Director of Public Prosecutions v Kaye (a pseudonym)
[2025] ACTSC 169
•1 May 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Kaye (a pseudonym) |
Citation: | [2025] ACTSC 169 |
Hearing Dates: | 12 February 2025, 17 April 2025 |
Decision Date: | 1 May 2025 |
Before: | Taylor J |
Decision: | See [198]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – child offender – young person – aggravated robbery – co-offender – make demand accompanied by threat – ride/drive motor vehicle without consent – aggravated burglary – assessment of maturity – application of Bugmy principles – assessment of prospects of rehabilitation – promotion of rehabilitative prospects – imposition of partially and fully suspended sentences |
Legislation Cited: | Crimes Act 1900 (ACT), s 32(2) Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ch 8A, ss 7, 10, 33(1)(f), 53(1)(a), 133G(2) Criminal Code 2002 (ACT), ss 45A, 310, 312, 318(2), 321 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Joliffe-Cole [2024] ACTSC 256 DPP v Kayvanshokoohi [2024] ACTSC 386 DPP v Myers (a pseudonym) (No 4) [2022] ACTSC 308 Hall v The Queen; Barker v The Queen [2017] ACTCA 16 Mill v The Queen (1988) 166 CLR 59 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 Police v Pedro Swain (a pseudonym) [2024] ACTCC 1 R v Carberry [2022] ACTSC 208 R v Elphic [2021] ACTSC 9 R v Goodge [2019] ACTSC 297 R v Hagen [2022] ACTSC 362; 374 FLR 260 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Lock [2016] ACTSC 319 R v Massey (No 3) [2021] ACTSC 156 R v ME [2017] ACTSC 402 R v Millwood [2012] NSWCCA 2 R v NF [2018] ACTSC 165 R v OI [2020] ACTSC 286 R v Robertson [2010] ACTCA 19 R v Rosewarne [2021] ACTSC 217 R v SDM [2001] NSWCCA 158; 51 NSWLR 530 R v Slattery [2021] ACTSC 154 R v UD [2017] ACTSC 210 R v UD (No 2) [2020] ACTSC 323 R v Watson [2021] ACTSC 339 R v Wilson [2022] ACTSC 7 Sampson v De Haan [2016] ACTSC 327 Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 |
Parties: | Director of Public Prosecutions ( Crown) Wayne Kaye (a pseudonym) ( Young Person) |
Representation: | Counsel G Meikle ( Crown) S Baker-Goldsmith ( Young Person) |
| Solicitors ACT Director of Public Prosecutions Bevan & Co ( Young Person) | |
File Numbers: | SCC 315 of 2024 SCC 316 of 2024 SCC 41 of 2025 SCC 42 of 2025 |
TAYLOR J:
Introduction
1․On 25 March 2024, the young person, Wayne Kaye (a pseudonym), entered a plea of guilty in the ACT Childrens Court to the following offence:
(a)CH2024/325: Aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 2,500 penalty units, imprisonment for 25 years, or both.
2․On 10 September 2024, the young person entered pleas of guilty to the following offences:
(b)CH2024/388: Aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 2,500 penalty units, imprisonment for 25 years, or both.
(c)CH2024/392: Ride/drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 500 penalty units, imprisonment for 5 years, or both.
(d)CH2024/1099: Make demand accompanied by threat, contrary to s 32(2) of the Crimes Act 1900 (ACT) by virtue of s 45A of the Criminal Code, which carries a maximum penalty of imprisonment for 10 years.
(e)CH2024/703: Joint commission minor theft, contrary to s 321 of the Criminal Code by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 50 penalty units, imprisonment for 6 months, or both.
3․These five offences were each committed on 8 March 2024 in the company of another young person, Pedro Swain (a pseudonym). I will refer to these offences as the ‘Series 1’ offences.
4․These matters first came before me for sentence on 12 February 2025. On this occasion, the sentence hearing was unable to proceed for several reasons. First, due to an administrative error a pre-sentence report had not been prepared by Children, Youth and Families. Secondly, it was drawn to my attention that the young person had outstanding matters in the Childrens Court for which pleas had not yet been entered to all charges. Additionally, counsel on behalf of the young person requested that the young person be assessed for a Therapeutic Correction Order.
5․On 26 February 2025, the following additional offences that I will refer to as the ‘Series 2’ offences, were committed to this Court:
(a)CH2025/171: Aggravated burglary, contrary to s 312 of the Criminal Code by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 2,000 penalty units, imprisonment for 20 years, or both.
(b)CH2025/172: Ride/drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code, which carries a maximum penalty of 500 penalty units, imprisonment for 5 years, or both.
6․The young person committed these offences on 31 December 2024. A plea of guilty was entered to the joint commission aggravated burglary charge (CH2025/171) on 17 April 2025. A plea of guilty was entered to the ride/drive motor vehicle without consent charge (CH2025/172) on 26 February 2025.
7․Accordingly, the young person is now to be sentenced for the Series 1 and Series 2 offences.
Facts
Series 1
Background
8․At about 1:48am on 5 March 2024, unknown persons entered the garage of a residence in Franklin in the ACT and stole a grey Nissan Qashqai vehicle (‘the Nissan’). At about 9am that day, the owner of the Nissan contacted police and reported the vehicle as stolen.
Aggravated robbery (offensive weapon and in company) (CH2024/388)
9․At about 9:30pm on 8 March 2024, SP was working behind the front counter of Domino’s Franchise Fyshwick (Domino’s Fyshwick), located at 2 Yallourn Street Fyshwick in the ACT.
10․At this time, CC, another employee of Domino’s Fyshwick, had just entered the cooler room to the side of the front counter. While SP was speaking with a customer over the phone, two males entered the store while waving knives.
11․AB and her son had collected a pizza and were sitting outside Domino’s Fyshwick in AB’s vehicle when they observed the two males enter the store.
12․The first male, who was taller, wearing a black hooded jumper and black shorts, and who was waving a knife with a white handle, is co-young person Swain.
13․The second male, who was wearing black pants and a grey hooded ‘Adidas’ jumper with stripes along the sleeves and the hood up, and who was also waving a knife with a white handle, is the young person.
14․Co-young person Swain reached over the front counter and grabbed SP by the scruff of his collar, partially dragging him over the counter. Co-young person Swain threatened SP while asking for money, saying, inter alia, “give me all your money”, “I’m going to stab you” and “I’m going to kill you”. The young person was also waving his knife and demanding money.
15․SP dropped the phone and opened the till while being held by co-young person Swain. CC walked over from the cooler room and assisted SP in placing the money from the till onto the counter. Co-young person Swain and the young person continued making threats and demanded money from a second till. SP and CC explained they only had the one till in operation.
16․The young person became upset after asking about a $50 note that had been placed on the counter. The young person stabbed the counter with the knife he was wielding several times while threatening SP and CC, and in doing so stabbed a clear plastic Ridgeway Rural Fire Brigade donation box.
17․Co-young person Swain and the young person continued making threats against SP and CC before co-young person Swain released SP and turned around to leave the store, almost stabbing SP with the knife as he turned. The young person grabbed most of the money (totalling $307) and the donation box from the counter. The young persons exited the store.
18․Co-young person Swain and the young person were seen to enter a dark coloured vehicle, which was identified as being either a Mazda or a Nissan, and drove away from Domino’s Fyshwick.
19․At about 9:35pm, AB contacted police via triple zero and requested their attendance.
20․At about 9:37pm, SP contacted police via triple zero and reported the robbery.
21․At about 9:47pm, police arrived at Domino’s Fyshwick and spoke with SP and CC. The co-owner of Domino’s Fyshwick attended the store a short time later and determined that the closed-circuit television (CCTV) had not been operating at the time of the incident.
22․A short time later, CC participated in a record of conversation with police.
23․At about 10:50pm, members of the Australian Federal Police forensics team arrived and seized SP’s shirt. They also took forensic samples from the counter, door handles and some money left by the young persons.
24․At about 11:31pm, SP participated in an Evidence-In-Chief Interview (EICI) with police. SP and CC did not give either of the young persons permission to threatened them with a knife.
Make demand with threat (CH2024/1099) and ride/drive motor vehicle without consent (CH2024/392)
25․At about 9:40pm that same night, JI was standing at the rear of his vehicle, drinking a coffee in the carpark of Eastlakes Calwell in the ACT
26․The Nissan entered the carpark of Eastlakes Calwell and parked approximately five parking spaces away from JI’s vehicle.
27․Two males exited the Nissan and walked to the rear of JI’s parked vehicle. Co-young person Swain exited the driver’s seat while the young person exited the front passenger seat. Co-young person Swain was wearing a dark vest, white t-shirt, dark shorts and dark shoes. The young person was wearing a light-coloured hooded top and dark pants.
28․Co-young person Swain approached JI and stated words to the effect of “Hey mate, where’s your car key?”. Co-young person Swain grabbed a knife from under his arm and held it towards JI. The young person stood to the side of co-young person Swain.
29․JI stated that he had left his key in his car. JI was holding his mobile phone in his hand, he put it in his pocket when co-young person Swain attempted to snatch it from him.
30․Co-young person Swain then made multiple threats to JI, including “Give me your car keys or I’ll stab you”.
31․JI went to walk towards the front of his vehicle when he saw co-young person Swain drop his knife slightly. JI then threw his coffee onto co-young person Swain before reaching and grabbing the knife from him.
32․Co-young person Swain and the young person ran back to the Nissan while JI yelled at them to go away. Co-young person Swain ran towards the driver’s seat and drove away with the young person in the front passenger seat.
33․JI ran inside Eastlakes and told the receptionist and the duty manager what had occurred. JI placed the knife, which was approximately 30 centimetres long with a serrated blade and a white and grey handle, on the front counter. The receptionist used a tissue to move the knife to the reception desk, away from public access. The duty manager contacted police and reported the incident. At about 10:15pm, police arrived at Eastlakes Calwell.
34․At about 10:19pm, JI participated in a record of conversation with police. During that conversation, JI stated that he had observed a donation box under the arm of the young person.
35․Police were provided with CCTV footage from the premises. The footage showed the Nissan arriving, two males matching the above descriptions exiting the vehicle and approaching JI’s location, then running back to the vehicle and driving away.
36․Police seized the knife that JI had taken from co-young person Swain.
37․JI did not give co-young person Swain or the young person permission to threaten him with a knife or attempt to take his phone and vehicle from him.
Aggravated robbery (offensive weapon and in company) (CH2024/325)
38․On the evening of 8 March 2024, HB, SW, EC and AE were working at Domino’s Franchise Conder (Domino’s Conder). Several other colleagues were also there, including DM who had just finished his shift. At about 9:51pm, two males entered the store while holding knives.
39․The first male, who was wearing a black hooded jumper, black shorts and black shoes and was carrying a kitchen knife with a black handle, is co-young person Swain.
40․The second male, who was wearing a grey hooded Adidas jacket, black pants and black shoes and was carrying a smaller kitchen knife with a white handle, is the young person.
41․Both males had their hoods raised with the drawstrings tightened.
42․Co-young person Swain and the young person began waving their knives about and walked through the staff entrance to the rear of the store. Co-young person Swain and the young person held the knives up and said several phrases to the staff members while they were walking through, including, “Don’t try anything”, “Give us your fucking money”, “Open the safe” and “Open the till”.
43․DM opened the till and co-young person Swain and the young person took the notes and coins from the till and placed them in their pockets. DM then opened the safe. Co-young person Swain and the young person reached in and took bags of money from the safe, including a black Domino’s bag. Co-young person Swain and the young person took $700 in total from the safe and till combined.
44․Co-young person Swain and the young person then left the store and staff observed them entering a Nissan before they drove away from the location.
45․At about 10:03pm, DM contacted triple zero and reported the incident to police. At about 10:08pm, police attended the location.
46․HB, DM, AE and SW participated in records of conversations with police at the scene.
47․Police spoke with the owner of the store who provided them with CCTV footage of the incident. A short time later, the AFP forensics team attended Domino’s Conder and obtained forensic samples.
Investigation and arrests
48․At about 11:18pm, police located the stolen Nissan on Coombe Street, Bonython in the ACT. The Nissan was seized.
49․At about 11:51pm, police attended an address in Bonython and spoke to the young person. The young person’s father confirmed the identity of the young person. The address in Bonython is approximately 100 metres from where the Nissan was located by police.
50․Police obtained consent from the young person’s mother to search the young person’s bedroom. Police located two black Domino’s bags, a grey Adidas hooded jumper, black tracksuit pants, and a locked Ridgeway Rural Fire Brigade Coin Donation Box.
51․At about 11:51pm, the young person was arrested and conveyed to the ACT Regional Watch House. Co-young person Swain was also present at the young person’s residence. Co-young person Swain was wearing black shoes, black shorts, a white t-shirt and a black vest.
52․Upon further viewing of the CCTV footage from Domino’s Conder, police observed that the male in the black hooded jumper had a tattoo on his hand that matched a tattoo on co-young person Swain’s hand.
53․At about 1am on 9 March 2024, co-young person Swain was arrested and conveyed to the ACT Regional Watch House.
54․Both co-young person Swain and the young person declined to participate in records of interview.
55․The young person and co-young person Swain did not have permission to threaten the staff at Domino’s Conder with a knife. They did not have permission to take $700 from Domino’s Conder.
56․On 9 March 2024, JI attended Woden Police Station and participated in an EICI with police in relation to the Eastlakes Calwell incident.
57․The owner of the Nissan did not give either co-young person Swain or the young person permission to drive or ride in the Nissan at any time.
58․At about 1:20pm on 15 March 2024, police conducted a search of the seized Nissan. Police located multiple items including:
(i) two knives with black handles;
(ii) two knives with white and grey handles;
(iii) packaging for a 20 centimetre ‘IKEA’ ‘Vorda’ knife;
(iv) packaging for a 20 centimetre ‘IKEA’ ‘Vorda’ knife;
(v) packaging for ‘IKEA’ ‘Andlig’ knives; and
(vi) a black Domino’s zippered bag containing $20 in cash.
59․On 17 March 2024, CC attended Woden Police Station and participated in an EICI with police in relation to the robbery of Domino’s Fyshwick.
60․The following forensics results of note were returned:
(i) co-young person Swain’s fingerprint was found on a knife in the Nissan;
(ii) co-young person Swain’s fingerprint was found on the knife at Eastlakes Calwell;
(iii) both co-young person Swain’s and the young person’s fingerprints were found on the exterior of the front driver’s side window of the Nissan;
(iv) co-young person Swain’s fingerprint was found on the exterior of the rear driver’s side window of the Nissan;
(v) the young person’s fingerprints were found on the exterior and interior of the front passenger side window and the exterior of the front passenger side door of the Nissan; and
(vi) co-young person Swain’s fingerprint was found on the rearview mirror inside the Nissan.
Minor theft (CH2024/703)
61․Police spoke to the Safety and Security Manager at IKEA, located in Pialligo in the ACT. Police subsequently attended IKEA and obtained CCTV footage.
62․The CCTV footage showed two males entering IKEA at 7:28pm on 8 March 2024.
63․The first male is co-young person Swain. He is the taller of the two males and is wearing a white t-shirt, black best, black shorts, black shoes and has black hair.
64․The second male is the young person. He is the shorter of the two males and is wearing a grey Adidas jacket with three white stripes down each sleeve, black pants and black shoes.
65․At about 7:29pm, co-young person Swain and the young person walked into the kitchenware section of IKEA. Co-young person Swain walked to the display area of ‘Andlig’ knives. Each packet contains three knives of different sizes with white and grey handles. The young person walked over and picked up the packet co-young person Swain was holding, turned away and placed the packet down the front of his pants.
66․Co-young person Swain and the young person then walked into the aisle where individual knives were displayed. The young person picked up a knife in packaging and placed the item down the front of his pants. Co-young person Swain picked up a knife in packaging, turned away from the display and the camera momentarily, and then turned back towards the display with the knife no longer visible.
67․At about 7:31pm, co-young person Swain and the young person walked out of IKEA without paying for the items.
68․At about 4:35pm on 20 March 2024, police obtained a statement from the Safety and Security Manager at IKEA in relation to the theft of the knives.
69․Co-young person Swain and the young person did not have permission to take the knives from IKEA without paying.
Series 2
Aggravated burglary (CH2025/171) and ride/drive motor vehicle without consent (CH2025/172)
70․Police conducted checks which revealed the young person does not hold a driver’s licence.
71․The owner of a Silver Mercedes (‘the Mercedes’) reported their motor vehicle as having been stolen from an address in Turner on 31 December 2024.
72․DJ is the owner of a Clark Mayfair 249 boat that was garaged inside the secure carpark of his unit complex in Dickson, ACT. DJ is also the owner of an outboard engine stand and rivet gun which he stored with his boat.
73․CV is the owner of a white Yamaha D’Light scooter (‘the scooter’). On 27 December 2024, CV parked her scooter in the secure carpark of her unit complex in Dickson, ACT.
74․At about 4:25pm on 31 December 2024, the stolen Mercedes was driven into the secure carpark of DJ and CV’s unit complex. The two persons in the Mercedes located an outboard engine stand and rivet gun (‘the tools’) from the boat belonging to DJ. The two persons then drove and parked the Mercedes next to the scooter.
75․The two persons exited the Mercedes and broke the wheel lock off the scooter using the tools.
76․At about the same time, DJ entered the secure carpark and witnessed two young males hitting the scooter with the tools. A short time later, DJ exited the carpark.
77․The first male was described as young, Caucasian, of slim build with dark coloured hair tapered on the sides and back. He was wearing a black ‘Tommy Hilfiger’ branded t-shirt, black shorts and black and white sneakers. Police now know this person to be the young person.
78․The second male was described as young, Caucasian, of solid build with dark coloured hair. At the time he was shirtless and wearing black shorts and black ‘Nike’ branded shoes. It is the prosecution’s case that this person is SPO who will be referred to hereon as co-young person PO.
79․At about 4:32pm that day, the young person successfully started the scooter and rode the scooter in convoy with the Mercedes towards the exit of the carpark.
80․Co-young person PO exited the driver’s seat of the Mercedes and walked toward the roller door of the carpark to activate the sensor. During this time the young person waited on the scooter, behind the Mercedes.
81․A short time later the roller door opened and co-young person PO drove the Mercedes out of the carpark while the young person followed behind him on the scooter.
82․This incident was captured in CCTV footage.
83․At about 6:50am on 7 January 2025, CV attended the secure carpark and observed that her scooter was missing. She also observed a screwdriver, metal bar, rivet gun and the wheel lock which had previously been attached to her scooter, discarded on the ground nearby. She contacted police to report her scooter as stolen.
84․The police arrived at the unit complex at about 3pm that day and were shown where the scooter had previously been parked, as well as being provided with a photograph of the scooter and the registration papers.
85․On 20 January 2025, police conducted a record of conversation with CV. At no time did she give permission for anyone to take her scooter from the carpark.
Victim impact statements
86․Victim impact statements were provided to the Court from two of the victims from the Series 1 offences and one victim of the Series 2 offences. I am obliged to consider the effect of the offending on the victims: s 33(1)(f) and s 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT).
EC
87․EC was working at Domino’s Conder at the time of the robbery.
88․In her victim impact statement, EC expressed the fear she felt from having a knife held towards her, a memory she stated she “will never forget”. She now struggles to work at night due to anxiety as she becomes worried whenever a customer enters the store. The offending has diminished her capacity to feel safe, and instead she feels constantly “on edge”.
CC
89․CC was working at Domino’s Fyshwick at the time of the robbery.
90․In his victim impact statement, CC thoughtfully detailed the significant and varied impacts of the offending on his life. He described feeling constantly on edge and hyper-aware of his surroundings. He also described being unable to relax or move around in the world without feeling uneasy. Unsurprisingly, these feelings have made his everyday life much more difficult which has in turn diminished his sense of independence.
91․CC explained that he no longer feels comfortable working shifts at night. Following the robbery, he avoided attending work altogether. He has lost focus and motivation for his schoolwork and his grades have suffered. He described the anger he feels at the power “the robbers” “have over [his] mind and [his] life”, as well as the impact their actions have had on his family, who have been made to feel “stressed and worried”. CC recounted that his “anger and anxiety often overwhelm” him and he feels as though it is a “battle just to get through the day”. This has negatively affected his relationships with friends and family as he now finds it difficult to “connect” with them.
CV
92․CV is the owner of the scooter which was stolen by the young person from the secure carpark.
93․In her victim impact statement, CV emphasised that she has been both “traumatised and inconvenienced by the theft”. She detailed how the invasion of her space has caused her to feel paranoid and hypervigilant. She no longer wishes to live in the area due to the actions of the young persons but is financially constrained from moving.
94․CV explained that the scooter was her only means of transport at the time therefore the loss of it significantly impacted her life. She provided documents detailing the financial burden upon her as a result of the offending which included replacing the stolen scooter and investing in security measures which she now believes to be essential. These additional unforeseen expenditures have inhibited her ability to finance her other day to day expenses.
95․The statements attesting to the harm occasioned to the victims revealed the trickle effect of the young person’s conduct. The offending has had an effect upon each victim beyond their immediate response to the crimes. Clearly, the offending continues to negatively influence their experience of everyday life in very practical ways. Additionally, each victim continues to manage the emotional and psychological effects of the fear, anxiety and sense of vulnerability brought about by the offending. The statements assist the court to understand the harm occasioned by the offending and to recognise that harm in the sentence imposed.
Nature and circumstances of the offending
96․I must consider the nature and circumstances of an offence which includes a consideration of the objective seriousness of the conduct. It is necessary to consider where offending conduct sits on the spectrum of conduct establishing an offence. Consistent with observations in this jurisdiction as to the utility of refences to “low”, “mid” or “high” range as a useful measurement of the objective seriousness of an offence, I will identify the features of the offending conduct which inform the objective seriousness.
97․All of the young person’s offences were committed while in the company of another young person. I bear in mind and, where relevant, will adhere to that which was observed by Baker J in R v Hagen [2022] ACTSC 362; 374 FLR 260 at [27]:
Although the offender is liable for the actions of the other participants, when sentencing the offender it is necessary to draw distinctions between the roles and culpability of each of the individual offenders: KR v R [2012] NSWCCA 32 per Latham J (Whealey JA and Harrison J agreeing) at [19]-[22]; Burrows v R [2017] NSWCCA 45 at [37].
98․Generally speaking in relation to the most serious offences, the aggravated robbery offences, there was no substantial distinction between the role of the young person and the role of his co-offender.
Series 1
Aggravated robberies (CH2024/325 and CH2024/388)
99․The Court of Appeal observed in R v Robertson [2010] ACTCA 19 at [9], that aggravated robbery is “an offence of the utmost gravity”. The maximum penalty for the offence, being 25 years of imprisonment, a fine of $400,000 or both, reflects that gravity. Consistent with it being both a crime against the person and a property crime, the significant penalty puts the offence among the most objectively serious offences in the ACT: see R v Watson [2021] ACTSC 339 at [38] citing R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 368 [99].
100․The guideline judgement of the NSW Court of Appeal in Henry, endorsed in this jurisdiction in Hall v The Queen; Barker v The Queen [2017] ACTCA 16 and R v Carberry [2022] ACTSC 208, outlined several factors as relevant to the objective seriousness of robbery offences. That said, I bear in mind that this sentencing task involving as it does a young person may require flexibility in the application of the Henry factors with the particular facts of the case afforded appropriate weight: R v UD (No 2) [2020] ACTSC 323 citing R v SDM [2001] NSWCCA 158; 51 NSWLR 530, per Simpson J at [40].
101․The circumstances of aggravation common to the offending in this instance was that the young person was in the company of another and a weapon was used.
102․The weapon used in both robberies was a knife. Undeniably, a weapon capable of causing significant harm and inducing fear. The young persons’ attendance at IKEA earlier in the evening to obtain the knife demonstrated a degree of planning, although the offending itself was not at all sophisticated.
103․In the Domino’s Fyshwick robbery, the offending involved physical violence in that the co-young person grabbed one of the employees by “the scruff of his collar, partially dragging him across the counter” before threatening to stab and kill the victim. While these specific threats were made by the co-young person, the facts explain that threats and demands were made by both young persons. The young person repeatedly stabbed the counter at Domino’s Fyshwick in frustration, undoubtedly adding to the environment of fear.
104․In both robberies, the young person and co-young person continually brandished their weapons at the Domino’s employees while demanding money. Plainly, both robberies would have been a traumatic and frightening experience for each of the victims, as was revealed by the victim impact statements of CC and EC. The victims were each working at night in their capacity as Domino’s employees. They were entitled to feel safe in their workplace, absent the threat occasioned to them by virtue of the robberies. At least one of the victims was himself a young person.
105․In the Domino’s Fyshwick robbery, the property taken was $307 in cash and a donation box containing an unknown amount of money. In the Domino’s Conder robbery, the property taken was $700 in cash. Neither of the amounts are insignificant and represent loss and inconvenience to the store owners. In addition to the direct financial impact, the Domino’s franchise stores experienced at least inconvenience arising from the offending by way of police attendance and the taking of forensic samples.
106․Without undermining the seriousness of the offending or the significance of its effects, the prosecutor was accurate to characterise the conduct as “standard” examples of the offence.
Ride/drive motor vehicle without consent (CH2024/392)
107․Consistent with R v Rosewarne [2021] ACTSC 217 at [124], R v Massey (No 3) [2021] ACTSC 156 at [29], Sampson v De Haan [2016] ACTSC 327 at [40] and R v Lock [2016] ACTSC 319 at [15], the factors relevant to an assessment of objective seriousness for this offence are:
(a)The young person was the sole passenger in the vehicle;
(b)The duration of the driving was relatively short, it being from about 9:30pm until sometime before 11:18pm that same night when the vehicle was discovered by police;
(c)The manner of driving was unremarkable and did not come to the attention of police;
(d)The vehicle was undamaged such that it would have been capable of being returned to the owner; and
(e)The vehicle was used while committing numerous other offences. The vehicle enabled the young offenders to travel to various locations and commit crimes.
Make demand accompanied by threat (CH2024/1099)
108․The offence carries a maximum penalty of imprisonment for 10 years. It is an objectively serious offence. As cited by McWilliam J in DPP v Kayvanshokoohi [2024] ACTSC 386 at [35], in R v Goodge [2019] ACTSC 297 at [29], Mossop J observed:
In assessing the gravity of the offence of making a demand with a threat, regard must be had to the nature of the demand, the manner and circumstances in which it is made and the nature of the threat to endanger the other person’s health, safety or physical well‑being.
109․In this instance the demand made by the co-young person was accompanied by a threat to stab the victim. The co-young person was holding a knife at the time the demand was made and was accompanied by the young person. It was a random and unprovoked attack on a member of the public in circumstances where the threat had real capacity to be carried out. The victim was made vulnerable by virtue of being alone at night in a carpark, having just finished work. The threat was explicit, serious and made in circumstances where the co-young person possessed the capacity to immediately realise it.
110․The young person’s presence undoubtedly facilitated the offending and added weight to the threat. That said, the young person remained silent and did not add to the circumstances by any more than his presence. The young person’s culpability is less than that of the co-young person in relation to this offence.
Joint commission minor theft (CH2024/703)
111․Bearing in mind the factors informing the objective seriousness of theft as outlined in R v Elphic [2021] ACTSC 9 at [115] and R v Slattery [2021] ACTSC 154 at [38], this is a typical example of this offence although falls toward the lower end of the spectrum in terms of the value of the property taken. The property jointly taken from IKEA by the young persons consisted of five knives valued at $54 in total. The factor which serves to increase the seriousness of the offence is the motivation for the theft, it being to obtain weapons to aid in the commission of further offences.
Series 2
Aggravated burglary (CH2025/171)
112․I observe the following features of the aggravated burglary which inform the assessment of the objective seriousness of the offence: Rosewarne at [119].
113․The offending occurred in an associated building of a residential premises, specifically the garage of a unit complex. The young person entered the garage in the late afternoon, a time when residents were likely to be present, as was the case in relation to DJ. There was no interaction between the young persons and DJ, or any of the other unit complex residents.
114․There is no information before the Court to suggest the offending involved forced entry, destruction or disarray.
115․There is no evidence to suggest the offending was premeditated. The young persons were not armed with weapons. While they did use tools to facilitate the theft of the scooter, the tools were located within the garage during the commission of the offence.
Ride/drive motor vehicle without consent (CH2025/172)
116․At the outset I note that this offence relates to the young person’s use of the scooter. Consistent with that which was outlined above at [107], the factors informing the objective seriousness of this offence are:
(a)The young person was the driver of the scooter;
(b)The duration and manner of the driving is unknown beyond that which was captured in the CCTV footage of the young person riding the scooter out of the carpark, his driving during this period was unremarkable;
(c)The only damage which was known to have been caused was to the wheel lock of the scooter; and
(d)The scooter was not recovered.
Subjective circumstances
117․The material before the Court included three Child, Youth and Families (CYF) pre-sentence reports (PSRs), respectively dated 10 October 2024, 15 January 2025 and 1 April 2025, as well as a Therapeutic Correction Assessment Report and a Case Plan both dated 1 April 2025.
118․The young person is now 17 years old. He was 16 years old at the time the Series 1 offences were committed. He was born and raised in Canberra and ordinarily resides with his parents and his two elder brothers. He has an older half-sister who resides in Victoria.
119․The young person’s father was interviewed by the report author for the purpose of preparing the PSR. When asked whether there was ever conflict between himself and the young person’s mother, he replied:
… yeah there is 6 people inside her head, she is talking to people that are not there. I go to talk to her and she is just in her own world and doesn’t respond to me… Last 10 years, they’ve seen their mum slowly turn into a fucking nutcase.
120․CYF records provided that the young person’s mother experienced two significant mental health episodes in 2018 and 2019 involving self-harm which resulted in hospital admissions. The young person and his brother were present during these episodes. When police attended to assist the young person’s mother in 2019, they reportedly located methamphetamine residue in the family home. The police further reported that the young person and his siblings suggested they often call a family friend to care for them when their father is uncontactable. Police advised this family friend is “well known to police for methamphetamine use and criminal activity”.
121․The young person’s father elaborated that the boys watched “their mother go insane and they didn’t know what was going on for her. Everyone’s got their demons, hers seems to talk to her more than others… All three boys are used to it. Boys tell the voices to shut the fuck up”. His father further stated, “I’m the person she snaps at when she gets like that. She calls the cops for violence and I get arrested. The police always stirring her up to get her going”.
122․The young person’s father informed the report author that in December 2024, the young person’s mother suffered a stroke. He explained that she is no longer able to work and struggles with her speech. He stated that the young person “was helping and doing errands for [his mother] when he was out” in the community.
123․CYF have received 19 ‘child concern reports’ and completed two appraisals in relation to the young person. The concerns raised pertained to “parental substance misuse, family/domestic violence, neglect and parent mental health/suicidal ideation”. These reports have not been substantiated. CYF records included notes that the young person’s home environment was observed as “malodorous with broken glass in the children’s bedrooms, empty alcohol containers, holes in the walls and rubbish around the home”.
124․The young person described his childhood to be “shit, there was always arguments, I would rarely be at home”. He stated he has a close relationship with both of his parents and described the various ways his father shows him that he cares. His father stated that they share “a great father son relationship”. When asked whether he believes he can control his son’s behaviour, he replied, “Yeah because he listens, he does listen, I can… but when it comes to some of his fuck head mates…”
125․The young person has not attended school in the community since 2021. His father identified COVID-19 restrictions as contributing to the young persons’ disengagement from education. The young person has attended the Murrumbidgee School when on remand at the Bimberi Youth Justice Centre. His engagement is described as “moderate”, and it was noted that the young person has “respectful engagement with education staff most of the time”. He has never held formal employment but stated that he plans to commence scaffolding work with a family friend upon his release.
126․While the young person does not have any mental health diagnoses, he was found unresponsive after a suicide attempt in February 2025 while at Bimberi. He later explained this was prompted by boredom and a desire not to be incarcerated in Bimberi anymore. He stated he has no ongoing mental health concerns and that it “got better because [he] knows [he] can’t change being in [Bimberi]”. He further advised that he has been seeing Custodial Mental Health Services each week and this is going “really well”.
127․The young person has a history of alcohol and drug use. He reported having commenced using cannabis at 12 years of age, drinking alcohol at 13 years of age and using MDMA at 15 years of age. Upon his induction into custody on 20 January 2025, he disclosed smoking cannabis and cigarettes daily, as well as drinking alcohol and using methamphetamine every second day. The young person identified that his consumption of alcohol is linked to his offending. He stated that he plans to abstain from drinking upon his release from custody.
128․The young person recalled being intoxicated during the Series 1 offences which led to a “spur of the moment” decision to commit crimes as he “wanted to get money for a haircut and [to] buy clothes”. In relation to the Series 2 offences, the young person stated that he “was on crack” at the time.
129․The reports noted that the young person has failed to satisfactorily comply with his bail conditions when in the community.
130․In terms of the procedural history, the reports record that the young person was arrested in relation to the Series 1 offences on 8 March 2024. He was refused bail in the Childrens Court the following day. He remained in custody until being granted bail on 16 August 2024. On 16 September 2024 he was brought before the Court in relation to fresh offending and his bail was revoked. He was again granted bail on 22 October 2024 which included a condition that he must attend the Ted Noffs residential PALM program and report to the Court within 24 hours if exited from that program prior to completion. The young person was excluded from the program on 6 November 2024 due to his sexualised behaviour towards staff and aggressive behaviour towards other participants. He presented to the Court before being allowed to re-enter the program later that same day. The young person self-exited from the program the following day and returned to his parents’ home. He did not present to the Court and did not respond to any of CYF’s attempts to contact him. The young person was arrested on 19 January 2025 in relation to fresh offending. He has remained in custody.
131․To the report author, the young person admitted to occasionally drinking alcohol and smoking marijuana daily during his last period in the community. When asked if he used any other substances, the report author noted the young person “was observed to laugh” before stating:
Oh like crack and that? Yeah. Ok, I was on everything crack, pingers, MDMA, prescription pills. Everything. I don’t care. I was it on it all at the same time… I would smoke two to three points [of methamphetamine] a day and stay up for about five days.
132․The young person further stated that he does not believe he is addicted to any substances. He identified that if given a condition not to use drugs or alcohol he would breach it by using marijuana but could address this by obtaining a medical marijuana prescription. He explained that he is not willing to return to the residential PALM program as “it was hard to stay there” because “there were too many wankers”.
133․The young person stated that many of his friends use drugs and engage in crime. This observation was reiterated by his father who stated, “he is just influenced by the wrong people”. The young person identified two pro-social friends who try to dissuade him from doing “bad”. In preparing his “Setting Life Goals” document, he wrote that he aims to “stay away from other ppl that use” and to “stop hanging with friends I might get in trouble with”. He also plans to find a football team and a gym to join.
134․The PSR dated 10 October 2024 recorded that the young person had expressed his excitement at being allowed back into the community and the prospect of being able to “get a job”. At this time the young person’s father stated, “He has matured a lot at BYJC… Maybe at first he was cheeky, but now he is a totally changed person”. In the PSR dated 15 January 2025, the young person’s father was recorded as saying:
Before he was in Bimberi hanging out with those fuckwits and doing stupid shit, Bimberi did it, the people there are amazing, fed them well, he was doing his schoolwork, and we got our son back… It took a while for [the young person] to click in, he is his own person now, he is a lot smarter and wiser and shows me a lot of remorse and knows he did stupid shit.
135․The young person identified that he has struggled to control his anger and feelings of frustration. The PSR dated 10 October 2024 recorded that the young person has “low frustration tolerance that leads to tantrums”. He reported experiencing feelings of guilt when has done something wrong or unintentionally hurt someone. When asked whether he believed that people who do not break the law are better then people who do, he replied, “I can’t say much, but recommend they don’t do it”. The report author noted that the young person viewed offences “involving a shop or physical business as victimless”.
136․On 7 February 2025, the young person stated the following during a youth justice supervision appointment, “If I breach, you’ll never see me, never catch me. I went on the run for three months, but I was just living my life. It was good for me”. He reiterated his desire not to be incarcerated in Bimberi.
137․The young person was ultimately assessed as unsuitable for a Therapeutic Correction Order due to his significant history of non-compliance with bail and supervision conditions, as well as his drug use and unwillingness to engage in residential rehabilitation.
Character references
The young person’s sister
138․The character reference prepared by the young person’s older sister noted the significant disadvantage her brother has experienced by virtue of growing up in an environment affected by violence, drug and alcohol abuse, poverty and mental ill-health. She wrote of the young person’s caring nature and his commitment to supporting his mother.
139․The young person’s sister confirmed her belief that the young person “has the potential to turn his life around with the right support” and that he “is determined to make better choices moving forward”. She wrote of her personal commitment to helping him achieve this.
The young person’s mother
140․The character reference prepared by the young person’s mother recorded that her son has been supporting her by spending more time at home and “helping around the house” ever since she suffered a stroke. She observed that her son “wants to move forward” and that she believes “he is changing for the good”.
The young person’s father
141․The character reference prepared by the young person’s father noted that the young person has shown remorse and has come to realise the emotional and financial damage occasioned to the victims by virtue of his offending. He observed that his son had been spending more time at home to help his mother while she recovers.
142․The young person’s father referenced the “many talks” he has had with his son who has displayed a positive attitude to turning his life around. He noted that the young person agreed that he needs to “cut ties with certain people”.
143․The young person’s father confirmed his ongoing commitment to supporting his son in any way that is required.
Remorse, rehabilitation and degree of responsibility for the offending
Section 133D of the Crimes (Sentencing) Act
144․The young person was 16 years of age at the time of the commission of the Series 1 offences, and was 17 years of age at the time of the commission of the Series 2 offences. By virtue of those circumstances, chapter 8A of the Crimes (Sentencing) Act is enlivened. Section 133D of the Crimes (Sentencing) Act provides the following:
(1)In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters:
(a)the young offender’s culpability for the offence having regard to his or her maturity;
(b)the young offender’s state of development;
(c)the past and present family circumstances of the young offender.
(2)This section applies in addition to section 33 (Sentencing—relevant considerations).
145․These additional considerations require an analysis of tightly intertwined factors that operate to influence the young person’s prospects of rehabilitation, the degree of responsibility he bears for the offending and the level of remorse he has demonstrated.
Remorse
146․Remorse is an important consideration in assessing prospects of rehabilitation. The insight demonstrated by the young person in the material before me into the gravity and effects of his offending conduct is to his credit and is consistent with a letter that I was recently provided, written by the young person.
147․When speaking with the PSR author about the Series 1 offences, the young person identified that the victims would have been scared when “they have the right to feel safe” as “they’re just trying to work and make money”. When asked how this made him feel he replied, “Not good, unfair for me to want to feel safe but then other people not feel safe at their job. Makes me look stupid”. He agreed the charges were serious, stating “Yeah, it’s putting people’s lives in danger… using a knife… it’s pretty major”.
148․In relation to the Series 2 offences, the young person observed that it is “not worth stealing off someone because if someone stole from me, I wouldn’t like it”. When asked if he thought the offending was serious, he replied, “Yeah isn’t it aggravated burglary… I don’t really know how bad crimes can be, I didn’t hurt anyone physically” but that it “would have hurt them in their thoughts or something”. As referenced above, the PSR author observed the young person to believe that offences involving a shop or business are victimless.
149․The young person stated that he would be unwilling to apologise to any of the victims in person although is prepared to write an apology letter or engage with the victims via audio-visual link.
150․When asked how the Series 1 offences impacted his life, the young person replied, “putting me in here. I can’t do this stuff and expect something not to happen”. When asked what he could do differently, he stated he could have “not drank, not get picked up and go out”.
151․I am mindful that untested expressions of remorse from an offender should be approached cautiously, and I apply that caution to the recent letter written by the young person tendered late in these proceedings. I also bear in mind that the young person’s emotional maturity likely operates to limit to some extent his ability to express and convey his thoughts and emotions. On balance, I am satisfied having regard to the young person’s statements in combination with the early entry of pleas of guilty, he does feel a degree of genuine remorse.
Degree of responsibility
Bugmy considerations
152․The material established that the young person has had a childhood and adolescence marked by disadvantage. This factor must be given “full weight”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
153․The report from CYF recorded that over time there has been numerous concerns raised in relation to the young person regarding “parental substance misuse, family/domestic violence, neglect and parent mental health/suicidal ideation”. Further, his mother has experienced severe mental health struggles, and more recently physical health struggles, which has undoubtedly impacted his day-to-day life and his emotional wellbeing. By virtue of his childhood circumstances, the offender is a person who will necessarily “have fewer emotional resources to guide his (or her) behavioural decisions” than a person who had a “normal” or “advantaged” upbringing: R v Millwood [2012] NSWCCA 2 per Simpson J (with whom Bathurst CJ and Adamson J agreed at [69]).
154․There is undoubtedly a connection between the young person’s adverse childhood experiences and his offending conduct. He has not been the beneficiary of that to which every child should be entitled; stable parental guidance, consistent supervision and appropriate role models. Accordingly, the young person has reduced moral culpability for his offending; Hagen at [42], MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 at [62], citing Bugmy at [43]. This is not to say that the young person bears no moral responsibility for his offending conduct. Rather, it recognises the reality of the circumstances of his childhood development and acknowledges that those circumstances have been entirely beyond his control. Accordingly, he does not bear the same degree of responsibility attributed to an offender who did not experience such a childhood.
Maturity
155․Section 133D(1)(a) of the Crimes (Sentencing) Act necessitates consideration of a young person’s maturity in assessing their culpability for an offence.
156․In R v ME [2017] ACTSC 402 at [11], Burns J considered the following when sentencing a 15-year-old offender:
At 15 years of age one cannot say that ME was so old or of such maturity that his state of development was such that he should not be the subject of some leniency with respect to determining the state of his culpability, with respect to these offences. There is nothing to suggest that ME’s state of development was anything other than a normal 15 year old. But a normal 15 year old male is often very immature.
157․There is no bright line of maturity that should necessarily see a difference approach for a 16 or 17-year-old young person. There is no material before me which established that the young person is more or less mature than a ‘normal’ 16 or 17-year-old male. In some respects, his childhood experience has forced him to confront challenges he should not be required to confront so early in his life. That said, much of his conduct speaks to a level of impulsivity and immaturity beyond those that might be expected of a ‘normal’ teenager of his age.
Conclusion
158․The young person’s immaturity brought about by his age and to an extent his developmental environment, in combination with his disadvantaged background warrant reduction in the responsibility he bears for his offending conduct. This conclusion moderates the weight to be afforded to general deterrence, denunciation and punishment.
Rehabilitation
159․I bear in mind that rehabilitation of a young person is a matter of particular significance and may be given more weight than other purposes of sentencing pursuant to s 133C(1) of the Crimes (Sentencing) Act. This recognises the interest that the community has in steering young people away from the youth justice system in an effort to sidestep the pathway to adult offending. Pursuant to s 133C(2), the Court must have particular regard to the common law principle of individualised justice. In MT v The Queen at [64] that:
We infer that, when the 133C requirement to pay “particular regard” to “individualised justice” is read together with the discretion to give more weight to the sentencing purpose of rehabilitation, the result is that, if a young offender has good prospects of rehabilitation, those prospects will weigh heavily in the sentencing exercise.
160․It was submitted on behalf of the young person that he “now has sufficient insight and maturity into the issues he faces and what will be required to break the cycle of addiction and offending, including the need to surround himself with pro-social people and to ensure that his time is usefully occupied”. He plans on addressing his “alcohol issue” and educational needs by attending the Ted Noffs Street University.
161․When interviewed by the report author in February 2025, the young person stated he is “happy because I have gotten bigger since being in here. I’m getting healthier. I feel energetic and I have a fresh mindset. I have been doing stuff to work on my tradie stuff and my certificate two”. He also stated that he is excited to be released into the community again as he would “rather be out there with the people I love”. When asked about the prospect of being sentenced to a term of imprisonment he stated, “I wouldn’t like it [imprisonment] because I wanna (sic) be out there working. I’m about to be 18, I don’t wanna (sic) go to the older boy’s jail. It’s a waste of life, it’s not worth it”.
162․Whilst the young person has verbally demonstrated insight and maturity through his expressed desire to change his life trajectory, there remains cause for concern.
163․First, the young person’s drug and alcohol use and the limits of his willingness to engage with rehabilitation services. The young person appears to have limited insight into the effect upon him of ongoing substance use. The young person’s resistance to attending the Ted Noffs residential PALM program demonstrated as much. The report author noted that attendance at a free social event, as was proposed by the young person, would be insufficient to meet the challenge of his drug and alcohol use. Hence his unsuitable assessment for a Therapeutic Correction Order.
164․Secondly, the young person has been released to bail on two separate occasions since the commission of the Series 1 offences. This has resulted in the young person committing an additional three series of offences on 15 September 2024, 31 December 2024 and 19 January 2025 respectively. The young person has already been sentenced in relation to the 15 September 2024 series and the 19 January 2025 series. His further offending whilst on bail is relevant to an assessment of his prospects of rehabilitation. The level of supervision and support made available to him during his time on bail was largely unsuccessful.
165․Whilst it is positive that the young person recognised his friends and alcohol consumption to be risk factors for him in the community, this realisation is not new. In the PSR dated 10 October 2024, the young person is recorded as saying, “when I drink straight alcohol it becomes a problem. It makes me not care about getting caught”, such that he was not planning to consume alcohol when next in the community. He informed the report author in October 2024 that he had made efforts to surround himself with a new group of pro-social friends and that “he does not want to resume his friendships with those that will not be a positive influence on him”. He reported being “excited to go and get a job”. When his father was interviewed in preparation of the 10 October 2024 report he stated the following in relation to his son, “he has matured a lot… maybe at first he was cheeky, but now he is a totally changed person”.
166․The young person went on to breach his bail and commit two further series of offences within the following few months. He disclosed using methamphetamine and consuming alcohol every second day upon his induction into custody in January 2025.
167․I do not consider the young person to have been dishonest when expressing his desire for reform on previous occasions. Indeed, I am certain that desire was genuinely expressed. His past pattern of behaviour highlights the very real difficulty that effecting change presents, even when the desire for it is real. For the most part, the young person will be released to the very environment that has fostered his criminal conduct and with the same sparse toolkit for life his developmental history dictated.
168․When in custody, the young person appears to have considerable insight into his risk factors and expresses his desire to change his life. In the past, once released to the community his capacity to maintain that motivation and resist the temptations of freedom, has evaporated. I am not at all suggesting that rehabilitation is beyond the young person. But his history demonstrates that he requires a structured regime of support which will hold him accountable at the same time as providing opportunity for him to realise his stated aspirations.
169․Counsel for the young person provided a copy of an email from Education ACT which confirmed that the young person will have obtained his asbestos and white card accreditation by 24 April 2025. The email also confirmed that the young person has an offer of employment from a scaffolding company. CYF expressed the view that employment “would likely address several areas of criminogenic risk for [the young person] when in the community”. This is a view with which I agree and does present a factor previously missing from the young person’s day to day existence in the community. The dignity and purpose of meaningful work, a prospect about which he appears enthusiastic, has potential to dramatically influence the young person’s life.
Criminal history
170․At the time the Series 1 and Series 2 offences were committed, the young person did not have a criminal history. On 26 February 2025, the young person was sentenced in the Childrens Court for nine offences. The first of which was committed on 2 September 2023, predating the commission of the offences for which he is now to be sentenced.
171․The aggravated robbery offences for which he is now to be sentenced represent the most serious offences he has committed.
Conditional liberty
172․Both Series 1 and Series 2 were committed while the young person was subject to bail. By his conduct the young person has betrayed the opportunity to remain in the community. This is an aggravating feature, relevant to the determination of the appropriate punishment for an offence. I bear in mind that I must approach this feature of the offending with care so as to avoid double punishment.
Time in detention
173․The young person has now spent a total of 303 days in detention. He has spent 252 days in detention solely referable to these offences. I will take this into account in the sentences to be imposed which will be backdated accordingly.
Pleas of guilty
174․Pleas of guilty were entered to all but one of the offences prior to the matters being committed to this Court. In relation to CH2025/171, a plea of guilty was indicated on 26 February 2025 while the matter was in the Childrens Court however the plea was not confirmed until 17 April 2025 due to a minor dispute about the facts of the offending. The prosecution conceded that a significant discount was appropriate in the circumstances.
175․I am satisfied that the pleas were entered at an early stage of the proceedings: see DPP v Joliffe-Cole [2024] ACTSC 256 at [42]-[58]. In recognition of the significant utilitarian value of the pleas of guilty, a 25 per cent reduction in the sentence imposed is appropriate.
Sentencing practise
176․Comparable cases assist to ensure consistency in the application of principles, not mathematical equivalence.
177․The prosecution referred me to the following comparable cases for the offence of aggravated robbery, though conceded that the availability of comparable cases involving young persons are limited: R v OI [2020] ACTSC 286, R v NF [2018] ACTSC 165, R v UD [2017] ACTSC 210, R v Wilson [2022] ACTSC 7 and Police v Pedro Swain (a pseudonym) [2024] ACTCC 1. I have also had regard to the sentencing outcome recorded in DPP v Myers (a pseudonym) (No 4) [2022] ACTSC 308.
178․In R v OI, the young person was 17 years old at the time he was sentenced for the aggravated robbery of a taxi driver. The young person held a knife to the victim’s neck and threatened to kill him. The young person had a stable and supportive family and a limited criminal history. The offending occurred in the context of the young person’s struggle with illicit substance use. The offender demonstrated remorse, had addressed his substance use issues and attained full-time employment. The offender was sentenced to imprisonment for 4 months and 15 days to be wholly suspended upon entering an undertaking to be of good behaviour for 12 months.
179․In R v NF, the young person was sentenced for 12 offences, including arson, property damage, aggravated robbery and make demand with threat to endanger health, as well as being re-sentenced for an additional 3 offences. The conduct of the aggravated robbery and make demand with threat offence was precipitated by the offender and his adult co-offender agreeing to give a lift to the victim, who was not known to the offenders, in exchange for $20. The three men stopped in a carpark to smoke cigarettes at which time the young person and his co-offender physically attacked the victim. They struck the victim numerous times before holding a knife to his throat. The young person then produced a mobile phone to film the victim and instructed the victim to say various demeaning things to the camera. The offenders then stole the victim’s watch and mobile phone before threatening to attend the victim’s house if he reported the matter to the police. The young person had a “loving” and “supportive” family. He demonstrated limited remorse for his offending and had a criminal history. The young person was sentenced to 2 years and 3 months of imprisonment for the aggravated robbery offence and 5 months of imprisonment for the make demand with threat offence, as part of a total sentence of imprisonment of 5 years and 3 months.
180․In R v UD, the young person was sentenced for two counts of aggravated robbery and one count of riding in a motor vehicle without consent, each of which were committed while he was 16 years of age. The first count involved brandishing a meat cleaver at a residential youth worker and threatening to stab her after he and his sister stole petty cash, a credit card and a motor vehicle. The second count related to a separate incident where the young person and a co-offender pushed a pedestrian against a wall, demanded his possessions and held a toy pistol to his head. The young person had experienced a traumatic and disadvantaged upbringing. He did not have a criminal history. The young person spent a “substantial period” in pre-sentence custody. In relation to each offence, the young person was sentenced to a good behaviour order for a period of two years.
181․In R v Wilson, the offender was sentenced for one count of aggravated robbery. The offence was committed in company and involved threatening the victim with a steak knife before forcing him to attend an automatic teller machine to withdraw $100. The offender had various mental health difficulties, significant familial support and no criminal history. He was sentenced to 9 months of imprisonment, suspended after serving 32 days upon entering into an undertaking to be of good behaviour for 12 months.
182․In DPP v Myers(a pseudonym) (No 4), the young person was sentenced for an offence of aggravated robbery which involved co-offenders and “significant violence”. Justice Elkaim recorded that the young person “may have played a leading role”. The young person had an “overwhelmingly tragic history”, a mild intellectual disability and post-traumatic stress disorder. The young person was sentenced to 20 months of imprisonment to be suspended after serving 10 months upon entering an undertaking to be of good behaviour for 12 months.
Parity
183․Neither of the co-offenders have been sentenced for their involvement in Series 1 or Series 2.
Totality
184․Sentencing for several offences as is the case here, requires an appropriate sentence for each offence to be fixed and then questions of accumulation or concurrence, as well as totality, to be considered: Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 at [64]. A suggestion that multiple offences will result in a discount must be avoided: Mill v The Queen (1988) 166 CLR 59 at 63; O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26].
185․While the two series of offences are distinct, each offence within each series was committed on the same day and could be properly characterised as single episodes of criminality: see O'Brien at [26].
186․The prosecution conceded that a degree of concurrency with the sentence imposed in the Childrens Court in February 2025 would not be inappropriate. Counsel on behalf of the young person supported this submission given the offending in Series 2 occurred in close temporal proximity to the offences for which the young person was sentenced in the Childrens Court.
187․A degree of concurrency as between the existing sentence and the sentence I impose will be required, though not to an extent which undermines the distinct nature of the offences and the need to recognise the separate victims of the conduct.
188․The result of the way in which the existing sentence was imposed will be that upon a reading of the young person’s criminal history it will appear entirely concurrent with the sentence I impose. The need to backdate the sentence to take account of the time the young person has spent in detention in relation to these offence means this appearance is unavoidable. A close review of the detail of the sentence I impose will reveal only partial concurrency with the existing sentence.
Determination
189․In sentencing the young person, I must have regard to the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act. The reduction of his moral culpability moderates to a substantial degree the weight to be attached to punishment, denunciation and general deterrence. I have already referenced the sentence imposed must recognise the harm occasioned to the victims by the offending conduct. Additionally, the young person must be deterred from offending conduct.
190․The assessment of the young person as unsuitable for a Therapeutic Correction Order eliminates this as an appropriate outcome. This is unfortunate in the circumstances as such an order could have provided the young person with the kind of regime I am satisfied he requires. Realistically this assessment reflects his limited preparedness to truly confront some of the factors influencing his engagement with the youth justice system; a matter for concern.
191․Sensibly there was no dispute that the s 10 (of the Crimes (Sentencing) Act) threshold was crossed in these matters, such that a term of imprisonment was warranted. Bearing in mind that a period of imprisonment is a sentence of last resort for a young person, I consider it to be the only appropriate outcome in view of the seriousness of the offending. A sentence other than imprisonment would fail to adequately comprehend the gravity of the offending and the harm occasioned to the victims. The term of imprisonment I impose must be for the shortest appropriate term: s 133G(2) of the Crimes (Sentencing) Act.
192․There was force to the submission made by counsel for the young person that employment could have a significantly positive effect upon him in circumstances where he has expressed a strong desire to engage in paid, full-time employment. Employment will see the young person in the company of other employed people who have lifestyles driven by the demand of paid employment. Stable employment will deliver routine and a use of the young person’s time, features previously absent from his life. The young person has now spent a substantial period in detention the effect of which, I am satisfied, has included deterring him from conduct which might see him return to that environment and motivating him to contemplate a different kind of existence.
193․The prosecution was not heard against the imposition of a partially suspended sentence. Counsel for the young person submitted this was appropriate in all the circumstances. It is an outcome which offers a regime of accountability and support with the potential to invoke the scrutiny of the court should the young person falter in his rehabilitation and engage in breaching conduct.
194․Given the considerable time the young person has already spent in detention and the need to promote his rehabilitative prospects, I am of the view that an outcome releasing the offender to the community on suspended periods of imprisonment which oblige his compliance, is appropriate.
195․The result of recognising the time the young person has spent in detention will be that one of the periods of imprisonment imposed upon him will be close to entirely served as a result of the orders I will make. I intend to structure the sentences so that as each period of imprisonment expires, that sentence will no longer hang over the young person such that ongoing, positive compliance by him will affect the number of suspended sentences which remain operative. The sentence structured in this way appropriately reflects the significance of rehabilitation to the sentencing task, allowing the young person to move beyond the sentences imposed upon him if he lives up to the prospect of rehabilitation that I am satisfied he embodies.
196․For the Series 1 offences:
(i) The starting point for the aggravated robbery offence (CH2024/325) is 20 months of imprisonment reduced to 15 months for the plea of guilty.
(ii) The starting point for the aggravated robbery offence (CH2024/388) is 20 months of imprisonment reduced to 15 months for the plea of guilty.
(iii) The starting point for the ride/drive motor vehicle without consent offence (CH2024/392) is 4 months of imprisonment reduced to 3 months for the plea of guilty.
(iv) The starting point for the make demand accompanied by threat offence (CH2024/1099) is 8 months of imprisonment reduced to 6 months for the plea of guilty.
(v) The starting point for the joint commission minor theft offence (CH2024/703) is 1 month of imprisonment reduced to 22 days for the plea of guilty.
197․For the Series 2 offences:
(i) The starting point for the aggravated burglary offence (CH2025/171) is 10 months of imprisonment reduced to 7 months and 15 days for the plea of guilty.
(ii) The starting point for the dishonestly ride motor vehicle without consent offence (CH2025/172) is 4 months of imprisonment reduced to 3 months for the plea of guilty.
Orders
198․For those reasons, I make the following orders:
(1)On the charge of aggravated robbery (CH2024/325), the young person is convicted and sentenced to 15 months of imprisonment commencing on 5 August 2024 and ending on 4 November 2025.
(2)On the charge of aggravated robbery (CH2024/388), the young person is convicted and sentenced to 15 months of imprisonment commencing on 5 February 2025 and ending on 4 May 2026.
(3)On the charge of make demand accompanied by threat (CH2024/1099), the young person is convicted and sentenced to 6 months of imprisonment commencing on 5 March 2026 and ending on 4 September 2026.
(4)On the charge of ride/drive motor vehicle without consent (CH2024/392), the young person is convicted and sentenced to 3 months of imprisonment commencing on 5 July 2026 and ending on 4 October 2026.
(5)On the charge of joint commission minor theft (CH2024/703), the young person is convicted and sentenced to 22 days of imprisonment commencing on 13 September 2026 and ending on 4 October 2026.
(6)On the charge of aggravated burglary (CH2025/171), the young person is convicted and sentenced to 7 months and 15 days of imprisonment commencing on 21 June 2026 and ending on 4 February 2027.
(7)On the charge of ride motor vehicle without consent (CH2025/172), the young person is convicted and sentenced to 3 months of imprisonment commencing on 5 December 2026 and ending on 4 March 2027.
(8)The total period of imprisonment is 2 years and 7 months commencing on 5 August 2024 and ending on 4 March 2027.
(9)The sentence on the charge of aggravated robbery (CH2024/325), is to be suspended today after the young person has spent 8 months and 27 days in detention, upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 4 November 2025.
(10)The sentence on the charge of aggravated robbery (CH2024/388), is to be suspended today after the young person has spent 2 months and 27 days in detention, upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 4 May 2026.
(11)On the charge of make demand accompanied by threat (CH2024/1099), the sentence is fully suspended upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 4 September 2026.
(12)On the charge of ride/drive motor vehicle without consent (CH2024/392), the sentence is fully suspended upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 4 October 2026.
(13)On the charge of joint commission minor theft (CH2024/703), the sentence is fully suspended upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 4 October 2026.
(14)On the charge of aggravated burglary (CH2025/171), the sentence is fully suspended upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 4 February 2027.
(15)On the charge of ride motor vehicle without consent (CH2025/172), the sentence is fully suspended upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 4 March 2027.
(16)In addition to the core conditions, for the period he is required to comply with his good behaviour obligations under Crimes (Sentence Administration) Act 2005 (ACT) the young person is to accept the supervision of the Director-General and comply with all reasonable directions until 4 March 2027 or such lesser period deemed appropriate by the Director-General.
| I certify that the preceding one-hundred and ninety-eight [198] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: O Ferguson Date: 5 May 2025 |
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