Director of Public Prosecutions v Sean (a pseudonym) (No 4)
[2023] ACTSC 97
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Director of Public Prosecutions v Sean (a pseudonym) (No 4) | ||||||||||||||
| Citation: | [2023] ACTSC 97 | ||||||||||||||
| Hearing Dates: | 3 February 2023; 27 April 2023 | ||||||||||||||
| Decision Date: | 3 May 2023 | ||||||||||||||
| Before: | McCallum CJ | ||||||||||||||
Decision: |
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a. That until 18 May 2023, he is to reside with his parents and not to be absent from those premises without a parent and not to be home alone. b. The young person accept supervision and comply with any reasonable direction given by the Director General of Corrective Services, noting that the young person will need to leave the ACT for any
surgery or pre-operative appointments in relation
to his medical condition.
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – burglary – minor theft – damage to property – breach of good behaviour order upon conviction – re-sentencing – where defendant was a young person at the time of offending – protection of the community – relevance of changes in subjective circumstances – recent diagnosis of autism – where |
| the young person requires major surgery within a short time frame | |
| Legislation Cited: | Children and Young People Act 2008 (ACT) s 94 Crimes Act 1900 (ACT) ss 24(1), 116(3) Criminal Code 2002 (ACT) s 311, 321 Crimes (Sentencing) Act 2005 (ACT) s 133G(2) Crimes (Sentence Administration) Act 2005 (ACT) ss 86, 110 |
| Cases Cited: | R v Wren Sean [2022] ACTSC 201 |
| Parties: | Director of Public Prosecutions |
| Wren Sean (a pseudonym) (Young person) | |
| Representation: | Counsel |
| M Howe (DPP) | |
| P Bevan (Young person) | |
| Solicitors | |
| ACT Director of Public Prosecutions | |
| Bevan & Co Lawyers & Conveyancers (Young person) | |
| File Numbers: | SCC 132 of 2021 |
| SCC 247 of 2022 SCC 248 of 2022 | |
| McCALLUM CJ: |
1. The young person, Wren Sean (a pseudonym), stood trial before me last year on an
indictment alleging one count of murder and one count of recklessly inflicting grievous
bodily harm. Both charges arose out of a fight between two groups of young men at
the Weston Creek skate park. Master Wren pleaded guilty to the count of recklessly
inflicting grievous bodily harm. The jury acquitted him on the count of murder.
2. On 9 August 2022, I dealt with the young person for the offence of recklessly inflicting
grievous bodily harm. I sentenced him to a term of imprisonment for a period of 13
months, reduced from 15 months to allow for his guilty plea, suspended immediately
subject to a good behaviour order for a period of 24 months: see R v Sean (a
pseudonym) [2022] ACTSC 201. The sentence was backdated to 10 October 2021 to
allow for the periods the young person had already spent in custody on remand before
being sentenced. The suspended portion of the sentence was accordingly a period of
three months.
3. On 18 August 2022, less than 10 days after his release on the good behaviour order,
the young person breached it by punching a man repeatedly in the head at the Club
Lime gym in Weston. He was charged with assault occasioning actual bodily harm
contrary to s 24(1) of the Crimes Act 1900 (ACT).
4. On 11 September 2022, he further committed a series of more serious offences when
he broke into the home of one of the witnesses in the skate park trial, assaulted that
person’s mother and stole some of the person’s possessions. The following day the
young person was arrested in relation to that incident and charged with burglary
contrary to s 311 of the Criminal Code 2002 (ACT), assault occasioning actual bodily
harm contrary to s 24(1) of the Crimes Act, minor theft contrary s 321 of the Code and
damaging property contrary to s 116(3) of the Act. There was a further charge of
reprisal against a person involved in legal proceedings but that charge was
subsequently withdrawn.
5. The young person has been in custody since his arrest for the second series of offences
on 12 September 2022, reflecting as at today a total of 234 days, or 7 months and 22
days, in custody.
6. On 7 October 2022, the young person pleaded guilty in the Childrens Court to all of the
fresh offences. That was the first mention of the Club Lime gym assault proceedings
and the third mention of the burglary and related charges. As the offences constituted
a breach of the good behaviour order I imposed on 9 August 2022, he was committed
to this Court to be dealt with for both the breaches and the fresh offences. In accordance with s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT), as
a result of the breaches, I am required to cancel the good behaviour order and either
impose the suspended sentence or resentence the young person for the offence of
recklessly inflicting grievous bodily harm.
7. The prosecutor submitted that, in circumstances where two incidents of violent
offending occurred within five weeks of the imposition of the good behaviour order, any
order other than the imposition of the balance of the suspended sentence would bring
such sentencing into disrepute. I agree. Notwithstanding explanations given by the
young person, I am satisfied that both assaults were unprovoked attacks involving
considerable violence.
Circumstances of the offending
8. The circumstances of the Club Lime gym assault were set out in an uncontested
statement of facts tendered by the prosecution which may be summarised as follows.
9. The young person saw the victim at the Club Lime gym and approached him to engage
in conversation. The two men had attended the same school and were formerly friends,
however on this occasion the victim indicated that he did not wish to engage with the
young person. That caused the young person to become aggressive towards him.
10. The young person briefly walked away but then turned back and struck the victim on
the left side of his face with a closed fist, followed quickly by a closed fist strike to the
victim’s nose. The victim buckled and began walking away from the young person, but
the young person continued to follow him and struck him with a closed fist twice again
on the left side of his face.
11. The young person then moved backwards, away from the victim, remaining verbally
abusive and adopting a fighting stance. The two men briefly wrestled. The victim
managed to position himself on top of the young person and applied his hands to the
young person’s neck for approximately 10 seconds. He then let go, collected his
belongings and left the gym. Photographs of the victim in the material before me show
bleeding and swelling on his face.
12. The circumstances of the second series of offences were as follows.
13. The young person entered the home of the witness from the skate park trial by using a
rock to break a window beside the front door to reach through and open the front door
from the inside. The young person then proceeded to the bedroom of his former friend,
who was not home at the time of the offending, and searched his room until he was
interrupted by that person’s mother, the victim of the second assault.
14. The young person said to her “give me the fucking keys”, to which she responded, “fuck
off”. The young person then struck her on the right side of her head with a closed fist.
She grabbed him and forced him out of the home. When they reached the front door,
the young person said words to the effect of “don’t touch me or I’ll stab you”.
15. He then left the location and kicked his former friend’s car on the way out. That is the
basis for the offence of damaging property.
16. He also took with him from the home a black and green Kathmandu puffer jacket. That
is the basis for the theft offence.
Impact on the victim
17. The material before the Court included a victim impact statement from the mother of
the witness. Although she was struck only with a single blow, it caused her significant
pain and ongoing trauma. She said that, as a result of this incident, she is scared in
her own home and has intense and continuous anxiety that she may be attacked again.
She said she lives with a constant sense of fear that at any moment someone might
burst in and harm her or even take her life.
18. She says as a result she is terrified when she is home alone and experiences “the full
range of symptoms of Post Traumatic Disorder”, as diagnosed by a medical
practitioner. She also indicated that the punch itself caused her significant pain and
resulted in her losing the hearing in her left ear for about 10 days.
Sentencing principles
19. Although the young person is now an adult, he is to be dealt with for these matters as
a young person because he was 17 at the time the good behaviour order was imposed
and at the time of the fresh offences. For that reason, I am obliged to consider the
provisions that apply to the sentencing of young offenders set out in Chapter 8A of the
Crimes (Sentencing) Act 2005 (ACT).
20. I considered those principles in my earlier sentencing judgment at [9] and [40] (in that
judgment I incorrectly referred to the “youth justice principles” stated in s 94 of the
Children and Young People Act 2008 while in fact considering the correct provisions of
the Crimes (Sentencing) Act 2005). I noted that high priority must be given in
accordance with those principles to giving the young person an opportunity to re-enter
and function in the community. I accepted that his opportunity to mature and develop
in a functional way had of necessity been interrupted, both by his period in custody on
remand awaiting trial for the charge of murder of which he was acquitted and by the lengthy period during which he was subjected to onerous bail conditions which
effectively isolated him from his peers.
21. I also had regard to the extra curial punishment to which I referred in that judgment. I
noted that the extra curial punishment to which the young person had been subjected
was inimical to constructive rehabilitation and had re-exposed him to the very violent
milieu from which he had sought to distance himself.
22. Unfortunately, these fresh offences indicate that, in addition to those principles, there
is a need in this case for the Court to give greater priority to the purpose of sentencing
of protecting the community.
23. The young person's mother gave evidence at the proceedings on sentence during
which she explained that the family was not ready for his release in August last year
and that the conditions for supervising him were not appropriate.
24. The prosecutor provided written submissions which were of great assistance to the
Court. In addition to summarising the relevant principles, the submissions referred to
authorities by way of comparative decisions while noting that there was not really any
authority of particular assistance in this context. That is because, as to the assault
offences, it is so rare for a person to be committed to this Court for an offence of assault
occasioning actual bodily harm that no range or pattern of sentencing can be discerned.
As to the burglary offence, the range of sentencing is so wide and involves so many
variables as to be of little assistance. Even if there were a pattern of sentencing
applicable to either kind of offence, it would be of little weight here, having regard to
the highly individual circumstances of this case.
25. The Court should instead be guided by the applicable principles, importantly including
the principles for sentencing young offenders to which I have referred. Importantly,
those principles include the constraint that a young person should not be detained in
custody for any more time than is necessary to meet the objects of sentencing:
s 133G(2) of the Crimes (Sentencing) Act 2005 (ACT). As I have already indicated,
that consideration must be tempered in the present case because of the apparent need
to protect the community. But for two additional considerations to which I will refer
shortly, I would likely have imposed longer sentences in the present case than will be
imposed.
Circumstances of the young person
26. There are two additional circumstances personal to the young person to which I must
have regard. The first is that, since being released and since committing the fresh
offences, the young person has received a diagnosis of autism. I must say that is perhaps unsurprising when one has regard to the difficulties he has encountered which
have brought him before this Court.
27. The material before the Court includes a report from Ms Leesa Morris, forensic
psychologist, who has undertaken a careful analysis of the young person’s mental
state. She subjected him to a number of different kinds of tests and has recorded her
conclusions in the report. She excluded any psychopathic personality traits.
28. Ms Morris stated: “as with most neurodiverse teens, he has strong goals and intentions,
however requires support and structure to assist in following through”. She noted that
the young person is “likely to experience perceived and actual rejection more intensely
than neurotypicals, and this appears to be the precursor to his impulsive violent
behaviours”.
29. The terms in which Ms Morris has recorded the offence constituting the assault on the
mother of the young person who was a witness in the skate park trial are troubling. She
records him as having said:
I broke into a snitch’s house and punched his Mum in the face. I had gone into support him
in a fight [plainly a reference to the skate park incident] and then he dogs me in. I had a plan
but he wasn't home so I just took his shit. His Mum came in and tried to stop me. I didn't
want to hit her. She grabbed me and my reflex when I’m grabbed is to hit straightaway.
30. As recorded at the outset of this judgment, the agreed facts before me are that the
young person struck the victim before she grabbed him. In any event, what is
significant is that, having now a confirmed diagnosis of autism, much of the young
person’s previous conduct can more readily be understood or at least explained in the
manner set out in that report.
31. The second additional circumstance is less significant in terms of the young person’s
culpability but more significant in terms of the outcome of these proceedings. It is that
the young person requires open heart surgery to replace a valve. There is a medical
report before the Court stating that he has congenital heart disease identified as
congenital aortic stenosis.
32. His parents have been advised that the stenosis is severe and that, if not treated, it will
significantly shorten his life expectancy. The medical recommendation is that he has
a valve replacement within the next three to six months. That report is undated but I
was informed at the proceedings on sentence that it gave a range for the surgery of
June to September; that is September at the latest.
33. That timing is complicated by the fact that the surgeon of choice of the author of the
medical report is due to leave Australia at the end of June, bringing the time frame
significantly forward.
34. Further, when I came onto the bench today to impose my sentences for the present
matters, Mr Bevan, who appears for the young person, sought leave to re-open his
case to tender an additional piece of correspondence indicating that the young person
has in fact now been scheduled for that cardiac surgery on 17 May 2023 and is required
to undertake a pre-admission clinic (which takes about five to six hours) next Monday,
8 May 2023.
35. Whilst it is difficult not to feel as though the timing of those appointments is being put
forward for the purpose of tying the Court's hand, the simple fact is that there is a plain
need established by uncontested evidence for this young person to have major surgery
which will have a significant impact on his life expectancy. Whatever might have been
the appropriate sentence leaving that evidence aside, it is clear enough that I must
accede to the practical imperative to impose a sentence which permits that surgery to
proceed.
Sentence
36. The two charges of minor theft and damaging property, the latter consisting in the
young person’s act in kicking the witness’s car as he left the premises, do not warrant
sentences of imprisonment on their own. For those offences, I propose to impose good
behaviour orders for a period of six months commencing at the conclusion of the term
of imprisonment.
37. As I propose to suspend the sentence to enable the young person to undergo the
surgery he requires, that period will be extended as I will shortly indicate.
38. For those reasons, I make the following orders:
(1) In accordance with s 110(1) of the Crimes (Sentence Administration) Act 2005 (ACT), I cancel the good behaviour order imposed by me on 9 August 2022 and impose the suspended sentence. That sentence is to commence on 12 September 2022 and expire on 11 December 2022. (2) For the offence of assault occasioning actual bodily harm at Club Lime (CC CAN 1120/2022) contrary to s 24(1) of the Crimes Act 1900 (ACT), the young person is convicted and sentenced to 6 weeks imprisonment, commencing on 12 December 2022 and expiring on 22 January 2023. (3) For the offence of burglary (CC CAN 1072/2022) contrary to s 311 of the Criminal Code 2002 (ACT), the young person is convicted and sentenced to 3 months imprisonment, commencing on 12 January 2023 and expiring on 11 April 2023. (4) For the offence of assault occasioning actual bodily harm (CC CAN 1073/2022) contrary to s 24(1) of the Crimes Act 1900 (ACT), the young person is convicted and sentenced to 3 months imprisonment, commencing on 12 March 2023 and expiring on 11 June 2023. (5) Those sentences are to be suspended from 7 May 2023. (6) For all offences, including the transfer charges (damage property (CC CAN 1076/2022) and minor theft (CC CAN 1074/2022), I impose a good behaviour order for a period of 7 months and 5 days, commencing on 7 May 2023 and expiring on 11 December 2023. (7) The conditions of the good behaviour order referred to in order 6 are the core conditions listed in s 86 of the Crimes (Sentencing Administration) Act 2005 (ACT) as well as the following additional conditions:
(a) That until 18 May 2023, he is to reside with his parents and not to be absent from the premises without a parent and not to be home alone.
(b) The young person accept supervision and comply with any reasonable direction given by the Director General of Corrective Services, noting
that the young person will need to leave the ACT for any surgery or
pre-operative appointments in relation to his medical condition.
I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum
Associate:
Date: 30 May 2023
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