Director of Public Prosecutions v Jimmie (a pseudonym) (No 2)

[2024] ACTSC 369

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Jimmie (a pseudonym) (No 2)

Citation: 

[2024] ACTSC 369

Hearing Date: 

19 November 2024

Decision Date: 

19 November 2024

Before:

McCallum CJ

Decision: 

I amend the good behaviour order to add the following conditions:

(a)       That the offender accept supervision by ACT Corrective Services including engaging with strategies to address unemployment, lack of pro-social activities and alcohol and illicit substance use. I indicate that such supervision be only for the period that is deemed appropriate by ACT Corrective Services.

(b)       That the offender is to report to the ACT Community Corrections office at Level 1, 249 London Circuit within 48 hours of entering such an order.    

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of good behaviour orders – where offender on pathway to rehabilitation – breach offence of low objective seriousness – recommendation of corrective services that good behaviour order be amended by adding a greater level of supervision

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT), s 108

Parties: 

Director of Public Prosecutions ( Crown)

Ryley Jimmie (a pseudonym) ( Offender)

Representation: 

Counsel

D Swan ( DPP)

R Brandon-Baker ( Offender)

Solicitors

ACT Director of Public Prosecutions  

Legal Aid ACT ( Offender)

File Number:

SCC 202 of 2021

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)       

1․Ryley Jimmie (a pseudonym) comes before the Court today to be dealt with for breach of a good behaviour order imposed by me on 3 March 2023.  The offence for which I dealt with him on that day was one of the offences arising out of the so-called “skate park” incident, which saw another young person charged with, and acquitted of, murder.

2․I think I have previously observed in these proceedings that, ironically, Mr Jimmie is the one person who has been held accountable for the terrible events of that incident.

3․The good behaviour order I imposed on 3 March 2023 did not carry supervision conditions.  That was because, at that time, Mr Jimmie was not coping well with living in Canberra and wished to go and live in Queensland with his mother, who was unwell.  She gave evidence at the proceedings on sentence.  Her evidence, and his circumstances, persuaded me that, notwithstanding an apparent need for supervision, Canberra was not the place for him at that time and that it was appropriate to allow him to go to Queensland to live with his mother.

4․Mr Jimmie evidently returned to Canberra not long after the commencement of that order, apparently forming the view that there was inadequate supervision for him whilst living with his mother.  He felt more comfortable in familiar territory.  One aspect of that decision may have been the fact that he has the benefit of ACT housing accommodation here.  That is obviously an important anchor for him. 

5․At the time of the proceedings on sentence, that address was the subject of some concern to officers of Corrective Cervices but they now accept that that is a good and stable place for Mr Jimmie.  He resides there with an older brother, whom he describes as being a positive support.  He also lives there with a younger brother, for whom the offender himself has previously been a support.  In short, the brothers appear to do well when they are with each other.  Together they have survived a childhood of significant trauma, having been exposed to domestic violence committed against their mother at the hands of their stepfather.

6․The offence which constituted a breach of the good behaviour order is an offence of affray for which Mr Jimmie was sentenced by Magistrate Temby on 21 August 2024.  The circumstances of that offence were that the offender was out celebrating or partying with friends one evening.  In the early hours of the morning, he found himself in a verbal altercation with another person.  It is clear from the statement of facts that there was, as it was put in submissions on his behalf, a level of mutuality in the offending.  In particular, both the offender and the other person took up what is described as “a bladed stance”, raising their hands and bobbing forwards and backwards.

7․The other person gestured with his hand for the offender to approach him and at one point rushed towards the offender.  The material before me does not say whether that other person was charged with any offence but plainly, on the facts before me, he could have been.  In any event, that is not to belittle the level of involvement on the part of the offender, which was of some seriousness in that punches were thrown and there is an account of the offender having kicked the other person in the face with his right foot. 

8․There is however no evidence of any injury to that other person.  It is impossible to know whether the incident was much more than two young men scuffling with each other.  Again, that is not to say that the Court ever approves of such conduct, but only to explain why I respectfully disagree with the assessment made by the learned Magistrate that it was, as far as that version of affray goes, a “relatively serious example”.

9․In the proceedings on sentence for the original offence, I assessed the objective seriousness of the offence to be low.  I also expressed the view that the offender’s moral culpability was considerably reduced by reason of material before me concerning his subjective case, including his early exposure to violence, to which I have referred.  I should add that, at a young age, he was also exposed to drug use and that no doubt contributed to his own drug use, which presently he seems to have under control.

10․The present offence, I would also assess as being of a relatively low order of objective seriousness.  For the reasons I have given, I also regard the offender’s moral culpability to be relatively low.  I do not regard his involvement in the breach offence as a deliberate contravention of my order or an event which indicates an attitude of disrespect to the orders of the court.  I have this morning directly addressed the offender and had an exchange with him.  Once again, as before, he has impressed me as an intelligent and resilient young man whose prospects of rehabilitation I regard to be very good.

11․For that reason, I do not propose to cancel the good behaviour order or re-sentence the offender. The provisions of s 108 of the Crimes (Sentence Administration) Act 2005 (ACT) however do permit me to amend the order. Had the offender not been heading to Queensland when I sentenced him previously, I would have included a supervision condition in the good behaviour order. That is what is recommended in the pre-sentence report and it is what I propose to do now.

Orders

12․For those reasons, I amend the good behaviour order to add the following conditions:

(a)That the offender accept supervision by ACT Corrective Services including engaging with strategies to address unemployment, lack of pro-social activities and alcohol and illicit substance use. I indicate that such supervision be only for the period that is deemed appropriate by ACT Corrective Services.

(b)That the offender is to report to the ACT Community Corrections office at Level 1, 249 London Circuit within 48 hours of entering such an order.    

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: