Director of Public Prosecutions v BC
[2024] VSC 716
•19 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0246
| DPP | Crown |
| v | |
| BC | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 November 2024 |
DATE OF SENTENCE: | 19 November 2024 |
CASE MAY BE CITED AS: | DPP v BC |
MEDIUM NEUTRAL CITATION: | [2024] VSC 716 |
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CRIMINAL LAW — Sentence — Accused charged on summons with attempted murder — Matter resolved to guilty plea to causing serious injury intentionally in circumstances of gross violence and common assault — Accused 14 years old at time of offending — Victims were the accused’s grandmother and sister — Accused now 16 years old — Matters in mitigation — Significant delay — Suffering from high functioning undiagnosed autism spectrum disorder at time of offending — No prior criminal history — No subsequent matters — Sentenced pursuant to the Children, Youth and Families Act 2005 (Vic) — On both charges released on a 15 month youth supervision order — Children, Youth and Families Act 2005 (Vic) ss 361, 362, 362A, 387, 389 — Crimes Act 1958 (Vic) s 15A.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Moran | Office of Public Prosecutions |
| For the Accused | Ms A Brennan with Mr D Thomas | Victoria Legal Aid |
HER HONOUR:
BC, you have pleaded guilty to one charge of causing serious injury intentionally in circumstances of gross violence (Charge One), and one charge of common assault (Charge Two).
The offending
Both offences occurred on 30 August 2022. At the time of the offending, you were 14 years old. You were living with your mother, your sister AC (aged 17), your half‑sister B (aged two) and your maternal grandmother, Margaret. It is necessary to set out some of your family background to explain what led to the events of this day.
In 2010, Margaret purchased a house in Cranbourne for your mother and father to live in. Your parents separated, and your mother continued to live in the Cranbourne house with you and your siblings. By 2022, rising interest rates meant that Margaret could no longer afford to pay the mortgage and needed to sell the house. Margaret invited you all to live with her at her house in Cranbourne East. Your mother accepted this offer, and on 20 August 2022, Margaret helped with the move to Cranbourne East. You were very attached to your home and not happy that you had to move.
On 30 August, you arrived home from school around 3:25pm. Your mother was out, but Margaret and your sisters were home. Your grandmother asked you to return the Cranbourne house key, and you repeatedly refused. As punishment, your grandmother took your computer controller. She told you she would give it back if you gave her the key. She walked outside to place the controller in her car, at which point you shut the front door and locked her out of the house.
Following this, you picked up a white plastic‑covered hollow metal pole, of the type that would be used for lightweight curtains or inside a wardrobe. A neighbour later described it as approximately 60 cm long and 2 cm in diameter. Your sister AC went to unlock the front door so Margaret could re‑enter the house, at which point you struck AC to the knee and wrist with the pole. AC went and hid in a bedroom closet with B. She had her phone with her and called the police.
Meanwhile, Margaret used her spare key to enter the house via the garage. As she entered, she saw you standing in the doorway with the pole. You poked her hard multiple times in the chest with the pole, telling her to ‘get out’. Margaret was pushed back into the garage, but she managed to get inside and take hold of the pole you were still holding. You and Margaret wrestled over the pole. Margaret scratched you with her keys and bit your hand but was unable to gain full control of the pole. You ended up behind Margaret and used the pole to compress her throat before managing to wrest the pole away from her. You then commenced hitting her with the pole to the head and neck. You struck her at least once to the front of her head, causing a gash which bled profusely. Margaret felt faint and fell to the ground. You continued to hit her with the pole to her back and side, and used the end of the pole to hit her in the chest. You were screaming at her to ‘just stay down and die.’ She was yelling out for you to please stop, but you continued to assault her. Margaret was panicking; she could feel that her right wrist and ribs were broken, and feared the pole would penetrate her chest.
Margaret managed to get up and reach the front door. You hit the back of her head with the pole, but she was able to unlock the front door and leave. You followed, but neighbours arrived to help Margaret, and your attack ended. As neighbours were assisting Margaret, you walked towards her, held up the pole and said, ‘I just want you dead and I’m going to kill you’. You threw the pole towards her and said, ‘I hope you die’. A neighbour who was assisting Margaret told you to ‘nick off’ and go inside. You then returned to the house.
Police arrived a short time later. You opened the front door and walked onto the front porch. Police asked you what had happened, and you answered, ‘I have attempted to kill my nan’. You were bleeding from a cut to your head. You were cooperative with police and very talkative. You gave a detailed account of what had occurred, and repeated that you had intended to kill your nan, and you hoped she died.
You were interviewed later that day in the presence of your mother. You declined to speak with a lawyer. You continued to cooperate with police and made full and frank admissions. You said you had retrieved the pole from hard rubbish a couple of days earlier in the course of moving, and you were glad you did. You said you hit your grandmother with as much force as you could, and you wanted to kill her. You said you were disappointed that you did not kill her and annoyed that she was still alive. You also admitted hitting AC with the pole.
Margaret was taken to hospital for treatment. She sustained non‑displaced and minimally displaced right‑side rib fractures; a right wrist fracture that later required surgery; right shoulder pain and lacerations to her head. She was discharged from hospital on 2 September 2022. Your sister AC suffered pain and bruising, but did not require any medical care.
Victim impact
AC wrote an intelligent and moving victim impact statement. Your sister has been deeply affected by what you did. You took away her happiness and shattered her sense of safety and trust. AC was frightened at the time of your offending. Afterwards, she felt anxious and scared; she worried about going out and running into you. Because of what you did, she had to go and live with her father in Queensland. She missed her chance to finish Year 12. She did nothing wrong, but she is the one who had to leave her friends and everything she had here, and move to a different state. She struggles with anxiety and has found it difficult to make new friends. She misses her mother and wants to be able to come to Melbourne and visit her mother without being scared of what you might do. She wants you to apologise or at least acknowledge that if you had respected others, this would not have happened. She also misses her grandmother, B and her Aunty. She hopes that you get help and learn to manage your anger, and that you can get along as a family in the future.
Margaret wrote that she still loves you and is heartbroken that the family is now apart. She said she will never be able to see you or trust you again. It took her several weeks to recover from her injuries, and she installed CCTV cameras around her house to make her feel safer. She continues to work full time as a nurse, but worries that she may have a brain injury and intends to have further testing done. She is very sad that she no longer sees your mother or AC, although they do speak on the phone. She is particularly sad at Christmas; having all the family together was one of her favourite things, and because of what you did that no longer happens.
Procedural history and applicable sentencing regime
You were charged on summons with the attempted murder of your grandmother, common assault of AC, and various alternative charges. You were committed to stand trial in this court on 16 October 2023. On that date, you were placed on bail on your own undertaking and with conditions that you reside at a listed address, not leave Victoria and not contact witnesses for the prosecution other than the informant or your sister. You have never been on Youth Justice supervised bail or any type of supervised bail program. Following a foreshadowed challenge to the record of interview and the obtaining of expert reports by both parties, the charge of attempted murder was withdrawn and the matter resolved to the two charges to which you have pleaded guilty.
The maximum available penalty fixed by Parliament for Charge One is 20 years’ imprisonment, and the maximum available penalty for Charge Two is five years’ imprisonment. However, it is agreed that it is appropriate for the Court to sentence you in accordance with the sentencing regime established by the Children, Youth and Families Act2005 (‘CYFA’). Under that Act, the maximum period of detention that could be imposed (across both charges) is four years’ detention in a youth justice centre.[1] While your offending is serious, the Children’s Court could have dealt with both charges; more serious offending, including repeated serious offending committed by older children, is routinely dealt with in that court.[2] In sentencing, this Court must have regard to the matters found in s 362(1) of the CYFA. General deterrence is excluded as a sentencing consideration.[3]
[1]Children, Youth and Families Act 2005 (Vic) s 413(3) (‘CYFA’).
[2]I note that Charge One is a ‘Category A serious youth offence’ pursuant to the CYFA: s 3 (definition of ‘Category A serious youth offence’). But, given you were aged under 16 at the time, you would not have faced the hurdle set by s 356(6) of the CYFA.
[3]CNK v The Queen (2011) 32 VR 641, 642–665.
I am not being critical of any party, but the reality is that the trajectory of the prosecution has resulted in two charges, which could have been dealt with in the Children’s Court in 2022, being heard in the Supreme Court in 2024. This has resulted in a very considerable delay which is in no way attributable to you. I will return to the issue of delay.
Personal circumstances
The Court has received a number of detailed reports setting out your background and other matters. I do not intend to summarise those reports in any great detail; some of the matters contained therein are sensitive in nature and it is not necessary to refer to the contents in these reasons.[4]
[4]The Youth Justice report was provided to BC’s legal representatives but access to the report was restricted, and it was not provided to you or your mother pursuant to s 575(2) of the CYFA.
You were born on 15 December 2007. Your parents separated when you were approximately two years old and your father currently resides in Queensland with your sister, AC. Your relationship with your father has always been turbulent, and you have not spoken to him for around two years. There is a history of Child Protection reports in relation to your welfare, including concerns surrounding your father’s substance use, physical violence and custody disputes. When you were nine years old, your father refused to return you and your sister to your mother after an access visit and kept you for two weeks, which caused you great distress as you are very attached to your mother. Child Protection have held other concerns over the years, but they have currently closed your case.
You were raised by your mother in Cranbourne, and she is the key figure in your life. Your mother is a trained librarian, but currently unemployed. You have always had a strong interest in reading and language, and in your early years, you could read at a much higher level than other children your age. You are an intelligent boy, and IQ testing places you in the high average category.
You have a long history of behavioural concerns and a range of diagnoses, commencing from age five when Dr Lim, a paediatrician, diagnosed you with oppositional defiance disorder. At the same time, a speech pathologist conducted an assessment. She described you as a friendly, talkative boy; your language skills were suggestive of ADHD or high functioning autism spectrum disorder, and further assessment and investigation was recommended. Unfortunately, this never occurred.
You were seen by a wide range of professionals over the next several years, including a psychologist and another speech pathologist, aged seven; a psychologist, aged nine; the Monash Health Early in Life Mental Health Service, aged nine; and another speech pathologist, aged 14. These assessments were undertaken due, at least in part, to your disruptive behaviour at school. You were unsettled, oppositional, easily frustrated and lacked confidence. You were also threatening and violent at times, including snatching things from other students or hitting them when upset.
Dr Deacon, Consultant Psychiatrist, assessed you in March of this year. He noted that you were an unusually oppositional and defiant child, but a diagnosis of oppositional defiance disorder describes a list of behaviours and does not necessarily consider the underlying cause of those behaviours. In his opinion, you have high functioning autism spectrum disorder which is reflected in your behaviours.
Dr Hughes, Consultant Paediatrician, conducted an autism assessment in May 2024. Your overall score placed you well in the range of an autism spectrum disorder, and Dr Hughes had no doubt you have a high functioning autism spectrum disorder. She was surprised it had not been diagnosed previously. Dr Hughes described you as a ‘very unusual young man’ and felt you would not cope in the world without the support of your mother.
Dr Flower, Consultant Child and Adolescent Psychiatrist, did not assess you personally, but undertook a detailed assessment of your history based on documentation and provided a report to the prosecution. Dr Flower observed that you presented with many features of autism, and it is difficult to understand how this was not picked up. She noted that it is unusual to diagnose a five‑year‑old child with oppositional defiance disorder, as such a diagnosis is usually given to older children. In her opinion, it is likely that earlier diagnosis by Dr Lim led to misidentification of your problems.
It is clear you have high functioning autism spectrum disorder, and it is regrettable this was not diagnosed earlier. As Dr Flower observed, as a consequence of the failure to diagnose autism spectrum disorder early in primary school, you did not receive the assistance you needed, and you disengaged from school over time. In her opinion, it is not unusual for children with autism spectrum disorder to develop school refusal.
Since these events, you and your mother have resided in accommodation which houses women and children affected by domestic violence. You and your mother share a bedroom and sleep in a bunk bed, but are in a house with other women and children. Your mother is very supportive, but there is concern that the relationship is codependent, meaning you rely excessively on your mother for all your emotional and psychological needs, and your mother relies on you for similar support. You have occasional telephone contact with your sister AC when she calls to speak to your mother. Your younger sister, B, is in the full‑time care of your mother’s sister.
You commenced secondary school during the Covid‑19 lockdowns, which resulted in lengthy periods of remote learning. You avoided online engagement, and remote learning likely contributed to your disengagement from school. When ‘in‑person’ school recommenced in 2022, you found it difficult to engage and your attendance was irregular. After this offending, you did not return to school, largely because you were concerned about receiving a custodial sentence for these matters. As a result, you have not attended school for the latter part of 2022, all of 2023 and practically all of 2024. You have expressed an interest in returning to TAFE or similar to complete your VCE once these proceedings have concluded.
Early this year, your mother was diagnosed with cancer. She underwent two surgeries and is now undergoing treatment. You have supported her during this time, including doing tasks such as cleaning and cooking. You have some social contact with others in the share house, including occasional interaction with other children, but overall, you are living a very limited life, with no education, little social engagement and excessive reliance on your mother.
Dr Deacon gave evidence on the plea. He said that unfortunately, your autism spectrum disorder was not recognised earlier, and you did not receive the assistance you needed. You were seen as naughty or disruptive, but there was no understanding of why you were like that. He said you will always be autistic and have the same vulnerabilities, but you are not resistant to change. He said at some level, you are aware of the seriousness of your situation and open to advice and intervention. Currently, your educational and social needs are not being met, and in his opinion it is important that this changes.
Youth Justice report
A Youth Justice pre‑sentence report was ordered by the Court. The author, Ms Del Monte, noted the violent and serious nature of your offending and your lack of victim empathy. You demonstrated superficial remorse and little insight into your offending. Your offending reflects your lack of consequential thinking, poor problem‑solving skills, emotional dysregulation and history of family trauma. Youth Justice noted your young age and lack of criminal history, as well as your previously undiagnosed autism spectrum disorder. They recommend that you are placed on a youth supervision order. In their opinion, you would benefit from being required to engage with assessments, treatments and services while in the community.
Ms Del Monte gave evidence on the plea. She noted you have no history with Youth Justice and there has been no police contact since the offending. She said it is important not to stigmatise young people, including by imposing a conviction, and orders further up the sentencing hierarchy are not recommended here. She said you can receive the assistance you need on a youth supervision order, and your mother can form part of your care team. In answer to questions by your counsel, Ms Del Monte said the same conditions could attach to either a youth supervision order or a probation order, and if a person does not comply with a probation order, the breach process instigated by Youth Justice is essentially the same process that is undertaken if a youth supervision order is breached.
In questioning by counsel for the prosecution, Ms Del Monte agreed that because your autism spectrum disorder remained undiagnosed for so long, you are very much behind in receiving the assistance you need. She was asked whether, given your complex needs, a longer order would be appropriate here. Ms Del Monte said the length of the order is a matter for the Court, and noted more serious orders, such as youth attendance orders, are only available for 12 months.
Seriousness of offending
Causing serious injury intentionally in circumstances of gross violence is a serious offence, as reflected in the maximum available penalty. The offence permits of a wide range of conduct and circumstances of differing degrees of seriousness. While terms such as ‘low’ or ‘mid‑range’ are vague and ideally to be avoided when describing an offence,[5] it is nonetheless necessary to consider where your crime sits on the spectrum of seriousness, and for what reasons.
[5]DPP v Ristevski [2019] VSCA 287, [66] citing DPP v Weybury (2018) 84 MVR 153, 165, [33]–[34] (Maxwell P and Hargrave JA), 170–171, [54] (Priest JA).
Your counsel conceded this was a serious and somewhat protracted assault. The assault itself lasted two or three minutes and occurred in circumstances of family violence. Your grandmother and your sister were in their own home, where they were entitled to feel safe and secure. Your grandmother was trying to defend herself and asking you to stop, but you persisted with your ferocious assault. These matters increase the seriousness of what you did. Given the charge, the statements you made about wanting your grandmother to die are not to be treated as evidence of your intention, but they are evidence of how angry you were at the time.
In my view, the injury sustained by your grandmother falls towards the lower end of ‘serious injury’. Further, in my view, this is not a serious example of ‘circumstances of gross violence’. The time between Margaret taking your computer controller, and her coming back inside the house via the garage, was approximately five minutes. The extent to which you ‘planned in advance’ to use a weapon is limited to picking up a pole after you locked your grandmother out of the house, but before she re‑entered and your assault commenced.[6] Similarly, the extent to which you ‘planned in advance’ to engage in conduct intended to cause serious injury is limited to the same act and time period.
[6]Crimes Act 1958 (Vic) s 15A(2)(d) (‘Crimes Act’).
Your moral culpability is reduced for two key reasons. First, you were 14 years old at the time. The law recognises that children may lack the foresight, insight, judgement and self‑control that comes with adulthood, particularly where the crime is committed spontaneously. Young people are prone to ill‑considered or rash decisions, and may not fully appreciate the nature, seriousness and consequences of their acts.[7]
[7]R v McGaffin (2010) 206 A Crim R 188, 210 [69].
Secondly, your autism spectrum disorder contributed to your offending. In the lead up, there were a number of incidents that caused you considerable stress. After you had moved, your grandmother allowed your cousin to have a party at the Cranbourne house, and personal items which you greatly valued were damaged. You were very worried about how your two cats would cope with the move. There were arguments between your mother and Margaret, which you perceived to be your grandmother’s fault. After one argument, your grandmother sent your mother away for the night, leading you to fear that you and your mother might become homeless.
As Dr Deacon noted in his report, you found the prospect of moving from your home ‘beyond uncomfortable; it was distressing and overwhelming to contemplate.’ Your intense attachment and rigid inability to contemplate such a change must be seen in light of your autism spectrum disorder. In Dr Deacon’s opinion, there is a ‘clearly identifiable nexus’ between your underlying autism spectrum disorder and your offending. You feared change and considered Margaret to be cold and uncaring. The cumulation of stressors resulted in intense anger and what Dr Deacon termed ‘autistic rage’ or ‘autistic meltdown’. Such intense anger is a recognised feature of autism spectrum disorder that extends beyond what can be understood to represent the ’normal’ quality and range of anger. In evidence, Dr Deacon said that people with autism are often concrete thinkers and struggle to look at situations from different perspectives. He said this was very relevant in your case. At the time of the offending, you felt a profound sense of injustice and believed that your grandmother was wrong, which led to feelings of anger and retribution. You were in a heightened emotional state, and the intensity of this enraged state effectively hijacked your capacity to think rationally or calmly.
I accept that your moral culpability is meaningfully reduced. This does not excuse what you did, which was very wrong and harmful. However it explains, in part, why you behaved as you did on this day.
Submissions of the parties
Your counsel submitted that the Court should consider imposing a probation order, noting that probation orders can run for 18 months, and the same conditions that attach to a youth supervision order can also attach to a probation order. Your counsel submitted that you should not receive a conviction, given this is your first and only offence; you were 14 years old at the time; and your moral culpability is reduced by your youth and undiagnosed autism spectrum disorder.
The prosecution ultimately conceded that a youth supervision order was not outside the range of appropriate sentences. They submitted a conviction would not be stigmatising as it would lapse at the conclusion of your sentence. Further, this was a ferocious attack on a victim who was resisting and asking you to stop, and the gravity of the offending supports a conviction being imposed.
Other matters
You pleaded guilty to the two charges, and this entitles you to a sentencing discount. In my view, given the prosecution persisted with the more serious charge of attempted murder up until September of this year, your plea of guilty to the two charges is properly treated as a plea of guilty made at a reasonably early opportunity.[8] I accept that by pleading guilty, you have taken some responsibility for your offending.
[8]Cameron v The Queen (2002) 209 CLR 339, 345, [20]–[21] citing, with approval, Atholwood v The Queen (1999) 109 A Crim R 465 (Ipp J).
You have limited, if any, remorse or victim empathy. You wish what you did had not happened, but you have no real insight into the impact your offending has had on your sister or your grandmother. That is largely unsurprising, given your youth and autism spectrum disorder. Dr Deacon said you expressed remorse but did so in a bland and emotionless manner. He noted your autism spectrum disorder impacts your capacity to empathise or express remorse.
The delay in this matter has been considerable, particularly when viewed in light of your very young age. A delay of two years and two months may feel lengthy for an adult, but it is far greater for a child of 14 years. Throughout this time, you have not reoffended or come to the attention of police. I accept that having this matter hanging over your head, including the prospect of being incarcerated and separated from your mother, has been stressful and disruptive for you.
Pursuant to s 362(1)(g)(i) of the CYFA, I must have regard to the need to protect the community or any person from your violent acts. In the circumstances here, this is a relevant factor, but it should not be afforded disproportionate weight. Dr Deacon noted that the complex set of circumstances that led to your offending are unlikely to be replicated. There was an intervention order in place preventing you from contacting your grandmother, and you did not breach or attempt to breach that order. You have faced other stressors in your life, but never reacted with this level of violence. You have no criminal history and have not reoffended or come to the attention of police since these events.
Your youth is a very important sentencing consideration. The courts have long recognised that there is great public benefit in rehabilitating children, and maximising the prospect that they will go on to live a peaceful, productive and law‑abiding life.[9] A sentence that sees you live at home, return to education and receive Youth Justice support while in the community is the most suitable sentence here.[10]
[9]R v Mills [1998] 4 VR 235, 235–236.
[10]CYFA ss 362(1)(b)–(c), (e).
In determining the appropriate order and also the length of any order, I must not impose a more severe sentence unless I am satisfied it is not appropriate to impose a lower sentence.[11] I have considered whether you should be placed on probation, or released on a supervision order. The latter imposes a higher level of supervision, which in my view is appropriate in all the circumstances here. In determining the appropriate length of the order, it is necessary to balance a number of factors; in particular, these include the importance of your rehabilitation; the need for you to receive treatment and assistance for your autism spectrum disorder; and the lengthy delay in this case.
[11]Ibid s 361.
The CYFA provides no guidance as to when a conviction should be imposed.[12] The fact that a conviction will be spent at the conclusion of any order[13] does not mean the imposition of a conviction is trivial or not stigmatising. Imposing a conviction is still a formal and solemn act, which marks the Court’s and society’s disapproval of a defendant’s wrongdoing,[14] even if a person’s status is not irretrievably altered. A conviction is a component of any sentence and relevant to the overall severity of the sentence.[15] In my view, given your young age and the fact this is your first and only offence, it is not appropriate to impose a criminal conviction.
[12]Cf Sentencing Act1991 (Vic) s 8.
[13]Spent Convictions Act2021 (Vic) s 7(2).
[14]The Queen v McInerney (1986) 42 SASR 111, 124.
[15]DPP v Kose [2006] VSCA 119 at [33]–[34].
Sentence
Pursuant to s 387(1) of the CYFA, on both charges and without conviction, you are released on a youth supervision order for a period of 15 months.
In addition to the core conditions,[16] the youth supervision order contains the following special conditions:
(a) BC is to engage in assessments and forensic treatment as recommended by Youth Justice; and
(b) BC is to engage in assessments and treatment/services for mental health/disability supports as recommended by Youth Justice.
[16]Ibid s 389(1).
I confirm you have consented to the order being made.[17]
[17]CYFA s 387(2)(b).
Pursuant to s 381(3) of the CYFA,[18] I indicate that my reason for imposing both special conditions is to ensure you receive the necessary assessments, treatment and supports required for you to understand and manage your autism spectrum disorder, which will reduce the risk of you committing further violent offences.
[18]Ibid s 389(3), which picks up and applies s 381(3).
For completeness, I note that pursuant to s 362A of the CYFA, I am not required to state the sentence I would have imposed but for the plea of guilty.[19] Pursuant to s 362A(2), the Court may state the sentence it would have imposed but for the plea of guilty. I decline to do so.
[19]Ibid s 362A(1).
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