R v It
[2017] ACTSC 271
•8 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v IT |
Citation: | [2017] ACTSC 271 |
Hearing Date: | 9 August 2017 |
DecisionDate: | 8 September 2017 |
Before: | Penfold ACJ |
Decision: | See [68] – [74] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young offender – aggravated robbery in company and in breach of good behaviour orders – relatively minor thefts effected through significant violence – aggravated dangerous driving – using an unregistered vehicle – using an uninsured vehicle – driving while unlicensed as a repeat offender – driving offences committed in breach of bail – no demonstrated remorse – assessment identifying borderline intellectual ability, Attention Deficit Hyperactivity Disorder, long-standing conduct disorder – possible drug addiction – rehabilitation may take priority over need for general deterrence. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 108(2)(a), 109 Crimes (Sentencing) Act 2005 (ACT), ss 133C, 133D, 133G, 133G(3) Supreme Court Act 1933 (ACT), ss 68D, 68D(2) |
Parties: | The Queen (Crown) IT (Offender) |
Representation: | Counsel Ms S Saikal-Skea; Mr D Swan (Crown) Mr J Robertson; Mr B Shelton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Numbers: | SCC 39 of 2017; SCC 181 of 2017; SCC 182 of 2017 |
The offences
IT has pleaded guilty to five offences, as follows:
(a)aggravated robbery, arising under s 310 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 25 years;
(b)aggravated dangerous driving, arising under s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and carrying a maximum penalty including imprisonment for three years and, under s 63(1)(f) of that Act, a minimum, automatic, driver disqualification period of three months;
(c)using an unregistered vehicle, arising under s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) and carrying a maximum penalty of a $3,000 fine;
(d)using an uninsured vehicle, arising under s 17(1) of the Road Transport (Third-Party Insurance) Act 2008 (ACT) and carrying a maximum penalty of a $7,500 fine; and
(e)driving while unlicensed, as a repeat offender, arising under s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) and carrying a maximum penalty of a $3,000 fine and imprisonment for six months.
These last three offences are before me for sentencing under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT), and for the purposes of s 68D(2) of the Supreme Court Act, I note that I consider it will be in the interests of justice to deal with those offences in these proceedings.
The aggravated robbery offence was committed in breach of three good behaviour orders made in the Magistrates Court on May 2016, relating to:
(a)one offence of driving unlicensed;
(b)one of ride or drive a motor vehicle dishonestly and without consent; and
(c)one of obtaining property by deception, which was committed with a co‑offender and involved using a stolen credit card to make 23 separate transactions to a total value of roughly $1,150.
The incidents
The aggravated robbery was committed with three co-offenders, CI, UI and KI.
On 5 December 2016, the victim was sitting outside a café in Duffy with two friends.
CI and his brother, and several other young people 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, IT, who arrived at the flat alone, tried to entice him to come outside. When that failed, IT and three of the young people from the café, who had by then also arrived, came in; IT hit the victim in the back of the head, twice, and dragged him down the stairs to the footpath, where he forced the victim to the ground and hit him in the head again. Other members of the group also assaulted the victim, including UI, who tried to remove the victim’s watch from his wrist. CI kicked the victim in the arm and thigh and later in his knee, while the victim was lying on the ground in the foetal position. At the same time IT pushed the victim. Before the assault 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 – IT removed the victim’s Nike runners and took them with him.
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.
The other offences were committed while IT was on bail in relation to the aggravated robbery. One of his bail conditions was that he was not to enter the ACT except to attend court or to attend pre-arranged interviews with police.
At about 5.10 pm on 17 June 2017, police observed a blue Ford Festiva driving at 90kph in a 50kph zone in Chifley. IT was driving; there was a boy aged about 12 years in the back passenger seat, and two females in other seats. After police activated their warning signs and sirens, the vehicle slowed down to some extent, but did not stop for police. The vehicle then travelled along Marr Street near Marist College, where students and parents were leaving after sports, and then continued into Beasley Street where the police lost sight of the vehicle.
Police investigated and discovered that the vehicle had been unregistered for nearly a month, as a result of which it had lost third-party insurance coverage, and that IT had never held a licence in any Australian jurisdiction.
After the robbery, IT was arrested on 10 December 2016. On 12 December, he appeared in the Magistrates Court, where he was charged with the aggravated robbery and released on bail.
He was then arrested on 17 June 2017 for the driving offences, and was remanded in custody when he appeared in court on 19 June 2017; he has been in custody ever since.
As at today, he has spent nearly three months in custody in respect of these charges. The backdating date is agreed as 14 June 2017.
IT pleaded guilty to all charges in the Magistrates Court and was committed to this Court for sentence. I shall accept these as early guilty pleas and there will be an appropriate sentencing discount.
Evidence
As well as the statements of facts, the following material is in evidence before me:
(a)a criminal history;
(b)a pre-sentence report;
(c)a Child and Youth Protection Services (CYPS) Case Plan;
(d)my sentencing remarks for one of IT’s co-offenders in the aggravated robbery;
(e)statements of fact for the three earlier offences already mentioned in connection with good behaviour orders that were breached by the aggravated robbery; and
(f)a DVD showing part of the assault involved in or constituting the aggravated robbery;
all of those pieces of evidence were tendered by the prosecution.
No evidence was tendered by the defence.
Objective seriousness of the offences
In considering the objective seriousness of the offence, I have had regard to the following matters.
Aggravated robbery is regarded as a very serious offence, as shown by the high maximum penalty. It is an offence that covers a wide range of different kinds of behaviour. In this case, the thefts effected through violence were relatively minor (the victim was deprived of his watch and his branded sneakers) but the violence involved was significant; watching the footage of the incident is a disturbing experience. Unsurprisingly, the injuries sustained by the victim were also significant.
The statutory aggravating factor for the aggravated robbery was that the robbery was committed in company.
IT says that some time before the robbery, the victim had challenged him to a one‑on‑one fight, and that he (IT) was simply responding to that challenge when he followed the victim into his sister’s block of flats. While conceding that he dragged the victim out onto the street, where he was then set upon by IT and his co-offenders, IT says that he had not planned any such assault with the co-offenders.
The Crown does not accept that there was no pre-planning with IT’s co-offenders, and says that it was not coincidental that all the offenders arrived at the victim’s sister’s block of flats at almost the same time. However, this is not asserted in the agreed statement of facts, and I can see no basis on which I could be satisfied beyond reasonable doubt that the offence that was in fact committed had been pre-arranged among the co-offenders.
Defence counsel said on behalf of IT that, while he concedes that he hit the victim three times in the head, the most serious injuries to the victim were inflicted by his companions, particularly KI, who punched the victim repeatedly to the head with significant force, and UI, who stomped on the victim’s head with one foot.
This may be true – certainly, the blows inflicted by KI, which are seen in the footage, were very forceful. However, in the absence of any evidence about which blows to the head were the most serious, it seems to me that I must assume that all the blows to the head were equally damaging and that culpability in that respect can be differentiated, if at all, only by reference to the number of blows inflicted by each offender.
The dangerous driving offence was committed in three statutory aggravating circumstances, being that the offence involved:
(a)a failure to stop in accordance with a police requirement;
(b)driving at a speed more than 30% above the speed limit; and
(c)the presence in the car of a person under 17 years of age.
All the driving offences were also aggravated by being committed while IT was on bail for the aggravated robbery charges, and in breach of the specific bail condition excluding him from the ACT except in connection with legal proceedings relating the aggravated robbery.
IT has not shown anything that could be described as actual remorse. As mentioned, he claims that the victim had challenged him to a fight, and had previously made threats of violence against IT and his family. He told his CYPS Case Manager, however, that he now realises he should not have accepted the victim’s challenge. He said he was not sorry for the victim, and that the victim needed to be taught a lesson, but that he (IT) has also learnt a lesson, in that he is now locked up in Bimberi.
For reasons that will be explained, there is no information before me about IT’s perspective on the driving offences.
The aggravated robbery must be assessed as of medium-level seriousness.
In the absence of any mitigating information about the driving offences, I assess the aggravated dangerous driving offence as also of medium-level seriousness, and the three transferred offences are in my view slightly above low-level seriousness.
Subjective circumstances
I have also had regard in this sentencing to IT’s subjective circumstances.
IT is now 17. He was 16 when he committed the aggravated robbery, but had turned 17 before the driving offence. His criminal history in the ACT consists of the three offences mentioned in the context of good behaviour orders breached by the current offending, and a Commonwealth offence of trespass. All four offences were committed when he was 15, and no convictions were recorded, although three 12-month good behaviour orders were made. There are also two offences committed in NSW in March this year, described in the NSW record as “destroy or damage property” and “stalk/intimidate intend fear physical etc harm (domestic)”, for which he received a 9-month bond.
IT was born towards the end of his parents’ brief and volatile relationship. The relationship involved alcohol abuse, domestic violence (apparently with both of IT’s parents being perpetrators at different times), and persistent conflict about responsibility for IT. The pre-sentence report contains a summary of his parents’ approach to conflict, to the effect that they:
show little ability in resolving conflicts on their own, and resort to childish measures including retaliating phone calls, verbal abuse, name calling or physical violence. During arguments each seems to want to ‘hurt’ the other, and ‘win’ the argument rather than coming to a suitable arrangement.
IT’s mother is said to have ongoing mental health difficulties, and does not appear to take any particular pleasure from relationships with any of her four children. IT’s father, who appears to have been largely responsible for IT, at least since he was six years old, has been described in the past as having only “very basic” parenting skills, problems with alcohol abuse, and a tendency to rely on physical discipline in dealing with IT. He has conceded that he does not know how to deal with IT’s challenging behaviours.
One of the documents before me indicates that IT identifies as Aboriginal; however, this was not mentioned in the pre-sentence report, and therefore there is nothing before me about any particular significance of that cultural background in this context.
IT was released on bail in December 2016 after being charged with the aggravated robbery, with a condition requiring him to live with his mother in NSW. That arrangement broke down in March, after the commission of the NSW offences, and he was directed to live with a relative in Goulburn. However, this person was unable to provide stable supervision, and was also struggling to cope with IT’s behaviour. Since his arrest after the driving offences in June, IT has been in Bimberi, where he has caused concern in various respects.
IT’s childhood has been significantly dysfunctional in many other respects too. He has attended a number of different schools in the ACT and NSW, and has been regularly suspended or excluded from school, including over allegations of inappropriately sexualised behaviour towards female students, although I note IT’s claims that the sexual activities were consensual. He has spent various periods living away from either parent, either couch-surfing or living in squats or other inappropriate accommodation.
In 2014, IT saw a paediatrician, who described him as having borderline intellectual ability, Attention Deficit Hyperactivity Disorder (ADHD), and long-standing conduct disorder, and said that, without appropriate adult supervision, he remained at high risk of sexual assault, drug use and criminality. There is also a suggestion in some of the other material of further unidentified trauma in IT’s childhood. I understand that IT has been prescribed medication for his ADHD while in Bimberi, and is taking it sporadically. IT needs to understand that medication won’t do him much good unless it is taken regularly and as prescribed.
The pre-sentence report records that IT has resisted engaging in educational activities in Bimberi, but defence counsel is instructed that this is because IT actually completed Year 10 while living with his mother in Sydney, and sees no point in further schoolwork. I note also IT’s claim, made through his counsel, that during extended lock-down periods in Bimberi caused by current staff shortages, the only activities available to him in his room are TV or colouring-in.
The pre-sentence report refers to an incident in Bimberi in which IT lured a 14-year-old boy to a fight on the oval, and comments from Bimberi staff about IT’s disinclination to accept advice from staff, or even from other detainees, about ways to avoid or minimise conflict, and ways to behave in his own best interests. Rather, IT has apparently indicated that making threats is his preferred way of dealing with people he doesn’t like.
In July 2017, IT’s father was reported to have interstate work commitments; as well, his father (IT’s grandfather) who lives in Tasmania is very ill. Both of these factors have affected the father’s capacity to provide a safe home for IT in the short-term. There is, however, mention of a plan for IT and his father to move to Tasmania so that IT can work on a crayfishing boat with his older brother, but it seems that this is a longer-term project which will require planning. However, I do note that IT’s father has been present at the sentencing hearing, and indeed today, and has apparently been providing significant input and support in dealing with IT’s lawyers.
IT has indicated a wish to maintain employment and to have an income of his own, but previous attempts at employment have been unsuccessful, for reasons such as inconsistent attendance, problems with co-workers, and his educational difficulties. IT is said to have a “passion for the outdoors”, and a preference for his own company and for a rural life; the hope seems to be that a more outdoor-centred life, such as would be involved in work on a crayfish boat, and the presence of his older brother, might be beneficial for him.
IT has told Youth Justice staff that before entering Bimberi, he used cannabis daily and alcohol less frequently.
There is apparently a dispute between Youth Justice and IT about IT’s use of LSD and MDMA. Youth Justice workers say that IT said he used those drugs almost weekly, which Youth Justice interpreted as suggesting an addiction, but IT denies addiction, while apparently conceding that at some point in the past he has used such drugs roughly once a month. The main significance of this dispute, as far as I can see, is that as a result of it, IT has recently refused to engage with his Youth Justice case worker and accordingly has had no opportunity to discuss the driving offences, their cause, or how he now regards them.
It may be that the exact truth about IT’s drug use, and what he said about it to his case workers, is more significant than I understand. However, at this stage it seems to me that in allowing an apparently minor dispute over a matter of detail to derail a potentially significant meeting with his case manager, IT may be demonstrating an unfortunate attitude (possibly modelled for him by his parents in the past) that will inevitably disadvantage him into the future.
In sentencing IT’s co-offender, CI, for his role in the aggravated robbery, I concluded that I could not find that he, that is, CI, carried more or less responsibility for the incident than any of his co-offenders, but I noted that his violence was less severe than that of some of the co-offenders.
In this case, even if IT initiated the attack on the victim because of the alleged challenge issued by the victim, it is clear that his co-offenders joined in the attack with considerable enthusiasm, and that at least one of them engaged in even more violence than did IT.
There has been no suggestion that any of the offences I am dealing with were committed under the influence of alcohol or illicit drugs, and so there are no easily identifiable rehabilitation goals. While it would clearly be desirable for IT to begin addressing any relevant substance abuse, it seems that his current rehabilitation needs relate more to receiving (and being willing to accept) help to deal with his ADHD and any identified psychological difficulties, counselling in relation to the many dysfunctional aspects of his childhood and the self-defeating attitudes he has been left with, and education and training aimed at helping him achieve his goal of having employment that makes him economically self-sufficient. At this stage, the plan for him to work on a boat in Tasmania may well be sound, but there is little that can be done about that in the context of this sentencing, especially since the plan also seems to depend on his father’s commitments.
Other sentencing considerations
Because IT was under 18 when he committed these offences, s 133C of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) requires me to consider the purpose of promoting his rehabilitation, and notes that I 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)IT’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 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 robbery and dangerous driving offences.
Finally, s 133G(3) requires me, in sentencing IT 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.
Parity
I turn now to questions of parity with IT’s co-offenders.
In May, UI was dealt with in the Magistrates Court, and I sentenced CI, for their roles in the aggravated robbery.
UI was 17 years old; she had no criminal history and had prospects of rehabilitation. 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.
CI, who was 15 years old when I sentenced him, was sentenced to 12 months imprisonment, reduced from 16 months. There was 3 months concurrence with a sentence for an earlier aggravated robbery committed in November 2016. His total sentence of 15 months was suspended after 9 months, subject to a 12-month good behaviour order.
General deterrence
General deterrence is of particular importance in relation to violent offending of this kind, even more so when the violence is premeditated. Although I have declined to find that IT and his co-offenders had planned the assault on the victim, it is clear that IT himself did intend to engage in a violent encounter with the victim at some point.
However, as noted, given his youth, IT’s rehabilitation may take priority over the need for general deterrence. Sadly, as was also the case for his co-offender CI whom I have already sentenced, it is very hard to identify how IT’s rehabilitation might be promoted effectively through the sentencing process. It is to be hoped, however, that the dramatic life change that would be involved in the proposed move to Tasmania will be helpful.
Finally, I note that I propose to deal with the breach of the 2016 good behaviour orders by taking no further action.
The prosecutor initially suggested that I should cancel those good behaviour orders under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act) which would then, under s 109 of that Act, require me to re‑sentence for the earlier offences. However, I have decided not to do this, for the reason that the sentencing options available after convicting IT are, in my view, problematic in the current circumstances.
First, on a careful reading, the Sentencing Act does not seem to leave open the possibility of a sentence consisting only of the recording of a conviction. There is the option of making new good behaviour orders on top of the convictions, but IT will remain in custody for some time yet, and when released will be subject to supervision for at least the remaining duration of his custodial term. Having good behaviour orders running beside the new sentences seems to add nothing but potential complexities arising from the risk that IT will find himself at some point being re-sentenced yet again for the 2015 offences.
Another option seems to be, on conviction, to impose fines with no time to pay, which I understand would enable the fines to be set off against the time that IT will be spending in custody anyway. I propose to use that approach for some of the current offences.
However, given that two of the current offences are considerably more significant than the earlier ones, I can see no benefit in multiplying the complexity of the current and possibly future sentencing processes by carrying the finalisation of those earlier offences forward.
Nor do I think that whether or not convictions are now recorded on the earlier offences is likely to make any difference to any future assessment of IT’s criminal history.
Sentence
IT, please stand. I record convictions on one charge each of:
(a)aggravated robbery;
(b)aggravated dangerous driving;
(c)using an unregistered vehicle;
(d)using an uninsured vehicle; and
(e)driving while unlicensed, as a repeat offender.
The aggravated robbery conviction puts you in breach of three 12-month good behaviour orders made in the Magistrates Court in May 2016 as an alternative to recording convictions for offences committed in 2015.
Under s 108(2)(a) of the Sentence Administration Act, for reasons already explained, I take no further action on the good behaviour orders made in the Magistrates Court.
Next I sentence you for the new offences as follows:
(a)for the aggravated robbery, to 18 months imprisonment, reduced from 2 years for your plea of guilty;
(b)for the aggravated dangerous driving, to 6 months imprisonment, reduced from 8 months, to be accumulated on the aggravated robbery sentence so as to add 4 months to the total sentence, and I disqualify you from holding a driver license for 9 months;
(c)for using an unregistered vehicle, to pay a fine of $200;
(d)for using an uninsured vehicle, to pay a fine of $500; and
(e)for driving while unlicensed as a repeat offender, to pay a fine of $200.
I allow no time to pay on any of those fines - and understand that they will be set off against the period you are about to spend in custody.
That gives a custodial sentence of 22 months, which will be backdated to 14 June 2017 to take account of pre-sentence custody, and so it will run until 13 April 2019.
The sentence will be suspended after a total of 11 months, including what has already been served, that is, with effect from 13 May 2018, and I order that before you are released you sign an undertaking to comply with your good behaviour obligations under the Sentence Administration Act for 12 months from when you are released.
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 need to understand, and I think you are already aware of this, that your Youth Justice supervisor can give you directions, under that good behaviour order, 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.
The licence disqualification order I have made means that you will not be allowed to drive before 8 June 2018, which is about three weeks after you are released when your sentence is suspended. If you are sensible, IT, you will, as soon as you are released, and ideally with help from your Youth Justice supervisor or perhaps your family, start the process of getting yourself a legitimate driver license, which might make a real difference to whether you can keep out of trouble once you are back in the community, and might also make it easier to find and keep a job. If you are not sensible, of course, you will just go back to driving unlicensed, and if you do that you will very quickly find yourself disqualified from driving for ever-increasing periods, so that it will become almost impossible for you to keep out of trouble.
You will be given a written copy of the good behaviour order, and it will be read to you by the officials before you sign it, but in short, what it will mean is 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 complying with directions about where you live, who you associate with and so on, but also 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 could find yourself back in this Court to be re-sentenced for these offences. If that happens, depending on how exactly you have breached your good behaviour undertaking, and especially if you have re-offended, you could well find yourself serving some or all of that last 18 months of the sentence back in full-time custody.
I should also say at this stage that there may be scope, after you are released from Bimberi, to transfer your good behaviour order supervision to Tasmania. I don’t know, but it would be worth asking Corrective Services, or perhaps someone at Bimberi or your Youth Justice supervisor, about that when you sign the good behaviour undertaking before you are released.
IT, you haven’t had an easy time of it so far, and through no fault of your own you have grown up without a lot of the life skills that enable people to have good relationships, to find satisfying work, and generally to enjoy their lives. At this stage, however, unless you make up your mind that things have to change, then all the help you will be offered by Youth Justice, and ideally by your father and other family members, won’t do you any good at all. So I really recommend to you, and I really hope, that until you’re in a position to move to Tasmania and start a new life, you concentrate on making the most of all the help that Youth Justice and your family can offer you, and especially on keeping out of trouble until you can make that move.
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: Date: 1 November 2017 |
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