Director of Public Prosecutions v Myers (a pseudonym) (No 4)
[2022] ACTSC 308
•9 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Myers (a pseudonym) (No 4) |
Citation: | [2022] ACTSC 308 |
Hearing Date: | 9 November 2022 |
DecisionDate: | 9 November 2022 |
Before: | Elkaim J |
Decision: | (a) The young person is sentenced to 20 months’ imprisonment to commence on 9 June 2022 and end on 8 February 2024. (b) The above sentence of imprisonment is suspended from 8 April 2023 on condition that the young person enter a good behaviour order for a period of 12 months on core conditions and on the further condition that he comply with any directions and recommendations made to him by the CYPS. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – where offender a young person – where offender has overwhelming tragic history |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 133C, 133D, 133G |
Cases Cited: | MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 |
Parties: | ACT Director of Public Prosecutions Thomas Myers (a pseudonym) (Offender) |
Representation: | Counsel B Morrisroe (ACT Director of Public Prosecutions) R Baldeo (Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group (Offender) | |
File Number: | SCC 61 of 2022 |
Elkaim J:
1․On one level this young person is doing his best to serve his apprenticeship as a long-term criminal. He already has a significant criminal record. The other side of the matter is that he is a young person with an overwhelmingly tragic history who has had little chance to live a normal life. He is entitled to every chance of rehabilitation.
2․The facts of this matter are contained in an Agreed Statement of Facts, contained in Exhibit A. The victim was effectively ambushed while in his motorcar. He was threatened, he was punched, kicked and insulted. His phone was taken. He was dragged from his car. His car was driven away and he was injured when he tried to hold on to the vehicle. The victim was injured as depicted in the photographs.
3․The facts display a horrific crime of aggravated robbery. There were weapons, there were other people involved and there was significant violence. The offender may have played a leading role. On an objective basis, the crime approaches medium objective severity. If he had been an adult, he would be facing a significant term in prison.
4․The young person is of Aboriginal heritage. He was born in 2006. There is a pre-sentence report which suggests that his most recent time in custody has been interspersed with a number of behaviour breaches. On the other hand, he seems to be engaging with staff and attempting to achieve a degree of education.
5․The young person was born in New South Wales. He keeps in close contact with his mother and sometimes with his father. His father has been the source of significant trauma to the family. His mother was the subject of domestic violence which no doubt had its effect on this young man. This trauma is well described in the report of Ms Edwidge, a psychologist, dated 1 November 2022.
6․Ms Edwidge describes his very difficult childhood and disadvantage and his exposure to psychosocial stressors. She refers to a “complex developmental trauma” which has not been treated. She refers to his sparse schooling and the many schools he has attended. She thinks that a diagnosis of post-traumatic stress disorder is applicable.
7․Another psychologist, Ms Gay, in a report dated 17 May 2022 diagnoses a mild intellectual disability. She refers to his difficulties with social interaction and learning. She thinks that he has a lot of trouble with self-management and she has a number of recommendations for his assistance through NDIS.
8․Not surprisingly, the young person has used a lot of drugs. He has attended programs but also abandoned them. He has also been drinking a good deal of alcohol.
9․Child and Youth Protection Services (CYPS) has been extensively involved with the young person and his siblings.
10․On the positive side, the young person is anxious to obtain employment and perhaps to leave his unfortunate past behind. He has displayed some talent as a barista. He suffers from ADHD for which he takes medication. He has a history of self-harming and is apparently at risk from other young people in custody. Cognitive testing has revealed an entitlement to NDIS assistance.
11․The young person seems to recognise that what he did was wrong and has expressed a desire to change. He read a letter to me expressing his remorse and his hopes for the future. The Crown said I should be cautious about what he said. That is correct but I had the sense, perhaps wrongly, of an expression of genuine contrition. Of course, time will tell but he needs the opportunity to change.
12․I initially thought that the authors of the pre-sentence report had stated a reservation about a period of supervision being part of any sentencing structure. However, I had the benefit of some assistance in Court from CYPS to the effect that supervision would be beneficial. I’m grateful for the intervention which has assisted my consideration of the matter.
13․Generally my consideration is in accordance with the principles set out in MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 from [53].
14․So far he has spent 311 days in custody. However this time is not specifically referable to the present matter. His current sentence will expire on 14 November 2022.
15․The Crown emphasised that while I might backdate the sentence, it should not be to an extent that would excuse the offender’s conduct in respect of the previous offences. I think that backdating for five months is a reasonable consideration of this factor.
16․In respect of the plea of guilty I agree with the Crown that the lateness of the plea should lessen the discount. I think 15 per cent is appropriate.
17․I am required by s 133C(1) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) to consider the purpose of promoting the rehabilitation of the young offender. The Crown recognised the requirement for rehabilitation but also stressed the need for general deterrence. Young people must be aware that this type of conduct is simply unacceptable and will result in severe punishment. In addition the victim in this matter is entitled to know that a perpetrator of the offences upon him has received appropriate punishment.
18․Ultimately there is a truly appalling crime committed by a deprived young man with a history which has effectively dictated his path into serious offending.
19․Under s 133G(2) of the Sentencing Act, sentencing a young person to imprisonment must be a last resort and for the shortest appropriate term. I think he needs to stay in prison for a while longer. This seems to be the view shared by the prosecution and behalf of the offender. Again with concurrence, there should be a period of supervision while the young man re-enters society.
20․Pursuant to s 133G(3) of the Sentencing Act, when sentencing a young person I am required to consider making a combination sentence consisting of a period of imprisonment and a good behaviour order with a supervision condition. I do so. I think 20 months’ imprisonment (reduced from 24 months for the plea of guilty) should be imposed, but the term of imprisonment should commence five months ago and be suspended after a further five months.
21․I have also taken into account the required additional considerations in s 133D of the Sentencing Act.
22․In particular, the offender had a degree of maturity which made him significantly culpable for the offences. His state of development however was influenced by his many mental health issues. His past and present family circumstances have been such that he was given little chance for a conventional upbringing.
23․I make the following orders:
(a)The young person is sentenced to 20 months’ imprisonment to commence on 9 June 2022 and end on 8 February 2024.
(b)The above sentence of imprisonment is suspended from 8 April 2023 on condition that the young person enter a good behaviour order for a period of 12 months on core conditions and on the further condition that he comply with any directions and recommendations made to him by the CYPS.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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