DPP v Swain

[2025] ACTSC 209

Supreme Court of the ACT|2025-05-20|Before: Taylor J

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Source facts

Court

Supreme Court of the ACT

Decision date

2025-05-20

Before

Taylor J

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Judgment and Punishment – Sentence – Pilot Circle Sentencing List
– Elders and Respected Persons Panel – child offender – young
person – aggravated robbery – drive motor

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment and Punishment – Sentence – Pilot Circle Sentencing List– Elders and Respected Persons Panel – child offender – youngperson – aggravated robbery – drive motorvehicle without consent– drive motor vehicle near police – aggravated dangerous driving– profound childhood disadvantage– Bugmy principles applied– Verdins principles applied – assessment of maturity –conditional liberty – risk of institutionalisation – policeconduct– extra-curial punishment – consideration of prospects ofrehabilitation

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: DPP v Swain (a pseudonym) (No 2) Citation: [2025] ACTSC 209 Hearing Dates: 14 March 2025, 9 May 2025 Decision Date: 20 May 2025 Before: Taylor J Decision: See [297]. Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Pilot Circle Sentencing List – Elders and Respected Persons Panel – child offender – young person – aggravated robbery – drive motor vehicle without consent – drive motor vehicle near police – aggravated dangerous driving – profound childhood disadvantage – Bugmy principles applied – Verdins principles applied – assessment of maturity – conditional liberty – risk of institutionalisation – police conduct – extra-curial punishment – consideration of prospects of rehabilitation Crimes Act 1900 (ACT), ss 29A, 32(2) Legislation Cited: Crimes Act 1914 (Cth), ss 19B, 20(1)(a) Crimes (Sentence Administration) ACT 2005 (ACT), s 320H Crimes (Sentencing) Act 2005 (ACT), ch 8A, ss 7, 23, 33, 53(1)(a), 133C, 133D, 133G(2), 133I Criminal Code 2002 (ACT), ss 45A, 310, 318(2), 321 Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1) Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a) Road Transport (General) Act 1999 (ACT), s 69 Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 7(1), 7A(1) Cases Cited: Azzopardi v R [2011] VSCA 372; 35 VR 43 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions v Holder (No 2) [2023] ACTSC 167 Director of Public Prosecutions v XK [2023] ACTSC 141 DPP v Chatfield [2024] ACTSC 329; 21 ACTLR 240 DPP v Clarke (No 2) [2023] ACTSC 261 DPP v Coulter [2024] ACTSC 262 DPP v Crawford (a pseudonym) [2023] ACTSC 266; 105 MVR 319 DPP v Druett [2024] ACTSC 56; 106 MVR 186 DPP v Joliffe-Cole [2024] ACTSC 256 DPP v Kayvanshokoohi [2024] ACTSC 386 DPP v Myers (a pseudonym) (No 4) [2022] ACTSC 308 DPP v Smith (No 3) [2024] ACTSC 146 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hall v the Queen; Barker v The Queen [2017] ACTCA 16 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Jackson v R [2023] NSWCCA 121 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 McCurley v Beath [2017] ACTSC 196; 268 A Crim R 263 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 Olney v Martin [2017] ACTSC 79 O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 Police v Pedro Swain (a pseudonym) [2024] ACTCC 1 R v Carberry [2022] ACTSC 208 R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 R v Elphick [2021] ACTSC 9 R v Forster-Jones (No 2) [2019] ACTSC 286 R v Goodge [2019] ACTSC 297 R v Hagen [2022] ACTSC 362; 374 FLR 260 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Law [2021] ACTSC 351 R v Lock [2016] ACTSC 319 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Massey (No 3) [2021] ACTSC 156 R v Millwood [2012] NSWCCA 2 R v NF [2018] ACTSC 165 R v OI [2020] ACTSC 286 R v UD [2017] ACTSC 210 R v UD (No 2) [2020] ACTSC 323 R v Pearson [2020] ACTSC 375 R v Robertson [2010] ACTCA 19 R v Rosewarne [2021] ACTSC 217 R v SDM [2001] NSWCCA 158; 51 NSWLR 530 R v Seymour [2021] ACTSC 152 R v Slattery [2021] ACTSC 154 R v Watson [2021] ACTSC 339 R v Wilson [2022] ACTSC 7 R v Winters [2022] ACTSC 371 Sampson v De Haan [2016] ACTSC 327 Thompson v The Queen [2018] ACTCA 2 Texts Cited: Bugmy Bar Book, Child Abuse and Neglect (June 2024) Bugmy Bar Book, Out-of-Home-Care (September 2021) Interventions for Prisoners Returning to the Community, Report prepared by the Australian Institute of Criminology for the Community Safety and Justice Branch of the Australian Government Attorney-General’s Department, 2005 Institutionalisation, Dr Robyn Shields AM and Dr Andrew Ellis, 2024 Megan Davis, Family is Culture: Independent Review of Aboriginal Children in Out-of-Home-Care in NSW (Independent Report commissioned by the NSW Minister for Families and Communities, 2019) Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021) ‘National Report’ Royal Commission into Aboriginal Deaths in Custody (15 April 1991) Parties: Director of Public Prosecutions (Crown) Pedro Swain (a pseudonym) (Young person) Representation: Counsel G Meikle (Crown) S Lynch (Young person) Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service (Young person) Elders: B Hodges D Ritchie S Munro File Numbers: SCC 313 of 2024 SCC 314 of 2024 SCC 318 of 2024 SCC 319 of 2024 SCC 33 of 2025 TAYLOR J: Introduction

Pedro Swain (a pseudonym) is an 18-year-old Biripi man. I am to sentence him for offences he committed as a young person when he was 17 years old.
Sentencing Pedro is a complex task that requires consideration of numerous relevant factors that pull in different directions. On the one hand, Pedro has engaged in serious offending which has had long-lasting effects on the victims and for which he must be held accountable. On the other, Pedro has a personal history that is difficult to contemplate and which has had a severe effect on his development.
In acknowledging that history, I do not seek to undermine the seriousness of the offending or the effect that he has had on the lives of the victims. Both are considerations to which I will come. At the outset though I think it is useful to summarise some of Pedro’s history and some of the considerations that emerged during the sentencing process.
At 14 months of age Pedro was removed from his parents because of concerns about his care. From that point on, Pedro’s life was marked by instability and emotional upheaval. Pedro has no long-lasting relationship or attachment with any adult from any time in his life. He has become accustomed to custodial settings to the extent that, whilst he seeks independence, he struggles to implement it having such limited life experience outside of a custodial setting.
Pedro’s ancestral country is on the mid north coast of New South Wales where the coastal hinterland from Taree to Port Macquarie is tracked by the Three Brothers; three mountains with strong cultural significance for Biripi people. It is not country upon which Pedro himself has spent substantial periods. Unlike those mountains, Pedro has drifted without strong foundation for much of his short life. An understanding of Pedro’s family circumstances since he was a toddler makes it unsurprising, in many respects, that he is before me for a suite of serious offences.
As will become clear, Pedro’s development has been largely shaped by state care and youth justice authorities. For almost his entire life Pedro’s parents have been absent. The limited time that Pedro has spent with either of them has only served to confirm that they are unsuitable for any kind of responsibility, let alone the care of a vulnerable child. Once taken into state care, Pedro’s life circumstances were not ever greatly improved.
Pedro has no extended family in his life. Pedro has no contact with his siblings. Pedro has a limited education. The only adults present in Pedro’s life are those charged with some responsibility to be there because of their employment. It must be noted that many of those folks care deeply about Pedro’s welfare and many have worked hard to improve his future prospects.
Pedro is the product of the child protection system and the youth justice system. Those systems have failed him, and in turn they have failed the community. This is by no means a criticism of the committed individuals who have been involved with Pedro for some time through his engagement with those systems. It is an acknowledgement that children like Pedro, who through no fault of their own become entrenched in child protection regimes before they can spell their own names, represent an enormous challenge. In Pedro’s case the demands of that challenge were inadequately addressed.
Without the guidance, love and support that every child should have, Pedro has sought out connection, a sense of belonging and a sense of brotherhood, for the most part, in all the wrong places.
It is important to acknowledge those features of Pedro’s life which have shaped his pathway to this Court. It is equally important to acknowledge Pedro’s personal strength and resilience. As a small child he was dealt an unfair hand. He has survived and additionally withstood the heartache of separation from his siblings; a cruel consequence of being drawn into a system over which he has no control.
Pedro has made some truly terrible choices. His capacity for poor choices has been emboldened by the absence from his life of any parental figure who might pull him in a different direction. Pedro has a tough exterior, no more on display than in the body worn camera (BWC) footage that captured him inexplicably being tasered by police after he was successfully cornered, and in the Watch House footage where he was taunted and physically punished; a reminder, if he needed one, that his welfare was of little consequence. Those are experiences to which I will return.
Underneath Pedro’s bravado and the hard shell that life in the child protection system produces, is a young man with potential to be much more than the young man captured on closed circuit television (CCTV) footage robbing take-away pizza shops and frightening employees in the process.
I am mindful that the community rightly expects the court to take seriously the kind of offences that Pedro has committed. Acknowledging the realities of Pedro’s life should not be mistaken for allowing those circumstances to overwhelm the sentencing task. Nor do the realities of his life abrogate Pedro of all responsibility for his conduct. But the significance of the environment within which he has developed a skewed moral and decision-making framework cannot be ignored.
In order to understand the outcome of this matter, it is important to understand how it is that Pedro, at only 18 years of age, is at risk of institutionalisation. The community, rightly invested in the outcome of this sentencing task, cannot ignore that the pathway to offending was paved for Pedro when he was a child of the state. This is not a new phenomenon. The ‘drift’ of children in state or ‘out of home’ care into the juvenile justice system has long been identified as a significant risk factor, in particular for First Nations children (see Megan Davis, Family is Culture: Independent Review of Aboriginal Children in Out-of-Home-Care in NSW (Independent Report commissioned by the NSW Minister for Families and Communities, 2019)). Pedro is an example of that ‘drift’ and the disastrous consequences that it creates for children who deserve better and the community against whom they go on to offend.
On 14 March 2025, Pedro participated in a sentencing conversation as part of the ACT Supreme Court Pilot Circle Sentencing List.
In DPP v Chatfield [2024] ACTSC 329; 21 ACTLR 240 at [1]-[14], I explained in detail the context and purpose of the Circle Sentencing List. It is unnecessary to repeat that explanation here.
The sentencing conversation at the heart of this process required Pedro to directly engage with the Elders Panel and take responsibility for his conduct. Pedro used his own voice to tell his story to the Elders Panel and described his aspirations for the future. In a piece of restorative practice, Uncle Benny Hodges unexpectedly brokered an entirely unscripted but profoundly moving exchange between Pedro and one the victims of his offending who had attended the sentencing conversation with his mother. I am ill-equipped I think to properly convey with words the power of that exchange. It was not an experience I have had in many years of practice in criminal law or in my time as a judicial officer.
Pedro could have shrunk from the meaning and opportunity of that moment, but he did not. He confronted the direct consequences of his poor choices by listening to the victim as he courageously described the effect upon him of Pedro’s conduct. Pedro acknowledged that effect and apologised directly to the victim. In a reflection of his own maturity and humanity, the victim expressed his distress at hearing some of Pedro’s background history.
It was a moment which highlighted some of the limitations of the usual process of sentencing. It also exemplified the wisdom of our Elders and the substantial contribution they make within the circle sentencing process; Uncle Benny saw an opportunity for healing and he embraced it. An older, wiser man who has lived a strong cultural life creating opportunity for two young men, with dramatically different histories, to see the humanity in the other.
I move now to the offending conduct.

At about 12:30am on 20 February 2024, Pedro, in the company of three other young persons (Jordan Peterson (a pseudonym), Curt Arias (a pseudonym) and Shaun Chapman (a pseudonym)) attended a residential address in Downer in the ACT.
Pedro, co-young person Peterson and co-young person Arias approached the side gate of the residence and opened it. The three young persons then entered the backyard and attempted to open various doors to the residence, which were locked. The young persons subsequently left the residence.
The above was captured on CCTV footage from the residence. The footage captured the young persons wearing the following: (i) Pedro: black sneakers, black tracksuit pants with a white reflective logo on the left-hand side, and a black hooded ‘Adidas’ branded jumper with distinctive white stripes down the arms and an Adidas logo on the left chest. (ii) Co-young person Peterson: white socks with no shoes, light coloured tracksuit pants, a distinctive ‘Nike’ branded black hooded jumper with small white Nike “ticks” all over, and white framed sunglasses. (iii) Co-young person Arias: a black hooded jumper with a large white logo on the centre chest bearing the words “Hoodrich” and a large white winged motif on the back, dark coloured shorts with stripes down the sides, black and white sneakers and a white cap.
On 25 February 2024, police attended the residential address in Downer and obtained a statement from the victim. At no time did the victim give the young persons consent to enter or remain on the property. Aggravated dangerous driving (CH2024/319), drive motor vehicle without consent (CH2024/320) and drive while disqualified (CH2024/321)
Between 11:30pm on 19 February 2024 and 5am on 20 February 2024, a white Audi S3 (‘the Audi’) was stolen from a residence in Banks in the ACT.
At about 12:06am on 21 February 2024, police located the Audi in the vicinity of an address in Kaleen in the ACT. Police entered the residence and located Pedro, co-young person Peterson, co-young person Arias and co-young person Chapman.
Co-young person Arias was wearing the same Hoodrich branded jumper and shorts as depicted in the CCTV footage from the residence in Downer.
Co-young person Peterson was wearing the same black Nike branded jumper as depicted in the CCTV footage from the residence in Downer.
Police formally identified Pedro and the co-young persons. Police observed that Pedro had a tattoo of the Aboriginal flag on his right hand.
On 6 March 2024, police executed a section 3E search warrant on a location in Bonython in the ACT. During the execution of this search warrant a mobile phone was seized from BD.
During subsequent analysis of BD’s mobile phone, police located two videos recorded on 20 February 2024 from inside the Audi. They depicted the following: (i) Video one: at about 10:30am on 20 February 2024, the Audi was travelling north on Caswell Drive in the ACT, approximately 500 metres from the Belconnen Way exit. Pedro was in the driver’s seat of the Audi. At this time the speedometer of the Audi displayed 118 kilometres per hour in a 90 kilometres per hour zone. (ii) Video two: at about 10:34am on 20 February 2024, the Audi was on Caswell Drive near the Stanford Street Mitchell exit. Pedro was still driving the vehicle. At this time, the Audi reached a maximum speed of 166 kilometres per hour in an 80 kilometres per hour zone as displayed by the speedometer.
Pedro’s face is not visible in the videos, however the tattoo of the Aboriginal flag is visible on his right hand.
A photograph was also obtained depicting the Audi parked at the Perricoota Gardens unit complex on Staaten Crescent, Kaleen in the ACT, where it was recovered by police. [Redacted]. In this photograph, Pedro is standing next to the open passenger door of the Audi. Pedro’s face is clearly visible as well as the Aboriginal flag tattoo on his right hand. Co-young person Peterson’s distinctive Nike branded black hooded jumper with white Nike ticks, as seen in the CCTV footage from the residence in Downer, can also be seen in the photograph.
On 29 February 2024, forensic officer Martin Wise identified four latent fingerprints during a forensic examination of the Audi. The fingerprints were developed from the following locations: the exterior front driver’s window trim, the exterior rear driver’s window trim, the interior front driver’s door trim, and the rearview mirror. Forensic officer Wise identified a match with Pedro’s fingerprint.
At about 11:30pm on 8 March 2024, police attended an address in Bonython in the ACT in relation to unrelated matters where they located Pedro.
Police recognised Pedro by sight and his identification was later confirmed by police indices. At about 1am on 9 March 2024, Pedro was placed under arrest.
At about 1:08am, Pedro was conveyed to the ACT Regional Watch House.
On 16 January 2024, Pedro was disqualified from holding or obtaining a driver’s licence for 11 months in the ACT Childrens Court.

At about 9:30pm on 8 March 2024, SP was at the front counter of Domino’s Franchise Fyshwick (Domino’s Fyshwick), located at 2 Yallourn Street, Fyshwick in the ACT.
At this time, CC, an employee of Domino’s Fyshwick, had just entered the cooler room to the side of the front counter. While SP was speaking with a customer over the phone, two males entered the store while waving knives.
AB and her son had collected a pizza and were sitting outside Domino’s Fyshwick in AB’s vehicle when they observed the two males enter the store.
The first male, who was taller, wearing a black hooded jumper and black shorts, and waving a knife with a white handle, is Pedro.
The second male, who was wearing black pants and a grey hooded Adidas jumper with stripes along the sleeves and the hood up and who was also waving a knife with a white handle, is co-young person Wayne Kaye (a pseudonym).
Pedro reached over the front counter and grabbed SP by the scruff of his collar, partially dragging him over the counter. Pedro threatened SP while asking for money, stating, inter alia: “give me all your money”, “I’m going to stab you” and “I’m going to kill you”. Co-young person Kaye was also waving his knife and demanding money.
SP dropped the phone and opened the till while being held by Pedro. CC walked over from the cooler room and assisted SP in placing the money from the till onto the counter. Pedro and co-young person Kaye continued making threats and demanded money from a second till. SP and CC explained they only had the one till in operation.
Co-young person Kaye became upset after asking about a $50 note that had been placed on the counter. Co-young person Kaye stabbed the counter with the knife he was wielding several times while threatening SP and CC, and in doing so stabbed a clear plastic Ridgeway Rural Fire Brigade donation box.
Pedro and co-young person Kaye continued making threats against SP and CC before Pedro released SP and turned around to leave the store, almost stabbing SP with the knife as he turned. Co-young person Kaye grabbed most of the money (totalling $307) and the donation box and Pedro and co-young person Kaye exited the store.
Pedro and co-young person Kaye were seen to enter a dark coloured vehicle, which was identified as being either a Mazda or a Nissan, and drove away from Domino’s Fyshwick.
At about 9:35pm, Ms Bell contacted police via triple zero and requested their attendance.
At about 9:37pm, SP contacted police via triple zero and reported the robbery.
At about 9:47pm, police arrived at Domino’s Fyshwick and spoke with SP and CC. The co-owner of Domino’s Fyshwick attended the store a short time later and determined that the CCTV had not been operating at the time of the incident.
A short time later, CC participated in a record of conversation with police.
At about 10:50pm, members of the Australian Federal Police (AFP) forensic team arrived and seized SP’s shirt. They also took forensic samples from the counter, door handles and some money left by Pedro and co-young person Kaye.
At about 11:31pm, SP participated in an Evidence in Chief Interview (EICI) with police. SP and CC did not give Pedro or co-young person Kaye permission to threaten them with a knife.
Pedro and co-young person Kaye did not have permission to steal $307 or the Ridgeway Rural Fire Brigade donation box from Domino’s Fyshwick.

At about 9:40pm that same night, JI was sitting in the carpark of Eastlakes Calwell in the ACT. JI was standing at the rear of his vehicle, drinking a coffee.
The Nissan entered the carpark of Eastlakes Calwell and parked approximately five parking spaces away from JI’s vehicle.
Two males exited the Nissan and walked to the rear of JI’s parked vehicle. Pedro exited the driver’s seat while co-young person Kaye exited the front passenger seat. Pedro was wearing a dark vest, white t-shirt, dark shorts and dark shoes. Co-young person Kaye was wearing a light-coloured hooded top and dark pants.
Pedro approached JI and stated words to the effect of “Hey mate, where’s your car key?”. Pedro grabbed a knife from under his arm and held it towards JI. Co-young person Kaye stood to the side of Pedro.
JI stated that he had left his key in his car. JI was holding his mobile phone in his hand, he put it in his pocket when Pedro attempted to snatch it from him.
Pedro then made multiple threats to JI, including “Give me your car keys or I’ll stab you”.
JI went to walk towards the front of his vehicle when he saw Pedro drop his knife slightly. JI then threw his coffee onto Pedro before reaching and grabbing the knife from him.
Pedro and co-young person Kaye ran back to the Nissan while JI yelled at them to go away. Pedro ran towards the driver’s seat and drove away with co-young person Kaye in the front passenger seat.
JI ran inside Eastlakes and told the receptionist and the duty manager what had occurred. JI placed the knife, which was approximately 30 centimetres long with a serrated blade and a white and grey handle, on the front counter. The receptionist used a tissue to move the knife to the reception desk, away from public access. The duty manager contacted police and reported the incident. At about 10:15pm, police arrived at Eastlakes Calwell.
At about 10:19pm, JI participated in a record of conversation with police. During that conversation, JI stated that he had observed one of the young persons to be holding a donation box.
Police were provided with CCTV footage from the premises. The footage showed the Nissan arriving, two males matching the above descriptions exiting the vehicle and approaching JI’s location, then running back to the vehicle and driving away.
Police seized the knife that JI had taken from Pedro.
JI did not give Pedro or co-young person Kaye permission to threaten him with a knife or attempt to take his phone and vehicle from him.

At about 11:18pm, police located the stolen Nissan on Coombe Street, Bonython in the ACT. The Nissan was seized.
At about 11:51pm, police attended an address in Bonython and spoke to co-young person Kaye. Co-young person Kaye’s father confirmed the identity of co-young person Kaye. The address in Bonython is approximately 100 metres from where the Nissan was located by police.
Police obtained consent from co-young person Kaye’s mother to search the young person’s bedroom. Police located two black Domino’s bags, a grey Adidas hooded jumper, black tracksuit pants, and a locked Ridgeway Rural Fire Brigade coin donation box.
At about 11:51pm, co-young person Kaye was arrested and conveyed to the ACT Regional Watch House. Pedro was also present at the residence. Pedro was wearing black shoes, black shorts, a white t-shirt and a black vest.
Upon further viewing of the CCTV footage from Domino’s Conder, police observed that the male in the black hooded jumper had a tattoo on his hand that matched a tattoo on Pedro’s hand.
At about 1am on 9 March 2024, Pedro was arrested and conveyed to the ACT Regional Watch House.
Both co-young person Kaye and Pedro declined to participate in records of interview.
Pedro and co-young person Kaye did not have permission to threaten the staff at Domino’s Conder with a knife. They did not have permission to take $700 from Domino’s Conder.
On 9 March 2024, JI attended Woden Police Station and participated in an EICI with police in relation to the Eastlakes Calwell incident.
The owner of the Nissan did not give either Pedro or co-young person Kaye permission to drive or ride in the Nissan at any time.
At about 1:20pm on 15 March 2024, police conducted a search of the seized Nissan. Police located multiple items including: (i) two knives with black handles; (ii) two knives with white and grey handles; (iii) packaging for a 20 centimetre ‘IKEA’ ‘Vorda’ knife; (iv) packaging for a 20 centimetre IKEA ‘Vorda’ knife; (v) packaging for IKEA ‘Andlig’ knives; and (vi) a black Domino’s zippered bag containing $20 in cash.
On 17 March 2024, CC attended Woden Police Station and participated in an EICI with police in relation to the robbery of Domino’s Fyshwick.
The following forensics results of note were returned: (i) Pedro’s fingerprint was found on a knife in the Nissan; (ii) Pedro’s fingerprint was found on the knife at Eastlakes Calwell; (iii) both Pedro’s and co-young person Kaye’s fingerprints were found on the exterior of the front driver’s side window of the Nissan; (iv) Pedro’s fingerprint was found on the exterior of the rear driver’s side window of the Nissan; (v) co-young person Kaye’s fingerprints were found on the exterior and interior of the front passenger side window and the exterior of the front passenger side door of the Nissan; and (vi) Pedro’s fingerprint was found on the rearview mirror inside the Nissan.

On 7 June 2024, Pedro entered a bail undertaking, which included the following condition: 1․ Not drive, be in the driver’s seat of, or physically possess traditional or remote access keys to, a motor vehicle.
During the early hours of 14 June 2024, a white Audi A6 (‘the Audi’) was used in numerous aggravated burglaries across the ACT, including incidents where it failed to stop for police.
At about 5:34am that same day, police attended the registered owner’s address in Casey ACT, where it was discovered that the vehicle had been stolen.
At about 1:45am on 15 June 2024, police were travelling on Ginninderra Drive in Florey in the ACT in a fully marked police vehicle when they observed the Audi traveling at excessive speeds. At the time, it was raining and the roads were wet. Police activated their emergency lights and sirens, signalling for the driver to pull over. Instead, the driver accelerated away from the police vehicle.
Multiple police patrols observed the Audi over the next 15 minutes driving erratically in the suburbs of Charnwood, Dunlop and Flynn, including by driving in excess of the speed limit and on the wrong side of the road.
At about 2:06am the same day, the Audi was observed on Kuringa Drive in Spence travelling towards the Barton Highway. At the intersection of Kuringa Drive and Kingsford Smith Drive, police deployed a tyre deflation device (TDD), which punctured the vehicle’s rear driver’s side tyre.
Further along Kuringa Drive, Constable Richardson and Constable Hall were preparing to deploy a TDD. Kuringa Drive is a two-laned road with a grassed shoulder on either side. The constables’ fully marked police vehicle was stationary on the left-hand side of the shoulder with its sirens activated. Both officers were standing on the grassed shoulder between their vehicle and the road.
At that time, the Audi swerved to the left, leaving the paved road and passing the stationary vehicle on the grassed area to its left. Constable Richardson jumped onto the bonnet of the police vehicle while Constable Hall jumped away from the vehicle. The Audi missed both the police vehicle and the officers on foot by a distance estimated to be about two metres. The vehicle returned to the road and continued on Kuringa Drive, turning right onto the Barton Highway a short time later.
At about 2:12am the same day, the Audi was travelling northbound on Horse Park Drive, Casey ACT, when it slowed and came to a stop on the side of the road. At that time, a male dressed in a black puffer-stye vest over a grey long-sleeved top with a t-shirt around his face exited the driver’s seat and ran into the suburb of Ngunnawal. This male is Pedro.
Simultaneously, another male dressed in a black puffer-style jacket with a hood exited the passenger seat and also ran into Ngunnawal. This male was not located.
Police engaged Pedro in a foot pursuit as he ran along Bunima Crescent, Ngunnawal ACT, before cornering him in the front yard of a residence and arresting him. While taking Pedro to the ground, a police officer deployer their taser to Pedro’s back. While handcuffed on the ground, Pedro began to have an asthma attack. Police unsuccessfully attempted to locate an asthma puffer on Pedro’s person and contacted the ACT Ambulance Service. Pedro became unresponsive, then later regained consciousness.
Pedro then identified himself to police. Police later conducted checks against police indices, the results of which displayed lawfully held images. Police were satisfied of Pedro’s identity. Following clearance by the attending ambulance officers, Pedro was subsequently transported to the City Police Station where he was lodged at the ACT Watch House.
The incident was captured on in-car video, located inside the police vehicle pursuing Pedro. The footage is in colour and is of good quality.
On 16 January 2024, Pedro was disqualified from holding or obtaining a driver’s licence for 11 months in the ACT Childrens Court.

I must consider the nature and circumstances of an offence which includes a consideration of the objective seriousness of the conduct. It is necessary to consider where offending conduct sits on the spectrum of conduct establishing an offence. Consistent with observations in this jurisdiction as to the utility of refences to “low”, “mid” or “high” range as a useful measurement of the objective seriousness of an offence, I will identify the features of the offending conduct which inform the objective seriousness.
Given the numerous driving offences, I observe at the outset that which Refshauge AJ observed in R v Law [2021] ACTSC 351 at [1], and that is that many traffic offences do, or have the capacity to do, great damage to the community; a motor vehicle being “potentially a lethal weapon”. As I have previously observed (DPP v Coulter [2024] ACTSC 262 at [37]), there are too many families in our community who know the traumatic and devastating consequences of a decision made to drive a motor vehicle with little regard for the safety of others.
Further, each of Pedro’s offences were committed while in the company of another person. I bear in mind that which was observed by Baker J in R v Hagen [2022] ACTSC 362; 374 FLR 260 at [27]: Although the offender is liable for the actions of the other participants, when sentencing the offender it is necessary to draw distinctions between the roles and culpability of each of the individual offenders: KR v R [2012] NSWCCA 32 per Latham J (Whealey JA and Harrison J agreeing) at [19]-[22]; Burrows v R [2017] NSWCCA 45 at [37]. Series 1 Aggravated dangerous driving (CH2024/319)
In DPP v Clarke (No 2) [2023] ACTSC 261 at [38] and Coulter at [42], I summarised, by reference to R v Rosewarne [2021] ACTSC 217 at [122] and Law at [31], the following factors as relevant to an assessment of the objective seriousness of this type of offence: (a) the extent to which the public and other road users were put at risk, the number of them and their vulnerability (children, the elderly, frail or disabled); (b) the nature of the location where the driving occurred (residential, busy commercial, shared user zone) and the time of day or night of the driving; (c) whether there were any passengers in the vehicle who were put at risk, especially if there were young children; (d) the variety and duration of aspects of the driving that were dangerous and the extent to which it was a multifaceted and/or a lengthy course of conduct especially factors such as driving into oncoming traffic, onto footpaths or other places where pedestrians are, through stops signs, red lights or give way signs; (e) the distance driven and the period of the driving; (f) the speed of the vehicle and regard for the conditions; (g) whether the vehicle is engaged in a pursuit from police or fails to stop when directed to do so by police; (h) whether the offender was intoxicated by alcohol or drugs and the degree of intoxication; (i) whether there was competitive driving or street racing on a public road or showing off; (j) damage occasioned to other vehicles, objects, houses or people; and (k) the extent to which police were put at risk when trying to terminate the driving.
The circumstance of aggravation for this offence was exceeding the speed limit by more than 30 per cent. In the first video depicting Pedro driving the vehicle, the speedometer displayed 118 kilometres per hour in a 90 kilometres per hour zone. In the second video, the speedometer recorded a speed of 166 kilometres per hour in an 80 kilometres per hour zone.
A vehicle travelling at such speeds puts the public and other road users at risk. There was at least one passenger in the vehicle. The videos were captured at 10:30am and 10:34am. In this time, Pedro drove from Caswell Drive, near the Belconnen Way exit to Gungahlin Drive, near the Sanford Street exit in Mitchell. While there is no specific information before me as to the presence of other vehicles on the road, it is a matter of common sense that other vehicles would have been travelling on major arterial roads at that time of day.
The videos were captured within four minutes of one another. The specific lengths of the recordings were not provided. There is no evidence of any additional periods where Pedro was the driver of the motor vehicle or any suggestion that he was intoxicated. The conduct itself did not come to the attention of police at the time, nor did it result in any damage to other vehicles or property.

The Court of Appeal observed in R v Robertson [2010] ACTCA 19 at [9], that aggravated robbery is “an offence of the utmost gravity”. The maximum penalty for the offence, being 25 years of imprisonment, a fine of $400,000 or both, reflects that gravity. It is both a crime against the person and a property crime, consistent with the significant penalty which puts the offence among the most objectively serious offences in the ACT: see R v Watson [2021] ACTSC 339 at [38] citing R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 368 [99].
The guideline judgment of the NSW Court of Appeal in Henry, endorsed in this jurisdiction in Hall v the Queen; Barker v The Queen [2017] ACTCA 16 and R v Carberry [2022] ACTSC 208, outlined several factors as relevant to the objective seriousness of robbery offences. That said, I bear in mind that this sentencing task involving as it does a young person, may require flexibility in the application of the Henry factors with the particular facts of the case afforded appropriate weight: R v UD (No 2) [2020] ACTSC 323 citing R v SDM [2001] NSWCCA 158; 51 NSWLR 530, per Simpson J at [40].
The circumstances of aggravation common to the offending in this instance was that the young person was in the company of another, and a weapon was used.
The weapon used in both robberies was a knife. Undeniably, a weapon capable of causing significant harm and inducing fear. The young persons’ attendance at IKEA earlier in the evening to obtain knives demonstrated a degree of planning, although the offending itself was not at all sophisticated.
In the Domino’s Fyshwick robbery, the offending involved physical violence in that Pedro grabbed one of the employees by “the scruff of his collar, partially dragging him across the counter” before threatening to stab and kill the victim. The co-young person repeatedly stabbed the counter at Domino’s Fyshwick in frustration, undoubtedly adding to the environment of fear.
In both robberies, Pedro and the co-young person continually brandished their weapons at the Domino’s employees while demanding money. Plainly, both robberies would have been a traumatic and frightening experience for each of the victims, as was revealed by the victim impact statements of CC and EC. The victims were each working at night in their capacity as Domino’s employees. They were entitled to feel safe in their workplace. At least one of the victims was himself a young person.
In the Domino’s Fyshwick robbery, the property taken was $307 in cash and a donation box containing an unknown amount of money. In the Domino’s Conder robbery, the property taken was $700 in cash. Neither of the amounts are insignificant and represent loss and inconvenience to the store owners. In addition to the direct financial impact, the Domino’s franchise stores experienced at least inconvenience arising from the offending by way of police attendance and the taking of forensic samples.
Without undermining the seriousness of the offending or the significance of its effects, the prosecutor was accurate to characterise the conduct as “standard” examples of the offence.

This offence was introduced into the Crimes Act on 10 June 2020. The offence can be established in circumstances where a person intends to risk the police officer’s safety or is reckless about risking the police officer’s safety: ss 29A(1)(d)(i)-(ii) of the Crimes Act. The offending was on the basis that Pedro was reckless and driving “near” police.
The maximum penalty for an offence committed under s 29A of the Crimes Act does not distinguish between driving at or near police officers, or between conduct that is intentional or reckless. The circumstances of the offending see it as objectively less serious than if the driving was intended to risk the officers’ safety or involved driving “at” the officers.
In reference to DPP v Druett [2024] ACTSC 56; 106 MVR 186 at [20], R v Seymour [2021] ACTSC 152 at [34]-[37] and Coulter at [48], the factors relevant to an assessment of the objective seriousness of this offence can be summarised as follows: (a) whether damage is caused to a police vehicle; (b) whether the offender is engaged in a police pursuit; (c) whether the offence occurs in a busy locality and whether house or footpaths border the road; (d) whether there was an intention to impede arrest, particularly where done without regards to the welfare or safety of the victims or of the community at large; (e) the speed or other danger involved with the offender’s driving; (f) whether there were any passengers in the vehicle; and (g) where the police officer was located and whether they suffered any injury.
The police vehicle was not damaged and the police officers were uninjured. The two officers had been standing on the “grassed shoulder between their vehicle and the road” whilst preparing to deploy a TDD. The vehicle driven by Pedro was estimated to have travelled past them at a distance of “about 2 metres” and each of the officers “jumped” out of the path of the vehicle. Neither of the officers were in their police vehicle and were made vulnerable by the lack of protection.
The offending took place in the context of a police pursuit and was designed to evade or impede arrest. So much was conceded on Pedro’s behalf. It occurred on a main arterial road in the early hours of morning. There was one passenger in the vehicle. The speed of the vehicle was not specified. While Pedro drove dangerously and at high speed in the broader police pursuit, this conduct has been charged separately and I must avoid engaging in double punishment.

The material before the Court included a Youth Justice and Adolescent Service Pre- Sentence Report (PSR) dated 7 March 2025, a report prepared by psychologist Ms Vanessa Edwige also dated 7 March 2025, and a Therapeutic Correction Assessment Report dated 27 March 2025. These materials comprehensively recorded Pedro’s background, history and personal circumstances.
Pedro was born in Port Macquarie, NSW. He is the eldest of nine children. He has one younger brother and one younger sister who share his same mother and father. He resided with his parents until he was approximately 14 months old, at which time he was removed from their care by child protection authorities following concerns of “neglect, parental domestic violence, physical abuse, and homelessness”. After a temporary foster care placement, Pedro and his younger brother were placed in the care of their maternal grandmother in Port Macquarie where they continued to reside for two years. Child protective services again became involved due to child welfare concerns. From March 2010 until September 2011, Pedro and his brother were placed in various foster care placements in NSW. There were allegations of abuse at a number of these placements.
Ms Edwige extracted the following observations from the Bugmy Bar Book: ‘Child Abuse and Neglect’: Abuse and neglect may have lifelong and intergenerational consequence, with a wide range of physical health problems linked to experiences of maltreatment in childhood…. ‘Child maltreatments leads to cognitive alterations including distrust of others, hypervigilance to threat, impaired emotion recognition and regulation, and reduced responsiveness to rewards. Experiences of child maltreatment heighten threat perception, which activates the body’s stress response and sensitises the neurobiological systems, making an individual more vulnerable to mental illness.
On 13 October 2010, when Pedro was three years old, an order was made by the NSW Childrens Court placing Pedro in the care of the Director-General until he attained the age of 18. In September 2011, Pedro along with his brother and sister, were placed in a long-term foster placement with a non-Indigenous family; Mr V and Ms V, along with their two adult children and another group of fostered siblings. He did not maintain any contact with his mother, father or extended family while in Mr and Ms V’s care. In terms of his experience at this foster placement, Pedro recalled the following: It was shit growing up there. Me and my brother got treated like shit. They used to bash us with belts, hands and poles. Lock us in rooms for hours and not let us out. Whenever our case managers came, they would stack our rooms with all the fun stuff. As soon as they left, we would have nothing. Not even a book… Felt like I was kicked to the corner. No cuddles. The only time they would show love was towards the other kids. Not towards me or my brother.
Pedro resided in this placement until it broke down in November 2017 when he was 10 years old. Pedro recalled being picked up by his foster mother’s sister and driven to Parkes, NSW. He was not told why he was being taken away from Canberra and became stressed and frustrated at being separated from his younger siblings. He recalled that upon arriving in Parkes, he “apparently grabbed a knife and threatened [his] foster cousins”. The police were called. Pedro said all he can remember after this is being driven back to Canberra by a stranger who told him he would be “going to live at a different house”.
Pedro then spent a month in a crisis placement with a teacher from his school before being moved to Boorowa, NSW to reside with a new foster family. In February 2018, Pedro entered residential care where he was allowed limited contact with his siblings, who continued to reside with Mr and Ms V. Pedro recalled, “It was shit. I was a menace. All I was thinking about was my brother and sister. I would smash up the house.” It was at this time Pedro was first held in detention at Bimberi.
Ms Edwige, citing the Bugmy Bar Book: ‘Out-of-Home Care’, observed that: In 2019, the Victorian Sentencing Advisory Council acknowledged the link between the trauma experienced in care and contact with the criminal justice system: A child’s experience of abuse and trauma can disrupt healthy brain development; it can ‘damage the brain’s crisis response system’, resulting in a child ‘remaining constantly in crisis mode, even when there is no threat’. Such a child ‘remains hyper-vigilant and overreacts to minor events’, and ‘feeling constantly threatened [they] can engage in frequent fight or flight behaviours’. Maltreated adolescents who start ‘acting out’ may be ‘less likely to receive sympathetic attention than younger children, and are more likely to run away, become homeless and engage in illegal and survival activities that bring them to the attention of police’.
Pedro has met his mother once. In 2020, she requested help from Pedro to move furniture. She gave him a “bong” as payment. Pedro advised that he wishes to have contact with his mother but was aware that she frequently moves around the country, and that it was difficult to make contact with her.
In April 2021, Pedro met his father for the first time and self-placed with him in Sydney. He did not return to Canberra until August 2021 after his father was remanded in custody and Pedro consequently became homeless. During his time in Sydney, child protective services received “many reports” that Pedro was being exposed to his father’s “drug misuse, criminal activity and family violence”. Pedro reported that his father and aunty “would drink all the time. It was okay. He is not a good role model. He has been in and out of jail my whole life… He was my co-offender two years ago.” Pedro has continued to regularly abscond to Sydney to self-place with his father.
The Bugmy Bar Book: ‘Child Abuse and Neglect’, as cited by Ms Edwige, provides: The direct effects of early exposure to substance abuse on children may include: emotional and physical abuse and other forms of maltreatment; modelling of poor drinking and substance abusing behaviours; inadequate supervision; and separation from parents due to incarceration and hospitalisation. In turn, these factors increase the likelihood that children will themselves develop substance abuse problems, making it more probable that they will come into contact with the criminal justice system.
Pedro does not have a good relationship with his former foster parents and maintains that they refuse to allow him contact with his siblings who remain in their care. He has consequently not spoken with his siblings for a number of years. In December 2024, Pedro reported that he called his former foster mother and requested to speak to his siblings. Pedro stated that Ms V denied the request and informed him that if he called her again, she “will get an AVO” against him. Pedro stated to Ms Edwige, “Don’t know my family. I have no one to go back to when I get out. I have to go back to residential care because I have no one”.
Ms Edwige, citing the Bugmy Bar Book: ‘Out-of-Home Care’, observed the following: The 2015 Senate Inquiry into Out of Home Care found that children in OOHC ‘experience significantly poorer outcomes than their peers’. The Inquiry assessed the outcomes for children in OOHC ‘against key themes of the National Standards across the three main types of care (kinship care, foster care and residential care)’, including safety and stability, participation in decision making, access to health and education, connection to family and community and transition from care. It was found that ‘[o]verwhelmingly… outcomes for children and young people in out-of-home care across these indicators remain poor’. … Experiences in out-of-home care, including placement instability, lack of cultural and family connection and poor support leaving care, as well as the unique contribution of the out-of-home care system increase the likelihood of contact with the juvenile or adult justice systems…
Pedro has not attended school in the community since he was 13 years old, though has engaged with the Murrumbidgee Education program when on remand at Bimberi. Ms Edwige observed that “exclusion from the supervisory context of a school can reinforce existing feelings of marginalisation, particularly in students who are already experiencing challenges at school due to other underlying issues”.
Pedro identified that he often “wagged” school and reported experiencing difficulties with concentration due to his diagnosis of attention-deficit hyperactivity disorder (ADHD). He recalled getting frustrated and ‘acting out’ in class which resulted in him getting into fights. Pedro reported that when released he would like to complete his Year 10 certificate which he began at Bimberi. Pedro was briefly employed at a scaffolding business in 2024 however his employment was terminated after he failed to attend multiple scheduled shifts.
Pedro began smoking cigarettes and marijuana at the age of 12. He started using crystal methamphetamine, MDMA, cocaine and alcohol at around 13 years of age. As part of the Therapeutic Correction Assessment, ACT Health provided a letter dated 26 February 2025 which stated that upon Pedro’s induction into custody on 29 January 2025, he reported having engaged in the daily consumption of alcohol, tobacco, ‘ice’ and buprenorphine, as well as smoking “weed” every second day.
Pedro has previously attended the Ted Noffs PALM Residential Program on three separate occasions to address his substance use however absconded on each occasion after a short period. Pedro identified that consumption of alcohol played a significant role in some of his offences.
As part of his Therapeutic Correction Assessment, Pedro advised that he would prefer not to have a condition pertaining to drug and alcohol use as he does not believe he will be able to comply with it. He stated he does not intend to use “hard” substances, but he does plan to drink alcohol and potentially use cannabis. After having the core and potential conditions of a Therapeutic Correction Order explained to him, Pedro stated that he would “prefer to do time”.
Pedro has asthma. He was previously diagnosed with ADHD, Complex Post Traumatic Stress Disorder and Reactive Attachment Disorder. Pedro reported experiencing difficulties with emotional regulation however appears to be successfully developing strategies to help improve this as his emotional outbursts were observed to have become increasingly less frequent. He informed Ms Edwige that he experiences “flashbacks and unwanted memories of his time in out-of-home care, particularly when he is on his own”. He has previously attempted suicide and engaged in self-harm while in Bimberi. He is not currently receiving any mental health supports while at the AMC.
Pedro identified that most of his friends have been in Bimberi or the AMC. He stated to the PSR author that, “I think about all of my friends who do crime, not many friends who are doing well in Canberra, I want to move”. Pedro has expressed a desire to relocate to Queensland once his court matters are finalised.
The Therapeutic Correction Assessment Report concluded the following: [Pedro Swain] has been assessed as unsuitable for a Therapeutic Correction Order as per the items identified in the above table. As per section 133XJ of the Crimes (Sentencing) Act 2005 a Therapeutic Correction Plan has not been created due to [Pedro] being assessed as unsuitable for a Therapeutic Corrections Order. [Pedro] has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), as well as emotional dysregulation that led to psychological intervention by Custodial Mental Health. Additionally, [Pedro] has a significant history of drug and alcohol use, most recently used the day prior to entering custody. [Pedr]o has also identified that he does not wish to engage in conditions that limit his alcohol and drug use, as he believes he will be unable to comply with such conditions. [Pedro]’s dependence on drug and alcohol use is unlikely to change under a Therapeutic Correction Order and are likely to impact [Pedro]’s compliance with conditions imposed in a Therapeutic Correction Order.
On 9 May 2025, I granted Pedro bail which was not opposed by the prosecution. In support of the application there was a comprehensive plan put forward setting out the ways in which Pedro was to be supported in the community. Ms Karrii Johnstone of Yerrabi Yurwang Child and Family Aboriginal Corporation has been a long-term advocate for Pedro and had put an enormous amount of work into carefully planning for Pedro’s release.
Pedro breached his bail conditions through contact with a co-offender. The breach was immediately drawn to my attention and Pedro accepted responsibility for the encounter. His bail was continued. I was provided with another letter prepared by Ms Johnstone dated 15 May 2025 which outlined Pedro’s positive progress since being granted bail on 9 May 2025 which included steps towards establishing a pro-social routine and connections in the community. Ms Johnstone recorded that Pedro had attended each of his scheduled work shifts and had undertaken various “significant foundational tasks” to increase his capacity to live independently.

Remorse is an important consideration in assessing an offender’s prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. Pedro has demonstrated significant insight into his offending. However, the PSR author noted that Pedro’s “attitudes remain to be a criminogenic risk”, particularly “his attitude presented to authority and police”. Given the nature of some of Pedro’s interactions with police, this is unsurprising. The prosecution conceded that Pedro’s defiant attitude toward authority recorded in the PSR must be considered in light of the improper police conduct he experienced whilst in custody.
In relation to the Series 1 offences, Pedro informed Ms Edwige that he was under the influence of ‘ice’ at the time. He further stated in relation to these offences: Don’t really remember it. Have flashbacks of what happened… I know I am doing the wrong thing. I feel bad for the person. It’s not like I don’t care about these people. I do. It’s hard to explain…. Sorry isn’t enough… there’s nothing I can say to him apart from sorry.
In relation to the Series 2 offences, Pedro stated: I was drunk as fuck. Feel like an idiot… It was a pretty fucked up thing to happen to you getting dragged over the counter… I was being really reckless… Feel bad for frightening him and making him wary about people… Especially feel bad for the chick at the register and for everyone in that store. I hate violence towards women. Sorry to her would never be enough. I feel bad for everyone. If I hadn’t drunk that night none of this would have happened. … Domino’s shit I was pretty drunk… I remember that one because I feel really bad. When I was sitting in Bimberi it was playing rounds in my head.
In relation to the Series 3 offences, Pedro disagreed with the facts to some extent, stating that “none of the police had to jump away”. He explained to Ms Edwige that: My other mate came to my friend’s house and he had the car. He said do you want to go and do this… I was doing good before that. I should have said no. I understand that I put myself and the police at risk and it’s a dangerous activity.
As I have already summarised, CC, a victim of the Domino’s Fyshwick robbery, and his mother attended Pedro’s circle sentencing conversation. Uncle Benny prompted a powerful interaction, when he asked Pedro to look at and speak directly to CC. Pedro said to CC, “I’m sorry for like what occurred that night obviously. And yes… sorry is not enough…. I feel like I have to… something bigger than just say sorry.” Pedro acknowledged that if he had been in the same position as CC, he too would be “scared, especially at the time of night that it happened. I wouldn’t want to work night shift anymore… anxious about going to work… anxious around people”.
CC and his mother were each given the opportunity to reply to Pedro. CC stated that he “felt the apology was genuine”. CC insightfully observed that Pedro “needs support” but that he remains “a very scary person” to him. CC’s mother explained the vast negative impacts of Pedro’s conduct on her son, before telling Pedro, “The world is an amazing place, Pedro. For God’s sake, don’t make this where it ends for you.”
I bear in mind that untested expressions of remorse from an offender require caution. That said, given Pedro’s statements of remorse, his early entry of guilty pleas and his preparedness to confront the effects of his offending directly at the sentencing conversation, I am satisfied that he is genuinely remorseful for his conduct.

Pedro experienced a profoundly disadvantaged and traumatic childhood. This must be given “full weight”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44]. His childhood was marked by early exposure to alcohol and substance abuse, physical abuse, domestic violence, instability, neglect, abandonment and maltreatment, and compromised his “capacity to mature and to learn from experience”: Bugmy at [43].
Pedro’s childhood was absent meaningful connection with any adult charged with his care. Ms Edwige observed: [Pedro] described behaviours that indicated he wanted a connection and attention from his foster parents, though this was reportedly not forthcoming. He reported an absence of love, care and attention in his relationships with his primary caregivers. [Pedro] described feelings of loss and grief associated with his foster parent’s inability to demonstrate genuine regard. The impact this had on [Pedro]’s sense of self, identity, belonging and connectedness was profound.
The only continuous feature of Pedro’s life has been instability. He has spent much of his teenage life either in custody or at residential facilities. As noted by Ms Edwige, “If the primary caregiver is replaced by an institution this impacts on the meaningful development of self-identity and in turn how the child and later adult relates to others”.
Pedro has not had the kind of consistent moral guidance necessary to properly navigate the challenges of adolescence. As a consequence, Pedro necessarily “has fewer emotional resources to guide his (or her) behavioural decisions” than a person who had a “normal” or “advantaged” upbringing: R v Millwood [2012] NSWCCA 2 per Simpson J at [69] (with whom Bathurst CJ and Adamson J agreed).
In DPP v Crawford (a pseudonym) [2023] ACTSC 266; 105 MVR 319 at [45], I made the following observation of the offender in that matter which is apposite here: The offending, which can be characterised as impulsive, immature and unsophisticated, is reflective of the emotional and physical instability that attended to the offender’s formative years. This of course does not absolve the offender of any responsibility for his conduct, but rather sheds light on his conduct. Verdins considerations
In addition to the diagnoses outlined above at [184], the psychological report of Ms Edwige concluded the following: It is my clinical opinion that at the time of the offences [Pedro] had a mental health impairment that was clinically significant and arose from complex post traumatic stress disorder and meets the diagnostic criteria in the ICD 11 for this disorder. It is my opinion that this disorder had a significant impact on [Pedr]o’s ability to make considered and appropriate choices and impaired his ability to make reasoned judgements, think clearly, regulate his behaviour and fully appreciate the wrongfulness of the act. I consider this and [Pedro]’s childhood background and development to be a contributing factor to the offences committed.
Ms Edwige further observed that, “[Pedro] lost the protective nature of his sibling relationships which acted as a buffer and or mitigated the likelihood of mental health problems”. This observation aligns with the timing of the escalation in Pedro’s behaviour which has led to his persistent engagement with the criminal justice system.

Rehabilitation is a matter of particular importance in this sentencing task and may be given more weight than other purposes of sentencing pursuant to s 133C(1) of the Crimes (Sentencing) Act. This recognises the interest of the community in a sentencing outcome that steers young offenders away from the youth justice system so that they might avoid the pathway to adult offending.
Further, pursuant to s 133C(2), I must have particular regard to the common law principle of individualised justice. In MT v The Queen [2021] ACTCA 26; 17 ACTLR 26, the Court noted at [64] that: We infer that, when the 133C requirement to pay “particular regard” to “individualised justice” is read together with the discretion to give more weight to the sentencing purpose of rehabilitation, the result is that, if a young offender has good prospects of rehabilitation, those prospects will weigh heavily in the sentencing exercise.
The report of Ms Edwige provided detailed treatment recommendations including cultural supports and a cultural healing plan. She specifically identified that Pedro would benefit from “supportive drug and alcohol counselling and therapeutic work that focuses on skill development in the areas of self-regulation, coping skills, resilience building and self-esteem”.
Arising from the absence of familial connection and his only long-term foster placement being with a non-indigenous family, Pedro was deprived ongoing cultural connection. Arising from his time in detention, Pedro has had limited opportunity to engage in cultural practices and develop extended cultural relationships. Uncle Benny said to Pedro, “you’ve been denied about particularly what’s in the blood that runs in your veins, Birpai blood, about your culture”.
Despite this, Pedro has a strong sense and is rightly proud of his Aboriginal identity. As Ms Edwige observed, cultural connectivity effects overall wellbeing and promotes resilience. Ms Edwige confirmed what was reiterated by the Elders Panel, and that is the strength to be found in Pedro’s cultural identity and connectedness to culture, citing Significance of Culture to Wellbeing, Healing and Rehabilitation (Dr Paul Gray and Vanessa Edwige, June 2021) and observing: Aboriginal and Torres Strait Islander conceptualisations of wellbeing and healing are inextricably bound to cultural understandings of connectedness: our sense of self, identity, and sense of belonging to family, community and Country. Engagement in, and respect for these cultural frameworks and traditions promote resilience and is critical to healing.
Ms Edwige concluded: It is my opinion that with psychological support and with the treatment and healing plans outlined above, [Pedro]’s prospects of rehabilitation are positive. [Pedro] is a very intelligent young man. He has enormous potential. Provided with the right supports and meaningful connections [Pedro] has the ability to thrive. [Pedro] expressed a strong desire to make positive change to his life. [Pedro] is willing to engage with supports that will enhance his wellbeing and will in my opinion have a positive impact on [Pedro]’s ability to develop prosocial coping skills, enhance self-esteem/confidence, address his significant trauma, grief and loss and further develop his resilience and stress tolerance to unpleasant thoughts and feelings. It is anticipated that these supports will positively impact on [Pedro]’s quality of life and his psychological wellbeing.
To the Elders Panel, Pedro rightly acknowledged that he has not had “a normal life” and expressed his desire to have a future different from the life he has lived so far. When asked by Aunty Dulcie Ritchie “Where to from here?”, Pedro replied, “Try to get on track… Small moves to like better myself like I’ve been doing in jail”.
Pedro expressed his aspiration to one day own a car. He told the Elders Panel of his dream for employment leading to financial freedom. Pedro identified one pro-social friend in the community who has successfully ended their engagement with the criminal justice system. Pedro identified the importance of having people in his life who are positive influences on him. He demonstrated insight in recognising that his father and the majority of his friends are unlikely to assist him in moving away from past patterns of behaviour that have seen him appear in court. Pedro has engaged in five sessions of the SMART Recovery Program within the AMC which he described as “helpful”.
The risk of institutionalisation is squarely raised. It is a factor of significant relevance given Pedro’s age and the need to promote his prospects of rehabilitation. The Australian Institute of Criminology (Interventions for Prisoners Returning to the Community: A report prepared by the Australian Institute of Criminology for the Community Safety and Justice Branch of the Australian Government Attorney-General’s Department, 2005) found: …the experience of incarceration may have subtle, long-term effects on some prisoners… Imprisonment imposes a rigid routine on an offender that removes the potential for individual decision-making in many aspects of daily life… In removing opportunities to exercise [these] skills, imprisonment can lead to institutionalisation, in which a prisoner becomes decreasingly able to live independently, and may lose a sense of personal responsibility. Other manifestations of institutionalisation include hypervigilance, aggression, emotional over-control and loss of self-worth.
As observed by Ms Edwige, the impact of youth detention as a source of institutionalisation is at an “accelerated” rate compared to adults “as the biological, psychological and social development of detained children are still in progress”. Further, “children are less able to tolerate highly constrained environments without distorting their developmental trajectory” (see Institutionalisation, Dr Robyn Shields AM and Dr Andrew Ellis, 2024).
At his bail application on 3 February 2025, having been remanded at the AMC five days prior, counsel on Pedro’s behalf informed the Court that: The last five nights he’s not enjoyed in the AMC. He has only come out of his room about an hour each day… He has no-one to talk to. He has no-one to call. It’s not a place that he wants to be.
Approximately one month later, Pedro informed the PSR author that it is “Not that bad in here… Judge Taylor told me not to get too used to jail, I think I’ve already done that… kind of worried”. Further, when AMC ‘Team Leader’ Peter Kenna was asked by the PSR author to comment on Pedro’s progress since entering the AMC, he stated “[Pedro] is settling in well, a little too well… and has a lot of friends in AMC (sic)”.
The mysteries of adult prison have been dispelled for Pedro and it is concerning that he soon became accustomed to life at the AMC. Given the option of a Therapeutic Correction Order, Pedro indicated a preference for full-time detention. The risk of institutionalisation has the capacity to drastically impede his rehabilitative potential. By virtue of his youth, Pedro has the capacity to be guided toward positive change notwithstanding some of the negative patterns he has thus far established: see Azzopardi v R [2011] VSCA 372; 35 VR 43 and R v Forster-Jones (No 2) [2019] ACTSC 286. The effect on Pedro of incarceration in an adult prison at this stage of his life would undoubtedly hinder his capacity for rehabilitation. This includes the risk that the environment, as well as the anti-social attitudes it fuels, will become normalised.
Rehabilitation is a pursuit in both Pedro and the community’s interests, it being the most durable guarantor of community protection: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].
Like Ms Edwige, I am satisfied that with the appropriate supports in place Pedro’s prospects of rehabilitation are positive. During the sentencing conversation, Aunty Sherone Munro insightfully observed that Pedro appeared “a bit disconnected from everything”, specifically his community, his culture, and his family. It is undeniable I think that the severe level of disconnection experienced by Pedro has contributed to his offending.
The provision of supports that will assist Pedro to develop positive connections, life skills and a purposeful existence are critical to his capacity for reform. Pedro’s negative response to the prospect of a Therapeutic Correction Order whilst a concern, must be viewed through the prism of a young man who is desirous of reducing the level of contact he is made to have with those he perceives to be in positions of mainstream authority.
Pedro has demonstrated enthusiasm to engage with the comprehensive support plan Ms Johnstone has developed. It is a plan which puts Pedro in the best possible position to dramatically alter the trajectory of his life. To enhance Pedro’s prospects for reform, the outcome of this matter will need to give effect to the plan Ms Johnstone has developed and motivate Pedro to continue to willingly engage.

The prosecution referred me to the following outcomes from this jurisdiction said to be comparable to the aggravated robbery offences: R v OI [2020] ACTSC 286, R v NF [2018] ACTSC 165, R v UD [2017] ACTSC 210 and R v Wilson [2022] ACTSC 7. Pedro’s previous sentencing outcome in the Childrens Court was also drawn to my attention: Police v Pedro Swain (a pseudonym) [2024] ACTCC 1. I have also had regard to the sentencing outcome recorded in DPP v Myers (a pseudonym) (No 4) [2022] ACTSC 308. Comparable cases do not operate to give effect to strict mathematical equivalence as between sentencing outcomes for the same offence. They assist to ensure consistency in the application of principles.
In R v OI, the young person was 17 years old at the time he was sentenced for the aggravated robbery of a taxi driver. The young person held a knife to the victim’s neck and threatened to kill him. The young person had a stable and supportive family and a limited criminal history. The offending occurred in the context of the young person’s struggle with illicit substance use. The young person demonstrated remorse, had addressed his substance use issues and attained full-time employment. The young person was sentenced to imprisonment for 4 months and 15 days to be wholly suspended upon entering an undertaking to be of good behaviour for 12 months.
In R v NF, the young person was sentenced for 12 offences, including arson, property damage, aggravated robbery and make demand with threat to endanger health, as well as being re-sentenced for an additional 3 offences. The conduct of the aggravated robbery and make demand with threat offence was precipitated by the young person and his adult co-offender agreeing to give a lift to the victim, who was not known to the offenders, in exchange for $20. The three men stopped in a carpark to smoke cigarettes at which time the young person and his co-offender physically attacked the victim. They struck the victim numerous times before holding a knife to his throat. The young person then produced a mobile phone to film the victim and instructed the victim to say various demeaning things to the camera. The offenders then stole the victim’s watch and mobile phone before threatening to attend the victim’s house if he reported the matter to the police. The young person had a “loving” and “supportive” family. He demonstrated limited remorse for his offending and had a criminal history. The young person was sentenced to 2 years and 3 months of imprisonment for the aggravated robbery offence and 5 months of imprisonment for the make demand with threat offence, as part of a total sentence of imprisonment of 5 years and 3 months.
In R v UD, the young person was sentenced for two counts of aggravated robbery and one count of riding in a motor vehicle without consent, each of which were committed while he was 16 years of age. The first count involved brandishing a meat cleaver at a residential youth worker and threatening to stab her after he and his sister stole petty cash, a credit card and a motor vehicle. The second count related to a separate incident where the young person and a co-offender pushed a pedestrian against a wall, demanded his possessions and held a toy pistol to his head. The young person had experienced a traumatic and disadvantaged upbringing. He did not have a criminal history. The young person spent a “substantial period” in pre-sentence custody. In relation to each offence, the young person was sentenced to a good behaviour order for a period of two years.
In R v Wilson, the offender was sentenced for one count of aggravated robbery. The offence was committed in company and involved threatening the victim with a steak knife before forcing him to attend an automatic teller machine to withdraw $100. The offender had various mental health difficulties, significant familial support and no criminal history. He was sentenced to 9 months of imprisonment, suspended after serving 32 days upon entering an undertaking to be of good behaviour for 12 months.
In DPP v Myers (a pseudonym) (No 4), the young person was sentenced for an offence of aggravated robbery which involved co-offenders and “significant violence”. The young person had an “overwhelmingly tragic history”, a mild intellectual disability and post-traumatic stress disorder. The young person was sentenced to 20 months of imprisonment to be suspended after serving 10 months upon entering an undertaking to be of good behaviour for 12 months.
I have also had regard to the outcomes summarised in DPP v Clarke (No 2) [2023] ACTSC 261 at [52]-[56] with respect to driving offences noting all the outcomes contained therein involved adult offenders.

The BWC footage of Constable Iliano Thompson, the officer responsible for Pedro’s arrest, was played at the sentencing conversation. The footage captured the conduct referred to at [116] to [119] of the agreed facts and can be summarised as follows.
The BWC footage began with the officer pursuing Pedro on foot. The officer located Pedro in a confined space along the side of a house. Once located, Pedro did not make any attempt to flee the area. Pedro immediately raised his hands in a gesture of surrender and began to lower himself to the ground as the officer shouted, “what are you doing cunt, get on your stomach, get on your fucking stomach”.
Pedro immediately laid down on his stomach and can be heard repeatedly saying “sorry” to the officer. Constable Thompson used his left hand to hold the back of Pedro’s vest while holding a taser in his right hand. While Pedro was lying face down on the ground, in full compliance with the direction which had been given, the officer without warning, discharged his taser for a number of seconds into Pedro’s back. A second police officer joined Constable Thompson whilst the taser was being deployed and yelled “get on the fucking ground”. Pedro was already face down on the ground.
Having discharged his taser, Constable Thompson yelled “stay down… fucking idiot”. Immediately after being tasered, Pedro can be heard audibly wheezing consistent with a person experiencing respiratory distress. Pedro has asthma. The second officer asked Pedro whether he is “all good?” as he moved Pedro’s hands behind his back and placed handcuffs around his wrists. While handcuffed, Pedro’s respiratory difficulties continued and can be easily heard on the footage. Pedro’s face was noticeably red and he was wheezing loudly. Another officer asked Pedro about his “puffer”. Pedro was unresponsive. Pedro became unconscious shortly thereafter. Officer Thompson checked Pedro’s pulse. The footage also captured the officers using their radio to request the attendance of an ambulance and describing Pedro’s status as “unresponsive but breathing”. After some time, Pedro regained consciousness and was eventually transported to the Watch House.

At 3:32am on 15 June 2024, Pedro was escorted into a cell in the Watch House. The CCTV footage from within the cell was played at the sentencing conversation and can be summarised as follows.
Pedro entered the cell with his hands handcuffed in front of him holding his vest over the top of his hands. Pedro silently entered the cell and was entirely compliant. He was accompanied by three police officers. Another two police officers were visible in the hallway at the entrance to the cell. The police indicated they intended to search Pedro. Pedro sat down on the bench. One of the police officers grabbed Pedro’s left forearm. In response, Pedro pulled his arms away from the police officer. The officer maintained his hold on Pedro’s arm. The police officer repeated an instruction to Pedro to stand up. Before Pedro could comply with the instruction, Sergeant Mellor jumped up to stand on the bench where Pedro is seated. There is then a dramatic escalation in the use of force by the police.
Sergeant Mellor, while standing on the bench behind Pedro, tackled him to the ground. Sergeant Mellor was then assisted by two other police officers and a further three police officers were at the entrance to the cell. Four police officers pinned Pedro to the ground and pushed his face into the adjoining wall. Pedro can be heard repeatedly asking what the officers are doing. Two officers began to remove Pedro’s clothing. Pedro began screaming. Sergeant Mellor immediately responded by using his right hand to cover Pedro’s mouth. The officers then use a pair of scissors to cut Pedro’s clothing from his body, at which point there are eight police officers present in the cell.
The police officers forced Pedro face down on his stomach with his legs crossed and bent up, so that his feet were pressed against his buttocks. In effect, Pedro was in a ‘hogtie’ position. Four officers remained on top of Pedro while he repeatedly screamed for them to “get off”. After removing Pedro’s jumper and pants, the officers each exit the cell, leaving Pedro face down on the floor in handcuffs in his underwear. Pedro’s handcuffs were not removed for another 46 minutes.
Despite the prosecutor’s subsequent requests for clarification about the delay in removing Pedro’s handcuffs, the police did not provide any explanation for Pedro’s treatment.
Whilst extra-curial punishment is not included in the factors identified as relevant sentencing consideration in s 33(1) of the Crimes (Sentencing) Act, that list does not limit the matters that might properly be taken into account by a sentencing court (s 33(3)). Extra-curial punishment has long been recognised as a factor that can properly be considered in mitigation. In R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 James J (with whom Hulme J and Tobias AJ agreed) after an examination of several authorities, observed at [62]: [W]hile it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.
The prosecutor accepted that the treatment Pedro was subjected to by police was properly regarded as extra-curial punishment.
The footage was played at the sentencing conversation the effect of which was that the Elders Panel were exposed to the treatment Pedro received. On any view, the footage was shocking. It was plainly distressing for many of those involved in and observing the sentencing conversation.
The Watch House intake process is a serious process which among other things is designed to identify any risk that a person in custody may present including whether they are at risk of self-harm.
The final report from the Royal Commission into Aboriginal Deaths in Custody was released in 1991 and made 339 recommendations. It was at the time, and indeed remains, a blueprint for all manner of issues which effect the experience of Aboriginal people in the justice system. Now is not the time for a treatise on the successful implementation of those recommendations. Relevantly, it contained numerous recommendations intended to improve the health and safety of Aboriginal people in police custody. It was well placed to do so having examined some 120 deaths in custody of Aboriginal people.
Recommendation 134 provided: That police instructions should require that, at all times, police should interact with detainees in a manner which is both humane and courteous. Police authorities should regard it as a serious breach of discipline for an officer to speak to a detainee in a deliberately hurtful or provocative manner.
It is a sad indictment on a modern police force that in 2025 recommendation 134 remains relevant.
It should not be forgotten that Pedro was being inducted into the Watch House having recently been subjected to a taser and falling unconscious. It would be an insult to intelligence to suggest that Sergeant Mellor’s questions and commentary were a serious attempt to enquire into Pedro’s wellbeing. Indeed, by his conduct Sergeant Mellor ensured that any risk that Pedro might have presented while in his custody was unlikely to be revealed. The conduct of Sergeant Mellor during the induction process was cruel and humiliating. It was intended to be. Of that I have no doubt. It was conduct which revealed a callous and casual disregard for the duty of care that as Watch House Sergeant he was tasked with discharging. That duty existed regardless of the offences Pedro was suspected of committing and irrespective of any lack of deference he demonstrated for the authority of police.
There was no obvious reason that could be identified from the footage as to why any of the force used against Pedro was necessary and none was offered. It had all the hallmarks of a show of excessive, brute force intended to make clear to Pedro that he was powerless. A continuation of the humiliation he had been subjected to during the initial intake. That Pedro was not attended to by any member of police for a further 46 minutes confirmed that no officer was especially troubled by the force used against him or the way he had been left in his cell.
Sergeant Mellor’s discharge of his Watch House duties was a shameful reflection of his personal attitude. An attitude which rendered him entirely unsuitable for the role. It is difficult to understand the mindset of a professional, trained law enforcement officer who would taunt a 17-year-old boy about having the “guts” to commit suicide.
But it is not only the Sergeant who should be scrutinised. Other police stood around and smirked while the taunting occurred. Not a single officer appeared to make a sound of concern or discomfort about Sergeant Mellor’s engagement with Pedro. This was despite knowing that their conduct was being recorded.
Likewise, not a single officer present in Pedro’s cell appeared anything other than a willing participant as they either watched on or directly assisted to pin him down and cut his clothes off, leaving him handcuffed, face down on the floor of the cell. Such a cavalier discharge of the duty of care owed to Pedro and the willingness of other police to look the other way while it occurred, reflects poorly on the approach to compliance with custodial processes at the Watch House.
Pedro’s treatment at the Watch House were examples of the ‘blue code’ or the ‘blue curtain’. The silence that permits abuses of power, the blurring of protocols and the subjective implementation of proper process to occur in policing services. It is conduct which only confirmed the mistrust that Pedro already had in mainstream authority figures.
I am compelled to record that Pedro being unjustifiably tasered, demeaned and physically punished by police has a broader, pernicious effect. It erodes confidence that the general community have in adherence by police to the basic protections designed to keep people safe when they are in their custody; something I observe that the relationship in particular between police and many members of the Aboriginal community can ill afford.
The observations I made in Coulter at [5] and [11]-[13], another matter in which a young Aboriginal male offender was inexplicably tasered, bear repeating: The seriousness of an offender’s conduct is not a licence to disregard the obligations that attend to the execution of power by police. Those obligations exist in every instance that an alleged offender is arrested or dealt with by police, notwithstanding the nature of the offence they are alleged to have committed. The boundaries of police power do not blur according to the nature of an alleged offence. … While some in our community might think it should be the role of arresting police to impose punishment or to enact retribution or to teach an offender a lesson about the error of their ways, it is not their role. If it were, we would have a different kind of system of justice than the one I promised to administer. I cannot say that the use of a taser in this matter, where the wisdom of the decision to use it would appear to be at least questionable, is an isolated example in my experience as a judicial officer. That experience is part of the reason that I have determined to remark upon it. The deliberate use of excessive force during the course of an arrest demeans the body of important police work regularly performed across our community with care, respect and diligence. I do not underestimate the very real challenge of community policing, some of which is dramatically exposed by the offender’s conduct on this occasion. The challenge of the work cannot be recognised by endorsing or ignoring a relaxed approach to reasonable constraints on the exercise of police power. The courts have a duty to be vigilant on behalf of the entire community about the obligations that attend to the exercise of police power, where life and liberty can be affected. Conclusion regarding the conduct of the police
On 14 March 2025, I made an order directing that the Chief Police Officer be provided with a copy of the footage of all three incidents from 15 June 2024. I was informed by the prosecutor that upon receipt of the footage, the Director’s office had referred the matter to the AFP and a “PRS investigation” was already underway. I understood this to be a reference to the internal area of the AFP who investigate the conduct of police members. The prosecutor noted that the Director “plainly cannot defend or condone” the conduct of police revealed in the footage. There was no evidence or information before me as to the results of any investigation of the conduct captured on the footage.
The extra-curial punishment suffered by Pedro should carry significant weight.

In sentencing Pedro, I must have regard to the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act. The reduction of his moral culpability moderates, to a substantial degree, the weight to be attached to punishment, denunciation and general deterrence. I have already acknowledged that the sentence imposed must recognise the harm occasioned to the victims of Pedro’s offending conduct, eloquently captured in the victim impact statements. Additionally, Pedro must be deterred from engaging in this kind of conduct.
Sensibly there was no dispute that a term of imprisonment was warranted. Bearing in mind that a period of imprisonment is a sentence of last resort for a young person, I am satisfied that it is the only appropriate outcome in view of the seriousness of the offending. The term of imprisonment I impose must be for the shortest appropriate term: s 133G(2) of the Crimes (Sentencing) Act.
Pedro has spent a considerable period in detention in relation to these offences. The prosecution supported the imposition of a sentence that did not require him to spend any further time in full-time detention. This was an appropriate acknowledgement of the need to promote Pedro’s prospects of rehabilitation and the comprehensive plan in place to support his long-term release into the community.
Pedro is fortunate to have an advocate of the calibre of Ms Johnstone in his corner. In conjunction with Children, Youth and Families, Ms Johnstone has secured an ‘After Care’ support package for Pedro which can continue until he is 25 years of age. Ms Johnstone has done all that could possibly be done to devise a plan which eases Pedro into the independent life that he seeks, while at the same time providing sufficient supports to address some of the factors driving his criminal offending and which make him vulnerable to poor decision making. In the short-term Pedro will be employed which will provide him with some financial freedom and critically, the opportunity to experience the dignity and purpose that comes with paid employment. On a more practical level, employment will require Pedro to maintain a personal routine and expose him to people using their time meaningfully.
Longer term, the plan for Pedro includes engagement in pro-social physical activities, cultural activities, psychological supports and drug and alcohol services. Significantly Ms Johnstone identified that Pedro will be assisted when it becomes appropriate and possible to reconnect with his siblings.
The assessment of Pedro as unsuitable for a Therapeutic Correction Order eliminates this as an appropriate outcome. The kind of supervision and supports that might have been made available to Pedro under such an order can be given effect by the imposition of a requirement that he engage with supervision. In light of the relationship of trust that Ms Johnstone has worked hard to build with Pedro, it is unsurprising that it would be his preference to engage in the plan that she has developed and that she can implement.
It is a plan which gives Pedro the very best chance of successfully moving away from engagement with what would now be, given his age, the adult criminal justice system. It is in Pedro’s interest and the community’s interest that the prospect that Pedro might realise a future different to the one that his childhood had mapped out for him, be given a chance.
It is appropriate to deal with some of the offences by imposing a period of full-time imprisonment backdated to take account of the time Pedro has already spent in detention. The remaining offences will be dealt with by the imposition of suspended periods of imprisonment. This will see the court maintain a supervisory role. Any conduct which results in a breach, not limited to reoffending, can be drawn to the courts attention and trigger a reconsideration of whether the sentence of imprisonment should continue to be served in the community.
Pedro is entitled, like all teenagers, to make mistakes and learn from them. The cost of those mistakes cannot be community safety. Pedro must understand, that if he is to live the independent life he seeks, any mistakes made in the future cannot risk a breach of the orders that I make.
As I did for co-young person Kaye, I intend to structure the sentences so that as each period of imprisonment expires, that sentence will no longer hang over Pedro so that ongoing compliance with the obligation to be of good behaviour will affect the number of suspended sentences which remain operative. Structuring the sentences in this way reflects the significance of rehabilitation and allows Pedro to progressively move beyond the sentences imposed upon him, if he lives up to the prospect of rehabilitation that I am satisfied he embodies.
For the first series of offences: (i) The starting point for the aggravated dangerous driving offence (CH2024/319) is 10 months of imprisonment reduced to 7 months and 15 days for the plea of guilty. (ii) The starting point for the drive motor vehicle without consent offence (CH2024/320) is 4 months of imprisonment reduced to 3 months for the plea of guilty. (iii) The starting point for the drive while disqualified offence (CH2024/321) is 3 months of imprisonment reduced to 2 months and 7 days for the plea of guilty.
For the second series of offences: (i) The starting point for the aggravated robbery offence (CH2024/323) is 20 months of imprisonment reduced to 15 months for the plea of guilty. (ii) The starting point for the aggravated robbery offence (CH2024/394) is 20 months of imprisonment reduced to 15 months for the plea of guilty. (iii) The starting point for the drive motor vehicle without consent offence (CH2024/398) is 4 months of imprisonment reduced to 3 months for the plea of guilty. (iv) The starting point for the make demand with threat offence (CH2024/1120) is 10 months of imprisonment reduced to 7 months and 15 days for the plea of guilty. (v) The starting point for the minor theft offence (CH2024/702) is 1 month of imprisonment reduced to 22 days for the plea of guilty.
For the third series of offences: (i) The starting point for the drive motor vehicle without consent offence (CH2024/757) is 4 months of imprisonment reduced to 3 months for the plea of guilty. (ii) The starting point for the aggravated dangerous driving offence (CH2024/759) is 12 months of imprisonment reduced to 9 months for the plea of guilty. (iii) The starting point for the drive motor vehicle near police officer offence (CH2024/760) is 16 months of imprisonment reduced to 12 months for the plea of guilty. (iv) The starting point for the drive while disqualified offence (CH2024/761) is 3 months of imprisonment reduced to 2 months and 7 days for the plea of guilty.
It is in Pedro’s interest that he be motivated to reconsider some of the relationships that he has developed which have not been in his interests. In an effort to require him to rethink some of those associations and make a genuine attempt at broadening his social circle, I consider it necessary and appropriate to make a non-association order with respect to Wayne Kaye (a pseudonym). I have formed that view taking into account ss 23 and 133I of the Crimes (Sentencing) Act. Counsel for Pedro indicated that he would be willing to comply with such a condition. When Pedro’s grant of bail was continued on 13 May 2025 it included a condition that he not have contact with Wayne Kaye. I will make it so that the non-association order expires on 13 August 2025 the result of which is an overall period of three months restricting Pedro from contact with Master Kaye.
Convictions for the drive while disqualified offences (CH2024/321 and CH2024/761) and the dangerous driving offences (CH2024/319 and CH2024/759) result in automatic licence disqualification of 12 months and 3 months respectively. Consistent with the approach in Director of Public Prosecutions v Holder (No 2) [2023] ACTSC 167 at [93]- [95], Director of Public Prosecutions v XK [2023] ACTSC 141 and McCurley v Beath [2017] ACTSC 196; 268 A Crim R 263, and pursuant to s 69 of the Road Transport (General) Act 1999 (ACT), I order that the automatic disqualifications be served concurrently, an order not opposed by the prosecution. Orders
For those reasons, I make the following orders: (1) On each offence I record a conviction. (2) For the offence of aggravated dangerous driving (CH2024/319), I impose a sentence of 7 months and 15 days of imprisonment to commence on 31 May 2024 and end on 14 January 2025. (3) For the offence of driving a motor vehicle without consent (CH2024/320), I impose a sentence of 3 months of imprisonment to commence on 31 May 2024 and end on 30 August 2024. (4) For the offence of driving while disqualified (CH2024/321), I impose a sentence of 2 months and 7 days of imprisonment to commence on 31 May 2024 and end on 6 August 2024. (5) For the offence of trespass (CH2025/115), pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) the young person is released on recognizance in the sum of $150 on condition that he will be of good behaviour for a period of 14 days. (6) For the offence of aggravated robbery (CH2024/323), I impose a sentence of 15 months of imprisonment to commence on 15 October 2024 and end on 14 January 2026. (7) For the offence of aggravated robbery (CH2024/394), I impose a sentence of 15 months of imprisonment to commence on 15 April 2025 and end on 14 July 2026. (8) For the offence of making a demand with a threat to endanger the health, safety or physical wellbeing of a person (CH2024/1120), I impose a sentence of 7 months and 15 days of imprisonment to commence on 31 May 2026 and end on 14 January 2027. (9) For the offence of driving a motor vehicle without consent (CH2024/398), I impose a sentence of 3 months of imprisonment to commence on 15 November 2026 and end on 14 February 2027. (10) For the offence of minor theft (CH2024/702), I impose a sentence of 22 days of imprisonment to commence on 24 January 2027 and end on 14 February 2027. (11) For the offence of driving a motor vehicle near a police officer (CH2024/760), I impose a sentence of 12 months of imprisonment to commence on 15 October 2026 and end on 14 October 2027. (12) For the offence of aggravated dangerous driving (CH2024/759), I impose a sentence of 9 months of imprisonment to commence on 15 May 2027 and end on 14 February 2028. (13) For the offence of driving a motor vehicle without consent (CH2024/757), I impose a sentence of 3 months of imprisonment to commence on 15 December 2027 and end on 14 March 2028. (14) For the offence of driving while disqualified (CH2024/761), I impose a sentence of 2 months and 7 days of imprisonment to commence on 8 February 2028 and end on 14 April 2028. (15) This is a total period of 3 years, 10 months and 15 days of imprisonment commencing on 31 May 2024 and ending on 14 April 2028. (16) The sentence on the charge of aggravated robbery (CH2024/323) is to be suspended today after the young person has spent 7 months and 6 days in detention, upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 14 January 2026. (17) The sentence on the charge of aggravated robbery (CH2024/394) is to be suspended today after the young person has spent 1 month and 1 day in detention, upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 14 January 2026. (18) The sentence on the charge of making a demand with a threat to endanger the health, safety or physical wellbeing of a person (CH2024/1120) is to be fully suspended upon the young person entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 14 January 2027. (19) The sentence on the charge of driving a motor vehicle without consent (CH2024/398) is to be fully suspended upon the young person entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 14 February 2027. (20) The sentence on the charge of minor theft (CH2024/702) is to be fully suspended upon the young person entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 14 February 2027. (21) The sentence on the charge of driving a motor vehicle near a police officer (CH2024/760) is to be fully suspended upon the young person entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 14 October 2027. (22) The sentence on the charge of aggravated dangerous driving (CH2024/759) is to be fully suspended upon the young person entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 14 February 2028. (23) The sentence on the charge of driving a motor vehicle without consent (CH2024/757) is to be fully suspended upon the young person entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 14 March 2028. (24) The sentence on the charge of driving while disqualified (CH2024/761) is to be fully suspended upon the young person entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 14 April 2028. (25) The licence disqualification periods of 12 months, automatic upon conviction for the drive disqualified offences (CH2024/321 and CH2024/761) and 3 months, automatic upon conviction for the aggravated dangerous driving offences (CH2024/319 and CH2024/759), are to be served concurrently. (26) In addition to the core conditions, for the period that he is required to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) the young person is to accept the supervision of the Director-General and comply with all reasonable directions until 14 April 2028 or such lesser period deemed appropriate by the Director-General. (27) I direct that supervision directions should include and incorporate the offender’s current engagement with ACT First Nations service providers including but not limited to: (a) Yerrabi Yurwang; (b) Winnunga Nimmityjah Aboriginal Health and Community Services; and (c) Ms Karrii Johnstone. (28) In addition to the core conditions on CH2024/323 I make a non-association order that prohibits the young person from being with or communicating in any way (including electronically) with Wayne Kaye (a pseudonym) commencing today and ending on 13 August 2025.

DPP v Swain

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