R v KI
[2018] ACTSC 235
•1 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KI |
Citation: | [2018] ACTSC 235 |
Hearing Date: | 26 February 2018; 24 April 2018 |
DecisionDate: | 1 May 2018 |
Before: | Burns J |
Decision: | See [17]-[18] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – criminal history – subject to Good Behaviour Orders – Pre-Sentence Report – juvenile when offence committed – rehabilitation – co-offenders – plea of guilty |
Parties: | The Queen (Crown) KI (Offender) |
Representation: | Counsel Ms S Saikal-Skea; Ms S McMurray (Crown) Mr J Stewart (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Number: | SCC 26 of 2017 |
Burns J:
KI, you appear before me today for sentence with respect to one count of aggravated robbery (CH16/00758). The relevant circumstance of aggravation is that you were in company. This offence occurred on 5 December 2016. A comprehensive Statement of Facts was tendered at your sentence hearing which I will not now recite. It is sufficient to note that on 5 December 2016, you, in company with your younger brother, CI, UI and IT, jointly attacked HB outside a residence in Duffy.
The group punched the victim, kicked him and stomped on him. IT removed the victim’s shoes during the assault and another member of your group removed his wrist watch. The incident was filmed by a bystander. It is clear that considerable violence was involved. I am satisfied that there was a degree of premeditation and planning involved in this offence, as you sought out the victim over a period of time before forcing entry into the residential premises where the victim had taken refuge. The victim suffered significant injuries in this incident. He suffered an extra-axial haematoma and multiple skull fractures which were treated in hospital. No information was put before me as to any continuing consequences for the victim of this attack.
You are currently 19 years of age, although you were 17 years and 10 months old at the time of the offence. You have a considerable and unenviable criminal history for someone of your age. You have previous convictions in the Childrens Court for burglary, aggravated burglary, damaging property, assault and resisting public officials. On 7 February 2014, you were sentenced by the Chief Justice to a term of 18 months’ imprisonment for two offences of attempted aggravated robbery, on this occasion involving the use of an offensive weapon of which 12 months was to be served as full‑time custody with the balance suspended with a Good Behaviour Order.
On 3 June 2016, that Good Behaviour Order was cancelled and you were resentenced to one year one week and six days’ imprisonment, commencing on 3 June 2016 but suspended on 16 July 2016 with a Good Behaviour Order for a period of eight months. On 20 December 2016, you were again dealt with for a breach of that Good Behaviour Order and you were sentenced to 11 months’ imprisonment to commence on 5 December 2016 but suspended from 5 June 2017 with a Good Behaviour Order for a period of five months. The present offence occurred whilst you were subject to the Good Behaviour Order imposed on 3 June 2016. You were also subject to Good Behaviour Orders imposed in the Childrens Court on 22 June 2016 at the time of this offence.
Your criminal history disentitles you to any significant leniency in sentencing for the present offence. Your history also reveals a pattern of failure to comply with community based orders, and speaks of the need to give some weight to specific deterrence in sentencing you for the present offence. A Pre‑Sentence Report, dated 20 February 2018, was prepared for your sentence hearing. The report notes that your compliance with supervision obligations when supervised by Child and Youth Protective Services in the past has been consistently poor. Since being incarcerated at Bimberi Youth Justice Centre on 18 December 2016, you have been issued with multiple notices for breaches of regulations, including three assaults against fellow residents and being disrespectful to staff and threatening to staff. Your classification with that institution is indicative of an assessed high risk of violence.
I am satisfied that you had a less than optimal start to life. Your biological father passed away when you were four years old, and you have since been in the care of your mother and stepfather, both of whom have criminal records. You reported a supportive relationship with your mother and an amicable relationship with your stepfather. You were removed from your mother’s care for a brief period of time in 2009, due to neglect and your mother’s drug abuse. You claim to be in a current intimate relationship, although you declined to provide any details to the author of the report. You largely blamed peer pressure and negative associates for your offending history but you stated that you would socialise with your former associates, including consuming alcohol with them when released. You then somewhat unrealistically suggested that you would not return to crime, despite such associations.
You completed year 10 and reportedly have an ambition to complete year 12. You told the author of the report that you were hopeful of securing work in a labouring capacity and claimed to have a position in landscaping available when you are released. While in Bimberi, you have completed certificates in asbestos awareness, painting and decorating and working safely in the construction industry. You suggested a desire to relocate to Queensland, where you have extended family for employment opportunities. That is a desire which you have reiterated this morning in making a brief statement to me. Indeed, you have suggested that you have a desire to open a coffee shop and to stabilise your life, which of course, is a very commendable thing.
The author of the Pre-Sentence Report stated that information from ACT Health revealed that you have a formal diagnosis of Attention Deficit Hyperactivity Disorder for which you are medicated. You told the author of the report that you began cannabis use at the age of 13 and regularly used that substance within the community. You reported smoking methylamphetamine from the age of 15 with continued use until your incarceration in December 2016. While in Bimberi, you have attended substance abuse counselling and you have also completed short form drug and alcohol programs.
On 24 October 2017, you were subject to urinalysis which detected no illicit substances. You have also completed the Changing Habits and Reaching Targets program, involving approximately 32 sessions, each of 30 minutes’ duration. The author of the report stated that you agreed with the Statement of Facts for the current offence and verbalised some limited remorse and empathy for the victim. I note that you were willing to engage in the restorative justice process but this did not eventuate because of the unwillingness of the victim to participate.
10. I think that it is fair to say that the period which you have spent in custody since 18 December 2016 has been marked by both positives and negatives. Your engagement with counselling and programs has been a marked positive, but your disciplinary history is very disappointing. It is difficult to determine your current prospects for rehabilitation because much will depend upon your willingness to avoid drug abuse and negative influences when you are released from custody. If you fall back into old habits with your old acquaintances, it is very probable that you will return to illicit drug use and inevitably to crime.
11. You are now an adult, so that any further offending will be dealt with in an adult court. With your criminal history, it is probable that any serious offending will lead to a significant term of imprisonment. If you do not use the present opportunity to determine a different direction in life, it is probable that you will spend most of your young adult life in prison. This is probably your last opportunity to avoid such an outcome. It is clear from the material placed before me concerning your participation in the Changing Habits and Reaching Targets Program that you have the capacity to achieve your expressed life goals if you choose to do so.
12. In sentencing you, I take into account the fact that you were a juvenile when you committed this offence and as such, those principles relevant to sentencing juveniles apply. Rehabilitation should still be given prominence as a sentencing consideration, despite your criminal history. This is particularly so as this will be the last opportunity that you have to be sentenced as a juvenile.
13. Your co‑offenders were also juveniles. UI was 17 years old at the time of this offence but had no criminal history. She was sentenced to 18 months’ imprisonment, suspended after six months. Your younger brother, CI, was 15 years old and had a limited criminal history. He was sentenced with regard to a number of offences, but with regard to the present offence, he was sentenced to 12 months’ imprisonment, reduced from 16 months due to his plea of guilty. IT was 16 years old at the time of this offence and also had a limited criminal history. He was sentenced to 18 months’ imprisonment for the offence of aggravated robbery, reduced from two years to reflect his early plea of guilty.
14. I am, I believe, justified in imposing a slightly harsher penalty upon you for this offence than those imposed on your co‑offenders. You have a much more significant criminal history than your co-offenders, speaking of a need for specific deterrence. I accept that this must be balanced against the desirability of your rehabilitation.
I take into your plea of guilty with respect to the present charge, although it was not an early plea. You were committed for trial to this court on 6 February 2017 after pleading not guilty in the Childrens Court. The matter was listed for trial, commencing on 13 November 2017 and you did not enter your plea of guilty until 8 November 2017, shortly before your trial was due to commence. I will reduce by 10 per cent the otherwise appropriate sentence in order to reflect your late plea of guilty. Had there been an earlier plea of guilty or an early plea of guilty, I should say, you could have expected a reduction of some 25 per cent.
16. In my opinion, an appropriate starting point for this offence is a sentence of two years and six months’ imprisonment. I will reduce this by three months to reflect your plea of guilty. Although you have been in custody since 18 December 2016, it is agreed that only the period from 6 June 2017 is attributable to the present offence. However, I do take into account the full period that you have spent in custody, not only in determining the length of the sentence to impose with respect to the present offence but also the period of time for you to serve before being released on a Good Behaviour Order.
Sentence
17. I record a conviction and you are sentenced to two years and three months’ imprisonment, commencing on 6 June 2017 and expiring on 5 September 2019. I order that the period commencing on 6 June 2017 and expiring on 30 April 2018, that is yesterday, be served by way of full‑time imprisonment, with the remaining period of imprisonment to be suspended with a Good Behaviour Order for a period of 18 months from today (1 May 2018) with the condition that you are to accept the supervision of the Director-General for that period of 18 months, or such lesser period as deemed appropriate by your supervising officer and you are to comply with all lawful directions of your supervising officer.
18. With regard to the offences in the Childrens Court which were dealt with on 22 June 2016, on those matters where you were sentenced to suspended terms of imprisonment, I cancel the Good Behaviour Orders imposed and I impose the suspended terms, each such term to commence on 6 June 2017. The effect of that, of course, is that you have now served those terms of imprisonment. Where the Childrens Court imposed a simple Good Behaviour Order, I direct that no further action be taken with respect to those breaches.
[speaking directly to offender]
19. Undoubtedly, Mr Perkins will speak to you further about the sentence which I have just imposed, but effectively it means that I have imposed a sentence of two years and three months’ imprisonment commencing on 6 June 2017 but suspended, effectively as of today, so that you will be entitled to be released today. There will be a Good Behaviour Order for a period of 18 months from today with a condition that you are to accept supervision and to comply with directions that are given to you. If you commit no further offences within the period of that Good Behaviour Order and you comply with the directions that are given to you, you will not be required to serve any further period of imprisonment with respect to this matter. However, if you commit some further offence within that 18 month period or you don’t comply with the directions that are given to you, then you will be required to serve a further term of imprisonment.
20. As I have said, this is the last opportunity that you will have to be sentenced as a juvenile. Any further offending will result in sentences of imprisonment to be served as an adult in an adult institution. You must avoid returning to, in particular, drug abuse. In order to do that, it is really necessary for you to consider whether you can continue to have contact with your previous associates, because if you return to drug abuse, it is inevitable that you will return to criminal offending.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 28 August 2018 |
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