R v Ak
[2015] ACTSC 147
•31 March 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v AK |
Citation: | [2015] ACTSC 147 |
Hearing Dates: | 14 November 2014; 12 December 2014; 6, 23 February 2015; 27, 31 March 2015 |
DecisionDate: | 31 March 2015 |
Before: | Penfold J |
Decision: | 1. The GBO imposed on 15 August 2014 is cancelled. 2. The offender is convicted and re-sentenced for the offence of aggravated robbery (CH12/1610) to 18 months imprisonment, to be served from 10 November 2013 to 9 May 2015. 3. The offender is convicted and sentenced for the offence of burglary (CH 14/00677) to 9 months imprisonment, to be served from 10 November 2014 until 9 August 2015. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – re-sentence on breach of good behaviour order – numerous prior breaches and re-sentences in relation to same 2012 offence – numerous breaches of bail conditions during re-sentencing processes – offender ordered to serve remaining term of total sentence (just over four months) in full-time custody and thereby finalise all sentences for juvenile offending before becoming an adult in December 2015. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence for burglary – nine months imprisonment, served to add three months to total sentence. |
Parties: | The Queen (Crown) AK (Offender) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Ms K Bolas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kim Bolas Criminal Law (Offender) | |
File Numbers: | SCC 239 of 2012; SCC 307 of 2014 |
On 3 September 2013 I sentenced AK, for an aggravated robbery committed in November 2012 at a supermarket in Wanniassa, to 18 months imprisonment. The sentence was backdated slightly, and partly accumulated on an earlier sentence of 20 months imprisonment imposed for an earlier aggravated robbery. That earlier sentence has since been completed.
The 18-month sentence was suspended from 17 March 2014, leaving 10 months of the sentence still to serve. At that point, AK became subject to a two-year good behaviour order, with conditions to accept Youth Justice supervision and obey all reasonable directions of his Youth Justice supervisor, including by undertaking counselling, courses, programs or treatments as directed, especially in relation to alcohol and other drug abuse.
AK failed to comply with directions given by Youth Justice, and by May 2014 he was back in custody. On 9 July 2014, he was granted bail to attend Ted Noffs. Unfortunately, he stayed there only a few hours before absconding with a girlfriend. AK was arrested a couple of weeks later, and on 15 August 2014 I re‑sentenced him again, this time requiring him to remain in custody until 27 October 2014, at which point the remaining five months of his sentence would be suspended subject to yet another good behaviour order, this time for eight months. That good behaviour order included the standard conditions, and also a non‑association condition requiring him to keep away from the girlfriend already mentioned and her mother, both of whom are also known to police.
This time, AK breached the good behaviour order within 24 hours by failing to return to his mother’s home where he had been directed to live. Breach proceedings were again brought, a warrant was issued and AK was arrested on 10 November 2014. He remained in custody for some time after I refused a bail application made at short notice proposing that he move into crisis accommodation that was available for a maximum of four days.
AK admitted that breach of the good behaviour order and told Youth Justice officers that during that period in the community he had smoked Ice a couple of times, but claimed that he had not committed any further offences, saying that he doesn’t “do crime” anymore.
On 12 December 2014 AK appeared before me for a re‑sentencing. On that date, there was before me an updated pre‑sentence report prepared by Youth Justice workers reporting relatively poor behaviour while AK was in custody from August to October 2014. The period from 10 November and leading up to 12 December, however, appeared to have involved some relatively constructive discussions between AK and Youth Justice workers, including with a newly engaged Aboriginal and Torres Strait Islander Engagement and Cultural Officer, in which discussions AK was said to have shown some insights into his behaviour and what changes he would need to make in order to remain out of the criminal justice system.
Youth Justice reported, however, that AK had also demonstrated manipulative behaviour, a tendency to blame those around him for his poor decision making, and a fatalistic approach to his future, in which he perceived Bimberi (in other words custody) to be his home and time spent in the community to be a holiday. Youth Justice officers had at that point been unsuccessful in helping AK to modify his dysfunctional and unhelpful thinking patterns through cognitive behavioural therapy.
There was no suggestion in that pre‑sentence report that AK had any real wish to undertake residential drug and alcohol rehabilitation, although he had apparently said that he would consider this in the new year if he were released from custody for his birthday and Christmas. AK did not seem to understand that rehabilitation was recommended in his own interests as much as in the interests of the community, and that this was not a matter about which he could bargain with the court.
Youth Justice recorded that AK had limited capacity to comply with either a bail order or a good behaviour order, or to self manage his behaviour in the community. The report warned that any further supervised order may result in further breach action.
Youth Justice also recommended that AK should be kept away from Ms B, the girlfriend already mentioned, partly for her own protection, and also from her mother, who according to AK is an active methamphetamine user.
Youth Justice also reported at that stage that AK had indicated that he would prefer to serve the remainder of his suspended sentence so that on release he is not subject to any further direct supervision or other restrictions.
At the 12 December 2014 hearing, AK read a letter to the court explaining that he hoped for the chance to spend Christmas with his family, and pointing out that he had not been charged with any new offences in over 18 months, although it turns out that was something of an exaggeration as far as committing new offences was concerned.
Submissions were made on AK’s behalf that he should be released to live at Richmond Fellowship, but Youth Justice officer Jessica Monson gave evidence that this was not regarded as a suitable place for AK. She pointed out that it was used to provide accommodation for children who had no stable home to go to, which was not AK’s position, and that it provided no day to day structure, such as AK appears to need to keep him out of trouble. There was, she said, nothing in the way of rehabilitation or other support services that could be provided to AK in Richmond Fellowship that could not also be offered to him at home. For this reason, it seems that Youth Justice had made no attempt to find a place for AK at Richmond Fellowship, and nor did it seem to me that I should exercise any power I might have had to order them to arrange such a place for him.
These submissions were made against the background that AK had apparently decided that he did not wish to live at home. I did not hear any particular explanation for this preference, although I suspect that it may relate to the fact that at home he is expected to comply with parental boundaries and other behavioural expectations.
Having regard to AK’s disinclination to live at home, I was not particularly convinced by his expressed wish to be at home for Christmas, albeit coupled with a concession by him in evidence that if he were at Richmond Fellowship at Christmas he would not be able to spend Christmas at home, although his parents might be able to visit him at Christmas.
At that stage, I identified what I regarded as three realistic options for dealing with the matter:
(a)the first was to deal with AK’s breach by imposing the remainder of the suspended sentence, and requiring him to serve those remaining almost four months in full-time custody, enabling him to be released in April with no further liability under that sentence;
(b)alternatively, I could re‑sentence AK again and order that he be released either on 12 December or shortly thereafter, subject to a further good behaviour order associated with the suspension of the outstanding period of the sentence; or
(c)thirdly, to adjourn the sentencing until early February 2015 and to give AK an opportunity to demonstrate a genuine wish to change his behaviour so as to justify me allowing him one more chance to finalise his sentence by complying with a good behaviour order in the community.
I chose to implement the third option, and AK was remanded in custody until 6 February 2015 to give him that one last chance to demonstrate a willingness and capacity to change.
On 6 February it emerged that I was also required to sentence AK for a further burglary that had been committed to this court for sentence on 19 December 2014 but had not previously been brought to my attention. There was no time on that day to address the new matter, so I had to adjourn the sentencing yet again.
That new charge related to an incident on 17 July 2013, six weeks or so before I first sentenced AK for the aggravated robbery that I am still dealing with. Although AK’s involvement was suspected quite early, it seems that forensic investigations were not completed until late December 2013, although that does not explain why an information was not sworn until 29 October 2014.
The offence appears to have been a fairly routine domestic burglary in which a flyscreen had been cut, allowing the laundry door to be opened from the inside. The house had been ransacked, with clothes and other personal items pulled out of the cupboards and drawers and strewn over the floor. A cash tin containing an ATM card with the occupier’s name on it was stolen. The card was later found in AK’s possession and his fingerprints were found on a box of beer in the house.
AK has today, via his counsel, expressed remorse for this offence, saying that at the time he saw it as an easy way to satisfy a debt to a friend with whom he was then living, although I note that he was living with that friend in breach of an earlier good behaviour order. He has also shown some insight about the impact of the burglary on the occupier of the burgled premises.
In the circumstances of this sentencing, I do not see any need to consider AK’s personal circumstances in great detail beyond what I have already identified in relation to the extended re‑sentencing exercise. However, I mention briefly what has been noted before in my dealings with AK, which is that there seems to be a pattern in AK’s behaviour dating back to at least 2009 of apparent progress in rehabilitation that is interrupted for no apparent reason by a sudden and unexplained change in AK’s attitude, accompanied by unexpected bad behaviour either in custody or almost immediately after release and, in those cases, often leading to a very quick return to custody. At times, I have speculated that AK does not, deep down, feel ready to take responsibility for his own behaviour in the community.
Perhaps unsurprisingly, the tone of the updated pre‑sentence report prepared for the 6 February 2015 mention was mixed – there were some favourable comments about AK’s progress and some unfavourable ones.
Youth Justice’s summary was not encouraging:
[AK] has demonstrated an increased capacity to behave to an appropriate standard while in custody. Unfortunately, Youth Justice has not seen a significant attitude change from [AK] and he still appears to have a fatalistic approach to his future. [AK] appears to demonstrate little motivation towards his future and feels a sense of entitlement, for example, being provided with independent accommodation and employment.
While it is highly possible that negative peers have influenced [AK]’s past poor decision making, it appears he lacks any responsibility for his own actions. This appears particularly apparent with regards to his substance use issues. Whilst he has identified that he will refrain from engaging in such behaviours, his methods for abstinence, appear to solely relate to his new girlfriend or his Mother ensuring he doesn’t use. His ambivalence towards accepting professional support regarding his substance use issues, further reiterates his inability to take responsibility for his actions rather than utilising his own skills and willpower.
On 23 February 2015, as a result of AK’s challenge to the contents of that report, the Youth Justice officers involved in the preparation of the report gave evidence and were cross‑examined. This cross‑examination did not cause either of the officers to resile from their assessments, and nor did it cause me to question the accuracy of the assessments, although I do accept the general propositions emerging from that evidence, that AK has grown up a lot since first entering Bimberi at age 13, that he is highly intelligent, and that over time he has become adept at doing what is required to achieve a particular short-term goal rather than because he has any genuine commitment to changing his behaviour.
At that hearing, two more documents were put before me. There was an informal report from Youth Justice and another letter from AK, that one dated 17 February 2015.
The Youth Justice Report referred to both good and bad aspects of AK’s recent behaviour. For instance, he had been working well on building possum boxes that would benefit a charity, and on gardening and maintenance tasks around the centre, but on the other hand, he has apparently refused to participate in pre‑apprenticeship activity since December 2014 when he turned 17, at which point participation in education was no longer compulsory for him.
In his letter dated 17 February, AK referred to various other activities he has undertaken to prepare himself for release and employment, and to his improved capacities to deal with other Bimberi inmates. He said:
Previously before court in December I was averaging 2 breaches a day. Now after court in the past 2 months I have only had 2 behaviour breaches. On numerous occasions I have earned the highest behaviour based incentive points in the centre.
AK said that he had a positive relationship with his mum and would be able to live with her again if released, with his own bedroom and personal space.
He undertook to continue to work with the Gugan Gulwan outreach worker about finding employment and dealing with his alcohol and drug abuse, to take part in sporting programs run by the Police Community Youth Club and to attend the White Card course which is a pre-requisite for an apprenticeship.
AK concluded:
I feel that I am in the right frame of mind to be in the community and to start a positive life. I have done what you asked of me and would appreciate the opportunity to be released to my family home so I can continue to make positive changes out in the community.
By the time I had received the various reports and heard oral evidence from the two Youth Justice workers, it was well after 5.00 pm on 23 February 2015. Counsel pressed a bail application on AK’s instructions, and despite the Crown’s opposition, I granted AK bail until today, 31 March 2015, when I hoped to be able to finalise the breach of the good behaviour order in respect of the 2012 offence by re‑sentencing AK, and also to sentence AK for the 2013 offence that was committed to this court in December last year.
The bail conditions required AK, among other things, to live with his mother, to be at home overnight unless out with one of his parents, and to abstain from alcohol and illicit drugs.
On 4 March 2015 AK, with his mother, met his Youth Justice supervisor and advised that he had consumed alcohol on one occasion since being released. He was warned that this was a breach of his conditions. Apart from that, it seems that AK was proud of various steps he had taken since being granted bail, such as getting a Learner driver licence, opening a bank account and getting a copy of his birth certificate.
Despite the progress he seemed to be making, AK did not return home that night, and the next day his mother reported that she did not know where he was. A breach of bail document was prepared by Youth Justice and advised to police. Some weeks later, AK was arrested for breach of bail and on 27 March he appeared before me. Sadly, it seems that the pattern I have earlier mentioned of AK making good progress until a sudden and unexplained reversal of his commitment, is still relevant.
The statement of facts relating to AK’s arrest indicated that he had been in breach of bail conditions:
(a)dealing with where he was to live;
(b)prohibiting the use of alcohol and illicit substances; and
(c)prohibiting associations with the girlfriend whom I have previously mentioned.
Bail was refused, despite submissions made on AK’s behalf to the effect that he should be granted bail again because he had not yet breached the condition requiring him to attend court for sentence.
Youth Justice has provided a report about the period since I granted AK bail in late February. It is very distressing:
On 19 March 2015, Youth Justice were informed by Queanbeyan Police that [AK] had been arrested for a fresh offence (Posses House Breaking Implement). It was reported that [AK] was under the influence of Methamphetamine (ICE). [AK] appeared in the Queanbeyan Court on 20 March 2015 before Magistrate Antrim. Youth Justice were in attendance to support [him]. Bail was applied for and denied and [AK] was Remanded in Custody at Riverina Juvenile Justice Centre. Youth Justice spoke with [AK] while in the Police Cells. He appeared pale and admitted that he was “coming down”, and acknowledged that he had been using ICE whilst missing. He described being remanded in custody as “fucked”.
On 25 March 2015, [AK] appeared in the Queanbeyan Court before Magistrate Antrim again. [AK] acknowledged in Court his willingness to accept the support of Youth Justice to transport him to the ACT Watch House to answer the alleged Breach of Bail. [AK] was convicted of the offence and released on a 9 month supervised New South Wales Good Behaviour Order. Approximately 200 metres into the journey to the ACT, [AK] requested his Case Manager to pull the vehicle over so he could exit the vehicle. The Case Manager pulled the vehicle over and despite attempts to encourage him to stay [AK] left advising he wished to spend time in the community with his Girlfriend.
On 26 March 2015, [AK] was arrested by the Australian Federal Police in Woden, ACT and transported to Bimberi Youth Justice Centre (BYJC). It was reported by BYJC that upon his Induction to the Centre he was withdrawing from Methamphetamine (ICE) and Alcohol. It was reported that [AK] was “very jittery, twitching throughout the interview and constantly talked about [how] much ICE he had when he was out of the Centre”.
On 28 March 2015, Youth Justice received a case note from BYJC indicating that [AK] disclosed to living with a prostitute who was “working for him”. It was reported that [AK] was open and proud of himself stating that he was “running a business” and had “two or three” girls working for him that he supplied to the “rebels”. [AK] stated that he would sit downstairs smoking “ICE” while the girls would be upstairs working, who would be paid in drugs/and or money.
On 29 March 2015 Youth Justice received a case note from BYJC staff advising that [AK] was displaying “defiant, demanding and abusive behaviour towards staff”. [AK] was directed to cease negative conversations regarding “prostitution, crime and drugs”. Staff adopted strategies including ignoring, distracting and diverting conversations, however [AK] has continued to display defiant behaviour. [AK] refused the direction to be detained in his cabin for “time out” however physical intervention was not required for him to be secured. When secured, [AK] covered the camera in his cabin. Staff were required to continually enter his room to remove obstructions from his camera. In an effort to maintain observations and for the safety of [AK], he was issued with non‑rippable bedding. [AK]’s observations were changed to 5 minutely.
It is apparent that granting AK bail in February was a bad mistake and that he is not yet ready to take serious responsibility for his actions. When I granted him bail at that point, I made it clear to AK that any further breaches of bail would see him serving the rest of his sentences in custody.
I recognise the risk of AK becoming institutionalised, given that he has now spent most of the time since he was 13 in Bimberi, that custody being punctuated with more or less brief periods of release on bail. I also note AK’s reported attitude that custody is where he lives and time on bail is a holiday. This would certainly explain his apparent view that he need not attempt anything constructive when he is in the community, and might as well concentrate on enjoying himself. I can only hope that requiring AK to finish his sentences before he is released again will enable him to think of his next release not as the start of a probably brief holiday, but as the start of his real adult life, and to realise that he need not ever go back into custody, but that his future is up to him.
AK, please stand.
First, I note your conviction for aggravated robbery that was recorded on 3 September 2013, and the breach of the most recent good behaviour order attached to the suspension of the 18-month sentence for that offence. I cancel that good behaviour order and re‑sentence you to 18 months imprisonment, backdated to 10 November 2013 to take account of time served before your release under the last good behaviour order and the time you have spent in custody since that release. That sentence will now expire on 9 May 2015.
For the July 2013 burglary, I record a conviction, and sentence you to nine months imprisonment, reduced from 12 months for your guilty plea. If you had been sentenced for this offence in 2013 or even last year, there would have been some concurrency for the aggravated robbery sentence and there will be some now, but I consider that the new sentence also needs to add some time to the existing sentence. Accordingly, the burglary sentence will be backdated to 10 November 2014, meaning that it will be concurrent with the previous sentence as to six months, but will add three months to that sentence, and so the total sentence will run until 9 August 2015.
AK, it is getting both boring and ridiculous to keep suspending smaller and smaller parts of the remaining sentence. Accordingly, and for the reasons I have already explained, I do not propose to suspend the sentence again. There is I think just over four months in total to serve on the earlier re‑sentence and the new sentence for the July 2013 burglary, and I do not see any point in giving you yet another opportunity to breach a good behaviour order and get yourself into further trouble.
As I have said, the earlier sentence will be completed on 9 May this year, the new sentence three months later, namely 9 August this year. You will then have cleared off all your offending before you become an adult in December 2015 and you can make a completely new start. That, AK, would be a very good idea because being locked up does not get any better when you are an adult.
On the other hand, you seem to have adopted some really bad ideas in the last little while and frankly I cannot work out what kind of future you do think you want. You still have a chance, when you finish these sentences in four months and a bit, to make the changes that you know you need to make. Stay off the drugs, get a job, do the right thing by your mum and the rest of your family and, most importantly, do the right thing by yourself.
As I mentioned earlier, once you are released this time in August, it will be up to you whether time in the community becomes your normal life or just remains a brief break before your next period in custody, which would almost certainly, given the timing of this, be adult custody. It is really up to you. You still have the chance of a bright future and a happy and satisfying life, but only you can make that happen now and only if you really want it to.
You may sit down.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Kate Harris Date: 11 June 2015 |
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