Ha v Vince
[2014] ACTSC 106
•26 May 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | HA v VINCE |
Medium Neutral Citation: | [2014] ACTSC 106 |
Hearing Date(s): | 22 April 2014 |
DecisionDate: | 26 May 2014 |
Before: | Penfold J |
Category: | Appeal from Magistrates Court (criminal) |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – appeal from sentence imposed in Magistrates Court – offence of damage property – young person convicted and sentenced to three months imprisonment fully suspended – sentencing Magistrate had overlooked special requirements for sentencing young offenders – failure to have regard to significance of rehabilitation – failure to assess culpability having regard to maturity – failure to advert to state of development or family circumstances – failure to address requirement that prison for young offender may only be imposed as a last resort – appeal allowed. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – young person sentenced for offence of damage property – sentence of three months imprisonment – non-conviction order sought – availability of non-conviction order for serious offence – relevance of sentencing statistics in NSW Children’s Court – young person re-sentenced – no conviction recorded – good behaviour order made. |
Legislation cited: | Criminal Code 2002 (ACT), s 403(1) Crimes (Sentencing) Act 2005 (ACT), ss 17, 17(3), 17(4), Chapter 8A, ss 133B(b), 133C, 133D, s 133D(1)(a), 133G Crimes Act 1900 (NSW), s 195(1)(a) |
Cases cited: | Chin v Ryde City Council [2004] NSWCCA 167 R v Palu (2002) 134 A Crim R 174 |
Texts cited | Patriza Poletti and Georgia Brignell, ‘Sentencing for common offences in the NSW Children’s Court: 2010’ (Monograph 36, Judicial Commission of New South Wales 2012) |
Decision: | 1. The appeal is allowed. 2. The appellant will be re-sentenced. |
Parties: | HA ( Appellant) Jesse Ryan Vince ( Respondent) |
File Number(s): | SCA No. 85 of 2013 |
Introduction
HA has appealed against a sentence imposed by a Magistrate sitting in the Childrens [sic] Court on 18 October 2013. The sentence was imposed for an offence of damage property committed on 2 July 2013. The sentence was imprisonment for three months, fully suspended subject to an 18-month good behaviour order.
Background
At the time of the offence, HA was just over 17 years. The previous five years of his life had been unusual in a number of respects.
He had grown up in an intact and loving family. He showed early promise as a snowboarder and by the time he was a teenager he was competing internationally, and had realistic expectations of becoming a professional snowboarder. At the age of 15 he sustained fairly serious injuries in a training accident, and this apparently put an end to his snowboarding career aspirations. Before that, HA had already been introduced to alcohol, and after the accident he began experimenting with a wide variety of illicit drugs.
In submissions on appeal, counsel for HA described the next stage of his deterioration:
Over the following 18 months his behaviour deteriorated, and mental health and drug use issues emerged that put significant strain on the relationship with his parents. [HA] started skipping school, experimenting with drugs and generally causing his parents significant grief and concern. This deterioration culminated in July 2013 with [HA] going on a three-day "drug binge" and then committing the subject offence.
I note that there was evidence before the sentencing Magistrate showing that at least six months before the offence HA had been diagnosed with apparently significant depression and suicidal thoughts. Consultant psychiatrist Dr Rene de Monchy had reported in November 2012 that:
It is my impression that [HA] is suffering from depression, of which it is not quite clear which type, whether this is a Unipolar or Bipolar Depression, in view of his past most unusual and exhilarating career as a snowboarder and skateboarder. There are a number of very strong psychosocial stressors which aggravate the picture. Similarly, his substance dependence at this moment is of great concern. Therefore, there is also the possibility of a substance induced Mood Disorder in the background.
The sentencing
The offence was described by the sentencing Magistrate as follows:
On 1 July this year, you had an argument with your parents. You made threats directed towards them. Police were called. Your parents decided not to remain at the house that night because they were afraid you would carry out the threat you made earlier. You remained at the premises. You were told by your parents not to enter the house and to stay in the camper van that was parked out the front of the residence and at which you had slept in the past. The house was locked before your parents left and you did not have a key to the house.
A little after 5 am the following day, police were conducted a mobile patrol in the street when they observed that lights were on and windows had been smashed. You and another male person were inside the premises, but you ran away when police arrived. An inspection of the premises revealed extensive damage including the rear glass door smashed, windows smashed, black spray paint on floors, walls, ceilings, and other items in the house, holes knocked in walls, a flat screen television smashed, the porcelain kitchen sink smashed, curtains torn and removed and the home phone removed from the wall and smashed. Police estimate the value of the repairs to be in the tens of thousands of dollars. I am told by Mr McKenna, on your behalf, that the best estimate is $10,000.
It seems that HA spent nearly two weeks in custody before being bailed to attend Triple Care Farm.
His Honour noted:
(a)that aggravating factors included the fact that the offending took place “in a domestic violence context” in that the property damaged was his parents’ family home; that the damage caused was “very extensive and expensive to make good”; and that the offending “clearly goes well beyond a single event of lashing out in anger or frustration”;
(b)that the objective seriousness of the offending was in the “upper middle level for offences of this type”;
(c)that HA had entered an early plea of guilty, which indicated remorse and acceptance of responsibility as well as having a utilitarian value;
(d)that HA was 17 years old and had no criminal history;
(e)that although medical reports from a psychiatrist and a psychologist indicated diagnoses of depression, multiple drug use disorder and conduct disorder, as well as attempted self-harm, none of them “[went] so far as to demonstrate that any link, any causal connection, existed between your mental health state and your offending conduct”;
(f)that a Pre-Sentence Report and a report prepared by the Court Alcohol and Drug Assessment Service indicated an extensive history of polysubstance abuse and a “significant drug-using binge” leading up to the offence, which provided an explanation but not an excuse for HA’s behaviour and as to which his Honour said:
if a person chooses to take drugs, then they choose the consequences, including the consequences of their own drug affected behaviour.
(g)that it seemed that in retrospect, HA’s offending behaviour had shocked even him, and that his moral culpability for the offending was accordingly less than it would otherwise have been because he did not appreciate the potential consequences of his drug binge on his behaviour; and
(h)a recognition by HA of the significance of drug use in his offending, and the substantial progress made by HA at Triple Care Farm, both suggesting that he had good prospects of rehabilitation.
His Honour noted an application made on behalf of HA that he be dealt with under s 17 of the Crimes (Sentencing) Act 2005 (ACT) without recording a conviction, but refused the application, saying that the principal reason for this refusal was that:
whilst I have concluded that you have some reduced level of moral responsibility because of your drug binge at the time, I am not convinced that you did not have an occasion when, despite the effect of the drugs, to really appreciate the nature and effect of your conduct.
His Honour then indicated that, because the effect of the drugs did reduce HA’s moral culpability for the offending, he would receive a more lenient sentence than the significant term of imprisonment, with at least some significant part to be served by way of full-time detention, that his Honour considered would ordinarily be called for by “serious offending of this type”.
His Honour accordingly imposed a sentence of imprisonment for three months, which he explained as having been discounted by one month for the plea of guilty and a further two months to take into account the period HA had spent in custody and at Triple Care Farm in residential rehabilitation. The sentence was immediately suspended, and his Honour ordered HA to sign a good behaviour undertaking for a period of 18 months.
The appeal
Several appeal grounds were identified, but at the appeal hearing the respondent conceded that his Honour had fallen into error by overlooking the special requirements imposed by the Crimes (Sentencing) Act for the sentencing of young offenders, several of which were mentioned in particular appeal grounds. Accordingly, the other grounds (which taken together amounted to a claim that the sentence was manifestly excessive) were not pressed, and I do not discuss them further.
Sentencing young offenders
His Honour noted that HA was only 17 years of age, but did not refer specifically in any sentencing remarks to HA’s status as a young offender.
Chapter 8A of the Crimes (Sentencing) Act is entitled “Sentencing Young Offenders”. A young offender is a person who was under 18 when the offence was committed (s 133B(b)). The chapter makes provision for the sentencing of young offenders that differs in various ways from the provision made by the rest of the Act for adult offenders. Of specific relevance to the current appeal are the following:
133CYoung offenders—purposes of sentencing
(1) Despite section 7 (2), in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in section 7 (1).
(2) Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice.
133DYoung offenders—sentencing—additional relevant considerations
(1) In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters:
(a)the young offender’s culpability for the offence having regard to his or her maturity;
(b)the young offender’s state of development;
(c)the past and present family circumstances of the young offender.
(2) This section applies in addition to section 33 (Sentencing—relevant considerations).
133GYoung offenders—sentences of imprisonment
(1) This section applies if a court is sentencing a young offender to imprisonment under section 10.
NoteSection 10 allows a court to sentence an offender to imprisonment if satisfied that no other penalty is appropriate.
(2) The sentence of imprisonment must be a last resort and for the shortest appropriate term.
(3) The court must consider making a combination sentence consisting of—
(a)the sentence of imprisonment; and
(b)a good behaviour order with a supervision condition.
NoteThere is no provision for the setting of a nonparole period for a sentence of imprisonment imposed on a young offender (see s 64 (3), def excluded sentence of imprisonment).
(4) The court must not sentence the young offender to imprisonment for life.
Significance of rehabilitation
Section 133C permits a court sentencing a young offender to give more weight to the purpose of rehabilitation than to any of the other purposes of sentencing, and requires such a court to have particular regard to the principle of “individualised justice”.
His Honour did recognise the importance of rehabilitation for HA, but gave no indication in his sentencing remarks that he saw this as carrying any particular weight as against other sentencing purposes; nor was there anything in his sentencing remarks that indicated any particular focus on individualised justice.
Extra sentencing considerations
In addition to the matters that the court is in any case required to consider under s 33 of the Crimes (Sentencing) Act, s 133D adds extra sentencing considerations, being:
(a)the young offender’s culpability for the offence having regard to his or her maturity;
(b)the young offender’s state of development;
(c)the past and present family circumstances of the young offender.
His Honour paid considerable attention to HA’s moral culpability, but at no stage assessed that by reference to his maturity; although his Honour did accept that HA had not appreciated the possible effects of his drug binge on his behaviour, this does not seem to me to go as far as was required by s 133D(1)(a) given the background to HA’s offending.
Nor did his Honour address the question of HA’s state of development, although I would accept that the evidence before his Honour suggested that HA was probably more sophisticated (if no more mature) than many of the 17-year-olds who come before the courts.
His Honour did not make any particular comments about HA’s past and present family circumstances. HA’s family circumstances were privileged by comparison with many of the young people who come before the courts, and may not have provided any explanation for or mitigation of his offending behaviour; on the other hand the strength of the family support that had been and continued to be available to him, despite the fact that HA’s offence had apparently been aimed at his family, should have been relevant and probably significant in sentencing.
Imprisonment for young offenders
Section 133G reminds a sentencing court that, under s 10 of the Crimes (Sentencing) Act, a sentence of imprisonment may only be imposed if no other sentence is appropriate, and adds the further provision that, for a young offender, that sentence of imprisonment must be “a last resort and for the shortest appropriate term”.
I accept that if a prison term was appropriate at all, the three months imposed by the Magistrate may well have been the shortest appropriate term. However, his Honour noted that “serious offending of this type would ordinarily call for a significant term of imprisonment”, without finding explicitly that this case did call for a significant term of imprisonment. More importantly, he made no reference to the fact that, for a young offender, such a sentence must be “a last resort”.
It seems to me that in dealing with a young offender who is also a first offender, a conclusion that there is no alternative but to resort to a prison sentence needs to be at least articulated, even if there are cases where such a conclusion requires no further explanation beyond the general nature and circumstances of the offence and the offending behaviour. In the circumstances of the current case, and having regard in particular to his Honour’s findings about HA’s good prospects of rehabilitation, it is hard to see any basis for his Honour to conclude that he was driven to adopt the last resort of a prison sentence.
Conclusions – sentencing young offenders
I am satisfied not only that the sentencing Magistrate did not advert explicitly to the provisions of Chapter 8A of the Crimes (Sentencing) Act, but also that his Honour did not have regard to the special requirements of that chapter in at least the respects identified at [15] to [23] above.
Appeal allowed
As noted, his Honour’s failure to take account of those requirements is conceded by the respondent to have been a sentencing error. Furthermore, as is apparent from my comments to the effect that there was no basis articulated or obvious for his Honour to adopt the last resort of a prison sentence, I consider that it is necessary to re-sentence HA, and to a sentence that does not include a prison term. Accordingly, the appeal must be allowed.
Re-sentencing
As to the appropriate re-sentence, there are a variety of sentencing options available apart from a prison sentence, but once a prison sentence is excluded as a possibility, the significant decision to be made in this case appears to be whether it would be appropriate to make a non-conviction order under s 17 of the Crimes (Sentencing) Act, or whether it is necessary in the circumstances to record a conviction against HA, with or without the imposition of additional non-custodial punishment.
The Crimes (Sentencing) Act sets out the relevant considerations for the making of a non-conviction order in ss 17(3) and (4), as follows:
(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a)the offender’s character, antecedents, age, health and mental condition;
(b)the seriousness of the offence;
(c)any extenuating circumstances in which the offence was committed.
(4)The court may also consider anything else the court considers relevant.
Availability of non-conviction order
I have already referred to HA’s character, antecedents, age, health and mental condition. None of these would seem to preclude the making of a non-conviction order. HA’s age, absence of prior offending, and prospects of rehabilitation all seem to favour the making of such an order. The seriousness of his offence militates against the making of a non-conviction order, while not precluding it; see, for instance, Chin v Ryde City Council [2004] NSWCCA 167. In that case the NSW Court of Criminal Appeal considered the similar NSW provision, s 10 of the Crimes (Sentencing Procedures) Act 1999 (NSW), which unlike the ACT provision specifies “The trivial nature of the offence” as one of the criteria for consideration in determining whether to refrain from recording a conviction. The Court said at [38] that this did not prevent the making of such an order where an offence is not trivial.
On the other hand, I would regard the circumstances of HA’s descent into depression and dangerous drug abuse as extenuating circumstances.
The fact that the victims of HA’s offending, his parents, do not wish him to be severely punished is not of itself a basis for leniency in sentencing (R v Palu (2002) 134 A Crim R 174 at [37]). However, their attitude may well reflect a view that the offence involved lashing out by a child who had been pushed to his limit (including of course by his own ill-judged behaviour) rather than a deliberately criminal act of anger by an adult who should have been able to find other outlets or solutions for his distress; that would be an assessment which they would be particularly well-placed to make.
In anticipation of re-sentencing, counsel for HA tendered various documents evidencing HA’s progress since he was sentenced in July last year. Those documents included:
(a)an assessment of HA made earlier this year and dated 17 April 2014 by Dr Lev Fridgant, described as “Child, Family and Adult Psychiatrist”, which indicates that HA suffers from previously undiagnosed Attention Deficit Hyperactivity Disorder of “a very high severity”, reports that medication for this disorder has produced a “clinically dramatic improvement in levels of concentration, temper regulation and impulse control” as well as “a dramatic reduction in irritability and aggression”, and reports that ongoing counselling and other treatment is being arranged;
(b)a report from Kurt Eyding of Triple Care Farm, who speaks highly of HA’s progress at that facility, mentioning his maturity and insight, his efforts to comply with all requirements, his motivation and focus, and his commitment to gaining employment and “living a productive and meaningful life”;
(c)a letter of support from HA’s mother, noting among other things:
While I will always be proud of [HA’s] snowboarding achievements, I am prouder of his recent efforts to undertake rehabilitation at Triple Care Farm, Robertson, NSW and his subsequent resolve and actions to put his life ‘back on track’.
(d)a letter from HA, demonstrating both an awareness of the challenges he faces and a determination to meet those challenges, and concluding:
I still often have cravings for drugs, but I now have the skills, tools and support to cope. I am also able to appropriately deal with my emotions, particularly anger. I started writing rap lyrics in Triple Care Farm and I still use that writing as a creative outlet for my feelings.
Perhaps most importantly, there is not a day when I am not sorry or ashamed of the damage I did to my family home, and the pain I caused to my parents over many months. I do not know how they coped or why they stick with me but am so glad they have.
Your Honour, I know what I did was very wrong and also caused emotional and financial pain to my parents. I am doing everything in my power and control to make sure I never go back to where I was a year ago. I have experienced that side of life and know for certain it is not where I want to be.
Counsel also provided a publication of the Judicial Commission of NSW, ‘Sentencing for Common Offences in the NSW Children’s Court: 2010’ (Patriza Poletti and Georgia Brignell, Monograph 36 – March 2012). That publication analyses the sentencing for 20 common offences dealt with in the NSW Children’s Court, one of which is “destroy or damage property”. Under s 195(1)(a) of the Crimes Act 1900 (NSW) the maximum penalty for that offence is five years imprisonment, in contrast to the ACT offence with which HA was charged (s 403(1) of the Criminal Code 2002 (ACT)), the maximum penalty for which is 10 years imprisonment.
The statistical information provided indicated that in NSW a high proportion of young offenders were dealt with for the property damage offence by:
(a)the making of a good behaviour order (26.7%);
(b)the making of a probation order (10.4%); or
(c)the dismissal of the charge, with or without a caution and sometimes after a youth justice conference (a total of 41.8%).
However, it seems that the jurisdiction of the NSW Children’s Court does not include the power to impose a prison term for this offence, so there is a limit to the relevance to the present case of any conclusions that might be drawn from these statistics.
Conclusion – re-sentencing
Having regard to HA’s progress in rehabilitating himself and the origins of his offending behaviour (including his mental health diagnoses as well as the other aspects of his history), I have come to the conclusion, although not without some hesitation, that this is an appropriate case in which to make a non-conviction order consisting of a good behaviour order. That good behaviour order should operate for two years, to be a constant reminder to HA of the need to maintain his determination never to go back to drug abuse. Whether there needs to be any ongoing supervision of HA is something I shall discuss with counsel before the re-sentencing is finalised, but I note the comment of counsel for the respondent that it is desirable to avoid anything that might bring HA back into contact with other young offenders.
| I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: | |
Representation: | Counsel: Mr S Whybrow ( Appellant) Mr M Thomas ( Respondent) |
| Solicitors: Ben Aulich & Associates ( Appellant) ACT Director of Public Prosecutions ( Respondent) |
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