R v CB & KE
[2005] QChC 1
•21 July 2005
CHILDRENS COURT OF QUEENSLAND
| CITATION: | R –v- CB & KE [2005] QChC 1 |
| PARTIES: | The Queen v CB & KE |
| FILE NO: | CC4/05 |
| PROCEEDINGS: | Show Cause Proceeding – victim’s compensation |
| DELIVERED ON: | 21 July 2005 |
| DELIVERED AT: | Townsville |
| HEARING DATES: | 5 April, 16 & 18 May 2005 |
| JUDGE: | CF Wall QC |
| ORDER: | Parent of CB ordered to pay $1000 compensation and parents of KE ordered to pay $1000 compensation to the victim of their childrens’ offence. |
| CATCHWORDS: | CRIMINAL LAW – JUVENILE OFFENDERS - SHOW CAUSE PROCEEDINGS - compensation for offence – orders against parents – wh. inadequate supervision of juvenile offenders by parents may have contributed to the fact the offence happened – relevant considerations – compensation orders made against parents. Legislation referred to: |
| COUNSEL: | Ms V. Keegan for the Crown |
| SOLICITORS: | Director of Public Prosecutions for the Crown Aboriginal & Torres Strait Islander Community Legal Services for the respondents |
HIS HONOUR: These are proceedings under Part 7 Division 16 of the Juvenile Justice Act calling on the parents of two juvenile offenders, CJB and KKME to show cause why they should not pay compensation to the victim of the offence committed by the juveniles by reason of the fact that they may have contributed to the fact the offence happened by not adequately supervising their children.
At about 10 p.m. on Sunday the 25th of July 2004 in Lissner Park, Charters Towers CB and KE set fire to a drunk vagrant using his own methylated spirits. The victim suffered blistering and second degree burns to his right knee which were treated at the Charters Towers Hospital. When he saw his clothes on fire he feared for his life. At the time of the offence B and E were in company with another youth who watched events. They had been walking through the park when they came upon the victim. Earlier in the evening the same three youths had been seen and spoken to by a security officer in another part of town and he "moved them on."
On the 28th of February 2005 in the Childrens Court at Charters Towers the juveniles each pleaded guilty to an offence of torturing the victim whose name is Neil Anthony Neilson. I then ordered that presentence reports be prepared, which was done.
The matter came back before me in Townsville for sentence on the 5th of April 2005. The presentence reports are Exhibits 4 and 5 in the present proceedings. Each offender was sentenced to detention for two years. Each was also dealt with for breaching probation orders which were current at the time of the torture offence.
The sentencing transcript is Exhibit 7 in the present proceedings. By reference to the transcript the Crown Prosecutor told me that B said the only reason he could offer police for committing the offence was that he was bored and that they were annoying the complainant for something to do. E said to police that he wanted to wake the complainant up "because the town is boring." He said there were other things he could have done such as going home and going to sleep.
The respondents to the present proceedings are TM, the mother of CB, and KM, her sister, and WE, the parents of KE.
CB was born on the 27th of February 1991 and KE on the 27th of October 1989. They are cousins.
The authors of the presentence reports gave evidence. Before I deal with their evidence and the presentence reports I should mention that each child has a criminal history, Exhibits 2 and 3. E's is more extensive than B's. On the 14th of May 2004 in the Hervey Bay Childrens Court B was placed on probation for nine months for an offence of stealing. On the 8th of October 2003 in the Townsville Childrens Court E was placed on probation for 12 months for multiple property offences. Both were on bail for further offences when the present offence was committed.
In B's presentence report, Exhibit 4, Mr Ashley McLachlan, the author, said:
"FACTORS CONTRIBUTING TO OFFENDING
It is the assessment of the author that the following factors have contributed to C's offending:
1.Familial circumstances and parental response to offending
2.Peer Influence
3.Lack of meaningful, lawful activity
4.Lack of foresight regarding the consequences of actions
Familial Circumstances and Parental Response to Offending
At the time of the offence before the Court, C was residing with his mother, TM, his brother, MB, and his sister, EB at a flat in Charters Towers. A number of other young people were also living at the residence. The other young people were either extended family members or were close friends and members of C's peer group.
Being the only adult person in the home, it would appear that T sometimes has difficulty in disciplining the young people in her care. At times the relationship resembles more of a friendship than that of a parent and child. Although T expresses disappointment with C's offending, there is little apparent discipline delivered as a result of his offending.
T presents as supportive of C throughout the court process, and attends with C on each appearance date. She appears interested in the outcomes and processes involved, and will seek information and clarification as needed. Although not supportive of C's offending, it would appear that through regular court appearances and involvement with Departmental workers T may have normalised C's usual, property-related offending behaviour. The torture charge before the Court, however, has caused obvious concern for T, and she has expressed this on a number of occasions.
Peer Group Influences
Peer groups are a key component in the life of an adolescent, and can provide young people with a sense of belonging (Collins, 1990 cited in Crane & Brannock, 1996). They are also one of the largest influences on a young person's beliefs and actions. As adolescents align themselves with a particular peer group, they tend to adopt group norms, attitudes and behaviours in order to feel a sense of belonging to the group. In respect to adolescent offending, one of the strongest predictors is that of peer influence (Blackburn, 2001 & Osgood & Anderson, 2004).
C's peer group is made up of family members and friends, many of whom are involved in the juvenile or adult correctional systems. Throughout his time in Charters Towers, C has continued to associate with these peers and his offending has escalated gradually. Through exposure to these peers' pro-criminal beliefs and behaviours, C has adopted these beliefs and normalised them as part his socialisation.
During the commission of the offence C was in the presence of his cousin, who is the same age peer. During a conversation with C it was unclear as to whether he felt influenced by this cousin with regards to this offence. C responded to queries on this issue with words to the effect of "it was nobody's idea - we just did it".
T appears to be conscious of the effect of peers on C's offending and has stated that when C was living in Brisbane he was "hanging around with the wrong crowd and getting into trouble". T states that C is "more settled" in Charters Towers, which suggests that perhaps she is minimising the nature of his offending whilst in this community.
Lack of Meaningful, Lawful Activity
Throughout his contact with staff from the Townsville/Thuringowa Youth Justice Service Centre, it has become apparent that C lacks any real meaningful, lawful activity in his life. C is not currently attending school and spends his days with his friends and family members with little direction to their activities. C has stated that he often feels "bored" in Charters Towers and has stated that he feels there is nothing to do. When questioned on his recreational activities, C could identify that he enjoys playing his Playstation 2, "walking around", and going fishing.
When questioned about the offence before the Court today, C stated that he and his cousin had been "walking around" at night and they had seen the victim and decided to commit the offence. It would appear that in this instance C's 'boredom' has resulted in C being out late at night and in turn the commission of the offence. In C's statement to the Police the only reason offered for the offence was that he was bored, and that he and his cousin were only annoying the victim for something to do.
It would appear that C is aware that his lack of meaningful activities can lead him to offend, and when questioned on how he could reduce the risk of re-offending, C stated that he could "play football, go to school, or go fishing" which would give him "stuff to do".
Lack of Foresight Regarding the Consequences of Actions
C has stated that when committing this offence, he and his co-offender were trying to wake the victim up so that they could annoy him by not letting him sleep. Information presented in the facts for this offence would appear to indicate that the two young people involved were aware on some level of the risks involved with their actions. C and his co-accused extinguished the flames on two separate occasions, limiting the injury done to the victim's person. The author has not been able to assess why C and his co-accused continued to ignite the clothing of the victim, knowing that he could suffer serious harm. C could offer no reasonable explanation for his actions on the night when questioned by departmental workers in preparation for this Pre Sentence Report.
Summary
It would appear that multiple factors have played a role in C's offending. A lack of meaningful activity, combined with minimal parental supervision and discipline have led C to spend a majority of his time 'wandering' the streets of Charters Towers with little direction. Peer influence, combined with a lack of foresight regarding the consequences of his actions have compounded this issue, and have led to poor decision making and the commission of the offence before the Court.
ATTITUDE TO OFFENCES AND VICTIMS
During discussions centred on the offence before the Court, it has become apparent that C has little empathy towards the victim of this offence. When questioned on the offence, C stated that he knew his actions were 'wrong', however didn't think he was going to get caught. When questioned further, C stated that his victim was drunk and that "this sort of thing always happens to him". C went on to say that he has seen others set his beard on fire, urinate on him and urinate in his drinks. This would indicate that C has little awareness of the humanity of his victim, and that he feels that because others treat this victim poorly, that it is therefore acceptable for him to act in the same way. C has also gone on to say that he was "sorry" for committing the offence, and that if he could change the course of events on the evening in question, he would have "stayed at home and not gone out at all". It would appear that this limited indication of remorse is based on C's impending sentence outcome for the offence rather than his empathy towards his victim.
CONSEQUENCES OF THE OFFENCES FOR THE YOUNG PERSON
To date there have been few consequences for C as the result of this offence. He has continued offending since being charged with this offence, and he received a further 12 month Probation Order from the Redcliffe Childrens Court on 24 January 2005."
In E's presentence report, Exhibit 5, the author, Miss Corinne Kelly, said:
"Factors Contributing to Offending
It is the assessment of the author that the following factors have contributed to K's offending:
1. Parental Response to Offending
2. Adoption of Pro-Criminal Attitudes and Behaviours
3. Poor attachment to Pro-Social Activities
Parental Response to Offending
K is an Indigenous young man born to KM and WE. K has three younger sisters who he resides with at his parents' residence in Charters Towers and an older brother who resides in South East Queensland. K has stated that he "gets along" with his sisters and parents and they rarely have disagreements or fights. KM confirmed this relationship and further stated that K is "shy" and is often embarrassed by the affection that W shows him.
With respect to K's offending behaviours, Departmental records indicate that KM and WE have previously shown inconsistent supervision over K's behaviours and that this has contributed to the exacerbation of K's offending. Both KM and WE have previously stated that they "are not hard on the kids and being hard on them doesn't get you anywhere".
In discussions held between WE and the author in September 2004, WE stated that "once K is out of the house we (KM and himself) have no control of his behaviour". Further to this, both WE and KM have expressed frustration over K's offending, however do not feel they have an control over his behaviours.
Despite demonstrating love and affection for K, WE and KM also display a reluctance to enforce punishment and discipline on K for his offending behaviours. Research suggests that this inconsistent parenting style is linked with subsequent juvenile involvement in crime (Mak, 1994, Smith & Thornberry, 1995 & Weatherburn & Lind, 1998).
Adoption of Pro-criminal Attitudes and Behaviours
Research suggests that the shift from parental support to that of peer support is characteristic of adolescent development (Blackburn, 2001). As adolescents align themselves with a particular peer group, they tend to adopt group norms, attitudes and behaviours in order to feel a sense of belonging to the group. In respect to adolescent offending, one of the strongest predictors is that of peer influence (Blackburn, 2001 and Osgood & Anderson, 2004).
K's peer group throughout his adolescence has consisted solely of his cousins, their peers and other adolescents within the Charters Towers community. These young people are all known to the Department of Communities and have been subject to supervised youth justice orders. Having spent a significant amount of time in the company of his offending peers, K has subsequently been exposed to their pro-criminal beliefs and behaviours and has adopted these beliefs and normalised them as part of his socialisation. Through constant exposure to these beliefs from a young age, K has included them in his thinking patterns and belief structure. Further to this, K experiences difficulty in choosing alternative ways of acting in situations where he is faced with the decision to involve himself in illegal activities.
This is evident in considering the lack of foresight K gave to the consequences of his offending prior to committing the offences before the Court. While K realised that he was breaking the law and that he could be punished for his behaviours, it was also evident from discussions held with K that he gave minimal consideration to the impact of his offending on the victim and also had difficulty in providing any reasons for or motivation behind committing this offence.
In relation to the offence before the Court, it is K's perception that his co-offender was responsible for initiating this offence and that he "went along with it".
In considering K's offending history, it is noted that a significant number of offences that K has committed in the past have also been in the company of peers. This reinforces the notion that K's association with peers who have pro-criminal attitudes and behaviours influences K's subsequent involvement in criminal activities.
Poor Attachment to Pro-Social Activities
Research suggests that the risk of becoming involved in juvenile offending are moderated by a young person's attachment to school and peers (Wade & Brannigan, 1998). This research finding is based upon the criminological theory, Social Control Theory, developed by Travis Hirschi in 1969 (Vold, Bernard & Snipes, 1998).
K disengaged from the educational system when he was twelve and since this time has not returned to full-time secondary education. During 2004 K participated in a part-time educational program that required him to attend for an hour and a half two times each week. This disengagement has resulted in K developing peer relationships with young people in similar situations to his, and those that were already involved in the juvenile justice system. A large majority of K's peers also do not attend school and adopt a similar belief structure to K in which education is not a primary goal. This has further compounded K's lack of motivation and desire to return to full-time education.
The pro-social activities involved in schooling such as music, art and sport are therefore not available to K, and he has in the past lacked motivation to become involved in these activities within agencies in the Charters Towers community. K therefore lacks attachment to any form of educational structure or community organisation, that criminological theory states is an important mechanism of social control (Vold et al, 1998).
Attitudes to Offences and Victims
K was open and honest in discussing his offending with the author, however also demonstrated some difficulty in providing any motivation or reasons for his offending.
In discussing the offence, K stated that he was aware that his behaviour "was wrong" and that it was against the law to be involved in such activities. K also indicated that the victim would have been "shocked and scared" when he awoke to see that his trousers were on fire. When questioned why he continued to set the victim on fire after seeing this reaction, K found it difficult to justify his behaviours and stated that "my cousin was there and I just went along with it". Queensland Police Records indicate that K stated that "town is boring" as a reason for his offending and K further confirmed this statement during a discussion with the author.
Consequences as a Result of the Offence
Significantly, K has been detained at Cleveland Youth Detention Centre for 37 days in relation to these offences. During this time K has been required to adhere to strict rules and guidelines that he would not have otherwise been subject to should he have remained in the community.
Prior to being remanded in custody, K has been subject to strict bail conditions imposed on him by the Charters Towers Childrens Court on 2 August 2004. These conditions have limited K's social interaction with his co-offender who is a close peer, and his general movements within the Charters Towers community. In discussions with K during the remand period, it became evident that he considered being subject to a curfew a clear consequence for his offending and something that he reported having some difficulty complying with.
K has stated that his parents have not punished him for his offending, however he is aware that they are disappointed in him and want to see him stop offending. Due to the nature of the offence before the Court and K's lack of history of offences against the person, both KM and WE have expressed shock, disappointment and misbelief over K's behaviours.
In discussions about K's offending, KM expressed a sense of hopelessness over her son's offending and stated that she "feels like giving up on him". KM also stated that her extended family were not aware of K's involvement in this offence as she was "embarrassed" and felt as thought it is "family business".
Discussion
K has complied well with the statutory components of his previous community based supervised youth justice orders. K has reported regularly for his Probation Orders, engaged in discussions about his offending behaviours and participated in community service activities as directed by his Youth Justice Caseworker. He has however, been in breach of a number of these orders due to re-offending.
In giving consideration to K's supervised order history and pattern of re-offending whilst subject to these orders, it is evident that community based orders have had little effect on dissuading K from further offending. This notion is reinforced when considering that the offence currently before the Court was committed while K was subject to a Probation Order and that K's offending has continued to escalate following the commission of this offence."
I accept what Mr McLachlan and Miss Kelly said in these reports. The statements they made and the opinions they expressed were adopted and amplified upon in the evidence each gave. I will refer to their evidence shortly. The evidence of Ms Deborah Brownson, the Deputy Principal of the Charters Towers high school, supported the absences from school of each child. I will also refer to her evidence shortly.
On sentence Mr Lynham appeared for each child. In his submissions the following exchange took place between him and myself:
"But in my submission, your Honour, it seems clear from the discussion as to the factors contributing to the child B's offending that, aside from the stability that might ordinarily flow from a stable family environment, that has really been the limit of it for him.
He would seem not to have been encouraged or persuaded to attend school, for example. His parents seem to have had little or no ability to either discipline their child or, for that matter, to‑‑‑‑‑
HIS HONOUR: Or inclination.
MR LYNHAM: That may be right, yes. And perhaps if I might it this way, your Honour: he's very much a product of his upbringing and it would seem that, in one sense, he's simply been allowed to roam around as he pleases without any fear of consequences or punishment that might ordinarily be expected to flow from that.
HIS HONOUR: Now, what did you say before, that his parents had little ability or inclination to supervise him?
MR LYNHAM: Yes. And he's basically been allowed to roam the streets.
HIS HONOUR: Yes.
MR LYNHAM: And had he been living in an environment where greater interest was taken as to his - what he does with his time, then you might expect, your Honour, that he wouldn't have been out on the streets at this time of night engaging in this sort of conduct.
HIS HONOUR: Yes. It appears, also, that there - there seems to have been a failure on the part of his parents or his mother to restrict his association with unsuitable members of his peer group.
MR LYNHAM: That's correct. And in a small township like Charters Towers, where perhaps likeminded juveniles associate with each other, it perhaps is almost inevitable that they find themselves in trouble, and that seems very much the case from the child B's criminal history; and the same comment might also be said in respect of the child E.
HIS HONOUR: Well, I think all of what you've said would apply equally to E.
MR LYNHAM: Both them, that's correct, your Honour.
HIS HONOUR: Yes. And they were both on probation at the time, too.
MR LYNHAM: They were, yes.
HIS HONOUR: And the first requirement of a probation offence is‑‑‑‑‑
MR LYNHAM: Not re-offend.
HIS HONOUR: ‑‑‑‑‑not to re-offend, not to commit any further offences, and‑‑‑‑‑
MR LYNHAM: That's right.
HIS HONOUR: And that would place an added obligation, you'd think, on the parents to supervise them to the extent that they didn't have the opportunity to re-offend.
MR LYNHAM: That's correct. And it would seem that, even as a consequence of that order being made, the circumstances didn't really change at all; they were allowed to do as they pleased.
HIS HONOUR: Yes. I mean, it was a suggestion that in - in the pre-sentence report or reports of a failure to discipline as a result of previous offending which may have normalised that offending.
MR LYNHAM: That's correct, your Honour. I saw that comment.
HIS HONOUR: And that would appear to apply to both‑‑‑‑‑
MR LYNHAM: Yes.
HIS HONOUR: ‑‑‑‑‑of them, as well.
MR LYNHAM: That's - that's correct. And it might be pointed out, your Honour, that both of the children are first cousins and would seem to come from a fairly close family group, and would ordinarily associate with each other.
HIS HONOUR: And that may have normalised their prior offending to the extent to which they thought they could go off and re-offend.
MR LYNHAM: Yes, do as they please.
HIS HONOUR: Without any apparent concern on the part of their parents.
MR LYNHAM: That's right.
HIS HONOUR: Well, look, there's also another in E's presentence report which seems to apply equally to B - that there was inconsistent supervision on the part of parents over their past offending behaviour and a failure to enforce punishment and discipline‑‑‑‑‑
MR LYNHAM: That's right.
HIS HONOUR: ‑‑‑‑‑which contributed to their offending on this occasion and the apparent disinterest in the supervision.
MR LYNHAM: Yes.
HIS HONOUR: Now, you were saying about the facts here - indicated a lack of respect?
MR LYNHAM: Yes. And it might be said that the respect not only applies to a lack of respect for someone such as the complainant and his personal wellbeing but also in one sense a lack of respect for themselves that they simply did not have the foresight as to the serious nature of the conduct and the potential consequences for them which also might be a product of the fact that essentially they'd been running wild for quite some period of time before this without having suitable boundaries imposed upon them.
HIS HONOUR: Yes.
MR LYNHAM: And the reality is, your Honour, that if they're not attending school and derive some form of education then for both of them their futures might be thought to be fairly bleak. They‑‑‑‑‑
HIS HONOUR: Do we know why they aren't going to school?
MR LYNHAM: It's not abundantly apparent in the presentence reports, your Honour, and it may simply be a case that both of them have refused‑‑‑‑‑
HIS HONOUR: Yes.
MR LYNHAM: ‑‑‑‑‑and there's little or nothing the parents can do about that.
And regrettably, your Honour, without the encouragement of an education they'll eventually reach adulthood with essentially no life skills.
HIS HONOUR: Well, none at all. I mean, they're being set up to fail.
MR LYNHAM: Over the lunch adjournment I had the benefit of speaking to the mother of CB, Miss M. She's indicated to me, your Honour, that she was in the process of speaking to Family Services. I understand that she has already raised this with them, about having C enrolled at the Abergowrie boarding school. One of the reasons why she was desirous of doing that was that she's conscious that he has been hanging around the wrong group of friends in Charters Towers and knows that that inevitably will only get him into trouble, so in order to try and remove him from that set of peers, her view is that by enrolling him in boarding school and placing him in a different environment, ultimately that might at least bring about some solution to the problems that have occurred in the past."
After sentencing the boys I said:
"I propose to take proceedings under section 258 of the Juvenile Justice Act in the case of the parents of each of the children. You can sit down, boys. I consider that each child should pay compensation to the victim for his injuries. Neither clearly has the capacity to pay that compensation. Section 258 subsection (1) of the Juvenile Justice Act provides as follows:
"This section applies if it appears to a Court on the evidence or submissions in a case against a child found guilty of a personal or property offence that:
(a) Compensation for the offence should be paid to anyone; and
(b) A parent of the child may have contributed to the fact the offence happened by not adequately supervising the child; and
(c)It is reasonable that the parent should be ordered to pay compensation for the offence."
Now, in my view compensation for the offence should be paid to the complainant, Mr Neilson. It is also my view that TM, the mother of CB, and KM and WE, the parents of KE, may have contributed to the fact that the offence happened by not adequately supervising their children. In those circumstances I consider it appears to be reasonable that those parents should be ordered to pay compensation for the offence. I propose to call on TM, KM and WE in due course to show cause as to why they should not pay the compensation.
Now, I have not yet determined the amount of the compensation. Determination as to that I think should be dependant upon what the outcome of the show cause proceedings is and the resources of the parents. Now, subsection (5) of section 258 requires me to reduce the grounds for the show cause proceedings to writing and a transcript in due course will be prepared, but the grounds are these:
The offence was committed at about 10 p.m. on Sunday the 25th of July 2004 in Lissner Park, Charters Towers; each child should have been at home and ideally in bed asleep;
The parents of each child have not encouraged or persuaded the child to attend school;
They have demonstrated little or no ability or inclination to supervise the child;
They have allowed the child to roam around as he pleases without any fear of consequences of punishment which might ordinarily flow from that; they have basically allowed the child to roam the streets;
They have allowed the child to leave home whenever the child wanted to without any control over what the child should do;
They have failed to demonstrate any - or any sufficient - interest in what the child did with his time; had more interest been shown the child would not have been out on the streets engaging in this type of conduct;
They have failed to restrict the child's association with an unsuitable peer group;
They have failed to sufficiently or at all supervise the children so that they would not re-offend during the currency of their respective probation orders; they have allowed the child to do what he pleased;
They have failed to discipline the child as a result of prior offending which failure may have normalised that prior offending to the extent that the child considered he could go out whenever he wanted to and do whatever he wanted;
They have exercised inconsistent supervision over past offending behaviour by the child and have failed to enforce punishment and discipline, which has contributed to the offending on this occasion, and have displayed an apparent disinterest in any supervision at all on this occasion.
The children have been, to use Mr Lynham's words, "running wild" for quite some time prior to this offence without having suitable boundaries imposed on them. It is not sufficient that TM says she has done her "level best". She appears to have done nothing whatsoever to curb the nocturnal movements of her son on this occasion.
Now, I direct the Registrar of the Children's Court at Townsville to give written notice to TM, KM and WE, calling on each to show cause why they should not pay compensation for the personal injury suffered by Mr Neilson as a result of the present offence.
I direct the Registrar to provide to TM, KM and WE a copy of the transcript of these remarks and a copy of the transcript of the sentencing proceedings.
I propose that the show cause proceedings be conducted here in Townsville.
The written notice to each of the parents is to require that they appear and show cause at 10 a.m. on the 26th of April 2005 as to why they should not pay compensation for the injury suffered by Mr Neilson as a result of the offence."
There was no dispute about the injuries suffered by Mr Neilson. The Medical Superintendent of the Charters Towers Hospital, Dr S R Malich, said he suffered partial thickness superficial burns to the right knee requiring dressing. The burns would have been extremely painful but would cause little if any long-term problems. He had to attend the hospital each day for dressings until 30th of July 2004 and then again on the 6th and 10th of August 2004. By the latter date his wounds had apparently healed. It was not expected he would be left with scarring.
Ms Brownson said KE enrolled at the school on the 29th of January 2002 in grade 8. His enrolment ceased on the 30th of October 2003 when it was transferred to the Charters Towers School of Distance Education. He repeated grade 8 in 2003 at the request of his family because of significant absences from school in 2002. He was suspended from school on the 14th of March 2002 (one day for smoking); 18th of April 2002 (two days for being out of class without permission and refusing to follow instructions thus disrupting the learning process); 14th of May 2002 (two days for purposely attending the wrong class, swearing at a teacher, not following directions, disturbing other classes and leaving the school grounds prior to the end of the school day; 12th of June 2002 (five days for wagging class, refusing to complete work, swearing at a teacher, leaving a classroom and leaving the school grounds) and 25th of March 2003 (twenty days for unauthorised absence from class, interrupting classes, non-attendance, not following directions, failing to report to the office when asked and for assaulting a teacher). In the 2002 school year there were 128 explained and unexplained absences from school and 136 in 2003.
On the 22nd of April 2002 Ms Brownson spoke to WE who said he was supportive of the school's dealings with his son and keen to work with the school in any way he could to make sure K was at school participating in classes. She also spoke to him and KM, K's mother, on other occasions. Mr E was supportive of the school's attempts to work with his son and he and KM appeared concerned and frustrated about their son's behaviour.
In cross-examination Ms Brownson agreed that K was a difficult boy to control; that virtually everything the school did to discipline and control him failed and that it was impossible to stop him if he decided to leave school. That would no doubt be the case with any child who was likeminded. I accept the evidence of Ms Brownson. It was not challenged.
Margaret Brake is employed by the Education Department as the Youth at Risk Coordinator for the Charters Towers District. The Youth at Risk program began in Charters Towers in July 2003. KE was referred to the program by Youth Justice in about October 2003. His numeracy level was then about year 2 school level and his literacy was about year 3 level. He was very keen to learn. Her contact with him varied but was up to an hour a day five days a week.
The arrangement was that she would collect him at his home and return him there. Often he was not at home. Sometimes KM would say he was at B's house. When she went there sometimes he was there and sometimes he was not. Other times his mother did not know where he was. Sometimes he would be home for two or three weeks in a row, then the next two or three weeks he would never be at home.
Ms Brake would ask Ms M each day if she wanted her to bring K home or take him elsewhere. She would say: "Whatever K wants." She very rarely said she wanted him brought home. Sometimes he would want to be dropped off at B's house. Occasionally he would leave Ms Brake's office to go and meet his mates and she would not have to take him home. Ms Brake could see no set routine in his daily life.
K knew the time she would be there to collect him. Many times he was not home. She said quite often he would be at B's and he would want her to take him home to get his school books because he was not prepared for the lesson.
CB was enrolled at the Charters Towers State High School in grade 8 from the 28th of January 2004 to the 4th of March 2004 when his enrolment was transferred to the Hervey Bay State High School, and then from the 30th of August 2004 to the 9th of December 2004, the latter period being after the present offence.
He was suspended on the 19th of February 2004 for four days for disrupting classes and verbally abusing students and staff. He was due to return to school on the 25th of February 2004 but did not. In the first period of his enrolment there were 16 days and six half days unexplained absences or late arrivals. On the day he was suspended but before he was suspended Ms Brownson rang TM, his mother, and advised her that the school had some serious concerns about his behaviour and that a suspension was imminent if there were not some changes. Ms Brownson could not recall what TM may have then said to her. Later that day an incident occurred and he was suspended.
On one occasion at the Charters Towers State High School Ms Brake was present when B and his mother came to get uniforms. B used crude language to the staff upsetting Ms Brake and two other ladies. I do not believe TM when she said she was not present. I believe Ms Brake. Ms Brake said TM introduced C to the staff and said she was his mother. Ms Brake knew who she was as she had met her before when she would collect K from her house.
I accept the evidence of Ms Kelly. She is a Youth Justice caseworker and commenced working with E in Charters Towers in April 2004 when he was subject to the 12 months' probation order already referred to. The arrangement was that she would meet with E at his home between 11 a.m. and 2 p.m. on Monday or Tuesday each week. Generally her first job would be to find E if he was not at home. Sometimes she was told by his mother that he was at B's home and sometimes his mother did not know where he was. On the latter occasions Ms Kelly sometimes found him in the park or walking down the main street in Charters Towers. Of the 26 times she met him he was at home 10 times, and for the other 16 he was at B's house or his parents did not know where he was.
KM gave her the impression she "felt somewhat helpless over assisting K to stop offending". That, in my view, was a misleading impression because I am satisfied that she did little if anything to control her son or restrict his movements and thus his opportunities for offending. Both parents expressed difficulty in controlling their son's behaviour, but as to that I am satisfied that they did not really try.
In her presentence report Ms Kelly referred to "inconsistent supervision" of KE by his parents by which she said she meant he had few boundaries or curfews placed around his movements outside the house. He was able to leave as he wished and there were no restrictions on who he could associate with. She based her opinion on her observations of K, his interaction with his family and discussions with him. The preponderance of the evidence supports this conclusion notwithstanding that Ms Kelly said (T40) that she did not directly discuss their supervision of K with his parents but relied upon her observations of K and what he told her. Her evidence was a little confused but I am satisfied that both parents told her they had not punished K for offending by him before the subject offence and that no restrictions were placed on his movements other than those imposed by probation orders (T44). She agreed (T49-50) that peer group association could be a strong factor, amongst others, in adolescent offending and K did associate himself with a peer group that was involved in offending. One member of that peer group was CB and Ms Kelly discerned no attempts on the part of K's parents to prevent, reduce contact or dissuade him from associating with his offending peer group including B. The attitude of his parents and also TM, which I find existed before the subject offence, is highlighted by what they did not do after the offence. Both were then subject to a bail condition that they have no contact with each other without their parents being present. Both regularly broke this condition to the knowledge, I find, of their parents and their parents did nothing to prevent that occurring. TM said she did not prevent K coming to her home to see C when she was absent. She said she could not tell him not to come and, "If he comes, that's his business" (T88). Mr E said he was aware K was also not complying with the night-time curfew condition of this bail. That I find was symptomatic of affairs as they existed immediately before the subject offence when it was, I find, known to all parents that contact between the boys may contribute to offending by both. The fact that they are cousins and their mothers are sisters is not a sufficient reason for justifying inappropriate continuing contact in circumstances where such contact may contribute, as I find it did in the present case, to offending. There was also, I find, no serious or real attempt by any of the respondents to ensure the boys did not go out by themselves at night.
Ashley McLachlan is also a Youth Justice Caseworker and was CB's caseworker when the latter was in Charters Towers, which was from early January 2004 for about two months, and from June to September 2004. TM said to him that she was not supportive of her son's offending and felt unable to control his behaviour, for example, by preventing him from going out even after she told him not to. I am satisfied though that she made no real attempt to prevent him going out whenever he wished to. When talking to C and his mother together for the purpose of preparing the presentence report Mr McLachlan said C was unable to identify any parental consequences for him as a result of his offending, but this evidence seemed more directed to the present offence rather than his offending generally. See T58. Mr McLachlan did say though that C's continued involvement in the juvenile justice system was indicative that his offending was going unpunished at home. I do not think though that the former necessarily indicates the latter. TM was, I find, aware that adverse peer influences contributed to C's offending behaviour. This was the reason she moved away from Charters Towers for a time.
I recognise that the occasional appearances of C’s father in his life has had an unsettling effect on him and his family routine, however, I think that his mother has latched onto this as an excuse for generally abdicating her parental responsibility as the custodial parent to monitor and control C's movements and behaviour. In July 2004 C was back in Charters Towers but was not attending school. His mother said this was because, "he didn't feel comfortable, he felt like he was picked on, he didn't like the school." She did not make him go to school or discuss his concerns with teachers at the school or seriously explore alternative education for him. In short, I find she let him do whatever he wanted to do. Contact with K continued because he was "family".
On the night of the offence she went to bed at about 9 p.m. leaving C "downstairs". She cannot recall if K was with him.
She said that at times she would discipline C physically or by withholding his pocket money. I do not believe her. She admitted being present when C was unable to identify any discipline he had received from his mother for past offending. She said she didn't dispute this because he thought the interview was only between Mr McLachlan and C. I found her evidence on this issue disingenuous and I do not believe her. I do not believe that she punished C after prior offending or was concerned about what he did at nights. Generally she was an unsatisfactory witness with a poor recollection of dates and events.
WE said K's problems started when he commenced high school. He gave this evidence:
"What happened once he got to high school?‑‑ I don't know. He seemed to be going along all right for the first part, and then there was just - there was a - he was knocking around with some other cousins that were there at the time, and they were sort of getting in strife, too, also not going to school. That was the same problem with them. We got K in school and - and he couldn't handle, I don't think, the reason why he had to go to school and they didn't have to go to school. I think that upset him a bit and then I think he must've took it out on the - on the teachers and the people around him at the school. And when they went to direct him or - or - he wouldn't listen or anything like that. Just general disruptiveness, I suppose.
Did you‑‑‑‑‑?‑‑ I'd say he would've been influenced."
Mr E's work took him away from home four or five days a week so he was not home much. When told of his offending he would talk to K saying:
"'It's not the right thing to do and if you keep going the way you've going you're going to end up getting in severe trouble or worse trouble.' Yeah. I don't know, just to choose his friends more wisely, I suppose."
Whilst concerned about what K was doing, I find that Mr E was not really serious about controlling his movements and limiting his conduct with inappropriate peers and left most of the day to day control of K to KM who did not give evidence. Mr E's day to day involvement with his son was quite limited and much of what he said was, I consider, made up with a view to minimising his non-involvement in K's upbringing or was told to him by KM and what he says she said, in the absence of evidence from her, I am unable to accept. He conceded he did not have "much of a disciplinary role in K's day to day activities". When grounded sometimes K would comply and at other times he would not, and on the latter occasions sometimes he would not be seen next until the night-time or the next morning. Mr E was aware K was mixing with young cousins who were involved in "criminal activities". He did nothing to stop this. He said on one occasion he found them at the same house, "made sure he was doing the right thing", and returned home (T100). Mr E was aware K was wagging school regularly, was concerned about that, spoke to K and emphasised the need for him to go to school and may have "threatened him with a hiding", but realistically he did nothing more to make him go to school. Distance education was then explored.
No realistic attempts were made, I find, by either KM or Mr E to ensure that K was at all times at home to meet Ms Brake when she came to collect him. If he was not home they would leave it up to Ms Brake to try and find him. Notwithstanding that CB's house was only a hundred to a hundred and fifty metres away they would not go there looking for him.
Mr E was aware that most of the break and entering offences for which K was on probation at the time of the subject offence had been committed at night. Mr E was aware K was getting out at night before and after this offence. He was allowed out during the day to return by 7 p.m. but would not. Mr E said he would ring people and go out himself looking for K, but I do not believe him. He said K continued not to come home when he was supposed to. He said he would confine him to the house for up to a week following such occasions but his mother would let him go out again. I do not believe him when he said K was so confined to home. His evidence was redolent with made up hindsight justification. K was in fact doing whatever he liked when he liked. When it was put to him by Ms Keegan that K was not really stopped from going out again he agreed. He then realised what answer he had given and tried to explain it away by saying K would be confined to home for a period. He said he tried to the best of his ability to stop K from spending time with C, but I do not believe him. Both mothers did nothing either and Mr E was not home most times. He said if he saw them together "out on the street" while he was working, "I couldn't stop him." In fact, I find, he did not want to stop contact and nor could he bearing in mind that the respective mothers were sisters and the two families lived close to each other.
He agreed with Ms Kelly's statement that he and KM "displayed a reluctance to enforce punishment and discipline on K for his offending behaviour", adding that he did not want to, "physically abuse the boy. I wanted to get to it at a communicative level." That clearly did not work which, I find, would have been obvious to him.
Generally I found Mr E to be quite evasive. He was an unsatisfactory witness who grossly exaggerated his minimal, if any, attempts to control the behaviour and movements of his son. He was acutely aware of the nature of the proceedings and made up answers to suit his situation.
In terms of section 258(1) I have already mentioned that it appeared to me, at the time I sentenced B and E, that compensation for the offence of torture should be paid to Mr Neilson. As a result of what I have heard I am, in accordance with section 259(5) and (6), satisfied beyond reasonable doubt that that is the case.
The next issue to determine is whether it has been proved beyond reasonable doubt that each of the parents here may have contributed to the fact the offence happened by not adequately supervising their respective children. I am so satisfied.
Mr Bassett, who appeared for the parents, submitted that "supervision" in this context encompasses more than supervision on the particular occasion of the offence, and I think that is correct. That is not to say though that supervision on the occasion of the offence is not also a relevant factor to consider. It clearly is. He submitted that it is appropriate to take into account the nature of the particular child, the background and circumstances of the parents, the difficulties they may have been having at particular times and relevant social and cultural factors, and I think that is also correct.
In the case of TM he submitted that "there is virtually no evidence of what other steps she could have taken to adequately supervise C once he became difficult". In the case of WE and KM he submitted that there is "very little evidence of what else they could have done with K". The parents had limited resources and they did not own a vehicle. He submitted that the parents can only do so much and that these two boys were extremely difficult to deal with and control. He submitted that the boys had reached the stage where no parent would have been able to control them and that stage was reached notwithstanding all reasonable attempts by the parents to prevent that happening. Effectively the parents were, he submitted, helpless and powerless to do any more; the boys had reached the stage where it was beyond the capacity of their parents to deal with them.
Mr Bassett conceded that the evidence established that their offending was, in part, due to association with unsatisfactory peers. That, in my view, includes each of them associating with the other. Notwithstanding the size of Charters Towers, a relatively small town, the indigenous background of TM and KM, the fact they were sisters and the boys cousins and the very close familial ties which existed, I am satisfied that the parents of each child did little if anything in real terms to curb the association of the boys with each other and with others when it was, in my view, clearly apparent to them that such association was clearly a contributing factor to their past offending and to their offending on the present occasion. Mr E was not prepared to intrude on the cultural connection and left day to day supervision to K's mother. It may have been difficult for the parents, but in real terms they did nothing to at least limit or minimise or restrict the association of each boy with the other in circumstances where they knew, I find, that such association was a contributing factor to their offending.
In my view one of the reasons the boys have become difficult to control was that little was done by their parents from an early stage to control them and their behaviour.
The evidence satisfies me that both boys, immediately prior to and on the evening of the subject offence, were able to come and go as they pleased and to go out and remain out at night together as they wished. Each was a bad influence on the other and they each, to the knowledge of their parents, mixed with others of their age who they should not have been allowed to mix with. Neither appeared to have been involved in any recreational or sporting activities and if they did not want to go to school, their attendance was not insisted upon and appropriately enforced by their parents. In short, they were allowed to run wild doing whatever they wanted to; they were not appropriately punished or disciplined; unsatisfactory and sometimes abusive behaviour at school went unpunished and non-attendance was tolerated; their parents paid lip service to compliance by the boys with the requirements of their respective probation orders; no adequate boundaries or controls were placed by the parents on the movements of the boys; there was no attempt by their parents to ensure they remained at home at night; they were able to do and go as they pleased. I am satisfied that this was the position on the night of the subject offence.
The respondents' evidence did not cause me any disquiet about accepting what is said in the presentence reports.
In my view the question is not so much what more could the parents have done, but whether what they in fact did was adequate. The evidence more than satisfies me that what these parents did was not sufficient or adequate. They effectively allowed the boys to do as they chose, mix with whomever they chose and whenever they wanted to, day or night. Their supervision was inadequate and that inadequate supervision may have contributed to the fact the offence happened. The offence would not have happened had the parents ensured the boys were at home.
I am satisfied that the grounds referred to in the show cause notice to the parents have been established to the requisite degree and that for those reasons each of the parents here did not adequately supervise their child and that failure to adequately supervise may have contributed to the fact the offence happened. In all of the circumstances I am also satisfied beyond reasonable doubt that it is reasonable that the parents here should be ordered to pay compensation to Mr Nielsen for the offence. They have a limited capacity over time to pay compensation and the boys do not.
TM is unemployed and receives Newstart job allowance of about $398 a fortnight. She lives with her eldest son. She said she has about $50 left each fortnight, presumably after expenses. Her second child is aged 17 and C is the youngest. Since C was sentenced he has no doubt not received his pocket money of $10 a week.
WE and KM live together. They have four children of their own living with them aged between six and 15 years. An elder child of Ms Ms from a previous relationship does not live with them. Ms M is not employed, Mr E is a CDEP participant and earns $223 a week for 16 hours work a week. Ms M receives a government parenting allowance of about $300 to $340 a fortnight. Mr E said the children receive a family payment; when K lived with them that amounted to nearly $600 a fortnight. That has now reduced to about $500 a fortnight. They also receive a rent allowance which he said was included "in the childrens payment". He said that after expenses there was about a hundred dollars a fortnight left over. They do not have a car.
Taking this evidence into account and having regard to the matters referred to in section 259(9) I am satisfied that there is in each case a capacity to pay compensation. The amount of compensation I propose to order payable over an extended period of time will not, in my view, adversely affect the respondents' capacity to provide for other dependents.
The maximum compensation that I can order against each parent is $5,025.
Mr Nielson suffered painful burns to his leg. His trousers were set on fire, he feared for his life, he was hospitalised overnight and then had to attend the hospital over about seven days for ongoing treatment. His recovery period was about three to four weeks. He is worried it will happen again.
In my view each offender should, but cannot, pay compensation to him for the offence. That compensation should now be paid by the parents of the offenders because they may have, as I have concluded, contributed to the fact the offence happened by not adequately supervising their child.
I consider an appropriate amount of compensation for Mr Nielson in the circumstances would be $2,000.
I make the following orders:
1.That TM pay compensation of $1,000 to Neil Anthony Nielson. That compensation is to be paid by instalments of $10 per week over a period of 100 weeks commencing on Monday the 8th of August and each week thereafter. The compensation is to be paid to the Registrar of the Childrens Court at Charters Towers for payment by the Registrar to Mr Nielson at an address to be provided to the Registrar by the Townsville office of the Director of Public Prosecutions.
2.That WE pay compensation of $500 to Neil Anthony Neilson. That compensation is to be paid by instalments of $10 per week over a period of 50 weeks commencing on Monday the 8th of August and each week thereafter. The compensation is to be paid to the Registrar of the Childrens Court at Charters Towers for payment by the Registrar to Mr Nielson at an address to be provided to the Registrar by the Townsville office of the Director of Public Prosecutions.
3.That KM pay compensation of $500 to Neil Anthony Nielson. That compensation is to be paid by instalments of $10 per week over 50 weeks commencing on Monday the 8th of August 2005 and each week thereafter. The compensation is to be paid to the Registrar of the Childrens Court at Charters Towers for payment by the Registrar to Mr Nielson at an address to be provided to the Registrar by the Townsville office of the Director of Public Prosecutions.
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HIS HONOUR: I make no order for costs.
I direct the Registrar of the Childrens Court at Townsville to provide a copy of these orders to Mr Neilson.
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HIS HONOUR: I also direct the Registrar of the Childrens Court at Townsville to provide a copy of this judgment to the manager, Department of Communities, 109 Bamford Lane, Kirwan.
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HIS HONOUR: I direct the Registrar of the Childrens Court at Townsville to also provide a copy of this judgment to the manager, Aboriginal and Torres Strait Islander Community Legal Services in Townsville.
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