DPP v Myers (a pseudonym) (No 5) - [2024] ACTSC 109

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Myers (a pseudonym) (No 5)
Citation:	[2024] ACTSC 109
Hearing Date:	11 April 2024
Decision Date:	12 April 2024
Before:	Baker J
Decision:	See [31].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of Good Behaviour Order – breach by commission of several further offences – young offender – disadvantaged background – young person already sentenced for new offences constituting breach – 12 month Good Behaviour Order imposed.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 86, 110 Crimes (Sentencing) Act 2005 (ACT), ch 8A Criminal Code 2002 (ACT), s 310
Cases Cited:	DPP v JJ (No 2) [2024] ACTSC 74 DPP v Lawson [2023] ACTSC 244 DPP v Myers (a pseudonym) (No 4) [2022] ACTSC 308 Guy v Anderson [2013] ACTSC 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BC [2020] ACTSC 308 Saga v Reid [2010] ACTSC 59 Tanner v Brown [2011] TASSC 59 Taylor v R [2020] NSWCCA 355 The Queen v PM (No 2) [2015] ACTSC 358
Texts Cited:	Public Defenders (NSW), The Bugmy Bar Book Project (online, last updated March 2024).
Parties:	Director of Public Prosecutions ( Crown) Thomas Myers (a pseudonym) ( Offender)
Representation:	Counsel M Morrisroe ( Crown) S Beckedahl ( Offender)
Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender)
File Number:	SCC 61 of 2022

BAKER J:

Introduction

The young person, Thomas Myers (a pseudonym), has come before this Court in relation to a breach of a suspended sentence imposed by Elkaim J on 9 November 2022, in respect of an offence of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (CC CAN2021/781) (the original offence).
The young person was released from custody pursuant to a suspended sentence on 8 April 2023 and entered into a twelve month Good Behaviour Order at that time.
Less than three months later, on 2 July 2023 the young person breached the conditions of the suspended sentence by committing two counts of assault occasioning actual bodily harm by way of joint commission (CC CAN2023/926 and CC CAN2023/927) (the first breach offences). One month later, on 22 August 2023, the young person again breached the suspended sentence by committing a further count of assault occasioning actual bodily harm by way of joint commission (CC CAN2024/184) (the second breach offence). The young person pleaded guilty to each of the breach offences and was sentenced in the Childrens Court on 5 March 2024.
I must now cancel the order and either re-impose the suspended sentence or resentence the young person.

Background

The original offence

The circumstances of the original offending are briefly set out in the judgment of Elkaim J on the original sentence: DPP v Myers (a pseudonym) (No 4) [2022] ACTSC 308.
In brief, on 4 March 2021, the young person (who was then 14 years old) and at least one other male met the victim (who was 17 years old) in Kaleen. They threatened the victim with a box cutter and a knife. The young person and the other male dragged the victim from his car and violently assaulted him. The victim was kicked, punched, and hit with a hammer. At one stage, a box cutter was held to the victim’s throat. The young person and the other male stole the victim’s phone, and drove the victim’s car away from him. The victim eventually flagged down a passing car who called emergency services.
The young person pleaded guilty to a charge of aggravated robbery. He was sentenced by Elkaim J on 9 November 2022 to a sentence of 20 months’ imprisonment, to be suspended after 10 months upon the young person entering a Good Behaviour Order for a period of 12 months.
The young person was released on the suspended sentence on 8 April 2023. At that time, he was 16 years old. He had been in custody for 12 months.

The breach offences

The first breach offence occurred on 2 July 2023. The young person and two other males approached two young men (the victims) and their female partners in a hamburger shop. The young person approached one of the victims and said words to the effect of “Fucking remember me cunt? …”. He then began assaulting the victim, whilst one of the other males assaulted another victim. The young person and the other males continued to assault both victims. The assaults were violent, and involved punching, kicking, and striking the victims multiple times in the face and body, throwing a metal stool which skimmed one victim’s head, and using a metal stool to strike another victim across the back.
The second breach offence occurred on the evening of 22 August 2023. The young person was inside the victim’s apartment with two other young people and the two victims. A physical altercation began. One of the other young persons punched, stomped on, and kicked the first victim in the body and head numerous times. A second young person punched the victim and assisted in the assault. The young person who is the subject of these charges filmed the assaults. The young person then picked up a metal chair and threw it at the first victim, before kicking the first victim in the head. The second young person also punched the second victim in the head.

The sentence proceedings on the breaches

The young person pleaded guilty to the second breach offences on 1 February 2024 and to the first breach offences on 7 February 2024.
The sentence proceedings came before Magistrate Stewart in the Childrens Court on 5 March 2024. As at that date, the young person had spent a total of 201 days in custody on remand, whilst bail refused on the breach offences (from 2 – 3 July 2023, 16 – 17 July 2023 and 22 August 2023 – 5 March 2024).
In an ex tempore decision delivered on 5 March 2024, Magistrate Stewart imposed the following sentences for the breach offences:
(a)CC CAN2023/926: 1 month and 24 days’ imprisonment (reduced from 2 months) to be served by way of full-time imprisonment, backdated to commence on 18 August 2023 and expire on 11 October 2023.
(b)CC CAN2023/927: 1 month and 24 days’ imprisonment (reduced from 2 months) to be served by way of full-time imprisonment, backdated to commence on 11 October 2023 and expire on 12 November 2023.
(c)CC CAN2024/184: 3 months’ imprisonment (reduced from 4 months) to be served by way of full-time imprisonment, backdated to commence on 1 November 2023 and expire on 31 January 2024, upon the condition that the offender enter into a Good Behaviour Order and be subject to supervision for a period of 6 months commencing 5 March 2024 and expiring 4 September 2024.
As can be seen from the above, the sentences were backdated to take account some of the time that the young person had spent in custody in respect of the offences. The last of the sentences expired on 1 February 2024. The young person was released at the conclusion of the proceedings on sentence on 5 March 2024, subject to a 6 month Good Behaviour Order. That order will expire on 4 September 2024.

Determination

The breach offences clearly constitute a breach of the young person’s good behaviour obligations, which were the conditions of his release under the suspended sentence. It follows that I must cancel the young person’s Good Behaviour Order imposed on 9 November 2022 and either impose the suspended sentence for the original offences or re-sentence the young person for the original offence: s 110 of the Crimes (Sentencing Administration) Act 2005 (ACT).
In this jurisdiction, there is no presumption in favour of the imposition of a sentence that was suspended: DPP v Lawson [2023] ACTSC 244 at [21], citing Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35].
Nonetheless, when determining the action to be taken in response to a breach of a suspended sentence, it must be recognised that the offender avoided serving full-time imprisonment by entering into the Good Behaviour Order: Taylor v R [2020] NSWCCA 355 at [21], citing The Queen v PM (No 2) [2015] ACTSC 358 at [19] and Saga v Reid [2010] ACTSC 59 at [99] – [101]. As McWilliam J recognised in DPP v JJ (No 2) [2024] ACTSC 74 at [29],
If the court does not enforce the statutory regime by imposing the suspended sentence (or otherwise re-sentence the offender in a manner that properly reflects the breach), then the incentive to comply with good behaviour obligations might be reduced, which in turn, may cause the community to perceive that this regime is a ‘toothless tiger’. The former risks the maintenance of a safe society; the latter reduces respect for the law.
However, it must also be borne in mind that the objective of the suspended sentence that was originally imposed was “reformative as well as penal”: The Queen v PM, citing Tanner v Brown [2011] TASSC 59 at [94]. The objective of rehabilitation remains a relevant consideration when determining the action to be taken following cancellation of the Good Behaviour Order under s 110. This objective will be of particular weight when determining the action to be taken in response to the breach of a suspended sentence by a young person: see Chapter 8A of the Crimes (Sentencing) Act 2005 (ACT).
In the present case, both the prosecution and the legal representative for the young person submitted that I should not impose the sentence that was suspended. Rather, it is common ground between the parties that I should resentence the young person to the time that he has spent in custody that has not yet been accounted for and that I should impose a further suspended sentence and a Good Behaviour Order.
I agree with the course urged by the parties.
In taking this course, I have not overlooked the seriousness of the original offending or that of the breach offences. It is a matter of real concern that the young person committed further offences of violence so soon after his conditional release in respect of an earlier offence of serious violence.
However, consideration of the proper course to take must take into account not only the offending but also the young person’s broader subjective case.
The young person is a 17 year old Aboriginal child, who has faced many challenges in his life. His childhood was marred by domestic violence, early exposure to substance misuse, the incarceration of his father, and interrupted schooling. As Vanessa Edwige, psychologist, observed in her psychological report prepared in relation to the original offence, the effects of these experiences on a child’s social and emotional wellbeing are well-documented: Public Defenders (NSW), The Bugmy Bar Book Project (online, last updated March 2024). As Ms Edwidge explained, the young person was “not privy to the protective factors that enhance a child’s wellbeing”.
As a result of these developmental disadvantages, the young person faces the challenge of overcoming complex developmental trauma and post-traumatic stress disorder. Adding to these challenges arising from his background, the young person has been diagnosed with ADHD and a mild intellectual disability.
In her report, Ms Edwige concluded that, despite his history, the young person presented with several strengths that were considered positive for his future. At the time that Ms Edwige prepared the report in 2022, those strengths included the young person’s understanding of his own behaviour, his motivation to change, and his goals of being employed, setting a good example for his younger brother, and positively connecting with the Aboriginal community.
Upon the commission of the second breach offence, the young person was returned to custody, where he remained until he was sentenced for the breach offences. For reasons that are not entirely clear to me, the current proceedings for the breach of the suspended sentence were not listed at the same time as, or immediately proximate to the sentence proceedings for the breach offences. In any event, the young person has now been released from custody. He appears to be doing well in the community. The prosecutor informed me that the young person has engaged with supervision since being released. He has obtained employment, and is enjoying working as a concreter. He has also been engaging in personal training and gym work.
It is apparent that the young person is currently committed to his rehabilitation. He also has remorse for his offending. In a letter to the Court dated 4 March 2024, the young person apologises for the offending and states that he has “realised how this has impacted mine, my family’s and the victim’s life”. He said that he realises the need for him to change. He recognises that if he focusses on his health and his employment, he will not reoffend. This recognition shows both increased maturity and insight.
This is a critical juncture in the young person’s life. If the young person were to be returned to custody at this time, his rehabilitation would be jeopardised and he would risk becoming institutionalised. Facilitating the young person’s rehabilitation will ultimately be the best protection for the community: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 538-539 [32].
For the above reasons, on cancelling the Good Behaviour Order, I will not impose the suspended sentence. Rather, I will sentence the young person to 10 months imprisonment, to be backdated by 34 days, so as to take into account the period of time that he spent in custody on remand, which was not taken into account in the sentences imposed by the Childrens’ Court Magistrate for the breach offences. I will suspend the remainder of the sentence from today, upon the young person entering into a further Good Behaviour Order for a period of 12 months.
The Good Behaviour Order will involve supervision by the ACT CYPS. The young person has a significant history of violence. His supervision should focus on addressing this as a risk factor. I have been advised by the prosecution that there are no specific programs addressing violence directly provided by CYPS; however, alternative programs may be able to be arranged. Noting these matters, I will not direct that the young person to participate in any particular programs but will simply direct that the young person comply with any directions of the CYPS.

Orders

For the above reasons, the following orders are made:
(1)I cancel the Good Behaviour Order imposed on 9 November 2022 in respect of the offence of aggravated robbery contrary s 310 of the Criminal Code 2002 (ACT) (CC CAN2021/781).
(2)I re-sentence the young person for the offence of aggravated robbery contrary s 310 of the Criminal Code 2002 (ACT) (CC CAN2021/781) to a sentence of imprisonment for 10 months, backdated by 1 months and 5 days to commence on 7 March 2024.
(3)The sentence of imprisonment is to be suspended with immediate effect, on the condition that the young person enter a Good Behaviour Order for a period from the giving of the undertaking until 11 April 2025, subject to the core conditions under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions:
(a)That the young person report to ACT Corrections within 48 hours;
(b)For the period of the Good Behaviour Order or such shorter period as determined by the director-general, that the young person be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person, including as to undertaking any psychiatric or psychological assessment and participating in any program of treatment or rehabilitation.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: 12 April 2024