R v B D
[2008] VSC 333
•3 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No.8634 of 2008
| THE QUEEN |
| v |
| BD |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 November, 3 December 2008 | |
DATE OF SENTENCE: | 3 December 2008 | |
CASE MAY BE CITED AS: | R v BD | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 333 | |
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Catchwords: Appeal against sentence from the Children’s Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T. Walsh | Chris McLennan & Co |
| For the Respondent | Mr D. Bliss | Office of Public Prosecutions |
HER HONOUR:
BD, you have appealed against sentences imposed by the learned President of the Children's Court, Judge Grant. You came before him on 8 August 2008 when you were dealt with in respect of 15 charges which in turn breached a youth supervision order imposed in respect of nine charges. The total effective sentence imposed in respect of all matters was 12 months' detention in a youth residential centre.
A summary of all the charges was tendered before me as Exhibit A on the appeal. I will not repeat them other than to say in respect of case number 200807966, being the breaching offences, this involved a period of offending between October 2007 and August 2008 and involved seven counts of theft, five counts of burglary, two counts of intentionally damaging property and unlicensed driving. At all times you were aged 14. All of these offences were committed with co‑offenders, and on five occasions your co‑offender was your younger brother Luke. All of the burglaries were of residential houses and in one instance, relating to charges 5 and 13, approximately $10,000 worth of electrical and household items were stolen, the bulk of which has not been recovered.
Although all of the offences are serious, two of them are of particular concern as they occurred whilst you were in detention. The first, charge 8, occurred at 2.30 p.m. on Monday 9 June 2008 when you and two others climbed on to the roof of the Education Activities Building at Parkville and there removed and damaged metal and cement sheeting from the roof and removed a television aerial and smashed electrical fittings. The damage bill was approximately $1,900 and you gave as your reason for committing the damage "to prove to the staff that they can't boss us around".
The second occasion occurred on Sunday 10 August 2008. While again detained at the Parkville Youth Residential Centre you and your co‑offenders climbed on to the roof of the building and kicked in 12 windows. You also pulled aluminium framing out of the windows and damaged three exhaust fans and the total cost of this damage was approximately $5,000.
All of these offences breached the supervision order which was made on 8 June 2008 which had been imposed in respect of offences which occurred between August 2007 and April 2008 with a spate of offending over a nine‑day period in April. All of the offences were committed in company and one incident involved you driving a stolen car with your co‑offenders as passengers and, in the course of driving, losing control of that car while negotiating a roundabout. Approximately $1,900 damage was done to the car and all of the offenders, including yourself, fled the scene.
Mr Walsh, who appears on your behalf, submitted that you were 13 and 14 years old at the time of the offending conduct, that there were circumstances at that time operating upon you which led to your offending and that since then there has been a marked improvement in your attitude and in those circumstances a sentence of less than 12 months' detention is appropriate.
You are now aged 15, having turned 15 on 27 October 2008, and you already have a significant number of prior convictions. Your dispositions have included undertakings, probations and detention in a youth residential centre.
Your mother, gave evidence on your behalf. She gave a history of the Department of Human Services' involvement commencing three years ago when you started chroming, getting into trouble and not attending school. Your parents contacted the Department but their intervention did not stop you, and ultimately a Custody to Secretary Order was made supported by your parents, which is still operative. Your mother attributes your behaviour to the death of your baby brother who died from SIDS two and a half years ago.
You and your brother have been living with the residential worker, Diana Tauteka, and you will remain under her care until the current order expires in July 2009.
Your mother has been visiting regularly, and she describes a change in your attitude. She describes you as a good kid who has gone down the wrong path. Both your parents support you, and in the future it is said that your father would be able to provide you with paid employment.
Your case manager/supervisor employed with the Berry Street Home Base Care, Kirsty Baker, also gave evidence on your behalf. She stated that that organisation will provide contract case management on behalf of the Department of Human Services and in that capacity they are able to provide you with educational and vocational supports.
A pre‑sentence report has been obtained, and you have been assessed as suitable for a Youth Justice Order. The report comments upon the marked improvement in your attitude and behaviours, which is confirmed by the report of the team leader at Baltara, the school you have been attending whilst at the Youth Residential Centre, and that report was tendered in evidence as Exhibit 1.
The Custodial Progress Report details the structures that will be put in place upon your release, and it is proposed that you reside with your carer, Diana Tauteka, with whom you have a strong relationship and who has this morning given evidence on your behalf.
It is also proposed that you would participate in the handbrake turn program upon your release and, as stated previously, you have work available with your father.
The nub of the appeal is essentially that a 12 month sentence of detention is a long sentence on a boy aged 13 and 14 at the time of the offending.
Certainly, you have matured and made significant gains towards your rehabilitation, and the pre‑sentence report remarks upon your continued marked improvement, especially since the matter came before this court on 3 November of this year. Although this appeal is a hearing de novo, I make the comment that the sentence that His Honour Judge Grant imposed was an entirely appropriate one, having regard to the nature and gravity of the offences committed and your role in them and your personal circumstances at the time of sentence.
Since then, however, I accept that your personal circumstances have changed. You have matured, you have worked well and diligently at school, you have improved your attitude towards your workers and you have expressed the view, as I understand it, that you no longer wish to engage in criminal activity. I am satisfied in that regard that there are sufficient support services in place to enable your rehabilitation to continue to progress and to turn you away from a life of further crime.
On 27 October you turned 15, so that any sentence imposed today would be served in a Youth Justice Centre, which means that you would be detained in the company of older males, which may not be as conducive to your rehabilitation.
In my view, your rehabilitation should be encouraged because at the age of 15 you stand at the threshold of, at the very least, your teenage years being punctuated by ever‑increasing sentences of detention should you continue to reoffend.
Accordingly, in order to address your prospects for rehabilitation, I propose to uphold the appeal and impose in its stead the following sentences, mindful, of course, that pursuant to s.410 of the Children, Youth and Families Act any sentence imposed must now be served in a youth justice centre.
I propose to order in respect of Count 1, theft of a motor vehicle, you are convicted and ordered to be detained in a youth justice centre for four months. In respect of Count 2, unlicensed driving, you are convicted and ordered to be detained in a youth justice centre for seven days. In respect of Count 3, burglary, you are convicted and ordered to be detained in a youth justice centre for six months. In respect of Count 4, theft, you are convicted and ordered to be detained in a youth justice centre for four months. In respect of Count 5, burglary, you are convicted and ordered to be detained in a youth justice centre for 10 months. In respect of Count 6, burglary, you are convicted and ordered to be detained in a youth justice centre for 10 months. In respect of Count 7, burglary, you are convicted and ordered to be detained in a youth justice centre for 10 months. In respect of Count 8, intentionally damaging property, you are convicted and ordered to be detained in a youth justice centre for six months. In respect of Count 9, burglary, you are convicted and ordered to be detained in a youth justice centre for 10 months. In respect of Count 10, theft, you are convicted and ordered to be detained in a youth justice centre for six months. In respect of Count 11, theft, you are convicted and ordered to be detained in a youth justice centre for 10 months. In respect of Count 12, theft, you are convicted and ordered to be detained in a youth justice centre for 10 months. In respect of Count 13, theft, you are convicted and ordered to be detained in a youth justice centre for 10 months. In respect of Count 14 theft, you are convicted and ordered to be detained in a youth justice centre for 10 months. In respect of Count 15, intentionally damaging property, you are convicted and ordered to be detained in a youth justice centre for 10 months. The total effective sentence is 10 months' detention in a youth justice centre.
In respect of the following offences, the breaching of the youth supervision order made 30 June 2008, you are sentenced to be detained in a youth justice centre for three months in respect of Count 1. In respect of Count 6, being the breach of a youth supervision order made on 30 June 2006, you are convicted and ordered to be detained in a youth justice centre for three months. In respect of the breach of youth supervision order, being Count 7, you are convicted and ordered to be detained in a youth justice centre for a period of three months. In respect of Count 8, being the breach of a youth supervision order made on 30 June 2006, you are convicted and ordered to be detained in a youth justice centre for three months. In respect of Count 9, being the breach of a youth supervision order made on 30 June 2006, you are convicted and ordered to be detained in a youth justice centre for a period of three months, which is a total effective sentence of three months to be served concurrently with the 10 months imposed in respect of the other sentences.
I declare that you have already served by way of pre‑sentence detention a period of 120 days.
I formally set aside the orders of the learned judge made on 22 August 2008.
Now, BD, the sentence I have imposed is effectively one of 10 months' detention in a youth justice centre. Do you understand that?
PRISONER: Yes.
HER HONOUR: Instead of the 12 months that was previously imposed upon you. Firstly, because you are 15 you will have to serve the balance of that sentence in another place. Do you understand that?
PRISONER: Yes.
HER HONOUR: So you will be moved to where the bigger boys are. Do you understand?
PRISONER: Yes.
HER HONOUR: As I understand it, because of that, the reduction in your sentence, you will, of course, be eligible for parole at an earlier date. Do you understand?
PRISONER: Yes.
HER HONOUR: But when that is is entirely up to the Youth Parole Board, and whether they grant you the parole on that date again is entirely up to them. Do you understand?
PRISONER: Yes.
HER HONOUR: So they, of course, will be looking at how you behave in your new environment between now and when they come to consider your application for parole. So you really have to keep the gains that you have made, your positive attitude towards your workers, your attitude towards your school work, although now you will probably have to go to some other form of schooling, you will have to keep all of that going if you want to be released. Do you understand?
PRISONER: Yes.
HER HONOUR: Because it's not guaranteed, it's all up to the discretion of the Parole Board and how you continue to behave, and if you continue your good behaviour there's no reason why you shouldn't be released at the earliest opportunity. Do you understand?
PRISONER: Yes.
HER HONOUR: But most importantly, BD, is that if you breach this sentence then your parole will be cancelled and it's been cancelled in the past, I know that, so you understand that if it is breached and your parole is cancelled, even if it's breached on the very last day of your parole, you come back in for all of the time that you owe the Parole Board. Do you understand?
PRISONER: Yes.
HER HONOUR: So that that would be, let's say you are released in December and your parole would end in about June, if you committed an offence, another offence, even on the second last day or the last day of your parole, you would be breached and you would owe the Parole Board all of that time from December to June, even though you've served the bulk of it satisfactorily. Do you understand?
PRISONER: Yes.
HER HONOUR: So it really means for you that every single day you have to make a decision not to get into trouble because the minute you make a decision to get into trouble you've put your freedom at risk, because any other magistrate or judge who comes to sentence you from now on will more likely than not give you a sentence which will involve your detention and those sentences, depending on the offences that you commit, will get longer and longer and longer. So what should be the very sweet years for you will be spent in custody and you can see that that is not the best place for you. Do you understand?
PRISONER: Yes.
HER HONOUR: You've got the support of all of these people who have come here today and the support of your parents and you have got your other family members, so nobody wants to see you fail but ultimately it's all up to you, and if you do fail and commit further offences, it's only you who serves the time, so only you suffer for your actions. Do you understand?
PRISONER: Yes.
HER HONOUR: I mean, everyone else can be sorry to see it's happened to you and no doubt your parents would be greatly distressed and all of that, but at the end of the day you're the one who goes to bed every night under lock and key and do you want the next five years to be like that?
PRISONER: No.
HER HONOUR: And then if you kept going down that path, in time you will be going to adult gaol and what sort of life would that be for you? So really, I am taking a risk here because it would have been very easy to have kept you in and have you go on 12 January and then I wouldn't have to be concerned about what would happen to you over the Christmas and holiday period, because you are a high risk, there's no doubt about that, but it seems to me that the efforts that you have made whilst you have been in custody are really quite remarkable and there's no doubt that you've made them because the authors of this report would not have said that you did if you hadn't. I accept that you are not conning anyone and no‑body is telling me something that isn't the truth, but the next few weeks when you're released are absolutely crucial to the whole of your future life because that's when you're at the most risk of reoffending. It is for anyone, but coupled in that it's Christmas, it's holidays and it's the summer, it's a potential recipe for you committing further offences.
So I really urge upon you in the strongest terms possible to please make good that decision that they tell me that you have made, that you don't want to continue down this path any more.
PRISONER: Yes.
HER HONOUR: Because it's only you, I cannot stress enough, it's only you ultimately that you are causing the most damage to. All right?
PRISONER: Yes.
HER HONOUR: So you understand what's expected of you?
PRISONER: Yes.
HER HONOUR: Do you think you will be able to do it?
PRISONER: Yes.
HER HONOUR: Are you resolved to do it, are you determined to do it?
PRISONER: Yes.
HER HONOUR: Well, BD, I can't make it any clearer to you, the rest is up to you and you will hear a lot more, I am sure, from the Parole Board when they release you and you will hear it from time to time from your workers and you must understand that everybody has your best interests at heart, so even when they tell you something that you don't want to do, you better think twice before not following what they ask of you. Also with Di, your carer, when she asks you not to do something, you really better think long and hard before you decide not to follow what she's asked you to do. Do you understand that?
PRISONER: Yes.
HER HONOUR: Because you put at risk everything. You understand the sentence I have imposed upon you?
PRISONER: Yes.
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