DPP v Baker

1. A young person, who has been given the pseudonym “Myles Baker”, is before me for the purposes of sentence. The pseudonym is required as a result of the operation of s 712A of the Criminal Code 2002 (ACT). On 5 March 2025, he was arraigned on an indictment dated 2 September 2024 and entered pleas of guilty to the following counts in full satisfaction of the indictment: (a) Count 1: culpable drive causing death contrary to s 29(2) of the Crimes Act 1900 (ACT) (CH 2024/104). (b) Count 2: culpable drive causing death contrary to the same section (SC CAN 2024/166).

2. In relation to the first of these charges, an additional offence of drive a stolen motor vehicle (CH 2024/103) is to be taken into account pursuant to Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT).

3. The maximum sentence of imprisonment for the culpable driving charges is 14 years each. The maximum penalty for the charge to be taken into account under Pt 4.4 is five years.

4. In addition to the submissions made by the parties, I have also taken into account the submissions made by the Aboriginal and Torres Strait Islander Children and Young People Commissioner pursuant to s 74C of the Court Procedures Act 2004 (ACT).

Agreed Facts

5. A Statement of Facts was tendered, and the facts therein are agreed and contained within the prosecution tender bundle. They are summarised as follows.

6. On 17 January 2024, a Toyota Avalon motor vehicle was stolen from an address in Chisholm. The spare keys to the vehicle had been stolen at about 7pm by the offender and another young person whom I will refer to as “T”. At 9pm, the offender and a different young person, Joshua Stewart, returned to the premises and stole the vehicle. The offender drove the car away from the premises. The owner of the vehicle reported it missing to police.

7. The offender was aged 14 years and six months and had never held any driver licence.

8. The Barton Highway travels to the north-west and crosses the ACT border shortly after the turn off to Hall. Travelling in that direction just before the turn off to Hall, there is an intersection where Kuringa Drive comes in from the south-west and the road continues to the north-east as Clarrie Hermes Drive. At about 11:48pm the same evening, a woman, whom I will refer to as “C”, was driving her white Toyota Hilux north-west along the Barton Highway. Her vehicle had a front bull bar. C continued travelling north-west on the Barton Highway through a green light at the intersection that I have described. The conditions were a little bit wet. The intersection was well lit, and the road surface was asphalt, which was in good condition. At the time C proceeded through the green light, the offender was driving the Toyota Avalon south-west from Clarrie Hermes Drive towards Kuringa Drive. He was in the driver’s seat. Joshua Stewart, who was 19 years and nine months old, was in the front passenger seat. T, who was 14 years and four months old, was in the rear passenger seat on the right-hand side of the vehicle. Jeremiah Tama, who was 14 years and seven months old, was seated in the rear passenger seat on the left-hand side of the vehicle.

9. When C proceeded through the intersection, the green light was consistently green. C saw the Toyota Avalon coming in from the right. It was coming so fast that she could not stop before hitting it. A subsequent collision analysis indicated that the Toyota Avalon entered the intersection at no less than 71 km/h. Its speed at impact was between 57 and 60 km/h. The speed of the Toyota Hilux at the point of impact was between 57 and 64 km/h. There is a possibility that the Toyota Avalon was travelling at a higher speed prior to entering the intersection. It is not possible to make specific findings about the speed at which the vehicle had been travelling because the calculations would be affected by the timing and extent of the application of the brakes by the offender, about which there is insufficient evidence to make any finding sufficient for the calculations beyond reasonable doubt or on the balance of probabilities. While there was no evidence of braking at the scene, such as skid marks, the expert evidence indicated that some braking had been applied prior to the impact. Similarly, it is not possible to determine when the braking commenced.

10. The Toyota Hilux struck the middle of the Toyota Avalon, crushing the passenger side of the vehicle inwards.

11. As C sat in her vehicle, the offender came forward and banged on the driver’s side window, saying words to the effect of “arrest me now”, “it’s my fault”. She remained seated inside her vehicle until emergency services arrived.

12. Other people driving on the road stopped. They were approached by the offender and T, who were “hysterical”. They observed Jeremiah Tama on the ground and Joshua Stewart trapped in the front passenger seat of the vehicle. The offender was saying “it’s my fault, I’ve killed my best mate … I’ve just killed my mate”. One of the people heard the offender apologising to T, saying “mate it’s all my fault. It was my idea to steal the car”.

13. Another passerby phoned emergency services. Ambulance and police units arrived at 11:56pm. Joshua Stewart and Jeremiah Tama received emergency medical attention. Both the offender and T remained at the scene and the offender was spoken to by police. When a police officer, Rhys Thorp, exited his vehicle, the offender approached him with his hands together in front of his body in a gesture that the officer understood to be a handcuffing gesture and said, “arrest me. I fucked up. I was driving. I fucked up”. The offender was subject to breath and oral fluid analysis which both returned negative results.

14. Another officer, Jacob Eiffert, spoke with the offender and the conversation was captured on his body-worn camera. The offender indicated that he was the driver of the vehicle, that none of them were thrown from the car as a result of the collision, but that they had removed Jeremiah Tama from the vehicle. He said that, as he approached the intersection, the lights were red, and he “tried to stop” but that the “brakes didn’t work”. The agreed facts include an analysis of the braking system which indicated that, at the time of the collision, the braking system was working, and the offender does not contend on the plea of guilty that the brakes did not work.

15. Another officer spoke to T, who told the officer that he was seated in the rear right passenger seat and that the offender had stolen the car. T also said that the offender had stolen the car with “Finny legs” (which was the name by which he knew Joshua Stewart), that the young person had beer but did not open it, that two other people had been in the car earlier in the night, and that he did not know how the car got into a crash.

16. All of the occupants of the vehicle were conveyed to the Canberra Hospital. Joshua Stewart was treated by paramedics at the scene. Upon their arrival, he was trapped in the front passenger seat of the vehicle with his legs and pelvis compressed by the passenger door. He had significant obvious injuries to his face and was unresponsive and deeply unconscious. Extraction from the vehicle took approximately 30 minutes. Despite the administration of emergency treatment, Joshua remained in what was described as a “critical peri-arrest condition” when transferred to the Canberra Hospital. Upon his arrival, he had no obvious cardiac activity and, despite attempts to resuscitate him over 30 minutes, he was unable to be revived. The extent of injuries caused by the collision, with the most significant being those to the head and brain, was of such severity that, in all likelihood, his death was inevitable following the collision despite medical intervention. He was pronounced life extinct at 1:46am on 18 January 2024.

17. Jeremiah Tama was transferred to the Canberra Hospital in a critical condition. He had suffered a traumatic brain injury, intracranial and subdural haemorrhage, facial bone fractures and multiple other injuries. On 20 January 2024, he was transferred to Sydney Children’s Hospital in Randwick, NSW. He had a prolonged admission to the intensive care unit and experienced multiple medical issues secondary to the initial incident. He died on 6 August 2024. An interim cause of death report prepared by the coroner identified the direct cause of death as complications of blunt force injuries to the head.

Victim impact

18. The prosecution tendered a bundle of victim impact statements that numbered fifteen in total. They made for difficult listening, having regard to the depth and breadth of the impacts upon people affected by the death of the two teenage boys. Any summary of them will be inadequate to capture the expressions of grief that they contain.

19. These victim impact statements record the losses suffered by the families and extended families of the victims. Obviously, in relation to both Jeremiah Tama and Joshua Stewart, their families have lost children in tragic circumstances and the impact of that loss is likely to affect them for the rest of their lives. The photographs with those victim impact statements include happy images of each of the victims which now are very sad.

20. Specific mention must be made of the trauma suffered by Jeremiah Tama’s large family and his extended family, who had to deal with his months of hospitalisation, with two months in the intensive care unit and the balance in an ordinary ward. They had to cope with the ups and downs associated with the numerous operations that he underwent and the changes in his condition. Most of the family moved to Sydney during that period and their lives and the lives of those who remained in Canberra were completely disrupted. It swallowed up their life. When in the ward, they would spend 15 hours a day by his bedside bearing the physical and emotional burden of being present with him and caring for their substantially disabled child. They then had to experience palliative treatment and his ultimate death. The whole episode for them was not an immediate and tragic loss but a substantial period of emotional pain before he ultimately died.

21. Joshua Stewart’s mother’s victim impact statement referred to the difficulties that he had when growing up, her own efforts to avoid him being influenced by negative peers and the “indescribable and never ending” pain she feels now that he has gone.

22. So far as C, the driver of the other motor vehicle, is concerned, being involved in such an accident which resulted in two children dying was plainly a traumatic event for her. She records the support that she has received from her husband and children. She records her increased consciousness of security, impacts on her social life and the financial impacts of losing her car. It is almost inevitable that, although she was without fault, she would continue to suffer long-term psychological effects of being involved in that way.

Objective seriousness

23. It is relevant to consider the degree, nature and duration of the negligence which made the driving culpable. The offender was unlicenced, had never driven before, and ran a red light on a main highway where there were three lanes of traffic in either direction. His conduct resulted in the death of two young men to whom he owed a specific duty of care, and he put the lives of many other road users in danger. There was no evidence of braking at the scene. The duration of the driving was not insignificant, having driven from the dog park in Casey to the scene of the accident. There was, however, no evidence of erratic or intentionally dangerous driving prior to the accident. There was no involvement of alcohol or illicit drugs. The circumstances are substantially less objectively serious than those in Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99. The conduct in each case can be placed at the upper end of the mid-range of objective seriousness for this offence.

Subjective circumstances

24. The young person is 15 years and nine months old. He has two older siblings, aged 19 and 18, one who resides in Canberra and the other in Queensland. His father died in a serious car accident on 20 March 2010 that killed four people, that occurred while his father was driving a stolen vehicle that was being pursued by police. The offender was eight months old at the time. His mother re-partnered in 2017 and had three children with that partner that are now aged six and under. His mother and partner reside in Canberra with their children.

25. He is of Aboriginal and Maltese descent, Aboriginal on his father’s side and Maltese on his mother’s. His uncle has given him a general understanding of Aboriginal culture.

26. From April 2015, he lived with his maternal aunt and her partner and their children through a family arrangement. [Redacted]. At the time of the offending, he was living with friends. Following the offending, he lived with his mother and her partner and their children.

27. The author of a NSW pre-sentence report indicated that the circumstances of his offending involved a number of risk factors: anti-social peer associations, pre-planned and opportunistic offending, limited problem-solving skills, and a willingness to use weapons in offending.

28. He was exposed to drug use as a child. He commenced using cannabis and occasionally alcohol from the age of 12. He has a diagnosis of ADHD.

29. He attended three different primary schools. He started high school at Caroline Chisolm High School and transferred, towards the end of Year 8, to Melba Copland Secondary School. While in custody, he is recorded as having engaged with his schoolwork and to have demonstrated a generally positive and friendly attitude towards staff.

30. A letter from the offender was tendered on his behalf. It was addressed to the families of the deceased. It indicates that he is regretful about what occurred, the fact that the deceased were his friends, that he should not have been in the car and that he regrets his decision but cannot change what happened. He says, “I cannot promise that I will not make more mistakes in my life but I’ll try my best to change my life for the better”. Notwithstanding that the offender did not give evidence and that the circumstances surrounding the writing of this letter and the veracity of the sentiments expressed in it could not be tested, I accept that the offender regrets his conduct on the day. For someone of his age, it is not clear the extent to which that regret will actually have consequences for his future behaviour and, hence, influence his longer-term prospects of rehabilitation. That assessment would probably not have changed had he given evidence and been cross-examined.

31. There was some evidence that the offender had been the subject of threats arising from his involvement with the deaths of at least one of the victims. I am not satisfied on the balance of probabilities that he has suffered actual violence caused by that which would not have occurred in any event. However, I accept that there is a risk that, at some point in the future, he may be subject to some extra-curial consequences arising from his involvement in the death of at least one of the victims. The prospect of that will decline over time. I consider the level of risk and the nature of the consequences are such that it is not a significant factor in sentencing, even if it is a matter of concern to the offender at present.

Criminal history

32. An ACT criminal history was tendered, dated 9 January 2025. It recorded no criminal history other than the present offences. A NSW criminal history was also tendered. The offender was convicted of an offence of aggravated breaking and entering with intent to commit a serious indictable offence committed on 6 November 2024, while he was on bail for the current offending. A Statement of Facts for that offending was tendered, and it shows that the offending was aggravated by the young person being armed and in company. A group of three youths broke into a house. One of them — and not the offender — entered the bedroom of a sleeping resident and attacked him with a hammer. The offender had a knife during the incident. On 7 January 2025, he was sentenced to a period of 12 months’ probation for this offending pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (NSW). This offending occurred during a period when the offender was meant to be participating in a Ted Noffs program in Sydney but had absconded on 29 October 2024.

33. Another charge of assaulting a frontline community service provider in 2023 is outstanding. The allegations of this charge involve a confrontation with police at a time when the offender was in the company of a number of other young persons. The allegations are consistent with the offender hanging around with the wrong crowd.

Plea of guilty

34. The offender was first before the Childrens Court on 18 January 2024. The first appearance in the Supreme Court was on 14 August 2024. He pleaded guilty on 5 March 2025. At that stage, the proceedings were in the Supreme Court but had not been listed for a criminal case conference. The prosecution submitted that the case against the offender was overwhelmingly strong and, hence, that no significant reduction on account of the plea of guilty was available. I accept that submission. In the circumstances, in relation to each offence, a five percent reduction on account of the plea of guilty will be made. Notwithstanding that the Director contemplated the possibility of a greater reduction within the framework of s 35(4), I do not consider that a greater reduction would be consistent with the requirement that no “significant” reduction be allowed: see my earlier decision in DPP v Morley [2024] ACTSC 124 at [50] and the cases there cited. That is the case whether one considers the percentage discount or the actual reduction in sentence that this reduction achieves in the circumstances of this case.

35. But for the requirements of s 35(4), the offender would have received a sentence reduction of between 15 and 20 percent on account of the plea of guilty.

Time in custody

36. The offender has spent 246 days in custody relating to these charges (17 to 19 January 2024, 19 March 2024 to 15 July 2024, 9 January 2025 to 12 May 2025). This period will be taken into account by backdating the first sentence imposed to 9 September 2024. Consideration

37. In sentencing the offender, regard must be had to the requirements of Ch 8A of the Crimes (Sentencing) Act and in particular: (a) the requirement in s 133C that the court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to other purposes stated in s 7(1); (b) that the court must have particular regard to the common law principle of individualised justice: s 133C(2); (c) the obligation of the court to consider: (i) the offender’s culpability having regard to his maturity; (ii) the offender’s state of development; (iii) the past and present family circumstances of the offender: s 133D(1);. (d) that a sentence of imprisonment must be “a last resort and for the shortest appropriate term”: s 133G(2); (e) that the court cannot impose a non-parole period and must consider making a combination sentence which includes a sentence of imprisonment and a good behaviour order with supervision conditions: s 133G and s 64(2).

38. Obviously, in a case like this where two people have died and where the offender was young, immature and with an unstable family background, the purposes of sentencing pull in substantially different directions. On the one hand, the denunciation of the conduct, recognition of harm done to the victims and their families and general deterrence would all favour a very substantial period of imprisonment. On the other hand, the offender with his dysfunctional family background ought to be encouraged, if possible, to rehabilitate himself so as to avoid offending in the future and, hence, avoid all the burdens that this would impose upon the victims of such future offending and the community more generally.

39. I have had regard to the comparable cases to which I was referred by the parties, namely: Monfries; R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (noting that, while this is not relevant to ACT sentencing practice, it was relied upon in Monfries); R v Kekalainen [2014] ACTSC 132; R v Loeschnauer [2022] ACTSC 30; 98 MVR 484; DPP v Calhoun [2023] ACTSC 189; R v Creighton [2011] ACTCA 13. In particular, I have taken into account what now appears to have been the very lenient starting point for the head sentences that I imposed in Calhoun, a case involving a child offender.

40. In my view, the competing considerations may be resolved in a manner consistent with the statutory provisions by the imposition of substantial sentences of imprisonment which are then partially suspended so as to give the offender an opportunity to demonstrate that he is capable of not offending in future. That will be facilitated if, following the suspension, there is still a period prior to him turning 18 [redacted].

41. Counsel for the offender pointed to the risk of institutionalisation if the offender was given a sentence involving a significant period of full-time detention. I accept that this is a risk for a young person with an otherwise destabilised background. However, I consider that a significant period of full-time detention is required in order to give effect to the purposes of sentencing, particularly deterrence, denunciation and recognition of harm done to the victims. It is not necessarily contrary to the interests of the community and the rehabilitation of the offender because it will provide a highly structured environment in which the offender has the opportunity to complete his schooling.

42. In my view, the appropriate starting point on the charge relating to the death of Joshua Stewart is a sentence of four years’ (48 months’) imprisonment. The sentence will be reduced to 45 months on account of the plea of guilty. On the charge relating to the death of Jeremiah Tama, it is necessary to also take into account in the manner referred to in R v Campbell [2010] ACTCA 20 at [46]-[47], the scheduled charge of dishonestly driving a stolen motor vehicle. On the charge relating to the death of Jeremiah Tama, the starting point is four years and two months (50 months), reduced to 47 months on account of the plea of guilty. This will be cumulative as to 18 months upon the charge relating to the death of Joshua Stewart but otherwise concurrent. That gives a total of 63 months’, or five years and three months’, imprisonment.

43. Pursuant to ss 64(2) and 133G of the Crimes (Sentencing) Act, it is appropriate to partially suspend the sentence of imprisonment. The effect of that will require the offender to be released after having served a portion of the sentence but then for him to be subject to a good behaviour order which, most significantly, will require that he not commit further offences and that he comply with the requirements of supervision during the balance of the term of the sentence. That will provide, on the one hand, the potential for him to remain out of full-time detention if he complies with the conditions of the good behaviour order, thereby indicating the capacity for rehabilitation. On the other hand, if he does not comply with those obligations, the matter will have to return to court and he is likely to have the balance of his sentence or some proportion of it served by further full-time detention. Having regard to the offender’s youth, an appropriate period to be served by full-time detention prior to the suspension of the sentence is a total period of two years. In my view, that period also reflects the requirement of s 133G(2).

44. On the assumption that he enters into the required good behaviour order, this will mean that he is able to be released from custody in September 2026, at which point he will be 17 years old. [Redacted]. So long as he complies with the requirements of his good behaviour order, that good behaviour order on the first charge will expire in June 2028, when he is almost 19. The second will expire in December 2029, when he is 20 and a half.

Orders

45. The orders of the Court are: (1) On the charge of culpable driving causing death (CH 2024/104), the offender is convicted and sentenced to forty-five months’ imprisonment commencing on 9 September 2024 and ending on 8 June 2028. (2) The sentence in the previous order is suspended on 9 September 2026 upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the balance of the term of his sentence with an additional condition, namely, a supervision condition within the meaning of s 133U of the Crimes (Sentencing) Act 2005 (ACT). (3) On the charge of culpable driving causing death (SC CAN 2024/166), and taking into account the charge of dishonestly driving a stolen motor vehicle (CH 2024/103), the offender is convicted and sentenced to forty-seven months’ imprisonment commencing on 9 January 2026 and ending on 8 December 2029. (4) The sentence in the previous order is suspended on 9 September 2026 upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the balance of the term of his sentence with an additional condition, namely, a supervision condition within the meaning of s 133U of the Crimes (Sentencing) Act 2005 (ACT).

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 19 May 2025