R v QH; R v CR
[2020] ACTSC 178
•7 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v QH; R v CR |
Citation: | [2020] ACTSC 178 |
Hearing Date: | 6 July 2020 |
DecisionDate: | 7 July 2020 |
Before: | Murrell CJ |
Decision: | QH sentenced to two years and eight months’ imprisonment, suspended after eight months. CR sentenced to 18 months’ imprisonment, suspended after four months and two weeks. See [107]–[111]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Young persons – Offences within Bimberi Youth Justice Centre – Joint commission aggravated robbery – Demand with threat to kill – Attempt to escape – Joint commission assault – Resist Territory official – Possess offensive weapon with intent – Damage property – Aid prisoner to escape custody – Dishonestly ride in motor vehicle – Common assault – Unlawful possession of stolen property – Interfere with fire extinguisher |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 26, 32(1)(a), 159 Crimes (Sentencing) Act 2005 (ACT) ss 7, 35, 72, 133B, 133C, 133D, 133G Emergencies Act 2004 (ACT) s 95(3) |
Parties: | The Queen (Crown) QH (Young Person) CR (Young Person) |
Representation: | Counsel H Roberts (Crown) S McLaughlin (Young Person QH) B Morrisroe (Young Person CR) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Young Person QH) Boxall Legal (Young Person CR) | |
File Numbers: | SCC 94 of 2020; SCC 95 of 2020 SCC 106 of 2020; SCC 107 of 2020 |
MURRELL CJ
On 26 August 2019, QH, CR and other young detainees committed offences of violence, dishonesty, and attempting to escape at Bimberi Youth Justice Centre (Bimberi).
QH
QH is to be sentenced for the following offences:
(a)Count 1: Joint commission of aggravated robbery (theft of keys using force), contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) by virtue of s 45A of the Criminal Code. The maximum penalty is 25 years’ imprisonment, a $400,000 fine, or both.
(b)Count 2: Demand accompanied by threat to kill, contrary to s 32(1)(a) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty is 20 years’ imprisonment.
(c)Count 3: Attempt to escape from lawful custody, contrary to s 160 of the Crimes Act by virtue of s 44 of the Criminal Code. The maximum penalty is five years’ imprisonment, a $16,000 fine, or both.
(d)Count 4: Joint commission assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act by virtue of s 45A of the Criminal Code. The maximum penalty is five years’ imprisonment.
In addition, he is to be sentenced on the following transferred charges.
(e)Count 5: Resist territory public official, contrary to s 361(1) of the Criminal Code. The maximum penalty is two years’ imprisonment, a fine of $32,000, or both.
(f)Count 6: Possess offensive weapon with intent, contrary to s 381(1) of the Crimes Act. The maximum penalty is one year’s imprisonment, a fine of $2,000, or both.
QH entered pleas of guilty on 11 and 18 May 2020 (the 12th and 13th mentions in the Magistrates Court), prior to the ordering of a brief of evidence. The number of mentions was due to the continuation of discussions between the parties as to the appropriate charges. The Crown case was strong; there were many witnesses to the events as well as CCTV footage. Nevertheless, the pleas had significant utilitarian value. The appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is 20 to 25 per cent.
From 26 August 2019, QH was serving a sentence for common assault. From 11 September 2019, he was serving a sentence for offences committed in NSW. Since 22 December 2019, he has been in custody only in relation to these charges.
CR
CR is to be sentenced for the following offences:
(a)Count 1: Joint commission of aggravated robbery (theft of keys using force), contrary to s 310 of the Criminal Code by virtue of s 45A of the Criminal Code. The maximum penalty is 25 years’ imprisonment, a $400,000 fine, or both.
(b)Count 2: Damage property, contrary to s 403(1) of the Criminal Code. The maximum penalty is 10 years’ imprisonment, a $160,000 fine, or both.
(c)Count 3: Aid prisoner to attempt to escape from lawful custody, contrary to s 159 of the Crimes Act. The maximum penalty is five years’ imprisonment, a $16,000 fine, or both.
(d)Count 4: Dishonestly ride in motor vehicle without consent, contrary to s 318(2) of the Criminal Code. The maximum penalty is five years’ imprisonment, a $80,000 fine, or both.
In addition, he is to be sentenced for the following transferred offences:
(e)Counts 5–7: Common assault, contrary to s 26 of the Crimes Act. The maximum penalty is two years’ imprisonment.
(f)Count 8: Unlawful possession of stolen property, contrary to s 324(1) of the Criminal Code. The maximum penalty is six months’ imprisonment, a $8,000 fine, or both.
(g)Count 9: Interfere with fire extinguisher, contrary to s 95(3) of the Emergencies Act 2004 (ACT). The maximum penalty is a $8,000 fine.
On 24 April 2020, the sixth mention in the Magistrates Court, and after the brief of evidence was provided, CR pleaded guilty. The number of mentions was due to the continuation of discussions between the parties as to the appropriate charges. The Crown case was strong; there were many witnesses to the events as well as CCTV footage. Nevertheless, the pleas had significant utilitarian value. The appropriate discount under s 35 of the Sentencing Act is 20 to 25 per cent.
In relation to these charges, CR has been in custody since 11 April 2020. From 3 February to 10 April 2020, he was in custody in relation to other charges.
At this stage, some co-accused are maintaining pleas of not guilty. CR and QH may be called upon to give evidence against them.
Facts
At about 6 PM on 26 August 2019, Mr Feain (a youth worker) was supervising KI, KN, QH, and two other Bimberi detainees, who were attending an education class 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 to which only staff were admitted.
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 6:20 PM, 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.
Ms Jones (the control room operator) announced a “Code Black” over the radio to signal a security incident.
Mr Feain continued to try to restrain KI, QH, and KN while Ms Redman yelled at them to stop and attempted to pull them from Mr Feain.
KI, QH, and KN punched Mr Feain many times. KI pushed Ms Redman into the wall and punched her in the mouth. One of the young persons yelled, “get the keys, get the keys” (QH Count 1—joint commission aggravated robbery).
Ms Bowen ran to the Duty Point door and looked through from Majura Wing 1.
It was at this point that CR joined the joint enterprise (CR Count 1joint commission aggravated robbery—).
KS said to CR “it’s happening, it’s happening”. KI opened the door to Majura Wing 1 and yelled words to the effect of “come on boys, let’s do this”.
Ms Bowen tried to grab KI. CR pushed past her, forcing her into the Duty Point (CR Count 5common assault—).
KS, KI, QH, and KN repeatedly punched Mr Feain in the head. Ms Bowen tried to pull one young person from Mr Feain.
Mr Feain grabbed QH and pushed him onto a desk to try to restrain him. QH punched Mr Feain twice to the left side of his head with a small sharp screw pointing out of his fist. Mr Feain felt a sharp pain behind his left ear.
At one stage, QH and KN were involved in an altercation with Ms Redman and she sustained a wound to her left forearm occasioned by a sharp object (QH Count 4—joint commission assault occasioning actual bodily harm).
Shortly afterwards, Ms Redman, Mr Feain, and Ms Bowen pushed the five young persons out of Duty Point and into Majura Wing 1 Recreation Room.
Ms Brennan (a youth worker) entered the room.
While Ms Redman attempted to restrain KS and KI, they yelled at her to give them the keys. KS unsuccessfully grabbed at the keys. Mr Feain tried to restrain KN with one arm and QH with the other. QH struck Mr Feain in the head with the inside of his closed right fist, from which a small improvised weapon protruded. KI and KN also punched Mr Feain.
Ms Payne (the operations manager), Mr Fahey (a team leader), and Mr Owen (a youth worker) entered the room and assisted to restrain the young persons.
While Mr Feain was restraining KS, KS removed the keys from him.
KS yelled to CR and threw the keys to him (QH and CR Count 1—continuation of aggravated robbery).
QH stabbed Mr Feain in the backside with a screw in his right hand as Mr Feain was attempting to restrain KN (QH Count 5—possess offensive weapon with intent). QH yelled “get off him”. Ms Brennan screamed, “he’s got a weapon”.
CR exited Majura Wing 1, followed by Ms Redman and Ms Payne. KS said something to QH, who then followed CR down the hallway (QH Count 3—attempt to escape from lawful custody).
QH grabbed Ms Redman’s hair, pulled her head back with force, and held a screw against the right side of her throat, saying words to the effect of, “let us out the front door or I’m going to kill her in three”. Mr Feain arrived and QH yelled, “I’m going to fucking kill her, I’ll fucking kill her” (QH Count 2—demand accompanied by a threat to kill).
Mr Feain and Ms Payne forcibly removed QH from Ms Redman.
As Mr Feain, Ms Payne, and Ms Redman tried to restrain QH, Mr Feain felt something hit his head. When Mr Feain asked QH if he was okay, QH replied “fuck you cunt, I should have been stabbing you in the throat” and prevented Ms Payne from removing the screw from his hand.
CR kicked Mr Feain twice in the head and twice in the body while yelling “get off him you dogs” (directed at the staff). Mr Feain grabbed CR’s shirt and attempted to restrain him. CR slipped out of his shirt and ran away.
CR ran back into Majura Wing 1 Recreation Room and kicked Mr McFarlane (a youth worker) on the left side of his upper body as he was restraining KN on the ground (CR Count 6common assault—). CR kicked Mr Owen (a youth worker) on the right side of his body (CR Count 7common assault—) and then ran back to Mr McFarlane and kicked him in the lower half of his body.
At this time, CR was holding a black torch that he had taken from the Duty Point (CR Count 8unlawful possession of stolen property—).
QH, KI, KS, and KN were restrained by staff members. Mr Owen removed the improvised weapon from QH. QH physically resisted the application of handcuffs by Bimberi staff (QH Count 4resist Territory official—).
CR ran to the Coree Building (a distance of 50 to 100 metres) and released a young person NI from his cell using the keys (CR Count 3aid prisoner to attempt escape—).
NI and CR ran inside the Facilities Area and removed a backpack containing pens and textas.
Staff members entered the Facilities Area. CR and NI ran away from them and climbed onto the roof of a demountable building.
CR wrote his name in ink on the roof of the demountable building (CR Count 2damage property—).
NI climbed down from the roof and removed a fire extinguisher from one of the buildings, passed it up to CR, and climbed back onto the roof. CR sprayed the fire extinguisher into the air twice (CR Count 9interfere with fire extinguisher—).
CR and NI climbed down from the roof. They started a motorised maintenance vehicle and drove laps around an enclosed yard (CR Count 4ride in stolen motor vehicle—). They attempted to drive through a gate to another area within Bimberi and attempted to swipe (using the keys) through a second gate into another interior area.
When staff chased them, CR and NI abandoned the vehicle, ran away and climbed back onto the demountable roof.
At about 7 PM, police arrived and negotiated with NI and CR, who eventually climbed down from the roof. Police seized the improvised weapon used by QH, which was a sharp tipped metal screw about 10 centimetres long with a loop at one end.
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”.
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.
Throughout the incident, Bimberi staff told the young persons to stop attacking staff but were ignored.
Victim impact
After the incident, staff members were conveyed to hospital for treatment. As a result of the aggravated robbery, Mr Feain suffered a laceration to his head (requiring one suture), multiple superficial lacerations to his head, nine puncture wounds to his back, a swollen right thumb, and an inflamed right elbow. The scars to his head caused headaches and jaw aches for about two months after the incident.
Mr Feain suffers from post-traumatic stress disorder. He has is hypervigilant and overprotective towards his family. He becomes stressed and agitated without cause. He experiences flashbacks. He is reluctant to return to his former employment.
Ms Redman sustained a significant laceration to her left forearm.
Over some years at Bimberi, Ms Redman had tried to support QH with education and personal development because she believed that he was capable of considerable achievement. However, his conduct of 26 August 2019 represented a betrayal of her investment. Ms Redman feels anger, fear, betrayal, and distress. She is reluctant to enter crowded public places. She is seeking psychological treatment from her general practitioner and specialists. There has been an adverse impact on Ms Redman’s relationship with her daughter, towards whom she is now overprotective. Ms Redman’s daughter is acutely aware of the violence perpetrated against her mother. Ms Redman feels incapable of returning to work at Bimberi in any capacity, which means that her career passion of supporting vulnerable young people has been shattered.
Undoubtedly, the other staff members who were involved were traumatised by the incident.
Objective seriousness
Aggravated robbery—both offenders
The offence of aggravated robbery was of significant objective seriousness because:
(a)it occurred within a custodial setting and was directed at custodial staff;
(b)it was attended by significant violence as well as the threat of violence; and
(c)five or six people were “in company” with each other.
(d)QH was in possession of a weapon (although he is to be separately sentenced for that matter and should not be punished twice).
CR joined the enterprise after it had begun. Other than pushing past Ms Bowen (a matter for which he is to be separately sentenced), CR was not directly responsible for the physical violence that attended the aggravated robbery. CR’s role was significantly less than that of QH.
The robbery involved minimal planning and was relatively brief.
The subject matter of the robbery (the keys) were a valuable item because they provided internal access to various areas within Bimberi. However, they did not enable external access.
Mr Feain and Ms Redman suffered significant physical and psychological trauma, which continues to impact them.
The conduct was consistent with the immaturity of the offenders; it was largely unplanned, impulsive, risk-taking behaviour that was never likely to yield a substantial benefit to the participants.
Attempt to escape from lawful custody—QH
This offence involved running from one part of Bimberi to another. It was not a particularly serious offence of its type.
Threat to kill—QH
The offence of threaten to kill was serious. The threat was made in a custodial setting to a staff member who was undertaking her duties. At the time, QH was holding the victim by her hair and holding a screw against the right side of her throat. The threat was repeated to Mr Feain.
Assault occasioning actual bodily harm—QH
This was an offence of joint commission; later, the co-offender made a statement suggesting that he was directly responsible for the injury. Nevertheless, the offence by QH was serious because it involved the use of a weapon against a custodial officer and the injury was a substantial form of actual bodily harm.
Possess offensive weapon with intent—QH
The weapon—a screw—was capable of causing substantial injury. Not only was it possessed with intent, it was possessed in the course of a physical altercation.
Aid prisoner to attempt escape—CR
This was an offence of significant objective seriousness, although there was no more than a remote possibility that the released prisoner would actually escape from the Bimberi premises (as opposed to his cell).
Ride in stolen motor vehicle—CR
This offence involved brief joyriding within a contained part of Bimberi. There was no prospect of the vehicle leaving the contained area and posing a threat to members of the public. It was of relatively low objective seriousness.
Common assaults—CR
The assaults did not cause physical injury to the complainants. They did not involve an assault on a vulnerable part of the body such as the head. Nevertheless, the assaults would have been traumatic for the victims and any assault by a detainee on a member of the custodial staff is a serious matter.
The other offences were of limited objective seriousness.
Co-offender
NI pleaded guilty to removing the fire appliance and riding in a motor vehicle without consent. He was seven months older than CR and had a comparable criminal history. He was fined $300 for the fire appliance offence. For the motor vehicle offence, he was sentenced to three months’ imprisonment, suspended after two months upon entering a good behaviour order for 12 months.
QH—Subjective features
QH was 17 years old at the time of the offences and is now 18 years old. Since December 2019, he has been detained at the Alexander Maconochie Centre (AMC). Because of the pandemic, he has had limited contact with his family over the past few months.
QH has a significant criminal history, including offences of armed robbery, aggravated break and enter with intent to commit a serious indictable offence, common assault, obstruct a Territory official, stalk/intimidate, contravene an apprehended violence order, destroy property, and theft. He has spent most of the last three years in juvenile detention and youth residential rehabilitation programs.
Since entering the AMC, QH has been subject to no significant disciplinary action.
QH is the oldest of eight children. His parents separated when he was three years old. He has one sister of his parents’ union. Until he was 11 years old, QH lived relatively happily with his mother. However, at 11 years of age, he moved to live with his father. Over the next two years, QH’s father subjected him to physical and verbal violence and neglected him. This impacted significantly on QH’s mental health. Since he was 13 years old, QH has had no contact with his father.
At 12 years of age, while living with his father, QH first used methylamphetamine. He quickly became a frequent user, partly because the drug was an appetite suppressant and QH was not receiving adequate nutrition. In addition, he used the drug to “manage” symptoms of trauma and mental health.
Between 13 and 15 years of age, QH attempted youth residential rehabilitation programs on at least five occasions. QH says that he last used an illicit substance in April 2019.
QH suffers from post-traumatic stress disorder and anxiety because of the trauma that he experienced while living with his father. He experiences flashbacks, insomnia, and nightmares. QH has actively sought out treatment and feels that his mental health is now stable.
QH is academically capable; he possesses above-average literacy and numeracy skills. While in juvenile detention, he completed Year 11. He wishes to enrol with Open Universities Australia with a view to undertaking a law degree and then working with youth in the criminal justice system.
As QH has spent a significant part of his adolescence in institutions, he faces the possibility of institutionalisation.
QH has accepted responsibility for the offences. He is remorseful.
QH’s mother, grandmother, and other family members are highly motivated to support him and his mother has identified treatment, employment, and other supports that will assist him once he re-enters the community.
CR—Subjective features
CR is 16 years old and will soon turn 17 years old.
In 2017, CR first appeared before the Children’s Court. He has been before the Children’s Court for offences of escaping and attempting to escape from custody or arrest (and has received a sentence of imprisonment for those matters), common assault, aggravated robbery (in company, for which he received a three-month sentence and was released on entering into a 12-month good behaviour order), and numerous driving offences, including an offence of dangerous driving committed in June 2019, for which he received a sentence of eight months’ imprisonment from 11 August 2019 to 10 April 2020.
At the time of the subject offences, CR was in custody serving a sentence of aggravated robbery in July 2018. But for the subject offences, he would have already been released to the community on 10 April 2020.
Until 19 March 2020, CR’s behaviour was argumentative and aggressive. He was involved in physical and verbal fights, disobeyed and threatened staff, and caused significant damage to property on several occasions. His 40 behavioural breaches and other bad behaviour generally occurred in the company of other young people.
Since 19 March 2020, there has been a marked behavioural change and no further behavioural breaches. The distinct behavioural change occurred in response to a behaviour management plan involving one-on-one supervision, under which CR engaged with only one other detainee at any time. CR has displayed interest in woodwork arts, painting, puzzles and chess (becoming an avid player), and is the student representative on the school board. He has become a better listener.
His mother states “[CR] functions best when engaged in something he enjoys or which stimulates him”, that he needs to be physically active, works well with his hands, and is quite artistic. She believes that he has matured over the past 12 months.
CR was born in Canberra and is the youngest of three brothers. His parents are separated. He reports good relationships with his parents, brothers, and other family members.
Before being remanded in Bimberi in 2018, he resided with his mother in Canberra and spent every second weekend with his father in Collector, NSW. He associated with a negative peer group (primarily based in Canberra) and participated in few meaningful activities. He gravitated towards older peers. His father believes that he tried to act “cool” to impress them and that his relationships with older anti-social peers were a negative influence that caused him to act in an anti-social manner. Child and Youth Protection Services (CYPS) assessed his peer association risk as high.
CR is fortunate in that both his parents actively and co-operatively support him.
CR has never been employed. On release, he hopes to live and work with his father, who is a self-employed concreter. CR’s father lives with CR’s grandmother and aunt in Collector. Living in Collector, CR would also have the support of a small village community.
Once CR obtains a driver’s licence, he plans to obtain an apprenticeship, possibly in bricklaying.
Reportedly, CR does not use drugs. In February 2018, his mother was charged with cannabis possession and any use by her may pose a risk to CR. CR reported a moderate use of alcohol while in the community.
CR sustained an acquired brain injury when, at nine years of age, he fell four metres from a tree. A 2013 neuropsychological report referred to problems with attention/concentration, some executive functions, and sequencing but suggested that at least some of the deficits were pre-existing. A more recent report indicated that post-fall cognitive changes have not persisted but that there may be pre-existing learning and behavioural difficulties. The report stated that CR had “an overall low average intellectual ability” but that his performance level may be underestimated.
Since early childhood, CR has experienced symptoms of inattention, lack of concentration, and poor organisational skills, which Dr Clout (a clinical psychologist) described as “core symptoms of ADHD [attention-deficit/hyperactivity disorder]”. She also referred to associated features such as reduced behavioural control, impulsivity, and low frustration tolerance. She recommended engagement with a clinical psychologist to increase insight and understanding of symptoms and behaviour and to increase the capacity to regulate behaviour. Dr Clout arrived at a provisional diagnosis of ADHD (combined presentation, severe). She considered that this condition was contributing to CR’s reoffending and reincarceration risks.
When speaking to Dr Clout, CR expressed guilt and remorse for his actions, saying that he did not think about the consequences at the time of the conduct. He said that he was now trying to “behave” and that he was finding it difficult to control his frustration. He expressed some insight.
Dr Clout said that it was imperative that CR receive psychiatric evaluation and management to reduce his deficits in executive functioning and self-regulation and that he engage with a clinical psychologist to increase insight and understanding into his symptoms and impairments, with a view to increasing his capacity to regulate his behaviour. She opined that, with the support of his family, CR should be able to comply with court-imposed conditions.
CYPS are concerned about CR’s lack of remorse and insight. However, his attitude to offending behaviour is undergoing a positive shift. He has demonstrated an ability to engage in supervision and has been assessed as capable of complying with a good behaviour order. CR expects to receive a suspended sentence with a good behaviour order which will enable him to “prove” himself.
Other sentencing considerations
The sentencing purposes that are of particular relevance under s 7 of the Sentencing Act are general deterrence, recognition of harm to the victims, and rehabilitation. General deterrence is important because the offences were committed by detainees in a custodial setting and many were directed at custodial officers who were simply trying to do their duty and maintain order and safety within the institution. Rehabilitation is important in the case of any younger offender and is especially important in this case as both QH and CR show promise of rehabilitation.
Because of the circumstances in which the offences were committed, s 72 of the Sentencing Act applies.
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 offender was a young offender and all offences were part of the same course of conduct.
Because the offenders are young offenders within the meaning of the Sentencing Act, the following provisions of the Sentencing Act are relevant.
133BMeaning of young offender
In this Act:
young offender means a person who—
(a)has been convicted or found guilty of an offence by a court; and
(b)was under 18 years old when the offence was committed.
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 considerations).
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.
In this case, because of the seriousness of the offending conduct, I am satisfied that no sentence is appropriate other than a sentence of imprisonment. All parties conceded that proposition.
QH’s legal representative submitted that I should consider directing that the sentence imposed on QH be served by an intensive correction order. I note that s 11 of the Sentencing Act applies “if an adult offender is convicted of an offence”. The Sentencing Act seems to clearly distinguish between an “adult offender” and a “young offender”. Intensive correction orders are designed to contain and punish, as much as rehabilitate, whereas, in the case of young offenders, rehabilitation is the dominant sentencing purpose.
However, it is not necessary to decide this matter as I am not inclined to make an intensive correction order, even if such an order is available. Previous attempts to ascertain the level of supervision available to persons on such orders (particularly during the COVID-19 pandemic) have been fruitless. Further, QH’s mother has proposed a comprehensive program for her son, and I doubt that if an intensive correction order was made, it would result in a better program.
Sentences
QH
I impose the following sentences.
(a)Count 1: joint commission of aggravated robbery—22 months’ imprisonment (reduced from 27 months’ imprisonment), from 22 October 2020 to 21 August 2022, wholly suspended on the offender entering a good behaviour order until 21 August 2022.
(b)Count 2: threat to kill—18 months’ imprisonment (reduced from 2 years’ imprisonment), from 22 April 2020 to 21 October 2021, suspended on 21 August 2020 on the offender entering into a good behaviour order until 21 October 2021.
(c)Count 3: attempt to escape—three months’ imprisonment (reduced from four months’ imprisonment), from 22 December 2019 to 21 March 2020.
(d)Count 4: joint commission assault occasioning actual bodily harm—four months’ imprisonment (reduced from six months’ imprisonment), from 22 February 2020 to 21 June 2020.
(e)Count 5: resist Territory public official—12-month good behaviour order.
(f)Count 6: possess offensive weapon—$500 fine.
This is a total sentence of two years and eight months’ (32 months’) imprisonment, suspended after eight months on good behaviour orders.
CR
I impose the following sentences.
(a)Count 1: joint commission of aggravated robbery—14 months’ imprisonment (reduced from 18 months’ imprisonment), from 11 August 2020 to 10 October 2021, suspended from 24 August 2020 on entering into a good behaviour order until 24 February 2022.
(b)Count 2: damage property—$300 fine.
(c)Count 3: aid attempt to escape—three months’ imprisonment (reduced from four months’ imprisonment) from 11 April 2020 to 10 July 2020.
(d)Count 4: dishonestly ride in motor vehicle—three months’ imprisonment (reduced from four months’ imprisonment) from 11 June 2020 to 10 September 2020, suspended from 24 August 2020 on entering into a good behaviour order until 24 February 2021.
(e)Count 5: common assault—six-month good behaviour order.
(f)Count 6: common assault—12-month good behaviour order.
(g)Count 7: common assault—12-month good behaviour order.
(h)Count 8: unlawful possession of stolen property—$100 fine.
(i)Count 9: interfere with fire extinguisher—$300 fine.
This is a total sentence of 18 months’ imprisonment, suspended after four months and two weeks on good behaviour orders.
I allow no time to pay the fines that I have imposed.
| I certify that the preceding one hundred and eleven [111] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 15 July 2020 |
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