R v CI
[2017] ACTSC 130
•30 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CI |
Citation: | [2017] ACTSC 130 |
Hearing Dates: | 27 April 2017; 30 May 2017 |
DecisionDate: | 30 May 2017 |
Before: | Penfold J |
Decision: | See [71] - [77] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young offender – aggravated robberies – serious assaults in company against other young people – opportunistic thefts – offender with “borderline” IQ – cannabis use from young age – rehabilitation to take priority over general deterrence – no penalty other than imprisonment appropriate. |
Legislation cited: | Crimes (Sentencing) Act 2005 (ACT), ss 133C, 133D, 133G Criminal Code 2002 (ACT), s 310 |
Parties: | The Queen (Crown) CI (Offender) |
Representation: | Counsel Ms S McMurray (Crown) Mr J Maher (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 44 of 2017 |
The offences
CI has pleaded guilty to two offences of aggravated robbery arising under s 310 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 25 years.
The incidents
The incidents from which these charges arose took place in November and December 2016.
November 2016 (CC2017/27)
In mid-November 2016, when the victim was in McDonald's at Greenway, CI abused the victim and said that he hated the victim.
Some time later, in the early afternoon of 27 November 2016, the victim and his friend, TX, were walking along the footpath of Drakeford Drive in Kambah, when they were approached by CI and two companions, brother and sister TI and UI. CI and one of the others accused the victim of "talking smack" about them on Facebook. The victim and his friend walked off, but CI and TI followed them. CI grabbed at the victim's backpack and punched him in the head with a closed fist. TI hit the victim's friend, TX, in the left eye.
When the victim tried to defend himself by getting CI onto the ground, he was hit in the side of the head by UI, who had intervened in support of her brother. She and CI overpowered the victim and both of them kicked him while he was on the ground.
The victim's friend, TX, moved away and CI and UI continued to assault the victim. When UI began kicking the victim in the head, his friend TX came back and tackled her.
The victim and his friend then took shelter in a stormwater drain.
During the assault, the victim's wallet containing cash and bank cards, and his phone, fell to the ground. CI picked up the victim's wallet and TI took the phone, before CI and both his companions walked off.
The victim ran home to cancel his cards, and police were called shortly afterwards. They went to CI's home, where his mother gave them a phone of the same kind as the victim's, and two bank cards in the victim's name.
December 2016 (CC2016/748)
On 5 December 2016, a different victim was sitting outside a café in Duffy with two friends.
CI and several other young people, including CI's brother, arrived in a car. The victim believed that CI's brother had a weapon with him, so he went inside the café to the staff-only area; his two friends followed him in. Two members of the other group also came inside. The victim rang his father and asked him to get someone to come down and “take care of” the group of young people.
The victim then watched the café, using the CCTV, until he saw that all the members of the other group had left.
The victim then walked to his sister's flat nearby, but she was out. He became concerned, and sought help from one of his sister's neighbours, telling her that there were males after him with a knife. She rang the police.
While the victim was waiting in the flat, CI and three companions, including UI, came in; the victim was hit in the head and dragged down the stairs to the footpath, where he was assaulted by several members of CI's group, including UI, who tried to remove the victim's watch from his wrist. CI himself kicked the victim in the arm and thigh, and later in his knee, as well as stomping on the victim's outer right knee, while the victim was lying on the ground in the foetal position. I note, without needing to detail them at this stage, that there were also serious assaults on the victim committed by CI's two male companions. Before the assaulted ended, UI stomped on the victim's head with her right foot.
When the group stopped assaulting the victim, they left, leaving him lying on the footpath with serious injuries. His shoes and watch had been taken by members of the group – CI himself made an unsuccessful attempt to remove one of the victim's shoes, but in the end they were taken by one of the co-offenders.
The victim was bleeding from the head and began vomiting. Police arrived and an ambulance took the victim to hospital, where he was found to have suffered an “extra‑axial haematoma” and multiple skull fractures.
Police executed a search warrant at CI's home on 9 December. They interviewed CI and he made full admissions. He was charged that day with the December offence, and has been in custody ever since, a total of nearly six months. His sentence will be backdated to 9 December 2016.
Pleas of guilty
CI pleaded guilty to the charges on 27 February 2017 in the Magistrates Court, and was committed to this Court for sentence. That appearance in the Magistrates Court was CI's sixth appearance on the December charge and third appearance on the November charge. I shall accept these as early pleas of guilty, and recognise them with a sentencing discount.
Breach of good behaviour orders
Both CI's offences were committed in breach of good behaviour orders made in the Childrens [sic] Court, one for 12 months from 17 October last year for a common assault offence, and one for six months from August last year for an offence of knowingly obstruct a Territory official. Those breaches will be dealt with in the Childrens [sic] Court after convictions are recorded on the current offences.
Evidence
As well as the agreed statement of facts, the following material is in evidence before me:
(a)CI's criminal history;
(b)a pre-sentence report;
(c)extracts from police interviews with one of the victims and his companion – in effect, a form of victim impact statement;
(d)a psychological assessment dated 24 April this year by psychologist, Leesa Morris;
(e)an email from Janice Pearcey, team leader for Child and Youth Protection Services (CYPS), about CI's behaviour in Bimberi in the last few weeks; and
(f)a Declared Care Team Action Plan for CI's supervision after his release from custody;
all of which were tendered by the prosecution.
The defence tendered documents about the Youth Education program and the Police Citizens Youth Club (PCYC) program.
Oral evidence was given at the first day of this hearing by:
(a)Ms Pearcey, who had countersigned the pre-sentence report (because the author was on leave at the time of the hearing); and
(b)for the defence, CI's mother.
Objective seriousness of offences
In considering the objective seriousness of these offences, I have had regard to the following matters.
In each case the statutory aggravating factor was that CI was in company, in November with two other young people and in December with three other young people.
In each case there was serious and continuing violence inflicted on the victim, including both punches and kicks to the victim's head.
As already noted, CI's offences were committed in breach of earlier good behaviour orders.
The pre-sentence report suggests that the closest CI has come to expressing remorse is that he has described these offences as "stupid". It seems that he has justified the offences, in each case, by claiming that the altercation was instigated by the victim, a proposition not borne out by the statement of facts that has been agreed on his behalf. The pre-sentence report author reports that, apparently on the basis of misunderstanding a discussion with his mother about the offences, CI has begun to assert that one or perhaps both of the victims are better off as a result of his offending because of the scope for claiming compensation for his assaults on them.
It seems that CI knew each victim before the relevant robbery was committed, and it is said that these were targeted attacks. Defence counsel conceded that CI initiated the assault on the victim of the November offence, and his co-offenders willingly became involved. He said, however, that the incident began as an assault and the taking of the credit cards and phone, which turned the assault into a robbery, was opportunistic.
As to the December incident, it is not clear from the statement of facts which of the co‑offenders initiated the interaction with the victim, but defence counsel noted that CI's violence to the victim was not as serious as that of his co-offenders. The statement of facts indicates that CI kicked the victim's limbs, but did not hit or kick the victim's head.
In these circumstances, I cannot find that CI carried more or less responsibility for the December incident than any of his co-offenders, but I can note that his violence was less severe than that of some of the co-offenders.
No formal victim impact statements were prepared, but there are before me extracts from the evidence-in-chief interviews conducted by police with the victim of the November offence and with his companion.
Two days after the November offence the victim described his injuries to police, saying that he had a really sore back and neck, a sore head, a few bruises on his face, and a pulled muscle in his leg. He also described feeling a mixture of distress, anger and adrenalin during the attack, wondering about how he could have prevented the attack, and sometimes feeling worried when he hears a car stop outside his house.
The victim's companion also described the victim feeling concerned when he hears a car outside his house, and said that he and the victim were both aware of the risk of running into CI or other members of his family when they are walking around their neighbourhood.
No mitigating factors have been put to me about either of these offences.
Aggravated robbery as such is a serious offence, as shown by the very high maximum penalty, but it does cover a wide range of individual offences of varying seriousness, including opportunistic robberies such as developed in the November incident. However, given the number of CI's companions, the continuing nature of each attack, and the violence inflicted in order to achieve the thefts concerned, both of these aggravated robberies, in my view, are of something approaching medium seriousness. The December robbery in which the victim suffered multiple skull fractures was more serious than the November robbery, but it may be that CI's part in the December robbery was slightly less significant.
Subjective circumstances of offender
I have also had regard in this sentencing to CI's subjective circumstances.
He is now 15 years old. His criminal history in the ACT consists of two offences committed on separate occasions early last year, being one common assault and one offence of knowingly obstructing or resisting a Territory public official.
CI is the second child of his mother. He has an older half-brother, a younger sibling and a younger half-sibling. His parents separated in 2008 when CI was around six.
Before being remanded in custody, CI had been living with his mother. It seems that his father is available to CI from time to time, but is not a consistent presence in CI's life due to his substance abuse and periods of incarceration.
The family is well known to CYPS. Since CI was about two years old, 37 reports have been made about him to CYPS. There have been incidents of domestic violence between his parents, and accusations of neglect and other damaging behaviour by CI's mother, and it is also apparent that CI's mother struggles from time to time with mental health issues. CI has spent periods of time living with other family members. Since he and other siblings returned to live with his mother, there have been further reports to CYPS about risk-taking behaviour by CI and his older brother, including experimenting with illicit drugs, and about their mother's apparent inability to control them. It is also troubling that CI sees his older brother, an alleged co-offender in the December robbery who is currently serving a sentence in Bimberi, as a role model.
Before being remanded in custody, CI seemed to have effectively given up on school; the pre-sentence report author reports that while in Bimberi he has also been "resistant in the education environment".
This may be unsurprising in the context of a kindergarten diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), and a 2014 assessment by a school psychologist who put CI's “full-scale intelligence quotient” in the “extremely low range”. A treatment plan and medication regime for the ADHD were developed but not implemented. The 2014 psychological assessment indicated that CI appears to struggle in particular with working memory, and the pre-sentence report author noted that “there may be a learning delay or communication barrier as he is slow to process information and has difficulty in answering questions in a timely manner”.
Psychologist Leesa Morris provided a cognitive assessment reflecting an interview with CI in April. She concluded that he had an IQ of 74 (described as “borderline”) and a moderately low score for adaptive behaviour (which refers generally to his daily living skills and his capacity to communicate and socialise with other people); she also concluded that he displayed severe conduct disorder, childhood onset, with limited pro‑social emotions.
It is clear that CI's capacity for rehabilitation is limited. Ms Morris is concerned that CI appears to be disengaged from the world around him, including in his approach to other people, and that even his ostensible loyalty towards his mother, expressed when talking about her, does not translate into a willingness to cooperate with his mother or to comply with her requirements. Ms Morris identified a pattern of CI having learnt to say the things people need to hear but that are quite removed from his own reality. Ms Morris noted that CI's lack of sympathy, empathy or remorse may be an element of his developmental disorders, but might also be a learned response to a world he does not entirely understand. Ms Morris noted that:
In situations of emotional unavailability or neglect from a caregiver, an infant will eventually learn not to expect any response to their needs or emotions. [CI] may have learned that he only gains attention through violence, and has learnt to disengage emotionally from others in order to avoid being hurt or rejected.
Ms Morris also suggested that CI has significantly low self esteem and sense of identity. She noted that he has not experienced any positive male or female role models in his life, and that if he were able to engage, in particular, with a solid male role model there may be some hope for adapting his behaviours, but that he is extremely likely to continue his behaviour into adulthood. Ms Morris said that if any intervention is likely to work it will need to occur with some urgency, but she doubted that it would succeed if it began only when CI returned to his mother's care.
CI has a history of cannabis use since at least the age of 12 and possibly earlier.
CI has reported that all his offending was committed while he was under the influence of illicit drugs, but it seems more likely that, as suggested in the pre-sentence report, cannabis use and occasionally alcohol use have affected CI's “overall functioning” rather than leading directly to the particular offences I am dealing with.
Reports of CI's behaviour in custody note his “poorly developed social skills”, his use of bullying tactics towards staff and others, his tendency to become angry quickly and to be difficult to calm down, his lack of self control, his apparent lack of empathy to others, and his reluctance to accept responsibility for his actions.
Rehabilitation
For a young offender, especially one as young as CI, rehabilitation is very significant, and may be the most important issue in sentencing. Sadly, it is not easy to find any grounds for optimism about rehabilitation in the material before me.
That material indicates that when he is released into the community, CI would live with his mother and siblings and would probably be seen by a Youth Justice supervisor responsible for implementing his case plan at least once a week. CI's mother has expressed a commitment to supporting CI in rehabilitating himself in the community, but CI has not been subject to a bail order or any other kind of supervision order before; Ms Pearcey noted that it is difficult to assess his likely compliance, and to assess his mother's level of commitment, because that has not been tested in the past. Ms Pearcey reported that CI's father also wants what is best for CI, and is committed to assisting him, but he has only recently been released from custody himself and is currently supposed to be pursuing drug rehabilitation.
Ms Pearcey reported that since being remanded in custody, CI's behaviour has deteriorated:
(a)he has been non-compliant with staff directions on occasion;
(b)he has resisted engaging in education; and
(c)he has been disrespectful and disruptive, including by threatening to assault staff.
The email tendered before me today indicates that CI's behaviour has not improved in the last few weeks. In that email, Ms Pearcey said:
In my opinion, [CI] is actually on a deteriorating slope of behaviour and attitude as the seriousness of his behaviour breaches is increasing. Overall, [CI]'s attitude is openly defiant and he responds to all challenges to his behaviour with violent language and behaviour.
CI's low IQ may well explain his resistance to education, but he is far too young to be allowed to disengage completely. It seems that when released into the community, he might be accepted into the Youth Education Program, a flexible program that, I am told, would accommodate the view apparently shared by CI and Youth Justice that in the community, he could commit to attending an education program no more than one or two days a week. The PCYC provides an intensive diversionary program that could occupy CI for several other days each week, but that would depend on a high level of commitment and reliable attendance from CI.
Drug use is a particular area of risk for CI, and it is desirable that he engage with a drug and alcohol program involving counselling and possibly urinalysis.
The pre-sentence report author reports CI saying that when he is released he will not go back to substance abuse, and that he plans to end contact with his drug-abusing peer group. He has also, on his own initiative, engaged with a staff member from the Ted Noffs Foundation in the ACT, although the pre-sentence report author suggests that he is apparently hesitant to engage with the Foundation when he is back in the community.
Ms Pearcey said that all the programs and supervision seen as useful for CI could be delivered in Bimberi or in the community. As already noted, she was, however, a little worried about CI's capacity to comply with supervision in the community, and uncertain about his mother's commitment to supporting CI in rehabilitating himself in the community.
CI's mother gave evidence. She said that she and CI were very close, and that she could not wait until he came home again. CI’s mother is clearly a fond and loving mother, and she expressed great optimism about how things would work when CI came home, but did not describe any convincing grounds for that optimism.
CI’s mother conceded that at the end of last year (when these offences were committed), she had had no control over CI:
(a)he was not going to school;
(b)he was using lots of cannabis;
(c)he was not under Youth Justice supervision;
(d)he was not attending counselling or any other courses; and
(e)he had no structure in his life.
She described an approach to stopping CI using cannabis that involved, in effect, distracting him with football and family activities, but she did not seem to have a concept of imposing any kind of discipline or order in the household, saying that as long as CI was being drug-tested and was not using cannabis, she would not need to make any rules or to argue with him. I do not think it is too harsh to summarise her approach as amounting to a hope that Youth Justice will keep CI both occupied and drug-free, and leave her able to enjoy his company rather than needing to parent him.
CI’s mother said that she would help CI to do whatever was needed for him to follow the directions given by Youth Justice, but she qualified this by mentioning her responsibility to her other children. She said that if she knew that CI had breached his conditions or re-offended, she would report him. CI’s mother said that she had abused drugs in the past, but now she suffers from depression and anxiety, mainly in relation to her children; she did not currently have a mental health plan, but would seek help if her mental health became a problem.
Other sentencing considerations
Because CI is under 18, s 133C of the Crimes (Sentencing) Act 2005 (ACT) requires that I must consider the purpose of promoting his rehabilitation and may give more weight to that purpose than to any other sentencing purpose, and that I must have regard to the common law principle of individualised justice.
Section 133D requires me to take into account:
(a)CI's culpability for the offences having regard to his maturity;
(b)his state of development; and
(c)his past and present family circumstances.
I have referred already to the information that is available to me about these various matters.
Section 133G of the Crimes (Sentencing) Act provides that a sentence of imprisonment may only be imposed on a young offender as a last resort and must be for the shortest appropriate term. Even on that basis, I am satisfied that no penalty other than imprisonment would be appropriate for the current offences.
Finally, s 133G(3) requires me, in sentencing CI as a young offender, to consider making a combination sentence consisting of the sentence of imprisonment and a good behaviour order with a supervision condition.
General deterrence
General deterrence is of particular importance in relation to violent and especially premeditated violent offending of this kind. However, as noted, CI's rehabilitation may take priority over the need for general deterrence given his youth. For reasons also set out, the problem is that it is very hard to identify a path by which CI's rehabilitation might be promoted effectively.
Other matters
Parity
Earlier this month, two of CI's co-offenders were dealt with in the Magistrates Court. UI was sentenced for her part in both the November and December incidents. UI was 17 years old; she had no criminal history and had prospects of rehabilitation.
For the November incident, she was convicted of common assault committed when she intervened in the struggle in support of her brother, and a 12-month good behaviour order was made. For the December incident, she was convicted of aggravated robbery, and sentenced to 18 months imprisonment, backdated 90 days for time served and to be suspended after 6 months.
Her brother, TI, was 15 years old at the time of the offences and had no criminal history. He was dealt with for his part in the November incident. He was convicted of aggravated robbery, and a 12-month good behaviour order with a supervision condition was made. For a common assault constituted by hitting the victim's friend in the left eye after CI's initial attack of the victim, TI was convicted and a two-year good behaviour order was made.
Deferred sentence?
On the first day of the sentencing hearing, defence counsel sought a deferred sentence order, which was at that stage opposed by the prosecution. Today, counsel indicated that he was instructed not to pursue the deferred sentence option.
Sentence
CI, could you please stand up now. I record convictions on two charges of aggravated robbery.
I now sentence you to imprisonment:
(a)for the November aggravated robbery, to nine months imprisonment, reduced from 12 months for your plea of guilty; and
(b)for the December aggravated robbery, to 12 months imprisonment, reduced from 16 months.
The 12-month sentence is to commence 3 months after the 9-month sentence starts, giving a total of 15 months imprisonment. That sentence will be backdated to 9 December last year (when you were taken into custody) and it will therefore finish on 8 March 2018, that is, next year.
As discussed, I propose to require you to serve several more months in Bimberi before your sentence is suspended, in the hope that the staff who work with you in Bimberi will have a chance to apply the advice, given by Ms Morris, in the psychological assessment of you that I described earlier, and I hope that before you are released you might come to understand that your approach to life really needs to change unless you plan to spend most of your life in and out of Bimberi and in due course in and out of the Alexander Maconochie Centre.
I don't doubt, CI, that you will need a lot of help achieving that. If you do decide to try and change your life you will need a lot of help, but you will be offered a lot of help, and if you really want to make things different, you will need to accept that help.
The sentence will therefore be suspended on 8 September this year, leaving 6 months still to serve after you are released, and I order that, before you are released, you sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentencing) Act for 12 months from 8 September this year.
The good behaviour order that I have just made will be subject to the condition that, during the term of that good behaviour order (that is, for 12 months after you are released), you accept the supervision of Youth Justice and you obey all reasonable directions of your Youth Justice supervisor. You will understand, I think, that your Youth Justice supervisor can give you directions about all sorts of aspects of your life, like where you live, how late you stay out at night, who you associate with, and so on.
You will be given a written copy of the good behaviour order, and it will be read to you by the court officials, and I assume that your mother will also get a written copy of that order. In short, the order means that for 12 months after you are released from Bimberi, you need to keep out of trouble, keep in close contact with Youth Justice and do as you're told by your Youth Justice supervisor, including engaging with any programs or other activities that they identify. If you commit another offence during that 12 months, or if you otherwise breach your good behaviour order, for instance just by ignoring what your supervisor tells you to do, you may find yourself back before this Court to be re‑sentenced for these offences and, depending on how exactly you've breached your undertaking, especially if you offend again, if you commit any more offences, you could well find yourself serving some or all of the last 6 months of your sentence back in full‑time custody.
Now, I've tried to explain that to you a little bit, but I recommend that you talk to Mr Maher after I have finished, that you and your mother both talk to Mr Maher, if that's a possibility, after I've finished.
You may sit down.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Nishadee Perera Date: 3 July 2017 |
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