Fuller (a Pseudonym) v The Queen
[2013] VSCA 186
•24 July 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0062
| ERIK FULLER (A PSEUDONYM) | Appellant |
| v. | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 July 2013 | |
DATE OF JUDGMENT: | 24 July 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 186 | |
JUDGMENT APPEALED FROM: | DPP v [EF] County Court of Victoria, (Judge Millane, Sentence 10 April 2013) 2013 VCC 372 | |
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CRIMINAL LAW – Sentence – Culpable driving causing death – Negligently causing serious injury – Theft of motor vehicle – Thefts of petrol – Imposition of aggregate sentence – Crown concession that aggregate sentence impermissible – Re-sentencing – Appellant 14 years and 10 months of age at time of offending – Low level intellectual functioning and psychological problems – Reduced moral culpability – Severe head injury sustained by appellant in accident giving rise to offences of culpable driving and negligently causing serious injury – Permanently increased intellectual deficit – Extra-curial punishment – General deterrence of little significance as sentencing consideration, likewise specific deterrence, despite prior and subsequent offending – Prospects of rehabilitation guarded – No relevant current sentencing practices – Sentence not exceeding three years’ imprisonment, which would permit making of Youth Justice Centre Order, inappropriately low having regard to entirety of circumstances - Appellant sentenced to total effective sentence of three years and nine months’ imprisonment with non-parole period of one year and nine months.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr R Backwell | Simon English Barristers & Solicitors |
| For the Respondent | Ms D Piekusis | Mr Craig Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
On 10 April 2013, on a plea of guilty, Erik Fuller was sentenced on three charges of theft (Charges 1, 2 and 3),[1] one charge of culpable driving causing death (Charge 4)[2] and one charge of negligently causing serious injury (Charge 5),[3] to an aggregate sentence of five years and ten months' imprisonment. The judge fixed a non‑parole period of three years' imprisonment. The judge made ancillary orders which had the effect of disqualifying Fuller from obtaining any licence or permit to drive for a period of four years commencing on the date of sentence. The judge recommended, pursuant to s.471(1) of the Children, Youth and Families Act 2005, (‘the Children’s Act’) that the Adult Parole Board make an order directing that Fuller be transferred to serve all or part of his sentence in a Youth Justice Centre. Finally, the judge stated, pursuant to s.6AAA of the Sentencing Act 1991, that but for the plea of guilty she would have imposed a sentence of eight years' imprisonment with a non‑parole period of five years and eight months' imprisonment.
[1]Crimes Act 1958, s 74.
[2]Crimes Act, s 318.
[3]Crimes Act, s 24.
Now Fuller applies for leave to appeal against sentence; and, if leave is granted, against the sentence imposed. He relies upon these grounds:
Ground 1: The sentence imposed is manifestly excessive in all the circumstances.
Particulars
The Learned Sentencing Judge gave insufficient weight to:
- the Applicant’s age
- the Applicant’s intellectual disability
- the deleterious effect of incarceration on young men
Ground 2: The Learned Sentencing Judge erred in imposing a single aggregate sentence.
Circumstances
The applicant is a young man, born 27 December 1996.
On 30 October 2011, he and others stole a Toyota Landcruiser (Charge 1, theft). He drove it to a place close to his home.
At around lunch time the following day, the applicant left home with his girlfriend, and in the stolen vehicle, later met up with young friends. The applicant then drove around nearby suburbs, showing off by performing various manoeuvres.
Later, another young person entered the vehicle.
The group purchased and consumed alcohol. The consumers included the applicant. For the most part, if not at all times, he was the driver of the vehicle.
A final passenger was picked up at about 6.30 pm.
By that time there were seven young people in the vehicle. They ranged in age from 14, which was the applicant's age, to 17.
At about 8 pm, petrol was pumped into the vehicle at a service station. The applicant drove off without paying (Charge 2, theft).
That same evening, more petrol was pumped into the vehicle at another service station. Again the applicant drove off without paying (Charge 3, theft).
The total value of the petrol stolen was about $100.
At about 9.45 pm, the vehicle stopped at an address in East Brighton. There was a party underway and various occupants of the vehicle attended for a short time.
Then the vehicle set off again with the applicant driving. At a little after 10 pm, after the applicant had engaged in ‘fishtailing’, he lost control of the vehicle and it rolled over a number of times. Two occupants were thrown out. A 16‑year‑old boy was killed (Charge 4) and a 16‑year‑old girl suffered serious injuries (Charge 5). Her injuries included fractures of the pelvis and spine.
The applicant himself suffered a severe head injury. He has been left with acquired brain damage which will be permanent. More must be said about his injury and its consequences later in these reasons.
At the time of the incident, the applicant, obviously, was unlicensed.
A blood sample taken from the applicant after 10.30 pm on the day of the incident revealed a blood alcohol concentration of 0.088. A forensic physician opined that by reason of immaturity, consumption of alcohol, peer group pressure, irresponsibility and thrill seeking, the applicant's driving skills would have been very much affected at the time of the incident.
The applicant pleaded guilty, although he has a long period of amnesia which affects his recollection of events before and after the incident. His amnesia is a consequence of his severe head injury. It is doubtful that he has any memory of the incident, as distinct from a reconstruction from what he has been told occurred.
Crown concession
The Crown conceded in written submissions that Ground 2, relating to the imposition of an aggregate sentence, was made out.
By s.9(1) of the Sentencing Act 1991 -
9 Aggregate sentence of imprisonment
(1)If an offender is convicted by a court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.
The Crown's concession was that it could not be said that the five offences were 'founded on the same facts, or form, or are part of, a series of offences of the same or a similar character'. The thefts on the one hand, and the offences against ss.318 and 24 of the Crimes Act on the other hand, did not satisfy any of those alternative situations. The offences, which much varied in seriousness, were of markedly different kinds. There were dishonesty offences and driving offences. Thus, the Crown conceded, the judge was not authorised to impose, as she did, an aggregate sentence.
The concession was properly made. The consequence is that leave to appeal must be granted and the appellant, as I will now describe him, re‑sentenced.
The merits or otherwise of Ground 1 are immaterial to the task which confronts the Court. That said, it was contended for the Crown that the sentence imposed below was appropriate. In effect, the Crown submitted that the same total effective sentence and non‑parole period should be imposed.
Re‑sentencing the appellant
I have already described the circumstances of the offending. The principal offences, obviously, were those of culpable driving causing death and negligently causing serious injury. The appellant's driving which brought about the death and injury was evidently negligent to the requisite degree; and as well alcohol played some part in the happening of the accident. The appellant's manner of driving exhibited the hallmarks of an immature, irresponsible and thrill seeking young man, somewhat alcohol‑affected, showing off to a group of his peers. Although the vehicle was not overloaded,[4] the two passengers who were ejected were not wearing seat restraints. The entirety of the circumstances were a recipe for the disaster which in fact occurred.
[4]It was a seven seater vehicle.
But sentencing does not begin and end with the circumstances of the offending. It requires a synthesis of the circumstances of both the offence and the offender set in the correct legal framework. In this case, that framework has a number of characteristics which should be identified at the outset.
The legal framework
First, the appellant, aged 14 years and ten months at time of offending, was a ‘child’ within the meaning of the Children’s Act. Four of the five indictable offences with which he was charged were within the jurisdiction of the Children's Court. Only the offence of culpable driving was not.[5]
[5]See s.516(1)(b) of the Children’s Act.
The Children's Court has the power to cede jurisdiction if the child objects to that Court hearing an indictable matter summarily. The child did object in this instance.[6]
[6]See s.356(3) (a) of the Children’s Act.
In the event, the Children's Court held a committal proceeding, as it was empowered to do. The appellant pleaded guilty and, having objected to the Children's Court exercising jurisdiction, he was committed to the County Court for plea and sentence on all the indictable offences. Several summary offences, with which this appeal is not concerned, were uplifted to the County Court at the same time.[7]
[7]We were informed that the Crown did not pursue the summary charges.
Now, by s. 362(1) of the Children’s Act –
(1)In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to—
(a)the need to strengthen and preserve the relationship between the child and the child's family; and
(b)the desirability of allowing the child to live at home; and
(c)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(d)the need to minimise the stigma to the child resulting from a court determination; and
(e)the suitability of the sentence to the child; and
(f)if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and
(g)if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
Those considerations, it has been held, preclude consideration of general deterrence as a sentencing consideration in proceedings to which the provision applies.
In this case, s.362(1) would have applied had the charges (that is, other than the offence of culpable driving) been dealt with in the Children's Court.
A question arises whether the preclusion against taking account of general deterrence applies to the charges which might have been dealt with in the Children’s Court, but which were in fact dealt with by the County Court.
Section 362(1) refers to matters to which the Children's Court is to have regard.[8] But it has been held that, in some circumstances, provisions in the Children’s Act relating to sentences are to be applied when an offender is sentenced in a superior court.[9]
[8]Because ‘Court’ in s 362(1) is defined by s 3 to mean the Children’s Court.
[9]CNK v The Queen [2011] VSCA 228 [82], JPR v The Queen [2012] VSCA 50 [32]-[33] (Hollingworth AJA). Compare DPP v Anderson [2013] VSCA 45 [47].
It is not clear to me that s.362(1) will apply to an exercise of jurisdiction by the Supreme Court or the County Court in a case in which the child has objected to the exercise of jurisdiction by the Children's Court. Moreover, Anderson[10] suggests that the section will not apply once a superior court decides that punishment exceeding that available under the Children’s Act, or under s.32(3)(b) of the Sentencing Act, is necessary.
[10]DPP v Anderson, ibid.
It is unnecessary, however, for me to resolve what I perceive to be that uncertainty in this case. By reason of the appellant’s age at time of offending, his level of intellectual and psychological disability at that time, and the injuries which he sustained, general deterrence cannot be regarded as a factor of any significance in the sentencing synthesis.
Second, the fact that the culpable driving charge could not be determined in the Children's Court means that the purposes of sentence, for that offence at least, are one or more of punishment, general and specific deterrence, facilitation of rehabilitation, denunciation and protection of the community. It means also that the Court must have regard to the matters set out in s.5(2) of the Sentencing Act. They include –
(2) In sentencing an offender a court must have regard to—
(a)the maximum penalty prescribed for the offence; and
(b)current sentencing practices; and
(c)the nature and gravity of the offence; and
(d)the offender's culpability and degree of responsibility for the offence; and
….
(e)whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and
(f)the offender's previous character; and
(g)the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.
Third, 'current sentencing practices', referred to in s.5(2)(b) of the Sentencing Act, is a term almost without meaning in the case of the appellant. The limitations on the use of the raw statistics which can be found in the Sentencing Snapshots produced by the Sentencing Advisory Council have often been remarked upon. What the relevant Snapshot does show, however, is that in the period 2007/8 to 2007/12, the youngest group offenders - six out of 77 - were aged 18 to 19 years. In short, the appearance before the Court of an offender aged under 15 years at time of offending is unprecedented in recent years. And because, statute aside, particular sentencing considerations are ordinarily of great importance in the case of young offenders, very little guidance could be got from recourse to what otherwise might be gleaned from reference to sentencing statistics.
Fourth, it relates to the observation which I have just made, facilitation of rehabilitation is ordinarily a very important sentencing consideration where a young offender is concerned. As a generality, it is far more important than general deterrence.[11]
[11]R v Mills [1998] 4 VR 235, 241 (Batt JA).
There can be circumstances in which facilitation of rehabilitation has to be subordinated to other considerations. That will be so, for instance, where the gravity of the offending demands precedence as a sentencing consideration. In Azzopardi v The Queen, Redlich JA examined in detail the conflicting considerations in passages in his reasons with which I respectfully agree.[12]
[12]Azzopardi v The Queen [2011] VSCA 372 [34]-[44].
Fifth, injuries sustained by an offender in the course of offending can stand, infrequently, as an extra curial punishment and can be taken account of in the sentencing synthesis. In the present case, the brain injury acquired by the appellant compounded intellectual and psychological problems from which he suffered before the incident. In the result, the appellant now has very significant deficits which will affect him in the long‑term. That is so although he seems to be (largely) unaware of their extent. The case is one in which I consider it is correct to characterise the effects of the appellant's injuries as inflicting extra curial punishment.
Sixth, for reasons which I have already explained, general deterrence is not of any significance as a sentencing consideration. But, at the same time, the deficits under which the appellant now labours appear to have reduced his inhibition against or, it might be said, his awareness of the significance of re‑offending. In such circumstances, are not his prospects of rehabilitation made more problematic? His counsel fairly conceded that this was so.
The appellant's personal circumstances
The appellant was born in December 1996 to parents who were drug users. He was born with drugs in his bloodstream, and required a course of methadone from which there was difficulty in weaning him.
His father ceased using drugs many years ago but his mother only did so in 2009.
The appellant lived with his mother predominantly until 2009. Then she was imprisoned, and the appellant began to live with his father.
Despite their problems, and although they have not lived together, it does nonetheless appear that the appellant's mother and father have been active parents over the years.
The appellant exhibited medical, intellectual and psychological problems from childhood.
He had persistent hearing problems during primary school. As a young child, grommets were inserted into his ears.
When in Grade 1 or 2, he began to exhibit behavioural difficulties. A paediatrician diagnosed attention deficit hyperactivity disorder. The appellant was medicated, but his behaviour did not improve and he was taken off medication.
The appellant's antisocial behaviour in primary school included, it is said, lighting fires, breaking windows and fighting. He was referred to a school psychologist but it seems that he was only seen 'a couple of times'.
The family moved to Melbourne when the appellant was eight years old. The appellant went from one place of residence to another. He attended a primary school where, according to his parents, he was always in a principal's office for not doing his work in class, or his homework.
According to the appellant's own account, he was expelled twice from primary school, at around years 6 and 7, for violence.
In 2010, when the appellant would have been 13, his parents sought medical assistance because of his learning difficulties and aberrant behaviour. It was during that year that his difficulties escalated. He began using alcohol and cannabis in the company of older friends and he began to commit offences which resulted in Children's Court appearances. He was expelled from one secondary school. He was diagnosed as suffering from cognitive difficulties.
The appellant has been assessed on a number of occasions since suffering head injury on 31 October 2011. But before mentioning the results of those assessments, I must say a little about the nature of his head injury. In short, it involved extensive skull fractures requiring craniotomy and evacuation of a left frontotemporal extradural hematoma. It produced a long period of amnesia. The appellant was placed on anti-epileptic medication, but fortunately he has not had a seizure and it seems unlikely that he will do so in the future.
Returning to the appellant's cognitive difficulties, it has been concluded that:
1. His pre-incident intellectual functioning was at the low average level.
2. His current cognitive situation puts him in the mildly intellectually disabled to borderline range, with significant impairments of non-verbal reasoning, verbal reasoning, new learning, verbal memory and non-verbal sequencing and organisation. His overall IQ rating puts him in the lowest two per cent. His reading age has been estimated as that of a child of ten.
3. In all, there has been a significant reduction in the appellant's cognitive functioning post-accident.
Ms Matthews, psychologist, opined in a report dated 24 January 2013 that the appellant's pre-accident impaired level of cognitive functioning would have meant that, at time of offending, his ability to self-regulate, reason and problem-solve would have been severely compromised, the more so in the context of him suffering ADHD and being a young adolescent at the time.
Further as to the appellant's post-accident status, a speech pathologist reported in mid 2012, that he –
1. had somewhat slurred speech;
2. exhibited poor attention and concentration;
3. had reduced span of information processing; and
4. was frequently non-compliant, this becoming worse as sessions progressed.
The appellant has been described by another attending doctor as presenting with word-finding difficulties, confusion at times, with reduced organisation, impulsivity, temperamentality, short‑term memory problems and reduced use of language.
A neuropsychologist opined in March 2012 that the appellant's personality appeared such as would make it difficult for him to engage in 'meaningful, extended rehabilitation', if history was the best guide. The expert's further impression was that the appellant presented 'at least a moderate risk to himself and others'. He suggested ways of managing the appellant's routines.
At the request of the judge below, the Department of Human Services provided a pre‑sentence report. Dated 18 March 2013, it summarised the appellant's participation and motivation as follows:
Historically during [Erik’s] Community Based Orders with Youth Justice he has shown his ability to engage meaningfully during appointments and to attend regularly since 2010. However, he often required outreach, and his attendance has been poor during several periods.
More recently, [Erik’s] motivation to engage with workers and supports in the community has reduced. Since September 2012 several support workers (Youth Justice Case Manager, YJCSS worker, Teacher) and his father reported that his behaviour had shifted and that he had become more withdrawn in the home, and less engaged with support workers and family. His care team were concerned that this related to the upcoming anniversary of the accident.
[Erik] faces some challenges in regards to participating and attending appointments. As a result of [Erik’s] ABI and Intellectual Disability it was assessed that he has poor memory retention, and is therefore prone to forget appointments. His neuropsychologist recommended the use of visual cues and constant reminders for appointments would be of assistance to him.
Since being held in remand [Erik] appears to have become more motivated, and engages well with activities, staff and peers. It has been reported that in custody he has been settled and compliant, with only minor behavioural issues being reported. He has expressed his motivation to attend TAFE once he returns to the community to obtain an apprenticeship in Carpentry.
With respect to education and employment, the authors reported that -
Throughout 2012, [Erik’s] engagement in education decreased. Whilst in custody, [Erik] has displayed similar behaviours where he is disruptive and asks irrelevant questions, and can be argumentative with teachers. His current overall attitude toward education is negative, which could be associated with his learning difficulties as a result of his ABI and developmental problems during childhood.
His current situation was reported as follows:
[Erik] is currently in remand at Parkville Youth Justice Precinct. He has served 66 days in remand for offending from prior to and since the car accident. Overall it has been reported that he has been engaging well with staff and peers whilst in custody. [Erik’s] father and mother have been supportive of him during custody, and they visit him regularly. [Erik] has engaged well with his YJCSS worker and YJ worker during this period.
As for prospects of rehabilitation, the report stated –
In relation to [Erik’s] prospects for rehabilitation, he presents as having the ability to attend and engage with support services and has continued to engage with support services whilst he has been in custody. [Erik] has shown some insight into the impact that his offences have had on the victim, however, as could be explained by his ABI and subsequent Intellectual Disability, much of his remorse relates to the impact the consequences of the offending have had on him, rather than the victim and the wider community.
[Erik] has continued to report of positive goals for the future, including working towards an apprenticeship in carpentry. Whilst there have been some issues raised in relation to [Erik’s] negative attitude towards education programs, it is positive that he can identify something to work towards in the future.
Whilst [Erik’s] family life presents as unstable in the past, he continues to receive the guidance and support from his father both in the community and in custody. [Erik’s] father, [Mr F], continues to be described as a positive and stable family members in the community.
In relation to [Erik] being impressionable, immature or be subject to undesirable influences in a prison, it is highlighted that [Erik] falls within the range of younger offenders, being sixteen years of age. [Erik] is registered with Disability Client Services due to his diagnosed Intellectual Disability. A neuropsychological assessment by Ms Matthews indicates that [Erik] is a vulnerable young person who requires intensive rehabilitation support in regards to his medical, learning and adjustment needs as a result of his ABI.
[Erik’s] emotional and cognitive deficits have been assessed as making him physically and emotionally vulnerable if placed in custody with older adolescents or men. On occasions, [Erik] has been described by professionals as immature in his behaviour and has faced victimisation in the past.
The authors assessed the appellant as being suitable to be sentenced to detention in a Youth Justice Centre.
The Department of Human Services provided a progress report dated 9 July 2013. Since the appellant is to be re‑sentenced, the Court can and should consider it. The authors reported the current situation as follows:
[Erik] is a 16 year old Aboriginal male[13] with an Intellectual Disability from an Acquired Brain Injury (ABI), who is currently serving a five year and ten month sentence at MYJC. [Erik’s] progress in custody has been generally positive.
Whilst in custody [Erik] has overall been settled and well behaved, it has been reported that he has been compliant with staff for example he generally completes his chores and participates in education and sporting programs on a daily basis. However he is occasionally disruptive in education programs.
Recently some behaviour and attitudes have been flagged as concerning by staff namely his repeated request to be moved to another unit, as he states that the Westgate staff are strict and judgemental. There was an incident of concern on the 6th of June 2013. [Erik] had a phone conversation with the writer where he alleged a sexual assault by a unit staff member, however, he stated this was a joke. Police were notified and they interviewed [Erik] and took a statement of ‘no complaint’. Staff also report that he has been presenting as more anxious than usual, and often repeats questions in relation to the recent upcoming Appeal, and communicating with staff in an untruthful manner.
[Erik] was assessed by the Adolescent Forensic Health Service (AFHS) on the 15th of April 2013, no acute mental health concerns were found and no further follow up was recommended. However, after recent concerns from staff with regards to his recent behaviour in the unit (as outlined above) the AFHS team have made counselling available to [Erik], the unit staff will be observing his behaviour and refer where necessary. [Erik] has been offered a session recently however he was reluctant to engage.
Whilst in custody [Erik] has had to cope with several significant family events. His brother was in an accident and placed in an Intensive Care Unit (ICU) with a significant brain injury. In addition, [Erik’s] maternal grandmother passed away, and his sister had a baby.
[Erik] states that he would like to attend TAFE to complete a year 10 equivalent and eventually become a carpenter, when he returns to the community.
[13]It seems that his mother has aboriginal blood. But neither she nor the appellant appear to constantly identify as being Aboriginal (my footnote).
The report summarises the situation this way:
Whilst in custody [Erik] has engaged well with the writer during Youth Justice supervision sessions and is compliant with MYJC staff. He has generally been settled, and well behaved, and regularly participates in programs. There have been some concerns from unit staff around [Erik’s] attitude and behaviours, mainly in regards to his concern with moving units.
[Erik’s] attitude toward his offending has become more reflective and prosocial whilst in custody.
Four recent psychologist’s reports were also placed before the Court. I will not refer to their detail. I think that they did not add to, or detract from, the situation as I have explained it. They confirm that recently the appellant has been understandably upset about the condition of the older brother who was badly injured in an accident.
Prior and subsequent offending
On 22 March 2010, the appellant appeared in the Children's Court on charges of theft of a motor vehicle, criminal damage, robbery, going equipped to steal and offences to do with graffiti. He was placed on probation for nine months.
On 7 October 2010, the appellant was before the Children's Court for breach of the probation order and for offences including recklessly causing injury, recklessly causing serious injury, affray, assault, assault with a weapon, theft and wilful damage. Counsel for the appellant was unable to provide any detail of the circumstances of this offending. In any event, a Youth Supervision Order, operative for nine months, was made.
On 3 February 2011, the appellant appeared before the Children's Court for breach of the Youth Supervision Order and on charges of criminal damage, robbery and recklessly causing injury. It was ordered that he be detained in a Youth Residential Centre for a total of nine months.
On 20 April 2011, in the Children's Court, the appellant was charged with theft and possession of graffiti making equipment. He was released on a good behaviour bond.
Now I come to subsequent convictions. They bear upon prospect of rehabilitation and, to an extent, the need for specific deterrence.
On 9 May 2012, in the Children's Court, the appellant was placed on probation for offences which include thefts of motor vehicles and theft otherwise.
On 24 April 2013, in the Children's Court, a Youth Justice Centre order was made for six months detention in respect of offences including car thefts, theft and criminal damage. The car thefts took place on 26 October 2011, that is four days before the theft in the present matter, in December 2012 and on 3 January 2013.
With 93 days of pre‑sentence detention declared, that sentence, which was to be served concurrently with the sentence passed in the present matter, has expired. Counsel for the appellant informed us that it did so on 22 July this year.
Very little explanation has been given of the appellant's offending, an outstanding feature of which has been repeated thefts of motor vehicles, dealt with at appearances on 22 March 2010, 9 May 2012, 24 April 2013 and as well on the occasion now relevant.
It is clear that the appellant did not take the advantage of the opportunity given to him by merciful dispositions in the Children's Court. But that must be understood in the context of this particular youth and his intellectual and psychological problems as I have described them.
Disposition
The circumstances of this offending and of this offender create a problem of more than usual difficulty in fixing upon a sentence which reflects all the competing considerations. The offence of culpable driving is, as the maximum penalty implies, serious, as is the offence of negligently causing serious injury. The thefts, though of lesser importance in the scheme of this offending, were nonetheless not inconsequential. Particularly that is so in respect of the motor vehicle theft. Just punishment is a relevant sentencing consideration.
So far as the offence of culpable driving is concerned, I should add, appellant’s counsel fairly conceded that in this instance there were a number of aggravating circumstances: the fact that his client was driving a vehicle full of young people at such a young age, the fact that he was driving whilst unlicensed, and his use of alcohol. Counsel for the Crown added to those circumstances the fact that the vehicle stolen was a Landcruiser – a large vehicle in the hands of a youth of less than 15 years of age.
But then it is necessary to give consideration to the appellant's personal circumstances. These observations may be made.
First, because of his reduced intellectual capacity and psychological problems at the time of offending, the appellant's moral culpability was the less. In that connection I refer to the opinion of the psychologist, Ms Matthews.
Second, general deterrence cannot be a factor of any significance in sentencing. That is so because of the appellant’s youth, his limited intellectual capacity and psychological problems at time of offending and the effects of his acquired brain injury.
Third, lack of restraint in consequence of the combination of the appellant's premorbid state and the effects of his head injury provide an explanation, though not an excuse, for his offending before, at the time of, and subsequent to the instant offending. Specific deterrence can have only a limited role to play in the sentencing synthesis.
Fourth, the appellant did plead guilty at an early stage. Whilst it may be assumed that the facts were clear enough, it is also the fact that the appellant has a prolonged period of amnesia. So his plea was not perfunctory.
On general principles, his plea had utilitarian value. The more difficult question is whether the plea, or any other revealed circumstance, suggests that the appellant is remorseful. About that, it appears to me, there is too much doubt to make a finding in the appellant's favour.
Fifth, for reasons explained, the effects of the appellant's head injury are of severity sufficient to treat them as an extra-curial punishment.
Sixth, the prospects for the appellant's rehabilitation must be guarded. That is so because of his limited capacity, by reason of his cognitive and psychological problems, to fully understand what he has done wrong in the past, and to reflect and learn from it. Nonetheless, the appellant is only aged 16 now, and I could not countenance imposing a sentence which assumed that the appellant was beyond redemption.
Balancing out the entire circumstances of the offending and the offender, I am of opinion that a total effective sentence not exceeding three years, which would enable the making of Youth Justice Centre Order, would be inappropriately low. It would not sufficiently punish the appellant. I consider that the proper course is to impose a sentence which, allowing for a shortish non‑parole period, will give the appellant the best possible balance of detention and supervision after release as will facilitate whatever rehabilitation is possible
I propose that the appellant be sentenced as follows:
On Charge 1, theft of a motor vehicle ‑ six months' imprisonment.
On Charge 2, theft of petrol ‑ one month's imprisonment.
On Charge 3, theft of petrol ‑ one month's imprisonment.
On Charge 4, culpable driving – three years’ imprisonment.
On Charge 5, negligently causing serious injury ‑ 18 months' imprisonment.
I would cumulate eight months of the sentence on Charge 5 and one month of the sentence on Charge 1 on each other and on the sentence on Charge 4. The total effective sentence would be three years and nine months' imprisonment.
I would fix a non‑parole period of one year and nine months' imprisonment.
I would confirm the orders made by the judge below with respect to licence disqualification.
Like the judge below, I would recommend that the Adult Parole Board make an order directing that the appellant be transferred to serve his sentence in a Youth Justice Centre.
I would make a declaration in respect of pre‑sentence detention for the period 10 April 2013 to this day. The appellant is to be taken to have served concurrent sentences in the period from 10 April 2013 to 22 July 2013 and that should be reflected in declared pre‑sentence detention.
Pursuant to s.6AAA of the Sentencing Act, for my part I would indicate that, but for the plea of guilty, I would have imposed a sentence of five years and six months' imprisonment with a non‑parole period of three years.
HANSEN JA:
I agree with the learned presiding judge.
ASHLEY JA:
The Court's orders will be these:
1. The application for leave to appeal against sentence is granted.
2. The appeal is treated as instituted, heard instanter and allowed.
3. The sentence passed below is quashed. In lieu thereof, the appellant is sentenced as follows:
Charge 1 ‑ six months' imprisonment.
Charge 2 ‑ one month's imprisonment.
Charge 3 ‑ one month's imprisonment.
Charge 4 ‑ three years' imprisonment.
Charge 5 ‑ 18 months' imprisonment.
4. Order that eight months of the sentence on Charge 5 and one month of the sentence on Charge 1 be cumulated on each other and on the sentence on Charge 4. The total effective sentence is three years and nine months' imprisonment.
5. The Court fixes a non‑parole period of one year and nine months' imprisonment.
6. The Court confirms the ancillary orders made below.
The Court recommends that the Adult Parole Board make an order under s.471(1) of the Children, Youth and Families Act 2005 directing that the appellant be transferred to serve all or part of his sentence in a Youth Justice Centre.
(Discussion pre‑sentence detention).
It is declared that the period of 105 days, not including this day, is to be reckoned as already served under the sentence, and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
The Court states, pursuant to s.6AAA of the Sentencing Act, that had the appellant not pleaded guilty it would have imposed a total effective sentence of five years and six months' imprisonment with a non‑parole period of three years.
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