Rd v D.P.P

[2009] NSWDC 80

CITATION:	RD v D.P.P [2009] NSWDC 80
HEARING DATE(S):	13/03/09 and 16/03/09
JUDGMENT DATE:	18 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Granted S.33 (1) (c2) Children (Criminal Proceedings) Act conditional bail
CATCHWORDS:	Criminal Law - Appeal - Severity - from Childrens Court - Aggravated Break Enter and Steal - numerous driving offences - serious risk taking behaviour - Aboboriginal juvenile - poor peer contacts.
PARTIES:	RD Director of Public Prosecution
FILE NUMBER(S):	2008/00016144
SOLICITORS:	Crown: Ms K Healey Defence: Ms K Biffin

JUDGMENT
1. This appellant is a juvenile. In any report of these proceedings, he is not to be identified.
2. On 2 September, 2008 at Moree Children's Court, he came before the court on 32 charges comprised of 32 offences; 8 serious driving offences and 24 criminal offices which I would classify as serious. All of the offences were committed whilst he was on a bond. He was a one man crime wave.
3. Magistrate Richardson sentenced him to 2 years 7 months control order with a non-parole to expire when 24 months had been served.
4. He seeks to appeal the sentences and the disqualification periods imposed for the driving offences and to appeal the sentence imposed for the most serious of the aggravated break, enter and steal with intent to commit an indictable offence.
5. Whilst it is clear his Honour, in setting the head sentence of a control order of 2 years and 7 months for the aggravated break and enter, that is sequence 1 of 32 offences, was intending to set a sentence that reflected the totality of criminality his Honour was then dealing. Regrettably his Honour erred. The jurisdictional limit for any one offence in the Children's Court is two years. Consequently that sentence will need to be marked downwards when I finalise this matter.
6. The eight driving offences constitute four of driving whilst disqualified, three of driving at a speed and in a manner dangerous to the public and one of driving under the influence of a drug and/or alcohol; probably both.
7. The circumstances of these offences is that they all occurred over a six day period in January, 2008. The offences are aggravated in that the offender was on a bond. The offences occurred when he was fleeing crime scenes in which he was the perpetrator or one of the perpetrators of the relevant offence.
8. He was driving a vehicle that was not his own. The offence on 21 January occurred in circumstances of a police pursuit. The offences were on country roads at night when kangaroos or other animals could have been on the highway and on all occasions he was not in a sober state when driving. That he received only four months control orders for the driving offences, suggested a lenient approach by Magistrate Richardson.
9. The complaint founding the appeal is not about the actual sentence imposed, but the fact that these offences carry a statutory period of disqualification.
10. The young person now realises that a disqualification until 2017 will impose no end of holes for his career path and social life. In that sense they constitute a handicap to him. While I have not closed my mind to the possibility of giving some amelioration of the disqualification period, it cannot, in the circumstances of those offences, be very much. But assuming that he is successful in the rehabilitation task, I do take the view he ought to get some reward.
11. His counsel sought a section 33 (1) (c2) bail for the applicant to give him an opportunity to demonstrate that he can rehabilitate and for me to assess his capacity and prospects of rehabilitation.
12. On my count, the applicant has been serving this control order for some 14 months.
13. Given the high level of criminal conduct disclosed by each of these driving offences, the immense danger to other occupants of vehicles that may have been on the road and the level of danger to himself and others in his vehicle and the other features of aggravation I have referred to, the convictions must stand on the driving matters, save and except for what I said earlier that in the event of successful completion of this bail he is entitled, in my view to some reward.
14. If there had been an injury, say a loss of life or bodily limb to him or any of the others, he would then understand when young people commit crime there will be long term effects. Sad though it be that he cannot drive until 2017, by comparison with other potential long term effects, this is also a long term effect of his criminal behaviour. It is a handicap he must bear in employment and social life until 2017 or such shorter period as I ultimately determine.
15. The aggravated break and enter was committed on 21 January, 2008 that occurred in these circumstances. Between 12.30 am and 5 am on 21 January, 2008, he travelled to 24 Hassel Street, Moree, entered the rear yard of those premises and walked to a rear window. At the rear window he removed a flyscreen that was on a kitchen window. The window was locked but he manipulated it and opened the window. He entered the premises, went through several rooms, including the bedroom where a victim, JR, was lying asleep. He stole $50 in Australian currency, a fake gold ring, a set of keys to a motor vehicle, which was a yellow 2006 Suzuki Swift. He then left the premises in the same time way he came in.
16. The offence is called an aggravated form of offence because somebody was present there. The reason that that makes it a more serious offence is that had this woman woken up and seen a man, particularly a man of his build in the room, she would rightly have been terrified. The trauma to her would have been great. If it had been a man, there may have been a fight and someone may have been injured. It is for that reason, the potential for greater harm to come, that the matter is said to be aggravated. 17. Standing on its own, this offence, however, would not have attracted a two year control order. But, as I have said, Magistrate Richardson used it as a mechanism for dealing with the total criminality before him. I will have to bring the sentence for it to below 24 months when I finally come to finalise these matters. The question is whether I interfere with the non-parole period.
Subjective Matters
18. RD was 16 years and 3 months at the time of the offending I am dealing with. For reasons that no one appears to have investigated thoroughly, he has been difficult to manage from a young age. There were behavioural issues through primary school and worse behavioural issues in secondary, resulting in suspensions. To his credit, during the suspensions, he did attend the PCYC programmes in 2005 in fitness, cooking and work skills whilst on suspension.
19. I should say that he presents as a young, fit, athletic looking man. What his cooking or work skills are like, I do not know. Hopefully some information will come to me on that in the next few months.
20. Meanwhile, in 2004, he was coming to the attention of police more and more frequently. He was before the court on two occasions in 2004, three occasions in 2005, two occasions in 2006 and one occasion in 2007 when a control order of 5 months non-parole period was imposed on him, and one occasion in 2008 for the 32 matters I referred to earlier.
21. He has now been in custody for 14 months on 20th of this month, which I think is a Saturday.
22. The Juvenile Justice report and the psychological court report presented at the appeal hearing indicates some maturing, growing insight by him into his offending. For example, he wanted to relocate to Nambucca Heads to his 24/25 year old brother, Jeremy. That was a sensible move. Regrettably, it cannot be achieved at least at this time.
23. He has acquired a Green Card, which is now called a White Card, whilst in custody. He says he works well with his hands, likes mechanical work and has worked in cotton gins. He has a particular interest in commercial cleaning and studied one unit of that at TAFE and would be willing to pursue that course further at TAFE, although I am not sure if it is offered at the Moree TAFE.
24. He probably has an inquiring mind, if anybody gave him a chance to exercise it. He now appears to recognise he has serious problems with alcohol and drugs. I think he is beginning to understand how they are contributing to his extreme level of risk taking. I do not know that he likes it when I call him a risk taker, but I am trying to demonstrate to him why he presents as one.
25. Hopefully as he matures he will become less of a risk taker and be more cautious and considered in decisions he makes.
26. He was desirous to break connections with his Moree peer group. As matters now stand, that cannot be achieved. He does say that of his Moree peer group, many of them are in custody.
27. After some consideration I have decided that he must be given a line of responsibility somewhere in all this and I am giving it to him in respect of those he chooses to associate with. He knows, and indeed has blamed, in part, them for the mess he was in. If he cannot be responsible, that history may repeat itself. If he can be responsible, his chances of rehabilitation become the greater.
28. He has indicated he enjoys sport. He is willing to seek out a sporting team in Moree and do all he can do to participate in competitive sport in the area. This is likely to place him in the path of other young sportsmen, hopefully sportsmen who are not drug addicts or alcoholics. Again some level of responsibility is entrusted to him to choose carefully those he chooses to associate with outside the sporting ring.
29. He has an appalling record of accepting supervision. Hopefully he now understands that those who supervise him are the court's eyes and ears. It is through his supervisors I will learn how he is progressing, what areas will need to be addressed at future progress reports and what areas are progressing well.
30. In his evidence he requested counselling for drug and alcohol rehabilitation. That he seeks such counselling is a positive sign. In the programme that Juvenile Justice has put before me today, the one thing he will have plenty of, I suspect, is counselling.
31. He has agreed to do his best not to consume alcohol and drugs for the next six months. He has agreed to accept random urine analysis for the detection of illicit drugs and alcohol. Regrettably that cannot be done through Juvenile Justice and my memory is the Aboriginal Medical Service also declined to participate in that. I do believe, however, that six visits are available to a local GP and I will have that explored on the medical health scheme.
32. He should understand, if he does not already know, that while some drugs may dissipate within 24 to 36 hours, cannabis, which is the most frequently consumed drug by young Aboriginal men, will stay in the body for two to three weeks. It can be detected on a random urine test, even one that is scheduled.
33. I have determined to place him on very strict bail conditions. While I am prepared to give him one chance to succeed in all the tasks I have set, I have also told him my most important consideration is the protection of the community from offenders.
34. He has agreed that if he consumes alcohol or illicit drugs just once, if he commits one driving or one criminal offence, if he refuses to accept supervision by Juvenile Justice, or direction from his family just once, he is liable to be returned to custody.
35. I have taken great pains to ask him if he is up to all this and he says he is.
36. I am prepared to accept what he says and grant him bail starting from today.
The bail conditions will be these.
· That he will be of good behaviour.
· That he reside at his parents address, 10 ------ Avenue, Moree.
· That he will accept supervision by Juvenile Justice and accept all reasonable directions from his case manager with Juvenile Justice.
· That he will pursue the drug and alcohol counselling as set out in the Juvenile Justice report of 18 March, 2009.
· That he will accept the Forensic Mental Health programme for on-going psychological intervention as set out in the Juvenile Justice report of 18 March, 2009.
· That he will accept the Education/Employment Programme, "Links To Learning", as set out in the Juvenile Justice programme of 18 March, 2009.
· That he will accept the Post-Release Support Programme, "Pathfinders", as set out in the Juvenile Justice report of 18 March,2009.
· That he will abstain from the consumption of all alcoholic beverages for the first 6 months of the bail period. After that he will have a chance to drink responsibly.
· He will abstain from the consumption of all non prescribed illicit drugs for the duration of the bail period.
· That he will submit to urine analysis testing as directed by his case manager, assuming such a service is available from the local GP on the medical health schemes.
· Refusal to participate in a drug and alcohol test will be deemed a breach of bail.
· Supplying urine sourced from another person will be deemed a breach of bail.
· He will do all he can to maintain attendance at TAFE.
· He is to participate in a community sporting club activity of his own choice, which will require him to attend all training sessions as directed by the coach of his selected team.
· He is to seek to obtain selection into a team, which is the best that he can make and in the event he is successful, to do all he can to maintain selection.
· He is to seek assistance with a Commonwealth employment agency and enrol with a personal assistance programme, subject to his case manager agreeing that that is a proper thing to do.
· He is to do all he can to maintain employment unless his case manager requires him to remain in the learning programme.
· He is to provide proof of completing and/or participating in each of the activities that form part of bail conditions at the time of progress reports.
· I require that I be notified of any breach of the bail within 48 hours.
37. He can enter bail before the registry.
38. I will set a date seven weeks hence and I will do it by video. The appellant will have to come to this court and I will be in another court.
39. I suggest you come and see Ms Biffin, a day or so before, because you have to provide some proof as to what has been happened. You should try to impress me.
40. I will stand it over to 8th May, 2009.