Im v McDevitt [No 2]

[2015] ACTSC 179

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

IM v McDevitt [No 2]

Citation:

[2015] ACTSC 179

Hearing Date:

26 March 2015

DecisionDate:

2 April 2015

Before:

Penfold J

Decision:

See [5] to [8] below.

Category:

Sentence

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – re-sentence of juvenile offender after successful appeal from Magistrates  Court upheld on basis that full-time custodial part of sentence too long having regard to offender’s age and rehabilitation prospects – most  sentences re-imposed in same form – new sentence suspended immediately, nearly half having been served in full-time custody.

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT)

Parties:

IM (Appellant)

Jason Luke McDevitt (Respondent)

Representation:

Counsel

Mr J Lawton (Appellant)

Mr M Reardon (Respondent)

Solicitors

Aboriginal Legal Service (NSW/ACT) (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 64 of 2014

1. For reasons set out in my decision on appeal from the Magistrates Court (IM v McDevitt [No 1] [2015] ACTSC 178), I must re-sentence IM for 30 offences, being:

(a)six aggravated burglaries;

(b)three burglaries;

(c)12 thefts;

(d)six taking or using a motor vehicle without consent;

(e)two obtaining financial advantage by deception; and

(f)one failure to appear on a bail undertaking.

1. The nature and circumstances of those offences are set out in the appeal decision.  As noted in that decision, the sentences as such were, with two exceptions, on the lenient end of the spectrum, but the 58% non-parole period set in the Magistrates Court was, in my view, manifestly excessive. The grounds for reaching that conclusion were, in summary: 

(a)that the offences were committed when IM, who had not previously been in custody, was 15 or 16;

(b)that IM was an indigenous youth who had grown up without a positive role model, his father having spent much of IM’s life in custody;

(c)that the material before his Honour indicated that IM was either or both very shy (as submitted by his counsel) or simply inarticulate even by the standards of 17‑year‑old boys, and that this may have explained his inability to express remorse or insight into his offending in a way expected by the pre‑sentence report author;

(d)that his Honour had found that IM had a supportive mother, no mental health concerns, and no substance abuse concerns, and accordingly appeared to have good prospects of rehabilitation, which should be promoted by suspending a significant proportion of the total sentence; and

(e)that the proportion of the total sentence not suspended was roughly 58% of the total sentence, a proportion falling well within the usual range of non-parole periods set for adult offenders, rather than within the usual range of pre-suspension custodial periods set for juvenile offenders with good prospects of rehabilitation.

1. An updated pre‑sentence report has been made available at short notice for today’s re-sentencing, for which I am grateful to Youth Justice. 

1. It indicates that IM’s behaviour has been excellent since he entered Bimberi, and that he is a model resident.  He has been…