R v UD

[2017] ACTSC 210

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v UD

Citation:

[2017] ACTSC 210

Hearing Date:

7 August 2017

DecisionDate:

7 August 2017

Before:

Elkaim J

Decision:

See paragraph [29]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young person – aggravated robbery – attempted aggravated robbery –ride in a motor vehicle without consent – pleas of guilty.

Legislation Cited:

Criminal Code 2002 (ACT) ss 310 and 318(2)

Parties:

The Queen (Crown)

UD (Offender)

Representation:

Counsel

Mr M Thomas (Crown)

Mr T Pasi (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Prudential Legal Solutions (Offender)

File Number:

SCC 132 of 2017 and SCC 156 of 2017

ELKAIM J:

1. On 26 June 2017, UD, a young person, pleaded guilty to two charges in the ACT Childrens Court.

1. The two offences to which he pleaded guilty were aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT), and dishonestly drive a motor vehicle without consent, contrary to s 318 (2) of the Code.

1. The maximum penalty for the offence of aggravated robbery is a fine of $375,000 and/or 25 years imprisonment. The maximum penalty for the offence of dishonestly ride in a motor vehicle without consent is a fine of $75,000 and/or five years imprisonment. 

1. On 29 May 2017, UD and a co-offender, SI, pleaded guilty to a charge of attempted aggravated robbery. SI has also appeared for sentence today.

1. UD was born in 2000. He was 16 years of age when the offences were committed.

1. UD was a client of an organisation called Premier Youthworks. The organisation’s purpose is to help young people. It has a residential section. UD was a resident.

1. On 16 February 2017, an argument broke out between a residential youth worker at Premier Youthworks, UD and his younger sister, FD. At about midday, the youth worker was in the office with UD and his sister.

1. FD picked up a petty cash tin which contained the keys to the Premier Youthworks vehicle and a petrol card. It also contained an EFTPOS card and about $20 in cash. UD deliberately blocked the youth worker’s view of FD, allowing FD to run from the room with the tin.

1. The youth worker confronted FD, who responded with threats of bashing and stabbing her if she called the police. UD intervened and said “I have a fucking meat cleaver”, which he revealed to the youth worker. He threatened to stab her if she called the police.

1. The youth worker returned to the office and locked herself in. She called the police. At the same time, the Premier Youthworks vehicle was driven away. FD was the driver and UD was the passenger.

1. I note that another young person was also involved in the incident. More detailed facts can be found in the Statement of Facts (Exhibit C).

1. The attempted aggravated robbery, which carries a maximum penalty of a fine of $375,000 and/or 25 years imprisonment, was committed on 14 May 2017.

1. The brief facts of the offence are that UD and SI grabbed a pedestrian and pushed him against a wall. They demanded that he hand over his possessions. UD held a toy pistol to his head. The pedestrian did not succumb to their demands and UD and SI fled on foot.

1. The two young people were arrested a short time later.

1. UD has been in custody for a substantial period. He pleaded guilty to the offence of attempted aggravated robbery at the second mention of the matter. He pleaded guilty to the two offences of aggravated robbery and dishonestly ride in a motor vehicle without consent approximately two weeks prior to the hearing date.

1. UD’s parents separated when he was about three years of age. A year later, UD was removed from his mother’s care because she was struggling with drug issues and he was at risk of neglect. UD remained in care until 2009, when shared care arrangements came into place. The new arrangement did not last long. In 2010, UD’s mother died of a drug overdose.

1. UD has spent a great deal of his life exposed to domestic violence, verbal, physical and emotional abuse and parental drug use. Over fifty child concern reports were received in relation to him between 2002 and 2011. In 2011, UD went into his father’s care, subject to his supervision.

1. UD’s father went into prison in October 2012. This led to long-term care and protection orders being made. They were to remain in place until UD reaches 18 years of age. He was placed in the care of his grandparents, with whom he lived for about four years. They provided a stabilising influence and this was reflected in his improved behaviour.

1. Unfortunately, in 2014 UD’s grandfather had major brain surgery which led to a significant deterioration in his mental and physical health, including the onset of degenerative dementia. He could no longer care for himself. Further tragedy occurred in December 2015, when UD’s grandmother was diagnosed with terminal cancer. She died in March 2016.

1. UD and his sister were then placed in residential care. His behaviour deteriorated as indicated by the offences for which he is to be sentenced today.

1. Despite the deterioration, UD has not previously been in trouble with the law. As observed by the Crown, this is quite remarkable.  

1. I also note that the Crown, displaying a marked degree of fairness, emphasised the need for rehabilitation. The presentence report (Ex D) refers to a Therapeutic Case Plan which I think needs to be implemented for UD.

1. Sentencing is, of course, not only about rehabilitation. There are victims of the offences. Their interests, and the interests of the public at large, need to be taken into account. Young people must know that the use of real or fake weapons to frighten innocent members of the public is not only a terrifying experience for the victims but is also entirely unacceptable.

1. The background that I have set out above is but a short summary of the overwhelming tragedy that has dominated UD’s young life. I observed in discussion with counsel that he has never had an even break. Although this is a somewhat colloquial phrase, it does summarise the very difficult background to the offender’s life. Very significantly, he has not played any part in the mishap that has befallen him. He has been a victim of either the conduct of others or the tragedy that those others have encountered.

1. Although it was suggested by his learned legal representative, I do not think that the referral of UD to Restorative Justice is appropriate. I accept that, in general terms, culprits should meet their victims. However, in this case I think that the exercise, while having the potential to be beneficial, will delay the path of rehabilitation.

1. I think that the appropriate way to proceed is by way of a good behaviour order for a period of two years during which time UD is to be subject to the supervision of the Director-General of Child Youth Protection Services. This will allow the Director-General to implement the case plan, to dictate where UD resides and monitor his progress.

1. I also take into account the pleas of guilty and the length of time spent in custody.

1. Although the attempted robbery occurred on a separate day, I intend to impose the same orders for all of the offences.

1. I make the following orders:

(a)In respect of the offence of attempted aggravated robbery (CH 17/436), the conviction is confirmed. UD is to enter into a Good Behaviour Order for a period of two years on condition that he accepts the supervision of the Director-General of Child Youth Protection including directions as to accommodation, participation in a case plan, education and employment.

(b)In respect of the offence of aggravated robbery (CH 17/123), the conviction is confirmed. The offender is to enter into a Good Behaviour Order for a period of two years on condition that he accepts the supervision of the Director-General of Child Youth Protection Services including directions as to accommodation, participation in a case plan, education and employment.

(c)In respect of the offence of dishonestly ride in a motor vehicle without consent (CH 17/129), the conviction is confirmed. The offender is to enter into a Good Behaviour Order for a period of two years on condition that he accepts the supervision of the Director-General of Child Youth Protection Services including directions as to accommodation, participation in a case plan, education and employment.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 9 August 2017