Smyth v AM
[2021] VSC 492
•12 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0054
| LEIGH SMYTH | Applicant |
| v | |
| AM | Respondent |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 August 2021 |
DATE OF JUDGMENT: | 12 August 2021 |
CASE MAY BE CITED AS: | Smyth v AM |
MEDIUM NEUTRAL CITATION: | [2021] VSC 492 |
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CRIMINAL LAW – Application for an order permitting retention of a forensic sample following conviction – Respondent a child at time forensic sample taken – Now aged 19 – Serious offending – Criminal history – Making of retention order justified in the circumstances – Crimes Act 1958 ss 464U, 464ZFB.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Gibson QC with Ms S Lenthall | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr T Marsh | Victoria Legal Aid |
HIS HONOUR:
Introduction
Following the conviction of the respondent on a charge of robbery, the applicant, Detective Leading Senior Constable Smyth, applies for an order pursuant to s 464ZFB of the Crimes Act 1958 (‘the Act’) permitting the retention of a forensic sample taken from the respondent on 8 November 2019 (‘retention order’). The application is opposed by the respondent.
Background
The robbery to which the respondent pleaded guilty occurred on 28 September 2019 in circumstances dealt with fully in the sentence I imposed upon him on 2 July 2021.[1] It is unnecessary to detail those circumstances here. Suffice to say that the respondent and another male, Chol Kur (‘Kur’), along with a third male named Joshua Horton (‘Horton’), were in a motor vehicle being driven by a young female and containing two other young females in the Kings Park area. The respondent and Kur decided to carry out a robbery upon two young males they observed at a bus stop, the particular focus of their intended crime, it seems, being a cap being worn by one of the victims. During the course of the robbery, Horton got out of the vehicle and stabbed both of the victims. One of them died. The other was seriously injured. The respondent and Kur completed the robbery by the removal of a cap from one of those who had been stabbed.
[1]The Queen v AM [2021] VSC 397.
The respondent was arrested and charged with murder and other offences on 13 October 2019. On 4 November 2019, the respondent then being a child, an application was made by the police to the Children’s Court for an order under s 464U(7) of the Act that the respondent undergo a compulsory procedure. Such an order was made, and the respondent provided a buccal swab four days later on 8 November 2019. I anticipate that a DNA profile was obtained from the forensic sample provided by the respondent. What is now sought by the applicant is an order permitting the retention of the sample taken and the material and information derived from it.
Long after the respondent was charged with murder, the prosecution accepted a plea of guilty from him and Kur to a single charge of robbery in full satisfaction of the charges previously contained on the indictment. They both pleaded guilty to this charge. The respondent was sentenced by me on 2 July 2021 to a youth supervision order. A conviction was recorded.
The law
Section 464U of the Act sets out procedures governing the taking of forensic samples from children. The section provides, in part, as follows:
(2)A police officer must not request a child aged 10 years or more but under 18 years who—
(a) is suspected of having committed; or
(b) has been charged with; or
(c) has been summonsed to answer to a charge for—
an offence, whether indictable or summary, to undergo a forensic procedure or request that a compulsory procedure be conducted on the child unless the Children's Court has made an order under subsection (7) or section 464V(5).
(3)A police officer may apply to the Children's Court for an order under subsection (7) if the child—
…
(b)has been charged with an indictable offence against the person at common law or an indictable offence under Division 1 of Part I or under section 75, 75A, 76, 77, 197 (in circumstances where the offence is charged as arson), 197A, 249, 250, 251, 317, 317A or 318 or under section 71, 71AA, 72 or 72A of the Drugs, Poisons and Controlled Substances Act 1981 or under section 71, 72(1)(ab) or 72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001.
…
(7)The Children's Court may make an order directing a child aged 10 years or more but under 18 years to undergo a compulsory procedure if satisfied on the balance of probabilities that—
(a) the child is a person referred to in subsection (3)(a) or (b); and
(b)there are reasonable grounds to believe that the child has committed the offence in respect of which the application is made; and
(c)in the case of an application for a sample other than one referred to in paragraph (d), either—
(i)material reasonably believed to be from the body of a person who committed the offence has been found—
(A) at the scene of the offence; or
(B)on the victim of the offence or on anything reasonably believed to have been worn or carried by the victim when the offence was committed; or
(C)on an object or person reasonably believed to have been associated with the commission of the offence; or
(ii)there are reasonable grounds to believe that, because of the nature of the offence or injuries inflicted during the commission of the offence, material from the body or clothing of the victim is present—
(A)on the person who committed the offence or on anything reasonably believed to have been worn or carried by that person when the offence was committed; or
(B)on an object reasonably believed to have been associated with the commission of the offence; and
…
(f)there are reasonable grounds to believe that the conduct of the procedure on the child may tend to confirm or disprove his or her involvement in the commission of the offence; and
(g) in all the circumstances, the making of the order is justified.
(8)In considering whether the making of the order is justified, the court must take into account amongst other things—
(a)the seriousness of the circumstances surrounding the commission of the offence; and
(b)the alleged degree of participation by the child in the commission of the offence; and
(c) the age of the child.
Section 464ZFB of the Act relevantly provides:
(1)If at any time on or after the commencement of section 26 of the Crimes (Amendment) Act 1997—
(a)…a forensic procedure is conducted on a child in accordance with section 464U(7) …; and
(b) a court finds the child guilty of—
(i)the offence in respect of which …the forensic procedure was conducted; or
(ii)any other offence arising out of the same circumstances; or
(iii)any other offence in respect of which evidence obtained as a result of the … forensic procedure had probative value—
a police officer, at any time after the finding of guilt but not later than 6 months after the final determination of an appeal against conviction or sentence or the expiry of any appeal period in respect of the offence (whichever is the later), may apply to the court referred to in paragraph (b) or to the Children's Court for an order permitting the retention of any sample taken and any related material and information and the court may make an order accordingly.
…
(2) A court hearing an application under subsection (1) or (1A)—
(a)must take into account the seriousness of the circumstances of the offence in determining whether to make the order under subsection (1) or (1A), as the case requires; and
(b)must be satisfied that, in all the circumstances, the making of the order is justified; and
(c)may make such inquiries on oath or by affirmation or otherwise as it considers desirable.
…
(3)If a court makes an order under subsection (1) or (1A), it must give reasons for its decision and cause a copy of the order and reasons to be served on the person on whom the forensic procedure was conducted.
The applicant’s submissions
Mr Gibson QC, who appeared with Ms Lenthall for the applicant, drew the attention of the Court to the requirement in s 464ZFB(2) to take into account the seriousness of the circumstances of the relevant offence in determining whether to make the order sought. In this regard, he submitted that the offence was a serious one. He noted that what was sought was the retention of an existing sample, rather than the taking of a new sample. In those circumstances, as he put it, there would be no infringement of the rights or liberties of the respondent should the order be made, and no invasion of his bodily integrity. Mr Gibson submitted that DNA is a powerful tool in the investigation of serious crimes. Although not needed in this case, things would have been different had the driver of the motor vehicle containing the respondent not been prepared to identify the respondent as one of the offenders. Mr Gibson submitted that it is difficult to fathom any reason why the retention order should not be made. Things might be different had the respondent, while initially charged with murder, been dealt with only for a driving offence or some minor crime. However, he was dealt with for the serious crime of robbery which was directly related to the circumstances surrounding the killing.
In response to the submissions of Mr Marsh for the respondent, to which I will shortly turn, Mr Gibson pointed out that the fact the respondent was sentenced for a lesser crime than that the subject of the original order by the Children’s Court was of little moment because s 464ZFB(1) specifically permits the making of a retention order when the respondent has been found guilty of ‘any other offence arising out of the same circumstances’ as those of the principal offence.
Insofar as Mr Marsh relied on the unsophisticated nature of the robbery, Mr Gibson submitted that any such lack of sophistication did not detract from the seriousness of the crime or the likelihood that DNA evidence may have been important in the investigation.
Insofar as Mr Marsh relied on the sentencing principles applicable to children, and the fact that deterrence has no part to play in these, Mr Gibson submitted that the protection of the community should be a relevant consideration in the application.
In all of the circumstances, Mr Gibson submitted that the making of a retention order would be entirely justified.
Respondent’s submissions
In resisting the making of the retention order, Mr Marsh emphasised the fact that whilst the forensic sample was ordered when the respondent faced charges including murder, which justified the making of the order, he has now been dealt with on the much less serious charge of robbery. Mr Marsh questioned whether the forensic sample order would even have been made in the Children’s Court were that the charge upon which an application was based.
Mr Marsh submitted that the young age even now of the respondent was a relevant matter in the application, and more importantly, that when he had come before the Court for sentence, he fell to be sentenced, effectively, under the provisions of the Children, Youth and Families Act 2005. Under that regime, general deterrence plays no part. That would be a relevant matter to consider, therefore, when pondering one of the justifications which might be relied on for the taking or retention of a forensic sample.
Mr Marsh went on to submit that the offending in question was unsophisticated in nature. The very indicia which go to the brazenness of the offending would undermine the utility or importance of DNA in its investigation. No evidentiary benefit was in fact derived in this case from the taking of a forensic sample from the respondent.
Mr Marsh relied upon the respondent’s prospects of rehabilitation along with the above matters in support of his submission that I should decline to exercise my discretion to make a retention order.
Analysis
Little guidance is given in s 464ZFB(2) of the Act to a Court faced with an application for a retention order. I am required to take the seriousness of the relevant offence into account, and I am required to be satisfied that in all the circumstances, the making of the order is justified. No authorities on the issue were placed before me.
On the matter of the seriousness of the circumstances of the offending, I sentenced the respondent on the basis that the crime to which he had pleaded guilty was a serious one. I spelt out my reasons for that conclusion, noting the selection of innocent young targets, the concerning motivation for the crime which was no more than the desire of the offenders to exercise dominion over others perceived to be weaker, the persistence of the actions of the respondent and Kur in the face of justified resistance by the victims, and the callous and cowardly aspect of the completion of the crime after the stabbings.
Amongst the other relevant circumstances as I see them at the time of the application for the retention order are the fact that the respondent is now 19 years of age, that he has a criminal history including findings of guilt for three earlier robberies committed in company upon what may be described as soft targets, that he fled the scene of the current crime and was only identified as an offender because his friend was willing to assist the police, that he has shown no remorse for his offending, and that his prospects of rehabilitation cannot sensibly be considered to be overly encouraging in light of his proven past conduct.
The respondent has a short but troubling history of reasonably serious offending, including the current offending, of a type which may be amenable to the assistance which could be provided to law enforcement agencies by the availability of his DNA profile. In my view, the relatively unsophisticated nature of the current offence or offending of that nature says little about the prospect that DNA evidence might be an important feature in a future investigations. Furthermore, I do not consider that the fact that no evidentiary benefit was in fact derived by the prosecution in this case from the possession of the respondent’s DNA profile is a relevant consideration.
The fact that the respondent pleaded guilty to a lesser charge than that which was the subject of the original application for a forensic sample is no impediment to the making of a retention order. What is necessary is for the seriousness of the offence on which he was eventually sentenced to be taken into account.
It is difficult to see how an order permitting the retention of the respondent’s DNA profile could in any way impinge on his prospects of rehabilitation, or have any other deleterious effect upon him. On the other hand, should he continue to offend in future as he has shown himself willing to do in the past, the fact of Victoria Police being in possession of his DNA profile might be an important investigatory tool in the hands of the authorities. Furthermore, the knowledge the respondent will have of this fact could serve to deter him from future offending, and provide a measure of protection to the community.
I am satisfied that in all the circumstances, the making of a retention order is justified in this case.
Conclusion
I order, pursuant to s 464ZFB of the Act, that the forensic sample taken from the respondent and any related material and information may be permitted to be retained by Victoria Police.
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