R v KN

[2019] ACTSC 305

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KN

Citation:

[2019] ACTSC 305

Hearing Date:

18 October 2019

DecisionDate:

18 October 2019

Decision:

See [22]

Before:

Mossop J

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – drive motor vehicle without consent – sentencing young person – relatively modest previous offending – good behaviour order imposed

Legislation Cited:

Criminal Code 2002 (ACT), s 318(2)

Crimes (Sentencing) Act 2005 (ACT), ss 133C, 133D, 133G

Parties:

The Queen (Crown)

KN (Offender)

Representation:

Counsel

M Lucero (Crown)

D Turner (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aboriginal Legal Service (Offender)

File Number:

SCC 191 of 2019

MOSSOP J:

Introduction

1. The offender, who I will refer to as KN, pleaded guilty in the Supreme Court to a single count of dishonestly driving a motor vehicle without consent (CH2019/64) contrary to s 318(2) of the Criminal Code 2002 (ACT), the maximum penalty being five years’ imprisonment, 500 penalty units or both.

Facts

1. Between 2.01am and 2.15pm on 27 February 2018, KN drove a stolen vehicle to several places in the Australian Capital Territory (ACT), including the Erindale McDonald’s drive‑through and the Erindale 7-Eleven store. The offender and two other unknown males then abandoned the vehicle at an address in Kambah and proceeded to run in the direction of the Drakeford Drive footbridge. Police attended shortly after. The car was seized and taken to be forensically examined. The offender’s DNA was found on the driver’s side door controls of the vehicle.

1. At the time of the offending conduct he was 15 years old. He therefore did not hold a valid driver’s licence.

Objective seriousness

1. The offence is unremarkable.  It involved driving rather than riding in the vehicle.  The offender was unlicensed. He was not involved in the aggravated robbery of the car.  The use of the vehicle was relatively brief.  There were two passengers in the car. It is in the mid range of objective seriousness for this offence.

Subjective circumstances

1. The subjective circumstances of the offender are detailed in a comprehensive updated pre‑sentence report prepared by ACT Community Services.

1. The offender is 16 years old. He identifies as Aboriginal. He was born in Canberra along with his seven siblings. Along with his parents and siblings the offender’s family unit includes his grandmothers and his paternal grandfather. The offender’s maternal grandfather passed away in 2017. He reported being close to this family member. The offender’s mother and maternal grandmother indicated that the offender’s behaviour started to change upon his grandfather’s passing and that “he wasn’t able to grieve”.

1. The offender and his siblings are subject to an extensive child protection history. Child and Youth Protection Services (CYPS) have received 38 Child Concern Reports for the offender since June 2006. Twelve of these proceeded to further statutory intervention. Three related specifically to youth justice matters. The concerns reported have included neglect, exposure to parental substance use, physical abuse, future risk concerns, serious or persistent conflict and emotional abuse due to exposure to family violence. During the nine formal interventions there has been no substantiations of abuse. The family has received support and family therapy from a non-governmental organisation called Ozchild, the program being the Ozchild Family Functional Therapy. CYPS currently have no child protection concerns. I accept that the elements of dysfunction recorded in the pre-sentence report should not be underestimated and can be long-lasting.

1. The offender was remanded in custody on this charge and other charges from 23 March 2019. Whilst in custody at the Bimberi Youth Justice Centre he has been subject to supervision with CYPS.  His record appears to be mixed involving times when he is respectful and compliant with the regime, but also having received 22 behaviour breaches during his period on remand. Those breaches have involved graffiti of government property, damage of government property, refusing to follow staff instruction, touching staff property, being disrespectful towards staff and one which is unusually described as filming himself dancing during a lockdown.

1. I accept that which is stated in the pre-sentence report, that he has some insight now into the seriousness of his offending. He also has sufficient insight to recognise that the path that one of his brothers is on is a bad one, likely to put him into conflict with the law. He is presently enrolled for his Year 10 certificate, which is a promising indication.

1. The pre‑sentence report however identifies a number of matters which are of concern and affect the assessment of the risk of further offending and the prospects of rehabilitation. These include:

(a)his history of drug use, smoking marijuana daily since the age of 12 and an explicit lack of motivation to address that issue;

(b)the fact that he spent around three nights per week away from his home and hence away from the supervision of his parents prior to the period of remand;

(c)that he has a friend group that gets in trouble with the law;

(d)that he had limited engagement with school in the two years prior to the offending;

(e)that he lacks the motivation for education, at least in relation to literacy and numeracy; and

(f)he lacks the motivation to abide by any conditions of bail or a good behaviour order.

1. Whilst in custody it has been identified that he has significant and long-standing chronic hearing loss, worse on the left side.  Whilst he previously had been provided with hearing aids he ceased wearing them because he was being bullied for wearing them at school.  The audiologist who assessed him identified that “this degree of hearing loss would impact every part of [KN]’s life including his engagement in learning, his ability to socialise appropriately and his levels of frustration and fatigue.”  He has been booked in to see an ear, nose and throat specialist.  Surgical intervention is identified as a possible option.

Criminal history

1. So far as his criminal history is concerned, a number of offences have been proved but dealt with without conviction.  This offending occurred in 2016, 2017 and 2018. The offences were relatively minor ones.  In 2019 he was convicted of riding or driving a motor vehicle without consent and sentenced to three months’ imprisonment. The date of that offence was prior to the current offending, namely 1 January 2018. At the same time he was also convicted of failing to appear after having given bail undertaking, the offence date of which was 21 January 2019 and for which he was sentenced to two months’ imprisonment concurrent with the other sentence.  A Notice of Appeal was lodged and the sentence stayed after a period of 17 days. 

Plea of guilty

1. The offender pleaded guilty to the offence in the Supreme Court after a criminal case conference.   

Time in custody

1. At the time of sentencing, he had spent 209 days in custody attributable to this charge along with others.  He spent 17 of those days in custody as a result of the sentence imposed by the Magistrates Court prior to that sentence being stayed by reason of the lodgment of an appeal. I do not accept the submission that I should treat as extra-curial punishment an alteration in the conditions of his incarceration at the Bimberi Youth Justice Centre following a disturbance there. In my view that is simply a consequence of detention in circumstances where he has been refused bail on this and a number of other charges.

Consideration

1. As I have indicated above the offender has many criminogenic risks. There is clearly a need for specific deterrence. It is obviously necessary in the case of someone of his age to have regard to the fact that he is a young person and in particular the requirements of s 133C, 133D and 133G of the Crimes (Sentencing) Act 2005 (ACT).

1. I do not accept the submission that it is dangerous to rely upon the contents of the pre‑sentence report in relation to what the offender has said relevant to his future prospects of rehabilitation. I consider that the pre‑sentence report is the best information available to the court upon which to assess the prospects of his rehabilitation and particularly in this case, the prospects of compliance with a community‑based order involving supervision or other conditions.

1. In my view, it is fundamental to his future prospects of rehabilitation that he receive appropriate treatment for his chronic deafness.  The audiologist correctly points out that this condition will, unless properly treated, have an impact upon every part of his life.  In common with many Aboriginal people, the pervasive effect of untreated hearing loss upon all aspects of the offender’s social progress cannot be overemphasised.  This appears to have been recognised whilst he has been in custody but whether he will continue to receive appropriate treatment when released from custody, or properly use any hearing aid prescribed, is something which only he will control and his family will influence. Hence his prospects in this regard are uncertain.

1. It is quite clear that if the evidence indicated that he was likely to be cooperative with conditions of supervision then a good behaviour order with such conditions would have been an appropriate disposition. Because of his likely resistance to, or inability to comply with, conditions upon a good behaviour order such a disposition becomes less suitable.  That is obviously unfortunate because it means that more severe sentencing options become appropriate and it means that he will be denied the benefits that he would have obtained to his rehabilitation if he was able to take the benefit of appropriate supervision. However, I accept what is said in the pre-sentence report that notwithstanding his need for support and supervision, to sentence him to a good behaviour order with complex conditions including supervision would in the circumstances be counterproductive and more likely to bring him back into further contact with the justice system as a result of non‑compliance.

1. Looking at his criminal history, the previous offending is relatively modest. It does demonstrate a trajectory, which for a young person in his position was very poor. The present offending is not the most serious, particularly having regard to the explicit statement in the Agreed Statement of Facts that he was not involved in the aggravated robbery of the car and there are a few other circumstances which aggravate it.

1. Further, it is relevant to take into account the fact that he was not sentenced for the previous drive or ride without consent until recently and that although that offending predated this offending, he was not on notice of the gravity of the offending and the likely consequences at the time when he committed this offence.

1. In those circumstances, in my view although more severe penalties become more attractive as a result of his unsuitability for supervision, the matter can be appropriately dealt with by a simple good behaviour order for a period of 12 months. Such a simple sentence means that his chances of successfully complying with the order are maximised. On the other hand, it means that if he fails to comply with the good behaviour order then it will, in my view, be clearly a case which can only appropriately be dealt with by a period of imprisonment. It should be clear that that is the likely consequence of a breach involving further offending.

Orders

1. As a consequence, the orders of the Court are:

1. On the charge of drive motor vehicle without consent contrary to s 318(2) of the Criminal Code 2002 (ACT) (CH2019/64) the offender is required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration Act) 2005 (ACT) for a period of 12 months from 18 October 2019 until the 17 October 2020.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 1 November 2019