R v A
[2016] ACTSC 187
•13 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v A |
Citation: | [2016] ACTSC 187 |
Hearing Date: | 13 July 2016 |
DecisionDate: | 13 July 2016 |
Before: | Murrell CJ |
Decision: | Good behaviour order cancelled. Re-sentenced to six months’ imprisonment, suspended after three months upon the young person entering into a four-month good behaviour order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – young person – on conditional liberty – failure to accept supervision – further offences committed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 133G |
Parties: | The Queen (Crown) A (Offender) |
Representation: | Counsel Mr M Fernandez (Crown) Mr H Jorgensen (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 185 of 2013 |
MURRELL CJ:
The young person is before the Court for a breach of a good behaviour order associated with a suspended sentence. The breach is admitted.
History
The matter has a long history. The original offence, attempted aggravated robbery, was committed in August 2013. The young person received an 18-month sentence of imprisonment from 20 June 2014 to 19 December 2015, suspended on 4 December 2014 upon the young person entering into a good behaviour order for a period of 12 months and two weeks.
Soon after the young person was released in December 2014, he breached the good behaviour order by failing to comply with most of the requirements, including reporting to his supervisor. He came before the Court for this breach in July 2015. He was re‑sentenced to 12 months' imprisonment, suspended from 30 July 2015 upon him entering into a two-year good behaviour order, which included the condition that he accept the supervision of Youth Justice and comply with all their directions. However, as a result of matters before the Childrens Court, he remained in custody from July 2015 to February 2016.
On about 6 February 2016 he was released. He immediately failed to comply with the supervision and to accept the directions of Child Youth Protection Services (CYPS).
In April 2016, he was arrested in relation to an incident that occurred in May 2015 and returned to custody. He is serving a six-month sentence from 8 April 2016, which will be suspended after five months, on 7 September 2016.
Considerations
The young person is now 17 years old.
Pre-sentence and CADAS reports show that the young person comes from a very difficult and disadvantaged background. CYPS workers have been involved since he was nine years old. His mother had a substance abuse problem and there was domestic violence in the household. The young person has had a difficult relationship with his mother, although he is attached to her.
He abused substances from 11 years of age, including amphetamines from 12 years of age. He was a heavy user of amphetamines from 16 years of age. Unfortunately, he does not perceive his drug use to be problematic, making it very difficult to treat.
The young person suffers from Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD). He has a mild intellectual disability (full scale IQ 68), although he managed to complete the Year 10 Certificate.
There is no history of employment and no indication of career aspirations.
Independent living would present difficulties because of the young person’s intellectual disability and disadvantaged background. He would need support to develop independent living skills.
He remains very vulnerable to influence by negative peers. He has demonstrated difficulty complying with community based orders, no doubt due to the conditions of ADHD and ODD, intellectual disability and the lack of past domestic stability. In addition, since 13 years of age he has spent a significant amount of his life in custody. He struggles to live in the community.
His prospects are bleak. According to the author of the pre-sentence report, there are eight areas of "high need", including education, employment, substance abuse, personality and behaviour, attitudes and orientation.
On the one hand, he is already significantly institutionalised. On the other hand, it is only within institutions that he has achieved stability and made progress (for example, by obtaining the Year 10 Certificate).
The young person does have a family friend, Ms Webb, who provides him with some support and is said to be a positive influence. He would like to reside with her. Whether that would work is unknown, but at least it offers some hope to the young person.
I will cancel the good behaviour order and re-sentence the young person. Ordinarily, where a suspended sentence has been imposed an offender should expect that a breach, particularly a persistent breach, of the associated good behaviour order will result in the offender serving the whole sentence. However, I must ensure that the young person serves a custodial sentence only to the extent that is strictly necessary. Section 133G of the Crimes (Sentencing) Act 2005 (ACT) provides that imprisonment must be for the shortest appropriate term.
Sentence
The breach is established.
The good behaviour order is cancelled and the young person is re-sentenced to six months' imprisonment from 8 July 2016 to 7 January 2017. The sentence is suspended after three months, from 7 October 2016, upon the young person entering into a good behaviour order for a period of four months. It is a condition of the good behaviour order that the young person reports to CYPS within one working day of release and accepts their supervision for the whole of the period of the order.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Anneke Bossard Date: 27 July 2016 |
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