Police v Axl Joseph (a pseudonym)
[2023] ACTCC 1
•7 September 2023 (oral) and 6 October 2023
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 an adult, the personal details of the offender are left until after discussing the factual nature of the offending and are referred to as “subjective features”. Given that Axl is not yet an adult, I have decided to focus on him first.
Who is Axl Joseph?
5.Axl is aged 15 years. He is a proud Ngemba young person who is continually exploring and learning about his family, his family stories and culture. Our legislation defines him as a ‘young person’ because he is 12 years or older, but not an adult.[1] I decline to make any observations about his physical appearance or attributes because that would only assist in identifying him.
[1] A child is a defined to be aged under 12. See s 11-12 Children and Young People Act 2008 (ACT).
6.From my own observations in Court, Axl is bright, responsive, communicative and polite. There is nothing about his behaviour that suggests he is performing for the Court. I saw that he was able to listen for extended periods during the sentencing submissions and my oral sentence that formed part of this decision. It seemed to me that he was absorbing the material and when I questioned him, he gave every indication that he understood what was being said and the enormity of it all. I formed the view that Axl was genuinely taking part in the process of his sentence and was also genuinely sorry for his criminal behaviour.[2]
[2] See the pre-sentence report dated 4 September 2023 generally.
7.It is challenging to put appropriate wording to what life has provided for Axl thus far, so I will leave it plain and somewhat short. Axl’s ‘subjective features’[3] are worth re-reading and considering in light of the expected lived experience of an average Australian 15-year-old. Axl:
[3] Taken from the s74L report dated 23 February 2023 except where otherwise footnoted.
a.Was born in late 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 them being in need of care and protection and in different 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;[4]
[4] Pre-sentence report dated 4 September 2023 page 8.
p.Had only met his mother twice in her life and is under a mistaken belief that she died from food poisoning;[5]
[5] Ibid.
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[6] in January 2023 and placed in emergency accommodation.
[6] “He punched me like a man” Report of Ms Connaughton, Psychologist dated 24 January 2023 at page 2.
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]”;[7]
[7] Ibid.
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”.[8]
[8] Ibid at page 4.
y.Requires “ongoing psychiatric care and support”;[9]
[9] Ibid at page 5.
z.Requires “assertive, wrap-around community support which is culturally appropriate and trauma-informed”;[10] and
[10] Ibid.
aa.Aspires to work in the construction industry and/or play NRL football for a living.[11]
[11] TX 7 September 2023 page 17.
Remorse[12]
[12] Remorse is a relevant consideration for sentence under the considerations at s33 of the Crimes (Sentencing) Act 2005 (ACT).
8.Axl has expressed that he believes he is a bad person due to his offending and is concerned by way of the perception others may have of him as a result.[13] He has acknowledged the stupidity of his actions.
[13] Pre-sentence Report dated 4 September 2023 at page 17.
9.Through his solicitor Axl expressed that he is particularly concerned that his offending will result in rejection and/or abandonment by his family. It was also conceded that such remorse must be considered in the context of his re-offending whilst on conditional liberty.
Pre-Sentence Report
10.A comprehensive and most helpful 26 page pre-sentence report dated 4 September 2023 was prepared for this sentence. I thank the authors for their concerted efforts. The report sets out Axl’s performance and engagement whilst on remand at the Bimberi Youth Justice Centre (BJYC):
[Axl] has engaged in programs and schooling positively and demonstrates kind and respectful behaviour towards all people within the centre. He has not been involved in any incidents or received behavioural breaches and rather demonstrates positive role modelling and leadership skills. He completes all his chores without prompting, follows staff directions and offers to assist others when needed. [Axl] is proud of his culture and has a strong sense of cultural identity. Outside of the school timetable, he has connected with First Nations Counsellor through Relationships Australia, the Gugan Gulwan Art program, and the Justice Health Aboriginal Liaison Officers. He’s also had some engagement with Ted Noffs, Indigenous Defence Recruitment (sports only) and the Canberra Raiders… [Axl] presents as a kind and reflective young person, who is looking to improve his future and current circumstances.[14]
[14]Ibid page 7.
11.Axl is said to have been an exemplary student whilst studying Bimberi.[15] He has completed the preparatory work to apply for a learner’s licence, commenced a Certificate III in Hospitality and completed qualifications in first aid, Responsible Service of Alcohol and Crystalline Silica Exposure Prevention. A transition plan for schooling was in place pending Axl’s eventual release from custody.
[15] Ibid page 12.
12.Axl has never been employed but wants to find work.
13.I accepted these reports as evidence of real prospects of rehabilitation for Axl. He thrives when he has appropriate support around him.
Time In Custody
14.At the time of sentence Axl had spent seven months and seven days in custody on remand for these offences.
Criminal History
15.Axl had no criminal history at the time of sentence and was to be treated as a first offender.
The Sentencing Power of the ACTCC
16.The ACTCC has a potential jurisdiction to hear all criminal charges summarily except for those punishable by imprisonment for life.[16] The ACTCC has a jurisdictional sentencing limit of 2 years imprisonment and/or a fine of $5,000 for each charge dealt with summarily.[17] There is no limit to the accumulation of sentences for multiple charges.
[16] s 288 Magistrates Court Act 1930 (ACT) and s 375(2) Crimes Act 1900 (ACT).
[17] S 375(16) Crimes Act 1900 (ACT).
17.In a practical sense this means that if a charge can be dealt with adequately with a sentence of no more than 2 years imprisonment it may be dealt with by the ACTCC rather than being committed to the Supreme Court for sentence.
Step One – Which Court Should Sentence Axl?
18.In the process of determining whether the ACTCC or the Supreme Court should sentence a young offender the Court must have regard to the factors in section 375(13) of the Crimes Act 1900 (ACT) which reads:[18]
[18] Noting that s375AA had not yet come into effect as at the date of Axl’s sentence.
(13) Before the Childrens Court decides whether a case can properly be disposed of summarily, the court must consider the following:
(a) relevant representations made by the defendant;
(b) relevant representations made by the prosecutor in the defendant’s presence;
(c) the facts of the case;
(d) the seriousness of the alleged offence;
(e) the circumstances in which the offence is alleged to have been committed;
(f) the defendant’s age;
(g) the defendant’s apparent maturity;
(h) the defendant’s apparent mental capacity;
(i) the suitability of the penalties that the court is empowered to impose;
(j) the difficulty of any question of law that is likely to arise.
19.The prosecution invited me to consider those matters for charge CH2023/198 Culpable Drive Cause Grievous Bodily Harm (Culpable Driving) and sought to make no submissions on the other charges.
20.The defence submitted that I should deal with all of the charges and the prosecution provided submissions as to the considerations that were appropriate in making the decision about the appropriate jurisdiction for sentence.
21.The prosecution pointed out the factual nature of the case and circumstances in which the offence was committed, the grave seriousness of the charge, fairly referred to the defendant’s age, maturity and mental capacity, drew my attention to relevant sentencing authorities in terms of the suitability of the limits of the sentencing power in this Court and politely left the final consideration to me.
22.The prosecution’s position was that the relevant charge may well have resulted in a term of imprisonment over 2 years and serious consideration was be given to whether the matter should have been committed to the Supreme Court for sentence rather than finalised in the ACTCC.
23.Ultimately, I decided that I had sufficient jurisdiction to sentence Axl on all the charges that he had entered pleas of guilty to, meaning that his sentence would take place entirely in the ACTCC before me. Charge CH2023/198 was the only charge that really called for a close assessment. It was obvious that the remaining 18 charges could be quite adequately dealt with by a sentence of two years or less imprisonment or another lesser sentence type. That decision involved considering all of the s375 (13) factors that have just been set out above.
24.I paid close attention to all of the cases provided by the prosecution. There is no doubt that the Culpable Driving charge was a serious one. It involved a lengthy pursuit by police, high speeds, driving in the oncoming lane and a collision that caused significant spinal and other injuries to another innocent road user.
25.I found that the most helpful cases were NSW guideline sentencing judgement in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (‘Whyte’) and R v Ogle (No 2) [2018] ACTSC 126 (‘Ogle (No 2)’).
26.In Whyte at [214] the Court held that in relation to sentencing for dangerous driving causing death, “a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.” The Court observed, earlier in its judgment at [205], that “in determining the appropriateness of full time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.”
27.The decision in Whyte also established that where the offender’s moral culpability is high, a full-time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate: at [229]. This statement was based upon a “typical case”. In the case of a low level of moral culpability, a lower sentence would be appropriate.
28.That Court observed at [204] that a “typical case” will involve:
a.A young offender[19] (noting that this does not refer to young meaning under the age of 18);
[19] I note that no guidance is given in the decision about what “young offender” means i.e. offenders under the age of 18 or young adults. At paragraph 204 of Whyte, Spigelman CJ ‘reformulates’ the guideline set out in R v Jurisic (1998) 45 NSWLR 209 (‘Jurisic’). This includes that ‘[a] frequently recurring case of an offence under s 52A’ has the characteristic of involving a ‘young offender’ (paragraph [204]). The term ‘young offender’ is not defined within the decision by his Honour, and the term ‘young offender’ is not used again within the decision. In Jurisic, Spigelman CJ describes the characteristics of offences contained within s 52A of the Crimes Act 1900 (NSW). This includes a reference to the Hansard where the Attorney-General introduced the amending legislation. This included a statement that ‘[i]n many cases the drivers and those killed or injured are young people or children’ (page 227 of Jurisic). His Honour quotes the decision of Hunt CJ in R v Musumeci (Court of Criminal Appeal, 30 October 1997, unreported) at page 228, including dealing with ‘youthful offenders’. From my reading of the decision, Spigelman CJ refers to his previous guideline decision (Jurisic) which in turn refers to the Hansard where the refence to ‘young offenders’ originates. In terms of the age of the offender in Whyte, this is not mentioned within the decision. The original sentencing decision of the District Court of NSW is not available. However, I note that there is no reference to the offender being ‘young’ within the circumstances of the case (from paragraph 235) and no pseudonym is used – indicating that Whyte was an adult.
b.Of good character with no or limited prior convictions;
c.Death or permanent injury to a single person;
d.The victim is a stranger;
e.No or limited injury to the driver or the driver’s intimates;
f.Genuine remorse; and
g.Plea of guilty of limited utilitarian value.
29. The Court went on to list a number of aggravating factors that would inform the assessment of the offender’s moral culpability at [216] to [217]:
a.Extent and nature of the injuries inflicted;
b.Number of people put at risk;
c.Degree of speed;
d.Degree of intoxication or of substance abuse;
e.Erratic or aggressive driving;
f.Competitive driving or showing off;
g.Length of the journey during which others were exposed to risk;
h.Ignoring of warnings;
i.Escaping police pursuit;
j.Degree of sleep deprivation; and
k.Failing to stop.
30. In this matter, many of the aggravating features discussed in Whyte are present. The prosecution noted:
a.The victim’s C2, C3, and C4 vertebrae were broken and required surgery, and the insertion of six screws and two rods, measuring four centimetres each, into three vertebrae. The report of Dr Barry also detailed swelling of the spine, separation of the atlantoaxial ligament and a small haematoma at the level of C1/2 vertebrae. This has had not only a life long physical impact on the victim, but impacted his mental health, financial wellbeing, his independence, and his family;
b.The offending occurred in the context of a police pursuit involving dangerous driving, which lasted approximately 10 minutes;
c.The speeds involved were significant, particularly with regard to the 5 seconds prior to the collision;
d.The driving immediately prior to the collision was on the wrong side of the road and into incoming traffic;
e.The driver was affected by cannabis;
f.The driver was 15 years old, and not entitled to apply for a driver’s licence;
g.The car used was a stolen motor vehicle;
h.The young person made admissions to his father during a recorded phone call to the effect of “I hit a man, [name redacted] was calling me”, suggesting that he was using his mobile phone at the time of driving, being evidence of inattention.
31.In Ogle No 2, the offender was aged 24 and was travelling 59 km over the speed limit. Another road user’s vehicle was struck and the injuries suffered were similar to that of the victim in this matter. There was a guilty plea and efforts had been made to rehabilitation. The Supreme Court imposed a sentence of 19 months and seven days suspended after serving seven months imprisonment.
32.Axl has grown up in circumstances that few would trade their own position in life for. His social, economic and intellectual deprivation is at the extreme end of the range. His mental health is perilous. The accumulation of trauma that he has experienced himself in his short life is amongst the worst that a court might see. Axl also bears the weight of a further cultural traumatic load due to him being born an Aboriginal person.
33.A major factor in considering sentence is Axl’s young age. Young people are not to be sentenced as adults and I have set out the legal considerations for sentencing young people later in this decision. They are the genesis of why age is such a relevant factor when sentencing children and why this Court sentences in such a different way to the adult courts of the Territory.
34.After considering all of the s 375 factors, I found that sentencing Axl to more than two years imprisonment on this charge would have been so excessive that it would have created an appealable error. Thus, the two-year limit on sentencing jurisdiction left ample room to sentence him myself.
Step Two – A Consideration of the Law, the Facts and the Submission of the Parties
35.Chapter 8A of the Crimes (Sentencing) Act 2005 governs the sentencing of children and young offenders. In The Queen v Haven (a pseudonym) [2022] ACTCA 61 the Court of Appeal summarised a number of principles which flow from Chapter 8A at [66]:
…In order to emphasise their significance, it is useful to summarise what they [the Chapter 8A provisions] require:
a)the court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in s 7(1): s 133C(1);
b)the court must have particular regard to the common law principle of individualised justice: s 133C(2);
c)the court must have regard to (s 133D(1));
d)the young offender’s culpability for the offence having regard to his or her maturity;
e)the young offender’s state of development;
f)the past and present family circumstances of the young offender;
g)a sentence of imprisonment imposed on a young offender must be a last resort and for the shortest appropriate term: s 133G(2); and
h)the court must consider making a combination sentence consisting of the sentence of imprisonment and a good behaviour order with a supervision condition: s 133G(3).
36.S33 of the Crimes (Sentencing) Act 2005 ACT sets out about five pages of mandatory considerations for all criminal offenders.
37.In MT v The Queen [2021] ACTCA 26 (‘MT’), the court noted at [64] (emphasis added):
We infer that, when the 133C requirement to pay “particular regard” to “individualised justice” is read together with the discretion to give more weight to the sentencing purpose of rehabilitation, the result is that, if a young offender has good prospects of rehabilitation, those prospects will weigh heavily in the sentencing exercise.
38.In R v MJR [2010] NSWSC 653, Johnson J observed at [81] (emphasis added):
Although accepted to be of less significance than when sentencing adult offenders, consideration of general deterrence and retribution cannot be ignored when sentencing young offenders: KT v R at 578 [24]. The greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will give way to the interests of rehabilitation: IE v R [2008] NSWCCA 70 at [16].
39. In DPP v Calhoun [2023] ACTSC 189 at [74] The Supreme Court sentenced a young offender for culpable drive causing death. His Honour Justice Mossop said:
Although the offender’s submissions placed much emphasis upon the significance of rehabilitation and the desirability of him doing that in the community, the prosecution correctly pointed out that the legislature has used very specific words in s 133C which retain the court’s discretion as to the weight to be attributed to rehabilitation. The requirement to have “particular regard” to the common law principle of individualised justice does not detract from that discretion. Consistently with the terms of the statute, rehabilitation is obviously a very significant sentencing consideration for minors who commit crimes. However, it remains one purpose of sentencing amongst the range of purposes set out in s 7. Ultimately each relevant purpose of sentencing must be given some weight and the balance between those purposes is a matter of intuitive synthesis.
40.There is a descending scale of punishments available to the ACTCC:
a.Imprisonment;[20]
[20] Crimes (Sentencing) Act 2005 (ACT) s 10 with additional considerations for young offenders contained within s 133G.
b.A suspended sentence of imprisonment;[21]
[21] Ibid s 12.
c.Deferred sentence order;[22]
[22] Ibid ch 8.
d.Conviction and good behaviour order;[23]
[23] The requirements of good behaviour orders for young offenders are set out in Part 8A.2 of the Crimes (Sentencing) Act 2005 (ACT).
e.Conviction and fine;[24]
[24] Ibid s 14.
f.A reparation order;[25]
[25] Ibid s 19-20, ch 7.
g.A non-association or place restriction order;[26]
[26] Ibid Pt 3.4 with additional considerations for young offenders as per s 133I.
h.A driver licence disqualification order;[27]
[27] Ibid s 16.
i.An accommodation order;[28]
[28] Ibid Pt 8A.3.
j.Conviction with no further penalty;[29]
[29] A conviction without penalty is not specifically mentioned in the sentencing legislation. For a recent precedent of its use see Director of Public Prosecutions v Holder (No 2) [2023] ACTSC 167 (SCC 81 of 2022; SCC 82 of 2022) per Baker J at 97.
k.S17 non conviction order and good behaviour order;[30] and
[30] Crimes (Sentencing) Act 2005 (ACT) s 17(2)(b).
l.S17 non conviction order.[31]
[31] Ibid s 17(2)(a).
41.It should be noted that intensive corrections orders and parole are not available as sentencing options for children and young people.
42.The lack of structured options for good behaviour orders is a matter of concern. The PCYC runs a four day per week program named “Project 180”. It is an intervention and diversion program for young people. The program is full and oversubscribed with lengthy waiting lists. I was not made aware of any other such program that could be used as part of a good behaviour order to assist Axl.
43.There is no culturally specific sentencing program that is available for Aboriginal children and young people in the ACT.
44.There is one further, possible and unique outcome for children and young people only. Part 7A of the Court Procedures Act 2004 (ACT) is entitled “Procedural provisions – proceedings involving children and young people”. Within that part lies Division 7A.2 which deals with care and protection considerations in criminal proceedings for children and young people. The part is worth setting out in full as it details the discretionary power to dismiss criminal proceedings where the court is satisfied that the child or young person is in need of care and protection and the court finds that it is in the best interests of that person to dismiss the charge or charges.
74KProceedings dismissed or adjourned for care and protection reasons
(1)If, when hearing an indictment against a child or young person, the court is satisfied that the child or young person is in need of care and protection, the court may—
(a) dismiss the indictment; or
(b) adjourn the proceeding for up to 15 days.
Note Indictment includes information (see Legislation Act, dict, pt 1).
(2)If a court acts under subsection (1), the court must, as soon as practicable but not later than 2 working days after the day it acts, give a statement of the reasons for the action to—
(a) the director‑general; and
(b) the public advocate; and
(c) if the child or young person is an Aboriginal or Torres Strait Islander person—the Aboriginal and Torres Strait Islander children and young people commissioner.
(3)The statement of reasons must contain the following information about the proceeding:
(a) if the proceeding has been adjourned—the reason the proceeding was adjourned;
(b) the circumstances the court is aware of that led to the child or young person coming before the court;
(c) the factors that satisfied the court that the child or young person is in need of care and protection.
(4)The director‑general must treat a statement of reasons given to the director‑general under subsection (2) as if it were a report made under the Children and Young People Act 2008, section 356 (Offence—mandatory reporting of abuse).
(5)In this section:
in need of care and protection, for a child or young person—see the Children and Young People Act 2008, section 345.
74LDirector‑general must report to court, public advocate and Aboriginal and Torres Strait Islander children and young people commissioner
(1)This section applies if—
(a) a proceeding has been adjourned under section 74K (1); and
(b) the court has given the director‑general a statement of reasons under section 74K (2).
(2)Not later than 15 days after the day the court adjourns the proceeding under section 74K (1), the director‑general must tell the public advocate, the Aboriginal and Torres Strait Islander children and young people commissioner and the court, in writing—
(a) what action the director‑general has taken, is taking or proposes to take under the care and protection chapters in relation to the child or young person; or
(b) if the director‑general proposes to take no action under any care and protection chapter in relation to the child or young person—that the director‑general proposes to take no action.
(3)However, for subsection (2), the director-general need only tell the Aboriginal and Torres Strait Islander children and young people commissioner about action taken or proposed to be taken (or that no action is proposed) in relation to an Aboriginal or Torres Strait Islander child or young person.
(4)Without limiting when the director‑general is taken to have complied with subsection (2), the director‑general is taken to have complied with that subsection if the director‑general—
(a) makes an application under the care and protection chapters in relation to the child or young person; and
(b) gives a copy of the application to—
(i) the public advocate; and
(ii) if the child or young person is an Aboriginal or Torres Strait Islander person—the Aboriginal and Torres Strait Islander children and young people commissioner.
74MCourt action after adjournment
(1)This section applies when a proceeding adjourned under section 74K (1) comes before the court again.
(2)The court may dismiss the proceeding—
(a) if—
(i) the director‑general has, under section 74L (2) (a), told the court what action the director‑general has taken, is taking or proposes to take under the care and protection chapters in relation to the child or young person; and
(ii) the court is satisfied that taking the action is in the best interests of the child or young person; or
(b) if—
(i) the director‑general has, under section 74L (2) (b), told the court that the director‑general proposes to take no action under any care and protection chapter in relation to the child or young person; and
(ii) the court is satisfied that it is in the best interests of the child or young person that the director‑general takes no action; or
(c) the director‑general has made an application under the care and protection chapters in relation to the child or young person.
(3)The court may also make any other order or take any other action in relation to the indictment against the child or young person that the court considers appropriate.
45.I have replicated a table of the charges helpfully set out by the Crown Prosecutor:
CHARGE NUMBER CHARGE DETAILS MAXIMUM PENALTY 27 December 2022 CH2022/1490 Drive motor vehicle without consent 500 PU/ 5 years/ both
PEF - $5,000/ 2years/ both
CH2022/1492 Aggravated dangerous drive (first offender, fail to stop, driving with drug in blood, in excess of speed limit by more than 30%) 300 PU/ 3 years/ both
Auto disqualification – 12 months
CH2022/1493 Drive unlicenced (first) 20 PU CH2023/198 Culpable drive cause GBH 10 years
Auto disqualification – 6 months
CH2023/208 Not give assistance after accident causing injury 200 PU/ 2 years/ both 30 January – 2 February 2023
On conditional liberty - bailCH2023/240 Ride motor vehicle without consent 500 PU/ 5 years/ both
PEF - $5,000/ 2years/ both
CH2023/241 Make off without payment 50 PU/ 6 months/ both CH2023/242 Drive motor vehicle without consent 500 PU/ 5 years/ both
PEF - $5,000/ 2years/ both
CH2023/244 Drive unlicenced (first) 20 PU CH2023/250 Drive unlicenced (first) 20 PU CH2023/246 Drive motor vehicle without consent 500 PU/ 5 years/ both
PEF - $5,000/ 2years/ both
CH2023/248 Aggravated dangerous drive (repeat offender, fail to stop, driving in excess of speed limit by more than 30%, and with three people under 17 years old in the vehicle) 500 PU/ 5 years/ both
Auto disqualification – 12 months
PEF - $5,000/ 2years/ both
CH2023/668 Possess prohibited weapon 500 PU/ 5 years/ both CH2023/252 Unlawful possession of stolen property 50 PU/ 6 months/ both 16 February 2023
On conditional liberty - bailCH2023/290 Drive unlicenced (first) 20 PU CH2023/289 Drive motor vehicle without consent 500 PU/ 5 years/ both 23 March 2023
On conditional liberty - bailCH2023/452 Drive motor vehicle without consent 500 PU/ 5 years/ both CH2023/453 Drive unlicenced (first) 20 PU 9 June 2023
On conditional liberty - bailCH2023/830 Fail to appear 200 PU/ 2 years/ both The 27 December 2022 Series (CH2022/1490, 1492, 1493, CH2023/198, 208)
46.Axl was the driver of a stolen white Jeep Compass, seen by police at 6:41pm on 27 December 2022. Police in a marked vehicle followed the Jeep, noting it was a stolen motor vehicle. A pursuit lasting approximately 10 minutes ensued, whereby the young person drove around 15 kilometres. Police lost sight of the vehicle at the intersection of Kingsford Smith Drive and Southern Cross Drive, after the vehicle turned right onto the incorrect side of the road. The various aspects of dangerous driving include:
a.Driving at excess speed;
b.Dangerously overtaking another vehicle and causing evasive action to be taken by that other vehicle;
c.Driving through a red light; and
d.Entering the incorrect side of the road and driving on that road at speed.
47.Shortly after that pursuit had ceased, police observed the Jeep crashed at the intersection of Southern Cross Drive and Ross Smith Crescent, Scullin, ACT. Police observed a Mazda 3 with significant damage and the victim trapped in the vehicle. Police observed two young people running from the scene.
48.An analysis of data obtained from the Jeep’s airbag deployment control revealed:
a.5 seconds prior to the airbag deployment time, the vehicle was traveling at 123km/h in the 80km/h zone, which is 53.4% above the speed limit;
b.At that same time the vehicle was being driven driving on the wrong side of a dual carriage way towards oncoming traffic.
49.Cannabis was detected in Axl’s blood, at a level which impaired his ability to properly control the motor vehicle.
50.The physical injuries suffered by the victim have been previously set out. I received a victim impact statement from him and his brother. It is clear that the offending has not only had an enduring physical impact on the victim, but there are consequential impacts on his mental health, independence, financial wellbeing and his family. He continues to suffer pain, reduced range of movement and an impacted ability to drive.
51.The Aggravated Dangerous Drive (CH2022/1492) carries the following statutory circumstances of aggravation:[32]
[32] Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 7A.
a.Failing to stop for police;
b.Driving in excess of speed limit by more than 30%; and
c.Driving with a prescribed drug in blood.
52.The Supreme Court has previously articulated the following relevant factors in assessing the objectiveness seriousness for the offence of aggravated dangerous driving. As will be seen, there is a significant overlapping with the considerations from Whyte:
a.The manner of driving, and whether other traffic users are put at risk, which includes a consideration of excessive speed, impaired driving, poor driving such as driving on the incorrect side of the road or on a footpath, driving through red traffic lights, erratic driving, and being involved in a police dispute;[33]
[33] R v Massey (No 3) [2021] ACTSC 156 at [34] and [37].
b.The state of the traffic in the area where the driving occurred and the identities of the other parties that were present, such as whether it was near a school area and whether there were pedestrians or drivers nearby. The more persons exposed, the more serious the offence;[34]
c.The period of driving, and the distance travelled;
d.Any actual collisions with other vehicles, roadworks or structures;[35]
e.Should the collision cause damage or injuries, those are relevant aggravating factors;[36]
f.Whether there were any passengers in the vehicle.[37]
[34] R v Eichmann [2019] ACTSC 212 at [24]; and R v Seymour [2021] ACTSC 152 at [39].
[35]R v Massey (No 3) [2021] ACTSC 156 at [37].
[36] R v Blackburn (No 1)[2020] ACTSC 373 at [67].
[37] R v Seymour [2021] ACTSC 152 at [43].
53.The driving that forms the particulars of this charge are the driving that occurs prior to the culpable drive causing grievous bodily harm charge (from approximately 6:50pm, when the young person turns right onto Southern Cross Drive, from Kingsford Smith drive).
54.The statement of facts outline that the young person was driving for a period of approximately 10 minutes and travelled approximately 15 kilometres. There were various aspects of driving that were dangerous. The vehicle consistently travelled at speeds well over the limit. Axl was attempting to evade police.
55.The offending was made more serious (aggravated) because Axl was driving the vehicle in breach of bail conditions. After the collision Axl attempted to flee the scene and he was pursued by police on foot.
56.All of those features indicate to me that the offending towards or slightly above the mid-range of objective seriousness for the charge.
57.It was accepted by the prosecution that this offence has significant overlap with the culpable drive causing grievous bodily harm charge and that care had to be taken to avoid ‘sentencing overlap’ by considering concurrency and totality.
58.The prosecution submitted that the Court should give weight to the sentencing purposes of general deterrence, specific deterrence (noting the young person was on conditional liberty), accountability, denunciation, recognition of harm and protection of the community and rehabilitation.
59.On the charge CH2023/198 Axl was charge with culpable driving by virtue of both driving negligently and whilst under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle.
60.S 29(7) of the Crimes Act 1900 (ACT), defines driving negligently for the purposes of this section as, “…a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case”.
61.The particulars of this charge are, chronologically after the aggravated dangerous drive, at about 6:50pm, the Jeep turned right onto Southern Cross drive from Kingsford Smith drive, entering onto the incorrect side of the road, and prior to the collision was travelling in the direction of incoming traffic at a speed of 123km/h in a 80km/h zone, while under the influence of cannabis to such an extent as to be incapable of having proper control of the vehicle.
62.As I set out at paragraph 17 above, many of the aggravating features discussed in Whyte are present. The offending must be categorized as being at least within the mid range of objective seriousness.
63.As noted in Geagea v The Queen [2020] NSWCCA 350, the offence of Failing To Provide Assistance is directed, at least in part, towards alleviating suffering and preserving dignity. In DPP v Calhoun [2023] ACTSC 189 at [50], Mossop J said:
The legislature has enacted a standard of common decency imposed upon drivers involved in traffic accidents on a road. The gravity of the accident and the knowledge of the need for assistance are the most significant features that determine the seriousness of the provision.
64.In the circumstances of this matter, whilst the rendering of assistance immediately may not have reduced the extent of the injuries suffered, it could have alleviated suffering and preserved the dignity of the victim. Axl should have called emergency services and remained with the victim until their arrival. It is clear from the admissions made by the young person, that he was in possession of a mobile phone.
65.The prosecution submitted that the offending spoke to Axl acting out of selfishness, self-interest and perhaps fear, at the expense of the interest of the victim. Those submissions required an overlay that also considered age, maturity and cultural experience.
66.Charge CH2022/1490 relates to Axl driving the Jeep without the consent of the owner. The Supreme Court has previously articulated the following relevant factors in assessing the objectiveness seriousness for the offence of dishonestly driving or riding a motor vehicle without consent:[38]
[38] R v Elphick [2021] ACTSC 9 at [114], R v Massey (No 1) [2020] ACTSC 256 at [54]-[55] and R v Fry [2021] ACTSC 138 at [49].
a.Whether the offender drove or rode in the vehicle: see R v NN [2018] ACTSC 43;
b.The duration of the driving or riding;
c.The period of time over which the owner was deprived of the vehicle;
d.The nature of the driving;
e.Loss of the vehicle, or damage to the vehicle;
f.Whether the vehicle was used in the commission of other offending;
g.Specific inconvenience or loss caused by taking the vehicle from the owner.
67.The young person was the driver of the Jeep from 6:41pm – 6:51pm on 27 December 2022. The vehicle travelled approximately 15 kilometres during this time. This charge has significant overlap with the charges of aggravated dangerous drive and culpable drive, it was submitted that the aggravating features of this offending including the significant destruction of the Jeep. the dangerous manner in which it was driven and that the vehicle was used in the commission of the other offending.
68.The victim impact statement from the owner was received and considered. Both the taking and the driving of a motor vehicle without consent are serious because of the owner’s dependence on such a valuable purchase: R v Blackburn (No 1) [2020] ACTSC 373 at [59].
69.It was submitted, and I agree, that this offence fell towards the mid range of objective seriousness.
The 30 January – 2 February 2023 Series (CH2023/240-242, 244, 246, 248, 252, 668)
70.For charge CH2023/240 – Ride motor vehicle without consent - the statement of facts tendered set out that Axl was a passenger in the VW Jetta for five minutes from 11:55pm on 31 January 2023 – 12:00am on 1 February 2023. That same vehicle was used in the commission of the make off without payment offence (CH2023/241).
71.These offences fall within the low range of objective seriousness.
72.The victim detailed the harm suffered as a result of this offence and it was taken into account.
73.For charge CH2023/242 - Drive Motor Vehicle Without Consent - Axl was the driver of a BMW from 3:22am to 3:27am on 1 February 2023. The vehicle was ultimately located by police at 8:30pm that day.
74.During this period of driving the young person was also unlicenced, which is separately charged.
75.There was no victim impact statement, but I accept that there was inevitable inconvenience and expense caused to the victim. I find that the offending falls within the lower range of objective seriousness for these charges.
76.Charge CH2023/246 - Drive motor vehicle without consent relates to an Audi A3 that was driven by the young person from approximately 8:30pm to 8:45pm on 2 February 2023. The nature of that driving is the subject of the aggravated dangerous drive charge. Briefly, it involved a collision, a lengthy police pursuit, driving at significant speeds, and other vehicles being required to take evasive action. The vehicle was damaged in the collision with police, described in the facts as “significant damage to the right side of the Audi A3.” A tyre was also deflated in an attempt by police to ‘stop stick’ the vehicle during the pursuit.
77.During this period of driving the young person was also unlicenced, which is separately charged. Both charges lie within the median level of objective seriousness.
78.The victim impact statement from the owner of the vehicle was received and considered.
79.Charge CH2023/248 Aggravated Dangerous Driving has the following statutory circumstances of aggravation:
a.Failing to stop for police;
b.Driving in excess of speed limit by more than 30%; and
c.Driving with three people under 17 years old in the vehicle.
80.Axl is a repeat offender in relation to the offence.
81.The statement of facts outline that Axl was driving for a period of approximately 15 minutes and travelled through various streets in Macgregor.
82.The vehicle consistently travelled at speeds well over the speed limit. During the pursuit, the Audi undertook vehicles in front of it and almost collided with the gutter on three occasions, crossed double unbroken lines on five occasions, swerved onto the wrong side of the road towards an unmarked police vehicle with lights and sirens activated, drove on the wrong side of the road and caused other vehicles to take evasive action.
83.The driving involved a collision with a police vehicle with an unsuccessful attempt to swerve around the police vehicle, and after colliding, continuing to accelerate forward and push past the vehicle.
84.The road conditions were dark. There was obvious traffic.
85.The driving only ended after tyre deflation device were successfully deployed by police.
86.It is obvious that Axl was attempting to evade police. He was in breach of bail conditions that were set to prevent him from driving. He attempted to flee the scene and was pursued by police on foot. All of those are aggravating features.
87.This offence falls in the mid to higher range of objective seriousness for the charge.
88.Charge CH2023/668 – Possess Prohibited Weapon related to the simple possession of a flick knife upon arrest. Given that there was no evidence concerning its past or intended future use, this is a minor example of the offence.
89.CH2023/252 is a charge of Unlawful Possession of Stolen Property relates to criminal liability for possessing items which in all the circumstances were reasonably suspected of being stolen or otherwise unlawfully obtained. Axl is not criminally responsible for the taking of those items.
90.The items possessed were a BMW key, a Hyundai Santa Fe key and a wallet containing an ACT driver licence and bank cards. They are items which would cause inconvenience to the owners when lost and a functional purpose and an inconvenience in replacing. There is no direct evidence as to the value of the items possessed. There is no particular sentimental value for those items.
91.The charge is rolled up to combine a number of similar charges but falls towards the lower range of objective seriousness for the offence.
The 16 February 2023 Series CH2023/289-290
92.For charge CH2023/289 - Drive Motor Vehicle Without Consent - Axl was the driver of the Skoda as it was driven through Florey at high speed and in a way that caused another road user to take evasive action to avoid a collision. The vehicle also travelled through a red light.
93.The vehicle was ultimately located by police in Macgregor, about an hour after Axl was observed driving the vehicle.
94.Axl was driving whilst unlicenced, which is separately charged as CH2023/290. He was on bail after the commission of serious driving offences in similar circumstances.
95.The offending is below the mid-range of objective seriousness.
The 23 March 2023 Series CH2023/452-453
96.For charge CH2023/452 - Drive Motor Vehicle Without Consent - Axl was the driver of the BMW for a brief period in Fyshwick. There was nothing remarkable about the manner of driving.
97.Axl was driving whilst unlicenced, which is separately charged as CH2023/453.
98.The offending lies at the lower end of objective seriousness for both charges.
The June 2023 Charge - CH2023/830 – Fail to Appear
99.This charge arose in circumstances where Axl was granted day bail to attend various programs to assist in his rehabilitation. He absconded from the Ted Noffs Street University, in breach of bail, and subsequently failed to return to Court for his bail to be revoked. Axl was detected on 16 June 2023 and did not voluntarily hand himself into police or the Court.
100.The court record reflects that 9 June 2023 was a mention date only and the offending lies towards the lower end of the range of objective seriousness for failing to appear.
The decision of Bugmy and Sentencing Aboriginal Offenders
101.Axl has endured an extremely traumatic upbringing which undoubtedly engages the principles discussed by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’).
102.Bugmy confirmed that when sentencing Aboriginal offenders "full weight" should be given to an offender's deprived background in every sentencing decision. I am compelled to give full weight to Axl’s ‘subjective features’ that I set out at the beginning of this decision.
103.The Bugmy Bar Book[39] sets out in detail some of the experiences relevant to many Aboriginal people:
[39] Bugmy Bar Book Project Committee, Bugmy Bar Book (November 2019).
a.Foetal alcohol spectrum disorders;
b.Exposure to domestic and family violence;
c.Incarceration of a parent or care-giver;
d.Interrupted school attendance and suspension;
e.Out of home care
f.Childhood sexual abuse;
g.Early exposure to alcohol and other drug abuse,
h.Stolen generations and descendants;
i.Acquired brain injury;
j.Hearing impairment;
k.Homelessness;
l.Unemployment;
m.Cultural dispossession;
n.Social exclusion;
o.Low socio-economic status; and
p.Impacts of imprisonment or remands in custody.
104.It is clear that Axl has been exposed to many of those experiences, or his personal history is relevant to them.
105.The prosecution submitted that the Bugmy principles would operate in this matter to moderate the young person’s moral culpability for his offending and limit the weight to be given to general deterrence. However, they submitted that general deterrence still had a moderated role to play noting the seriousness of the offending conduct. I accept those submissions.
The decision of Verdins and Impaired Mental Functioning
106.Verdins[40] is a Victorian case that helpfully set out sentencing principles for criminal offenders suffering from impaired mental functioning:
[40] R v Verdins (2007) 16 VR 269 at paragraphs 31-32.
Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[40]
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
107.The prosecution submitted that it is not currently clear whether these conditions give rise to the application of the Verdins principles.
108.The defence submitted that all off the offending, bar the failure to appear, pre-dated the Young Person’s clinical psychiatric diagnosis and that there is a causal connection between his mental condition and his offending (prior to 26 April 2023). The defence pointed to the compulsion to do certain things by way of auditory hallucinations, the presence of persecutory delusions (pertaining to fears of being followed) in circumstances where failing to stop for police was a material ingredient to the Young Person’s most serious offences. Ultimately the defence submitted that Axl’s psychiatric diagnosis:
a. Reduces his moral culpability; and
b. Moderates the importance of deterrence (both general and specific).
109.The Kasinathan report was not tendered. There was no evidence before me linking the hallucinations and commands as being causative of Axl’s criminal behaviour and I do not sentence on that basis.
110.Common sense and life experience informs the Court about there being multiple explanations for fleeing from a police pursuit and collision scene – the thrill of the chase, consciousness of guilt and a desire to avoid apprehension being primary ones.
Offending whilst on conditional Liberty
111.With respect to all but the first series of offences, Axl was on conditional liberty at the time of the commission of the offences. That is, he was subject to bail with specific conditions about not driving.
112.Being on conditional liberty at the time of the commission of the offences is a serious aggravating feature at sentence, but care is required to avoid double punishment: Kelly v Ashby [2015] ACTSC 346 at [61]. The defence conceded that this was an aggravating feature of the offending and I took it into account.
113.It deeply concerns me to have learnt from this and other matters in the ACTCC that there is no bail support service for Aboriginal children and young people charged with criminal offences. Such a service might have improved Axl’s chances of not reoffending and of appearing in Court. I gave that fact some weight when considering the seriousness or aggravating nature of offending whilst on bail. Axl’s age and immaturity were other relevant factors.
Parity Between Co-Offenders
114.With respect to the charges arising from offending on 27 December 2022, a co-young person was charged with riding in a stolen motor vehicle and was sentenced to a non -conviction order.
115.In relation to the offending on 30 January to 2 February 2023, the sole co-young people that has been sentenced prior to Axl received a non conviction order and a good behaviour order for 6 months.
116.For the offending on 23 March 2023, one co-young person has been sentenced to two months’ imprisonment, suspended after serving one month with a six month good behaviour order.
The Type of Sentence Required
117.The prosecution submitted that no sentence other than a term of imprisonment was appropriate for the culpable drive causing grievous bodily harm charge (CH2023/198), and aggravated dangerous drive charge on the same date (CH2022/1492), aggravated dangerous drive on 2 February 2023 (CH2023/248), and drive motor vehicle without consent (CH2023/242, 246) arising on that date, and subsequent dates (CH2023/289, CH2023/452) called for periods of imprisonment to be imposed.
118.The prosecution submitted that a further sentence involving custody and followed by a lengthy period of supervision in the community would be appropriate as described in MT at [68], [69]:
A “combination sentence” of full-time imprisonment followed by a good behaviour order enables the imposition of a very short sentence of full-time imprisonment, followed by a good behaviour order. For example, such a sentence may be appropriate for a young offender who is in full-time detention when they appear for sentence, if the sentencing court considers that they should be released forthwith, subject to a significant period of supervision on a good behaviour order.
…
A “combination sentence” comprising a suspended sentence and a good behaviour order enables the imposition of a partly suspended sentence within which the unsuspended part is of any appropriate length and, following release, the failure of the young offender to comply with the conditions of the associated good behaviour order places them at risk of serving the suspended part of the sentence in full-time detention. Such a sentence simultaneously supports good behaviour while disincentivising antisocial behaviour (the “carrot and stick” approach to behavioural reform).
119.The defence conceded that no sentence other than a term of imprisonment was appropriate in relation to the following offences:
a.Culpable driving causing grievous bodily harm on 27 December 2022 (CH2023/198);
b.Aggravated dangerous driving on 27 December 2022 (CH22/1492);
c.Aggravated dangerous driving on 2 February 2023 (CH23/248); and
d.Drive motor vehicle without consent on 23 March 2023 (CH23/452).
120.Ultimately, I agreed in part with both of these submissions. I decided that most of the charges should be dismissed pursuant to Division 7A.2 of the Court Procedures Act 2004 ACT this was because, as per the s74L report, Axl is a child in need of care and protection and it was clearly in Axl’s best interests for me to dismiss those charges. Axl is young, has no criminal convictions and has led an extremely deprived life. He deserves the opportunity to proceed through this stage of immaturity and destructive criminal behaviour to a crime free and constructive adult life. A host of criminal convictions from childhood would seem unlikely to assist him in achieving that purpose – particularly in circumstances where the sentences for those offences would be largely consumed or completely overlapped by the sentences of the most serious charges.
121.I did not think it was in Axl’s best interests to dismiss what I thought were the three most serious charges. They were so serious that I thought it was in his best interests to recognise those charges and his behaviour by sentencing him at law and not dismissing them for care and protection reasons.
122.I decided that the three most serious charges should form a sentence that was structured to reflect adequate punishment in the circumstances of Axl and his offending, deter Axl and other young people from committing those offences, allow for community protection, make Axl accountable, denounce his conduct, recognise the effect on the victims and most importantly - promote Axl’s rehabilitation.[41]
[41] See s 7 Crimes (Sentencing) Act 2005 (ACT).
123.I sentenced Axl to imprisonment on only two charges out of 21 because I thought that there was no other appropriate other option for those charges.[42] I found, after considering everything that you have just read and been referred to, that there were proper, lesser, options for all of the other charges. As I stated previously – for most of those 19 remaining charges dismissal was my decision.
[42] S 10 Crimes (Sentencing) Act 2006 (ACT).
124.If there had been a place available on the PCYC Project 180 program I would have fashioned the sentence to include it. Similarly, had there been any Aboriginal specific sentencing options I could also have considered fashioning them into the sentence. There was not.
125.I did consider the principle of totality when sentencing on the two charges where imprisonment was imposed. Because they were different sets of offending, because the second occurred whilst on bail for the first and because of the unique youth specific way I have dealt with these offences, I felt that there was no need to overlap the sentences in the circumstances. In other words when I stood back and looked at the over sentence it did not require an adjustment.
Sentence of the Court
126.This is the transcript of how I sentenced Axl:
HIS HONOUR: [Axl], one thing that concerned me when I read all of this material was the fact that you are worried that people aren't going to like you because of all of this. It is not that people don't like you, it is just that they don't like what you have done, and they are two very different things. Everybody is capable of turning around things from past behaviour. There is nothing in this world to stop you from succeeding, okay?
AXL’S FATHER: That's right.
HIS HONOUR: And I have some belief that you are able to succeed. There are plenty of jobs and plenty of ways that you can use this past behaviour for other people's benefit. You can help other young people, in time, not do this. So this is not the end for you. You are not someone who needs to be locked up with the key thrown away. You are someone who is very young who needs to help yourself and you need others to help you to turn things around, but I am confident that if you get that help, you can do pretty much whatever you want.
THE YOUNG PERSON: Thank you.
HIS HONOUR: You have good, sound goals for the future and I believe you can achieve those if you stop offending. So I have made this sentence fit you to try and encourage you to stop offending. I am not going to say anything else because I am going to have pages and pages and pages of things to say about all of this material that I have considered about your past, in particular, and how there needs to be more resources to help you within the ACT, but what I have done is this.
On charge 1492/2022, which was the aggravated dangerous driving charge, that is from 27 December 2022 when you were just a few days older than 15, I am finding that charge proved and I am convicting you and I am sentencing you to a two‑year good behaviour order. That is going to fit in with what I have done with some other charges.
The purpose of that order, primarily, is to assist you, is to keep you on a long period of supervision by CYPS to help you. That will take you through to just short of your 18th birthday, so about four months short. As I said, that is designed to assist you. The kick with that is that I am disqualifying you for 12 months from driving, so you won't be able to get your learner's for 12 months on that charge.
The most serious charge that I have got to deal with you for is (CH2023/198) the culpable driving causing grievous bodily harm to that gentleman there. You injured him in a terrible way and he did not deserve that. I have considered all of the materials before me. In particular, I have had the closest regard to the New South Wales Supreme Court decision of Whyte and the ACT decision of R v Ogle (No 2).
I note the guilty plea. I thought that an appropriate start point for a matter such as this, in all of the circumstances of this young person, was 12 months imprisonment. I have reduced that to nine months on account of the guilty plea. There will be a disqualification for 12 months. That is concurrent with the earlier disqualification and it will be suspended after seven months and six days. [Axl] has served that time, so if he wishes to sign the good behaviour order that I have in mind, he will be released on that charge today.
On the further charge of (CH2023/248) aggravated dangerous driving, I have held that there is no other appropriate sentence than the sentence of imprisonment. That offending occurred on 2 February 2023. [Axl] was only a month older then than the previous charge. I thought that an appropriate start point there was four months imprisonment. I have reduced that to three on account of the guilty plea. In my view, it should be wholly cumulative on the nine months, after considering totality. So the total sentence will be 12 months imprisonment, wholly suspended after seven months and six days, and there will be a further 12 month disqualification on the top, so you are disqualified from driving for two years.
On the rest of the charges, charges of 2022/1490, 1492, 1493 and of 2023/208, 240, 241, 242, 244, 246, 248, 250 and 252, I have come to a different conclusion. Considering section 74M of the Court Procedures Act 2004, in my view it is [Axl’s] best interests that those matters be dismissed. There are many reasons for that but one of the most striking reasons is that I've already dealt with him in a most serious way for three other offences and for those three other offences that I've just read out the sentences on, in my view it was not in the best interests of [Axl] to dismiss those charges.
He had to be dealt with at law and had to be sentenced at law. On the remaining charges, all of 2023/668, 830, 452, 453, 289 and 290, I could not use section 74 of the Court Procedures Act. That is because the mechanism for section 74M, the report under section 74K and L, was not ordered to include those charges and it appears to me on a basic reading of section 74M I cannot use that section where they are not the subject of a report. Given that my intention was to dismiss all of those charges pursuant to section 74M, for those one, two, three, four, five, six charges, I have dealt with them all in the same way.
They are proved and dismissed pursuant to section 17 because I find special or exceptional circumstances. That is, that essentially due to an administrative oversight of the court I could not use section 74M to dismiss them and I have dealt with [Axl] in a most serious way for the three most serious charges that he has committed. [Axl], I want to read to you the two-year good behaviour order. That applies from today and that's for charge 1492 which was the first dangerous driving charge. You are to be under supervision for 24 months or such lesser period as appropriate by the director-general.
You are to report to Child and Youth Protection Services straightaway and you are to attend any educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed. You are to supply samples of your breath, blood, hair, saliva and urine for alcohol or drug testing if required and you're to undertake medical treatment and supervision if you are directed. You're to attend any rehabilitation programs as directed and any education and training programs as directed and you're not to drive a motor vehicle for that two years, okay. That works in exactly with the two years worth of disqualifications that I've given you.
On the two sentences of imprisonment, I have imposed exactly the same suspended sentence order. They add up to 12 months. They're backdated to 31 January this year and they're suspended after seven months and six days because you have served seven months and six days. If you were an adult and I had sentenced you to 12 months imprisonment you would have been eligible potentially for parole one month and six days ago so on one view of it you've perhaps done a little bit longer than you might have. That suspended sentence order says that you're sentenced for 12 months altogether imprisonment. It's backdated to 31 January this year.
It's suspended after serving seven months and six days which means you're eligible for release now. You're to be on supervision for 12 months and you're to report to CYPS straightaway and the conditions are the same as your good behaviour order. You're to attend anything in terms of education, assessments, programs or counselling and you supply samples of breath, blood, hair, saliva or urine for alcohol or drug testing. You're to undertake medical treatment and supervision as directed, any rehabilitation program and any education and training program and you're not to drive a motor vehicle.
For the next year, you've got nearly five months imprisonment hanging over your head. That's to protect the community and it's to send you a message that if you re-offend, particularly with driving, you are going to get that five months, or six days less of five months, to serve plus whatever sentence you get for any breaching behaviour. If, as I hope, there's no more offending from you, that's the end of it. You get the help of those good behaviour orders and you move on with your life. But what you've got hanging over your head for a year is another five months basically to serve if you do anything wrong. Do you get that?
THE YOUNG PERSON: I do.
HIS HONOUR: As I said, it's to stop the risk to everybody in the community from your extraordinarily dangerous driving and it's to help you get back on track, okay. Do you understand how the sentences work?
THE YOUNG PERSON: Yes, I do.
HIS HONOUR: No driving for two years.
THE YOUNG PERSON: Yes.
HIS HONOUR: No offending for 12 months otherwise you go back in and serve the rest of that five months. Do you understand?
THE YOUNG PERSON: Yes, I do.
127.The dispositions of each charge are repeated in this table:
CHARGE CHARGE DETAILS DISPOSITION 27 December 2022 CH2022/1490 Drive motor vehicle without consent Dismissed per s74M(2)(a)(ii) CH2022/1492 Aggravated dangerous drive (first offender, fail to stop, driving with drug in blood, in excess of speed limit by more than 30%) Convicted. 2 year good behaviour order imposed. Disqualified for 12 months concurrent with CH 23/198 CH2022/1493 Drive unlicenced (first) Dismissed per s74M(2)(a)(ii) CH2023/198 Culpable drive cause GBH 9 months imprisonment suspended after 7 months and 6 days by a 12 month good behaviour order. 12 months disqualification CH2023/208 Not give assistance after accident causing injury Dismissed per s74M(2)(a)(ii) 30 January – 2 February 2023 CH2023/240 Ride motor vehicle without consent Dismissed per s74M(2)(a)(ii) CH2023/241 Make off without payment Dismissed per s74M(2)(a)(ii) CH2023/242 Drive motor vehicle without consent Dismissed per s74M(2)(a)(ii) CH2023/244 Drive unlicenced (first) Dismissed per s74M(2)(a)(ii) CH2023/250 Drive unlicenced (first) Dismissed per s74M(2)(a)(ii) CH2023/246 Drive motor vehicle without consent Dismissed per s74M(2)(a)(ii) CH2023/248 Aggravated dangerous drive (repeat offender, fail to stop, driving in excess of speed limit by more than 30%, and with three people under 17 years old in the vehicle) 3 months imprisonment wholly suspended by a 12 month good behaviour order. 12 months disqualification cumulative on CH2023/198. CH2023/668 Possess prohibited weapon S17 dismissed CH2023/252 Unlawful possession of stolen property Dismissed per s74M(2)(a)(ii) 16 February 2023 CH2023/290 Drive unlicenced (first) S17 dismissed CH2023/289 Drive motor vehicle without consent S17 dismissed 23 March 2023 CH2023/452 Drive motor vehicle without consent S17 dismissed CH2023/453 Drive unlicenced (first) S17 dismissed 9 June 2023 CH2023/830 Fail to appear S17 dismissed 128.I note that the parties did not make a submission about the use of s 74(K)(1) of the Court Procedures Act 2004 (ACT) in the absence of an accompanying s74L report. The force of s74K (1) has been brought to my attention in another matter since sentencing Axl.
129.It is now my view that a dismissal pursuant to s74K(1)(a) could have been used instead of finding charges proved and dismissing them pursuant to s17 of the Crimes (Sentencing) Act 2005 ACT. If I receive no submissions to the contrary from either party within seven days of this decision, I intend to use s61 of the Crimes (Sentencing) Act 2005 ACT in Chambers and amend the sentences by dismissing charges 2023/668, 830, 452, 453, 289 and 290 pursuant to s 74K(1)(a) of the Court Procedures Act 2004 ACT.
I certify that the preceding one hundred and twenty-nine [129] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Stewart
Associate: Jonathan Pears
Date: 06 October 2023
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