RC v Director of Public Prosecutions

[2016] NSWSC 665

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

RC v Director of Public Prosecutions [2016] NSWSC 665

Hearing dates:

19 May 2016

Date of orders:

26 May 2016

Decision date:

26 May 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Extend time to appeal to 14 December 2015;

 

(2) The sentence imposed on the young person by the Children’s Court at Campbelltown on 14 September 2015 is set aside. In lieu thereof the young person is sentenced as follows:

 

(a) For the offences H 57849712 Sequences 5 to 13, H 58915826 Sequences 1 and 2, H 58712865 Sequence 1 and H 59456116 Sequence 4 the young person is sentenced to an aggregate sentence of a control order for 1 year and 10 months commencing 16 July 2015 and expiring 15 May 2017 with a non-parole period of 12 months expiring 15 July 2016;

 

(b) For the offences H 57849712 Sequences 1 to 4 direct the young person to enter into a good behaviour bond for a period of 2 years. In addition to the conditions imposed by s 33(1A) of the Children (Criminal Proceedings) Act 1987 (NSW) it is a condition of the bond that the young person accept the supervision of Juvenile Justice and the supervision of any other organisation or person directed by Juvenile Justice.

 

(3) The indicative sentences for the offences included in the aggregate sentence are as follows:

(a) For each of the offences H 57849712 Sequences 5 to 13 and H 58915826 Sequences 1 and 2 – one year;

 

(b) For the offence H 58712865 Sequence 1 – one year three months;

 (c) For the offence H 59456116 Sequence 4 – three months.

Catchwords:

CRIMINAL LAW – sentence – appeal from Children’s Court constituted by the President – multiple property offences – break enter and steal, break and enter with intent, aggravated break enter and steal – some offences committed whilst on parole and other conditional liberty – young person with intellectual and emotional deficits – Attention Deficit Hyperactivity Disorder – need for supervision – length of non-parole period

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)
Children’s Court Act 1987 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)

Cases Cited:

AI v R; R v SB and AI [2011] NSWCCA 95
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

Category:

Principal judgment

Parties:

RC (Plaintiff)
Director of Public Prosecutions (Defendant)

Representation:

Counsel:
R Wilson (Plaintiff)
C Shaw (Defendant)

  Solicitors:
Aboriginal Legal Service (Plaintiff)
Solicitor for Public Prosecutions (Defendant)

File Number(s):

2015/366819

 Decision under appeal 

Court or tribunal:

Children’s Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 September 2015

Before:

Judge Johnstone, President of the Children’s Court of NSW

File Number(s):

2015/152909; 2015/138052; 2015/224788 & 2015/266450

Judgment

1. On 14 September 2015 the Plaintiff, a young person, pleaded guilty to a number of offences. He was sentenced on that day by the President of the Children’s Court of NSW, Judge Johnstone, to a control order with an aggregate term of two years commencing 14 September 2015 and expiring 13 September 2017 with a non-parole period of 14 months expiring 13 November 2016.

2. The full details of the offences and the sentences appear in the following table:

Section No	Offence(s)		Date of Offence	Sentence / Order		Minimum / Maximum Penalty
H 57849712
Section 112(1)(a) Crimes Act 1900		Seq 1 Break, enter and steal value <=$60,000	17/01/2012 At Eagle Vale		Control Order Aggregate Term: 2 years (14/09/2015-13/09/2017) NPP 14 months (14/09/2015- 13/11/2016)		Children's Court jurisdictional limit Control Order: 2 years: and/or Fine: $1,100
Section 113(1) Crimes Act 1900	Seq 2 Break and enter dwelling house with intent to steal	05/05/2013 At Bradbury	Indicative Term: 1 year	As above.
Section 112(1)(a) Crimes Act 1900	Seq 3 Break, enter and steal value <=$60,000 (attempt)	26/05/2013 At Airds	Indicative Term: 1 year	As above.
Section 112(1)(a) Crimes Act 1900	Seq 4 Break, enter and steal value <=$60,000	17/09/2013 At Airds	Indicative Term: 1 year	As above.
Section 112(1)(a) Crimes Act 1900	Seq 5 Break, enter and steal value <=$60,000 (attempt)	Between 14/03/2014 and 16/03/2014 At Kentlyn	Indicative Term: 1 year	As above.
Section 195(1)(a) Crimes Act 1900	Seq 6 Destroy or damage property	Between 14/03/2014 and 16/03/2014 At Kentlyn	Indicative Term: I year	As above.
Section 112(1)(a) Crimes Act 1900	Seq 7 Break, enter and steal value <=$60,000	23/03/2014 At Campbelltown	Indicative Term: 1 year	As above.
Section 112(1)(a) Crimes Act 1900	Seq 8 Break, enter and steal value <=$60,000	15/04/2014 At St Helens Park	Indicative Term: 1 year	As above.
Section 112(1)(a) Crimes Act 1900	Seq 9 Break, enter and steal value <=$60,000	18/04/2014 At Ambarvale	Indicative Term: 1 year	As above.
Section 113(1) Crimes Act 1900	Seq 10 Break and enter dwelling house with intent to steal	21/04/2014 At Airds	Indicative Term: 1 year	As above.
Section 112(1)(a) Crimes Act 1900	Seq 11 Break, enter and steal value <=$60,000	13/08/2014 At Leumah	Indicative Term: 1 year	As above.
Section 113(1) Crimes Act 1900	Seq 12 Break and enter dwelling house with intent to steal	Between 15/08/2014 and 16/08/2014 At Bradbury	Indicative Term: 1 year	As above.
Section 112(1)(a) Crimes Act 1900	Seq 13 Break, enter and steal value <=$60,000 (attempt)	24/09/2014 At Moree	Indicative Term: 1 year	As above.
H 58712865
Section 112(2) Crimes Act 1900	Seq 1 Aggravated break and enter and steal (people there)	06/05/2015 At Leumah	Indicative Term: 1 year	Children's Court jurisdictional limit Control Order: 2 years; and/or Fine: $1,100
H 59456116
Section 58 Crimes Act 1900	Seq 4 Resist officer in execution of duty	31/07/2015 At Airds	Indicative Term: 3 months	Children's Court jurisdictional limit Control Order: 2 years; and/or Fine: $1,100
H 58915826
Section 112(1)(a) Crimes Act 1900	Seq 1 Break, enter and steal value <=$60,000	10/09/2014 At Ruse	Indicative Term: 1 year	Children's Court jurisdictional limit Control Order: 2 years; and/or Fine: $1,100
Section 112(1)(a) Crimes Act 1900	Seq 2 Break, enter and steal value <=$60,000	17/09/2014 At Ruse	Indicative Term: 1 year	As above.

3. On the same day Judge Johnstone sentenced him in respect of three other offences from which no appeal is brought.

4. The young person now appeals against the sentence imposed. The appeal comes to this Court by reason of s 22A of the Children’s Court Act 1987 (NSW). The young person needs leave to appeal because the appeal was not filed within the time limited by the Crimes (Appeal and Review) Act 2001 (NSW). The Crown does not oppose leave being given. I am satisfied from the affidavit of Jeremy Styles, the solicitor acting for the young person, that leave should be given.

5. It is not necessary to set out the exhaustive detail of the circumstances of each of the offences. In relation to the 13 offences in H 57849712 the offences involved the entry into various residential properties by force normally resulting in damage to the property, ransacking the property and in some cases causing other damage. In most cases personal items including money were stolen. In most cases the young person was in company with one or more other persons.

6. The offence of aggravated break and enter and commit larceny in circumstances of aggravation concerned a property where the occupants of the house were present. They did not realise the young person and others were in the house until just after they had left.

7. The offence of resisting an officer in the execution of the officer’s duty took place when the police attended at the place the young person was living because he had outstanding warrants for his arrest. When the police knocked loudly on the door and announced themselves the young person and others jumped out of a rear window. Police called to him but he ran from them. He was tackled, restrained, handcuffed and placed under arrest. However, when he was being searched he ran from them again. The police gave chase but when he was tackled to the ground he continued to struggle and lash out at them.

8. A report from Juvenile Justice indicated that the young person is of Aboriginal heritage and is the third child of eight children born to his mother. She has been the main carer for him since her relationship with the young person’s father came to an end when he was about eight years of age. The young person described a materially adequate and supportive upbringing. He said that his mother provides the care and support needed and he had a positive relationship with his siblings. The young person found it difficult to accept the boundaries imposed by his mother but she indicated that she was not able to control him nor assist him to modify his behaviour. The report indicated the young person had been suspended from Airds High School due to a display of problematic behaviours outside the class environment. If released from custody the Principal indicated that the young person would be able to return to the school where he would be supported by the Aboriginal Liaison Officer.

9. The report indicated that the young person had a history of associating with older peers who appeared to support and actively engage in antisocial activities. Both the young person’s mother and stepfather reported that he was easily influenced by his peers because he sought to impress them by participating in antisocial behaviour.

10. In a number of places the report indicated that the young person initially engaged with people and organisations endeavouring to give him support including Juvenile Justice and Youth Off The Streets but after a short period of time the young person disengaged.

11. Although the Juvenile Justice report indicated that the young person was eligible and suited a community based order they said he was not considered suitable for a Community Service Order partly because of his young age and partly because of the difficulty in his understanding the rules associated with Community Service Orders. The report indicated that if he was to be released from custody he would be able to live with his mother and that was the only suitable accommodation for him. His mother had indicated a willingness and desire to have him at home.

12. The young person was examined by forensic psychologist Ms Caroline Hare on 24 April 2016. What she reported of his background accorded with what was contained in the Juvenile Justice report. It indicated further that the young person had an amicable relationship with his stepfather although that relationship with the young person’s mother appears to have come to an end. The psychologist reported that he had spent some time residing with his maternal aunt in Brisbane for a few weeks. This was an attempt by his mother to distance him from the negative peer group that he was associating with. The psychologist then reported that he was reluctant to provide further information about his family life saying that he felt “weird to have [his] personal life on show”. He did however deny exposure to any racism or other social disadvantage and said that his material needs were apparently consistently met during his childhood.

13. The only negative things reported were that the young person’s father had spent some time in gaol and although the young person had not been exposed to familial substance abuse he said he was extensively exposed to alcohol use within the local community. He had observed arguments between his mother and his stepfather but there was no suggestion of physical violence.

14. The young person informed the psychologist that he had consumed alcohol and smoked cannabis on occasions since the age of 14 years in the company of peers. He said that smoking cannabis had led him to committing acquisitive offences because after smoking it he would want to smoke more and would need money to do this. He denied using other drugs.

15. The psychologist said that he met criteria for Attention Deficit/Hyperactivity Disorder and Conduct Disorder. The psychologist noted that he had been placed on Concerta for the ADHD and he reported improved concentration and enhanced ability to listen. He said the medication helped him make the right choices. This treatment appears to have commenced whilst he has been in custody.

16. The psychologist identified him as having cognitive delays in the following areas:

Emotional regulation;

Executive functioning;

Cognitive flexibility;

Social skills; and

Language processing.

17. He struggled to engage in individual counselling sessions and discharged himself from them.

18. The psychometric testing showed that he fell in the first percentile of the population meaning that his intellectual abilities were in the Extremely Low to Borderline range. Similarly, his General Adaptive Composite fell below the 0.1 percentile. These results indicated that he met the criteria for Mild Intellectual Disability.

19. The psychologist concluded:

He experiences difficulties in learning academic skills involving reading, writing, arithmetic, time, and money, and requires support to meet age-related expectations. He adopts a concrete approach to problem solving when compared to his peers. His problems in the social domain indicate that he is immature in social interactions, and he may experience difficulties accurately perceiving social cues. Communication, conversation, and language are more concrete or immature than expected for his age. RC is likely to experience difficulties regulating his emotion and behaviour in an age-appropriate fashion. He has limited understanding of risk in social situations and his social judgement is immature for age, meaning that he is at increased susceptibility to peer influence and manipulation. RC likely requires support with complex daily living tasks in comparison with his peers. Whilst he is probably able to engage in recreational activities with his age-mates, he is less able to organise recreational activities in the absence of support, meaning that he would benefit maximally from a structured routine.

20. The psychologist also concluded that extended detention within a juvenile justice facility had the potential to heighten some areas of the challenges he experiences as this detention would increase his exposure to potentially negatively influencing peers. She said, on the other hand, that the predictable structure offered by the regime operating within a juvenile justice facility would likely offer him some benefits as he struggles to manage in the absence of a structured routine. She was concerned that his extended detention would increase his vulnerability to developing signs of institutionalisation. She said in order to promote his rehabilitation she believed he would benefit from reintegrating into the community with a plan of structured support in place to assist him to manage that reintegration.

21. Two matters of significance seem to me to be the extent and nature of the young person’s criminal record and, connected with that, the extent to which his present offending occurred whilst he was on a number of different forms of conditional liberty.

22. The young person was born on 12 March 2001. He was first charged with stealing from the person on 12 July 2012. He failed to appear in Court to answer that charge on 8 October 2012 and a warrant was issued for his arrest. Only one month later he was charged with break, enter and steal and again failed to appear in Court resulting in the issue of a warrant. When he appeared in Court on 15 October 2012 he was put on a six month s 33 bond under the supervision of Juvenile Justice.

23. From this point, a time line is necessary so that both the offending and the periods of conditional liberty can readily be understood.

24. Between 5 May 2013 and 16 August 2014 11 of the present offences were committed. These were the break, enter and steal, the break and enter with intent, and the destroy or damage property charges.

25. The young person came before the Court on 8 September 2014 charged with stealing from the person and also for being a driver never licensed on 5 June 2014. For each of those offences he was given a 12 month s 33 bond with particular conditions about living with his mother, attending school, attending counselling and non-association. On the same day he was before the Court for an aggravated break and enter in company committed on 1 August 2014. For that offence he was sentenced to 15 months’ probation under the supervision of Juvenile Justice.   He was also sentenced to 14 months’ probation for steal from the person.

26. On 10 September, 17 September and 28 September 2014 he committed three further break, enter and steal offences (H58915826 sequences 1 and 2 and H 57849712 sequence 13). Those offences were committed within weeks of being placed on the bonds and probation. On 30 October 2014 he was arrested and placed in custody.

27. On 18 November 2014 the young person was again before the Court on a number of charges. For one of those offences not dealt with by way of a caution, destroy or damage property, he was given a six month s 33 bond which included a condition of obeying all reasonable directions of his mother. For the offence of break and enter a dwelling house with intent he was given a s 33 bond for 12 months with a condition also to obey all reasonable directions of his mother.

28. On 1 December he came before the Court partly for a call up on earlier conditional liberty and also to have new offences dealt with.    In respect of being    called up on a charge of steal from the person and a charge of aggravated break and enter with intent in company he was given a three months control order from 1 December 2014 to 28 February 2015.

29. On the same day he was given a six months control order for driving a conveyance taken without the consent of the owner and for driving in a speed or manner dangerous. The control order was from 1 November 2014 to 30 April 2015. An appeal to the District Court was dismissed.

30. On the same day he received a 12 month control order for break, enter and steal committed on 30 October 2014 at a time when he was on probation and the bond imposed on 8 September 2014. The 12 month control order commenced 1 November 2014 and expired 31 October 2015 with a non-parole period expiring 30 April 2015.

31. On the same day he was given 12 months’ probation    under the supervision of Juvenile Justice for having goods in personal custody suspected of being stolen, and probation for two years under the supervision of Juvenile Justice for taking and driving a conveyance without the consent of the owner. Finally on that same day he was given a s 33 bond for six months for having goods in custody suspected of being stolen and for resisting an officer in the course of the officer’s duty.

32. All appeals in respect of those sentences were dismissed by the District Court.

33. On 15 December 2014 he was before Moree Children’s Court. This was at a time when he had been sent to live with his aunt in Brisbane but had gone to Moree to see some other members of his family. He was placed on a 12 month s 33 bond for larceny, destroy or damage property and enter enclosed lands without lawful excuse.

34. On 30 April 2015 he was released to 6 months’ parole on the control order imposed on 1 December 2014. On 6 May 2015 he then committed the most serious of the offences under appeal, the aggravated break and enter (H 58712865 – sequence 1). At the time of that offence he was on the three forms of conditional liberty imposed on 8 September 2014, the two imposed on 18 November 2014, the three imposed on 1 December 2014 together with being on parole from the control order imposed on that day and on the 12 month bond imposed on 15 December 2014.

20. On 9 May 2015 he was arrested and placed back in custody, bail refused. On 16 June 2015 a new bail plan was put in place. According to the report from Juvenile Justice he breached his parole on 2 July 2015 and breached all other conditions of his liberty on 20 July 2015. On 31 July 2015 he committed the offence of resisting officer in the execution of his duty whilst being on multiple forms of conditional liberty imposed on 8 September 2014, 18 November 2014, 1 December 2014 and 15 December 2014.

21. It was in the light of that history that the sentence under appeal was imposed.

22. Mr Wilson of counsel who appeared for the young person did not contend that no control order should have been imposed in the circumstances. His principal points were that the non-parole period imposed was too long particularly when an extended period under supervision would be necessary for the young person in his circumstances and also that the learned primary judge did not take into account the fact that the young person had spent periods of time in pre-sentence custody referable to the offences for which he was sentenced. He submitted also that the offence committed on 17 January 2012 being the first offence in the schedule at [2] above was an offence committed by the young person when he was ten years of age and was not in the circumstances an offence for which a custodial sentence would ever have been imposed. This was because of the rebuttable presumption of doli incapax and the fact that 10 was the youngest age of criminal responsibility. He submitted that it was inappropriate that such an offence should have been included in the offences in respect of which an aggregate sentence was ordered.

23. A number of matters can be accepted in the young person’s favour. First, he has a significant intellectual deficit which results in problems in the area identified by Ms Hare and more particularly set out at [16]-[19] above. The relevance of that is more particularly explained by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177]-[178]. Secondly, the offences were largely historical offences for which the young person was sentenced. Clear evidence of his involvement appears to have only been identified when he was fingerprinted after turning 14. The first of the offences, as noted, was committed when he was aged ten, three of them were committed when he was aged 12 and the bulk of them were committed when he was aged 13. Special principles apply in relation to young offenders and are set out in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[26] and AI v R; R v SB and AI [2011] NSWCCA 95 at [67]-[69].

24. Whilst regard must be had to the young person’s youth and his intellectual and emotional difficulties the protection of the community looms large as a factor in this matter. The number of offences and the offending whilst on forms of conditional liberty leaves no alternative to incarceration. The issue is, however, whether the overall term of the control order was too long and whether the non-parole period should have been shortened regardless of the length of the overall sentence.

25. I have reached the view that that neither the two year control order nor the non-parole period was appropriate in the circumstances. As to the two year period, the young person pleaded guilty to the offences. He should receive some benefit for those pleas (s 33B Children (Criminal Proceedings) Act 1987 (NSW)) although it must be said that the fingerprint evidence meant the case against him was very strong. Apart from a small reduction for those pleas I would not otherwise reduce the length of the control order because of the extent and the circumstances of the offending.

26. However, the non-parole period was a very considerable increase on any sentence the young person had previously undergone. Although he was sentenced for a large number of offences, a number of them had taken place some years earlier and at a time when he had little on his record. Furthermore, account should have been taken of the period in pre-sentence custody. I accept the suggestion made by counsel for the young person that the non-parole period on the control order should be reduced to a period of 12 months.

27. The young person is in need of considerable assistance to ensure that he does not again offend. That process is likely to be helped by a lengthy period under supervision. I raised that matter with counsel for the young person in the context of possibly giving a Parker warning so that some form of supervision could be put in place by the imposition of a form of conditional liberty that would extend beyond the period of the control order. If, for example, the first offence committed on 17 January 2012 did not form part of the aggregate sentence it would be open to the Court to impose a bond in relation to that matter.

28. Supervision would be by Juvenile Justice but there is evidence also of assistance that can be provided from the Department of Family and Community Services.

29. When the young person’s record is examined it seems to me that not only the offence committed on 17 January 2012 but also the three offences committed in May and September 2013 (H 57849712 sequences 2, 3 and 4) should not be regarded as sentences for which it was appropriate to impose a control order. It would, however, be appropriate to impose a bond in relation to those offences with the bond extending beyond the term of the control order with the condition that he be subject to the supervision of Juvenile Justice. The bond will be for a period of 2 years from today.

30. The young person served two periods of pre-sentence custody. The first period from 9 May 2015 to 15 June 2015 (38 days) was solely referable to the offence of aggravated break and enter. The second period from 1 August 2015 to 14 September 2015 (45 days) was referable not only to the offences the subject of the appeal but also to his revoked parole. I consider that the control order should be backdated by 60 days (38 + (1/2 x 45 = 22)) so that it commences on 16 July 2015.

31. The orders I make are:

1. Extend time to appeal to 14 December 2015;

2. The sentence imposed on the young person by the Children’s Court at Campbelltown on 14 September 2015 is set aside. In lieu thereof the young person is sentenced as follows:

1. For the offences H 57849712 Sequences 5 to 13, H 58915826 Sequences 1 and 2, H 58712865 Sequence 1 and H 59456116 Sequence 4 the young person is sentenced to an aggregate sentence of a control order for 1 year and 10 months commencing 16 July 2015 and expiring 15 May 2017 with a non-parole period of 12 months expiring 15 July 2016;

2. For the offences H 57849712 Sequences 1 to 4 direct the young person to enter into a good behaviour bond for a period of 2 years. In addition to the conditions imposed by s 33(1A) of the Children (Criminal Proceedings) Act 1987 (NSW) it is a condition of the bond that the young person accept the supervision of Juvenile Justice and the supervision of any other organisation or person directed by Juvenile Justice.

3. The indicative sentences for the offences included in the aggregate sentence are as follows:

1. For each of the offences H 57849712 Sequences 5 to 13 and H 58915826 Sequences 1 and 2 – one year;

2. For the offence H 58712865 Sequence 1 – one year three months;

3. For the offence H 59456116 Sequence 4 – three months.

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Decision last updated: 26 May 2016