R v Ft; R v Cu
[2020] ACTSC 80
•14 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v FT; R v CU |
Citation: | [2020] ACTSC 80 |
Hearing Date: | 14 April 2020 |
DecisionDate: | 14 April 2020 |
Before: | Elkaim J |
Decision: | See [35] – [36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful confinement – minor theft – young persons |
Legislation Cited: | Crimes Act 1900 (ACT) s 34 |
Cases Cited: | R v Williams [2016] ACTSC 389 |
Parties: | The Queen (Crown) FT (Offender) CU (Offender) |
Representation: | Counsel M Howe (Crown) B Morrisroe (Offender FT) B Shelton (Offender CU) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender FT) Sharman Robertson (Offender CU) | |
File Numbers: | SCC 11 of 2020; SCC 13 of 2020; SCC 57 of 2020; SCC 74 of 2020 |
ELKAIM J:
It is unfortunately necessary for me to sentence two young persons who I will refer to as FT and CU respectively.
The indictment they face, and to which they have pleaded guilty, is that on 15 October 2019 they unlawfully confined a person (CH2019/954; CH2019/967), contrary to s 34 of the Crimes Act 1900 (ACT). I will refer to this person as Mr X.
FT and CU pleaded guilty on 4 March 2020. Although the Crown case is strong there was utilitarian value in the pleas, which I assess at 25%. They also pleaded guilty to a single charge of minor theft (FT on 16 March 2020 and CU on 6 April 2020) (CH2020/268; CH2020/282), contrary to s 321 of the Criminal Code 2002 (ACT).
The maximum penalty for the unlawful confinement charge is 10 years’ imprisonment. The maximum penalty for the minor theft charge is 6 months’ imprisonment, a fine of $8,000 or both.
The details of what occurred can be found in the Statement of Facts. In brief, on 15 October 2019 Mr X was living in a unit in Lyneham. FT was frequenting another unit in the same block. She and CU were friends. They smoked the drug Ice together that day.
For an unknown reason the two offenders had come to the conclusion that Mr X was “a rapist”. They decided that the status entitled them, perhaps even obliged them, to bash him. I note FT had previously been sexually assaulted and has received counselling from the Canberra Rape Crisis Centre. Perhaps this influenced her attitude. There is no suggestion Mr X was responsible for any sexual assault and the Court does not condone any element of retribution adopted by the offenders.
The offenders went to Mr X’s unit. They told him to sit on a chair and put his hands on a table. FT kicked the table and hit the middle of it with a small axe. She told Mr X not to move. She tied his hands behind his back with tape. She opened a needle container and stabbed Mr X in his leg, albeit through his trousers. The two offenders then searched the unit and made a mess.
Mr X tried to run away but the offenders apprehended him and placed him in the bathroom of another unit. FT punched and kicked Mr X. He was then told to have a shower, which he did. CU then shaved Mr X and cut his hair. CU recorded the events that occurred in the bathroom. The recording reveals that FT told Mr X that she was going to stab him. She put a pair of scissors to Mr X’s throat and continued to punch and kick him. CU added further insults and threats.
Because of the infliction of violence by FT I regard her involvement as the more culpable.
The events in the bathroom lasted about an hour. The earlier confinement is of unknown duration but certainly took some time.
I regard the confinement of Mr X as objectively serious. This conclusion stems from both a logical interpretation of the facts and also an application of the factors listed by Refshauge J in R v Williams [2016] ACTSC 389.
I have no doubt that Mr X was terrified throughout his ordeal and will suffer the psychological consequences for some time. His fear is evident in the short mobile recording I was shown.
The theft charge relates to kitchen utensils, CDs and DVDs. Their value is unknown.
FT was born in 2004. She was almost 15 when the offence occurred. She is now 15. CU was born in 2001. She was 17 when the offence occurred and is now 18.
FT was exposed to family violence at an early age. Child and Youth Protection Services (CYPS) first met her when she was four years of age. Their contact since then has been frequent. She has been exposed to “family violence, neglect, parental substance misuse, emotional harm and self-harming behaviours”.
Her relationship with her mother has been strained and has been the primary subject of the intervention by CYPS. The service also came to know her in November 2009 when she was arrested for an assault on her mother. She now has a criminal record.
FT is currently subject to a final Care and Protection Order that will expire in October 2020. Attempts to return her to the care of her mother have been abandoned. The fault appears to lie with both her and her mother.
There is also a report from Dr Clout, a clinical psychologist. She identifies a multitude of mental health issues suffered by FT. Dr Clout states:
1. … [FT] reported the onset of most symptoms and behaviours indicative of Borderline Personality Disorder in her early adolescence, including a history of intense and volatile interpersonal relationships, impulsivity and self-damaging behaviours, marked affective instability, suicidal ideation and self-harm, identity disturbance and an unstable self-image, and both paranoia and dissociative symptoms. She also outlined an extensive history of difficulty managing anger emotions and frequent inappropriate displays of anger, with this having a reported onset during childhood.
2. She identified the onset of her Stimulant Use Disorder in early 2019, after a period of excessive marijuana use at 13-years of age. She reported that after a sexual assault in September 2019, her drug use intensified, and she had been using ice at the time of all three charges. In addition to an escalation of her drug use, [FT] outlined the onset of symptoms of Posttraumatic Stress Disorder. She identified that these symptoms escalated in December 2019, following a second sexual assault. [FT] reported the onset of depressive symptomatology following her admission to Bimberi.
3. In addition to significant clinical symptoms and impairments both [FT] and her maternal aunt reported concerns that likely indicate the presence of neurodevelopmental problems, namely Attention-Deficit/Hyperactivity Disorder.
A little later in her executive summary Dr Clout says:
5. Due to the nature and severity of [FT]’s mental health issues, appropriate management and treatment is likely to require an intensive and multifaceted approach. Firstly, she would benefit from urgent psychiatric assessment to determine the most appropriate course of pharmacological treatment, and to assess for the presence of Attention‑Deficit/Hyperactivity Disorder. Given the often-extreme nature of her emotional and behavioural dysregulation, there is a high probability that she will require pharmacological treatment in order to self‑regulate enough to gain benefit from psychological treatment.
I read Dr Clout to be saying that FT requires urgent psychiatric or psychological intervention. However, even this may not be productive unless FT is first assessed to define the medication that will best enable her to reach a condition in which the treatment will be beneficial.
FT has spent 127 days in custody for which she must be given credit. The sentence will be backdated accordingly.
As already noted, CU was born in 2001. She is an only child. She grew up in Canberra. After the separation of her parents she was brought up by her mother. CU found school difficult primarily because of bullying. In addition, she has been exposed to violence used by her father against his assorted partners. The father has also been aggressive towards her, although not physically.
CU and her mother often did not get along well. The latter has her own mental health issues. Nevertheless, according to the Pre-Sentence Report, CU had positive elements in her upbringing including enjoyable holidays at the ocean and the implementation of an appropriate disciplinary regime.
Unfortunately, in mid-2019 CU was “kicked out” of the family home. Her mother did not approve of her partner because of his involvement in criminal activities. CU was then homeless for about six months. CU supported her mother following an attempted suicide by her mother.
CU is pregnant and due to give birth in August this year. She has however ceased her relationship with the father of the child. He had been violent towards her, including on one occasion where he attempted to stab her with a knife.
At the moment CU is living in a caravan with her father which is parked in the yard of her grandparents’ home in Macquarie. She is seemingly happy in her current circumstances. Her relationship with her mother has also apparently recently improved.
CU did not do well at school due to some learning difficulties. This was not assisted by being bullied. She has however completed the Year 10 Certificate and started Year 11 at Lake Ginninderra College. Unfortunately, she left the college in April last year. She wishes to resume practical studies after her child is born.
CU has some work experience at McDonald’s while she was at high school. She is currently on a disability pension. She suffers from depression and anxiety and has received support which unfortunately ended late last year for financial reasons.
CU began using marijuana when she was 16. She still does so to help with her depression and anxiety. Because of her pregnancy she has significantly reduced the quantity that she smokes. CU has also had a very limited exposure to methamphetamine. She did however consume this drug on the day of the offending. She blames her involvement in the offence on her former partner and because she was concerned that her co-offender might seriously injure the victim.
Regrettably, she continues to smoke four to five cigarettes a day. She has not consumed alcohol since she became aware of her pregnancy.
CU has been assessed as having a low likelihood of reoffending. She does not have a criminal record.
The illegal confinement offence demands a period of imprisonment. This applies to both offenders. I also think that there should be some distinction made between the two offenders. However, I intend to impose the same sentences on both of them, the difference will be that CU will not spend any time in custody.
The overwhelming reasons behind my approach are that these two young people must be given every opportunity to put their lives in order, to leave crime behind them and to live in society as decent and contributing members of society.
FT must be given the chance to have her mental health problems assessed and treated. CU must be placed in a position where she can provide her child with a safe and secure upbringing.
FT
I make the following orders:
(a)For unlawful confinement (CH2019/954), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months for the plea of guilty) to commence on 9 December 2019 and end on 8 September 2020.
(b)The sentence of imprisonment is suspended with immediate effect on condition that FT enters a Good Behaviour Order to be supervised by CYPS for a period of 12 months from today.
(c)For minor theft (CH2020/268), the offender is sentenced to the rising of the court.
CU
I make the following orders:
(d)For unlawful confinement (CH2019/967), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months for the plea of guilty) to commence on 14 April 2020 and end on 13 January 2021.
(e)The sentence of imprisonment is suspended with immediate effect on condition that CU enters a Good Behaviour Order to be supervised by CYPS for a period of 12 months from today.
(f)For minor theft (CH2020/282), the offender is sentenced to the rising of the court.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 15 April 2020 |
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