Police v Axl Joseph (a pseudonym) - [2023] ACTCC 1

CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v Axl Joseph (a pseudonym)

Citation:

[2023] ACTCC 1

Hearing Date:

7 September 2023

Decision Date:

7 September 2023 (oral) and 6 October 2023

Before:

Magistrate Stewart

Decision:

See [126]-[129]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Australian Capital Territory Childrens Court - sentencing of young offenders – sentencing practice – relevant considerations – parity – offending whilst on conditional liberty – totality – Aboriginal offenders – Bugmy – Verdins – consideration of dismissal under care and protection provisions or sentencing at law – imprisonment only appropriate option on some charges – significant time in custody – partially suspended sentence – absence of bail support program for Aboriginal young people or children – absence of culturally specific programs

Legislation Cited:

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; 249 CLR 571

DPP v Calhoun [2023] ACTSC 189

Geagea v The Queen [2020] NSWCCA 350

Kelly v Ashby [2015] ACTSC 346

MT v The Queen [2021] ACTCA 26

R v Blackburn (No 1) [2020] ACTSC 373

R v Eichmann [2019] ACTSC 212

R v Elphick [2021] ACTSC 9

R v Fry [2021] ACTSC 138

R v Massey (No 1) [2020] ACTSC 256

R v Massey (No 3) [2021] ACTSC 156

R v MJR [2010] NSWSC 653

R v Ogle (No 2) [2018] ACTSC 126

R v Seymour [2021] ACTSC 152

R v Verdins (2007) 16 VR 269

R v Whyte [2002] NSWCCA 343

The Queen v Haven (a pseudonym) [2022] ACTCA 61

Texts Cited:

Bugmy Bar Book Project Committee, Bugmy Bar Book (November 2019)

Parties:

ACT Director of Public Prosecutions ( Prosecution)

Axl Joseph (a pseudonym) (Young Person)

Representation:

Counsel

E Bayliss ( Prosecution)

S Brown (Young Person)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT

File Numbers:

CH 1490 of 2023; CH 1492-1493 of 2023; CH 198 of 2022; CH 208 of 2023; CH 240-242 of 2023; CH 244 of 2023; CH 246 of 2023; CH 248 of 2023; CH 250 of 2023; CH 252 of 2023; CH 289-290 of 2023; CH 452-453 of 2023; CH 668 of 2023; CH 830 of 2023

MAGISTRATE STEWART:
Introduction
1.This is a sentencing decision of the Australian Capital Territory Children’s Court (ACTCC). A pseudonym has been used in the hope that the young offender is not identified, embarrassed or prejudiced by this decision.
2.Several deceased Aboriginal people are referred to, but not identified, in this decision.
3.I sentenced Axl on 7 September 2023 and indicated that I wished to publish written reasons for those sentences. His story is one of young offending and the trauma and social deprivation that exists within our community.
4.I have decided to structure this decision in an unusual way. Normally when sentencing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] ACTCC 1
Decision Date: 7 September 2023 (oral) and 6 October 2023

CaseChat Overview and Summary

In the Australian Capital Territory Children's Court, the matter of Police v Axl Joseph (a pseudonym) was heard. The dispute involved the sentencing of the respondent, who was a young Aboriginal person, following his conviction on various criminal charges. The court was tasked with determining an appropriate sentence that balanced the principles of parity, totality, and the unique circumstances of Aboriginal offenders. The legal issues before the court included the consideration of whether the respondent should be sentenced at law or dismissed under care and protection provisions, and whether imprisonment was the only appropriate option given the charges and the respondent's circumstances.

The court considered the principles set out in Bugmy v R and Verdins, which emphasised the importance of considering the unique circumstances of Aboriginal offenders. It noted the significant time the respondent had already spent in custody and the absence of suitable bail support programs or culturally specific programs for Aboriginal young people or children. The court concluded that, while imprisonment was appropriate for some of the charges, a partially suspended sentence was suitable for others, taking into account the principle of totality and the need to avoid disproportionate sentencing. The court also recognised the importance of providing culturally appropriate support to mitigate the adverse effects of imprisonment.

The court ultimately determined that a partially suspended sentence, coupled with specific conditions, would be the most appropriate outcome. It recognised the need for a balanced approach that addressed the respondent's offending behaviour while also considering his circumstances as an Aboriginal young person. The court imposed a sentence that included a period of imprisonment, followed by a period of supervision and specific conditions aimed at rehabilitation and support. The court's decision reflected a careful consideration of the relevant legal principles and the unique circumstances of the respondent.

Orders

Orders of the court

See [126]-[129]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Police v Axl Joseph (a pseudonym)
Citation:	[2023] ACTCC 1
Hearing Date:	7 September 2023
Decision Date:	7 September 2023 (oral) and 6 October 2023
Before:	Magistrate Stewart
Decision:	See [126]-[129]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Australian Capital Territory Childrens Court - sentencing of young offenders – sentencing practice – relevant considerations – parity – offending whilst on conditional liberty – totality – Aboriginal offenders – Bugmy – Verdins – consideration of dismissal under care and protection provisions or sentencing at law – imprisonment only appropriate option on some charges – significant time in custody – partially suspended sentence – absence of bail support program for Aboriginal young people or children – absence of culturally specific programs
Legislation Cited:	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; 249 CLR 571 DPP v Calhoun [2023] ACTSC 189 Geagea v The Queen [2020] NSWCCA 350 Kelly v Ashby [2015] ACTSC 346 MT v The Queen [2021] ACTCA 26 R v Blackburn (No 1) [2020] ACTSC 373 R v Eichmann [2019] ACTSC 212 R v Elphick [2021] ACTSC 9 R v Fry [2021] ACTSC 138 R v Massey (No 1) [2020] ACTSC 256 R v Massey (No 3) [2021] ACTSC 156 R v MJR [2010] NSWSC 653 R v Ogle (No 2) [2018] ACTSC 126 R v Seymour [2021] ACTSC 152 R v Verdins (2007) 16 VR 269 R v Whyte [2002] NSWCCA 343 The Queen v Haven (a pseudonym) [2022] ACTCA 61
Texts Cited:	Bugmy Bar Book Project Committee, Bugmy Bar Book (November 2019)
Parties:	ACT Director of Public Prosecutions ( Prosecution) Axl Joseph (a pseudonym) (Young Person)
Representation:	Counsel E Bayliss ( Prosecution) S Brown (Young Person)
Solicitors ACT Director of Public Prosecutions Legal Aid ACT
File Numbers:	CH 1490 of 2023; CH 1492-1493 of 2023; CH 198 of 2022; CH 208 of 2023; CH 240-242 of 2023; CH 244 of 2023; CH 246 of 2023; CH 248 of 2023; CH 250 of 2023; CH 252 of 2023; CH 289-290 of 2023; CH 452-453 of 2023; CH 668 of 2023; CH 830 of 2023