Director of Public Prosecutions v Braithwaite
[2015] VCC 1655
•18 November 2015
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -15-01387
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON BRAITHWAITE |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 November 2015, 11 November 2015 (for mention) |
| DATE OF SENTENCE: | 18 November 2015 |
| CASE MAY BE CITED AS: | DPP v Braithwaite |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1655 |
REASONS FOR SENTENCE
---Subject: Sentencing; multiple charges
Catchwords: Pleas of guilty; 18 year old amongst younger teenagers; teenage group misbehaviour escalated; man kicked on ground and stabbed by offender; has spent 5 ½ months in adult jail; rehabilitation best served by YJC.
Legislation Cited: Sentencing Act 1991 (Vic) s 6AAA; s. 18
Cases Cited:R v Mills [1998] 4 VR 235; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102
Sentence:TES: 21 months in youth detention; 174 days pre-sentence detention reckoned served.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Champion (on plea and sentence) Ms S. Pattinson (on mention) | Office of Public Prosecutions |
| For the Offender | Mr R. Lawson | C. Marshall and Associates |
HER HONOUR:
1Brandon Lloyd Braithwaite, you have pleaded guilty to three charges of criminal damage, four charges of theft, three charges of reckless conduct endangering serious injury and one charge each of attempted theft, armed robbery, recklessly causing serious injury, burglary, handling stolen goods and obtaining property by deception. In addition two summary charges were transferred to this court with your agreement and you have pleaded guilty to those - namely lighting a fire in the open air without authority, and carrying a controlled weapon.
2You have also admitted a prior criminal history to which I shall refer later.
3The maximum penalties for these offences are an indication of the relative seriousness with which parliament, on behalf of the community, regards offences of these general types. The maximum penalty for each charge of criminal damage, theft, burglary and obtaining property by deception is ten years' imprisonment. The maximum penalty for armed robbery is 25 years' imprisonment. For recklessly causing serious injury and for handling stolen goods it is 15 years' imprisonment, and for each charge of reckless conduct endangering serious injury, and for attempted theft, it is five years' imprisonment. The maximum penalty for each of the two summary charges is 12 months' imprisonment.
4At the age of 19, that is a very formidable set of potential penalties, and although you will not be receiving anywhere near the potential of those it should be a salutary reminder that your offending has not been insignificant.
5I turn to set out a summary of the circumstances of each of the charges.
6Most of these charges arise out of events on 6 April 2015 when you were in company with other teenagers, some of whom participated in the various incidents that give rise to these charges. At that time you were aged 18. All of the others involved were younger, ranging from ages 14 to 16.
7That evening you met with a friend and through her, with five teenage boys and two girls. In total five teenage boys and two girls met at the Rowellyn Park Primary School. This was during school holidays and the school, of course, was empty. You had a fold out knife clipped onto your belt, and that is the basis of the summary charge of carrying a controlled weapon.
8The group was drinking beer and listening to music, and then you and one of the others began gathering leaves and sticks from nearby bushes, piled them near an entrance to the school building under a covered walkway, and set fire to the pile using a cigarette lighter. This is the basis of the second summary charge of lighting a fire in the open air without authority. The fire was described as approximately two feet in diameter and, at its highest, two feet. The group sat around and continued to listen to music.
9Then you and a 14 year old boy climbed onto the roof of a school building. Another boy threw a skateboard up, and you started kicking a window while the other boy on the roof with you used the skateboard to hit the same window. The window, unsurprisingly, broke. That is the basis of Charge 1 of criminal damage.
10The group then decided to leave the school and one of the group put out the fire. The group walked along Tattler Street, Carrum Downs. You and a 14 year old male co-offender stopped on seeing a boat parked in a driveway, and while the rest of the group continued walking, the two of you got inside, found and stole a pack of flares and a fishing knife. That is the basis of Charge 2, of theft.
11You then re-joined the group. One of the flares was discharged in the direction of a house. It lodged in the roof and penetrated the cement sheeting, scorching electrical wiring in the roof. This is all while a resident of the house was sitting in the lounge room watching TV at the front of the house. She heard a bang and something hitting her house and saw smoke coming from under the eaves. The CFA attended and extinguished the fire which was still smouldering when they arrived. Thankfully the fire did not take hold and burn further into the house. Your part in this conduct is the basis of Charge 3 of reckless conduct endangering serious injury, and of Charge 4 of criminal damage. Understandably the woman resident was left feeling very frightened.
12The group then continued walking, with you and two of the others holding flares. Along the way two more flares were discharged, one in an alleyway and the second in the outdoors area of a McDonald's, although it seems that only your group was in the near vicinity and you did tell them to run away. This conduct is the basis of Charge 5 of reckless conduct endangering serious injury.
13The group then walked further and reached Frankston-Dandenong Road at Carrum Downs. A bus was parked with its rear doors open and no passengers, but the driver was sweeping out the bus. Another flare was ignited and thrown into the bus through the open door and you and another yelled for everyone to run. This is the last instance of reckless conduct endangering serious injury, and the subject of Charge 6.
14The bus driver, who was sweeping inside his bus, heard a loud bang and got a fright but the bus then filled with plumes of orange smoke which was very thick, preventing him from seeing and which he inhaled. As it happened he had only one lung due to a previous accident, and inhaling a large amount of this smoke caused him very considerable discomfort and shortness of breath, which itself must have been frightening to him as he knew his own respiratory impairment. He could not see through the thick smoke but was familiar enough with the layout of the bus to manage to find the front exit. The CFA attended there also. Both the bus and its driver had to be replaced for the rest of that shift.
15One of the group then rang another girl and the group walked towards her house. On the way, you and three others were looking into cars and checking if doors were unlocked. Around 11.00 pm you and the 14 year old entered a car in a garage at a residential address, opened the boot and took from it a keyboard in a bag and a brand new amplifier in a box. This is the basis of Charge 7 of theft.
16There was another car in the driveway. The next morning the owner found personal belongings strewn all over the vehicle although nothing was missing. This is the basis of Charge 8 of attempted theft.
17You also entered another vehicle in another driveway and forcibly removed a two way radio which had been screwed into position, thereby breaking part of the console. This is the basis of Charge 9 of theft.
18The group continued walking towards the other girl's house, then with her all walked to Carrum Downs Secondary School where about 20 minutes was spent on the oval, and then everyone walked through the school grounds. As you were leaving the 14 year old began hitting some windows with his skateboard, breaking them, and you joined in, kicking windows also causing them to break. This is the basis of Charge 10 of criminal damage.
19The group then walked back towards the last girl's house where her father threatened to call police and it seems police were, in fact, called. Your 14 year old co-offender was seen with a knife at that stage although that is not the subject of any charge against you.
20The group was then informed that the police had been called, and left, with you handing one of the others the amplifier in the box to carry. As the group walked away along one of the streets from which you had come earlier, you and the 14 year old re-entered the same garage and vehicle from which the amplifier and keyboard had been stolen, then re-joined the group and you all ran off.
21This time the resident and car owner heard the garage roller door opening and went out to investigate. He saw the garage door open and went into the street and saw someone carrying a box, finding the amplifier was missing from his car boot, he realised that that person he had seen must have been carrying the amplifier. He ran down the street, and found and picked up the keyboard that had apparently been put on the ground.
22However, you and two of the other boys surrounded this man,
Mr Aaron Taylor. Your 14 year old co-offender was holding a knife pointed at Mr Taylor and telling him to drop the keyboard. Either you or the third boy also told him to drop the keyboard, and to go home, with the 14 year old still waving the knife in Mr Taylor's face. Although
Mr Taylor did not expect him to use the knife, this conduct amounts to Charge 11 of armed robbery.23However, the situation escalated when Mr Taylor hit one of you on the arm with the keyboard, and the 14 year old became more aggressive, lashed out with the knife and cut Mr Taylor to the right temple. The third boy then punched
Mr Taylor to the face causing him to fall to the ground. The three of you then commenced kicking and punching him repeatedly to his body whilst he lay on the ground. During this attack you also stabbed Mr Taylor in the back, and delivered a second cut wound on his back with a knife. I infer that you used the knife that you had been carrying on your belt.24Your conduct in being party to the other boys’ actions, and yourself joining in on the kicking of Mr Taylor on the ground and then stabbing him, is the basis of Charge 12 of recklessly causing serious injury.
25Although Mr Taylor did not know at the time that he had been stabbed and only thought he was being kicked, once you had all left he got up and walked inside and after calling police was assisted by his wife to clean the wound on his face. She found that he had actually been stabbed in the back as well. Mr Taylor was taken to hospital by ambulance where he received stitches for the stab wound on his back. The stabbing was found to have caused a cut to his right kidney, and he also suffered a broken rib and a further cut to his back from the separate stab wound.
26Meanwhile you and five of the other boys ran towards the football oval where you took out your knife and showed it to them, and it was said to be covered in blood. You told them "I've just stabbed him". The group was seen by a police divisional van but ran off and hid, and you hid the stolen keyboard and amplifier in some bushes. You tried to get one of the others to take the two-way radio but he refused so you hid it also in bushes.
27The group then split into two. You, with three others, ran to Frankston-Dandenong Road and waited for and got onto a bus to Dandenong to where you were living. You said you had blood on your jumper and put it in another boy's backpack. You were worried, saying words to the effect of "I stabbed him. What if I made the guy die? What if I killed him?" You then changed your trousers and put your old pair into another boy's bag. You got off the bus two stops before your house and on the way to your house hid the knife in some long grass. The boys still with you spent the rest of the night at your house.
28The remainder of the charges were committed by you alone about three weeks later. On 27 April 2015 your stepfather arrived home to his house in Keysborough, noticed disarray with broken glass on the floor and a broken window and he found some items were missing - a Ryobi drill, approximately $300 in coins and six carbon fibre arrows which had been hidden in a wardrobe with other archery sets. This conduct is the basis of Charge 13 of burglary and Charge 14 of theft.
29Two days later your housemate came home after being away for a couple of days, saw that half of his clothes had been taken from his wardrobe but there was no forced entry to the house. and the front door was locked from the outside. On 29 April you attended Cash Converters in Bendigo where you sold the Ryobi drill as if you owned it, that being the basis of Charge 16 of obtaining property by deception. Seen on CCTV during that transaction you were wearing some of the clothing stolen from your housemate. That is the basis of Charge 15 of handling stolen goods.
30In the days following the 6 April events, police traced, interviewed and arrested the other teenagers involved. From information they gave, police found the keyboard, amplifier, two way radio and subsequently the knife with blood on it. From that information I infer that you never returned to collect any of those items you had hidden.
31In May police received information that you were in Townsville, Queensland, and on 29 May you were arrested there. You exercised your right to decline to participate in a recorded interview. You were extradited to Victoria and have been in custody - adult custody - ever since.
32You did not contest committal, and entered pleas of guilty to these charges at an early stage. You have not applied for bail since being returned to Victoria.
33I have read a victim impact statement from Mr Aaron Taylor, the man whom you and two of your co-offenders first threatened to rob of his keyboard with the threat of a knife, and whom you shamelessly kicked on the ground and then stabbed. He says that even six months later the wound to his back is still causing a few issues and has not fully healed and the scar is a reminder to him of the attack. His statement is brief but to the point. He wants you to realise that he could have been killed, and that would have left his wife without a husband and his children without a father.
34It seems, from what I have been told, that you have taken those issues to heart, but they should remain with you as a reminder of the extreme seriousness that your behaviour reached and the very real risk that Mr Taylor could have suffered much, much more serious injury than he did.
35I have also read and taken into account the statements to police of Mr Lockwood, the bus driver, and Ms Perata, into whose house roof a flare was discharged. Both knew that they were placed in real danger at the time by the actions of whoever amongst your group discharged those flares.
36I must assess the objective seriousness of this offending and your role in it. Even though deliberately breaking school windows is stupidly destructive and anti-social, because it diverts time and money into repairing such damage rather than it being spent on something positive for school students, and even though the thefts were brazen and caused loss and disruptions to those whose belongings were taken, I regard all of that offending as reflecting a youthful, if antisocial, escapade.
37The acts of discharging a flare into a house roof where the resident was present, and into a bus where the bus driver was present, were more dangerous, indeed reckless, as to causing either of those persons serious injury, but still in my view reflective of youthful recklessness and some revelry.
38The general rampage became much more serious, however, when you and two of your main co-offenders confronted Mr Taylor when he did no more than come out of his house to retrieve his property that you and your cohorts had just stolen. Three of you surrounded him and threatened him to make him relinquish the keyboard that he had just retrieved. The use of a knife in that threat was not by you personally, but you became party to it by proceeding to demand the item.
39This was brazen behaviour but in my view at a relatively low level of seriousness on the spectrum of possible armed robberies. Even though that charge attracts the highest maximum penalty in this State short of life imprisonment, I do not regard it as the most serious of the offences in which you were involved that night.
40The situation escalated when Mr Taylor was struck first by one co-offender's knife then punched by another. However it reached, in my view, a much worse level when the three of you joined in kicking him repeatedly as he lay on the ground. This was cowardly and brutal behaviour and apparently pointless. That you drew your knife and stabbed him while he was on the ground took that to an even more serious level. That act of stabbing him when he was on the ground was solely your act.
41Your behaviour in recklessly causing serious injury to Mr Taylor in this combined manner, that is the kicking of him on the ground and then stabbing him requires unqualified condemnation. He was disabled on the ground and outnumbered and you joined the other two in this brutality and then you used your knife on him. The sentence on this charge must include just punishment, and convey an element of general deterrence, that is, to send the message to others who might be tempted to engage in similar group behaviour, that it will attract serious punishment.
42In relation to the charge of lighting a fire in the open air, as it was watched at all times and put out before the group left, although that carefulness did not come from you personally, and it did not, in fact, cause any damage, if that offence had occurred in isolation I would certainly not have imposed a custodial sentence at all, or even a CCO for it. In the circumstances of this case and it being part of a rampage that night, I shall impose a nominal period in custody which, by operation of law, will be served wholly concurrently with the sentences on the other charges.
43The seriousness of carrying the knife is reflected in what ultimately occurred. You used it to stab a man. I assume that you did that in the heat of the moment, but it was only possible because you had the knife with you. That only need be stated to show why the carrying of such a weapon is an offence. However, as the use of the knife by you will be reflected in the sentence I impose on the charge of seriously injuring Mr Taylor, you will not be double punished through the sentence on this summary charge.
44Overall I take into account that these offences, that is those on 6 April, were committed in company which often clouds a young person's judgment when the desire to impress or be part of the crowd dominates. Although you were two years older than any of the others there is insufficient evidence for me to find that you were the ringleader. You are described as a "follower" by your mother. Even if not the ringleader, you were, at least, a principal in this group and took part in all of these offences whereas most of the others participated in many fewer and only two others participated in the much more serious offences against Mr Taylor. That you were carrying a knife throughout these events and indeed used it on Mr Taylor is also a feature which raised your culpability over that of all of the others.
45The offences about three weeks later were committed solely by you. They were obviously committed while you were avoiding detection for the earlier offences and they reflect a level of desperation for money which you told Dr Walton was for drugs. These offences also reflect betrayal of people close to you. You broke into and stole from your mother and stepfather's home, and you also stole clothes from your housemate. I have no information, of course, of how close you were to that person but nevertheless that is a betrayal of your arrangement of living with him.
46I must take into account what is called the principle of totality for the offences on which I sentence you. That is, what the total punishment will be for you for all of these offences. I consider that the sentences on most of them should be concurrent, but as the last four offences were in a period removed by some weeks from the other offending and from being in company with the co-offenders on 6 April, a modest amount of cumulation from those sentences should, in my view, be made to reflect that it was a separate period of offending. I have also imposed some cumulation, although modest, in respect of the offences with the flares which had people directly put at risk.
47Although there were co-offenders, although not all of them for all of those charges arising from 6 April activities, this is not a case where principles of parity, that is evenness and fairness between the various participants, have much, if any application.
48The first reason is that all the others were sentenced under different sentencing principles which apply to persons under 18, that is, children. In contrast you come into the adult jurisdiction although not by a long period. In the adult jurisdiction general deterrence is an important sentencing factor although because of your young age for the adult jurisdiction it should, and will, be moderated considerably applying the principles in Mills’[1] case. Apart from the one 14 year old boy who was sentenced to 12 months in Youth detention, most of the others involved on 6 April engaged in many fewer of the offences. That is another reason why parity with most of the others is not a major factor here.
[1]R v Mills [1998] 4 VR 235
49I take into account that you pleaded guilty to these charges at an early stage and that entitles you to a considerable degree of leniency. There is much utilitarian value, that is the practical saving of time and cost to the community, of disputed hearings and the need for a number of witnesses to be called to give evidence and for some of them, victims of the offences having to relive and recall these events and many of the others being young people to whom giving evidence in court would be alien.
50Your pleas of guilty also reflect that you have accepted responsibility for your behaviour, and in your case I accept that the plea of guilty reflects remorse on your part. So far as remorse is concerned you were certainly quite anxious straight afterwards when wondering to others if you had killed the man you had stabbed. How much of that was panicking about consequences to yourself compared with consequences to that man is impossible for me to say. You did apparently run away and manage to avoid being found for more than a month, but at your age I accept that that may well have been due to panic.
51A better indicator and measure of your remorse and acceptance of responsibility is that you did not apply for bail, even though being in adult custody for a protracted period in the meantime and for the first time in your life, and that you pleaded guilty to all of these charges at an early stage. You have also expressed remorse to your mother and to Dr Walton who assessed you recently for this hearing.
52I turn now to your personal history and circumstances. You are now aged 19. You were born in Townsville where you lived until age 11 or 12. Your father left your mother and you when you were only one year old, and has had no ongoing role in your upbringing. Your mother met a new partner when you were aged eight and they subsequently married. He and the family moved to Melbourne for work but you were not happy here or in the household with your stepfather. You acknowledge that your stepfather has made your mother happy, but you were not, and as your behaviour deteriorated, which it did with you starting to abuse drugs, your relationship with your stepfather also deteriorated.
53Nevertheless your mother has always stayed supportive and worried about you. Both she and your stepfather were in court to support you during the plea hearing, and your mother has been on the subsequent occasions and today. That you broke into and stole from their house reflects how difficult the situation had become for them, and that is something that you are going to have to act to repair in the future.
54I am told that you left school during Year 9. You took illegal drugs, and no doubt through that formed bad associations, and became involved in offending.
55You have admitted a prior criminal history which includes four prior court appearances in Victoria, in the Children's Court in 2011 and 2012, but all for multiple offences. The offences ranged through many types but relevantly included two for armed robbery, one for attempted armed robbery, several charges of theft, one of aggravated burglary, and one of possess a prohibited weapon. I am told that two armed robberies were on shops; in one you had a knife and in another, a meat cleaver. The attempted armed robbery involved a knife, and the knife was the subject of the weapons charge. At least some of these were committed in company. This is a substantial criminal record for a teenager. You received sentences of probation in 2011 and then adjourned undertakings in 2012 on condition that you confirm employment in Queensland where, I gather, you moved.
56I was told that you lived with an aunty in Queensland for about 18 months, but it seems that you were also in a relationship in Queensland with a girl three years older than you. Although that was happy and stable for a while and you were working in employment, that relationship apparently broke down very soon after she gave birth to your child. The child, I am told, is now almost two but you have not seen him since May last year. I am told that he is now living in South Australia with maternal grandparents, although there may have been some arrangements for your former partner and the child to move to Victoria. I am told and accept that it is a matter of sadness for not only you but your mother that there has been no contact with the child over this period. This is your mother's only grandchild.
57It seems that after the break-up with your girlfriend you reverted to drug use and then some offending. You were dealt with in Queensland in June last year for drug possession and stealing, and were fined without conviction. The description of those offences being dealt with on one occasion and the fines are probably a reflection that they were viewed as relatively minor at the time, and also took into account your age.
58I am told that you returned to Victoria late last year but had no stable accommodation and moved around sharing with others or were homeless for periods of that time. You reverted to taking drugs, had no employment, and were clearly drifting in life generally leaving you vulnerable to resuming past offending patterns.
59Your prior record in Victoria reflects extensive and not just minor offending over at least an 18 month period and the offences for which I sentence you indicate that you had reverted, earlier this year, to similar reckless and escalating misbehaviour. You cannot claim leniency for an isolated lapse. You obviously have had serious problems both with drugs and with establishing a constructive lifestyle for yourself. The scale of offending for which I sentence you, together with this past history, mean that a significant factor in your sentence must be specific deterrence. That means to try to discourage you from further offending.
60However at your age and despite your prior offending, in my view a sentence is appropriate which addresses the causes of your offending and tries to assist you to prevent or deal with those arising again in the future. In my view that, which we call rehabilitation, is the best way of preventing you from offending or attempting to do so again, and should be a significant purpose of your sentence. This is not only in your own but also the community's best interests. It requires acceptance by you that you do want to build a stable and responsible life for yourself. You may well require both guidance and assistance with that but you will need to want to change and you will need not only to accept encouragement and assistance by discipline to achieve that.
61I have read a psychiatric assessment of you by Dr Lester Walton who examined you for this hearing. He reports that apart from being addled with methylamphetamine you cannot provide any motivation for the rampage on 6 April. You told him that the reason for the subsequent thefts was to gain money to buy more ice. You told Dr Walton that you have thoroughly castigated yourself for what you did to Mr Taylor and are very relieved that the has recovered, substantially, from the physical injuries.
62He notes your history with various drugs and that you have never engaged with any programs to address this. You have undergone forced physical detoxification from the methamphetamine in prison and that has not been easy for you especially as you cannot smoke cigarettes there, but you have told him that you have not abused drugs since imprisonment.
63Dr Walton's opinion is that while he cannot diagnose a possible serious mood disorder at this stage, you do have a lengthy history, for your age, of anxiety and depression, which is a mood disorder, and that that has been aggravated by substance abuse. There have been brief periods of suffering from psychotic symptoms but he attributes those to specific reactions to methamphetamine. He says you are not suffering from an enduring psychotic illness.
64He finds you of normal intelligence. He considers that your chronic depression aggravated by being addled with methylamphetamine are likely to have made a significant contribution to your exercising very poor social judgment and to becoming aggressive during this offending. Therefore the offending was partly attributable to the chronic mood disorder and the effect of the illicit drugs, but he does not differentiate between those two causes and I take him to think that was a combined effect.
65He finds your expression of motivation to remain drug free once back in the community praiseworthy, his word is "laudable", but he notes that you will need to maintain that in the longer term. He considers that the duration rather than severity of your mood disturbance may benefit from a trial of anti-depressant medication. He concludes that you are a psychologically immature young man but do not lack a capacity for remorse.
66Dr Walton's opinion supports that there was some contribution to your offending conduct from your long term mood disorder, but aggravated by the effect of methylamphetamine, noting that irresponsible, self-destructive and aggressive behaviour is a well-recognised consequence of parallel depression and amphetamine use.
67As the effect of the underlying mood disorder cannot, in my view, be extricated as a significant cause or your offending, absent the drugs you voluntarily took that night or that day, I do not regard what lawyers call the principles in Verdins case as having much application or influence in your sentence. That is especially so as general deterrence is already reduced and specific deterrence, in my view, is interrelated with the need for rehabilitation.
68I do regard the evidence of this underlying psychological condition as well as the effect on your behaviour of drug abuse, as being of significance in your rehabilitative needs when deciding a sentence for you. Dr Walton does not, in my view, give an opinion that attributes to your mood disorder any likely worsening of it in prison, nor making your time in custody more onerous.
69On being remanded for this offending you found yourself at age 18 in adult prison conditions, where you had never been before, and where you have been for the last five and a half months. Although your counsel was not aware or able to clarify through you whether there had been repercussions for you from the disruptions that occurred at MRC in July, I have received some details of that from a pre-sentence report. I gather that some of the time you have been in 23 hour lockdown, but that may have been attributable to some actions by you yourself.
70I am satisfied that some of your period on remand, therefore, has been spent in more restrictive and therefore more onerous conditions than would be usual in the general prison population, and in particular than would be usual had you been in a Youth Justice Centre. That, taken together with the fact that you are very young to have been in the adult system, I have taken into account in reduction, to an extent, in the overall sentences I am going to impose.
71It was conceded on your behalf that the seriousness of the two offences against Mr Taylor, especially with your prior criminal history, warrant imprisonment that lasts longer than the period that you have already spent. I queried whether that was a reference to a custodial sentence generally which might leave Youth Justice Centre as an option, and although there was initially hesitation as conveyed through your counsel about whether you would want to be transferred to YJC, after you were assessed for that option it was urged on your behalf, and was acknowledged by the prosecution to be appropriate.
72I requested pre-sentence reports to consider your suitability for detention in a Youth Justice Centre, or for a Community Corrections Order, the latter after your release from a term of imprisonment. I have taken into account both of those reports, including that until you have somewhere to live on your release you will not be suitable for CCO. As I do not intend to order your release immediately that could presumably be overcome.
73The report on your suitability for a Youth Justice Centre sentence was, in my view, especially helpful, comprehensive and with constructive information about what would be required of you and what would occur through the Youth Parole system. The report also gave me useful insights about you, your background, and your mother's dilemma as to how to help you on your release. You were assessed as suitable for YJC and are, apparently, wiling to comply if placed in that system.
74I am satisfied that you do have prospects for rehabilitation and at your age that should be a primary object of sentencing even though you are by no means a first time offender, and the offending reached a serious level of violence when you confronted Mr Taylor.
75I note that your offences were also viewed as reflecting that you are immature and impressionable, and that Dr Walton found you psychologically immature. Immaturity, as well as prospects for rehabilitation, is another criterion for finding you suitable for the Youth detention system.
76I was initially of the view that your time in adult custody might have rendered you less suitable to be moved into the YJC system. However the pre-sentence report on your suitability for that system has convinced me that it is the sentencing option which best achieves sentencing objectives in your case. That is, of imposing just punishment, conveying some general but more so specific deterrence, whilst also best assisting your rehabilitation prospects by confining you in custody suited to your age, to set appropriate discipline and boundaries and to address the causes of your offending, and to assist you to face and address those in the future with the prospect of you being assisted and supervised under the Youth Parole system.
77I have moderated the terms of detention I will impose to take into account the five and a half months you have already been in custody has been served in more onerous conditions, as I have explained, than you would have been had you been in Youth Detention conditions for all of that time.
78Brandon Braithwaite, I sentence you as follows and because I have to impose a separate sentence on each charge it is going to take a while.
79On each of Charges 1 and 10, those are of criminal damage to school windows, I impose one months’ detention.
80On each of Charges 2, 7 and 9, being thefts on 6 April, I impose two months detention.
81On each of Charges 3 and 6, that is reckless conduct endangering serious injury where there were those other persons present, I impose four months detention.
82On Change 4 of criminal damage, two months detention. That was to the house roof.
83On Charge 5 of reckless conduct, that was the flare near the McDonald's, one months' detention.
84On Charge 8 of attempted theft, one weeks’ detention.
85On Charge 11 of armed robbery, 12 months' detention.
86On Charge 12 of recklessly causing serious injury to Mr Taylor, 18 months detention, and that is the base sentence.
87On each of Charges 13, 14, 15 and 16 I impose two months’ detention.
88On the summary offence of lighting a fire in the open air, one day of detention. On the summary charge of carrying a controlled weapon, the knife, two months' detention.
89I direct that one month of the sentences on each of Charges 3, 6 and 13 be served cumulatively on each other and on the sentence imposed on Charge 12. That results in a total effective sentence of 21 months in youth detention.
90I declare 174 days of pre-sentence detention as reckoned served. I direct that that be recorded in court records and note that it will be deducted administratively.
91I state for the purposes of s.6AAA of the Sentencing Act that if you had not pleaded guilty but been found guilty of all of these offences on trial, I would have imposed a total effective sentence of four years' imprisonment which would have meant that YJC was not available. I would have imposed, as I say, a total effective sentence of four years imprisonment, and would have imposed a non-parole period of two years, the latter taking into account your youth.
92In addition to these orders I make the order for compensation that was sought. I think that was in respect of the stolen flares and knife. I make the disposal order sought.
93I also am prepared to make an order that a forensic sample be taken from you which will enable your DNA to be recorded on the State's database. The reasons I make that are the circumstances and seriousness of the overall offending, in particular the two most serious offences against Mr Taylor. I limit that order to a scraping from the inside of the mouth. Now that means a swab is rubbed against your cheek and that should not be too intrusive. However I warn you, as I must, that if you resist the taking of that sample an authorised officer can use reasonable force to take it from you. As I say it should not be too intrusive and does not hurt unless you resist.
94You can take a seat, Mr Braithwaite, while I have these orders prepared and check that I have covered everything and that the form of the order meets the rules. Mr Lawson, have you checked it?
95MR LAWSON: I believe it is correct, Your Honour.
96HER HONOUR: All right. Ms Champion, when you have had a chance, have you checked the details?
97MS CHAMPION: I have, Your Honour, that's correct yes.
98HER HONOUR: All right thank you. Just to make clear, the base sentence, of course, is for the most serious charge of recklessly causing serious injury to Mr Taylor which embraces both the kicking and the stabbing of him. Most of the other sentences are to be served concurrently, but I have ordered a month's cumulation for each of the two instances where the flare was let off that endangered, one, the bus driver and the other one the householder whose roof electrics nearly caused a fire, and she was there and aware of it. The other cumulation is from the burglary into your parents’ house, which started a separate sequence of offending three weeks later.
99As will have been explained to you it is up to the Youth Parole Board how much more time you actually spend in custody, and you will have to serve however much time is required of you, and conform to whatever conditions are put on you both in detention and when eventually released.
100Now I will sign those ancillary orders if we have them. All right that is a copy for each party. One for the file of the order for disposal of the knife. A copy for each party and one for the file of the order for compensation in the sum of $200 to be paid to Roberto Simeoni. There'll have to be arrangements made for that. I have also signed the order that a forensic sample be taken. That will happen while he is in custody.
101It is because of the complications and of how many charges it is just taking me a while to check. I gather that those you have already met from Youth Detention have had a chance to talk to you, Mr Braithwaite? Yes, just before I finalise this if your mother wants to approach and speak to you. Not physical contact but if you'd like to, that can occur too.
102VOICE (from body of court): Thank you.
103HER HONOUR: I have signed the orders now. Counsel each has a copy and will see that the computer system puts what one might have thought were the least significant parts first, the disposal and compensation matters. One works through them the various charges. All right I am now going to adjourn the court and ask first that Mr Braithwaite be removed.
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