R v CS
[2013] NSWDC 142
•15 August 2013
District Court
New South Wales
Medium Neutral Citation: R v CS [2013] NSWDC 142 Hearing dates: 25-26 July, 29-30 July, 5 August 2013 Decision date: 15 August 2013 Before: Mahony SC DCJ Decision: Limiting terms imposed. For orders see [54]
Catchwords: Special Hearing; limiting terms pursuant to s 23 Mental Health (Forensic Provisions) Act 1990 Legislation Cited: Mental Health (Forensic Provisions) Act 1990
Crimes Act 1900
Childrens' (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999Cases Cited: R v AN [2005] NSWCCA 329
R v Letteri NSWCCA, unreported, 18 March 1992
R v Engert (1995) 84ACRIMR 67
R v Israil (2002) NSWCCA 225
R v Henry (1999) 46 NSWLR 346
R v White (1997) 93 ACRIMR 48
R v Bus, CCA, unreported 3 November 1995
R v Pham and Lye (1991) 55 8CRIMR 129 R v WKR (1993) 32 NSWLR 447
R v Todd (1982) NSW WLR 517
Pearce v The Queen (1998) 194 CLR 610
R v Mathews [2007] NSW CCA 294
R v AN (No 2) (2006) 66 NSWLR 523
R v GDP (1991) 53 A CRIM R 112Category: Sentence Parties: Department of Public Prosecutions - Crown
CS - OffenderRepresentation: E M Moberley - Crown
J Viney - Offender
File Number(s): 10/0001300 Publication restriction: Name of young person
Judgment PURSUANT to s 23 of the mental health (forensic provisions) act 1990
Introduction
On 30 July 2013, following a special hearing pursuant to s 21 of the Mental Health (Forensic Provisions) Act 1990 (the "Act"), of two charges on indictment pursuant to s 154C (2) of the Crimes Act 1900, I made findings in respect of each charge pursuant to s 22 of the Act, that on the limited evidence available, the young person committed each offence charged.
On 5 August 2013 I heard submissions from the Crown and the young person in respect of orders to be made pursuant to s 23 of the Act. That followed determination by me of a preliminary issue raised by Counsel for the young person in respect of the construction of s 23(1)(a) of the Act (see separate judgment).
Section 23 of the Act provides as follows:
"Procedure after completion of special hearing
23(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court:
(a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment; and
(b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as "a limiting term", in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.
(2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings.
(3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings.
(4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence).
(5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court:
(a) after taking into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or
(b) directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person.
(6) When making a direction under subsection (5)(b), the Court is to take into account that:
(a) a sentence of imprisonment imposed in a normal trial of criminal proceedings may be subject to a non-parole period whereas a limiting term is not, and
(b) in a normal trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods (as referred to in section 47(4) and (5) of the Crimes (Sentencing Procedure) Act 1999).
(7) If the Court indicates that it would not have imposed a sentence of imprisonment in respect of a forensic patient, it must notify the Tribunal that a limiting term is not to be nominated in respect of the person."
The offences occurred on 3 January 2010. On 21 September 2010 the Children's Court at Orange made an order pursuant to s 18 of the Children's (Criminal Proceedings) Act 1987 ("the C(CP)A") that the proceedings be referred to the District Court to be dealt with according to law (s 18(1)(a)). Subsequently, an order was made by Judge Syme of this Court that the young person was not fit to stand trial and in due course a special hearing was ordered to take place. That special hearing commenced on 25 July 2013. Two matters arise from that history - first, the young person lost the benefit of his early plea of guilty to the charges; secondly, there has been considerable delay, through no fault of the young person, in having these matters heard and determined. In addition, the young person remained in custody from 3 January 2010 until 17 March 2010, a total of 74 days.
The Circumstances of the Offending
The circumstances of the offences which took place on 3 January 2010 at Wellington are set out in my judgment following the special hearing on 30 July 2013. I will not repeat all of the details here. The first offence involved the young person producing a knife while he was a rear-seat passenger in a taxi when he said the following words in a threatening way:
"If I was you mate I would keep driving."
The young person was holding the knife in his right hand and caused the taxi driver to feel very scared, intimidated and like his life was in danger, causing him to feel that he needed to get out of the vehicle, which he did. As the driver went to open the door the young person said to him "Don't do that", however, the driver jumped out of the moving vehicle, following which, the young person moved into the driver's seat and commenced to drive to Sydney.
In cross-examination the taxi driver conceded that the young person had not moved towards him at all with the knife.
The second offence arose after the young person had left the roadway in the taxi and crashed, following a police pursuit. A vehicle in which three young people were travelling passed the scene, and pulled over to render assistance. On alighting from the vehicle the young person produced the knife which he pointed at the driver, who described the blade as being 15cms in length with a thick blade and a 1cm border on its cutting edge. When he did so, he demanded the keys by saying to her "give me the keys", and he snatched them from her. That occurred in the presence and within the vision of the two passengers. After allowing the three young people to take some of their belongings from the car, the young person then drove off, whereupon another police pursuit ensued, until the young person crashed that vehicle and then decamped the scene.
The Evidence on the Hearing Pursuant to S 23
The Crown evidence (exhibit A) included a criminal history of CS, a report of psychologist, Dr Richard Kocsis dated 21 June 2011 and sentencing statistics. His antecedents included Children's Court matters dealt with in 2007 and 2008, together with matters dealt with in the Mt Druitt Local Court on 30 August 2010, for which he was sentenced to a term of imprisonment of nine months with a nonparole period with conditions for six months. There were other matters dealt with in the Parramatta Children's Court on 22 December 2010.
The report of Dr Kocsis outlined the following history. CS was born on 25 February 1992. He had lived with his parents until he was approximately seven years of age but was thereafter raised by his maternal grandparents until he was approximately fifteen years old. At that time he came under the care of the Juvenile Justice System.
CS had dropped out of school at year eight when he was approximately fourteen years of age. He was unable to read or write. He had only ever worked for a short time as a trolley boy. He had been diagnosed as suffering Attention Deficit Hyperactivity Disorder (ADHD) and had over a long period of time been treated with Risperidone. He had previously, since age fourteen years, been prescribed Ritalin and Catapres. He also took medications to assist in moderating his aggression and mood instability and he had difficulty concentrating, and with restlessness and irritability.
Following psychometric testing, Dr Kocsis was of the opinion that CS exhibited symptoms consistent with a diagnosis of ADHD, together with symptoms consistent with a diagnosis of Anti-Social Personality Disorder (ASPD). He suffered a degree of intellectual disability and lacked underlying cognitive ability and was therefore not considered fit to stand trial. His degree of intellectual disability could be described as within the "mild to moderate" range.
A number of documents were tendered on behalf of the young person. First was a report from Ms Asha Richardson dated 19 July 2013 (exhibit 1). Ms Richardson is the clinical support coordinator of the Community Justice Program ("CJP") who reported to the Court that in his formative years CS had reported that he was the subject of both physical and emotional abuse and neglect. CS had been diagnosed with Conduct Disorder and ADHD at age nine, and that diagnosis was closely related to a number of contributory factors, including childhood trauma, intellectual disability and mental illness.
CS was deemed eligible for the CJP services in August 2008, but left that program due to negative relationships with other residents and returned to live with his grandparents. In September 2012 he was provided with a support package from the CJP through which he accessed medical, dental and psychological services to enable him to work towards independent living in the community. Ms Richardson noted that since being in the program CS had not reoffended and had made significant positive progress to living successfully in the community. It was common ground that he had not offended for a period of some two years. He was presently living in Lithgow with his older sister and uncle and it was proposed that that arrangement would continue with suitable support and case management being provided by CJP. The aim of that program was to minimise reoffending by intervening to improve behaviour so as to facilitate appropriate community integration.
The young person also relied on two reports of Associate Professor Wayne Reid dated 8 March 2011 and 31 March 2011. Associate Professor Reid was qualified with a number of earlier medical records, including a report from Mr Peter Watts, Psychologist, dated 13 December 2007, which found that CS performed in the "mild to moderate" severity delayed or extremely low range of intelligence, and his overall full scale IQ was in the range of 51 - 59. The same studies revealed that there were significant differences found between his verbal and non-verbal skill level, and his fluid reasoning and visuo spatial abilities were found to be at the "mild delay" range, while other areas were in the "moderate delay" range. An earlier report from Dr Peter Evans dated 18 December 2001 indicated CS had been diagnosed as suffering from Attention Deficit Disorder and also qualified for a diagnosis of Conduct Disorder.
Following neuro-psychological examination, Associate Professor Reid found CS to be functioning in the extremely low range of intellectual functioning, fulfilling criteria for a "mild to moderate" intellectual disability. In answer to a number of specific questions, Associate Professor Reid gave the following opinions:
"4. Is the condition likely to alter in the foreseeable future?
CS's condition of mild to moderate mental retardation is not likely to alter in the foreseeable future. It is likely however, if he was to undergo further psychological behavioural management and with maturity, his symptoms of Conduct Disorder symptoms may improve.
5. What treatment has been or should be prescribed. In this regard, is continuing treatment available to be administered in the community or is it appropriate for treatment to be administered in a hospital?
It is recommended CS have treatment for his Conduct Disorder in a community setting with a Clinical Psychologist.
6. What is your prognosis?
Considering CS's history and intellectual disability, it is felt his prognosis is guarded.
7. Is there a treatment plan for CS?
Due to CS's intellectual disability, vulnerability to be manipulated by others, particularly in the present setting, it is recommended the charges be dismissed and he be discharged on the condition that he attend a person or a place specified by the Magistrate for a highly structured treatment program."
In his supplementary report dated 31 March 2011 (exhibit 3), Associate Professor Reid was of the opinion that CS was unfit to stand trial due to his problems with comprehending the complexities of the legal system. In respect of his intellectual disability, he also referred to his development disability, the cause of which was "complex, although it would seem his developmental disability started intrauterine and followed through from his birth and childhood".
Finally, the young person relied on a report of Wayne Zahra dated 15 March 2010, who was the Senior Clinical Consultant, Community Justice Program. Having reviewed his developmental history, together with his medical history and various assessments made of CS from 2007, he identified that CS needed a high level of support in respect of domestic activities and health issues. As at March 2010 the CJP had conducted a comprehensive assessment of CS's accommodation and services needs and had a comprehensive support plan suitable for his needs. The report concluded:
"CS has been incarcerated previously for similar offences, this has clearly not stopped the behaviour recurring and is unlikely to in the future. It is respectfully recommended that engagement in mental health services, a tailored support plan, medication and adequate support systems will have a greater positive impact on reducing the behaviours of concern and reinforcing the existing strengths.
In conclusion, with appropriate support, CS can be assisted to control his anxiety and offending behaviours and re-establish his positive, volunteer, social and employment contacts."
Legal Principles
The purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") provides as follows:
"3A The purposes which a Court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and community."
Section 5 of the same Act provides as follows:
"5(1) A Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."
As the young person was aged seventeen years and eleven months at the time of the offences, it is important to bear in mind s 6 of C(CP)A, which is in the following terms:
"6. A person or body that has functions under this Act is to exercise those functions having regard to the following principles:
(a) That children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that effect them,
(b) That children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, ..."
In R v AN [2005] NSWCCA 329, Howie J, with whom James and Rothman JJ agreed, stated at [21] that because the Applicant was a child at the time of the offending the principles relating to the exercise of criminal jurisdiction in respect of the child and contained in s 6 as outlined above applied. His Honour went on to say at [22]:
"22. But it was not only the age of the Applicant and the principles that applied in sentencing a child that needed to be taken into account in the difficult task that confronted His Honour. The evidence was that the Applicant was suffering from a mild to moderate intellectual disability. It was because of his mental abnormality that he found to be unfit to be tried. The Applicant had an intellectual age far below his chronological age. Therefore the Applicant's criminal responsibility was not only diminished by the vulnerability and immaturity arising from his youth, but also by the mental deficiencies from which he suffered and that resulted in a reduced understanding of the criminality of his conduct and its consequences to the victim and himself."
So too here. Two further matters that have to be considered are first, the question of general deterrence in determining a limiting term pursuant to s 23, having regard to both the age of the offender and his mental disabilities. The second is what approach would be taken generally with an offender who was at seventeen years and eleven months, so close to attaining eighteen years. Justice Howie went on to consider both of those matters in R v AN.
At [37] His Honour referred to the principle that where an offender suffers from a significant mental disability, less weight may be given to general deterrence, referring to R v Letteri NSWCCA, unreported, 18 March 1992; R v Engert (1995) 84ACRIMR 67; R v Israil (2002) NSWCCA 225; and R v Henry (1999) 46 NSWLR 346 at [253] - [254] per Wood CJ at CL. His Honour went on to state at [38]:
"38. It is unnecessary to further review the authorities that have considered the relevance of general deterrence when sentencing mentally disordered or disabled offenders. There can be little doubt that, in light of the uncontradicted evidence as to the Applicant's mental deficiencies and the impact of them upon his offending, a highly significant matter was the relevance of his mental condition to the length of the limiting terms in at least three ways:
Firstly, as to an assessment of the culpability of the Applicant, secondly as to the importance of general deterrence, and thirdly, as to the likelihood of the Applicant re-offending."
At [48] His Honour referred to R v White (1997) 93 ACRIMR 48 and the accepted principle of sentencing that:
"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."
With respect to offenders who are close to the age of eighteen years, His Honour referred to R v Bus, CCA, unreported 3 November 1995, where the Court referred to the following passage: see [53]:
" ... it is obvious that the relevance of the principles stated in s 6 [of the C(CP) Act] to each individual case depends to a very large extent upon the age of the particular offender and the nature of the particular offence committed. An offender almost eighteen years of age cannot expect to be treated according to law substantially different to an offender just over eighteen years of age. In both cases the youth of the offender remains very relevant. Rehabilitation plays a more important role and general deterrence a lesser role. But that principle is subject to the qualification that, where a youth conducts himself in a way an adult might conduct himself and commits a crime of considerable gravity, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing him."
Similar sentiments were noted in R v Pham and Lye (1991) 55 8CRIMR 129 and R v WKR (1993) 32 NSWLR 447. Those cases however were not dealing with young persons with a mental illness or disability.
Having regard to the medical material outlined above, relied on by both the Crown and the young person, the young person could not be regarded as "acting as an adult" when committing the offences. As held by Justice Howie in R v AN at [61], the approach specified in R v Bus has no application in the determination of a limiting term. I also find that general deterrence has very little role to play in determining the sentence to be imposed on the young person here, notwithstanding his age at the time of offending. Rather, any outcome, including the imposition of the limiting term, should look principally to the rehabilitation of the young person.
A further consideration is the delay in having this matter determined under s 21 of the Act. The offences occurred on 3 January 2010 and therefore the delay is more than three and a half years, of which the young person spent the first 74 days in custody. It is clear that such a delay should be given some weight in the determination of what order is to be made pursuant to s 23 - see R v AN per Howie J at [62] and [63].
Submissions Made on Behalf of the Young Person
Learned Counsel for the young person submitted that there was limited or no planning involved in either of the offences, which were, in effect, part of the same course of conduct. In respect of the first offence, the young person had made no direct threat of violence to the taxi driver, and the evidence established that there was no movement of the knife towards the driver. In respect of the second offence, counsel submitted that there was no actual violence or threat of violence verbalised by the young person whilst acknowledging that the driver was threatened.
Counsel acknowledged that I would have regard to the use or threatened use of a weapon as an aggravating factor pursuant to s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999. I would also have regard to the following mitigating factors pursuant to s 21A(3), namely:
(i) That the offences were not part of a planned or organised criminal activity (s 21A(3)(b));
(ii) That the offender was unlikely to re-offend (s 21 (3)(g));
(iii) That the offender had good prospects of rehabilitation (s 21A(3)(h).
It was further submitted that I should have regard to remorse shown by the offender comprising first, his admission of the offences at the first available opportunity during his record of interview and secondly, the plea of guilty he entered at an early stage in the Children's Court on 21 September 2010. That plea of guilty of course preceded the finding that he was unfit to stand trial and his deemed plea of not guilty on the special hearing. Whilst in the process of making a determination pursuant to s 23 of the Act, no discount is available to him for this plea of guilty, it was submitted to be an indication of his remorse, together with his cooperation with the Police and the admissions he made. These, it was submitted, together added up to remorse within the meaning of s 21A(3)(i).
In addition to the judgments in R v AN and R v Engert referred to above, learned Counsel for the young person referred me to the Court of Criminal Appeal's decision in R v GDP (1991) 53 A CRIM R 112. In that case the Appellant was fifteen years of age at the time of the offence and had no prior criminal record. He had been sentenced to twelve months detention on a charge involving property damage of approximately $500,000. Mathews J, with whom Gleeson CJ and Samuels JA agreed, said at [116]:
" ...Had it been an adult who had committed these offences, then the principles of retribution and more importantly, general deterrence, would have demanded a custodial sentence of considerable length. But rehabilitation must be the primary aim in relation to an offender as young as this Applicant. The evidence indicates that he is already rehabilitated himself to a substantial degree. He has now commenced year twelve and thus faces the Higher School Certificate later this year. He is performing well in his studies, and is an outstanding sportsman. It would, on all accounts, be positively damaging to his rehabilitative prospects to remove him from this environment and return him to custody."
The Appeal was allowed and a non-custodial penalty applied, notwithstanding the objective seriousness of the offences in that case.
Counsel submitted that the young person had made considerable advances since being inducted into the CJP in August 2010. From late 2010 until February 2013 the young person had been residing in Lithgow with his sister and uncle and was trying to find employment. Since he turned eighteen, an order had been made by the Guardianship Tribunal and the Office of the Protective Commissioner appointed his Guardian. Those orders had now lapsed and he was trying to manage his own money, which comprised a disability benefit which he had received from aged sixteen years. He had moved to Sydney for the special hearing, but was otherwise surviving independently living in the community. The delay in reaching finality in the special hearing was through no fault of the young person. I was referred to R v Todd (1982) NSWLR 517, where in respect of delay, Street CJ said at page 519F:
"Moreover, where there has been a lengthy postponement whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence to the circumstance that he had been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - a passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation, playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
Learned Counsel for the young person submitted that I should consider, on totality principles, sentences that were totally concurrent given that there was one episode of criminality involved. I do not accept that submission as, whilst the offences were close in time, there was clear and separate offending and criminal conduct involved and having regard to the High Court's decision in Pearce v The Queen (1998) 194 CLR 610, a separate and distinct penalty should be imposed for each offence.
Learned Counsel advocated that consideration should be given to a Community Service Order pursuant to s 8 of the Sentencing Act and/or a Good Behaviour Bond pursuant to s 9 of that Act. It was submitted that if a limiting order was made resulting in a custodial sentence, that would be a catastrophic fracture of "where the young person was now at, in terms of his life". Finally, I should also take into account the three months he already spent in custody between 3 January 2010 and 17 March 2010.
The Crown Submissions
The Crown submitted that the Court would have severe reservations in directing a Community Service Order pursuant to s 8 because of the young person's diminished intellectual capacity and his inability to concentrate on any particular activity as outlined in the exhibits referred to above. The Crown submitted that the Court should have regard to the fact that the victim in the first offence was a taxi driver as an aggravating factor pursuant to s 21A(2)(l) of the Sentencing Act. The Crown also submitted that s 21A(2)(m) was relevant in that there was, in respect of the second offence, multiple victims, in that there were in addition to the driver, two other young persons in the car and each was put in fear by the criminal act of the young person.
The Crown agreed that I should have regard, as a mitigating factor pursuant to s 21A(3)(b), the fact that the offence was not a planned or organised criminal activity, however, in relation to s 21A(3)(j), notwithstanding that the young person was seventeen years and eleven months at the time of the offence, he was fully aware of what he was doing and the consequences. It was submitted that his intellectual deficiencies did not impact on his ability to reason as to the consequences and further, that he was not in any way led into the offences. He therefore should be held accountable for what he has done.
The Crown also submitted that the aggravated form of the offence pursuant to s 154C(2) of the Crimes Act carried with it a standard nonparole period of five years which, although it did not apply in the case of assessing a limiting term pursuant to s 23 of the Act, was a guide post in assessing the objective seriousness of the offence, along with the maximum sentence of fourteen years. In determining the objective seriousness of the offences here, the Crown submitted that I would have regard to factors such as the following:
(i) The type of threats made, for example, production of the knife to a taxi driver in respect of the first offence and the production of the knife to the driver of the car in relation to the second offence with its implicit threat that he would use the knife if she did not give him the keys.
(ii) That there was no actual physical violence perpetrated.
(iii) That there were three persons in the second vehicle who each suffered a degree of fear.
(iv) The period of time each vehicle was used.
(v) The damage caused to the vehicles.
(vi) The place and time the offences were committed. The first offence occurred in a small country town, whereas the second offence occurred on an isolated country road.
(vii) The special vulnerability of the victim of the first offence being a taxi driver. That was relevant in terms of the vulnerability of taxi drivers generally as a significant concern, not only for taxi drivers and their families, but also for the general community - see R v Mathews [2007] NSWCCA 294.
The Crown acknowledged that there had been delay in the present case caused through no fault of the young person and that he was entitled to some benefit as a result of that delay. The Crown also referred to the judgment of Howie J in R v AN, as outlined above. Finally, the Crown submitted that the nature of offences was such as to warrant a term of imprisonment here and that anything else would not reflect the objective seriousness of the offences. To the extent that the young person appreciated the wrongfulness of his actions, I was entitled to take into account general deterrence, notwithstanding his intellectual disability and that warranted the imposition of a sentence of imprisonment in each case. When asked its position, the Crown submitted that the offences were at the lower end of the scale and therefore in respect of the first offence, a term of fourteen months was warranted and in respect of the second offence, a term of eighteen months was warranted. The young person was entitled to be given an allowance for the period of time he spent in custody following his arrest, and therefore the term should commence seventy four days prior to the date of sentencing.
Determination
Both offences were pursuant to s 154C(2), the circumstances of aggravation being those pursuant to s 154C(3)(b), namely, that the alleged offender was armed with an offensive weapon or instrument. The maximum penalty pursuant to s 154C(2) is imprisonment for 14 years.
Having regard to the circumstances in which the young person produced the knife in the back of the taxi, but did not advance it towards the driver, and that the driver abandoned the vehicle at a very short distance from the destination where he was to drop the young person off, I am of the view that the objective seriousness of the first offence was in the lower range for such offences. The second offence, however, occurred in circumstances where, having crashed the taxi and overturned it, the young person had the opportunity to end his flight and wait for the authorities. Rather, he produced the knife and pointed its blade at the driver of the vehicle who had stopped to render him assistance and demanded from her the keys to the vehicle. The other two occupants of the vehicle observed that to happen and were no doubt affected by it. Objectively, the circumstances of the offending here was more serious than the first offence and towards the middle range of seriousness for such offences pursuant to s 154C(2).
Section 23 of the Act requires me to indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, I would have imposed a sentence of imprisonment, and further, where the Court would have imposed such a sentence, I must nominate a term referred to as a "limiting term" in respect of that offence. The "limiting term" is the best estimate of the sentence I would have considered appropriate in those circumstances.
In arriving at a determination as to whether a sentence of imprisonment would have been imposed following a trial, I have had regard to the age of the young person of seventeen years and eleven months at the time of the offence, his intellectual disability and the delay that has occurred of over three and half years in bringing finality to these proceedings through no fault of the young person.
I have also had regard to the fact that there has been no re-offending by the young person for a period of two years, that he has made progress under the Community Justice Program and has been living in a stable environment in Lithgow with his sister since late 2010 with the support of that program.
I have had regard to the aggravating factors pursuant to s 21A of the Sentencing Act, namely, that the offence involved both the actual and threatened use of a weapon being a 15cm knife and that the victim in the first offence was a taxi driver and therefore vulnerable. I have also had regard to the mitigating factors that the offence was not part of a planned or organised criminal activity, that the offender is unlikely to re-offend and has good prospects of rehabilitation by reason of his age and circumstances. I also accept learned Counsel's submission on behalf of the young person that the admissions he made in his record of interview and his early plea of guilty amount to some remorse.
Having regard to the principles of sentencing as outlined above, together with all of those factors, and having regard to the objective seriousness of the offence in each case, I indicate pursuant to s 23 of the Act that if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offences which the young person is found to have committed, the Court would have imposed a sentence of imprisonment.
I further nominate, pursuant to s 23(1)(b) of the Act the following "limiting terms" in respect of each offence:
(i) In respect of the first charge on the Indictment, a term of twelve months imprisonment;
(ii) In respect of the second charge on the Indictment, a term of eighteen months imprisonment.
Pursuant to s 23(4) of the Act, I take into account that the period in which the young person has been in custody, from 3 January 2010 to 17 March 2010, a total of 74 days, and therefore direct that the "limiting terms" should be taken to have commenced, pursuant to s 23(5)(a), on 3 June 2013.
Section 24 of the Act provides as follows:
"Consequences of nomination of limiting term
24 (1) If in respect of a person a Court has nominated a limiting term, the Court:
(a) must refer the person to the Tribunal; and
(b) may make such order with respect to the custody of the person as the Court considers appropriate.
(2) If a Court refers a person to the Tribunal, the Tribunal must determine whether or not:
(a) the person is suffering from mental illness; or
(b) the person is suffering from a mental condition for which treatment is available in a mental health facility and, where the person is not in a mental health facility, whether or not the person objects to being detained in a mental health facility.
(3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person."
Finally, having regard to s 24 of the Act I refer the young person to the Mental Health Review Tribunal pursuant to s 24(1)(a).
Section 23 of the Act does not mandate that the young person be detained in custody during the limiting term noted - see R v AN (No 2) (2006) 66 NSWLR 523, per James J at [26]. Section 24(1)(b) of the Act provides for a discretion in the Court to make such order with respect to custody of the person as the Court considers appropriate. This is necessarily an interim measure, subject to notification by the Tribunal of its determination pursuant to s 24(3), and the Court's determination of the matter pursuant to s 27 of the Act.
Having regard to the subjective matters concerning the young person outlined above, and particularly the progress he has made with his rehabilitation, I decline to make an order with respect to custody pursuant to s 24(1)(b) of the Act, and order that the young person remain on bail on the same conditions until further order.
ORDERS
I make the following orders:
(1) Pursuant to s 23(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I indicate that if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offences which the young person is found to have committed, the Court would have imposed a sentence of imprisonment for each charge on the Indictment.
(2) Pursuant to s 23(1)(b) of the Act, I nominate the following terms for each offence:
(i) In respect of the first charge on the Indictment, a term of twelve (12) months imprisonment;
(ii) In respect of the second charge on the Indictment, a term of eighteen (18) months imprisonment.
(3) Pursuant to s 23(4) and (5)(a) of the Act, I direct that each term be taken to have commenced on 3 June 2013.
(4) I refer the young person to the Tribunal pursuant to s 24(1)(a) of the Act, and
(5) Until further order, the young person is to continue bail on the same conditions subject to notification of any variation of his residential address within seven (7) days.
Decision last updated: 16 August 2013
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