Police v Pedro Swain (a pseudonym) - [2024] ACTCC 1

CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v Pedro Swain (a pseudonym)

Citation:

[2024] ACTCC 1

Hearing Date:

16 January 2024 (oral) and 24 January 2024

Decision Date:

24 January 2024 and 06 February 2024

Before:

Magistrate Stewart

Decision:

See [69]-[87]

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 – 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

Legislation Cited:

Children and Young People Act 2008 (ACT)

Crimes Act 1900 (ACT)

Criminal Code 2002 (ACT)

Crimes (Sentencing) Act 2005 (ACT)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Kelly v Ashby [2015] ACTSC 346

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

R v Verdins (2007) 16 VR 269

Texts Cited:

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

Parties:

ACT Director of Public Prosecutions ( Prosecution)

Pedro Swain (a pseudonym) (Young Person)

Representation:

Counsel

E. Narouz ( Prosecution)

P. Edmonds (Young Person)

Solicitors

ACT Director of Public Prosecutions

Canberra Criminal Lawyers

Informants:

Leigh Robert Cantle, Scott Thomas Heyne, Katie Nixon, Katelyn Julie Pomroy and Mark Wadley

File Numbers:

CH 1411 of 2022; CH 956-958 of 2023; CH 949-951 of 2023; CH 953 of 2023; CH 1349-1350 of 2023; CH 1014-1015 of 2023; CH 1498 of 2023; CH 299 of 2023; CH 1289 of 2023; CH 1291-1292 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 Childrens Court (ACTCC). A pseudonym has been used in the hope that the young offender is not identified, embarrassed or prejudiced by this decision.

Who is Pedro Swain?
2.Pedro is aged 17 years and one month. He is a proud Wiradjuri young person and is learning more about his Aboriginality every day.[1] Our legislation defines him as a ’young person’ because he is 12 years or older, but not an adult.[2] I decline to make any observations about his physical appearance or attributes, because that would only assist in identifying him.
[1] Cultural Care Plan dated 03 August 2023.
[2] A child is defined to be aged under 12. See s 11-12 Children and Young People Act 2008 (ACT).
3.Pedro did not choose to be born into the social deprivation that he has experienced since birth. Pedro’s ‘subjective features’[3] are worth re-reading and considering in light of the expected lived experience of an average Australian 17 year old. Pedro:
[3] This information is derived from the comprehensive pre-sentence report (PSR) dated 24 August 2023 and the Child and Youth Protection Services Case Plan dated 24 August 2023 except where otherwise footnoted.

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: [2024] ACTCC 1
Decision Date: 24 January 2024 and 06 February 2024

CaseChat Overview and Summary

The respondent, Pedro Swain, was charged with various offences including assault occasioning actual bodily harm, unlawful possession of a knife, and entering a dwelling with intent. The case was heard in the Australian Capital Territory Children's Court, where the central dispute involved the appropriate sentencing for a young person who had committed these offences while on conditional liberty. The court was tasked with considering the relevant sentencing principles, particularly those that apply to Aboriginal offenders and the principle of parity as established in the Bugmy and Verdins cases.

The legal issues before the court included whether the principle of parity required a different approach to sentencing for Aboriginal young people, and whether the totality principle could be applied in a way that provided some flexibility in sentencing, given the significant time already spent in custody by the respondent. The court also needed to determine if the absence of a bail support program specifically designed for Aboriginal young people or children in the ACT should be considered in the sentencing process.

The court held that while the principle of parity required consideration of the unique circumstances of Aboriginal offenders, it did not mandate a specific sentence. Instead, the court applied the totality principle, recognising the significant time the respondent had already spent in custody. The court found that imprisonment was the only appropriate option for certain charges due to the nature of the offences and the need to protect the community. The sentence was partially suspended, taking into account the respondent's age and the potential for rehabilitation, as well as the absence of a tailored bail support program for Aboriginal young people or children in the ACT.

The final orders of the court included a partially suspended sentence with specific conditions, recognising the unique circumstances of the respondent and the need to balance the requirements of justice with the rehabilitative potential of the sentence. The court emphasised the importance of considering the broader context of the respondent's offending and the need for appropriate support mechanisms to facilitate rehabilitation and reduce recidivism.

Orders

Orders of the court

See [69]-[87]

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 Pedro Swain (a pseudonym)
Citation:	[2024] ACTCC 1
Hearing Date:	16 January 2024 (oral) and 24 January 2024
Decision Date:	24 January 2024 and 06 February 2024
Before:	Magistrate Stewart
Decision:	See [69]-[87]
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 – 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
Legislation Cited:	Children and Young People Act 2008 (ACT) Crimes Act 1900 (ACT) Criminal Code 2002 (ACT) Crimes (Sentencing) Act 2005 (ACT)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Kelly v Ashby [2015] ACTSC 346 Police v Axl Joseph (a pseudonym) [2023] ACTCC 1 R v Verdins (2007) 16 VR 269
Texts Cited:	Bugmy Bar Book Project Committee, Bugmy Bar Book (November 2019)
Parties:	ACT Director of Public Prosecutions ( Prosecution) Pedro Swain (a pseudonym) (Young Person)
Representation:	Counsel E. Narouz ( Prosecution) P. Edmonds (Young Person)