H v Rowe & Ors
[2008] VSC 369
•19 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 6574 of 2008
| H | Appellant |
| V | |
| TREVOR ROWE ADAM KANE ROBERT CAIAFA BRETT COLLEY | Respondents |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2008 | |
DATE OF JUDGMENT: | 19 September 2008 | |
CASE MAY BE CITED AS: | H v Rowe & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 369 | First Revision 21 April 2009 |
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APPEAL – Sentencing Children’s Court – Appeal from President of the Children’s Court to the Supreme Court – Principles – Sentence of President re-imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms M. Hodgson | Balmer & Associates |
| For the Respondents | Mr M. Gamble SC | Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is an appeal pursuant to s 424(1) of the Children, Youth and Families Act 2005 (“the Act”).
H, who is now 17 years of age appeals against a 27 month sentence of detention in a youth justice centre imposed by the President of the Children’s Court.
During 2006 and 2007, H engaged in a wide range of criminal behaviour, culminating in March of 2008 with a vicious attack with a knife upon a young man he was attempting to rob. At the time, H was the subject of five separate youth supervision orders.
H has been in custody since that offence, detained at a youth justice centre.
The argument of H’s counsel was not directed towards the fact that a sentence of detention had been imposed, but rather to the length of the period of detention.
Although this appeal is to be treated as a hearing de novo, I have taken the view that the sentence imposed by the President of the Children’s Court was appropriate and no different sentence ought to be imposed by this Court.
I now set out my reasons for reaching this conclusion.
The provisions of the Act
Section 424(1) of the Act requires an appeal against a sentence imposed by the President of the Children’s Court to be made to the Trial Division of the Supreme Court.
In effect s. 424(5) and (6) of the Act deem certain provisions of the Magistrates’ Court Act 1989 relevant to County Court appeals to apply to appeals from the President of the Children’s Court to this Court. With appropriate modifications applied, this requires this Court to, amongst other things:
(a) Set aside the order of the Children’s Court;
(b) To make any order which this Court thinks just and which the Children’s Court could have made;
(c) Exercise any power which the Children’s Court exercised or could have exercised.[1]
[1]S. 86 of the Magistrates Court Act
In terms of procedure the appeal is conducted as a hearing de novo. In Humphries v Poljak[2] Crockett and Southwell JJ described such a hearing as follows:
“Such a rehearing involves a complete rehearing of the matter by the appellate court. The initiator of the proceedings below would be required on appeal to commence the rehearing proceedings regardless of whether or not he was the appellant or respondent. It would be open to the parties on the rehearing to call evidence different from that adduced before the primary tribunal. Examples of a rehearing of such a nature, properly too be described as a hearing de novo are appeals in criminal matters to the County Court from the Magistrates’ Court and appeals to a judge of this court from a master.”
[2](1992) 2 VR 129, 139
Considerations relevant to a sentence imposed under the Act are set out in s 362(1) of the Act:
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 the person, from the violent or other wrongful acts of the child.
The term “rehabilitation”, whilst not appearing within the section, nevertheless underpins those matters set out in s 362(1)(a) to (d). The principle of specific deterrence is incorporated within s 362(1)(g) of the Act; general deterrence is not a relevant sentencing principle.[3]
[3]See R v Angelopoulos (2005) VSCA 258 at [52] – [56]
Section 360 of the Act then provides a raft of sentencing options open to a Court ranging from dismissing a charge without conviction to convicting the child and ordering that he or she be detained in a youth justice centre.
In the context of this appeal, the consequences of a breach of a youth supervision order are set out in s 393.
If -
(a) a person has been released on a youth supervision order; and
(b) the person is brought or appears before the Court (whether a notice under section 392(1) has been issued or not); and
(c) the Court is satisfied that the person has failed to observe any condition, or amended condition, of the order-
the Court may make an order-
(d) varying the youth supervision order but not extending the term of the order; or
(e) confirming the youth supervision order and directing the person to comply with the youth supervision order; or
(f) revoking the youth supervision order and imposing any sentencing order that the Court thinks just; or
(g) if the youth supervision order has expired, imposing any sentencing order that the Court thinks just.
Finally, Section 412 sets out a series of conditions before a sentence of detention in a youth justice centre can be imposed:
(1) If –
(a) the Court finds a child guilty of an offence, whether indictable or summary; and
(b) on the day of sentencing, the child is aged 15 years or more but under 21 years; and
(c) the Court is satisfied that no other sentence is appropriate; and
(d) the offence is one punishable by imprisonment (other than for default in payment of a fine); and
(e) it has received and considered a pre-sentence report –
the Court may convict the child and order that the child be detained in a youth justice centre.
(2) If the Court makes an order under subsection (1), it must –
(a) state in writing the reasons for the order; and
(b) cause the statement of reasons to be entered in the court register; and
(c) unless the Court otherwise orders, cause a copy of the written statement of reasons to be given or sent by post within 21 days after the making of the order to the child, the child’s parents and other parties to the proceeding.
(3) The failure of the Court to comply with subsection (2) does not invalidate an order made by the Court under subsection (1).
(4) The Court must not make an order under subsection (1) if the child is not present before the Court.
The background of H
H is now aged 17 years and 7 months. His father died when he was young, although the family had separated some years earlier, with H remaining with his mother. I accept that the impact of his father’s death was probably not appreciated until H reached adolescence.
Until his detention, H lived at home with his mother, although at times their relationship has been tumultuous, particularly concerning H’s behaviour. His mother seems to have tried her best, in difficult circumstances, to get H to school or to keep him out of trouble. H’s schooling has been sporadic, diverse and poorly attended. He attended four secondary schools prior to his detention. He last went to school at the Prahran Neighbourhood House and he did not complete Year 10.
H’s general health is good, apart from a slight hearing problem with his right ear. He has, in the past, used cannabis and consumed alcohol.
Apart from the matters which are the subject of this sentence (which date from March 2006), there are no significant matters in relation to criminal offences prior to that time.
The charges and the surrounding circumstances
The conviction of H on charges relating to robbery, armed robbery and recklessly causing serious injury on 11 March 2008 constituted a breach of five youth supervision orders that had been imposed upon him. On the basis of this breach, the President of the Children’s Court re-sentenced him for those offences which had originally been the subject of the youth supervision orders.
It is convenient to deal with the charges in chronological order.
29 March 2006: Armed robbery
H was convicted of a charge of armed robbery.
On the morning of Wednesday 29 March 2006, H and his co-offender, SI and seven other unidentified youths travelled from H’s school in Richmond to Hawthorn intending to rob a student. H was in possession of a knife.
The group went to H.A. Smith Reserve in Glenferrie Road. They walked through the park until they saw a lone male talking on a mobile phone. The group approached the victim and asked him if he had any money. At that time, H was playing with the knife in order to frighten the victim, who retreated towards his car where he was surrounded by the group. H then pointed the knife at the victim and demanded that he hand over his mobile phone and cash. In response to that demand, the victim handed over his mobile phone and $35 cash.
The victim was given back his SIM card when he said that he needed his phone for work. The victim then offered to give them $5 in return for his phone. His phone was then returned to him.
Subsequently, the police arrested five members of the group. The subsequent investigation determined that, on the available evidence, H and SI were the only persons identified as actively participating in this offence of armed robbery.
When interviewed by police, H made full admissions in relation to his role in the offence.
4 April 2006: Attempted theft
H was convicted of charges of attempted theft.
At approximately 7.00 p.m. on 4 April 2006, H used an unknown object to gain entry to a locked vehicle in the car-park of Glenhuntly Railway Station. He rummaged through the contents of the vehicle. As H left the vehicle, he was pursued by a witness who managed to apprehend and detain him until police arrived.
H was interviewed at Moorabbin Police Station and gave no comment answers.
Mid April and 19 April 2006: Criminal damage, assault, burglary, theft
H was convicted of criminal damage (five charges), possessing a controlled weapon, assault with a weapon, burglary and theft (two charges).
In the evening of 19 April 2006, H and his co-offender, JS, went to the Ivanhoe train station car-park and kicked in the door panels of five vehicles causing substantial damage.
A witness to those events approached the appellant and told him that he was calling the police. In response to that, H produced a knife that he had purchased earlier that day and sharpened, and threatened to hurt the male if he did not return to his car. The charges of possession of a regulated weapon without lawful excuse and assault with a weapon related to H’s possession and use of that knife.
H was interviewed at Heidelberg police station and made full admissions to the five offences of criminal damage. He also admitted to having stolen two mountain bikes, one during a burglary of a fenced area at the Austin Hospital. Those two thefts were committed on separate occasions in mid-April 2006.
23 May 2006: Theft, possession of an unregistered firearm
H was convicted of charges of theft, being a prohibited person in possession of an unregistered firearm and unlawful assault (two charges).
In the late afternoon of Tuesday 23 May 2006, H and his co-offender JS stole a bag of potting mix from a supermarket in Eaglemont. They left the store after being approached by a member of the supermarket staff, who took the potting mix from them and told them to leave.
They left the area but returned to the street outside the supermarket about 15 minutes later. When the member of staff again told them to leave, H replied “Get fucked, get fucked, come back with your meat cleaver butcher boy and I’ll come back with my bros and knife you, fuck off”. H then produced a silver coloured imitation handgun and pointed it at the victim’s chest. He said to the victim: “Come at me now you fucking big prick. I’ll pop one in ya”. He then pointed the imitation firearm at another person and threatened him also.
When H saw the police arriving, he hid the imitation firearm under a car parked on Allendale Road. H was arrested and interviewed by police. He denied the charge of theft, and admitted to possessing the imitation firearm but said that he did not know it was unlawful for him to possess it.[4]
[4]See the definition of “prohibited person” in s 3(1) of the Firearms Act 1996; H had been found guilty of an indictable offence in the preceding 12 month period and was therefore a prohibited person.
21 August 2006: Intentionally destroying property
H was convicted of intentionally destroying property.
In the late afternoon of 21 August 2006, H and his co-offenders obtained large rocks from a train line and threw them at the rear of a Boat Building Factory in Mordialloc.
Approximately nine of those rocks smashed through the fibreglass skylights of the factory and narrowly missed the 73 year old owner of the factory. The cost to repair the damage to the skylights, which formed the basis for the charge of criminal damage, was estimated to be $660. The owner of the factory phoned police, who attended a short time later.
A little time later, H’s group collected more large rocks from the railway line and, as they crossed the railway bridge at Mordialloc, threw them at two boats that were moored in the creek below. The offenders continued to throw the rocks despite the fact that a witness yelled at them to stop. That witness used a mobile phone to call the police and was able to provide police with a description of the offenders.
The two further charges of criminal damage relate to the damage to the window of one boat, and the damage to the windows and deck of the other boat. The owners of the two boats undertook the repairs themselves at a cost of $20 and $400 respectively.
H and others were arrested by police at the scene.
H was interviewed in the presence of a Youth worker and then released. He made some admissions during that interview.
22 February 2007: Recklessly causing serious injury, assault
H was convicted of recklessly causing serious injury, assault in company, assault by kicking, and behaving in an offensive manner.
In the evening of 22 February 2007, H and his co-offender, RM, and approximately 20 other youths were gathered on the footpath outside a Department of Human Services placement house in Evelyn Street, Clayton. The H and RM had been drinking alcohol throughout the day.
As the victim and his girlfriend walked along the footpath towards the group, the group parted to allow the victim and his girlfriend to walk through in single file. The victim and his girlfriend were not known to the group and did not provoke the other group in any way. As the victim passed by, H grabbed him around the throat, pushed him against a brick wall, and then punched him to the face at least twice, causing a laceration and soreness. At that stage, RM grabbed the victim by the shirt and threw him to the ground. H and RM then continued to punch and kick the victim, who curled up in an effort to protect himself. As the victim got to his feet, the two kicked him to the throat, causing injury.
People from the neighbouring houses managed to separate the offenders from the victim. They were then threatened by H and RM. When police arrived, H and RM fled into the placement house and hid in the ceiling, before then removing some roof tiles and hiding in the rear yard. They were observed by police and arrested.
When interviewed, H made some admissions but denied kicking the victim and denied hitting the victim very hard.
As a result of being assaulted, the victim received lacerations, bruising and redness to his left eye, and soreness to his throat, chest and hands. He was treated for those injuries at the Monash Medical Centre.
11 April 2007: Attempted theft
H was convicted of attempted theft.
In the late afternoon of 11 April 2007 H committed an offence of attempted theft by trying to steal a four pack of 440ml cans of Black Jack American Whisky and Cola from a licensed supermarket in Chelsea. He took the cans from a display area in the alcohol section of the store and put them into the bag of his co-offender, LF. Police attended and arrested H.
4 June 2007: Public order offences
H was convicted of the following offences, which were committed on 4 June 2007: entering the space between two railway platforms, failing to produce a valid ticket, stating a false name and address, use of offensive language on rail premises, and resisting an officer in the execution of his duty.
No details of the offences were provided to the Court.
11 March 2008: Robbery, armed robbery and recklessly causing serious injury
H was convicted of robbery, armed robbery and recklessly causing serious injury.
On the evening of Tuesday 11 March 2008, H and his friend and co-offender, LA, met and discussed a plan to find persons to rob.
At approximately 10.45 p.m., they armed themselves with Stanley knives and caught a train to Caulfield station. After getting off at that station, they followed their victim to a laneway which led into the grounds of Monash University. They then approached the victim from behind. H walked to the front of the victim and blocked his path while his co-offender took up a position behind the victim. Both concealed their faces with clothing.
Both then made intimidating demands of the victim. LA said “Don’t look at me, just give me your things”, and H said “Give me all your things”.
As a result of their conduct, the victim handed them his MP3 player and a mobile phone. H and LA then searched the victim’s wallet and removed $20 in cash. They then escaped on foot. During this incident, neither produced any weapon, although they each had a Stanley knife in their possession.
As a result of this offence, the victim was traumatised but not physically injured.
A short time later, H and LA attacked their next victim, a 26 year old male, when they followed him through a pedestrian underpass which exited at the intersection of Moodie and Leamington Streets in Caulfield.
They grabbed the victim from behind and pushed him against a fence. H then produced his Stanley knife and held it to the victim’s chest or throat region. Both H and LA then made demands for money. In response to those demands, the victim produced the only money he had, $5 in coins, and gave it to them. LA then grabbed the victim by the shirt collar and, in doing so, accidentally made contact with the knife blade that H was holding against the victim. As a result, LA dropped to the ground, bleeding from a deep cut he had sustained to his left little finger.
As H continued to scuffle with the victim, he used the Stanley knife to slash the victim’s face. H’s actions caused a 20 centimetre cut which ran from above the victim’s left eye down and across to behind the victim’s left ear. It penetrated through to the victim’s skull. The victim managed to break free and ran the short distance home. There, he was assisted by his housemates, who arranged for the attendance of an ambulance and the police.
H and LA were arrested by police a short time later. The police located the stolen MP3 player and mobile phone, as well as the Stanley knife that H had used to slash the victim’s face.
As a result of being slashed, the victim’s facial nerves on his left side were severed, the left side of his face was rendered immobile, and he could not open his left eye. He underwent surgery the following day to repair the damaged facial muscles and re-attach the facial nerves.
Photographs of the original injury and its residual effects were tendered. The “slashing” injury was a ghastly blow and the victim, in my view, was extremely fortunate not to have had his sight impaired or lost as a result of this attack. It appears that he will be left with residual scarring of his face.
Children’s Court hearing
At the time of the commission of the offence in March 2008, H was the subject of five youth supervision orders made on 28 June 2007 and 3 March 2008.[5] He had previously been placed on probation for a number of the offences.
[5]Four orders made on 28 June 2007 for a period of 12 months and one order on 3 March 2008 for a period of three months concurrent with the other Youth Supervision orders.
On 6 May 2008, the President of the Children’s Court heard a plea in respect of the charges relating to the offences committed on 11 March 2008. The plea of guilty on these charges triggered the operation of s 393(f) of the Act so that the Court was empowered to revoke the youth supervision orders and impose any sentencing order that it thought just. It also has the power, where the youth supervision order has expired (as is the case now), of imposing any sentencing order that the Court thinks just.[6]
[6]S 393(g)
Subsequent to the entry of a plea of guilty to all charges and a plea on behalf of H, the President imposed the following sentences in relation to the 11 March 2008 offences:
· On the count of armed robbery, H was convicted and detained in a youth justice centre for a period of 18 months. This was the base sentence.
· On the count of intentionally cause serious injury, H was convicted and detained in a youth justice centre for a period of 12 months with six months of that sentence to be served concurrently with the base sentence.
· On the count of robbery, H was convicted and to be detained in a youth justice centre for a period of nine months with a period of detention to be served part concurrently of six months.
· The total effective term was 27 months and the time held in custody was reckoned to be 55 days and that was to be counted as already served.
All of the remaining charges related to the five youth supervision orders current at the time of the March offending. Pursuant to s 393(f) of the Act, each of the youth supervision orders was revoked and sentences of detention imposed for these offences for periods of detention ranging from one month to four months. Those sentences were to be served concurrently with the base sentence and have all now been served by H. It was not suggested in the course of submissions before me that those sentences should be varied. Rather, the attack was on the total effective sentence imposed as a result of the 11 March 2008 offences.
Submissions of counsel on the appeal
I should, at the outset, say that I was greatly assisted by the submissions made on behalf of both H and the respondents. This is only the second hearing in the Trial Division of this Court involving an appeal from the President of the Children’s Court. I am indebted to counsel for their thorough and helpful submissions both as to the applicable legislation, case law and the circumstances surrounding this appeal.
H’s appeal was against sentence only. Ms Hodgson did not, as I have already said, contest that a period of detention was warranted. Rather, she argued that the period of detention was excessive and that, in the course of the hearing de novo, I should impose a sentence of considerably less severity, ultimately suggesting somewhere in the region of 18 months’ detention. She drew to my attention the primacy of the goal of rehabilitation, particularly given H’s age, the progress he had made whilst in detention and the risks associated with him remaining in detention for any lengthy period of time. She focused her submissions on the total effective sentence of 27 months imposed in respect of the March 2008 charges. In essence, her submission was that to sentence H to this period of detention at a crucial time in his life posed real risks to his future rehabilitation, which was a primary consideration of the Sentencing Act.
Mr Gamble SC, who appeared for the respondents, contended that the pattern of behaviour, culminating in the March 2008 charges, was one of escalation, notwithstanding numerous efforts to provide guidance and rehabilitation for H through different forms of orders and intervention. In effect, he submitted that the President had no option but to impose a period of detention and, given the gravity of the offences committed in March 2008, the sentence imposed by the President was appropriate.
Evidence on the appeal
On the appeal, the following material was tendered before me:
(a) Two Court reports prepared by Dr Adam Deakin, psychiatrist, undated but as a result of an examination on 31 March 2008.
(b) A pre-sentence breach report of Lynette Chan, case manager of the Youth Justice Program, dated 5 May 2008.
(c) Reports of Brian Minett, a youth worker who has been involved with H in an Outreach programme over the past 2½ years.
The breach report of Ms Chan is significant in that it indicates that there was little empathy on the part of H for the victim of his vicious assault in March 2008; indeed, to the point of stating that H believed that it was the victim’s fault. Ms Chan notes that, despite intensive assistance through youth justice supervision, Adolescent Forensic Health Services, and the Inside Out Programme over the past two years, H was still involved in a serious act of re-offending.
Ms Chan also noted that H’s behaviour had improved over the time that he had been in remand, and I was told on the plea that this had continued whilst he was detained at a youth justice centre. I do note Ms Chan’s conclusion “It is the writer’s assessment that [H] has a very limited victim empathy and has more focus on his self-preservation than a true understanding of the impact of his offending behaviour on others”.
Dr Deakin, consultant psychiatrist, examined H on 31 March 2008. He concluded that H had “a developmental history highlighted by early onset challenging behaviours, learning difficulties, possible ADHD and a obstructive hearing problem that was not diagnosed until he was aged 5/6”. He noted that H’s mother, notwithstanding her efforts, had been unable to effectively institute authority over H. He also noted that whilst H expressed regret and remorse, he was unable to empathise. I must say that I find his conclusion that H be placed on a probation order to be surprising, if not startling, given H’s history and the serious nature of these offences, particularly as probation has had no effect in the past.
Mr Minett is a social worker who has been involved with H for over two years. He also points in his reports to the lack of insight that H has and the fact that he takes no personal responsibility “and often blames other persons for his behaviour”. He has, over the past two years, had regular meetings with H, supporting him through the course of supervision orders. He has a concern that while H is kept in custody, he is exposed to new destructive behaviours. He is prepared to put in further work with H once he is released on parole. I found his reports illuminating, but also depressing, in that despite all his efforts as well as those of other agencies involved with H’s rehabilitation, H still perpetrated a very serious unprovoked attack upon an innocent person whilst the subject of the youth supervision orders.
The appropriate sentence
I am conscious of the fact that H has a loving and strong relationship with his mother and that it would be desirable to have him live at home with his mother. This is, I am afraid, counterbalanced by the fact that, having been given a number of opportunities to live with his mother and to receive counselling and assistance at a fairly intense level, he still committed a very serious crime on 11 March 2008. This crime was committed only eight days after he had been placed on his fifth youth supervision order and the injuries to the victim were serious.
I am also mindful of the cogent submissions put by Ms Hodgson on his behalf as to what may be the detrimental effects of H being detained at a youth justice centre for a relatively lengthy period. However, this also needs to be looked at in the light of H’s persistent re-offending. The level of his criminality has escalated, rather than decreased, and this during a period when he has been subjected to considerable assistance from public and private organisations to endeavour to halt his slide into violent criminal behaviour. In particular, within a year of April 2007, he had committed two assaults which involved hospital treatment of his victims; on the second occasion a vicious attack requiring surgical intervention.
I think that a critical aspect in the sentencing of H, particularly given at times his apparent lack of any real insight into his wrongdoing, is a need to ensure that he is aware that he must bear responsibility for what he has done over the past two years, and particularly in March 2008. There is also, in my view, a real need for public protection from the type of violent acts that H has perpetrated in the past, culminating in the attack on 11 March 2008.
I have also taken into account the totality of the offending in the light of the total effective term.[7] In my view, a period of 27 months’ detention is appropriate to H’s overall criminality over a period of two years.
[7]See R. v Piacento; R v Ahmed (2007) 15 VR 501 [37]
I am also satisfied that H’s actions on 11 March 2008 breached the terms of the five youth supervision orders and that it is, pursuant to s 393(g) of the Act, appropriate that the period of detention of 27 months should be served by him. The sentences imposed by the President on these charges was appropriate. I order that these sentences be served concurrently with the base sentence.
In summary, there is no reason to depart from the sentences imposed in the Children’s Court. Accordingly, I will dismiss the appeal and I propose to re-impose the sentences imposed by the President of the Children’s Court.
Orders
I declare that I am satisfied that there has been a breach of the five youth supervision orders and that, pursuant to s.393(g) of the Act, a period of detention should be imposed.
Subject to any application from counsel, I propose to make orders giving effect to the following:
(a) Dismiss the appeal.
(b) Set aside the orders of the President of the Children’s Court.
(c) On all counts I sentence H to the same periods of detention as imposed by the President with the same orders as to concurrency. To avoid any doubt, the total effective sentence is 27 months detention, with the base sentence of 18 months detention in respect of the armed robbery count of 11 March 2008;
(d) I declare that the period served by H to date to be 190 days calculated from 12 March 2008.
(f) I order the forfeiture and destruction of the Stanley knife the subject of the 11 March 2008 count.
For the purpose of s 412 of the Act, I make the following declarations:
(a) I am satisfied that no other sentence is appropriate.
(b) The offences are punishable by imprisonment.
(c) I have received and considered the pre-sentence report.
I direct that this statement of reasons be entered in the Court Register and that a copy be forwarded within 21 days to H, his mother and the respondents.
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