Regina v MM

[2007] NSWDC 275

CITATION:	Regina v MM [2007] NSWDC 275 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21/02/2007, 02/03/2007
JUDGMENT DATE:	5 March 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Sentence varied, order made under s19(1) of the Children (Criminal Proceedings) Act 1987 directing that the whole of the balance of the sentence be served by the offender as a juvenile.
CATCHWORDS:	Juvenile at time of offences - First time in adult custody - Sentence appeal in respect of four offences - Break, enter and steal (2) - Receiving stolen property - Larceny <$2,000 - On parole at time of offences - Substantial criminal history for a juvenile - Traumatic and disadvantaged childhood - Offender is the child of heroin addicts who are now both deceased - Offender has a serious heroin addiction - Little empathy for victims or insight into offending behaviour - Sentenced varied to allow the offender to serve the balance of sentence as a juvenile
LEGISLATION CITED:	s11 Crimes (Local Courts) Appeal and Review Act 2001 s33(1)(g) Children (Criminal Proceedings) Act 1987 s19(1) Children (Criminal Proceedings) Act 1987 Crimes Act 1900
CASES CITED:	Regina v Doan (2000) 50 NSWLR 115
PARTIES:	Regina MM
FILE NUMBER(S):	07/22/3039
SOLICITORS:	Mr Ko for the ODPP Mr Maarraoui for the offender

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JUDGMENT

1. This is an appeal to this court against sentence, brought pursuant to s 11 of the Crimes (Local Courts) Appeal and Review Act 2001. It is brought by a young man who was under eighteen when he committed the relevant offences and in order to preserve his anonymity and support the requirement not to publicise his name, I propose to refer to him in these reasons as MM.

2. The appeal has been by way of a rehearing with no additional evidence tendered, apart from the material that was before the magistrate which I marked exhibit A and the transcript before the magistrate which I marked exhibit B.

3. MM was convicted before her Honour Magistrate Hannam on 11 January 2007 of seven offences. In respect of three of those offences, the time has been served and the appeal is no longer pursued. So the appeal is limited to four offences. They are convictions in respect of the following matters.

4. A conviction of break enter and steal on 20 June 2005 at Chippendale in respect of which her Honour sentenced MM pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 to a control order for twenty months with a non parole period of twelve months. The period was to commence on 26 October 2006 and the non parole period to expire on 25 October 2007.

5. The next conviction was in respect of a break enter and steal which was committed at Kirribilli on 5 August 2005. In respect of that matter her Honour sentenced MM under the same section to a control order for twenty months with a non parole period of twelve months which was concurrent with the non parole period for the previous sentence.

6. There were two less serious offences: an offence of receiving stolen property committed on 8 September 2005 at Granville in respect of which her Honour sentenced MM to a control order for six months concurrent with the previous control orders and an offence of larceny of property to a value of less than $2,000 committed on 14 September 2005 at Granville in respect of which her Honour sentenced MM to a control order for six months concurrent with the other control orders. It follows that the six month control orders will expire on 25 April 2007.

7. It was agreed by the parties that the facts of these offences were accurately stated by her Honour when she delivered her judgment at the Local Court and I quote from the transcript in the following terms.

“The first charge in time relates to the young person breaking and entering a locked home unit in Chippendale and stealing two DVD players and seven DVDs.The young person’s fingerprints were located on the damaged sliding door and the matter came to light some time after the young person had commenced on the Youth Drug Court Program.

The next offence in time occurred on 5 August 2005 and on this occasion the young person broke into a home unit in Kirribilli gaining access by removing a bedroom window from its frame. Inside those premises, the young person has stolen $9,500 worth of property belonging to the resident including a camera, computer, watch, phone and electronic items and once again the young person’s fingerprints were located on the window that was removed and the matter came to light later.

The third group of offences and I note that as each occurred when the young person was approaching the age of eighteen. The third group of offences were on 29 August 2005 and in that matter that attention of the police was drawn to the young person by two women who said that he had stolen their purse.

In the process of the young person’s subsequent arrest, he struggled with one officer, resisted arrest and also lashed out with his foot and hit one of the officers in the head. When he was searched, the young person was found to have a red Nokia mobile phone in his custody which he couldn’t account for.

The final group of matters relate to offences on two dates in September 2005. On 8 September the police located the young person with a number of other young people trying to sell a laptop computer outside a bakery in Harris Park and this computer had previously been stolen from premises in Granville and at the time that he is trying to sell it, the young person later said that he knew that it was stolen.

On 14 September 2005 a few days later the young person entered the yard of a residential premises in Harris Park and forced the rear window of a vehicle parked there and removed a computer from the premises which was later found hanging from a clothes line.

At the time of all of the offences the young person was on parole in respect of an offence of break enter and steal and this is an aggravating factor for all matters”.

8. I say here that in reciting those facts from the learned Magistrate’s judgment I have inadvertently included three offences noted as the third group which occurred on 29 August 2005 and in respect of which I have earlier said there is no appeal pursued.

9. Included amongst the papers in exhibit A is MM’s criminal record. It is a long criminal record containing numerous entries. Some of them I note are as follows.

a) On 18 December 2001 in the Taree Children’s Court, MM was convicted of assaulting an officer in the execution of duty, larceny and resisting arrest and was made subject to probation orders.
b) On 18 June 2002 at Taree Local Court, he was convicted of resisting an officer in the execution of their duty and breaking and entering in respect of which he received control orders under s 33(1)(g) of the Children (Criminal Proceedings) Act for one month and ten months respectively.
c) On 18 June 2002 MM was convicted in the Taree Local Court of breaking and entering and stealing and was made subject to a control order for ten months which commenced on 18 June 2002. There was a non parole period of four months which concluded on 17 April 2003. An appeal to the Campbelltown District Court in respect of that sentence was unsuccessful.
d) On 21 December 2004 at Bidura Children’s Court MM was convicted of a break enter and stealing and was made the subject of a control order for eighteen months until 2 March 2006 with a non parole period of eleven months which expired on 2 August 2005.

10. A brief chronology of relevant events seems to me to be as follows. I commence on 21 December 2004 when he received the control order of eighteen months from 3 September 2004. Then on 20 June 2005 he committed the Chippendale break enter and steal. On 2 August 2005 the non parole period in respect of the sentence imposed on 21 December 2004 expired. On 5 August 2005, some three days later, MM committed the break enter and steal at Kirribilli. On 29 August 2005 he committed the assault, resist arrest and goods in custody offences which were not the subject of an appeal. On 8 September 2005 he committed the offence of receiving at Granville. On 14 September 2005 he committed the larceny offence at Granville.

11. On 30 January 2006 at Cobham Youth Drug Court his proceedings were adjourned for the assault, resist arrest and goods in custody charges so that he could enter on a drug program. Proceedings were adjourned to 27 July 2006. On 8 March 2006 Newtown Local Court remanded to MM Bidura Local Court in respect of the Kirribilli break enter and steal and on 9 March 2006 Bidura Children’s Court remanded MM to the Youth Drug Court in respect of the Kirribilli break enter and steal. On 31 July 2006 at Cobham Youth Drug Court proceedings were adjourned for MM to continue on his program and the proceedings were adjourned to 26 October 2006. Those proceedings were in respect of the assault, resist arrest and goods in custody. On the same day, the same court made the same order in respect of the break enter and steal at Kirribilli, and then on 11 January 2007 Magistrate Hannam made the orders at Bidura Youth Drug Court which are the subject of this appeal.

12. I have had regard to two reports by the New South Wales Department of Juvenile Justice and a report from the Salvation Army Youth Link which were before her Honour. The earlier report by the Department of Juvenile Justice dated 20 December 2005 recorded MM’s very sad and unfortunate personal history. He was born to a mother who was addicted to heroin and who left him in hospital after he was born. It was reported that his mother later died of a heroin overdose and that his father whom he did not know also died of a heroin overdose.

13. It is acknowledged that MM has not surprisingly had a problem for a good part of his young life. Drugs and his dependency on drugs are factors which have driven him to the offences which he has committed and which are the subject of this appeal. Whilst that drug dependency is relevant to understand the offences, it does not in any way provide an excuse to what he has done.

14. Going back to the report, it says that he has had a very difficult educational background, an extensive history of drug taking and notes that he has had involvement with the Department of Juvenile Justice for quite some time and has received various supervision and control orders. It noted that his compliance was inconsistent and that he had failed to attend appointments with the author of that report. The report noted that MM presents as a young person who has suffered a very traumatic life. He has had difficulty in conforming to the rules of society and has been marginalised from most activities during his childhood and adolescence. It noted that MM took responsibility for most of his offences at that time but had displayed very little victim empathy.

15. Turning to the more recent report from the Department of Juvenile Justice, MM was reluctant to discuss with the author of that report the facts relating to the offences which are before me indicating that he wished to speak to his Legal Aid Solicitor. That was his right and is understandable.

16. The report noted his appearance before the Bidura Youth Drug Court on 12 January which was adjourned to 30 January when the orders were made which I have referred to previously. The report notes that on 30 January 2006 he was officially accepted into the Youth Drug and Alcohol Court Program and given bail and placed on a Griffith Remand for six months. However it went on to note that he had absconded from placements on various occasions and that his response to direction and supervision was sporadic.

17. It noted that warrants for breach of bail on five occasions were issued and it noted that he had spent significant periods of time in custody during participation in this program. The report notes that MM appears to have limited insight into his offending behaviour and seems to display limited interest in developing insights into his concerns, nor does he seem to display or voice victim empathy or remorse.

18. The report noted an encouraging response to the Widgelli program which MM undertook between 4 July 2006 and 25 August 2006. It noted that he voiced clear and concise goals for his future and presented as motivated and positive. However, it noted after completing it, he gradually resumed misusing substances but limited himself to cannabis instead of heroin.

19. He was placed at Lynden House residential rehabilitation service on 13 December 2006 but was discharged from this program the next day for allegedly threatening staff.

20. It noted a high degree of difficulty maintaining abstinence from substance misuse for any real period of time. It noted understandably that MM has developed limited living skills. It assessed him as an immature young man who appears to have limited insight into his offending and substance misuse concerns and appears to have great difficulty maintaining focus on tasks and addressing his presenting issues, and an unrealistic idea about how he can change his lifestyle. But it did note a capacity to be able to think clearly and complete set tasks.

21. It noted his overall performance as appearing to have been somewhat sporadic and fluctuated from being reasonably compliant to absconding and regularly complaining whilst pushing boundaries and limits. It then went onto consider sentencing options.

22. I have also read the participant final report issued by Salvation Army Youth Link.

23. I turn to the factors which are relevant to the sentencing exercise which is a fresh exercise for me although I can take into account as an appellate court matters which the magistrate took into account in respect of which her Honour may have had some advantage.

24. I commence with the submission made by Mr Maarraoui on MM’s behalf that the maximum sentence in this case was for two years so that it appears that her Honour was regarding it as a worst case category. In fact the maximum sentence for the offence of break enter and steal pursuant to s 112 of the Crimes Act is fourteen years. The restriction of two years is the result of s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 which restricts the period of time to two years in respect of which a Children’s Court may make an order committing the person to the control of the Minister, that is a control order.

25. It is of course the case that that is the practical maximum that was available to the learned magistrate but it is not the case in my opinion that it follows from the sentence of twenty months imposed that her Honour must have regarded it as towards the worst category of case.

26. In this regard, I refer to the Court of Criminal Appeal’s judgment in Regina v Doan (2000) 50 NSWLR 115. Mr Justice Grove with whom the Chief Justice and Justice Kirby agreed said as follows at 123 [35]:

“The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a ‘worst case’.”

27. In my opinion, the sentence of twenty months, assuming that her Honour sentenced in accordance with principle, was one which did not necessarily reflect that her Honour regarded it as close to being one of the worst cases. I should add that I regard the jurisdictional limit imposed on sentences which can be imposed by magistrates in the Children’s Court under the Children (Criminal Proceedings) Act as a jurisdictional limit and not a maximum penalty.

28. A second factor which must be taken into account and which becomes apparent from the chronology that I recited is that MM was on conditional liberty when he committed the offences which are before me. In other words, he had already been sentenced or was on parole at the time that he committed these offences. He was therefore in circumstances where he was given liberty by the courts in order to give him an opportunity to rehabilitate himself. I cannot but observe that one of the offences occurred some three days after his non parole period was finished.

29. A further factor that has to be taken into account is MM’s criminal record. It is not good. It includes offences for break enter and steal. A factor which has to be taken into account here is that, so far as personal deterrence is concerned, it must be made clear to MM that it is not acceptable to break into people’s houses and/or steal things in order to satisfy his drug habit. I regard it as an important aspect of sentencing in this matter that the public need to be protected from the activities of persons breaking entering and stealing as a result of drug related offences.

30. I therefore conclude that a sentence of twenty months control order in respect of the two break enter and steal offences was appropriate and I myself reach the same conclusion independently regarding those sentences and I reach the same conclusion regarding the non parole periods as well as the sentences in respect of the larceny and receiving offences.

31. However, these are matters in respect of which, I am informed, MM is serving his custody in an adult prison and this is for the first time. In my opinion it is appropriate for MM, being aged nineteen, to serve the balance of his term as a juvenile offender.

32. I therefore determine this appeal against sentence by varying the sentence imposed by the learned Local Court Magistrate by making an order pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 directing that the whole of the balance of the term of the control order be served by MM as a juvenile offender.

Anything else Mr Maarraoui?

MAARRAOUI: No, your Honour.

HIS HONOUR: Mr Ko?

KO: No, your Honour.

oOo

21/05/2008 - Formatting error - Paragraph(s) 1