and in circumstances where supports outside the criminal justice | |
| system appear to be lacking”. None of which was the fault of the appellant. The | |
| appellant was entitled to National Disability Insurance Scheme support which was unknown to those with responsibility for her care at a conference recently organised to discuss her needs. | |
| 23․ | Finally, it was submitted in writing that: |
The appellant’s subjective circumstances and the Youth Justice Principles, the individual
sentences (particularly in relation to the Take Motor Vehicle and Aggravated Robbery offences) and aggregate sentence are manifestly excessive. By declining to suspend a portion of the sentence and afford the appellant the benefit of a period of supervision, the error has been compounded.
| 24․ | The oral submissions of the appellant repeated some of the written submissions that |
| included the concession that whilst there was not “patent” error there was “latent’ error | |
| in that the Magistrate had not given sufficient weight to matters such as principles relating to the sentencing of offenders with mental disabilities, principles to be applied | |
| in youth sentencing as set out in the Part 8A of the Act and the application of “Bugmy principles” to the instant case. | |
| 25․ | In relation to the specific sentences that were imposed these latent errors had rendered the head sentence excessive. But further, the head sentence was excessive having regard to individual sentences which were excessive either by regard to the jurisdictional limit for particular offences, the statistical information concerning the range of sentences for particular types of offence and having regard to comparative sentences set out in the written submissions. |
| 26․ | Counsel for the appellant referred the Court to specific charges, “take vehicle without consent” (CH2022/1110), “aggravated robbery” (CH2022/379) and “take vehicle without consent” (CH2022/444) as specific examples of individual sentences that were |
| excessive by regard to the jurisdictional maximum penalty, the facts of the cases and the range of sentences reflected in the statistics or individual sentences reflected in previous decisions of the Supreme Court. The submission was that individual error in relation to particular sentences must have an impact upon the correctness of the aggregate sentence imposed. It was submitted that whilst it can be accepted that a number of the individual sentences were correct, the errors identified in submission | |
| were “extrapolated” into the aggregate sentence. Further, it was submitted that the | |
| Magistrate erred in fashioning the sentences to reflect the finding that there was a risk of further offending thus rendering impractical further conditional liberty for the offender | |
| (for example as may be reflected in a “combination sentence”). It was submitted that | |
| amongst matters not taken into account appropriately by the Magistrate was the evidence of improved behaviour whilst most recently in custody, the recent diagnosis | |
| of “schizophrenia” and the reaction of the appellant to the regime of medication. |
Respondent’s submissions
| 27․ | The Crown submitted that to determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender said to be manifestly excessive. |
Youth justice principles and appellant’s subjective circumstances
| 28․ | The application of those general principles to the appellant's case is not contested. However, it is submitted that these do not advance the appeal given that these principles and the appellant's subjective circumstances (which were described by the Magistrate as "extremely compelling") were at the forefront of the minds of the Magistrate and of the Elders when sentencing the appellant. The Crown submitted that |
| all the matters requiring consideration by the Children’s Court in the circumstances of | |
| this appellant received due attention and consideration. | |
| 29․ | It was pointed out that at the beginning of her remarks, the Magistrate had stated that: "I don't think this court has any hesitation in saying that the Bugmy principles apply |
| here ... and that's apparent from the presentence report itself”. Further, the Magistrate | |
| (and the Elders) clearly accepted that the Bugmy principles applied to the appellant's case, noting the following in her decision: |
[The appellant’s] background is clearly a background to which the principles of Bugmy apply.
She has had an extremely disadvantaged life from an early age, with early exposure to family violence, and her childhood trauma continues and has and continues to impact on her general day-to-day functioning as was Dr Roldan's view.
| 30․ | The Crown submitted that, the Magistrate (and the Elders) “clearly accepted” that the Henry principles applied to the appellant’s case, noting the following in her decision: |
The information shows that [the appellant] commenced drug use from a very early age, and that is a relevant factor because it ameliorates to some degree the principle that drug use is not a mitigating factor when it comes to offending. When a person commences drug use at a very early age, they do so without full knowledge of what consequences come from drug addiction. It is clear that most of the offending that [the appellant] has engaged in has either been at a time when she is under the influence of drugs, or motivated by a need for money to get those drugs.
| 31․ | The Magistrate (and the Elders) “clearly accepted” that Verdins principles applied to the appellant’s case. The magistrate outlined the appellant’s intellectual and mental |
| health diagnoses as per Dr Roldan’s report, before going on to state the following in | |
| her decision: |
In my view, it is clear that the principles of Verdins apply, in that in a number of respects, her intellectual disability mostly lowers her moral culpability. Further, it makes her not an appropriate vehicle for general deterrence and also means that her experience in custody would be more burdensome to than someone who does not have such a disability.
…
In terms of the purposes of sentencing …. General deterrence plays a much lesser role for
two reasons: because of her mental illness, but also because of her young age.
32․ The Magistrate (and the Elders) also clearly accepted that rehabilitation was a predominant factor in sentencing. The Magistrate stated that “rehabilitation must be the paramount concern for the court” before considering the Youth Justice Principles
(found in Part 8A of the Act) in her decision:
When sentencing in the Children's Court and the court is minded to impose a sentence of imprisonment, the Children's Court or Warrumbul Court must consider whether it is appropriate to suspend that term of imprisonment. There is no parole system in the Children's Court and children are only to be sentenced to the shortest time that will adequately reflect all the purposes of sentencing.
| 33․ | It was submitted by the Crown that the Magistrate (and the Elders) had given “dual effect to the appellant’s subjective circumstances and the youth justice principles by |
| reducing the individual sentences and by reducing the overall sentence through the | |
| application of concurrency”. This was “explicitly” spelt out by the Magistrate in her | |
| decision as follows: |
In sentencing the young person today where there is such a large number of offences and covering a large period of time, concurrency and cumulation must be considered and it is a matter where I have taken into account the youth justice principles, the Verdins principles and the Bugmy principles to reduce the sentences and impose a great deal of concurrency in the sentences to be imposed. Otherwise, it would result in a crushing sentence for the young person.
| 34․ | The Crown then submitted that: |
Having regard to the above, it is evident that the Magistrate (and the Elders) paid significant
heed to the youth justice principles and to the appellant’s compelling subjective
circumstances such that the appellant’s individual and aggregate sentence were
consequently ameliorated.
Individual sentences of aggravated robbery and take motor vehicle without consent
| 35․ | It was submitted that the starting sentences for the offences of aggravated robbery and take motor vehicle without consent did not exceed the bounds of the sentencing |
| Magistrate’s discretion taking the Court to each of the sentences imposed in relation to | |
| a summary of the facts and other relevant matters in respect of 4 of the aggravated robbery offences and 3 of the take vehicle without consent matters. Further, the Crown sought to make an argument as to the leniency in fact of these sentences expressed | |
| as percentages of the “maximum penalty” if the offences were dealt with on indictment. This aspect of the Crown’s submissions I need not address. | |
| 36․ | Further it was submitted that the appellant's criminal history “limited the amount of leniency which could be afforded to (the appellant) by the Court”. |
| 37․ | The Crown in its written submissions stated: |
Since 2019, the appellant had accrued a significant antecedent history comprising of violence and of dishonesty offending including at least 30 prior convictions for theft, 2 prior convictions for aggravated robberies, 1 prior conviction for aggravated burglary, 2 prior convictions for take/ride/drive motor vehicle without consent, and 11 prior convictions for common assaults and assault frontline worker. Notably, the appellant had previously received sentences of imprisonment including full-time custodial terms. There had been no significant gap in her offending. Despite some rehabilitative orders previously put into place by the court, the appellant persisted with and escalated in her offending behaviour.
| 38․ | Also, it was noted that at the time of all the offences, the appellant was subject to different forms of conditional liberty. It was submitted that this was a significant aggravating feature on sentence. |
| 39․ | A particular submission put that requires specific comment later was in the following terms: |
Two sentencing purposes pulled in different directions. As rightly recognised by the Magistrate, the appellant posed a significant risk to the community if released from custody given her criminogenic risk factors required significant supports and long-term treatments. Whilst the appellant's rehabilitation certainly did not cease to be a relevant factor on sentence, her history of similar offending and her lack of compliance with recent bail and sentencing orders cast considerable doubt in respect of her prospects of rehabilitation, and necessitated a sentence which gave weight to personal deterrence and to protection of the community (again as acknowledged by the Magistrate). Additionally, having regard to the fact that all the above offences involved victims, the sentences imposed still need to give effect to sentencing purposes of accountability, punishment and the recognition of the harm done to the victims.
| 40․ | The Crown submitted that each of the sentences imposed were within legitimate discretion. It was submitted that the statistical information and comparative sentencing exercises provided little or no assistance to the appellant for a range of reasons submitting, sentences imposed in other cases are not precedents themselves and that |
| “considerable caution” needs to be exercised to not place undue weight on the | |
| numerical figures of past sentences imposed. It was submitted that consistency in sentencing practice relates to the consistent application of relevant legal principles, not numerical equivalence, and sentencing practice does not cap the upper nor lower ranges of a possible sentence. It was submitted that even though lessor sentences have been imposed for offences of take motor vehicle without consent and aggravated | |
| robbery in other cases in the ACT Children’s Court, this does not mean that the | |
| particular sentences in the present case are manifestly excessive. |
Aggregate Sentence
| 41․ | The aggregate term of imprisonment of 17 months and 10 days cannot be said to be |
| “plainly unreasonable”, noting that this aggregate term reflected “twelve discrete | |
| episodes” of criminality involving multiple victims and spanned over the course of one | |
| and a half years. For sentencing proceedings involving multiple offences, a court must fix a separate and appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality. There are, of course, multiple ways in which to structure a sentence involving multiple offences. The complexity of structuring such sentences calls for restraint upon appeal as noted by the Court of Appeal in Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 at [56] (citations removed): |
There is no single correct approach to the structuring of multiple sentences and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise.
| 42․ | In the present case, the Magistrate stated that she would apply "a great deal of concurrency in the sentences to be imposed" to avoid a crushing sentence. The Crown |
| states: “Indeed, this was precisely what the magistrate did in her generous application of concurrency”, noting, a number of examples from the orders made. | |
| Suspension of Sentence | |
| 43․ | The Crown submitted that s 133G of the Act did not mandate the requirement to suspend part of a sentence of imprisonment but rather mandated that the Court give |
| consideration to a “combination sentence”. The Crown also in defence of the Children’s | |
| Court’s decision pointed out that the pre-sentence report author highlighted the | |
| difficulties which the appellant had in complying with community-based Court Orders with a number of examples during the recent course of offending set out in the submissions. The Crown noted a history of self-medication by drug use when the appellant was in the outside community and noted sadly that the only time that the appellant was able to adhere to her medication was when she was in custody. | |
| 44․ | The Crown referred the Court to the “pre-sentence report” where the author made the |
| following observation: |
... it appears in recent years the only consistent level of positive intervention [the appellant] receives is when she is remanded in custody. This is when [the appellant] has been able to appropriate engage in programs and education and successfully receive medication and support as required. [The appellant] is unable to abstain from antisocial peers and drug use whenever she is in the community and unfortunately this in turn prevents her from engaging and moving forward in any interventions that might reduce her risk of re-offending. Whilst [the appellant] is in [Bimberi], her criminogenic risk is moderate for substance abuse being a custodial female. Once released into the community, this area of criminogenic risk level is high. [The appellant] has complex disabilities, mental health and a history of trauma that influences her behaviours and attitudes which alternatively affects her ability to make positive decisions around her peer associations, substance use and reframing offending behaviour. Multiple interventions such as rehabilitation have previously been put in place for [the appellant] but she has been unsuccessful when completing them. In addressing [the
appellant’s] needs effectively, there is a dedicated and committed care team to support and
help [the appellant] whilst in [Bimberi] and upon her release.
45․ The Crown submitted that the Magistrate correctly noted the escalation in the appellant's offending since she was 14 and noted the most recent offending had occurred as recently as 24 September 2022. The Magistrate stated the following in respect of the appellant's current capacity to comply with a suspended sentence order:
It is my view that when I come to consider the appropriate sentencing in discussions with the elders of this court that the court does not have any confidence that she would comply with any good behaviour orders that could be associated with suspended sentences.
| 46․ | It is submitted that there was: “much force and pragmatism to this decision reached by |
| the Magistrate (with the Elders) given the individual circumstances of this particular | |
| appellant.” The prosecution relied upon the observations of Mossop J in SBT v Wright | |
| [2021] ACTSC 322 at [81] which relevantly states that "[t]he consideration of rehabilitation does not, in every case, require that a portion of the sentence be served in the community ... " and this is so even in the case of sentencing a young offender. In the present case, the approach taken by the magistrate (with the endorsement of the Elders) was entirely appropriate. | |
| 47․ | The prosecution submitted that: |
(T)he risk in releasing the appellant, with her unresolved issues, on suspended sentence orders was that if the appellant reoffended after her 18th birthday on 5 August 2023, the appellant would be liable to serve those suspended terms of imprisonment in the AMC. Rather, it was in the appellant's best interests to serve the shortest appropriate term of imprisonment in full-time custody such that she could enter adulthood without any sentence hanging over her head.
| 48․ | In this regard the Crown relied upon the observations of Mossop J in SBT as “equally applicable” to the appellant's case: |
Her Honour made clear that she considered it would be counter-productive for the offender to serve part of his sentence in the community. That was because of his history of failing to comply with community-based orders. It was within her Honour's discretion to treat as undesirable a sentence which would be likely to result in a failure to comply with the requirements of supervision and the likelihood of having to be dealt with again for breaches of the conditions of a good behaviour order. It was open to the magistrate to determine that a sentence served by full-time detention would be more appropriate for the offender.
| 49․ | The Crown’s oral submissions in reply to the appellant’s submissions were that, in the |
| context of the proper consideration of a jurisdictional limit, the sentence for the offence | |
| 2022/1110 (an offence of “ take motor vehicle without consent” the subject of particular focus by the appellant’s counsel) was modest having regard to the fact that it was | |
| amongst the last offences in time, was committed in breach of conditional liberty and was an offence with features of aggravation including harm done to the victim, loss of the property for a period of time, a degree of premeditation and that the vehicle in question was used by the offender to commit a further offence, that is damage to a | |
| police vehicle by reason of a collision giving rise to an offence of “damage police | |
| vehicle” (CH2022/1111). It was noted that for that second offence the offender was | |
| sentenced to 5 months imprisonment, fully concurrent with the “take vehicle” offence | |
| subject of complaint. Likewise, she submitted that the other two offences the subject of specific complaint were not unreasonable by regard to the proper application of principles in relation to the use of statistics and seen in the context of the course of conduct of the offender. | |
| 50․ | The Crown submitted in relation to the consideration of youth sentencing principles and the primacy of rehabilitation in sentencing (s 133C of the Act) that emphasis upon rehabilitation did not necessarily require an offender to be subjected to supervision and that in this particular matter the appellant would appear to be much more compliant with medical supervision and the like whilst in custody than in the wider community. |
| 51․ | In the context of the considerable criminal history of the offender the decision of the |
| Magistrate was “considered” and “careful”. Whilst it was “sad” that the offender was | |
| required to be in custody, her previous conduct of not complying with directions, self- discharging from rehabilitation programs, not engaging with support services supported the pessimism of the Magistrate as to the ability of the offender to comply with supervision. Her condition of schizophrenia requires management of that condition by strict compliance with medical direction and there was no confidence in her ability to undertake that in the wider community at the time of sentencing. | |
| 52․ | The Crown further submitted that to do as was requested by the appellant and adjust two or three individual sentences to give effect to the reduction of the aggregate |
| sentence would be “tinkering” with the sentencing process in a manner that was | |
| inconsistent with the jurisdiction of the court to review previously imposed sentences. | |
| 53․ | In reply, counsel for the appellant noted that if an adjustment that was minor was |
| “tinkering” it was the fact that for a young person time in custody was a significantly | |
| different experience than for an adult and that even the adjustment of a sentence by “a couple of weeks” (as an example) was a significant matter for a young person in | |
| custody and was an adjustment consistent with recognition of “Youth Justice Principles” | |
| in sentencing. |
Consideration
| 54․ | The appellant’s counsel submitted it is important for the purposes of this appeal to view |
| the sentencing exercise through the prism of four significant issues required to be | |
| considered by the ACT Children’s Court in this matter. They are as described in the | |
| written submissions: |
(i) The “Youth Justice Principles” set out in Part 8A of the Act applicable in
this particular matter;
(ii) “Bugmy Principles” as they relate to the sentencing of relevant indigenous
offenders;
(iii) “Verdins principles”, concerned with the sentencing of offenders with
impaired mental functioning with a permanent or temporary; and
(iv) The sentencing of offenders with drug addiction or dependency issues as
discussed in Henry.
| 55․ | This was conceded by the Crown but viewed by it as having been done with a result that was, perhaps, unduly lenient. Intimately bound up in these matters was the need for consideration of the subjective circumstances of the offender, including her medical conditions her upbringing education disadvantages (and advantages if any), her family and cultural environment, her prior contact with the authorities and the courts, her response to previous court orders and capacities and qualifications for future development and/or progress amongst other matters, in the context of the objective facts of the offending. It was acknowledged by the appellant that each of these matters were taken into account and discussed by the learned Magistrate. But either in combination, or singularly, the significant matters identified above were not given proper weight as evidenced by the outcome, particularly the failure not to provide for |
| some type of supervision on release. Hence “latent error”. | |
| 56․ | The High Court majority in Bugmy stated at [43]-[44]: |
…The experience of growing up in an environment surrounded by alcohol abuse and
violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
| 57․ | As was pointed out in MT at [61]-[62], the Explanatory Statement for the introduction of the legislation that created Part 8A of the Act confirms that s 133D(1)(c) anticipated the general sentencing principle “entrenched” in Bugmy that dysfunctional upbringing for |
| which an offender cannot be responsible may thwart the offender’s capacity to mature | |
| and explain their criminal behaviour. Such is the case here. | |
| 58․ | In Verdins, the Court stated at [32]: |
Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as
distinct from the offender’s legal responsibility. Where that is so, the condition affects
the punishment that is just in all the circumstances; and denunciation is less likely to
be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the
conditions in which it should be served.3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing
consideration likewise depends upon the nature and severity of the symptoms of the
condition as exhibited by the offender, and the effect of the condition on the mental
capacity of the offender, whether at the time of the offending or at the date of thesentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable
recurrence) may mean that a given sentence will weigh more heavily on the offenderthan it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect
on the offender’s mental health, this will be a factor tending to mitigate punishment.
| 59․ | In Henry, at [273] Wood CJ at CL observed (in relation to the sentencing of armed robbers with drug addiction/dependency issues), which was approved by the majority: |
In my view the relevant principles are as follows:
(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;
(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
(i) the impulsivity of the offence and the extent of any planning for it; cf R v Bouchard (1996) 84 A Crim R 499 at 501-502); and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported);
(ii) the existence or non existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;
(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;
(c) It may also be relevant as a subjective circumstance, in so far as the origin or extent
of the addiction, and any attempts to overcome it, might:(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported);
(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf R v Hodge (Court of Criminal Appeal New South Wales 2 November 1993, unreported) and R v Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;
(iii) justify special consideration in the case of offenders judged to be at the cross
roads: R v Osenkowski (1982) 30 SASR 2125 A Crim R 394.
| 60․ | These principles and the relevant provisions of Part 8A of the Act were agreed are all extremely significant in this sentencing process. It must be said in relation to the principles set out above, in the authorities quoted and in Part 8A of the Act, that they can be difficult to apply for the purposes of fashioning a particular sentence or sentences for an offender who is entitled to have invoked one or other or all of them as relevant to his or her sentencing exercise. The appellant here is entitled to have all considered. Their respective applications may reduce what may otherwise be an appropriate custodial sentence having regard to the objective facts and consideration of specific provisions in s 33 of the Act relevant to the assessment of the facts for sentencing purposes. |
| 61․ | Application of these principles to a particular case may require orders other than custodial orders where a custodial sentence may be otherwise appropriate without their consideration. The application of these principles, in the context of relevant matters arising under Part 8A of the Act, does not dictate a particular outcome for a specific offender. But the combination of these matters, as arises here, represents not only matters that significantly mitigate what might otherwise be appropriate sentences but also excites consideration of matters that the objective facts standing alone do not suggest the offender deserves. Particularly, as here, there exists a strong causal connection between these principles and the offending behaviour and/or the capacity of the offender through no fault of her own to moderate her offending behaviour. Hence the real difficulty of this sentencing exercise beyond the complexity of the objective |
| facts and the objective seriousness of multiple “courses of offending”. | |
| 62․ | There was a need, as some of the appellant’s submissions both oral and in writing |
| concede as well, to also have regard to the objective criminality of the offending (reflecting the various matters arising under s 33 of the Act, varying from offence to offence), proper regard to the totality of the offending and what the course of the | |
| offending may inform the Court about the realistic options available in the “mechanics” of sentencing, particularly given the paramount consideration of “the promotion of | |
| rehabilitation” of the appellant pursuant to s 133C of the Act and the other matters | |
| identified in ss 133D and 133G of the Act. | |
| 63․ | Whilst the Crown at one point in its oral submissions, and in its written submissions, |
| sought to identify “purposes of sentencing” set out in s 7(1) of the Act other than | |
| promotion of the rehabilitation of the appellant to justify dismissal of the appeal, the learned Crown had to be reminded during the oral submissions that the terms of s 133C had to be at the forefront of the sentencing of any relevant offender no matter how | |
| serious the offending (cf. MT v The Queen [2021] ACTCA, at [53]–[64]).That section | |
| specifically states that despite the terms of s 7(2) of the Act the Court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in s 7(1). Further, the section requires in sentencing a young offender that a court must have particular | |
| regard to the common law principle of “individualised justice”. These matters in | |
| conjunction with ss 133D and 133G of the Act were required of the Magistrate and | |
| required of me in reviewing the Magistrate’s decision. | |
| 64․ | The Magistrate was confronted with a very difficult and complex exercise which is fairly acknowledged by both parties. But the complexity of the exercise of itself was capable of informing and, in fact, did inform the Magistrate of relevant matters to the structuring of the sentence and even the length of the sentence. The Magistrate was dealing with 25 offences committed over a period between early March 2021 and late September 2022 which variously involved offences (but not all the offences) committed in breach of good behaviour orders of which 7 were identified, and in breach of 4 suspended sentences of detention. It was not argued by counsel for the appellant that it was wrong for her Honour either to revoke those orders or take them into account as relevant to particular offences because they were committed while subject to that conditional liberty. Further during the course of the offending, the offender was granted bail on at least 4 occasions during which the appellant committed further offences. It is correct that the offender at the commencement of this course of offending was 15 years of age, but at that time she had a substantial history of offending with previous periods of |
| detention imposed, set out in the “criminal histories” from the ACT and NSW which was | |
| Exhibit 11 in the proceeding below. | |
| 65․ | Even making allowance for the fact that her prior criminal history reflected aspects of |
| her disadvantage and “depraved” upbringing, as well as her untreated medical | |
| condition, the character of the offending and the multiple breaches of conditional liberty provided evidence for circumspection as to the capacity of the offender to not offend if released on some form of conditional liberty. For example, by the imposition of a | |
| “combination sentence” as was urged on behalf of the appellant to be appropriate this | |
| particular matter (s 133G(3) of the Act). The failure to do that, as I understand the | |
| submissions from the appellant, reflected the existence of “latent” error. | |
| 66․ | As is recognised in the submissions of the appellant the four particular matters at the forefront of this sentencing exercise, that I earlier identified, were each specifically referred to in the sentencing remarks of the Magistrate as matters taken into account in determining the ultimate disposal of the matter both generally and in respect of individual sentences. Criticism is made by the appellant of the structure of the sentences not providing any supervision on release. The Magistrate formed the view |
| that a “combination sentence”, with what I would understand in this matter to be a | |
| minimum term comprising sentences of imprisonment, with the residue of the total sentence suspended (or otherwise reflected in some form of Good Behaviour Order) | |
| would be in effect a “Sword of Damocles” which would likely “fall” and leave the offender | |
| returning to custody. | |
| 67․ | The Magistrate was aware that the offender may be in breach of that conditional liberty and thus be required to return to custody spending longer in custody than was ultimately determined to be appropriate by her orders. It is to be remembered, as was pointed out by the Crown, that not only had the appellant up until her last committal to custody failed to comply with bail conditions and failed to honour orders to be of good behaviour, but she had also, when given the opportunity to undertake drug rehabilitation, discharged herself on one occasion within a day or two of being admitted into the facility and within a week on another occasion. But these failings on her part arise from characteristics caused by her catastrophic upbringing, her mental health and dysfunctional social environment. |
| 68․ | The Magistrate’s general approach in the structuring of the sentences reflected fair |
| appraisal of the reality of the situation even taking into account some improvement in | |
| the appellant’s behaviour whilst in custody and her introduction to and maintenance of | |
| a regime of medication for her mental illness. In respect of this last matter it was open to the Magistrate to conclude, as the Crown submits, that as unpalatable as it may seem, ensuring compliance with medication regimes required of the appellant, and her willingness, to comply were greater whilst in custody than whilst at large based upon | |
| the available evidence, including the pre-sentence report. The Magistrate’s attention to | |
| detail in sentencing the appellant was to structure the sentences, at the time of sentence to take into account approximately 11 months of time already spent in custody (in broken periods) and structure of the sentence to expire not subject to supervision four days short of her 18th birthday. The sentence imposed reflected the fact that the structure of the sentences of imprisonment meant that the appellant faced prospectively, from the date of the imposition of those sentences, 7 months and 4 days of a total sentence of 17 months and 10 days. The sentence was clearly not crushing and more than half of it had been already served by 27 January 2023 with the opportunity on 4 occasions to be free on bail before her return to custody in late September 2022. | |
| 69․ | As the matter was argued by the appellant in the absence of patent error, that is no error of principle stated, no irrelevant consideration taken into account, no substantial error of fact, the appellant is left to argue that the result itself is self-evidently an error, reflecting failure to give primacy to the rehabilitation of the offender given the evidence |
| of her many disadvantages. Thus, the Magistrate had not taken into account a “material consideration” in a practical manner. Also, that there was individual error in specific | |
| sentences that needed to be corrected with the result that there would be a reduction | |
| in the total sentence. If so, this would necessarily require the Court to fix a “combination sentence”. This is in the context of it not being submitted, at any time, that terms of | |
| imprisonment were not appropriate for many, or all, of the offences, or that an | |
| “aggregate sentence” was not appropriate, notwithstanding the statement in s 133G | |
| that “a sentence of imprisonment must be a last resort and for the shortest appropriate | |
| term”. | |
| 70․ | There are two difficulties for the appellant in respect of the submission that the total sentence was manifestly excessive. One was the fact, the appellant had a substantial period of time of pre-sentence custody that had to be taken into account and the only practical way that could be done was by the imposition of terms of imprisonment ordered to commence and expire before the sentence was imposed on 27 January 2023 as happened in respect of a large number of the sentences imposed. |
| 71․ | In respect of the assessment of the total sentence in the context of “totality” principles, it was not acceptable to fix “concurrent” sentences for all offences requiring terms of |
| imprisonment. It is not submitted that it was. I point out that in this appeal it was not argued that any particular offence which received a term of imprisonment should not have done so. In Pearce v The Queen [1998] HCA 57, the majority of the High Court, in an appeal against conviction, noted at [45] that a sentencing judge or appellate Court should not have regard only to the total effective sentence that is to be imposed, such | |
| an approach is likely to “mask error”: |
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation (sic) or concurrence, as well, of course, as questions of totality.
| 72․ | In the sentencing of young offenders (although on many occasions this will not occur |
| without complaint) there will be a requirement to have proper regard to “totality” | |
| notwithstanding the restraint on sentencing explicit and implicit in Part 8A of the Act. | |
| “Totality” is a principle that “requires a sentencing judge to impose a sentence or | |
| sentences which reflect the overall criminality of the offending (for which the offender is to be sentenced)” (see Johnson v The Queen [2004] HCA 15 at [18]). It was | |
| expressed in more detail terms subsequently adopted in many Australian judgements | |
| in the seminal work of David Thomas, “Principles of Sentencing” (Heinemann, 2nd ed, | |
| 1979), at pages 56-57. The learned author in that text noted the need, in fixing | |
| consecutive and concurrent sentences, to “take a last look at the total just to see whether it looks wrong”. While there are many decisions dealing with various aspects | |
| of the application of the “totality principle” one particular authority which appears to be | |
| reflected in the manner in which her Honour dealt with this sentencing exercise is the decision of R v Holder [1983] 3 NSWLR 245( at 260) where Street CJ noted that in | |
| order to give effect to “totality” and not to produce a disproportionate result there will be a requirement not only to give effect concurrency of sentences but to “telescope” | |
| sentences, that is to overlay various sentences to ultimately reduce the total sentence, from the outcome if sentences were just imposed end to end. The Magistrate was | |
| mindful of the “totality of criminality” involved and the need to apply the “totality principle” to meet the justice of the case. This is reflected in the fact that there is no | |
| specific criticism of the manner in which her Honour structured the sentences. | |
| 73․ | The other matter, arising from the submissions, was particular attack upon specific sentences touching upon the detail of the structuring that I have identified from the oral submissions of the appellant and in the written submissions, where there are further particular sentences the subject of specific comment. The appellant criticises those |
| specific sentences by reference to statistical information and “comparative sentences”. A specific sentence addressed in the submissions was an offence of “take motor | |
| vehicle” for which the offender was sentenced to 8 months imprisonment. The | |
| significance of that being that the expiry of that sentence brings the total sentence up to 1 August 2023 the date of expiry of the total sentences imposed. | |
| 74․ | If that sentence reflects error, or for some other reason is required to be adjusted downwards, then accepting all other sentences imposed by her Honour the release date of the offender would be brought forward. Reference is made in submissions to sentencing statistics which place the sentence at the upper range of sentences actually |
| imposed in the Children’s Court (but not beyond the range). Also, comparison is made | |
| with lesser sentences imposed within the same sentencing exercise suggesting that the sentence imposed in that instance was manifestly excessive by reference to other | |
| sentences imposed for ‘the same’ type’ of offence. | |
| 75․ | There are several reasons not to accept the submissions made that there is error in this particular sentencing order by regard to those matters. Firstly, there is the matter raised by the Crown that this offence does not stand alone but represents the last of a series of like offences in a course of offending. Thus, the sentence imposed needs to be considered in the context of the order of offences and the relevance of past like offending prior to the offence the subject of the sentence. Secondly, as pointed out by the Crown, this offence led to the use of the motor vehicle by the appellant to commit another offence, an offence of damaging a police vehicle, for which the offender received a sentence of 5 months imprisonment to be served entirely concurrently with the 8 months sentence. |
| 76․ | The statistical information is of little assistance as well because individual offences that are caught by the statistics do not reveal the context in which the particular sentence recorded in the statistics was imposed. That is, whether there were like offences committed prior to the particular sentence and/or how the matter for sentence was to be viewed in the context of the criminal history of the offender and other offending. For example, as here, the vehicle taken was used in the commission of further offence(s). Statistical data does not reflect this type of detail. Another matter that arises in relation to outcomes reflected in statistical data is that one does not know whether specific |
| outcomes include all the time spent in custody or were “artificial results” taking into | |
| account time already spent in custody. In any event, as earlier mentioned, the specific sentences identified at the higher end of sentences reflected in the statistical data, do | |
| not fall outside “the range” of sentences of detention covered by the data. | |
| 77․ | As for the purported “comparative” cases, taken from past decisions of this Court (R v |
| KX [2020] ACTSC 349, per Mossop J : R v OI [2020] ACTSC 286, per Mossop J), whilst in some instances the violence offered in those matters could be described as greater | |
| than in respect of the “aggravated robberies”, with the result in each of these cases that | |
| lesser sentences were imposed for specific offences of “aggravated robbery” than here, | |
| the purported “comparison” is not one in either instance of “like and like”. | |
| 78․ | In KX whilst sentenced in respect of three “aggravated robberies”, either by joint |
| commission or as an aider and aider and abetter, the young person in two occasions was not armed and offered no specific violence to anybody and on the third occasion | |
| was armed and performed the function of “lookout”. Significantly he had no prior | |
| criminal history, did not commit the offences while subject to any form of conditional | |
| liberty and was not the “leader” in the criminal enterprises. This appellant in respect of | |
| one aggravated robbery (the fourth offence in time), committed the offence while subject to various forms of conditional liberty, applied physical violence to the victim, in company with two others, taking car keys and $2000 in cash. For this offence the | |
| offender “the starting point” was eight months detention which ultimately was served | |
| concurrently with other sentences. Further offence of aggravated robbery which was | |
| “sixth in time” involved an aggravated robbery in company with another offender with a | |
| threat to stab the victim, where the offender was subject again to multiple forms of conditional liberty. The starting point of sentence was four months detention again ultimately concurrent with other terms of detention. A further offence of aggravated robbery in company with another co-offender occurred with the threat of stabbing victim | |
| with an “uncapped syringe” for which the defendant received a sentence of nine months | |
| detention, again concurrent with other sentences whilst partially cumulative on other sentences and again subject to various forms of conditional liberty. The last aggravated robbery offence committed by the offender was the eighth offence in time where the victim was a delivery driver working at night, the offender was armed with life and the victim suffered laceration to his finger. The starting point of the sentence was 10 months detention. She was subject to various forms of conditional liberty and was on bail for other offending. | |
| 79․ | There are no comparative cases identified on behalf the appellant in relation to the |
| “take vehicle without consent” sentences. As earlier noted the heaviest sentence for | |
| this offence, imposed for one of the last offences of in time, ultimately took the aggregate sentence to 1 August 2023, the expiry date of the sentence. The individual sentence imposed requires consideration of the context in which the offending arose, to which I earlier made reference, and the significance of the imposition of that sentence, given its chronological position within the range of offences committed on that date, 24 September 2022, and given the offender had been granted bail on a number of occasions but had failed to comply with various conditions of the numerous bail orders. Thus, on analysis of the individual sentences imposed, but particularly those sentences which the appellant concentrated on in submissions made on her behalf, the individual sentences imposed, the subject of complaint have not been | |
| demonstrated to fall outside “the range” of sentences available, nor can be seen to be | |
| outside what was proportionate given related offending to be taken into account and the context of a course of conduct in defiance of various conditional liberty restraints, including grants of bail. | |
| 80․ | There are two particular matters arising from the Crown’s submissions that are not |
| accepted. Firstly, the attempt by the Crown to categorise the sentences imposed in the | |
| Children’s Court as lenient or unduly “modest” when expressed as percentages of the | |
| maximum penalty available on indictment are not matters that the Court could seriously contemplate as worthy of consideration. Appreciating the limitations of the relevance of | |
| a “jurisdictional” limit as opposed to the limitation imposed by “the maximum penalty” | |
| of a particular offence, the mathematical representation of a sentence of the Children’s | |
| Court as a percentage of a maximum penalty in an adult Court by definition denies the existence of relevance of the jurisdictional limit imposed upon the Court below and, denies the existence of special legislative provisions that only apply to young offenders. For example, limiting the reliance of general deterrence and personal deterrence in | |
| youth sentencing. The sentences were “modest” when compared to what would be | |
| appropriate sentences for like offending by a criminally experienced adult. But not for a child or youth as the statistics make clear. | |
| 81․ | In that regard, further, the Crown submissions about the need for greater emphasis |
| upon particular “punitive” purposes of sentencing, identified in the written submissions, | |
| ignore the importance and relevance of the terms of ss 133C, 133D and 133G of the Act to this sentencing exercise as was emphasised in MT. The written submissions of the Crown (as quoted in [39] above) failed to refer to the express and implicit impact of | |
| these provisions upon consideration of the “purposes of sentencing” set out in s 7(1) of | |
| the Act. | |
| 82․ | One matter that was clearly relevant to the ultimate outcome in this sentencing exercise |
| was the sad fact that, through no fault of her own” there was no family support nor any | |
| other identifiable mechanism for support to assist the offender to adjust to community living, other than that which could be held out in supervision by relevant government agencies. The young person has been over a number of years abandoned to her own devices. Thus, the reality was that in considering her prospects of rehabilitation and particularly her capacity to comply with requirements of supervision and the like, not only was there a clearly demonstrated a past inability to do this, but there was no family or identified to assist her to respect or comply with conditional liberty conditions. | |
| 83․ | There is a need for community-based organisations to provide assistance to people such as this appellant. The pre-sentence report states that such resources are available |
| here. This was not clearly acknowledged by the Children’s Court, focussing rather on the negative prognostications of the appellant’s compliance with supervision, in the | |
| future. This is what ultimately led to the determination of the structure of the sentences in this matter with ostensible recognition of the matters required to be taken into account that, in a different and less complex sentencing exercise, would militate towards either non-custodial sentencing orders or earlier release than was thought to be practical here. | |
| 84․ | The Magistrate concluded her remarks by these observations: |
When sentencing in the Children's Court and the court is minded to impose a sentence of imprisonment, the Children's Court or Warrumbul Court must consider whether it is appropriate to suspend that term of imprisonment. There is no parole system in the Children's Court and children are only to be sentenced to the shortest time that will adequately reflect all the purposes of sentencing. As I have already indicted, the court is not satisfied that the young person would comply with any suspended sentence or good behaviour condition. It is
in the view of the court that it is in [the appellant’s] best interests for her to be released with
no further criminal matters hanging over her head. To impose a suspended sentence in our view would set the young person up for failure. It would allow her also to make a fresh start as an adult and, if she is genuine in her comments to the court that she is fearful of going to the AMC, this will enable her to start her adult life with no criminal matters hanging over her head.
| 85․ | These are considerate observations. But the consequence of that conclusion is to leave the appellant in the absence of family support released to the community with no assistance , other than that she could organise for herself, for example to find suitable and stable accommodation and set in place the arrangements to ensure that she was properly medicated and able to obtain such financial assistance as she was entitled, including negotiating or obtaining the appropriate NDIS package to which she was entitled. The Magistrate was left in this regard with balancing her need for support in the community as reflected in the psychiatric report and the presentence report to assist |
| in the “promotion” of her rehabilitation, against the need for her to be detained to avoid | |
| the risk of further offending while subject to conditional liberty because of past poor compliance and optimise her capacity to maintain her regime of medication. The | |
| Magistrate recognised the need for “significant support” as expressly submitted on | |
| behalf of the appellant by reference to the following passage in the sentencing remarks of the learned Magistrate: |
In this court the rehabilitation must be the paramount concern for the court, and [the appellant] requires a large amount of support and assistance to help her in that rehabilitation. It appears that she would have poor prospects for her rehabilitation unless something is done to provide those supports for the young person for her to adequately address her drug use and her mental health issues. [The appellant] is at real risk of becoming institutionalized. She has spent a large majority of her young adult life or teenage years in custody and it is important that she get all those supports that Dr Roldan refers to in his report.
| 86․ | Whilst these aims were stated by the learned Magistrate, they were not achieved by the orders made. Thus, despite available evidence recognised by the Court, the ultimate result was not to give proper effect to s 133C having regard to the available |
| evidence. The Child Youth Protection Service had prepared a ‘Draft Case Plan’ in preparation for her release and reported that there “a large number of support services involved currently that are planning for her time in the community” (at p.14 of the Pre- | |
| Sentence Report) It was open within the legitimate exercise of sentencing discretion in the circumstances to permit some period of supervision out of custody to provide guidance in relation to key matters in the rehabilitation of the offender, appropriate medical treatment and medication regimes and organisation of NDIS entitlements. It is | |
| the “promotion” rehabilitation that has primacy, not just recognition of the need for | |
| rehabilitation. Giving full weight to the “promotion” of rehabilitation does not require a finding that an offender has “good prospects” of rehabilitation. The person who has | |
| good prospects of rehabilitation is on many occasions the person who does not need the intensive assistance outside custody and the strong guidance of supervision. The more recalcitrant the offender the better the offender may be a candidate for lengthy supervision or intensive supervision depending upon the facts of the case. |
Conclusion
| 87․ | Taking into account all that has been put before the Court I determine that error has |
| been identified, reflected in the final orders by the Court below by “not taking into | |
| account a material consideration” (House, at 505) that requires a minor adjustment of | |
| the orders of the Court below. The result is that there then should be some adjustment of the last sentence in time to permit a short period of supervision to allow for a transition to community living with professional assistance from the supervisory authority. To achieve this end without interfering with the effect of matters properly | |
| recognised in the decision of the Children’s Court. I have concluded that sentence | |
| imposed in respect of (CH2022/1110) should be suspended after six months served (on 1 June 2023) to permit a short period of supervision to give effect to the matters in respect of which the appellant requires assistance and/or guidance in the community .But there needs to be proper preparation for her release hence the need for a further time in custody until 1 June. | |
| 88․ | The length of the period of supervision that I contemplate is designed to provide the opportunity for the appellant to settle into community living with appropriate support. |
| This is not “tinkering” with the original sentence. It is giving effect to s 133C in a practical | |
| way consistent with the evidence before the Court below. At the same time not “setting up the appellant for failure” which the Magistrate endeavoured to avoid. |
Orders
| 89․ | The Orders are as follows: | |
| 1. The appellant’s name be referred to by the pseudonym “DC”. | ||
|
breaches of Good Behaviour Orders in the Children’s Court on 27 January 2023 are
dismissed except for the sentence imposed in relation to CH2022/1110.
3. In respect of the offence of “Take motor vehicle without consent” committed on 24
September 2022 I confirm the sentence of 8 months imprisonment to commence on
2 December 2022 and expire on 1 August 2023.4. In respect of that sentence pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) the sentence of imprisonment will be suspended from 1 June 2023 upon the appellant entering into a Good Behaviour Order for a period of two months and one day expiring on 1 August 2023, with the standard conditions of the Crimes (Sentence Administration) Act 2005 and with the additional conditions that the appellant obey all reasonable directions of the Child Youth Protection Director-General as to accommodation, medical treatment, use of prescribed medication and complying with a suitable NDIS package.
I certify that the preceding eighty-nine [89] numbered
paragraphs are a true copy of the Reasons forSentence his Honour Acting Justice Norrish.
Associate:
Date:
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