R v KS; R v KN; R v KI (No 2)
[2021] ACTSC 23
SUPREME COURT OFTHE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KS; R v KN; R v KI (No 2) |
Citation: | [2021] ACTSC 23 |
Hearing Date: | 2 February 2021 |
DecisionDate: | 15 February 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [191] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Young persons – offences committed within correctional facility – conspiracy to escape – assault occasioning actual bodily harm – common assault – resist territory official – affray – rehabilitation – suspended sentences |
Legislation Cited: | Children & Young People Act 2008 (ACT) s 94 Crimes (Sentence Administration) Act 2005 (ACT) s 85 |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) KS (Young Person) KN (Young Person) KI (Young Person) |
Representation: | Counsel K Lee (Crown) R Thomas (Young Person KS) J Cooper (Young Person KN) J Moffett (Young Person KI) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Young Person KS) Aboriginal Legal Service NSW/ACT (Young Person KN) Sharman Robertson Solicitors (Young Person KI) | |
File Numbers: | KS: SCC 108 of 2020; SCC 109 of 2020; SCC 110 of 2020 KN: SCC 158 of 2020; SCC 131 of 2020; SCC 132 of 2020 KI: SCC 99 of 2020; SCC 100 of 2020; SCC 157 of 2020 |
LOUKAS-KARLSSON J:
Introduction
On 26 August 2019, a group of young people detained at the Bimberi Youth Justice Centre (Bimberi) committed a number of offences. Two of the young people involved, QH and CR, were sentenced by Murrell CJ on 7 July 2020: see R v QH; R v CR [2020] ACTSC 178.
There were three other young people involved: KS, KN and KI.
KS
KS has pleaded guilty to one count of conspiring to escape from lawful custody in contravention of s 48 of the Criminal Code 2002 (ACT) (Criminal Code) in conjunction with s 160 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is five years of imprisonment, a fine of $16,000, or both.
KS has further pleaded guilty to the following transferred offences:
(a)One charge of common assault, contrary to s 26 of the Crimes Act. The maximum penalty for this offence is two years of imprisonment.
(b)One charge of affray, contrary to s 35A of the Crimes Act. The maximum penalty for this offence is two years of imprisonment.
(c)Two charges of knowingly resist a territory public official, contrary to s 361(1) of the Criminal Code. The maximum penalty for this offence is two years of imprisonment, a fine of $32,000, or both.
KN
KN has pleaded guilty to one count of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act, and one count of assault occasioning actual bodily harm by joint commission, also contrary to s 24 and by virtue of s 45A of the Criminal Code. The maximum penalty for these offences is five years of imprisonment.
Additionally, KN has pleaded guilty to the following transferred offences:
(a)Two charges of common assault, contrary to s 26 of the Crimes Act. The maximum penalty for this offence is two years of imprisonment.
(b)One charge of knowingly resist a territory public official, contrary to s 361(1) of the Criminal Code. The maximum penalty for this offence is two years of imprisonment, a fine of $32,000, or both.
(c)One charge of affray, contrary to s 35A of the Crimes Act. The maximum penalty for this offence is two years of imprisonment.
KI
KI has pleaded guilty to one count of conspiring to escape from lawful custody in contravention of s 48 of the Criminal Code in conjunction with s 160 of the Crimes Act. The maximum penalty for this offence is five years of imprisonment, a fine of $16,000, or both. KI has further pleaded guilty to one count of assault occasioning actual bodily harm. The maximum penalty for this offence is five years of imprisonment.
Additionally, KI has pleaded guilty to the following transferred offences:
(a)Three charges of common assault, contrary to s 26 of the Crimes Act. The maximum penalty for this offence is two years of imprisonment.
(b)Two charges of knowingly resist a territory public official, contrary to s 361(1) of the Criminal Code. The maximum penalty for this offence is two years of imprisonment, a fine of $32,000, or both.
(c)One charge of affray, contrary to s 35A of the Crimes Act. The maximum penalty for this offence is two years of imprisonment.
Agreed Facts
At about 6pm on 26 August 2019, Mr Feain (a youth worker) was supervising KI, KN, QH, and two other Bimberi detainees in Majura Wing 2 at Bimberi. Ms Bowen (a youth worker) was supervising KS, CR, and one other detainee in Majura Wing 1. Ms Redman (the team leader) was stationed in the Duty Point, an area in which only staff were permitted.
Mr Feain observed that the detainees under his supervision were acting strangely and surmised that they might be planning a disturbance. In fact, at the instigation of KI, they were planning to “rush” the Duty Point and take keys.
At about 6:20pm, Mr Feain entered the Duty Point and told Ms Redman of his concerns. Ms Bowen raised similar concerns. It was decided that chores would be cancelled, and the detainees would go to bed early.
While Mr Feain was in the Duty Point with Ms Redman, there was a knock at the door connecting the Duty Point to Majura Wing 2. Mr Feain opened the door and saw KI, QH, and KN standing against the doorway.
KI, QH, and KN pushed forward into Mr Feain, forcing him backwards. Mr Feain tried to push them outside the room. KN responded by pushing Mr Feain. Mr Feain felt two punches to his head.
In relation to KI, the breach of the Duty Point was an overt act in furtherance of the conspiracy to escape lawful custody, which had been planned in education that morning (KI: conspiracy to escape lawful custody).
Mr Feain started screaming “black, black, black” to request a code black. Ms Jones (the control room operator) announced a “Code Black” over the radio to signal a security incident.
Ms Bowen told KS and CR to go to their rooms and they refused, instead putting their shoes on. Ms Bowen approached the duty point door to open it. KI yelled: “boys, shut the door, shut the door”. KS said to CR: “it’s happening, it’s happening”.
Ms Redman attempted to pull QH, KI and KN off Mr Feain and stop them from punching him. KN slammed the door on Ms Redman. At one point, KN and QH were involved in an altercation in which Ms Redman sustained a wound to her left forearm occasioned by a sharp object (KN: assault occasioning actual bodily harm by joint commission).
KI closed the door to Majura Wing 2 and opened the Duty Point door to Majura Wing 1. As he opened the door, he stated: “Come on boys, let’s do this”. KS and CR pushed past Ms Bowen and entered the Duty Point.
The young persons began throwing punches at Mr Feain as he tried to restrain them. KI punched Mr Feain to the back of the head with full force. Mr Feain was struck on the right side by KS and, immediately after, on the left side of his head. KS threw a number of punches to Mr Feain’s right jaw (KS: common assault). Mr Feain grabbed KS and pushed him into the corner of the desk.
Mr Feain tried to push KI and KN across the room and they went over the desk, hitting the computer and landing on the floor. QH then began assaulting Mr Feain, hitting him twice to the side of the head and cutting open his head. QH was holding a sharp screw which was poking out of his hand.
Mr Feain flung QH to the ground. KN and KI then moved towards Mr Feain and started striking him in the side and the back of the head (KI and KN: common assault). KN stabbed Mr Feain in the face with a pen, causing Mr Feain’s head to bleed (KN: assault occasioning actual bodily harm). Mr Feain then spun KN and KS around and flung them towards the door.
At this time, KI picked up a computer hard drive, held it above his head and started moving towards Mr Feain. Ms Redman screamed at him not to do it. KI smashed the hard drive over Mr Feain’s head using both hands and splitting Mr Feain’s head open (KI: assault occasioning actual bodily harm). KI and KN then continued punching Mr Feain in the head.
During this time, Ms Redman and Ms Bowen tried to pull the young persons off Mr Feain and push them out of the Duty Point. They managed to push QH, KN, KS and CR out of the Duty Point and into the Majura Wing 1 Recreation Room. Ms Bowen then “shoulder-charged” KI out of the Duty Point and into the same Recreation Room. Ms Brennan then entered the Recreation Room.
KI and KS then yelled at Ms Redman to give them her keys. KS grabbed hold of the keys on Ms Redman’s belt and tried to pull them off her. Ms Redman attempted to restrain KI and KS, but they continued to push her away (KS: resist territory official).
Ms Brennan attempted to assist Ms Redman in restraining KI. KI forcefully pushed Ms Brennan away (KI: common assault).
Ms Ashley Payne, Mr Simon Fahey and Mr Brent Owen entered the Recreation Room to intervene and assist the other staff members in restraining the young persons.
Mr Fahey grabbed hold of KS and pulled him to the ground. KS reached around and unfastened a set of keys tied to Mr Fahey’s belt. KS yelled at CR and threw the keys across the room towards him. CR ran after the keys, followed by Ms Redman.
In relation to KS, the breach of the Duty Point, attempting to take Ms Redman’s keys, and taking Mr Fahey’s keys were overt acts in furtherance of the conspiracy to escape lawful custody, which had been planned in education that morning (KS: conspiracy to escape lawful custody).
KI, KN and QH punched Mr Feain in the head as he attempted to restrain KN on the ground (KI and KN: common assault). QH came over and stabbed Mr Feain in the back and side with the screw, yelling “get off him!”.
CR exited the Recreation Room and QH followed him. Further offences were committed by CR and QH after leaving the Recreation Room.
A number of additional youth workers attended the Recreation Room to assist in restraining KS, KN and KI.
KS was restrained by three youth workers. At one point, he stood up and tried to break free from their grip. At 6.25pm, KS was dragged to a cell, kicking and lashing out with his body (KS: resist territory official).
KI violently resisted being restrained by a number of youth workers, including Ms Bowen. He head-butted Ms Bowen with full force and said: “Jane, you know I don’t want to hurt you. Just, you know, fuck off. Fuck off”. KI thrashed his head around and hit Mr Owen’s head multiple times (KI: resisting territory official). It was decided that KI needed to be picked up and carried to his cell. Five youth workers were required to carry KI to his cell; he was secured at 6:29pm (KI: resist territory official).
Mr Feain returned to the Recreation Room to assist Mr McFarlane to restrain KN. Mr Feain and Mr McFarlane got KN to his feet while he was resisting and screaming. Mr Feain took hold of KN’s arm and asked him if he was ok. KN stopped resisting, looked at Mr Feain, and replied “Sorry. I’m okay. Are you okay?” to which Mr Feain replied, “I’m okay”. KN immediately began resisting and screaming again. Four youth workers transported KN to his cell, where he was placed and secured at 6:31pm (KN: resist territory official).
The violence engaged in by all of the young people during the incident constitutes the charges of affray (KS, KN, KI: affray).
On 28 August 2019, KI disclosed in a phone call that the purpose of the incident was “to try and get out”, and that the group was “trying to get the keys … this this worker got in the way … and then [CR] got out with the keys. Nearly got out”, and that KI “was the instigator”. He further stated: “I was sick of getting locked in my room … Like, I get locked up in my cell anyway, so I wanted to make it for something that I’ve done this time instead of being locked in my cell all day for other people”.
On the same day, in a separate phone call, KN disclosed:
So at the start we planned it – like we’d just rush the duty point … Then we told [CR]’s unit we’re … “doing it cunt”. And then they’re like, “Alright. At six thirty.” It got to six thirty, bro, and we ran in.
KS also told a family member via recorded phone call that he was involved in the incident.
Some weeks after the incident, KS and KN had a conversation about the incident with Ms Bowen. They stated that it had been planned that day in education and that KI had intended to escape and go to Queensland.
Throughout the incident, Bimberi staff told the young persons to stop attacking staff but were ignored.
Victim Impact
The victim impact statement of Benjamin Feain, one of the youth workers who sustained injuries during the incident, includes the following:
Before the incident I loved my job, I enjoyed the challenges and was happy to be able to have a positive impact in the lives of the Young persons at Bimberi. … I was dedicated to my work and everyday made an effort to be the best Youth Worker I could possibly be.
…
When the incident took place that day in the duty point at Bimberi it was [a] sustained attacked where I genuinely believed I was going to die.
I received many blows from the Young Person to my head and face, I also feared for the safety of my female colleagues.
I was continuously assaulted into the recreation area and even wile being assaulted I was conscious of the amount of force I was using against the Young Person so as not to cause him harm in the way I was trained to. …
Since the incident I have been unable to return to my work at Bimberi.
I have been diagnosed with PTSD. I have pushed myself away from many of my workmates who are my friends.
My life is a seesaw, with bouts of depression and extreme anxiety and hypervigilance and then back to normal.
…
I feel I am not the same person I was before the incident.
After the incident, staff members were conveyed to hospital for treatment. As a result of being struck by KI with the hard drive, Mr Feain suffered a laceration to his head requiring one suture. He also suffered superficial lacerations and bruising to his head and body, some of which were inflicted by the young persons sentenced by Murrell CJ in July 2020.
As a result of the incident involving KN, Ms Redman sustained a significant laceration to her left forearm. The wound penetrated the muscle of her arm and required surgery and stitches. She also sustained a graze on the back of her left elbow and bruises on the back of her arms and her knee.
While the other victims did not provide Victim Impact Statements, it can be inferred that the incident would have been a terrifying experience.
The Court acknowledges the significant impact that the offences have had and continue to have on the victims. The Court further acknowledges the importance of what Mr Feain has expressed in his statement.
Objective Seriousness
As noted generally by Murrell CJ in R v QH; R v CR [2020] ACTSC 178 at [57], offences are serious when what is involved includes:
(a)weapons or punching to the head;
(b)offences committed in company; and
(c)violence directed at officers in a custodial setting.
Her Honour similarly noted that the offending was consistent with immaturity and was unlikely to yield any benefit to the young persons: at [62]. That is also relevant in the case of the young persons before me.
Counsel for KS submitted that KS was not the primary instigator in the incident; rather, he was a follower who succumbed to peer pressure. Counsel for KN noted that the objective seriousness in KN’s case must be less, as he was not part of the conspiracy to escape from custody. I accept these submissions.
Conspiracy to Escape – KS and KI
In relation to the conspiracy to escape from custody (KS and KI), I note that it would be an error to proceed on the basis that the offence of conspiring to commit an offence is objectively less serious than the commission of the completed offence: R v Duffy & Ors [2014] ACTCA 53; 297 FLR 359 at [65]-[66] (Duffy). There is no principle of law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted: Director of Public Prosecutions v Fabriczy [2010] VSCA 334; 30 VR 632 at [2] (Fabriczy). It would be an error to equate conspiracy to commit an offence with an attempt to commit that offence: Fabriczy at [18]. The mischief the offence of conspiracy is directed towards is the making of an agreement to act unlawfully: Fabriczy at [2]. I note the approach to sentencing for conspiracy set out in Duffy at [69]-[71].
The prosecution submitted the following in relation to the objective seriousness of the conspiracy to escape:
The co-conspirators, [KI] and [KS], entered into an agreement to escape from Bimberi. Although devised relatively quickly, the plan involved some thought with the young persons targeting a particular youth worker, Ms Jane Bowen, and planned to take her hostage, escort her out of Bimberi, take her keys and drive off in her car. By acting in concert, there was an increased risk of harm to the youth workers and greater disruption to the orderly administration of the Bimberi Youth Justice Centre. Further, by working together, [KI] and [KS] were more likely to achieve their aim of escaping lawful custody.
The conspiratorial agreement posed significant risks of harm to staff and detainees at Bimberi. The young detainees at Bimberi were entitled to feel safe while remanded in custody and the staff entitled to feel safe whilst at work.
The prosecution referred to a number of steps taken by each young person in furtherance of the conspiracy, as outlined in the Agreed Facts.
Assault Occasioning Actual Bodily Harm – KI and KN
The degree of violence involved in an assault is a material consideration in sentencing: R v Bloomfield (1988) 44 NSWLR 734; 101 A Crim R 404 at 740. An offence may be objectively serious due to the nature of the assault notwithstanding that only minor injuries were sustained: R v Burke [2001] NSWCCA 47 at [17].
I note that the assault engaged in by KI involved picking up a computer hard drive and smashing it over Mr Feain’s head. The assault engaged in by KN involved stabbing Mr Feain in the face with a pen. Clearly, the head is a vulnerable part of the body: R v Hodge [2015] ACTSC 214 at [15].
I also note that the assaults occurred in company and in the context of ongoing violence perpetrated against a number of youth workers.
Common Assault – KI and KN
As a charge of common assault does not involve actual bodily harm, an offence is not mitigated by virtue of the fact the injuries suffered by a victim are minor. The prosecution submitted that the assaults committed by KI and KN are “serious examples” of common assault when considered in context and noting that they involved striking Mr Feain in the head after he had been assaulted with a sharp object. The victim was overpowered and outnumbered.
Common Assault – KS
KS threw a number of punches with a clenched fist to Mr Feain’s right jaw. The punches were powerful and directed at the victim’s head. This is similarly a serious example of an offence of common assault.
Affray – KS, KN, and KI
The remaining physical acts of violence engaged in by the young persons constitute the respective charges of affray. The offending did not arise out of a single episode but rather an ongoing course of violent conduct. The factual matrix giving rise to these offences must be kept in mind when sentencing the young persons, including that they were committed in company, in a custodial setting, against Bimberi staff who were simply trying to do their job.
Resist Territory Official – KS, KN, and KI
The young persons not only engaged in ongoing acts of violence towards Bimberi staff but actively resisted being detained, prolonging the incident. It took a significant period of time and many staff to overpower the young persons and restrain them.
It should be noted that KN stopped resisting at one stage to apologise and check if Mr Feain was ok; however, following that, he immediately began resisting again.
It must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction in determining the objective seriousness of offending. As has previously been expressed, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. I have outlined the relevant identifying features of each offence above.
Subjective Circumstances - KS
Pre-Sentence Report
In evidence before me is a pre-sentence report (PSR) dated 25 January 2021. It includes the following information in relation to KS’ background.
KS was born and raised in the ACT, the youngest of three children. After his parents separated when he was aged three, KS resided with his father on a full-time basis. He was raised in a safe and loving environment. At 15 years of age, KS chose to leave his father’s home and reside with his mother. While at his mother’s house, KS disclosed that he frequently witnessed violence and drug use and was himself a victim of family violence. KS reported having a positive relationship with his father and siblings and a turbulent relationship with his mother.
KS completed Year 9 but was suspended from school on multiple occasions due to poor behaviour. He commenced Year 10 studies during incarceration but was unsure whether he had successfully completed this study. Since August 2020, KS has been employed as a carpenter; he commenced an apprenticeship in January 2021. KS’ father reported that KS has a strong work ethic and takes pride in his employment.
KS reported commencing methamphetamine use daily from approximately 15 years of age, due to a family member’s use of illicit substances within the home. His father confirmed that KS was exposed to negative peers at the time and commenced engaging in criminal activity shortly thereafter. KS claims that he had been abstinent from illicit substance use since entering Bimberi, however, the PSR notes that this claim is unsubstantiated.
The PSR states that KS has been diagnosed with attention deficit hyperactivity disorder (ADHD) and was medicated while in custody. KS disclosed that he is currently unmedicated. He indicated that he was willing to reconsider medication if required, and particularly noted how it may impact on his apprenticeship should he remain unmedicated.
In relation to KS’ attitude to the offences, the PSR notes that KS did not wish to comment, other than expressing that he regretted his actions.
KS was bailed to live with his father upon leaving custody in July 2020, however, he decided to move and live with his mother after it was requested that he pay rent at his father’s house. The PSR states: “it is concerning that [KS] recently chose to reside in a seemingly turbulent household rather than pay rent to his father. This Services holds further concern around [KS’s] ability to remain abstinent from illicit substance use, particularly after moving back into his mother’s home and without AOD support in place”.
I note here that, shortly before the sentence hearing, KS’ bail was varied to allow him to live interstate. He currently resides in Shepparton in a share-house with his employer. At the sentencing hearing, counsel for KS stated that the reason KS previously spent some time at his mother’s house was due to the fact his father and siblings were required to self-isolate after travelling to Sydney and he was unable to reside with them. It was indicated that, once his current work in Shepparton is complete, KS intends to return to Canberra, where he will reside with his father and complete his apprenticeship (T 38-39).
The PSR further notes:
Although [KS] has expressed an unwillingness to engage with AOD interventions, it is acknowledged that he is a young offender who is newly transferred from CYPS and may require time to build rapport with his supervising officer. To his credit, [KS] has consistently reported for supervision as directed and has demonstrated an ability to schedule appointments around his employment commitments.
The PSR states that KS has been compliant with supervision by Child and Youth Protection Services (CYPS) and Corrective Services, attending appointments as directed and working towards achieving pro-social goals. It does, however, state that Corrective Services hold concerns over KS’s unwillingness to engage in targeted interventions, as KS has claimed he can address his criminogenic risk factors without formal intervention.
The PSR indicates that, if KS is sentenced to a supervised community-based order, Corrective Services would assist KS in addressing his illicit substance use, mental health (in relation to appropriate ADHD treatment), anti-social attitudes, poor decision-making, and anti-social companions.
Employment Reference
A letter under the hand of Mr Brett Somerfield, Director of Somerfield Building Solutions, is dated 2 February 2021 and includes the following:
[KS] has been an employee of SBS since 08 August 2020.
Over the past 6 months, [KS] has become an integral part of the team. [KS] attends work every day and is on time. [KS] has established and maintained productive working relationships with team members and those he comes into contact with on site. [KS] has displayed enthusiasm for his apprenticeship. As his confidence has grown, [KS] has demonstrated a strong work ethic, including [taking] responsibility for assigned tasks as well as displaying initiative.
In recent weeks, [KS] has been living with the team and myself in Shepparton. [KS] has been an excellent house mate. [KS] is respectful of those in the house, has willingly contributed to household tasks including cooking and cleaning and is tidy. [KS] has also joined the team at the gym, further developing his relationships with team members.
I am grateful to have [KS] on the team and can’t wait to see him develop further.
Criminal History
KS’s criminal history dates back to 2017. It includes a number of driving and dishonesty related matters, as well two common assault offences and one aggravated burglary offence.
Time in Custody
KS has spent a total of 173 days in custody solely in relation to these offences: 171 days from early February 2020 to late July 2020, and 2 days from 5 January to 6 January 2021 due to a breach of bail. This amounts to five months and three weeks in custody.
Subjective Circumstances – KN
Pre-Sentence Report
In evidence before me is a PSR dated 21 January 2021. The PSR includes the following information in relation to KN’s background.
KN is a young Aboriginal man, currently 17 years of age. He has seven siblings, all born in Canberra, and his parents are from regional New South Wales. KN’s maternal grandmother, paternal grandmother, and paternal grandfather were also identified as part of the family unit. KN indicated that his maternal grandmother has played a large role in supporting the family; she currently cares for two of his siblings as part of a family arrangement.
KN reported that he was close to his maternal grandfather before he passed away in 2017. KN’s mother and maternal grandmother indicated that KN’s behaviour changed after his grandfather passed away and that he “wasn’t able to grieve”.
The PSR notes that KN and his siblings have been subject to an extensive child protection history. CYPS have received 38 notifications in relation to KN since June 2006, and 12 of these proceeded to further statutory intervention. CYPS currently hold no child protection concerns in relation to KN.
Since early adolescence, KN has been transient, living between his family home and his friends’ houses. During 2020, KN resided primarily at his girlfriend’s house; however, due to a break down between his girlfriend and her mother, the couple now reside between KN’s family home and his grandmother’s home.
KN helps his parents around the home, particularly helping out with his younger siblings. The PSR notes that he appears to have a loving relationship with his siblings; they enjoy spending time with him and will sometimes join him for youth justice supervision.
Since 2015, KN consistently failed to attend class on a regular basis, and this was reflected in his results at school. In 2016 and 2017, KN was suspended from school a number of times for behavioural issues. In 2018, KN’s grades reflected complete disengagement with school, without successful completion of a single subject.
KN reported that he had been absent from education for 15 months prior to being remanded. While on remand, KN engaged well with the education unit. Teaching staff reported that he was performing at the educational level of a 10 year old. KN reported that, in relation to literacy and numeracy, he has “always found it tough”. Despite this, KN began his Year 10 certificate while on remand. He was highly praised for his work in art and woodwork.
KN previously reported that he wished to complete his Year 10 and Year 12 certificates and was considering training to become a carpenter; however, upon leaving Bimberi, KN advised that he no longer wanted to attend school and wished to enter the work force. He worked for a period of one month in 2020 with a landscaping company; however, this was work with his girlfriend’s father and it ceased due to a relationship breakdown. KN stated that he wants to continue working in a trade and that he is receiving help from Gugan Gulwan and PCYC to find a job.
KN’s mother reported that, throughout his childhood, KN had recurring ear infections which has now impacted his ability to hear. KN had hearing aids as a child but stopped wearing them due to bullying at school. A report provided by an audiologist from Winnunga Nimmityjah Aboriginal Health and Community Services on 18 July 2019 stated the following:
The results show a significant and long standing chronic conductive hearing loss, worse on the left. He has mild to severe degree of hearing loss and has previously worn hearing aids to assist with this. 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.
KN reported that he is not worried about his hearing and does not require hearing aids at this time.
Historically, KN engaged in daily use of cannabis and used MDMA when with friends and while under the influence of alcohol. KN stated that he now smokes less cannabis and one day wants to cease his use completely. He has previously commented that he believes a life without drugs would be “a good one”. During 2020, KN worked with a counsellor from Ted Noffs to address some of these issues. KN stated that he also attributes his reduction in use to his girlfriend, who has encouraged him not to use.
KN previously engaged with a significant number of young people who were involved in the youth justice system. He indicated to the PSR author that he no longer wants to associate with people who will encourage him to engage in anti-social behaviours. He gave an example of one former friend who encouraged him to take part in criminal activities; he stated that he had “cut him off” and now he (the friend) was in Bimberi. KN indicated that he wants to support his friends who are currently in Bimberi, stating that he wants to make sure they “keep on the straight and narrow when they get out” so they do not continue their involvement in the youth justice system.
Over the past 12 months, KN has received support from Gugan Gulwan and Ted Noffs. Mr Pete Williams from Gugan Gulwan advised that he had ceased working with KN in November 2020 due to KN completing all of his case plan goals, including getting Centrelink set up, finding court advocacy, and obtaining all forms of identification, including a learner driver’s licence, a Medicare card, and a bank card. Mr Williams advised that KN is welcome to come back to Gugan Gulwan for support if needed. He wanted the Court to know that KN “need to be given a chance to be an independent young man”, commenting that “he has the tools and needs to be supported to use them”. Mr Williams further stated that if KN “is put down and not given a chance, he will just fall back into it [anti-social behaviours]”.
The PSR states that KN acknowledged he became involved in the incident due to being advised that he would not be able to attend his uncle’s funeral due to his classification. The day before he had been told by a youth work at Bimberi: “you definitely won’t be going then”. KN stated that he though about this all night. He also reported feeling annoyed that he and his co-offenders were put on a ‘good behaviour order’ at school, despite KN feeling they were all doing well. KN indicated that, had he known he would be able to attend his uncle’s funeral, he may have acted differently on the day.
In summary, the PSR states:
[KN] has shown a significant amount of development and change to his lifestyle, behaviour, and attitudes towards offending within the past 12 months and shows a desire to be a positive and active member of society. [KN] continues to need support from positive people … to guide him in the right direction, however, he has welcomed support services into his life and understands they are important to help him at this time.
In relation to the possibility of further imprisonment in Bimberi, KN stated: “if I go back to Bimberi, that’s my life gone. I would get out again and just re-offend … my head wouldn’t cope being in there again”.
In relation to the possibility of a community-based sentence, KN commented in November 2020 that he would “dead set have a suspended sentence”. He confirmed that this meant he would be happy to comply with a suspended sentence. He went on to comment that he is currently subject to a suspended sentence and that he feels this has held him accountable and has prevented him from re-offending, as he knows the consequence is time in Bimberi.
Counsel for KN made submissions in relation to the role of grief in KN’s offending. The Court accepts that KN’s offending was motivated by grief, sadness, and anger over his uncle’s death, and his understanding that he would be prevented from going to his uncle’s funeral.
It was further submitted that, while KN has not yet obtained employment, he is seeking assistance in finding employment and is motivated to get a job (T 45-46).
Letters from KN
KN’s counsel provided the Court with two letters written by the offender.
The first letter is addressed to one of the former Youth Workers, Mr Feain, and dated 28 January 2021. It states the following:
Dear big ben
You were a really good youth worker.
Out of all the staff you were the one to make Bimberi feel like home. It felt like you were one of us. And I’m truly sorry for hurting you.
I hope [you’re] ok.
I read your letter and I feel so bad for what I did. If there is anything I can do to make it up to you please call.
The second letter is addressed to the Court and states the following:
Dear judge
I just wanted to tell you about my uncle. I grew up with him. He’s the closest person to my parents. He was like [an] older brother to me. Out of all my family I trusted him the most. He was always a safe place to go. When I was in Bimberi he [passed] away off an overdose. One of the Bimberi staff members told me that I would not be able to go to his funeral. It really broke me I felt like I could not take it anymore. Now I’m back home I’m doing my best to help all the kids he left behind.
Criminal History
KN has previously spent time in custody and received community-based orders for a number of offences, including arson, property damage, driving and dishonesty-related offences.
Since being released from custody in September 2019, KN has not committed any further criminal offences. He has received sentences for offences committed prior to him entering into custody.
Time in Custody
KN has not spent any time in custody in relation to these offences.
Subjective Circumstances - KI
Pre-Sentence Report
In evidence before me is a PSR dated 27 January 2021. It includes the following information in relation to KI’s background.
The PSR indicates that KI’s compliance with bail conditions and directions has been satisfactory; he has attended Youth Justice supervision weekly while subject to bail. He presented as polite and respectful when attending supervision.
KI has spent a considerable amount of time in custody, from 25 July 2019 to 19 November 2020, with a short stint on bail for a funeral in October 2019. While in custody, KI was involved in a number of behavioural incidents that included both violence and property damage. The last of these incidents was in February 2020.
In relation to KI’s time in custody, the PSR notes that KI’s interactions tend to be relationship-based and staff have worked with him to be more tolerant of other people that he does not automatically like. During the school holidays on remand, KI participated in the Alan Tongue domestic violence program. He also participated in sporting activities and gym work. KI built a good rapport and professional relationship with a counsellor at Ted Noffs who he saw on a weekly basis while on remand.
The PSR further states the following:
[KI] is an intelligent young man with the potential to do well in anything he sets his mind to, however, there are barriers to overcome such as his criminal beliefs and acceptance of … antisocial behaviours. After the sentencing on 11 June 2020 in relation to his other charges, … [KI] really settled and appeared to actively engage in transition planning with a view to improve his life trajectory.
While on remand, it was observed that KI is an avid reader who likes non-fiction books, especially biographies. He was focused on schoolwork and often spent his free time completing additional work to his set schoolwork. He articulated his understanding of the importance of education in improving his opportunities in life.
In relation to his home life, KI has an older sister and a younger half-brother. He does not have a close relationship with his siblings but reported he has no problems with them. He is 17 years of age and was born in Canberra. KI has an extensive history with CYPS, primarily due to family violence and parental substance abuse. He was removed from his parents’ care as a toddler and remained in kinship care for approximately seven years, before being returned to his mother’s care. He reported that he has a strong relationship with his mother and paternal grandparents, as they have always been supportive of him emotionally.
Since being released on bail in November 2020, KI has been behaving appropriately at his mother’s house and has been assisting with family chores. His mother reported that she has no current concerns for KI due to the positive changes she has witnessed in his behaviour and his ongoing compliance with bail conditions. KI indicated that he appreciated his mother’s support, particularly in transporting him to work at 6.30am on a daily basis; however, he does not want to be a burden on her.
KI identified his father as a negative influence and did not want him to participate in case conferencing. He stated that his relationship with his rather is “all good” but he does not want to include him in planning for his future.
During the interviews, KI indicated that he wished to spend more time with family.
In relation to education, KI actively participated in education while on remand and stated that he enjoyed it. The PSR states that his engagement in education progressed while he was on remand and noticeable improvements were observed in his attitudes and behaviours over time. KI is motivated to complete his high school studies. The PSR states:
[KI] has always expressed interested in continuing to engage in education and complete his year 11 and 12 curriculum. [KI] has stated, “I want to finish school, so I can get a job and income”, he also stated if he has the capacity that he would like to study at university, especially law. He further explained he wants to contribute to society in a positive way. It was also mentioned if mainstream education is not suitable for him, he is also interested in studying at Canberra Institute of Technology (CIT) to acquire practical skills to begin his career in a trade. [KI] stated his current life goal is to complete his education and obtain a stable job for the purpose of a stable life.
KI was enrolled to commence Year 12 the week of his sentence hearing, having completed all pre-requisite assignments prior to the beginning of term.
While on bail and prior to the school year commencing, KI worked in a labouring job on a full-time basis. His boss reported that KI had a positive work ethic and was eager to learn new skills to fulfil his job duties. The employer offered KI an apprenticeship in the event that education does not work out.
KI was diagnosed with ADHD in 2018. He is not currently medicated but has stated he will consider seeking support in the future if required.
KI has been a chronic drug user since the age of 12, particularly engaging in use of marijuana and methamphetamine. He expressed to the report writer that he believes his chronic drug use at a young age caused damage to his brain development, which has significantly impacted his decision-making process. He expressed that, since detoxing while on remand, he is aware of improvements to his physical health and he is exploring alternatives to manage his mental health.
In relation to personality and behaviour, the PSR states that there have been concerns in the past in relation to KI’s emotional dysregulation and aggression; however, there appears to have been significant improvements over the past year. The report states the following:
During Youth Justice Supervision on 24 April 2020, it was discussed with [KI] about the trajectory of his criminal behaviours and drug use as this could eventually lead to a vicious cycle. [KI] demonstrated an understanding of the consequences of his behaviours. He said he is feeling “stuck” and he said he has “fucked up his life”. [KI] displayed insight regarding his anti-social behaviours in relation to his drug use and association with negative peers and stated he wants to make changes in these areas. On 21 January 2021, … he stated, “whatever happened in the past, is the past” and he is looking forward to re-entering society.
In oral submissions, counsel for KI noted the positive indicators in relation to KI’s recent progress, including excellent bail compliance, insight into his offending behaviour, engagement with counselling, and his drive to return to school (T 35-36).
Criminal History
Despite his youth, KI has an extensive criminal record dating back to 2017. He has been in custody on numerous occasions. His offending has involved primarily dishonesty and driving related offences, in addition to one charge of arson and a number of charges of burglary and assault.
As stated in the PSR, KI has in recent months displayed significant insight into his offending behaviour, including stating that, last time he was released from Bimberi, he was not ready. He is motivated to move on with his life and contribute positively to society.
Time in Custody
KI has spent 11 days in custody solely in relation to these charges, from 9 November 2020 to 19 November 2020.
Pleas of Guilty
The Court must consider the fact that the young persons have pleaded guilty and that the pleas were entered following negotiations. If a young person has pleaded guilty to an offence, the court may impose a lesser penalty than it otherwise would have imposed. Before doing so, the court must consider the factors set out in s 35(2) of the Sentencing Act, including when the young persons pleaded guilty and whether the pleas were related to negotiations between the prosecution and defence. The Court must not make any significant reduction if the Court considers the prosecution case was overwhelmingly strong.
The pleas of guilty were largely entered following criminal case conferencing and extensive negotiations between parties. It was accepted that, in line with Blundell v The Queen [2019] ACTCA 34, the young persons would be entitled to a discount of between 15% and 20% for the pleas of guilty. Counsel for each of the young persons submitted that a discount of 20%, or close to, would be appropriate. The prosecution noted that the pleas were in the context of a strong prosecution case which included admissions by the young persons.
KS
In relation to the conspiracy to escape, the common assault, the affray, and one of the knowingly resist offences, KS entered pleas of guilty on 29 October 2020 in the Supreme Court, following criminal case conferencing.
In relation to the second knowingly resist offence, KS entered a plea of guilty on 18 May 2020 in the Magistrates Court on the first occasion.
KS is entitled to a discount of between 15% and 20% on account of the pleas of guilty entered following the case conferencing. In relation to the second knowingly resist offence, KS is entitled to a discount of 25%.
KN
KN entered pleas of guilty on 12 November 2020 following criminal case conferencing. Counsel noted that more serious charges were withdrawn at case conferencing. Counsel submitted that a discount of 15-20% would be appropriate.
KN is entitled to a discount of between 15% and 20% on account of the pleas of guilty.
KI
KI entered pleas of guilty on 6 November 2020 following criminal case conferencing.
KI is entitled to a discount of between 15% and 20% on account of the pleas of guilty.
Youth & Rehabilitation
In sentencing young offenders, the relevant legislation includes the Sentencing Act, the Children and Young People Act2008 (ACT) (Children and Young People Act) and the Human Rights Act 2004 (ACT).
Relevant sections of the Sentencing Act include:
133CYoung offenders – purposes of sentencing
(1) Despite section 7(2), in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in section 7(1).
(2) Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice.
133DYoung offenders – sentencing – additional relevant considerations
(1)In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters:
a.the young offender’s culpability for the offence having regard to his or her maturity;
b.the young offender’s state of development;
c.the past and present family circumstances of the young offender.
(2)This section applies in addition to section 33 (Sentencing – relevant consideration).
…
133GYoung offenders – sentences of imprisonment
(1)This section applies if a court is sentencing a young offender to imprisonment under section 10.
(2)The sentence of imprisonment must be a last resort and for the shortest appropriate term.
(3)The court must consider making a combination sentence consisting of –
a.the sentence of imprisonment; and
b.a good behaviour order with a supervision condition.
(4)The court must not sentence the young offender to imprisonment for life.
(Emphasis added).
Section 94 of the Children & Young People Act is also relevant and provides as follows:
94Youth justice principles
(1)For the criminal matters chapters, in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that is relevant (the youth justice principles):
a.if a child or young person does something that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable;
b.a child or young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways;
c.a child or young person should be consulted about, and be given the opportunity to take part in making, decisions that affect the child or young person, to the maximum extent possible taking into consideration their age, maturity and developmental capacity;
d.if practicable and appropriate, decisions about an Aboriginal or Torres Strait Islander child or young person should be made in a way that involves their community;
e.if a child or young person is charged with an offence, he or she should have prompt access to legal assistance, and any legal proceeding relating to the offence should begin as soon as possible;
f.a child or young person may only be detained in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the minimum time necessary;
g.children, young people and other young offenders should be dealt with in the criminal law system in in a way consistent with their age, maturity and developmental capacity and have at least the same rights and protection before the law as would adults in similar circumstances;
h.on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community;
i.it is a high priority that intervention with young offenders must promote their rehabilitation, and must be balanced with the rights of any victim of the young offender’s offence and the interests of the community.
(2)The decision-maker may also consider any other relevant matter.
(3)The youth justice principles are intended to be interpreted consistently with relevant human rights instruments and jurisprudence.
(4)A reference in subsection (1) to a child or young person includes a reference to a person who is at least 18 years old but is being dealt with in relation to an offence committed, or allege to have been committed, when he or she was under 18 years old.
(Emphasis added).
Relevantly, s 22 of the Human Rights Act 2004 (ACT) provides:
22Rights in criminal proceedings
…
(3)A child who is charged with a criminal offence has the right to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation.
(Emphasis added).
There are a number of common law principles relevant to the sentencing of young offenders. These principles are helpfully summarised by McClellan CJ in KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[23], and were adopted in this jurisdiction in R v BM (Unreported, Supreme Court of the ACT, 29 October 2012, Refshauge J):
22 The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].
23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).
(Emphasis added).
I note that, when sentencing a young person, rehabilitation may be of more importance than general deterrence, and the weight to be afforded to the consideration of youth does not vary in accordance with the seriousness of the offending behaviour: R v TL [2017] ACTCA 18 at [39]-[40].
While all offenders have a past history of criminal offences, this does not diminish the importance of rehabilitation. It is encouraging that all three of the young people have taken steps towards removing themselves from their past criminal behaviour and are in the process of rehabilitating themselves.
I also note the following relevant observation of Murrell CJ in R v Hill [2016] ACTSC 310 at [48]:
Where a person has very good prospects of rehabilitation, by supporting those prospects in the sentence the Court also addresses likely future harm to the community and protection of the community.
Application of Bugmy Principles in this case
In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), the High Court found that the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way: at [40]. Further, the High Court held that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: at [42]-[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: at [43]. Social deprivation may impact on those purposes in different ways.[1] The Court in Bugmy explained at [44]:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[1] See Judicial Commission of NSW, Sentencing Bench Book, at [10-475].
In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:
(a)the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(b)the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and
(c)the application of the Bugmy principles is not discretionary: Irwin at [3].
It is clear on the evidence before me that each of the young people have experienced significant childhood disadvantage, and it is appropriate that I take this into account on sentence, in the manner set out in Bugmy.
It is apt to remember when discussing such disadvantage that “what’s done to children, they will do to society.”[2]
Comparable Cases
[2] Karl Menninger.
The prosecution provided a table of comparable cases, including the following: R v KAR [2018] QCA 211 (KAR), TM v Karapanos [2011] ACTSC 74; 250 FLR 366 (TM), R v Maher; R v Welsh; R v Lardner; R v Priestly [2005] NSWCCA 16; 154 A Crim R 457, Director of Public Prosecutions v McCumber [2017] VCC 238, and Director of Public Prosecutions v Davis [2017] VCC 747.
The prosecution noted that the majority of these cases involve riot offences, which are “much more serious” and are therefore only “loosely comparable” cases (T 22-23).
While the factual background of these cases is markedly different from the present case, they contain a number of apposite principles. In KAR at [120]-[122], Henry J (Fraser and Philippides JJA agreeing) stated:
[120] By parity of reasoning, it is a circumstance of particular seriousness here that the riot was directed against staff of a youth detention centre, that is, the very people responsible for maintaining order and safety in the centre. Moreover, quite apart from whether staff are targeted, the mere act of participation in a riot by persons who are serving custodial sentences or are remanded in custody represents such a challenge to the state’s lawful power of behavioural control over them as to inevitably require starkly deterrent punishment.
[121] The principles applicable to the sentencing of children will likely result in lesser punishment for children than adults for otherwise comparable rioting. In particular, the dynamic that immature minds are likely to be especially vulnerable to the psychology of the crowd in riots will logically tend to mitigate the culpability of children as compared to adults for such offending. Nonetheless, the special importance of deterrence in sentencing for riot in any custodial institution will mean that children who riot whilst in detention will ordinarily receive sentences of actual detention.
[122] As much was inherent in the observations of McPherson JA, with whom Davies JA and Dowsett J agreed, in R v Rizos. There a period of actual detention was imposed upon a juvenile who participated in a riot at Westbrook Detention Centre in which there was property damage. McPherson JA observed:
“It was scarcely possible for the applicant to have expected a lesser head sentence than that imposed, having regard to the need for deterrence in relation to an offence like this. Offences committed in institutions, particularly those involving large scale riots and participation in them, would be very difficult to deal with if some condign form of deterrent was not available.”
[123] Where, as here, child rioters in detention participate in the physical attacking of staff, the special need for deterrence will generally require the ensuing sentence of detention to be substantial.
(Citations omitted).
Also of relevance is Refshauge J’s statement in TM that the objective seriousness of offences committed against correctional officers while in custody “must be moderated by the statutory and common law principles relating to young offenders”: at [44].
Parity
As stated above, two co-offenders were sentenced by Murrell CJ in July 2020 for their involvement in the same incident: QH and CR.
QH was sentenced for one count of joint commission aggravated robbery; one count of making a demand accompanied by a threat to kill; one count of attempting to escape from lawful custody; and one count of joint assault occasioning actual bodily. He also pleaded guilty to transfer charges of resisting a territory public official and possessing an offensive weapon with intent.
QH was sentenced to a total of two years and eight months of imprisonment, suspended after eight months in custody and upon entering good behaviour orders.
CR was sentenced for one count of joint commission aggravated robbery; one count of damaging property; one count of aiding a prisoner to attempt to escape from lawful custody; and one count of dishonestly riding in a motor vehicle without consent. He also pleaded guilty to a number of transfer charges, including three counts of common assault, one count of unlawful possession of stolen property, and one count of interfering with a fire extinguisher.
CR was sentenced to 18 months of imprisonment, to be suspended after four months and two weeks and upon entering into good behaviour orders.
It was submitted by the prosecution that, as compared to QH and CR, the conspiracy to escape (KS and KI) charge is more serious, as it involved planning and overt acts in furtherance of the conspiracy (T 48-49).
Other Relevant Considerations
In sentencing, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
In R v NQ [2019] ACTSC 51 at [38], Mossop J summarised the statutory principles relevant to sentencing young persons:
The court is therefore obliged to consider the purpose of promoting [ ] rehabilitation and may give more weight to that purpose than it gives to any of the other sentencing purposes in s 7(1) of the Crimes (Sentencing) Act (s 133C(1) Crimes (Sentencing) Act). It must have particular regard to the common law principle of individualised justice: see s 133C(2). The court is obliged to consider the young person’s culpability having regard to [ ] maturity, [ ] state of development and [ ] past and present family circumstances: see s 133D. Any sentence of imprisonment must be a last resort and for the shortest appropriate term: see s 133G. The court must consider making a sentence that combines a sentence of imprisonment and a good behaviour order with a supervision condition: see s 133G(3). There is no capacity to set a non-parole period for a sentence of imprisonment imposed on a young person: see s 64(2).
I have referred in detail to these principles at [130]-[137].
Because of the circumstances in which the offences were committed, s 72 of the Sentencing Act is relevant.
72Concurrent and consecutive sentences—offences while in custody or unlawfully absent
(1) This section applies if the primary sentence is imposed on the offender for any of the following offences:
(a) an offence committed while the offender was in lawful custody;
…
(c) an offence involving an escape from lawful custody.
(2) In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment.
(3)The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.
(4)Unless the court considers that special circumstances apply, the court must not give a direction under subsection (3) if the primary sentence is an offence that involves causing harm, or threatening to cause harm, to a corrections officer.
A question may arise as to whether, once I impose any sentence, it becomes an “existing sentence” upon which the new sentence must be served consecutively. To the extent that that interpretation may be adopted, I make a direction under s 72(3). To the extent that it may be necessary to consider whether “special circumstances” apply, I consider that it is a special circumstance that the offenders were young, and all offences were part of the same course of conduct.
I note that, in circumstances where I impose a fully suspended sentence of imprisonment, s 72 does not apply.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59, R v Meyboom [2012] ACTCA 48 at [66], Pearce v The Queen [1998] HCA 57; 194 CLR 610, R v XX [2009] NSWCCA 115; 195 A Crim R 38 and Zdravkovic at [71].
It was accepted by the prosecution that some concurrency would be appropriate, as the offences occurred as part of one course of conduct (T 28.18-23). I have also noted R v Wright [2009] NSWCCA 3, R v Hoschke [2001] NSWCCA 317 at [8], GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198, and R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 in relation to KN and joint commission.
The prosecution submitted that it is relevant that each of the young persons have now been out of custody for some time (T 16.6-8).
I take these principles into account on sentence.
Sentence
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences, subjective matters relating to the young persons, and parity.
The s 10 threshold for imprisonment has been crossed. Nevertheless, it would not be appropriate for any of the young persons to spend a further period in custody, in light of the importance of rehabilitation in this case. It was therefore sensibly and correctly accepted by the prosecution that fully suspended sentences would be an appropriate sentencing outcome. At the sentence hearing, the prosecutor stated: “there are in this case good reasons why your Honour would not impose a full-time sentence of imprisonment and would look at suspending” (T 22.25-27). This was an appropriate concession in light of all the evidence and I accept this submission as it aligns with my view of the respective cases concerning the three offenders.
For KS and KI, the sentences will be backdated to account for the time already spent in custody.
Orders
I make the following orders.
KS
I record convictions in relation to the offences.
In respect of the offence of conspiring to escape from custody (CH 1107/2019), the young person is sentenced to a term of 10 months of imprisonment, commencing on 26 August 2020 and expiring on 25 June 2021.
In respect of the offence of common assault (CH 1103/2019), the young person is sentenced to a term of five months of imprisonment, commencing on 26 May 2021 and expiring on 25 October 2021.
In respect of the offence of knowingly resist a territory official (CH 1105/2019), the young person is sentenced to a term of two months and two weeks of imprisonment, commencing on 12 September 2021 and expiring on 25 November 2021.
In respect of the offence of affray (CH 1106/2019), the young person is to enter into a good behaviour order for a period of 12 months.
In respect of the offence of knowingly resist a territory official (CH 432/2020), the young person is to enter into a good behaviour order for a period of 12 months.
Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentences of imprisonment are to be suspended from today, 15 February 2021. The young person will enter into a Good Behaviour Order for a period of 18 months and comply with the core good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT). The young person is to comply with the following additional condition:
(i)Accept supervision of ACT Corrective Services and abide by any directions of officers of that service, for the period of time deemed appropriate by that service.
KN
I record convictions in relation to the offences.
In respect of the offence of assault occasioning actual bodily harm (CH 144/2020), the young person is sentenced to a term of 12 months of imprisonment, commencing on 15 February 2021 and expiring on 14 February 2022.
In respect of the offence of assault occasioning actual bodily harm by joint commission (SCCAN 119/2020), the young person is sentenced to a term of five months of imprisonment, commencing on 15 October 2021 and expiring on 14 March 2022.
In respect of the offence of common assault (CH 141/2020), the young person is sentenced to a term of five months of imprisonment, commencing on 15 February 2022 and expiring on 14 July 2022.
In respect of the offence of common assault (CH 142/2020), the young person is sentenced to a term of five months of imprisonment, commencing on 15 March 2022 and expiring on 14 August 2022.
In respect of the offence of affray (CH 146/2020), the young person is to enter into a good behaviour order for a period of 12 months.
In respect of the offence of knowingly resist a territory official (CH 145/2020), the young person is to enter into a good behaviour order for a period of 12 months.
Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentences of imprisonment are to be suspended from today, 15 February 2021. The young person will enter into a Good Behaviour Order for a period of 18 months and comply with the core good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT). The young person is to comply with the following additional condition:
(i)Accept supervision of Child & Youth Protection Services and abide by any directions of officers of that service.
KI
I record convictions in relation to the offences.
In respect of the offence of assault occasioning actual bodily harm (CH 1088/2019), the young person is sentenced to a term of 12 months of imprisonment, commencing on 4 February 2021 and expiring on 3 February 2022.
In respect of the offence of conspiring to escape from custody (CH 1092/2019), the young person is sentenced to a term of 10 months of imprisonment, commencing on 4 May 2021 and expiring on 3 March 2022.
In respect of the offence of common assault (CH 1085/2019), the young person is sentenced to a term of five months of imprisonment, commencing on 4 February 2022 and expiring on 3 July 2022.
In respect of the offence of common assault (CH 1087/2019), the young person is sentenced to a term of five months of imprisonment, commencing on 4 April 2022 and expiring on 3 September 2022.
In respect of the offence of common assault (CH 1086/2019), the young person is sentenced to a term of five months of imprisonment, commencing on 4 June 2022 and expiring on 3 November 2022.
In respect of the offence of knowingly resist a territory official (CH 399/2020), the young person is sentenced to a term of two months and two weeks of imprisonment, commencing on 20 September 2022 and expiring on 3 December 2022.
In respect of the offence of knowingly resist a territory official (CH 1090/2019), the young person is to enter into a good behaviour order for a period of 12 months.
In respect of the offence of affray (CH 1091/2019), the young person is to enter into a good behaviour order for a period of 12 months.
Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentences of imprisonment are to be suspended from today, 15 February 2021. The young person will enter into a Good Behaviour Order for a period of 22 months and comply with the core good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT). The young person is to comply with the following additional condition:
(i)Accept supervision of Child & Youth Protection Services and abide by any directions of officers of that service.
| I certify that the preceding one hundred and ninety-one [191] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
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Amendments
24 February 2021 Paragraph [3]: Replace “KS has pleaded guilty to one count of conspiring to escape from lawful custody in contravention of s 160 of the Crimes Act 1900 (ACT) (Crimes Act) and by virtue of s 48 of the Criminal Code 2002 (ACT) (Criminal Code)” with “KS has pleaded guilty to one count of conspiring to escape from lawful custody in contravention of s 48 of the Criminal Code 2002 (ACT) (Criminal Code) in conjunction with s 160 of the Crimes Act 1900 (ACT) (Crimes Act).
Paragraph [7]: Replace “KI has pleaded guilty to one count of conspiring to escape from lawful custody in contravention of s 160 of the Crimes Act and by virtue of s 48 of the Criminal Code” with “KI has pleaded guilty to one count of conspiring to escape from lawful custody in contravention of s 48 of the Criminal Code in conjunction with s 160 of the Crimes Act.”
Paragraph [191]: Replace “18 months” with “22 months”.
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