Jacob Plum v The Queen (No 2)

[2016] NSWDC 163

District Court

New South Wales

Medium Neutral Citation:	Jacob PLUM v R (No 2) [2016] NSWDC 163
Hearing dates:	20 & 26 November 2015
Date of orders:	22 January 2016
Decision date:	22 January 2016
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	1. The appeal is upheld. 2. The young person, Mr Jacob Plum, is found guilty and sentenced to be detained for 12 months to commence on 31 October 2015 and expiring on 30 October 2016 with a non-parole period of 2 months, 3 weeks, 2 days. The offender is first eligible for parole on 22 January 2016.The offender is to be released to supervised parole when the non-parole period expires. The relevant agency for the purposes of supervision is Orange Juvenile Justice Office. 3. Upon release on Parole the offender is subject to the following conditions : a. To be of good behaviour; b. That he lives with his mother in [address]; c. To notify the Registrar of Orange District Court of any change; d. That he accept supervision by the Juvenile Justice Service and accept all reasonable recommendations and directions of any officer of that service. 4. This sentence is concurrent with other sentences being served by the offender. 5. Order that Mr Jacob Plum be released to parole today.
Catchwords:	CRIMINAL LAW – appeal – appeal against sentence – juvenile offender aged 15 – destroy or damage property – aggravated break and enter in company – offender diagnosed with ADHD – improvement in attitude towards schooling – positive report from Juvenile Justice – appeal upheld – non-parole period varied – immediate release on parole – offender to reside in Orange
Legislation Cited:	Crimes (Appeal and Review) Act 2001
Category:	Principal judgment
Parties:	Mr Jacob Plum (Appellant) Regina (Respondent)
Representation:	Solicitors: Ms Hubbard (for Director of Public Prosecutions (NSW)) Ms R Pettet (for Appellant)
File Number(s):	2015/14396; 2015/95785; 2014/79046; 2014/6825
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender. Identifying information has been removed from this version of the remarks to comply with the statute and the offender's name has been replaced with a pseudonym (which is a colour).
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 31 October 2015 File Number(s): 2015/14396; 2015/95785; 2014/79046; 2014/6825

Judgment

1. I gave a judgment in this young man’s case in Orange when I was on circuit. That was on Thursday 26 November 2015. I adjourned the case to today. I am sitting in Sydney now and have the young man whose name is Mr Jacob Plum [a pseudonym] appearing by way of AVL from Orana Juvenile Justice Centre. His legal representative Ms Pettet is appearing by telephone and the Director of Public Prosecutions is represented by Ms Hubbard who is also appearing by telephone.

2. Ms Pettet asked her client Mr Plum some further questions and Ms Hubbard tendered an up to date report from Juvenile Justice. The report was positive. I need not repeat what I have set out in the earlier judgment but one thing I can say is that the plan for Mr Plum to move to Walgett with his mother has changed. He and his mother think that he would be better off staying in Orange and starting school there. The report says that he has been prescribed some medication called Concerta as well as Melatonin.

3. Whilst he has been in custody the report says that Mr Plum has been involved in some sports and has “displayed good sportsmanship whilst participating in recreational activities”. The report says that there are programs in Orange available for him including one run by the PCYC and another one called Mission Australia Joint Support Program. Justice Health have been monitoring Mr Plum because of his condition of ADHD and have advised Juvenile Justice “that Mr Plum has displayed improvement at school as he can now stay on task and maintain a consistent attitude”. There can be arranged a reference to the community intervention team clinician. Mr Plum has “agreed to a head space referral upon his release for the purpose of completing anger management counselling”.

4. The report concludes that Mr Plum felt that “spending time in custody has assisted him to identify the need for positive change”. He is now seeking “to change his life” as Mr Plum himself says. He wants to “cease his offending behaviour”. His time in custody “has allowed him to think about the direction his life was going”. Juvenile Justice will maintain their supervision if he is released. The report was authored by two people. One is Naomi Roberts, a Juvenile Justice caseworker who gave evidence before me in Orange and whose evidence was impressive and helpful. The other was the Assistant Manager at Orange, Shane Cunynghame.

5. When Ms Pettet called her client to give evidence today he again impressed me as a witness. Often judges come across cases where reports contain promises and reported intentions to change lives around. This report is the same. Often, however, an offender is not as clear about that when answering questions. Mr Plum is an exception. He seems to me to be exceptionally articulate and insightful for a 15-year-old boy. Often adult offenders do not display the same insight that he seems to have gained in his short life. When asked questions he usually does not answer in a few words but explains why he is thinking particular thoughts or has particular intentions or ambitions. It also seems that he understands and takes on, as part of his own insight, advice that he has been receiving and hearing from others.

6. As I said, the intention is that he will stay in Orange. He will go back to the [name of school]. That starts next Thursday 28 January 2016 and Year 10 will start the following day. He ultimately wants to go to TAFE. He would like to study a course which may lead him to work as a beautician or in make-up - that kind of field. He has an interest in that. He also wants to obtain his L plates in due course.

7. Cross-examined by Ms Hubbard, Mr Plum elaborated on how he would deal with challenges from his mates when he is outside. He explained that he has had enough of being in custody and being away from his mother and does not want to go back. He explained how the drugs and alcohol he used to take mess with his head and he is now feeling fit and has “the power not to do this stuff”.

8. I am going to order Mr Plum’s release today on parole so that he can go home to his mother in Orange and get himself ready for school next week. Judges know from their experience that being out on parole will be a challenge for any offender. Mr Plum is no exception. Being on parole will be a challenge. He will need lots of support when he is back in the community. The report refers him to various agencies that will be able to support him. He also has the medication that has been prescribed. His doctor is in Orange as well. Everything seems to be in place to give him a very good chance of making a success of his period on parole. It is now up to him of course but I am encouraged by the insight that he has shown and articulated by his words.

9. So the formal order I make in this case is this. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by varying the sentence. The sentence is varied by fixing the non-parole period to commence on 31 October 2015 but to expire today 22 January 2016. The balance of parole will commence tomorrow 23 January 2016 and will expire on 30 May 2016. I order his release on parole today. The conditions of the parole are these-

1. That he be of good behaviour.

2. That he lives with his mother in [address].

3. That he accepts supervision by the Juvenile Justice Service and accepts all reasonable recommendations and directions given by any officer of that service.

HIS HONOUR: Ms Hubbard are there any other conditions? I can go through the list of all these places of referral but really the Juvenile Justice people are going to organise that and so far as my order’s concerned he has to accept their recommendations and directions. They’ll put them into place. Ms Pettet?

PETTET: Yes I think that’s - because if they say to do something and he doesn’t do it well then he’ll be in breach of his parole. I think probably that’s enough your Honour.

HUBBARD: Nothing further from the Crown your Honour.

HIS HONOUR: So the main one is good behaviour so he’s got to stay out of trouble. He’s got to live at home so that they know where he is. And really he’s got to be supervised and accept their recommendations and they may include “look you’ve got to see your doctor and get your up to date script or you’ve got to - we want you to go to Mission Australia” or arrange something through Head Space and he’s got to do that. Look, make sure you turn up at the school and things like that. All right.

10. Mr Plum you have won your case. You have won your appeal. Your sentence is still the same. It’s one year but instead of the non-parole period finishing in May this year it’s finishing today. Now did I get those dates right Ms Hubbard, the 12 months--

HUBBARD: It should expire the full sentence on the 30 October 2016.

HIS HONOUR: Yes I got that wrong, you are right.

11. I amend the order so that the overall sentence expires on 30 October 2016.

HIS HONOUR: Mr Plum you’ve won your case, you’ve won your appeal. The sentence of 12 months is still the same, the control order. That started 31 October last year and will expire 30 October this year. So you’re still under sentence. You’ve got to understand that. But instead of having a six month non-parole period where you’ve got to stay in Orana for six months I’ve pulled that in to today. So you’ve got a non-parole period of about two and a half months and I’ve ordered your release today.

12. The conditions. You don’t just say “that’s it” you walk out, because you’re on parole until 30 October this year. You’re on parole, so you’re still under sentence, you’re on parole in the community. The conditions of your parole are that you’ve got to stay out of trouble, that’s what good behaviour means. No smoking dope, no drinking underage, no getting into brawls, no breaking and entering that sort of stuff that you used to do. That’s what good behaviour means.

13. The other condition is that you live with your mum where she is.

14. I will make it an additional condition if you change your address then you’ve got to let the court know at Orange, the Local Court know at Orange. That is another condition.

OFFENDER: Yes your Honour.

HIS HONOUR: And the last condition’s probably in a sense the most important and that’s that Juvenile Justice will supervise you. Now they know what they’re doing. You probably know that much better than I do and they know what they’re doing with young people. I expect it helped you a lot in there and you’re helped to the extent now that you want to get out and put it into practice and that’s a very good thing. I repeat you are an impressive young man and you’ve got a good future, and you just put this behind you. And I also repeat that it’s not going to be easy, you’re going to need help. It’s not going to be easy out there and you’re going to run into trouble and find that choices are hard. Let them help you. Don’t be put off by the first setback. Let them help you. They know what they’re doing. So if they suggest you go and see a doctor or go to Head Space or go to Mission Australia then you do it. Now does that all make sense?

OFFENDER: Yes your Honour it all makes sense to me now.

HIS HONOUR: Good. Now I’ll check with your lawyer Ms Pettet how does he - no he doesn’t have to sign his parole, he doesn’t have to sign anything because it’s not a bond am I right?

PETTET: I think that’s right your Honour. Then the Juvenile Justice they will organise his transport back to Orange. Yep. They may just need a copy of it before he can be released.

HIS HONOUR: Okay my associate’s nodding she will give you something to sign and the court officer will find out or my associate will. Juvenile Justice Officer fax or email, what’s easier?

JUVENILE JUSTICE OFFICER: Email info to Orana your Honour.

HIS HONOUR: We’ll get it. We’ll contact you and we’ll email the orders so that you can then act on them.

All right Mr Plum have you got any questions that you want to ask? I’m not saying you should, I’m just checking.

OFFENDER: I just wanted to say thank you to everyone that helped me today and thank you your Honour for doing his for me, I appreciate it.

HIS HONOUR: You deserve a chance because you’ve made good progress and Ms Pettet has helped you. The prosecution’s been very even handed. And of course your mum’s your biggest help.

OFFENDER: Thank you your Honour.

HIS HONOUR: Thanks very much. I’ll now disconnect from everyone. Thank you Ms Pettet and thank you Ms Hubbard.

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Decision last updated: 09 August 2016