Police v Axl Joseph (a pseudonym)
[2025] ACTCC 3
•28 August 2025
CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Axl Joseph (a pseudonym) |
Citation: | [2025] ACTCC 3 |
Hearing Date: | 11 July 2025 |
Decision Date: | 28 August 2025 |
Before: | Magistrate Stewart |
Decision: | See [189-207] |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence – Australian Capital Territory Childrens Court - sentencing of young offenders – parity – offending whilst on conditional liberty – totality – Aboriginal offenders – Bugmy – imprisonment only appropriate sentence – significant time in custody – partially suspended sentence of imprisonment - tension in bail decisions - tension when sentencing young people for serious criminal offending. |
Legislation Cited: | Bail Act 1992 (ACT) Children and Young People Act 2008 (ACT) Court Procedures Act 2004 (ACT) Crimes Act 1900 (ACT) Crimes (Sentencing) Act 2005 (ACT) Magistrates Court Act 1930 (ACT) Road Transport (Safety and Traffic Management) Act 1999 (ACT) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37 DPP v D’Alessandro (No 2) [2025] ACTSC 275 DPP v Baker (a pseudonym) [2025] ACTSC 196 DPP v Kaye (a pseudonym) [2025] ACTSC 169 DPP v Swain (a pseudonym) (No 2) [2025] ACTSC 209 DPP v Tamayo-Del-Solar (No 2) [2025] ACTSC 372 DPP v Valentino (a pseudonym) [2024] ACTSC 140 Police v Axl Joseph [2023] ACTCC 1 Police v Jarod Bender (a pseudonym) [2025] ACTCC 1 R v BS-X [2021] ACTSC 160 R v Fernando (1992) 76 A Crim R 58 R v Massey (No 3) [2021] ACTSC 156 R v Rosewarne [2021] ACTSC 217 Thompson v The Queen [2018] ACTCA 2 Thorn v Laidlaw [2005] ACTCA 49 |
Parties: | Director of Public Prosecutions (Prosecution) Axl Joseph (a pseudonym) (Young Person) |
Representation: | Counsel C. Daly (Prosecution) R. Brandon-Baker (Young Person) |
| Solicitors ACT Director of Public Prosecutions (Prosecution) Legal Aid ACT (Young Person) | |
File Numbers: | CH 246, 247, 248, 251 of 2024 CH 409, 410 of 2024 CH 799, 800, 801 of 2024 CH 1003,1004 of 2024 CH 1257, 1258, 1259, 1260, 1263, 1265, 1267, 1271 of 2024 CH 1514, 1515, 1516 of 2024 CH 73 of 2025 CH 106 of 2025 CH 388, 389, 390, 391 of 2025 CH 328, 329, 330, 331 of 2025 CH 944, 945, 946 of 2025 |
MAGISTRATE STEWART:
A. The issues
1․This decision concentrates on the following issues:
(a)Sentencing a young offender who is aging out of the youth justice system;
(b)Serious criminal offending whilst subject to conditional liberty;
(c)The causative effect of trauma and social deprivation upon a young person’s capacity to rehabilitate;
(d)The tension between refusing bail to safeguard against the risk of re-offending and granting bail in observation of the youth justice principles; and
(e)The tension between the requirement to observe the principles of sentencing and the requirement to give primary consideration to rehabilitation of young offenders[i].
B. The charges and their facts
2․This decision deals with eight series of multiple charges. Axl (a pseudonym) has accepted full responsibility for his criminal offending by entering guilty pleas to each of the charges. It is easier to follow the series of offending by including factual summaries along the way.
3․It is important to note that Axl was sentenced for an earlier significant series of criminal offending on 7 September 2023: Police v Axl Joseph [2023] ACTCC 1. It is unusual to commence a sentence decision by referring to an earlier sentence – however in this matter it is important because the timing and outcomes of those sentences have a repetitive influence on this decision.
4․The interaction of bail and re-offending is a feature of this decision. The chronological detail of bail decisions has been included to inform the reader.
Series one:
(a)CH 409/2024 – Aggravated Burglary – Intent to Steal in contravention of s 312 of the Criminal Code 2002 (ACT) (‘CODE’) (maximum penalty 2000 penalty units or 20 years imprisonment or both).
(b)CH 410/2024 – Ride Motor Vehicle without Consent in contravention of s 318 of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
5․These offences occurred on 18 December 2022. The first time that Axl appeared before the Court on these allegations was 3 June 2024. This is a significant and unexplained delay in the commencement of proceedings that (potentially) prevented this series from being dealt with in Axl’s September 2023 sentence.
6․At 7.11am on 18 December 2022, ACT Police received a report that a Jeep Cherokee and a black Audi were stolen from the residence of Mr and Mrs Omran in Dunlop. The car keys and wallet were missing from inside the house. Axl and two co-offenders entered the residence without consent (CH 409/2024).
7․The black Audi was found by police at 2.28pm that day. The facts do not note any damage to the vehicle. Police arrested three young people later that day. One of the co-young people was in possession of a telephone that contained ‘Snapchat’ video footage of Axl driving the stolen Audi (CH 410/24). Axl was charged as a rider and not the driver.
8․When Axl was charged with the series one offences he was already before the Court facing some of the other charges that form part of this decision. The alleged behaviour was already old. This explains why the laying of the series one charges did not interfere with Axl having his bail continued.
Series two:
(a)CH 246/2024 – Minor Theft in contravention of s 321 of the CODE (maximum penalty 50 penalty units or 6 months imprisonment or both).
(b)CH 248/2025 – Drive Motor Vehicle without Consent in contravention of s 318 of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
(c)CH 251/2025 – Unlicenced – Licence never held (repeat offender) in contravention of s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (maximum penalty six months imprisonment or 50 penalty units).
9․These offences occurred on 16 February 2024, while Axl was subject to a bail undertaking for a minor theft charge. Axl was also subject to two suspended sentence orders of imprisonment (SSOs) and a good behaviour order (GBO) that were previously imposed on 7 September 2023 in Police v Axl Joseph [2023] ACTCC 1.
10․At 6.00am on 16 February 2024 a burglary occurred at a residence in Narrabundah where a Chanel wallet and bag containing bank cards were taken. Keys to a Porsche, and the Porsche itself were also taken.
11․At 6.37am, Axl was seen driving the Porsche in Casey (CH 248/2024).
12․Axl then attended a 7-Eleven petrol station In the Porsche. He filled up with $111.29 of fuel and drove off without paying (CH 246/2024) (this portion of driving being a continuation of CH 248/2024). The Porsche was recovered at 8.15 am. No damage was alleged.
13․Axl was unlicenced at the time (CH 251/2024).
14․Axl was first before the Court on 17 February 2024 on this series of offences. He was refused bail on that date and eventually granted bail on 20 May 2024.
Series three:
(a)CH 1003/2024 – Joint Commission Theft in contravention of s 45A of the CODE (maximum penalty 1000 penalty units or 10 years imprisonment or both).
(b)CH 800/2024 – Aggravated Burglary – Intent to Steal in contravention of s 312 of the CODE (maximum penalty 2000 units, 20 years imprisonment or both).
(c)CH 1004/2024 – Joint Commission Theft in contravention of s 45A of the CODE (maximum penalty 1000 penalty units or 10 years imprisonment or both).
(d)CH 799/2024 – Take motor vehicle without authority in contravention of s 318 the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
(e)CH 801/2024 – Unlicenced – Licence never held (repeat offender) in contravention of s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (maximum penalty six months imprisonment or 50 penalty units).
15․These offences occurred on 19 and 20 June 2024. Axl was subject to a one month-old bail undertaking and remained subject to two SSOs and a GBO at the time of these offences.
16․At 3.34pm on 19 June 2024, Axl and four co-offenders entered a Beer Wine Spirits (BWS) store wearing hooded jumpers and face coverings. They ran through the aisles and swarmed the shop and stole alcohol worth $926.00. They fled the store shortly thereafter. Axl was captured on three sets of CCTV footage (CH 1003/2024).
17․At 1.53am on 20 June 2024, Axl and five co-offenders approached a private residence in Weetangera (Mr Bakthavatchalu’s residence). Upon realising that the door was unlocked, Axl and a co-young person entered the house where Mr Bakthavatchalu, his wife and his two young children were sleeping (CH 800/2024). They searched the house until they found car keys to a Ford Ranger which was parked outside. Axl was charged on a joint commission basis of being part of the taking of car keys, $250.00 cash from Mr Bakthavatchalu’s wallet and the garage fob (CH 1004/24).
18․Axl took the Ranger keys out of the house and entered the driver’s seat of the Ranger without permission. Hedrove off with three other young co-offenders in the car (CH 799/24).
19․Axl was unlicenced at the time (CH 801/24).
20․At 2.02am, two of Axl’s co-offenders returned to the property and stole the BMW and drove it away in convoy with the Ranger. Axl continued to be driving whilst unlicenced (also CH 801/24).
21․The Ranger was located at 5.40am that day. No damage to the ca was alleged.
22․Axl was arrested on 20 June 2024 and came before the Court on 21 June 2024. He did not apply for bail and bail was formally refused. He remained in custody until he was granted bail on 24 September 2024. Bail was not opposed by the prosecution.
Series four:
(a)CH 1267/2024 – Fail to appear after bail undertaking in contravention of s 49(1) of the Bail Act 1992 (ACT) (maximum penalty 200 penalty units or 2 years imprisonment or both).
(b)CH 1257/2024 – Ride/Drive Motor Vehicle without Consent in contravention of s 318 of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
(c)CH 1265/2024 – Obtain Property by Deception in contravention of s 325 of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
(d)CH 1259/2024 – Attempted Aggravated Burglary in contravention of s 312 of the CODE (maximum penalty 2000 penalty units or imprisonment for 20 years or both).
(e)CH 1258/2024 – Attempted Aggravated Burglary in contravention of s 312 of the CODE (maximum penalty 2000 penalty units or imprisonment for 20 years or both).
(f)CH 1260/2024 – Joint Commission Aggravated Burglary – Intent in contravention of s 312 of the CODE (maximum penalty 2000 penalty units or imprisonment for 20 years or both).
(g)CH 1263/2024 – Joint Commission take Motor Vehicle without Consent in contravention s 318 of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
(h)CH 1271/2024 – Ride/Drive Motor Vehicle without Consent in contravention of s 318 of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
23․These offences occurred between 27 September 2024 and 29 September 2024. At the time of the offences, Axl was subject to a three-day old bail undertaking and a GBO.
24․On 27 September, Axl failed to appear before the Children’s Court in accordance with a Bail Undertaking entered into in February (CH1267/24). The bench sheets show that this appearance was for a check-in in the Warrumbul Court (a circle sentencing Court for Aboriginal and Torres Strait Islander young people).
25․At 3.20am on 28 September 2024, CCTV footage captured a red Audi stop and park across the road from a private residence in Gungahlin (Mr Castillo’s residence). Two people exited the vehicle and crossed the road towards Mr Castillo’s residence. Mr Castillo’s parked black Audi then left the residence and formed a convoy with the red Audi.
26․The following morning, Mr Castillo saw that his back door was open and that his black Audi, his keys and his wallet were missing. He also received a notification that his bank card was used for a transaction at a 7-Eleven in Holt earlier that morning at 4.14am.
27․CCTV footage showed Axl and his co-offender attend a service station in Holt in the red and black Audis at 4.12am. Axl was captured on footage getting out of the red Audi (CH 1257/24). He filled the Audi up with $30.00 of fuel and paid for the fuel using Mr Castillo’s credit card (CH 1265/24).
28․At 4.31am on 29 September 2024, the stolen black Audi containing Axl and 3 other co-accused arrived at a residence at Temple Terrace in Denman Prospect. Axl and one other offender gained access to the rear of property, while two other co-accused attempted to gain access through the front. Entry was not effected (CH 1259/24).
29․The four offenders then turned their attention to another home across the road. Axl climbed on to the first story balcony whilst the three co-offenders kept a look out (CH 1258/24). Simultaneously, one of the co-accused placed his hand over the door video camera to hide themselves. The four offenders became startled and ran back to the black Audi and fled the scene.
30․Sometime between 4.30pm on 28 September and 6.15am on 29 September, the four co-accused unlawfully entered a property in Yarralumla and stole keys to a grey Aston Martin, a silver Bentley and a grey Porsche (CH 1260/24).
31․The four co-accused took the Bentley and Porsche (CH 1263/24) and those cars were later seen driving in convoy with the black Audi.
32․At 6.15am, police received a report from a member of the public that the black Audi was abandoned at a property in Weston. CCTV footage depicted the occupants getting out of the black Audi (all of Axl’s riding in the black Audi is CH 1271/24) and moving the items contained within the Audi to the Bentley. The co-accused then fled in the Bentley and Porsche.
33․One of the co-accused was heard to say: “We need to go back and get the Aston Martin”. The co-accused then returned to the Yarralumla residence and took the Aston Martin (part of CH 1263/24).
34․At 8.05am that day, the Porsche and Aston Martin were captured on CCTV entering Biraban Place, Macquarie. The four co-accused were identified walking towards nearby Liverpool Street. The Porsche was seen leaving Biraban Place following a silver hatchback at 8.42am.
35․The Bentley, Aston Martin and Porsche were located by Police abandoned in various locations in Canberra that day. The facts do not allege any damage to those vehicles.
36․Axl was arrested on 10 October 2024. He did not apply for bail and bail was formally refused. He applied for bail on 5 December 2024. Bail was opposed by the prosecution. He was granted bail by the Court on that day.
Series five:
(a)CH 1514/2024 – Burglary – Intent to Steal in contravention of s 311 of the CODE (maximum penalty 1400 penalty units or 14 years imprisonment or both).
(b)CH 1515/2024 – Take Motor Vehicle without Authority in contravention of s 318(1) of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
(c)CH 106/2025 – Unlicenced – Licence never held in contravention of s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (maximum penalty 20 penalty units).
(d)CH 1516/2024 – Unlawful Possession of Stolen Property in contravention of s 324(1) of the CODE (maximum penalty 50 penalty units or 6 months imprisonment or both).
37․These offences occurred on 17 December 2024. At the time of the offences, Axl was subject to a 12-day old bail undertaking and a GBO.
38․At 7am that morning, Mr Bettiol woke at his residence in Ford to notice that his house had been broken into. He found the rear sliding door open and that the screen door had been cut. His house keys, his car keys, his wallet, his wife’s handbag and his red Mazda were missing. Axl was captured on CCTV footage at 2.23am entering and leaving the residence (CH 1514/24).
39․At 1.35pm, the Mazda was spotted by Police about 220 metres from Axl’s residence (CH 1515/24 and CH 106/25)).
40․The two sets of keys from the premises in Ford were found in Axl’s room (CH 1516/24).
41․Axl was arrested on 17 December 2024. Axl applied for bail on 18 December 2024. The prosecution opposed bail and the Court granted bail.
Series six:
(a)CH 73/2025 – Ride/Drive Motor Vehicle without consent in contravention of s 318 of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
42․This offence occurred on 28 December 2024. Axl was subject to a 10-day old bail undertaking and a GBO.
43․At 4.50am that morning, a blue Hyundai and a white Genesis were reported stolen from a burglary at a Nicholls residence. At about 6.40am Axl was seen getting into the Genesis by a case worker.
44․At 8.15am a witness saw the Genesis in Kenny doing burnouts. The occupants were wearing hooded jumpers, face masks and white gloves.
45․Axl was charged with being a rider in the Genesis (CH 73/205).
46․Axl was arrested on 6 January 2025. He appeared in Court on 7 January and did not apply for bail. Bail was formally refused by the Court. On 24 January 2025 Axl applied for bail and bail was opposed by the prosecution. Axl was granted bail by the Court. He was arrested on a breach of bail on 26 January 2025 and released on continuing bail the next day.
47․On 28 January 2025 Axl’s bail was revoked by the Court. Axl applied for bail on 5 February 2025. The prosecution opposed bail. Bail was granted by the Court.
Series seven:
(a)CH 328/2025 – Joint Commission Aggravated Burglary – Intent in contravention of s 312 of the CODE (maximum penalty 2000 penalty units or imprisonment for 20 years or both).
(b)CH 329/2025 – Joint Commission theft in contravention of s 308 of the CODE (maximum penalty 1000 penalty units or 10 years imprisonment or both).
(c)CH 331/2025 – Joint Commission take Motor Vehicle without Consent in contravention s 318 of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
(d)CH 330/2025 – Obtain Property by Deception in contravention of s 326 of the CODE (maximum penalty 1000 penalty units or 10 years imprisonment or both).
48․These offences occurred on 21 February 2025. At the time Axl was subject to a 16-day old bail undertaking and a GBO.
49․At 4.18am Axl and two other young co-accused arrived at the back of a private residence in Forrest. One of the co-accused unlocked a rear door and all three co-accused were captured on CCTV entering the home (CH 328/25). Keys to a black BMW, a Ross brand briefcase and a Montblanc brand wallet containing various cards including a credit card were stolen (CH 329/25).
50․The three co-accused exited through the back door and another one of them took the BMW. Axl was charged as a joint commission offender (CH 331/25).
51․At 8.14am Axl was captured on CCTV in Woolworths at Weston using the stolen credit card to purchase cigarettes costing $33.99 (CH 330/25).
52․The BMW was spotted by an unmarked Police vehicle at 8.14am in Weston. The three offenders were seen inside all wearing hooded jumpers. Police followed the vehicle for about 2 minutes until the co-accused driver apparently became aware of the police vehicle. The BMW was then manoeuvred aggressively so that it crossed three lines of traffic at excess speed.
53․At 8.28am, an occupant of the BMW made a purchase at McDonalds using the stolen credit card.
54․The facts do not disclose when or in what condition the BMW was found.
55․Axl was first before the Court on this series on 24 February 2025. He did not apply for bail and bail was formally refused.
Series eight:
(a)CH 391/2025 – Aggravated Burglary – Intent to Steal in contravention of s 312 of the CODE (maximum penalty 2000 penalty units or 20 years imprisonment or both).
(b)CH 944/2025 – Ride/Drive Motor Vehicle without consent in contravention of s 318 of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
(c)CH 945/2025 – Drive while disqualified in contravention of s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (maximum penalty 50 penalty units or 6 months imprisonment or both).
(d)CH 389/2025 – Minor Theft in contravention of s 321 of the CODE (maximum penalty 50 penalty units or 6 months imprisonment or both).
(e)CH 388/2025 - Ride/Drive Motor Vehicle without consent in contravention of s 318 of the CODE (maximum penalty 500 penalty units or 5 years imprisonment or both).
(f)CH 946/2025 – Drive while disqualified in contravention of s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (maximum penalty 50 penalty units or 6 months imprisonment or both).
(g)CH 390/2025 – Aggravated Burglary – Intent to Steal in contravention of s 312 of the CODE (maximum penalty 2000 penalty units or 20 years imprisonment or both).
56․These offences occurred on 10 February 2025 and on or between 13 February and 14 February 2025. At the time of these offences, Axl was subject to an eight-day old bail undertaking and a GBO.
57․At 3.37am on 10 February 2025, an Audi and a Mercedes drove towards a residence in Casey. Axl approached a home in Ashton Calvert Street and attempted to open a vehicle parked in the driveway. Axl then approached the front door, covered the doorbell camera with his hand and attempted to open the door. He then went back to the parked vehicle and unsuccessfully attempted to open the door again.
58․Shortly thereafter Axl and several co-accused gained entry into the backyard of the residence and entered the house through a slightly ajar sliding door. The residents were home and asleep at this time.
59․At 3.40am, one of the residents awoke and discovered several of the young male co-offenders in the living room. The resident yelled at Axl and the co-offenders and they fled (CH 391/25). The owner saw the Audi and the Mercedes drive away.
60․Two days later, at 1.30am on 13 February 2025, a burglary occurred at a residence in Chisholm. The two residents (Mr Hill and Ms Genero) were awoken by their young daughter who had observed a male inside their home. The Generos noticed that their grey Subaru was missing.
61․At 6.38am on the same day, the Subaru was seen in Mawson. Axl was seen exiting the driver’s side of the vehicle wearing a hooded jacket and a black face mask.
62․Police were called to the area and observed a white Mercedes with the Subaru. The Mercedes sped off in convoy with the Subaru driven by Axl. All of Axl’s driving of the Subaru on 13 February 2025 is represented by CH 944/25.
63․Axl drove whilst disqualified on that day (CH945/25).
64․At 1.33am on 14 February 2025, the Subaru was captured on CCTV driving in convoy with a black BMW (which was later reported stolen) to Ampol in Weston Creek. Axl filled the Subaru up with $52.20 of fuel and drove off without payment (CH 389/25). All of Axl’s driving of the Subaru on 14 February 2025 is represented by CH 388/25.
65․Axl drove whilst disqualified on that day (CH946/25).
66․At 6.00 am 14 February, Axl and four co-offenders entered a residence in Sellback Street Weston while its occupants were asleep. CCTV footage captured the offenders going through things in the kitchen and pantry (CH390/25). A white Holden Commodore was taken from the home.
67․The Subaru was found on Sellback Street on 17 February 2025. The facts do not allege damage to that vehicle.
68․Axl was also first before the Court on this series on 24 February 2025. He was formally refused bail on that date.
C. Objective seriousness of the offending
69․The two most prevalent offences to be considered are aggravated burglary and ride/drive motor vehicle without consent.
70․In R v Rosewarne [2021] ACTSC 217 at [119], Murrell CJ identified the following factors as informing the objective seriousness of burglary offences:
(a)Whether the offence was committed at commercial or residential premises (where the occupants are likely to feel a greater sense of violation) and, if at residential premises, whether it was the main premises or an associated building (such as a garage) that was entered.
(b)Whether the premises were occupied or were likely to be occupied at the time of the entry.
(c)Whether the victim was vulnerable; for example, if the main residence was entered, whether the victim at home alone and asleep.
(d)The means of entry; for example, whether it was forced entry or entry via a partly open door.
(e)The degree to which there was associated destruction or disarray.
(f)Whether there was an interaction with an occupant and, if so, whether the occupant was directly threatened and the nature and duration of any force or threat (including whether it was gratuitous).
(g)For aggravated burglary (committed in company)—whether the offender was in the company of more than one other person, the role played by the offender, and whether there was an additional aggravating feature of having an offensive weapon.
(h)The degree of planning, which may be able to be deduced from whether the offender was disguised and/or had armed himself with an offensive weapon or implement for the purpose of gaining entry.
71․In R v Massey (No 3) [2021] ACTSC 156 at [29], Taylor J identified the following factors as informing the objective seriousness of ride/drive motor vehicle without consent offences:
(a) The period of driving and the length of distance driven.
(b) The Whether the vehicle was used in the commission of another offence.
(c) Whether the offender was the driver and not only a passenger.
(d) The manner of the driving – though allowance must be made depending on whether the manner of driving is subject to a separate charge, which may be dealt with by the concurrency or partial concurrency of any sentences.
(e) Whether the vehicle was damaged.
(f)Whether the vehicle was returned to the owner, which may be related to the issue of whether the offender is likely to have continued to drive the vehicle for some further time had he or she not been intercepted by police.
72․In Police v Jarod Bender[ii] I set out some further youth-specific observations at [53]:
“This Court regularly deals with the offence of Ride/Drive Motor Vehicle Without Consent in the context of young offenders. The Court only ever sees a single offender involved when the offending involves the use of a motorcycle, moped or scooter. Even then a pillion passenger is sometimes involved. The very nature of young offending is that the joy is derived from sharing the experience with passengers. Absent passengers, it is highly likely that this type of offending would not occur with young people.”
Series one
73․There is a not a significant amount of information on the circumstances of the aggravated burglary offence (CH 409/2024). The premises were a home. The cars left the home at about 5.10am which is a time when residents would be expected to be home. The main residence was entered. Multiple people were in the home. Access was gained by a laundry door. It is not clear how many offenders were involved but three entered the home. There is no evidence of sophisticated planning. It is offending that lies in the mid-range of objective seriousness.
74․Axl was charged as the rider in CH 410/2024. The Audi was found later the same day. There were no allegations of using the vehicle to commit another offence or of damage to the vehicle. It is offending that lies in the lower level of objective seriousness.
Series two
75․The minor theft charge (CG 246/2024) was theft of $111.29 of petrol. It was a low value, opportunistic and benign form of dishonesty offending.
76․The ride/drive motor vehicle without consent charge involved Axl as the driver for a little over two hours. The Porsche was used in the Minor Theft but that charge will be considered separately so as not to “double sentence”. The ride/drive offending sits at the lower end of objective seriousness for a driver.
Series three
77․The joint commission theft (CH1003/24) at BWS involved an organised group of offenders stealing alcohol. It was blatant dishonesty for personal gain. Retail shops are vulnerable to this type of crime. Five offenders created a crime that would have been near impossible to stop by the shop-keepers. It is a serious example of the offence with a relatively high yield ($926.00) and lies in the mid-range of objective seriousness.
78․The aggravated burglary (CH800/24) involved two offenders entering a home through an unlocked door People were at home asleep as would be expected at that time. There is no evidence of significant planning other than checking for a manner of entry and the use of two offenders. The offending lies in the mid-range of objective seriousness.
79․The joint commission theft (CH 1004/24) inside the home involved stealing car keys, $250.00 cash and the garage fob. It was theft of a low to intermediate value that would have caused significant inconvenience. It occurred in the victim’s home and in company. The offending lies in the upper low-range of objective seriousness.
80․Axl was the driver in the ride/drive offence (CH799/24). He took three passengers with him who were all young people. The car was located about three and a half hours later. The offending lies in the upper low-range of objective seriousness.
81․The drive unlicensed (CH 801/24) charge has the same features of objective seriousness as the previous charge. This offending also lies in the upper low-range of objective seriousness.
Series four
82․The fail to appear (CH 1267/24) offence occurred when Axl’s matters were listed for mention. The offending lies in the low range of objective seriousness.
83․In relation to the ride/drive motor vehicle without consent of the Audi, the facts are silent as to the length of driving, any damage and if or when it was recovered The Audi was used to drive to and from the taking of petrol but I will consider that offending separately to avoid a double sentence. The offending lies in the low range of objective seriousness.
84․The obtain property by deception (CH1265/24) charge was the use of the stolen credit card to obtain thirty dollars’ worth of petrol. It was another example of a low value, opportunistic and benign form of dishonesty offending.
85․The first attempted aggravated burglary (CH1259/24) at Temple Terrace involved four offenders attempting to gain access to a residential home at about 4.30 am. It was a time of the day when people would be expected to be at home asleep. It was relatively organised offending. The offending lies in the upper low-range of objective seriousness.
86․The second attempted aggravated burglary (CH1259/24) at Temple Terrace involved three offenders assisting Axl to attempt to gain access to a residential home at about 4.30 am. It was a time of the day when people would be expected to be at home asleep. It was relatively organised offending. The offending lies in the upper low-range of objective seriousness.
87․The aggravated burglary (CH1260/24) at Yarralumla occurred when people were not home. The time of day is not known. The facts allege four offenders committing the offence. The offending was organised. The offending lies in the upper low-range of objective seriousness.
88․The joint commission take motor vehicle without consent (CH1263/24) involved the taking of three high value prestige cars. They were returned within two days of being taken and no damage was alleged. Because of the high value of the cars, the offending lies above the mid-range of objective seriousness.
89․Axl’s riding in the black Audi without consent (CH1271/24) involves him as a passenger only. The car was used to assist a good deal of the offending in this series. The offending lies in the upper low-range of objective seriousness.
Series five
90․The burglary of the Bettiol’s home (CH1514/24) occurred at 2.23 am. People were at home asleep. It was a time of the day when people would be expected to be at home asleep. Axl gained access by cutting a screen door. He entered the main part of the home. It is offending that lies in the mid-range of objective seriousness.
91․The take motor vehicle without authority charge (CH1515/24) involved the taking of a Mazda from those premises. The Mazda was recovered at 1.35 pm that day. The offending lies in the upper low-range of objective seriousness.
92․The drive unlicensed charge (CH106/25) involved that driving with no other particulars. The offending lies in the low-range of objective seriousness.
93․The unlawful possession (CH 1516/24) charge related to the two sets of keys taken from the Bettiol home. The sentimental and convenience value of those objects far exceeded their financial value. The offending lies in the upper low-range of objective seriousness.
Series six
94․The ride/drive motor vehicle without consent (CH73/2025) charge involved Axl as a rider only. There were more than two occupants in the car when it was seen performing burnouts. The offending lies in the upper low-range of objective seriousness.
Series seven
95․The aggravated burglary charge (CH328/25) involved three offenders entering a residential home at 4.18 am. It was a time of the day when people would be expected to be at home asleep. The main part of the house was entered via a door. It is offending that lies in the mid-range of objective seriousness.
96․The joint commission theft (CH329/25) involved keys, a wallet and its contents and a brief-case. The items had more convenience and sentimental value than financial value. The offending lies in the upper low-range of objective seriousness.
97․The joint commission take motor vehicle charge (CH 331/25) related to the joint taking of the BMW from the premises that were the subject of the burglary. There is no information on when or if the BMW was recovered. It was seen at one stage with three occupants. The offending lies in the upper low-range of objective seriousness.
98․The obtain property by deception (CH330/25) charge involved Axl using one of the credit cards from the wallet to obtain a small value of goods from a shop. It was a low value, opportunistic and benign form of dishonesty offending.
Series eight
99․The aggravated burglary (CH 391/25) involved Axl and others gaining access to a residential home through an open sliding door at 3.40am. It was a time of the day when people would be expected to be at home asleep. One of the occupants saw one of the offenders in the main part of the home and yelled at them. It is offending that lies in the upper mid-range of objective seriousness.
100․The ride/drive motor vehicle without consent (CH 944/25) involved Axl as the driver of a Subaru from 1.30am to 11.59pm on 13 February 2025. The offending lies in the low-range of objective seriousness.
101․Axl drove disqualified at the same time (CH945/25). That offending also lies in the low-range of objective seriousness.
102․The minor theft (CH389/25) relates to $52.20 of petrol being stolen for the same Subaru.
103․The ride/drive motor vehicle without consent (CH 9388/25) involved Axl as a driver of a Subaru for the whole of 14 February 2025. The offending lies in the low-range of objective seriousness.
104․Axl drove disqualified at the same time (CH946/25). That offending also lies in the low-range of objective seriousness.
105․The aggravated burglary at Sellback Street (CH390/25) involved Axl and four others entering a residential home at 6.00am. People were at home asleep. It was a time of the day when people would be expected to be at home if not home and asleep. The offenders went into the main part of the premises. There is no evidence of significant planning other than finding a manner of entry and the use of five offenders. The offending lies in the mid-range of objective seriousness.
D. Breach files
CH248/2023 – Aggravated furious, reckless, dangerous driving in contravention of s7(1) of the Road Transport (Safety and traffic Management) Act1999 (ACT).
106․Axl was convicted and sentenced to a 3-month suspended sentence upon entering into a 12-month GBO from the date of sentence. Axl also received a 24-month licence disqualification that remained in effect for all of the offending to be dealt with in this sentence.
107․The aggravating features of this charge were that on 2 February 2023 Axl failed to stop for police, drove in excess of the speed limit by more than 30% and drove with three people under 17 years old in the vehicle. Axl was driving for a period of approximately 15 minutes and travelled through various streets in Macgregor.
108․The vehicle consistently travelled at speeds well over the speed limit. During the pursuit, Axl undertook vehicles in front of him and almost collided with the gutter on three occasions. Axl crossed double unbroken lines on five occasions and swerved onto the wrong side of the road towards an unmarked police vehicle with lights and sirens activated. He also drove on the wrong side of the road and caused other vehicles to take evasive action.
109․The driving involved an unsuccessful attempt to swerve around a police vehicle, and, after colliding with it continuing to accelerate forward and push past the police vehicle. The road conditions were dark. There was obvious traffic.
110․The driving only ended after tyre deflation devices were successfully deployed by police. It was obvious that Axl was attempting to evade police. He was in breach of bail conditions that were imposed to prevent him from driving. He attempted to flee the scene and was pursued by police on foot. He was on bail. All of those were aggravating features.
CH198/2023 – Culpable drive/neg/grievous bodily harm in contravention of s 29(4) of the Crimes Act 1900 (ACT).
111․Axl was convicted and sentenced to 9 months imprisonment (reduced from 12 months on account of a guilty plea), suspended after 7 months and 6 days, on condition that Axl be on a 12-month GBO.
112․The facts of this matter were that Axl was the driver of a stolen white Jeep that was seen by police who were in a marked police car on 27 December 2022. There was a pursuit that lasted about 10 minutes over a distance of 5 kilometres. Aspects of Axl’s dangerous driving included driving at excess speed, dangerously overtaking another vehicle and causing evasive action to be taken by that other vehicle, driving through a red light and entering the incorrect side of the road and driving on that road at speed.
113․After the pursuit ended, police saw that the Jeep had crashed into a Mazda at an intersection in Scullin. The Mazda suffered significant damage and the victim was trapped in the vehicle. An analysis of data obtained from the Jeep’s airbag deployment control revealed that five seconds prior to the airbag deployment time, the vehicle was traveling at 123km/h in the 80km/h zone on the wrong side of a dual carriageway and towards oncoming traffic.
114․Cannabis was detected in Axl’s blood at a level which impaired his ability to properly control the motor vehicle. After the collision Axl attempted to flee the scene and he was pursued by police on foot.
115․The physical injuries sustained by the victim included three fractured vertebra and surgery to insert screws and rods to heal him. He suffered significant ongoing insults to his physical and psychological health as a result.
116․Axl was on bail at the time.
CH1492/2022 – Aggravated furious, reckless, dangerous driving in contravention of s7(1) of the Road Transport (Safety and traffic Management) Act1999 (ACT).
117․Axl was convicted and sentenced to a 24 month GBO to be served concurrently with the CH198/2023 GBO. This is the GBO that has been breached by all of the offending to be dealt with in this sentence.
118․The facts of this matter were that Axl failing to stop for police, drove in excess of speed limit by more than 30% and drove with a prescribed drug in blood. It was the driving prior to the episode of driving charged as CH198/23.
119․The vehicle consistently travelled at speeds well over the speed limit.
120․Axl was attempting to evade police.
E. Mandatory sentencing considerations
S33(1)(f) – effect on victims
121․Mr Bettiol, who is one of the victims from the home invasion in series five, read his victim impact statement onto the record. What he said was unsurprising to the Court. It was hoped that his words and the emotion with which he delivered them had a lasting impact on Axl.
122․Mr Bettiol spoke to the deep and ongoing family disruption that Axl’s offending had caused. The family continues to suffer the psychological effects of having an intruder inside their home who stole valuable items from them. Family members have lost the previous personal security that they had felt in their home.
123․The family continues to be fearful of being alone at home and were initially fearful of repeated offending due to the theft of the house keys.
124․The offending occurred prior to what was supposed to be his daughter’s graduation. Because of the effects of the offending the Bettiol family did not attend that graduation.
125․The Bettiol’s have lived in their home for 12 years. The effect of Axl’s offending on them was “gut wrenching”.
126․The Court should expect that the other victims in other series would have experienced similar outcomes. One’s home is generally a source of comfort, safety and security. Those feelings are disturbed by home invasions and theft. A person’s car is a significant asset and more than just inconvenience is suffered when an insured car is stolen. Staff at bottle shops are expected to suffer stress and emotional impacts from store theft.
127․These are the usual reported effects of crime that Courts may take judicial notice of in the absence of express victim impact statements.
S33(1)(h) and (n) - financial circumstances and whether any reparation has been made
128․As far as the Court is aware, Axl has never worked. His financial position has not been the subject of submissions, but it is obvious that he is not in a position to make any reparation for his offending. Those words require balance. Because Axl has spent so much of his teen years in custody he has not had a proper opportunity to seek work.
S33(1)(i), (j) and (w)– responsibility taken, pleas of guilty and remorse
129․Axl has taken complete responsibility for his offending. It was obvious to me that he experienced great discomfort when hearing the effect of his criminality upon the Bettiol family. Axl has not displayed any pride in his criminality. These are all compelling signs of remorse in a young offender.
130․Axl entered pleas of guilty to each offence. Many of the series involved him wearing masks or hooded garments. It would appear that the pleas of guilty have significant utilitarian value. The guilty pleas have also spared the victims and witnesses the time and stress of appearing in Court. They have saved the Court and the community the cost of such hearings.
131․There is no dispute that Axl should receive the full 25 per cent discount for the value of his guilty pleas.[iii] This echoes the youth justice principle of encouraging young people to take responsibility for their offending.[iv] Applying significant sentencing discounts for guilty pleas is one of the few ways that the Court may take an active part in such encouragement.
S33(1)m – Axl’s cultural background, character, antecedents, age and physical and mental condition
132․Axl is a 17 years and eight months old proud Ngemba man.
133․The Court’s assessment of Axl’s character is that he is a young man with great potential who has so far wasted the opportunities he has had to show this potential.
134․The Court has observed the light of character and intellect behind his eyes. It is obvious that he is well-liked by those who spend time with him. They are always pleased to see him and there appears to be a genuine bond between Axl and the people who attend Court with him that are doing their best to support him.
135․But, despite the determined efforts of many, Axl has shown limited capacity to turn away from serious criminal offending. His capacity to make others smile is only matched by his capacity for committing serious crime.
136․The offending dealt with in his previous sentence was Axl’s first entry into criminal offending in this jurisdiction. Axl’s New South Wales criminal history contains a varied array of criminal offending. Other than for series one[v], the Court has concluded that Axl cannot be treated as a first offender. That said, he will also not be double-punished for his prior criminality.
137․Axl’s personal circumstances have not changed since his previous sentence. His personal circumstances must be considered.[vi] Axl is a young person who has endured extreme social deprivation and the Bugmy[vii] sentencing principles are enlivened. There is nothing in the ACT sentencing legislation that suggests that personal circumstances should receive less weight because they have been considered in an earlier sentencing process – thus, they should be accorded their full weight[viii].
138․Axl[ix]:
a.“Was born in 2007 suffering from Neonatal Abstinence Syndrome and then spent several weeks in the Canberra Hospital Neonatal Intensive Care Unit;
b.Has four other siblings from his mother but has had little contact with them due to each of them being in different out of home care placements;
c.Has one other sibling from his father, but I do not know if Axl is in contact with her;
d.Was removed by authorities from his mother’s care immediately after his birth due to her substance abuse, schizophrenia and the death of Axl’s fifth maternal sibling;
e.Spent the first seven weeks of his life in hospital and was then placed in the care of an Aboriginal foster carer;
f.Lived with his father from mid-2008 until September 2011 when his father was arrested;
g.Was placed in foster care due to his mother’s inability to care for him;
h.Was quickly transferred back to the care of his father and paternal grandmother that same month with his father resuming sole care weeks later;
i.Was placed in the sole care of his paternal grandmother in 2016 as his father could not manage Axl’s behaviour;
j.Was living with his father in Canberra in October 2018;
k.Was living with an aunt in Sydney in February 2019;
l.Was again in his father’s care in Canberra in April 2019 until his father was incarcerated;
m.Was taken to Sydney in July 2019 to live with his aunt;
n.Was returned to his father’s care in January 2020 until an emergency action removal by authorities in September 2021;
o.Experienced the death of his mother in October 2020;
p.Had only met his mother twice in her life and is under a mistaken belief that she died from food poisoning;
q.Was placed with his aunt in Sydney until that broke down and he self-placed with his father in Canberra in December 2022;
r.Was allegedly assaulted by his father in January 2023 and placed in emergency accommodation.
s.Has been in and out of custody since that date;
t.Has not engaged in education consistently for over two and a half years;
u.Commenced using cannabis at age 12 as it soothed his aggressive and irritable behaviour;
v.Has only ever used another illicit drug once;
w.Is aware that his grandmother is a member of the stolen generation having been removed from her family at the age of five and sent to work for a “white family in [a town in country News South Wales]”;
x.Suffers from auditory hallucinations and from symptoms that are suggestive of complex post-traumatic stress disorder, major depressive disorder, generalised anxiety disorder, cannabis use disorder and first episode psychosis. Those symptoms “occur on a background of attachment disruption, grief and loss, in utero exposure to illicit drugs and trauma including physical abuse and intergenerational trauma”[x].
y.Requires “ongoing psychiatric care and support”;
z.Requires “assertive, wrap-around community support which is culturally appropriate and trauma-informed”; and
aa.Aspires to work in the construction industry and/or play NRL football for a living.”
S33(1)(p) and (v) whether the offending was committed under the influence of alcohol or a controlled drug or for other reasons
139․Axl’s offending does not appear to have a link to substance abuse. The pre-sentence report dated 11 July 2025 (PSR) contains an admission from Axl about cannabis use[xi] in series one. He does not suggest that self-induced intoxication was relevant to or causative of any other offence series.
140․Axl’s input into the PSR indicates that his offending is driven by adrenaline and financial gain. There is also a lesser element of stealing alcohol for group consumption[xii].
S33(1)(z)(a) current sentencing practice
141․The parties did not provide the court with any sentencing precedents or ‘yardstick’ cases.
142․The absence of assistance from the parties on such a crucial aspect of the sentencing process is intolerable.
143․In a sense the parity information that is discussed below provides an indication of the current sentencing practice for that series. Those sentences are unusually merciful and are insufficient to inform the Court of current sentencing practice for relevant offences.
144․In relation to the offence of aggravated burglary there are some helpful cases to consider:
145․In DPP v D’Alessandro (No 2) [2025] ACTSC 275 Baker J sentenced a 21-year-old offender who had offended with young people. Her honour was dealing with multiple commercial burglaries by forced and destructive entry that were committed in company. The sentences imposed were three years on each count after a reduction for guilty pleas.
146․Baker J noted that the sentences of the co-young people ranged from total sentences of four months imprisonment on each aggravated burglary to 14 months and 1 day for multiple charges. Such offending is usually less objectively serious than that of burglaries on residential premises at night.
147․It is accepted that the sentencing process, considerations and outcomes for an adult are vastly different to that of a young person. As Loukas-Karllson J held in R v BS-X [2021] ACTSC 160 where one offender is an adult and the other is a young person, it is proper for the Court to recognise that sentencing takes place in very different regimes (at [124]).
148․In DPP v Kaye (a pseudonym) [2025] ACTSC 169 Taylor J sentenced a young person for a raft of offences that included aggravated burglary and ride/drive motor vehicle without consent. These charges related to the entry of a carpark section of a unit complex. The offender then stole a scooter from within that area. A start point of 10 months imprisonment reduced to seven months and 15 days imprisonment was imposed and ultimately suspended as part of a sentencing package that necessarily involved unsuspended and suspended sentences.
149․The ride/drive offence involved riding the scooter away. A start point of four months imprisonment reduced to three months for the guilty plea was imposed and suspended for the same reasons.
150․The burglary sentence is a useful yardstick and the reduced objective seriousness compared to an aggravated burglary on a residential home is noted. The sentence for the riding of the scooter is a compelling and comparative yardstick for unaggravated driving and riding in stolen motor vehicles.
151․I have purposefully refrained from using previous Children’s Court sentences of my own in this exercise to avoid the possibility of confirmation bias.
152․No contrary or otherwise relevant sentencing cases were drawn to the Court’s attention.
S133D(1)(a) Axl’s culpability for the offence having regard to his maturity.
153․Axl is now three or four months shy of turning 18. He had recently turned 15 when he committed series one, was 16 years and two months in series two, 16 and a half years in series three, 16 years and nine months in series four, 17 years in series five and six and 17 years and two months in series seven and eight. His offending spans from only one year above the minimum age of criminal responsibility to a point where he is now on the cusp of adulthood.
154․There is no reliable way to measure Axl’s emotional maturity. Given his personal circumstances it appears that he has not received the benefit of positive or pro-social parenting input.
155․The remarks of Taylor J in Pedro Swain are informative about assessing maturity when dealing with a young person with a socially deprived upbringing:
“Without appropriate role models he has turned to peers to make connections and receive information. Those peers have been similarly ill-equipped for life.”[xiii]
156․This is to be balanced with the efforts of the support team that Axl has around him.
S133D(1)(b) Axl’s state of development
157․The PSR details multiple minor behavioural issues whilst in custody. It also details three alleged assaults including one against a staff member. This also speaks to immaturity.
158․There have been obvious issues with compliance with Court orders. All of the offending is aggravated by having occurred whilst Axl was subject to a one or more of a suspended sentence order, GBO or bail.
159․That said, Axl successfully completed bail so that he could attend sorry business in May 2025. He did not offend during that bail period. He did not breach that bail. He handed himself in without issue at the end of that bail period. The Court can rightfully use this as evidence of Axl showing an emerging maturity as well as increasing his prospects of rehabilitation in contrast to the picture painted by the offending that is to be dealt with.
S133(D(1)(c) Axl’s past and present family circumstances[xiv]
160․Axl’s family circumstances speak to abject social impoverishment. It is unclear if Axl’s father has any capacity at all to care for Axl. The fact that Axl is presently subject to care and protection orders until age 18 are a strong indicator of parent incapacity.
161․Axl’s father is presently serving a term of imprisonment for multiple sexual offences that he committed against Axl’s then girlfriend[xv]. This offending occurred whilst Axl was in custody himself. Axl’s father’s offending represents one of the gravest breaches of trust and most deeply hurtful offending that a parent might deliver upon a teenage child.
162․Axl’s grandmother appeared in Court for his sentence. Her physical frailness was made apparent. She was taken to hospital by ambulance at the beginning of the sentence proceedings because she became physically unwell. The Court does not know what the outcome of her visit to hospital was.
163․That event was a reminder of the fragility of the only family member who has a capacity to love Axl in a positive sense.
F. Parity
164․The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] provided a helpful summary of the law in relation to parity of sentencing between offenders:
“The notion that like cases should be treated alike is fundamental to any rational and fair system of criminal justice: Lowe v The Queen (1984) 154 CLR 606, 610–11 per Mason J. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen [2011] HCA 49; 244 CLR 462 at [32] (Green). However, just as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48] (Le Clair).”
165․On series two, one co-young person was convicted on a charge of ride/drive without consent. He is a year younger than Axl. He was sentenced to a 6-month GBO. At that time he had one relevant prior entry on his criminal history that had been dismissed. He was not subject to conditional liberty at the time of the offending.
166․Reasons for departure from absolute parity for Axl include the fact that in series two he was subject to bail and a good behaviour order, he had been previously sentenced to imprisonment for motor vehicle offending and had committed series one. Axl had also been dealt with in New South Wales with the imposition of non-custodial sentences for multiple dishonesty offences.
167․On series four multiple co-young people have been sentenced.
168․DX (a pseudonym) was sentenced on 24 March 2025. DX is the same age as Axl. On two attempted aggravated burglaries he was sentenced to rising of the court. On the aggravated burglary he was sentenced to two months imprisonment reduced from three months for the guilty plea. On the take motor vehicles charge he was sentenced to two months imprisonment reduced from three months for the guilty plea. On two charges of ride/drive motor vehicles without consent he was sentenced to rising of the court.
169․At the time of sentence, DX had prior convictions for three counts of ride/drive motor vehicle without consent which had been dealt with by way of the imposition of non-custodial sentences.
170․Reasons for departure from absolute parity for Axl include the fact that in series four he was subject to bail and a good behaviour order, he had been previously sentenced to imprisonment for motor vehicle offending and had committed series one to three inclusively. Axl had also been dealt with in New South Wales with the imposition of non-custodial sentences for multiple dishonesty offences.
171․MC (a pseudonym) was sentenced on 28 March 2025. He is about 20 months younger than Axl. On two counts of attempted aggravated burglary he was sentenced to two sentences of rising of the court. On the joint commission aggravated burglary he was sentenced to 73 days imprisonment that was suspended. He received the exact same sentence for a single count of take motor vehicle without consent. For ride/drive in motor vehicle without consent he was sentenced to 25 days imprisonment that was suspended.
172․At the time of sentence MC had one relevant prior entry on his criminal history for ride/drive motor vehicle without consent for which he received a non-conviction order.
173․Reasons for departure from absolute parity for Axl include the fact that in series four he was subject to bail and a good behaviour order, he had been previously sentenced to imprisonment for motor vehicle offending and had committed series one to three inclusively. Axl had also been dealt with in New South Wales with the imposition of non-custodial sentences for multiple dishonesty offences. Considering the criminal responsibility age span of four years between 14 to 18 years, Axl, at 20 months older, was considerably older than this young offender.
174․KC (a pseudonym) was sentenced on 23 May 2025. KC is one year younger than Axl. On two attempted aggravated burglaries he was sentenced to sixty days imprisonment reduced from 90 days for the guilty pleas. On the joint commission aggravated burglary he was sentenced to 91 days imprisonment reduced from 120 days for the guilty plea. On the joint commission take motor vehicles charge he was sentenced to 60 days imprisonment reduced from 90 days for the guilty plea. On one charge of ride/drive motor vehicle without consent he was sentenced to 67 days imprisonment that was suspended. On another charge of ride/drive motor vehicle without consent he was sentenced to 67 days imprisonment that was suspended.
175․At the time of sentence, KC had prior convictions for three counts of ride/drive motor vehicle without consent which had been dealt with by way of the immediate custodial sentences. He also had four entries for take motor vehicle without consent that were dealt with by way of non-custodial sentences.
176․Reasons for departure from absolute parity for Axl include the fact that in series four he was subject to bail and a good behaviour order and he had committed series one to three inclusively. Axl had also been dealt with in New South Wales with the imposition of non-custodial sentences for multiple dishonesty offences. Considering the criminal responsibility age span of four years between 14 to 18 years, the age difference of one year is not insignificant.
G. Pre-sentence custody
177․Axl has spent 476 days in custody including today. That will be taken into account by backdating his sentence package to commence on 9 May 2024.[xvi]
H. Totality
178․Totality has an expanded role to play in sentencing young offenders. The usual approach to totality was set out by McWilliam J in DPP v Tamayo-Del-Solar (No 2) [2025] ACTSC 372 at 12 when her Honour was referring to Thorn v Laidlaw [2005] ACTCA 49:
“Any degree of concurrency is a product of the court stepping back and viewing the conduct in its entirety, recalling that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives.”
179․S133G of the Criminal law Sentencing Act 2005 expands upon the common law relating to totality for young offenders. It sets out that when a young person is to be sentenced, imprisonment must be both a last resort and (imposed for) the shortest appropriate term. A combination sentence of imprisonment and a supervised good behaviour order must also be considered.
I. Consideration
180․The Court must pay particular attention to individualised justice when sentencing a young person.[xvii] Every day in custody deprives Axl of the full effect of the bond with his grandmother in circumstances where he had a handful of experiences with his mother before she died in his birth month in 2020.
181․Axl presently has accommodation organised until he turns 18. It has been submitted that if he remains in custody until after he turns 18, that will mean that he will go onto waiting lists for public housing. This was a significant factor that was considered.
182․The Court must recognise the deep effects of trauma upon Axl. His past does not excuse his behaviour, but it goes a long way to explain why Axl has been in such a deep groove of self-destructive offending. The flip side of that is the Court should be quite ‘guarded’ about rehabilitative prospects in this matter – even where the PSR states that Axl is a moderate risk of re-offending when in the community. [xviii]
183․A notable aspect of this decision is Axl re-offending whilst on bail. The youth justice principles in the Children and Young People Act 2008 ACT (CYP Act) say, in part, that:
“a…young person may only be detained in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the minimum time necessary.”[xix]
184․This needs to be contrasted with bail decisions where risk of re-offending is a common reason for refusal of bail.[xx] When one considers the significant amount of time that Axl has spent on remand for these matters, the tension between the bail consideration of risk of re-offending, actual time spent in custody for a person who is not yet an adult and the requirement to minimise time in custody are shown to pull strongly in different directions.
185․In this matter the prosecution opposed bail in many instances. The bench sheets show that bail was often granted despite the opposition to bail. However, instead of utilizing the prosecution’s right to review[xxi] this Court’s bail decisions, the prosecution did not ever initiate a bail review to the Supreme Court.
186․The sentencing purposes in this jurisdiction are defined as (at s 7 of the Crimes (Sentencing) Act 2005 ACT) adequate punishment, deterrence, community protection, promotion of rehabilitation, making an offender accountable, denunciation and recognising harm done. When these purposes are then overlaid by a requirement to give primary consideration to rehabilitation for young offenders, it reveals the tension between principles that is present when sentencing young offenders. The tension is particularly strong where criminal offending is serious and nothing less than sentences of imprisonment are appropriate.[xxii]
187․When considering offences including two counts of culpable driving causing death, Mossop J said in DPP v Baker:
“On the one hand, the denunciation of the conduct, recognition of harm done to the victims and their families and general deterrence would all favour a very substantial sentence of imprisonment. On the other hand, the offender with his dysfunctional family background ought to be encouraged, if possible, to rehabilitate himself so as to avoid offending in the future…”[xxiii]
188․There were no submissions made about any charge not properly being the subject of a sentence of imprisonment. Sensibly and pragmatically, the submissions were directed at how each sentence of imprisonment should be imposed. I have sentenced to imprisonment as a last resort and for the shortest possible period.
J. Orders
189․Convictions are imposed on each charge. Action on the breach files is therefore enlivened and breach action will be taken by the Court.
190․The aggravated dangerous driving charge (CH 248/2023) was the subject of a 3 month SSO. That SSO was breached by series one, two and three. Each of those breaching series involved the taking of motor vehicles or riding or driving of motor vehicles without consent. These were related offending types and not so different as to give rise to consideration of not interfering with the suspended sentence.
191․The SSO on CH 248/2023 is cancelled and the sentence of 3 months imprisonment is imposed and backdated to commence on 9 May 2024 and end on 8 August 2024. That time is served.
192․The culpable driving causing grievous bodily harm charge (CH 198/2023) was the subject of a of a 1 month and 24 days (nine months less an un-suspended portion of 7 months and 6 days) SSO. That SSO was breached by series one, two and three. Each of those breaching series involved the taking of motor vehicles or riding or driving in such motor vehicles. These were also related offending types and not so different as to give rise to consideration of not interfering with the suspended sentence.
193․The SSO on CH 198/2023 is cancelled and the sentence of 1 month and 24 days (54 days) is imposed and backdated to commence on 9 August 2024 and end on 1 October 2024. That time is served.
194․Totality was considered. The original sentences were at the extreme end of merciful. The Court took the view that notwithstanding all of the sentencing considerations the whole of the suspended sentence should be imposed and imposed cumulatively upon the other breach.
195․The aggravated dangerous driving charge CH 1492/2022 is the subject of a continuing GBO that expires on 6 September 2025. All the series breached this order, however, because of totality and the overall sentence that will be imposed today I will take no further action on those breaches.
Series one:
Consideration was given to the delay in commencement of these charges. It is not possible to guess what sentences would have been imposed if these matters were dealt with in September 2023 with Axl’s other previous sentences. The presence of these charges may have had a small or a significant impact on that overall sentencing package.
Axl is to be sentenced as if the sentence was to occur shortly after December 2022. At that time he had no criminal history in this jurisdiction and had only recently turned 14. I have decided to not consider any interstate history in those circumstances.
No other sentence than sentences of imprisonment were appropriate.
(a)CH 409/2024 – Aggravated Burglary – Intent to Steal. Convicted and sentenced to 21 days imprisonment reduced from 30 days. This sentence is backdated to allow for some concurrency with the previous breach sentence to allow for totality. The 21 day sentence is backdated to commence on 22 September 2024 and end on 12 October 2024 (time served). This concurrency allows for totality.
(b)CH 410/2024 – Ride Motor Vehicle without Consent. Convicted and sentenced to rising of the court (time served).
Series two:
199.The minor theft did not call for a sentence of imprisonment. I found that the dishonesty conviction alone was a significant penalty.
(c)CH 246/2024 – Minor Theft. Convicted with no further punishment.
(d)CH 248/2025 – Drive Motor Vehicle without Consent. Convicted and sentenced to 67 days imprisonment reduced from 90 days for the guilty plea. Backdated to date from 26 September 2024 to 1 December 2024. This concurrency allows for totality. This sentence has been served.
(e)CH 251/2025 – Unlicenced – Licence never held (repeat offender). Convicted and disqualified for 3 years.
Series three:
In this series totality was allowed for in two ways – the partial concurrency with the prior series and total concurrency within the series itself. The same approach was taken on each remaining series so that the total sentence was not crushing on Axl and also left appropriate discretion for the commencement of a suspended sentence. The sentences on this series have been served.
(f)CH 1003/2024 – Joint Commission Theft. Convicted and sentenced to 21 days imprisonment reduced from 30 days on account of the plea. This was backdated to commence in 1 November 2024 and end on 21 November 2024.
(g)CH 800/2024 – Aggravated Burglary. Convicted and sentenced to 135 days imprisonment reduced from 180 days for the guilty plea. This sentence is backdated to commence on 1 November 2024 and end on 15 Mar 2025.
(h)CH 1004/2024 – Joint Commission Theft. Convicted and sentenced to 21 days imprisonment reduced from 30 days for the guilty plea. This sentence is backdated to commence on 1 November 2024 and end on 21 November 2024.
(i)CH 799/2024 – Take motor vehicle without authority. Convicted and sentenced to 67 days imprisonment reduced from 90 days for the guilty plea. This sentence is backdated to commence on 1 November 2024 and end on 6 January 2025.
(j)CH 801/2024 – Unlicenced – Licence never held (repeat offender). Convicted and disqualified for 3 years concurrent with the disqualification on CH 251/2025.
Series four:
In this series parity has had a considerable effect on reducing the start points. The start points for the co-young people were mercifully low. Axl has been sentenced with higher start points than his co-accused for his offending due to his age, criminal history and the fact that he was on conditional liberty at the time of offending. Each of these sentences has been served.
(k)CH 1267/2024 – Fail to appear after bail undertaking. Convicted and sentenced to rising of the court (time served).
(l)CH 1257/2024 – Ride/Drive Motor Vehicle without Consent. Convicted and sentenced to 90 days imprisonment reduced from 120 days for the guilty plea. This sentence is backdated to commence on 1 February 2025 and end on 1 May 2025.
(m)CH 1265/2024 – Obtain Property by Deception. Convicted with no further punishment.
(n)CH 1259/2024 – Attempted Aggravated Burglary. Convicted and sentenced to 90 days imprisonment reduced from 120 days for the guilty plea. This sentence is backdated to commence on 1 February 2025 and end on 1 May 2025.
(o)CH 1258/2024 – Attempted Aggravated Burglary. Convicted and sentenced to 90 days imprisonment reduced from 120 days for the guilty plea. This sentence is backdated to commence on 1 February 2025 and end on 1 May 2025.
(p)CH 1260/2024 – Joint Commission Aggravated Burglary. Convicted and sentenced to 135 days imprisonment reduced from 180 days for the guilty plea. This sentence is backdated to commence on 1 February 2025 and end on 15 June 2025.
(q)CH 1263/2024 – Joint Commission take Motor Vehicle without Consent. Convicted and sentenced to 67 days imprisonment reduced from 90 days for the guilty plea. This sentence is backdated to commence on 1 February 2025 and end on 8 April 2025.
(r)CH 1271/2024 – Ride/Drive Motor Vehicle without Consent. Convicted and sentenced to 42 days imprisonment reduced from 60 days for the guilty plea. This sentence is backdated to commence on 1 February 2025 and end on 14 March 2025.
Series five:
Each of the sentences in this series has been served.
(s)CH 1514/2024 – Burglary – Intent to Steal. Convicted and sentenced to 112 days imprisonment reduced from 150 days for the guilty plea. This sentence is backdated to commence on 1 May 2025 and end on 20 August 2025.
(t)CH 1515/2024 – Take Motor Vehicle without Authority. Convicted and sentenced to 67 days imprisonment reduced from 90 days for the guilty plea. This sentence is backdated to commence on 1 May 2025 and end on 6 July 2025.
(u)CH 106/2025 – Unlicenced – Licence never held. Convicted and disqualified for 3 years concurrent with the disqualification on CH 251/2025 and 801/2024.
(v)CH 1516/2024 – Unlawful Possession of Stolen Property. Convicted and sentenced to 10 days imprisonment reduced from 14 days for the guilty plea. This sentence is backdated to commence on 1 May 2025 and end on 10 May 2025.
Series six:
(w)CH 73/2025 – Ride/Drive Motor Vehicle without consent. Convicted and sentenced to 67 days imprisonment reduced from 90 days for the guilty plea. This sentence is backdated to commence on 1 July 2025 and it ended on 5 September 2025.
Series seven:
The sentences in this series traverse the past, present and future. The obtain property by deception charge did not call for a sentence of imprisonment. I found that the dishonesty conviction alone was a significant penalty. It was not appropriate to suspend any part of this series.
(x)CH 328/2025 – Joint Commission Aggravated Burglary. Convicted and sentenced to 135 days imprisonment reduced from 180 days for the guilty plea. This sentence is backdated to commence on 1 August 2025 and end on 13 December 2025.
(y)CH 329/2025 – Joint Commission theft. Convicted and sentenced to 21 days imprisonment reduced from 30 days for the guilty plea. This sentence is backdated to commence on 1 August 2025 and end on 21 August 2025.
(z)CH 331/2025 – Joint Commission take Motor Vehicle without Consent. Convicted and sentenced to 67 days imprisonment reduced from 90 days for the guilty plea. This sentence is backdated to commence on 1 August 2025 and end on 6 October 2025.
(aa)CH 330/2025 – Obtain Property By Deception. Convicted with no further punishment.
Series eight:
The minor theft did not call for a sentence of imprisonment. I found that the dishonesty conviction alone was a significant penalty.
205. The start point for the aggravated burglary offence was considerably higher as there was a persistent effort by Axl to enter the premises in the early hours of the morning and there was an interaction between several of the offenders and a young occupant.
206. The sentences all commence on 1 November 2025 and are suspended from Monday 15 December 2025. This means that Axl will be released on one set of suspended sentences only and has some time to organise accommodation prior to becoming an adult. The suspended portion of the sentence is significant and it is hoped that it will dissuade Axl from re-offending and promote his rehabilitation.
The suspended sentence order will date from 15 December 2025 to 31 July 2026 and have supervision in place for the whole of the order as well as other conditions to be read out to Axl.
(bb)CH 391/2025 – Aggravated Burglary. Convicted and sentenced to 273 days imprisonment reduced from 365 days for the guilty plea. This sentence will commence on 1 November 2025 and end on 31 July 2026.
(cc)CH 944/2025 – Ride/Drive Motor Vehicle without consent. Convicted and sentenced to 67 days imprisonment reduced from 90 days for the guilty plea. This sentence will commence on 1 November 2025 and end on 6 January 2026.
(dd)CH 945/2025 – Drive while disqualified. Convicted and disqualified for 2 years – cumulative as to one year on the other three disqualifications – total disqualification period of four years imposed.
(ee)CH 389/2025 – Minor Theft. Convicted with no further punishment.
(ff)CH 388/2025 - Ride/Drive Motor Vehicle without consent. Convicted and sentenced to 67 days imprisonment reduced from 90 days for the guilty plea. This sentence will commence on 1 November 2025 and end on 6 January 2026.
(gg)CH 946/2025 – Drive while disqualified. Convicted and disqualified for 2 years – cumulative as to one year on the other three disqualifications and concurrent with 945/2025 – total disqualification period of four years imposed.
(hh)CH 390/2025 – Aggravated Burglary – Convicted and sentenced to 135 days imprisonment reduced from 180 days for the guilty plea. This sentence will commence on 1 November 2025 and end on 15 March 2026.
| I certify that the preceding two hundred and seven [207] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Magistrate Stewart. Associate: Zeinab Elsheekhly Date: 29 August 2025 |
[i] See s 7 and s 133C(1) Crimes Sentencing Act 2005 (ACT)
[ii] Police v Jarod Bender (a pseudonym) [2025] ACTCC 1
[iii] See s 35 Crimes (Sentencing) Act 2005 (ACT) and the transcript from the sentence hearing on 11 July 2025 at page 14 for the concession from the Crown on the applicable discount to be applied.
[iv] S 94(1)(a) Children and Young People Act 2008 (ACT)
[v] Due to the delay in laying those charges and the absence of any prior history other than a caution for shoplifting in NSW in July 2020, Axl should be treated as a first offender for this series.
[vi] S 33 Crimes (Sentencing) Act 2005 (ACT)
[vii] Bugmy v The Queen [2013] HCA 37
[viii] See also R v Fernando (1992) 76 A Crim R 58 at 63 (F)
[ix] Police v Axl Joseph (a pseudonym) [2023] ACTCC 1 at [7]
[x] It is noted that Axl is now medicated for anxiety – see the pre-sentence report dated 11 July 2025 at page 17
[xi] Ibid at page 28
[xii] Ibid at pages 113-119
[xiii] DPP v Swain (a pseudonym) (No 2) [2025] ACTSC 209 at paragraph 207
[xiv] These considerations apply in addition to the s 33(1)(m) considerations already set out
[xv] DPP v Valentino (a pseudonym) [2024] ACTSC 140
[xvi] S 63 Crimes (Sentencing) Act 2005 (ACT)
[xvii] S 133C(2) Crimes (Sentencing) Act 2005 (ACT)
[xviii] PSR page 37
[xix] S 94E CYP Act
[xx] See for example DPP v Swain (a pseudonym) [2025] ACT 3
[xxi] S 44 Bail Act 1992 (ACT)
[xxii] S 10 Crimes (Sentencing) Act 2005 (ACT)
[xxiii] DPP v Baker (a pseudonym) [2025] ACTSC 196 at [38].
0
22
7