R v Sean (a pseudonym)
[2022] ACTSC 201
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sean (a pseudonym) |
Citation: | [2022] ACTSC 201 |
Hearing Date: | 29 July 2022 |
DecisionDate: | 9 August 2022 |
Before: | McCallum CJ |
Decision: | (1) The young person is convicted and sentenced to a term of imprisonment for 13 months commencing on 10 October 2021 and expiring on 9 November 2022, suspended immediately upon his undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 24 months commencing on 9 August 2022 and expiring on 8 August 2024; (2) The conditions of the good behaviour order referred to in order (1) are the core conditions listed in s 86 of the Crimes (Sentencing Administration) Act and that the young person accept supervision and comply with any reasonable direction given by the Director General of Child and Youth Protective Services. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –suspended sentence – good behaviour order – offence of recklessly inflicting grievous bodily harm – extra-curial punishment – youth – late guilty plea – where young person suffers from ADHD and depression |
| Legislation Cited: | Crimes Act 1900 (ACT), ss 20, 375(16) Crimes (Sentencing) Act 2005 (ACT), Ch 8A; ss 7(1), 36(2), 53(1)(b), 133C, 133D, 133G(3) Crimes (Sentence Administration) Act 2005 (ACT), s 86 |
Cases Cited: | Markarian v The Queen [2005] HCA 25; 228 CLR 357 MT v the Queen [2021] ACTCA 26; 17 ACTLR 26 Stott v the Queen [2021] ACTCA 18 |
Parties: | The Queen (Crown) Wren Sean (a pseudonym) (Young person) |
Representation: | Counsel R Christensen SC (Crown) D Barrow (Young person) |
| Solicitors ACT Director of Public Prosecutions (Crown) Hugo Law Group (Young person) | |
File Number: | SCC 132 of 2021 |
McCALLUM CJ:
These criminal proceedings arise out of a fight between two groups of young men at the Weston Creek Skate Park on the night of 26 September 2020. Two of the men, who were cousins, were stabbed during the fight. One survived, one did not.
The young person before the Court, Wren Sean (a pseudonym) was accused of stabbing both men. On 26 April 2022, he was arraigned on an indictment containing one count of murder contrary to s 12 of the Crimes Act 1900 (ACT) and one count of recklessly inflicting grievous bodily harm contrary to s 20 of the Act. He pleaded guilty to the count of inflicting grievous bodily harm but not guilty to the count of murder. After a trial that proceeded over six weeks, the jury acquitted the young person of murder. It remains to sentence him for the offence of recklessly inflicting grievous bodily harm.
The offence carries a maximum penalty of imprisonment for 13 years. The maximum penalty stands as a yardstick and must be taken into account in the manner explained in the decision of the High Court of Australia in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. It reflects the upper limit of possible punishment reserved for the worst possible instance of an offence of the kind in question. The present offence does not fall into that category. Moreover, it is appropriate to have regard to the fact that the offence could have been dealt with summarily in the Children's Court, where the young person would have been liable to a maximum term of imprisonment for two years and a fine of up to $5,000: s 375(16) of the Crimes Act.
The offence to which the young person has pleaded guilty was added as an ex officio count on the indictment about a month before the trial. The plea must nonetheless be characterised as a late plea, having been entered only at the beginning of the trial. The Crown submitted that the plea did little to reduce the evidence to be adduced for the trial. However, that submission must be assessed in the context that the indictment also included the count of murder on which the young person was acquitted. In my assessment, the plea did have significant utilitarian value for the reasons identified in the written submissions put on behalf of the young person. It shortened the length of the trial, simplified the presentation of the prosecution case and reduced the issues the jury were required to consider. It is appropriate to allow a discount in the order of 10%.
The young person spent just over seven months (219 days) in custody in the period leading up to the trial. The Crown submitted that this period in custody on remand related to the offence of murder, the charge of recklessly inflicting grievous bodily harm having been added only shortly before the trial in the manner I have indicated. I do not think it would be fair to overlook the period on remand in the circumstances. The young person was refused bail on the strength of an assessment of his involvement in the incident involving both victims.
Even when the young person was on bail, his liberty was subject to very strict conditions for a lengthy period including a curfew, a requirement to remain at home unless in the company of one of his parents and daily reporting to police. The Crown acknowledged that this represented a period of quasi-custody which may be taken into account in accordance with the principles stated in Stott v the Queen [2021] ACTCA 18 at [46]-[48] (Murrell CJ, Mossop and Loukas-Karlsson JJ). I am satisfied that it is appropriate to backdate the sentence for some portion of the period on conditional bail. The conditions curtailed the young person’s freedom to a significant extent.
Extra-curial punishment is also a relevant factor in this case. [REDACTED]. To adopt the description approved by Loukas-Karlsson J in R v Payne-Moore [2021] ACTSC 125 at [55], retributive assault is the paradigm of extra-curial punishment. [REDACTED], in my view it should nonetheless be regarded as a form of extra-curial punishment in respect of the events giving rise to the present charge to which the Court can and should have regard.
Both parties made submissions directed to s 36(2) of the Crimes (Sentencing) Act 2005 (ACT). It is neither necessary nor appropriate, for reasons which will be obvious, to rehearse the content of those submissions in any detail. I have considered the submissions of both parties and concluded that, even if the relevant matter is established, a lesser penalty is not warranted on that account having regard to the structure of the sentence I propose to impose.
The young person was aged 15 years at the time of the offence and is now 17. Because of his youth, I am obliged to consider the youth justice principles stated in Chapter 8A of the Crimes (Sentencing) Act. In particular, in sentencing the young person, I am permitted to give primacy to the purpose of rehabilitation over other purposes of sentencing and am required to have particular regard to the common law principle of individualised justice: s 133C of the Crimes (Sentencing) Act. The application of those principles is explained in the decision of the Court of Appeal in MT v the Queen [2021] ACTCA 26; 17 ACTLR 26, to which I will return.
Facts
The facts established by the evidence at the trial, insofar as they were relevant to the offence to which the young person pleaded guilty, were summarised in a statement provided by the Crown. The following summary is drawn largely and mostly verbatim from that document. On the night of 26 September 2020, the young person attended a friend's birthday party in Weston Creek. He had been consuming alcohol and cannabis. While he was at the party, two of his friends became involved in a Snapchat argument with people they did not know. The argument escalated quickly and resulted in the young people agreeing to participate in a fight at the Weston Creek Skate Park.
The young person was invited by a friend to join the fight. He and other young people drove to the skate park. Unbeknownst to the young person, the friend had also contacted a group of older men and asked them to come to the fight as well “in case shit goes south”.
The young person gave evidence at the trial that he did not take a knife or any weapon with him to the fight. Whilst that evidence was challenged by the Crown at the trial, there is no evidence to support a finding that the young person armed himself at any point earlier than the moment before he stabbed the victim.
The people involved in the fight came in three cars which arrived at the skate park within seconds of each other. The car carrying the young person, which was a hatchback, arrived first. In that car were the young person, his two friends from the party and a young female who was the driver. She did not participate in the violence.
The second car to arrive was a sports car driven by the deceased with his younger cousin in the front passenger seat. The younger cousin was the victim of the stabbing by the young person. Two other young males were in the back of that car. The third car to arrive carried the older men who had been contacted by the young person's friend. In that car were four males, the eldest of whom was 25 at the time.
A violent fight began immediately and escalated quickly. The young person's two male friends in the hatchback went to the passenger side of the sports car while the young person remained in his seat. At the same time, at least three of the older males in the utility went to the driver's side of the sports car, dragging the driver out and fighting with him. The young person got out of the car soon afterwards and joined his two friends at the front on the passenger side of the sports car. He struggled to engage in the fight against the passenger of the sports car because his two friends were blocking the doorway. He then walked around to the front of the sports car. He gave evidence in the trial that he saw a knife on the ground which he picked up and took to the passenger side of the car. As noted in the Crown's statement of facts, which is agreed, it is likely that the deceased had been stabbed by an unknown person shortly before that time. Every person who was involved in the fight, including the young person, gave evidence in the trial denying seeing the deceased being stabbed.
The young person gave evidence that, when he returned to the passenger side of the sports car with the knife, he saw that his friend was losing the fight with the passenger. That is inconsistent with the evidence of the friend, who said that the passenger's punches did not connect with him. It is not possible to resolve that factual dispute. In order to make a finding adverse to the young person rejecting his explanation that the passenger was getting the better of the fight, I would have to be satisfied of that fact beyond reasonable doubt. The various descriptions given in evidence at the trial were not sufficiently cogent to permit a finding adverse to the young person to that standard of proof.
The young person then stabbed the passenger in the back, inflicting a long and deep gash to the lower back and a separate superficial wound. The gash to the back constituted grievous bodily harm. The young person dropped the knife but picked it up again. He gave evidence in the proceedings that he went back to the passenger side of the sports car at that stage and stabbed into the vehicle, believing that he saw someone there. He believed that he had stabbed someone else at that point.
In the later stages of the fight, one of the young persons present in the back seat of the sports car got out of the car holding a machete (described in evidence as being of poor quality and not sharp). The men who arrived in the utility went to collect garden tools kept in the rear of the utility by its owner, who worked in landscaping. They smashed the sports car including smashing its windscreen and bonnet. The male holding the machete and the male who had been stabbed by the young person fled the scene.
The young person and his friends left in the hatchback and the older men left in the utility. The whole incident took about two minutes and 12 seconds. As they were leaving the skate park, the young person said quietly to his friend in the back seat, “I think I stabbed the guy you were fighting”.
Both the hatchback and the utility arrived at the home of one of the older males, where the young person spoke to others about how he had stabbed someone. He showed some of them that he had a knife. At that point, he was carrying the knife in the waist of his pants. The young person was unaware at that time that someone had died during the fight. He became aware of that fact the following morning from media reporting.
The young person went to visit a friend and, on the way, threw the knife into a drain near his house. The following day he told other associates that he had engaged in a stabbing at the skate park.
The victim did not make a victim impact statement to the Court. No inference about the harm suffered by him can be drawn from that fact: s 53(1)(b) of the Crimes (Sentencing) Act. Whilst a decision not to make a victim impact statement is readily understandable in the fraught circumstances of this case, it is not appropriate to speculate as to the reasons for that decision. There was evidence at the proceedings on sentence which was admitted without objection that the victim told the prosecutor the stab wound on his back left a scar; that he had stopped playing soccer originally due to restrictions from the injuries sustained but never resuming playing; that he would like to take up bodybuilding but has not due to the off-putting nature of his unhealed scar and that, on a recent occasion, he decided not to go to the beach because of his scar.
Objective seriousness
It is necessary for the purpose of sentencing the young person to make an assessment of the objective seriousness of the offence.
The offence was committed during a fight in a public area organised by others in which the young person was invited to participate. The fact that the offence involved the use of a knife aggravates its seriousness. It is also relevant in assessing the degree of recklessness involved. The possibility of causing really serious bodily injury must have been obvious to the young person. The Crown submitted, and I accept, that the degree of recklessness can be contrasted to that in a one-punch assault which causes grievous bodily harm. In such a case, the infliction of really serious bodily injury is a possibility but not as obviously so as in the case of the use of a bladed weapon.
On the other hand, I accept that the use of the knife was unplanned and impulsive, there being no evidence on the strength of which the Court could make a finding beyond reasonable doubt rejecting the young person's evidence that he found it on the ground during the fight. The offence was of short duration, consisting effectively of a single assault. The reason given by the young person for inflicting the wound was that he thought the victim was getting the better of the fight with his friend. That, of course, does not excuse the offending but it places it in a different category from an unprovoked attack on an innocent bystander.
It is also necessary to consider the degree of violence and the injuries caused. The wound does not appear to have caused immediate pain to the victim. Indeed, he was not aware that he had been stabbed until sometime afterwards, when he ran away. The principal stab wound was nonetheless a significant injury which required suturing and treatment in hospital and which has had a lasting physical and psychological impact on the victim. On the other hand, the injuries do not fall within the most serious category of instances of offences of this kind, which can include offences in which the injuries render the victim permanently and totally incapacitated (for example, quadriplegia). In all the circumstances, I would assess the objective seriousness of the offence to fall within the middle of the range and towards the lower end of that mid-range.
Circumstances of the young person
Turning to the circumstances of the young person, the most significant considerations are his youth and his mental health at the time of the offence. There was before the Court a large body of information addressing those matters. There was a letter and a report from Dr Suzzana Powell, a paediatrician, and a report from Dr Alexander Lim, the young person’s treating psychiatrist. There was also a forensic report from Dr Olav Nielssen, a forensic psychiatrist. There were also numerous character references from friends and family members of the young person who, in a single voice, attest to his good character and potential for rehabilitation.
Returning to the medical evidence, the young person has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) for which he has at times been medicated. Unfortunately, at the time of the offence, he had stopped taking his medication, for reasons explained by Dr Nielssen in his report. Dr Powell expressed the opinion that the young person's ADHD placed him at an increased risk of antisocial behaviour including recklessness, sensation-seeking, poor self-control, emotional lability and increased likelihood of confrontation. Dr Nielssen also addressed the significance of the young person's ADHD, particularly in circumstances where at the time of the offending he had ceased taking the medication that treats that condition.
Dr Lim treated the young person for 11 months in 2020 and considered that he had a generalised anxiety disorder, a major depressive disorder and ADHD. The medication he was prescribed for both conditions was described by Dr Lim as having given rise to “excellent progress” in the period up to the end of September 2020 before the young person ceased taking his medication.
Dr Nielssen expressed the opinion that the young person has a depressive illness in partial remission. That diagnosis was based on an assessment of the young person in June 2022 and accordingly the remission may readily be explained by the strong family support described in the material provided on behalf of the young person and also in the Case Plan prepared by Child and Youth Protective Services. Dr Nielssen also diagnosed a substance use disorder, also in remission, probably for the same reasons and an impulse control disorder. Dr Nielssen said:
“The young person's conditions are longstanding and were all present to some degree at the time of the three sets of offences.”
I interpolate to note that the reference to three sets of offences includes reference to some offences committed by the young person after the present offence.
Returning to the quote, Dr Nielssen said:
“His condition is interacted with the circumstances of each of the offences. He reported being affected by alcohol and cannabis at the time of the stabbing offence which is likely to have exacerbated his tendency to act on impulse without considering the consequences.”
It was submitted on behalf of the young person that the evidence supports a finding that his mental condition, particularly his ADHD, had an adverse impact on his level of maturity and state of development as it increased his tendency to act impulsively which, in turn, can be seen to have contributed to the commission of the offence in a material way. I accept that submission, which is relevant to the assessment of the young person's moral culpability: s 133D of the Crimes (Sentencing) Act; R v Verdins [2007] VSCA 102; 16 VR 240 at [23] (Maxwell P, Buchanan and Vincent JJA) citing R v Israil [2002] NSWCCA 255 at [23] (Spigelman CJ, Simpson and Blanch JJ agreeing).
As already noted, the material tendered at the proceedings on sentence also included a Case Plan, which was part of the Crown bundle. It is not necessary to set out the detail of the Pre-Sentence Report which gave rise to that Case Plan. In summary, it may be said that the young person has demonstrated to a number of people that the mental health conditions with which he has been diagnosed contributed to his offending and that, if those conditions are properly treated and controlled, he has reasonable prospects of good rehabilitation.
The Crown addressed the question of remorse, relying on an extract of the evidence given by the young person at the trial. Whilst I accept that the terms in which he expressed himself in that exchange in cross-examination were qualified, Dr Nielssen explained the reasons why a person in the position of the young person may have difficulty expressing remorse although genuinely feeling it. Based on my assessment of the young person's evidence in the trial and the other material before me, I accept that he is remorseful for this offence, albeit that he is unable at his present stage of maturity to express that in articulate terms.
Deterrence
The purposes of sentencing stated in s 7(1) of the Crimes (Sentencing) Act are:
“(a)to ensure that an young person is adequately punished for the offence in a way that is just and appropriate
(b)to prevent crime by deterring the young person and other people from committing the same or similar offences;
(c) to protect the community from the young person;
(d) to promote the rehabilitation of the young person;
(f) to make the young person accountable for his or her actions;
(g) to denounce the conduct of the young person; and
(h) to recognise the harm done to the victim of the crime and the community.
The nature of the present offence, being an attack during a fight in a public place and involving the use of a knife, requires that some weight be given to the purposes of denunciation, recognition of the harm to the victim and ensuring that the young person is adequately punished. The content of the obligation is to ensure that the young person is punished in a way that is “just and appropriate”. Both individual and general deterrence must also be given some weight in this case. The evidence in the trial revealed that violent prearranged fights among youths are a problem in this city and a threat to the safety of the community. The introduction of a knife in such a fight escalates the risks significantly. Plainly, it is conduct that must be deterred.
I pause in that context to note an observation in the material I have seen suggesting that the parents of the young person were dissatisfied with the way in which police handled this matter. I wish to record publicly my own assessment that the police in this matter handled what must have been an extremely distressing and difficult investigation in a manner I would describe as impeccable.
As to individual deterrence, although he has no prior convictions, the young person has committed offences of violence since the present offence, being those to which Dr Nielssen referred in the remarks I have quoted above. The Court must be astute to impose a sentence that will bring home to the young person the consequences of engaging in violence. Whilst all of those are important considerations, however, the youth justice principles provide that the young person may only be detained in custody as a last resort and for the minimum time necessary.
Sentence
High priority must be given in accordance with those principles to giving the young person an opportunity to re-enter and function in the community. His opportunity to mature and develop in a functional way has, of necessity, been interrupted both by his period in custody on remand and by the lengthy period during which he was subject to onerous bail conditions which effectively isolated him from his peers. I also have regard in this context to the extra-curial punishment to which I have already referred, which was inimical to constructive rehabilitation, re-exposing him to the very violent milieu from which he has sought to distance himself.
It was common ground in the parties’ submissions that, having regard to those considerations, it is not necessary for the Court to impose a sentence now which includes any further period of fulltime custody. I agree.
The young person submitted that the Court might consider imposing a sentence of only six months' imprisonment or less, backdated so as to support his rehabilitation by ensuring that the conviction would be spent. It was submitted that the Court might consider imposing a fully backdated sentence of no more than six months together with a good behaviour order with supervision, as contemplated by s 133G(3) of the Crimes (Sentencing) Act. I do not think such a sentence would adequately reflect the seriousness of the offence.
In my assessment, the rehabilitation of the young person will best be served in the present case with what has been characterised as a carrot and stick approach. An example was given in the decision of the Court of Appeal in MT v the Queen, where the Court said:
“[68] A ‘combination sentence’ of fulltime imprisonment followed by a good behaviour order enables the imposition of a very short sentence of fulltime imprisonment followed by a good behaviour order. For example, such a sentence may be appropriate for a young young person who is in fulltime detention when they appear for sentence. If the sentencing court considers that they should be released forthwith subject to a significant period of supervision on a good behaviour order.
[69]A ‘combination sentence’ comprising a suspended sentence and a good behaviour order enables the imposition of a partly suspended sentence within which the unsuspended part is of any appropriate length and following release, the failure of the young person to comply with the conditions of the associated good behaviour order places them at risk of serving the suspended part of the sentence in fulltime detention. Such a sentence simultaneously supports good behaviour whilst disincentivising antisocial behaviour (the carrot and stick approach to behavioural reform).”
Applying those principles, I consider it appropriate to impose a combination sentence which does include a partly suspended component. Before application of the discount for the plea, I would start with a sentence consisting of a term of imprisonment for 15 months. The application of a discount of 10% gives a sentence of imprisonment for approximately 13 months (rounding down). Taking account of the period in custody on remand of seven months and the other factors referred to in this judgment, being the onerous bail conditions and the extra-curial punishment, it is appropriate to backdate the sentence by 10 months so as to commence on 10 October 2021. That will leave a period of three months of the suspended sentence (from today) which the young person will be liable to serve if he breaches the Good Behaviour Order.
There will be a Good Behaviour Order for a period of 24 months from today. The conditions of that order will be the core conditions specified in s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), together with a condition that the young person accept supervision and comply with any reasonable direction given by the Director General of the Child and Youth Protection Service.
Wren Sean, please stand. For the charge of recklessly inflicting grievous bodily harm:
(1)You are convicted. I sentence you to a term of imprisonment of 13 months commencing on 10 October 2021 and expiring on 9 November 2022, suspended immediately upon his undertaking to comply with his good behaviour obligations for a period of 24 months commencing on 9 August 2022 and expiring on 8 August 2024;
(2)The good behaviour obligations referred to in Order (1) are the core conditions listed in s 86 of the Crimes (Sentencing Administration) Act and that the young person accept supervision and comply with any reasonable direction given by the Director General of Child and Youth Protective Services.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: |
Amendments:
In the cover page, change case title from “R v Wren Sean” to “R v Sean (a pseudonym)”.
In the cover page, omit “Children and Young People Act 2008 (ACT) s 94”.
In the cover page, add “Ch 8A;” after the “Crimes (Sentencing Act) 2005 (ACT)”.
In [9], omit “s 94 of the Children and Young People Act 2008 (ACT)” and substitute with “Chapter 8A of the Crimes (Sentencing) Act”.
| Associate to her Honour Chief Justice McCallum ............................................................... Date: 25 May 2023 |
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