[2015] ACTSC 179

See [5] to [8] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - re-sentence of juvenile offender after successful appeal from Magistrates Court upheld on basis that full-time custodial part of sentence too long having regard to offender's age and rehabilitation prospects - most sentences re-imposed in same form - new sentence suspended immediately, nearly half having been served in full-time custody.

Crimes (Sentence Administration) Act 2005 (ACT)

1. For reasons set out in my decision on appeal from the Magistrates Court (IM v McDevitt [No 1] [2015] ACTSC 178), I must re-sentence IM for 30 offences, being:

(a) six aggravated burglaries;

(b) three burglaries;

(c) 12 thefts;

(d) six taking or using a motor vehicle without consent;

(e) two obtaining financial advantage by deception; and

(f) one failure to appear on a bail undertaking.

2. The nature and circumstances of those offences are set out in the appeal decision. As noted in that decision, the sentences as such were, with two exceptions, on the lenient end of the spectrum, but the 58% non-parole period set in the Magistrates Court was, in my view, manifestly excessive. The grounds for reaching that conclusion were, in summary:

(a) that the offences were committed when IM, who had not previously been in custody, was 15 or 16;

(b) that IM was an indigenous youth who had grown up without a positive role model, his father having spent much of IM's life in custody;

(c) that the material before his Honour indicated that IM was either or both very shy (as submitted by his counsel) or simply inarticulate even by the standards of 17yearold boys, and that this may have explained his inability to express remorse or insight into his offending in a way expected by the presentence report author;

(d) that his Honour had found that IM had a supportive mother, no mental health concerns, and no substance abuse concerns, and accordingly appeared to have good prospects of rehabilitation, which should be promoted by suspending a significant proportion of the total sentence; and

(e) that the proportion of the total sentence not suspended was roughly 58% of the total sentence, a proportion falling well within the usual range of non-parole periods set for adult offenders, rather than within the usual range of pre-suspension custodial periods set for juvenile offenders with good prospects of rehabilitation.

3. An updated presentence report has been made available at short notice for today's re-sentencing, for which I am grateful to Youth Justice.

4. It indicates that IM's behaviour has been excellent since he entered Bimberi, and that he is a model resident. He has been engaged in educational programs in Bimberi, and is on track to complete Year 11 this year. His mother is willing to have him back in the family home in Wagga Wagga, and IM is keen to return there. IM has told Youth Justice workers that he does not want to stay in or return to custody, but that he currently feels good and no longer gets angry.

5. IM, please stand. I note the convictions recorded by his Honour Magistrate Morrison on 11 July 2014, and I sentence you for the 30 offences as follows:

(a) for the first aggravated burglary (CH14/401), to six months imprisonment from 6 May 2014 to 5 November 2014;

(b) for the associated theft, to three months imprisonment from 6 May 2014 to 5 August 2014;

(c) for the related offence of taking a motor vehicle without authority, to three months imprisonment wholly concurrent with the theft sentence that I have just set out;

(d) for the next aggravated burglary (CH14/427), to six months imprisonment from 6 June 2014 to 5 December 2014;

(e) for the associated theft, to four months imprisonment from 6 June 2014 to 5 October 2014;

(f) for the offence of take motor vehicle without authority associated with those offences, to three months imprisonment wholly concurrent with the theft sentence that I have just imposed.

Those three sentences are to be served so as to add one month to the original six months.

(g) on the two charges of obtain financial advantage by deception, I note the conviction recorded and impose no other penalty;

(h) on the next aggravated burglary (CH497/2014), to six months imprisonment from 6 July 2014 to 5 January 2015;

(i) for the associated theft, four months imprisonment from 6 July to 5 November 2014.

Those two sentences are accumulated to take the total sentence to eight months imprisonment.

(j) for the aggravated burglary (CH500/2014), to six months imprisonment from 6 August 2014 to 5 February 2015;

(k) for the associated theft, to four months imprisonment from 6 August 2014 to 5 December 2014;

(l) for the associated take motor vehicle without authority, to three months imprisonment from 6 August 2014 to 5 November 2014;

(m) for a further aggravated burglary (CH502/2014), to six months imprisonment from 6 September 2014 and finishing on 5 March 2015;

(n) for the associated theft, to one month's imprisonment from 6 September 2014.

Those last two aggravated burglaries, in effect, added a month each to the total sentence, so we are now up to 10 months.

(o) for the aggravated burglary (CH504/2014), to six months imprisonment from 6 October 2014 to 5 April 2015, so that sentence is almost finished;

(p) for the associated theft, to one month's imprisonment from 6 October to 5 November 2015, so that sentence has now been served;

(q) for the burglary (CH494/2014), to five months imprisonment from 6 December 2014 to 5 May 2015;

(r) for the associated theft, to two months imprisonment from 6 December 2014 to 5 February 2015, so that offence has also been finished with, and indeed all the offences, until we got up to CH504/2014, the aggravated burglary, all those previous sentences have now been served;

(s) for the take motor vehicle without authority associated with burglary CH494/2014, to three months imprisonment from 6 December 2014 to 5 March 2015, and that, of course, has also been served;

(t) for the two apparently unrelated offences of ride or drive a motor vehicle without consent (CH492/2012 and CH493/2013), to three months imprisonment each, wholly concurrent and running from 6 May 2015 to 5 August 2015;

(u) for the theft (CH506/2014), to three months imprisonment from 6 August 2015 to 5 November 2015, bringing the total sentence at that point up to 18 months;

(v) for two further thefts (CH507/2014 and CH508/2014), to two months imprisonment each, to be served wholly concurrently from 6 November 2015 to 5 January 2016;

(w) for the failure to appear, to two months imprisonment, which is wholly cumulative on the earlier sentences, and so it runs from 6 January to 5 March 2016.

(x) for burglary (CH96/2013), to two months imprisonment from 6 March 2016 to 5 May 2016;

(y) for the associated theft, to one month's imprisonment, also from 6 March 2016.

Those sentences bring the total sentence up to 24 months.

(z) for burglary (CH1731/2012), to two months imprisonment from 6 May 2016 until 5 July 2016; and

(aa) for the associated theft, to one month's imprisonment from 6 May 2016.

6. Those sentences bring the total sentence to the same 26 months that Magistrate Morrison imposed.

7. That total sentence of 26 months imprisonment is, as you heard, backdated to 6 May 2014. So not quite 13 months of the total sentence have been served, but 18 of the sentences have already been finished with. The remaining 12 sentences, totalling 19 months, are backdated to 6 October 2014, and so nearly six months of that period has also already been served. The remaining just over 13 months of the total sentence will be suspended immediately.

8. I now order you, IM, to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 18 months. The good behaviour order is subject to the conditions that:

(a) for such a period not exceeding 18 months as Corrective Services considers necessary, you accept the supervision of Youth Justice and obey all reasonable directions of your Youth Justice supervisor;

(b) you are to report to an intake officer at Youth Justice today to arrange that supervision.

9. You will have heard me discuss with the Youth Justice people that they will help organise that for today so that you can go home later today.

10. I understand, IM, that Youth Justice plans to transfer your supervision to New South Wales Juvenile Justice so that you can return home to Wagga Wagga and be supervised and supported there. I need to explain to you that if you breach that good behaviour order you could still be at risk of serving some or even all of the rest of this sentence and, as I said, that is just over 13 months still, back in Bimberi.

11. It would be a breach of the good behaviour order to commit more offences, and it would be a breach, also, to disobey a direction from your Youth Justice or your Juvenile Justice supervisor.

12. I should say to you, IM, I am certainly not encouraging you to ignore those directions, but re-offending is really serious. Re-offending will get you into trouble and probably back here for me to decide whether you need to go back to Bimberi. A minor breach of a condition is not likely to have the same effect.

13. So what I am suggesting to you is don't feel that, if you've messed up a tiny bit of one of your conditions, then that is the end of it and you might as well go off and mess things up seriously. You need to work with your Youth Justice or your Juvenile Justice supervisor about the conditions.

14. Now, what that means, then, is that for the next 18 months, it is really important that you behave yourself and stay out of trouble, and it is also important that you co-operate with Youth Justice or Juvenile Justice. Especially, don't hang around with kids who you know are bad kids, and don't do silly things just because you're bored.

15. Now, if you're going to finish Year 11 this year, and especially if you're going on to Year 12, you shouldn't run out of things to do in the next 18 months. You shouldn't need to get bored and look for bad things to do, and if you do get bored, I would suggest you talk to your mother and see what she would like you to help with. She has obviously got plenty on her plate and she could do with your help. Now, that may sound pretty boring too, but I suspect it is still better than being back in Bimberi. Is that fair? Yes. All right.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.