CRIMINAL LAW - Sentence: Young offender sexually assaulted when in care of Minister
wounding of carer
serious mental health issues
dysfunctional upbringing
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - Sentence: Young offender sexually assaulted when in care of Ministerwounding of carerserious mental health issuesdysfunctional upbringing
Judgment (4 paragraphs)
[1]
Judgment
The Young Offender AB appears for sentence consequent upon her pleading guilty on 23 March 2017 to wounding the victim with intent to grievous bodily harm, which is count 2 on the indictment. She committed this offence on 13 April 2016. She pleaded not guilty to count 1. The pleas were accepted by the prosecution in full discharge of the indictment.
The offence has a maximum penalty of 25 years imprisonment. Because of the Young Offender's age there is no proscribed standard non-parole period applicable. As the offence is a serious children's indictable offence it cannot be dealt with summarily.
Because of the constraints of time as the Young Offender is due to have evidence recorded next week the reasons in the matter will be somewhat disjointed and for or that the Court apologies.
The victim of this offence at the time of the offence was an employee of Guardian Youth Care, an out-of-home care residential provider. The Young Offender was at the time in the care of the Minister. She had resided in the premises of the victim's employer. The victim and Ms L worked alternate rosters, as her immediate carers. I have assumed that individual is a female, if not the Court apologises to that individual.
The Young Offender was residing at the particular premises with no other Young Offender because she was subject to a probation period and, until she finished that period, she was the sole resident at that particular location. The Young Offender had been previously diagnosed with Post-Traumatic Stress Disorder, Conduct Disorder and emerging Borderline Personality Disorder.
There was a previous incident between the Young Offender and the victim at Bankstown Hospital on 30 March 2016. On that occasion, the victim had taken the Young Offender to hospital due to complications with medication that the Young Offender had taken. At the hospital the Young Offender punched the victim to the head area using both hands, as I understand it one punch with each hand. The Young Offender then returned to the waiting room and waited for police who the staff at the hospital had called.
Leading up to 13 April 2016, which is the date of the offence, the victim had a fractious relationship with the Young Offender who on occasions threatened to assault the victim or was physically intimidating towards her.
The Young Offender spent most of the day of 13 April asleep and had been well-behaved. At about 5.00pm she asked Ms L who was doing the night shift and was informed it would be the victim. The Young Offender became hostile and said: "I'm gonna to fucking kill that cunt, I'm gonna to knock her teeth in". Ms L told the Young Offender to stay in her room for the night and she did not need to engage with the victim. The Young Offender apparently calmed down.
About 20 minutes later, Ms L met the victim outside the premises and they discussed the threat the Young Offender had made. They both entered the house but were met at the front of the house by the Young Offender. She stood about 2 metres from them and said: "What the fuck is she doing here? You let her inside, I'll kill her. I'll bash her head in".
Ms L told the Young Offender she was blocking the entry and to move, the Young Offender slammed the door shut. After a time the Young Offender opened the door and said to Ms L: "I'll you in but not that slut in" and also said: "I'll kill her if she walks in, I'll bash her. I'll do what I did to her at ED".
Ms L entered and spoke to the Young Offender in an attempt to calm her down. This appears to have been successful and the Young Offender eventually said: "I'll let her in and she can sleep on the couch. I'm not that sad to leave her in the cold".
Ms L went outside and told the victim what had been said. The victim said that would not be happening and she would sleep in the staff office. The Young Offender became enraged and said: "Do you want me to get the glass from my room and slit your neck? I'll kill you". The Young Offender continued to abuse the victim and then said: "get me the Opal card, I'm going, I'm not staying here with that slut".
The Young Offender then walked along the patio towards the driveway and suddenly moved towards the victim. She grabbed the victim's hair and started to pull her to the ground. The victim turned around and in doing so fell on her knee. The Young Offender started to kick towards the victim aiming her legs at the victim's stomach. Ms L intervened and removed the Young Offender. However, the Young Offender pushed past her and grabbed the victim's hair and placed her in a headlock. She then struck the victim in the stomach with her knee. Ms L removed the Young Offender again and the Young Offender ran inside. The victim called the police.
As the victim was speaking to the police, the Young Offender ran out of the house holding a 20 centimetre piece of glass with jagged edges and yelled: "I'm gonna to kill this fucking bitch". She ran after the victim, grabbed her by the hair, placed her in a headlock and made a slashing motion towards the victim that made contact with the victim's neck.
Ms L grabbed the Young Offender and told the victim to run to her car which the victim did. The victim was crying out in pain and bleeding from the neck whilst on the phone to the police. The Young Offender pursued the victim but was not successful. The victim drove off and stopped down the road where she removed her shirt and used it to cover the wound which was bleeding. She spoke to the triple-0 operator until the arrival of the police. During the triple-0 call the victim told the operator she was scared and was possibly going into shock. She said she needed to breathe and she wished her father was there.
When the police arrived, they observed the victim using a cloth to stop blood loss. The police observed it was not bleeding heavily at the time of their arrival.
Back at the scene the Young Offender was bleeding from both hands and behaving aggressively. At the request of Ms L, she put the glass down and Ms L treated her injuries. While Ms L was treating her injuries, the Young Offender kept asking if the police were coming. They arrived and arrested the Young Offender. They saw a smashed photo frame on the floor of the Young Offender's bedroom. This is apparently where the glass used to strike the victim came from and the Young Offender admitted that to the police.
She made the following statements to the police:
"I should have fucking killed that bitch. She wanted to fucking talk shit, I'll fucking show her";
"I fucking hate that cunt. I should have fucking cut her, even though I didn't. I'll get bail you watch, I always get bail. She will say sorry to me and I'll get off. I'm not going to gaol';
"I should have fucking grabbed the knife and really cut her, aye, the cunt. You watch, when I get out of here, she's got it coming, the cunt. I'm going to chop her head off and kill her. She thinks I've cut her now, wait until I get out":
"When I get out I'm gonna fucking finish her off".
Police took the Young Offender to the Bankstown Police Station where, as was her right, she declined to be interviewed.
The victim was transported to Liverpool Hospital for treatment. She sustained a 3 to 4 centimetre superficial laceration, that is in terms of length, that penetrated the dermis and epidermis and subcutaneous tissues at the side of the neck. It required three interrupted sutures to close.
Aged 15 year and about 7 months at the time of the offence, the Young Offender turned 16 last September. She is her parents' only child. Her mother had one child to a relationship that had been on foot before the relationship with the Young Offender's father and a further child with the Young Offender's step-father who apparently is the brother of the Young Offender's father. The Young Offender has had no contact with her father from a very young age. The material satisfies the Court that the Young Offender has the disadvantage of a dysfunctional upbringing.
As already noted, she has been in the care of the Minister for most of her life. According to the Juvenile Justice report, the Young Offender does not understand why she is the only one of her mother's three children in care and there is a belief that this has led to distress and mental health issues. She has been the subject to multiple placements since 2004, including attempts to restore her to her family. She is in care until the age of 18.
The placements, that are detailed in the material, since September 14 indicate that multiple placements broke down as a consequence of the Young Offender's aggressive demeanour. It is not necessary to go through the detail of those placements, but the Court does note that, on 22 October 2015, she was placed in the care of Guardian Youth Care which is the employer of the victim. This was in some sort of apartment setup where supervision was provided but she, in fact, absconded and the placement failed. She went to Albury where she lived with her mother and brother but this broke down because of her aggressive demeanour. She returned to custody and then there were some placements in Nowra and Goulburn but these broke down because of continuing behavioural problems.
Following another stint in custody, she again returned to the care of the victim's employer and was placed somewhere in Western Sydney. Because of the isolation and behavioural issues got worse this placement also broke down. As previously noted she returned to the care of the victim's employer on 11 March 2016.
From what appears at the bottom of p 3 of exhibit D3, the most recent Juvenile Justice report, it appears the intention is that she be returned to the care of the victim's employer and be accommodated at Bankstown. For reasons to be given in due course, if that is the plan, it is a matter that causes the Court profound concern.
The Young Offender's education has been disturbed over the last two to three years. She is interested in continuing her education. For pragmatic reasons, that will need to be via distance education. She has been attending school in custody and doing well. There are positive reports in that regard. She has also undertaken a number of vocational programs, including childcare and a barista, with positive results. She empathises with students and staff and, in recent times, her behaviour has been satisfactory. This has led to a change in her classification.
Whilst her relationships have not been with antisocial peers, she experiences problems in relationships because of deficits in social skills, poor communication, aggressive tendencies and inability to manage frustrations. These shortcomings do need to be addressed and the fact that she has been able to empathise with students and staff does indicate some change or success in that regard.
There does not appear to be any drug or alcohol problems at the moment, although there might have been some in the past.
In the community, or perhaps more accurately when not in custody, she did not participate in leisure or sporting activities. Her behaviour in custody is in marked contrast to that.
She does not enjoy the benefit of a clear record. On 27 July 2015 she was placed on a 12 month bond that was supervised for an offence of intimidation. That was revoked on 23 February 2016 and she was given a further bond subject to supervision for 12 months. Her first offence was at the age of about 14 years and nine months. At the same time, in other words 23 February 2016 she was placed on a 12 month supervised bond for: two counts of assault with intent; one of intimidation; three of damaging property; one of never being licenced; one of take and drive a conveyance; and three for assault. She committed those offences in the months following her 15th birthday. It is an aggravating feature that she was subject to the bonds at the time of the offence.
Apparently no action was directed in connection with the breach on 16 March 2017. That was when she was placed on 10 months probation for damaging property and 18 months probation for two counts of assault. They were offences committed on 27 February 2016. She was given a control order at the same time for seven months for assault. On appeal to this court in April of this year, that control order was reduced to two months commencing when she went into custody for this matter with 2 days backdate by the look of it.
That assault that attracted the two-month control order on appeal was the offence committed when she assaulted this victim at the hospital on 30 March last year. She was released to bail the following day (31 March) and was on bail at the time of the offence before the Court, which is an aggravating feature. Apparently she was also subject to an AVO.
She was also subject to conditional liberty for six months consequent upon orders made under subs 32(2) of the Mental Health (Forensic Provisions) Act that were made on 11 January 2016 for a number of matters including assault, assault an officer in the execution of duty, resist and intimidate. Those offences apparently occurred in July 2015 and the Court has been asked to deal with the breach.
The Court notes the Young Offender has challenging physical health issues including: polycystic ovary syndrome (the Court notes the process involved in diagnosis of this was by way of a highly traumatic procedure); high cholesterol; and fits and fainting that is not epilepsy but otherwise not formally diagnosed.
The Young Offender has a history of serious mental health issues. The Court does not propose to go through the detail that is in various reports that are before it. She has a history of self-harm. The Court is satisfied that her time in custody will be more burdensome because of those mental health issues. However, the Court notes a significant improvement in her behaviour in recent times that is probably a reflection of treatment of her mental health issues in custody and stability provided by being in custody, amongst other things.
The facts of the offence are serious. The victim was vulnerable because the Young Offender had previously assaulted her and their relationship remained fractious thereafter. She was in a position where she was providing a service, in effect to the Government, to supervise a person in the care of the Minister. There is nothing to suggest that, apart from her and the other worker who normally rotated rosters, anyone else was involved in care or otherwise of the Young Offender or providing any form of security for those involved in providing that care. In light of the Young Offender's prior performance in terms of aggressive behaviour the Court is satisfied that the victim was vulnerable.
It would, in the Court's view, be highly traumatic to be stabbed in the neck with a weapon like a piece of glass in any situation, let alone in one's workplace. The content of the victim impact statement came as no real surprise to the Court. The Court is of the view that it is just expressed notwithstanding that, when viewed objectively, the wound actually inflicted is towards the lower end of what is denoted by grievous bodily harm. The wound is described as superficial. It required only three sutures and, by the time the police arrived at least, she was not bleeding heavily but certainly had been bleeding.
Whilst there is no evidence of how close the weapon came to the artery, there is no doubt that that is something that would have caused the victim to have considerable fear at the time the wound was inflicted. Further it must be looked at in the context of what immediately preceded it in terms of the threats that had been made and the assault using the knee, as well as what had occurred on 30 March. In this context the Court notes in particular paragraphs 25 to 26 of the facts exhibit A1. There is no evidence of permanent physical disability or scarring. Any scarring is likely to be relatively minor.
Shortly before the stabbing, the Young Offender had threatened to bash the victim. She had seemed to calm down on the basis the victim would sleep on the couch. It appears that, when the victim said that she would sleep in the office, the Young Offender became enraged, saying that she would get a glass and slit the victim's throat and also saying that she would leave and not stay with the victim. She then assaulted the victim including putting her in a headlock and kneeing her in the stomach. Ms L removed her and the Young Offender went inside where she apparently broke the glass from the picture and returned, yelling that she would kill the victim. After putting the victim in a headlock, she slashed the glass at the victim's neck, cutting her. Ms L intervened, allowing the victim to escape in her car. The extent to which the Young Offender pursued the victim and was unsuccessful is not revealed in the evidence.
On that evening the victim had not done anything or said anything that, viewed objectively, could be regarded as being provocative. All she had done was to turn up for work. Viewed just in the context of the events immediately preceding the offence, this offences is an objectively serious offence and has the appearance of a vicious unprovoked attack with a weapon secured for that purpose that was used deliberately, causing really serious injury. The Court notes the attack was directed only at the victim. It was therefore in the Court's view calculated and the Court in this context notes that the Young Offender had in no way threatened or assaulted Ms L, even when she intervened.
However, it would be artificial and unfair to limit one's assessment of the offence by the temporal constraints just referred to. It must be put in its proper context of the relationship between the victim and the Young Offender in the weeks before the offence and in the context of the Young Offender's dysfunctional upbringing and serious mental health issues.
The Young Offender had been at this particular facility since 11 March and was apparently on probation. The implications of that are not entirely clear to the Court, but what is clear is it would seem that, as she was in the Minister's care, the Young Offender had no real choice about where she was to be placed or who would be the person or persons charged with actually providing her care on behalf of the Minister.
On the evidence the Court is satisfied that late on the night of 27 March 2016 the Young Offender was in care provided by Guardian Youth Care and the victim was her designated carer. At the time the Young Offender was 15 and a half years old and she was allowed to go, without supervision, with a man who the Court will refer to as D who was twice her age and who she had apparently met on one prior occasion at some party some months earlier. As I said, at the time the Young Offender was in the care of the Minister and was residing at this particular out of care residence that was administered by the victim's employer. There is no evidence concerning the circumstances of or nature of the contractual relationship or any other relationship between the Minister and/or the Department on the one hand and the victim's employer on the other.
As recorded in par 6 of the facts, the Young Offender had previously been diagnosed with Post-Traumatic Stress Disorder, Conduct Disorder and emerging Borderline Personality Disorder. The evidence discloses that she also had anger management issues. In these circumstances, in the context of her background, because of her mental health issues and her age the Young Offender was vulnerable. On the material before the Court, when viewed objectively, it was entirely inappropriate that the Young Offender was allowed to go out with D that night. It is a matter that the Court has found profoundly disturbing.
The Court accepts that D had sexual intercourse with a Young Offender and otherwise sexually molested her. The Court has not heard all the evidence, it has only read the transcript of her interview and the document headed "Facts" within exhibit 3. Whilst D admitted that intercourse occurred, which is corroborated by his DNA being detected in the high vaginal swab, he claims it was consensual. The transcript of the Young Offender's interview with the police provides a credible unembellished account of the lack of consent. In any event, in light of her age, D committed at least one very serious offence on the Young Offender that night.
The evidence discloses that the Young Offender made a prompt complaint to the victim and the police interviewed her the following day, namely 29 March. That interview runs for almost 600 questions and the transcript of it covers almost 60 pages. Her account is detailed, not embellished and is credible. D's admissions and the DNA results provide some important independent support for her account. The Court does not have information in connection with any records concerning relevant phone services or the examining doctor's report, statement or notes. However, there can be no doubt that intercourse occurred and, because of her being the victim of sexual abuse in the past, the Young Offender was traumatised by it.
On 30 March 2016 the victim took the Young Offender to the Bankstown Hospital, according to exhibit A1, this was "due to complications with medication". During submissions Ms Cook said that it was some reaction to the morning after pill. This proposition was not contradicted by the prosecutor in his submissions to the Court. Whilst at hospital, the Young Offender punched the victim's head in the manner previously described. The Young Offender was arrested and released the following day, returning to the care of the victim's employer. As already noted the charge of assault was dealt with and, after the appeal the control order was for two months from 12 April to 11 June 2016.
The facts of that matter are in exhibit 4. The Court notes that, before the assault, the Young Offender had threatened to assault the victim and, after the assault, she returned to the waiting room and waited for the police. The facts record that:
"The victim is fearful of the young person [Young Offender] and is scared that she may be assaulted again .. .".
There is no dispute that an AVO was then taken out to protect the victim from the Young Offender.
Par 9 of the facts exhibit A1 records that, leading up to the day of the offence, the Young Offender and the victim had a fractious relationship and, on occasions, the Young Offender threatened to assault the victim and was physically intimidating towards the victim. The sequence of paragraphs up to and including par 9 satisfy the Court that the matters covered in par 9 post-date the assault at the hospital on 30 March. There is no evidence whether the victim reported the conduct referred to in par 9 to her employer or, for that matter, whether she reported the assault on 30 March to her employer. The Court adds that there is no evidence about whether she reported the events of 27 and 28 March to her employer and there is no evidence of the terms of any such report.
At 1.10pm on 12 April 2016, over 28 hours before the offence, a lawyer apparently acting on behalf of the Young Offender sent an email to Ed Dunlop who apparently occupied a position of some responsibility with the victim's employer. This email advised about the AVO and the poor relationship between the victim and the Young Offender and advocated that the Young Offender only be supervised by "highly trained" staff. It pointed out that the Young Offender had complex mental health issues, behavioural issues and acts out. It also advocated that the victim not be rostered to supervise the Young Offender whilst the AVO was in place.
The Court emphasises that it does not necessarily have the full picture in the sense that it does not have evidence of communications between the victim and her employer or between her employer and the Minister and/or the relevant Department. However, on the limited evidence the victim's employer must have had a sound appreciation of the Young Offender's background and propensity to violence. Clearly the Minister who was his carer and the Department who administered the Minister's responsibility knew of her propensity to violence, as well as her mental health issues.
In the Court's view, when one views the events from 27 March 2016 onwards against the Young Offender's dysfunctional background and mental health issues, the only conclusion that one can come to is that the Minister, the Department and the victim's employer all bear significant moral culpability for the Young Offender's offence and the position in which the victim was placed on the night of the offence. The Court is not conducting an enquiry into such matters, but clearly the events immediately preceding the offence when the Young Offender was threatening to harm the victim when she arrived or even before she arrived for her shift, demonstrate on the face of it that the victim's employer needs to review its protocols and training to address these types of situations and the Minister and the responsible Department needs to carefully review the use of the victim's employer in providing care for anyone and in particular in providing care for the Young Offender in the future. The events that occurred on 27 and 28 March involving the Young Offender and D demonstrates that this review needs to be quite broad and, in the Court's view, it needs to be conducted urgently.
I have already noted in brief the occasions before 11 March 2016 when the victim's employer had been responsible for providing care to the Young Offender from which they would have an appreciation at the very least of her violent disposition.
The Court indicates that the Young Offender has not sought to blame or shift blame to others for her offence. The Court is satisfied that she has accepted responsibility for her conduct. Although the victim would not have viewed it as the Young Offender did, the Court is of the view that, in the context of her background and the events of 27 and 28 March, combined with her mental health issues, the Young Offender viewed the presence of the victim as highly provocative.
The Court accepts that, as a child, the Young Offender was the victim of child sexual abuse in the home and other traumas. It accepts that that was compounded by her being the victim of a sexual assault in 2015 and again on the night about a fortnight before the offence. The Court accepts the opinion of the psychiatrist that is in exhibit 2. It does so because the psychiatrist dealt so thoroughly with the facts and circumstances surrounding the offence, amongst other things. The Court notes in this context the reference at p 6 of the Juvenile Justice report which is exhibit D3 that the psychologist Adrian Gillespie appears to agree with the psychiatrist who was the author of exhibit 2 that there is a causal connection between the Young Offender's mental health issues and her offending behaviour.
The Court accepts that, at the time of the offence, the Young Offender suffered from the following: a Conduct Disorder; an emerging Borderline Personality Disorder; and a developing acute Post-Traumatic Stress Disorder on a background of chronic symptoms. The Court in this context notes that, on 12 May 2016, she became an involuntary forensic patient and had acute Post-Traumatic Stress Disorder and remained an involuntary patient until 19 July 2016.
For the reasons set out on p 5 of exhibit 2, the Court is of the view that the Young Offender was not mentally ill as that term is taken to mean under the Mental Health Act. The Court accepts that, at the time of the offence, she knew the nature and quality of her acts and that they were wrong. This is demonstrated by, amongst other things, the following:
after the offence she kept asking if the police were coming;
at no stage did she threaten or assault Ms L;
she put the piece of glass down at the request of Ms L;
she told the police she should have killed the victim;
the wound was superficial. Bearing in mind the Young Offender's anger and the weapon employed and how it was held and how she held the victim at the time she could have easily caused much more serious injury and/or multiple injuries;
she told the police she always gets bail.
The Court accepts the opinion of Dr Farra at pp 15 and 16 where she opines that the Young Offender's:
"...actions/behaviour at the time of the alleged offence on 13 April 2016 would likely have been influenced by her Conduct Disorder and her emerging Borderline Personality Disorder. Both her Conduct Disorder and emerging Borderline Personality Disorder would make her prone to aggressive behaviour. Her emerging Borderline Personality Disorder would make it difficult for her to control her emotions, including her anger. As part of her Conduct Disorder, she had problems respecting rules and accepting social boundaries, thus making her more prone to violence. It is possible that her recent alleged sexual assault on 27 March 2016 made her more prone to emotional dysregulation and aggressive behaviour, either by destabilising her emerging Borderline Personality Disorder or as an associated symptom of the Post-Traumatic Stress Disorder."
The Young Offender did not have the resources to control her emotions and regulate her anger that was aroused by the provocation as she perceived it created by the presence of the victim. The trauma of the sexual assault that had been committed upon her about a fortnight before meant that her mental health, especially her Post-Traumatic Stress Disorder was progressing towards an acute stage that emerged about a month later when she became an involuntary patient.
In all the circumstance, the Court is satisfied that it is appropriate to make a finding of substantially reduced moral culpability. In this context the utterances of Sully J with whom Grove and Simpson JJ agreed in R v K [2000] NSWCCA 24 especially at paras 16 and 17 are somewhat apposite. The Court also refers to para 69 of R v Millwood [2012] NSWCCA 6.
Upon arraignment the Young Offender pleaded not guilty to count 1, which was wounding with intent to murder, and guilty to the alternate count. That was accepted in full discharge of the indictment. It is not disputed that there had been negotiations before she was committed to this Court in an attempt to achieve the same outcome. Consistent with authorities, the Court is of the view it is appropriate to extend to her a discount of approximately 25% for the utility of her guilty plea.
That guilty plea relieved the victim of the anxiety of awaiting a trial and giving evidence in it. In light of the content of the victim impact statement that is an important consideration.
The Court is satisfied the Young Offender is genuinely remorseful and that the conditions in sub-para 21A(3)(i) Crimes (Sentencing Procedure) Act have been met and accordingly extended leniency for that remorse.
The Young Offender's counsel submitted that, under s 23 of the Crimes (Sentencing Procedure) Act, the Young Offender should receive a discount for her assisting the authorities by reporting the sexual offence committed upon her by D to the authorities. That occurred before she committed this offence. She complained about D's conduct and then made the electronically recorded statement or interview before she committed this offence. This scenario is one of two excluded from the purposive approach of the majority in R v JTR (2012) NSWCCA 280 at paras 6 and 11.
Her complaint and the statement to the police were timely. The content of her statement receives some support from the results of the DNA tests and D's admissions. There is no evidence that, to date, the assistance she provided to the authorities concerning the offence committed upon her has had an impact upon her safety or that of any member of her family. There is no evidence about the possibility of this occurring in the future and there is no basis to conclude that this would be an issue in the future.
Police obviously charged D and he was obviously committed for trial. The Young Offender is due to give evidence pre-trial next week. The trial apparently is listed in November.
The Court acknowledges the public policy in encouraging victims of child sexual abuse to disclose such crimes committed upon them that is referred to in para 9 of Basten JA's judgment.
In the context of the Young Offender's mental health issues, of particular concern to the Court in this case is that to extend a discount under s 23 could provide the cross-examiner with ammunition upon which to cross-examine her and contribute to or add to the trauma that she is likely to experience in the process of giving evidence, even though that will be given in a pre-recorded session. When I say "pre-recorded" I mean in advance of the trial. In this context the Court is conscious of her mental health issues which make her more vulnerable than other child complainants giving evidence by that or any other process.
Further, the Court's finding of substantially reduced moral culpability has been given considerable weight and, as already noted, the Court has extended a discount in the order of about 25% to reflect the utility of a guilty plea and it has extended a discount because of remorse. In the Court's view any further reduction in sentence would result in an unreasonably disproportionate sentence contrary to subs 23(3). In the circumstances the Court does not extend a discount under s 23.
The Young Offender has made remarkable progress in custody in recent times in the process of habilitation. However, that has only been relatively recent and has not been tested in the non-custodial setting. In all the circumstances the Court is satisfied that her prospects of habilitation and not re-offending are good.
What appears at the bottom of p 3 going onto the top of the following page of the latest Juvenile Justice report exhibit D3 conveys to the Court the current plans are that, when she is released to parole subject to the age 18, she will be returned to the care of the victim's employer. It would seem that they have identified accommodation at Bankstown. The report acknowledges there are complexities associated with the support that the Young Offender would need and planning needs to be undertaken.
In light of the circumstances in which she was allowed to go with D on 23 March 2016 whilst the victim's employer was charged with the responsibility of caring for the Young Offender this is, as already indicated, a matter of concern for the Court and requires further evidence and consideration in order for the Court to determine what are the appropriate conditions of parole.
Bearing in mind what the appellate courts have said about them, the Court has taken into account the sentencing statistics.
The Court has taken into account the matters set out s 6 Children (Criminal Procedure) Act. It has taken into account all the purposes of sentencing. As they are well known and some of them are in the legislation, it is not necessary to refer to all of them. However, because of the Young Offender's age and the finding of substantial reduction in moral culpability the Court gave less weight to deterrence and greater weight to habilitation or what is usually referred to as rehabilitation.
The Court took into account that a sentence of imprisonment is a sentence of last resort and it considered the issue of totality and has determined it is not appropriate to accumulate the sentence for this matter on the two month control order previously referred to.
The Court makes a finding of special circumstances because of her need for an extended period of supervised parole in order to habilitate.
The Crown has asked the Court to address the breach of the orders made by Judge Blackmore on 11 January 2016 at the Albury District Court under s 32. His Honour released the Young Offender without conviction subject to a treatment plan that included a condition that the Young Offender participate in community activity programs.
Ms Cook argued that the Court does not have jurisdiction because, under subs 32(3A), the call-up, if that is the right terminology, was made out of time. The Crown argued that the Court has jurisdiction by operation of subs 32(3D), which provides for no time limit in terms of directing a call-up, the terms of the provision pointing out that, so long as the breach occurs while the condition is current, is sufficient. The Court was referred to no authorities, but it is of the view that it has jurisdiction by operation of subs 32(3D).
In this context the Court notes that his Honour's orders were made on 11 January 2016. Thereafter the Young Offender was in custody from 28 February 2016 to 11 March 2016 and from 14 April 2016 until the six month term expired on 16 July 2016. The Court further notes that, during that period, from 12 May until after the conditional release expired the Young Offender was an involuntary patient and had been the victim of a sexual assault on 27/28 March, making her mental health condition become progressively worse.
In these circumstances the Court directs no action on the breach of the orders made at Albury District Court under s 32 on 11 January 2016.
The Court notes that it proposes to impose a sentence of three years imprisonment in this matter and to impose a non-parole period of 18 months. As indicated the Court, however, requires further evidence and submissions as to what would be the appropriate conditions of her parole. It therefore proposes to adjourn the matter for that to occur. However, in the meantime the Court formally makes the order convicting the Young Offender AB.
[2]
DISCUSSION AS TO DATES
HIS HONOUR: I'll stand the matter in the list while you make those enquiries. The Young Offender can be taken back downstairs. I'll just explain to you, AB, I'm not finalising the matter today. You will ultimately get a sentence of three years imprisonment commencing the date that the police arrested you and a non-parole period of 18 months. I'll be adjourning the matter to a date that I'll work out a bit later in the day so I can decide what the appropriate conditions of your parole should be.
OFFENDER: Okay.
HIS HONOUR: All right?
OFFENDER: Okay.
HIS HONOUR: She can be taken downstairs, thank you.
MATTER MENTIONED LATER
ADJOURNED PART HEARD TO MONDAY 5 JUNE 2017 AT 9.30AM, BAIL REFUSED.
[3]
HIS HONOUR: JUDGMENT 5 JUNE 2017
When I was delivering remarks in this matter on Friday I stood it over to today to hear further evidence or receive further evidence and submissions as to the conditions of parole. The concern the Court had was driven by the material before it that suggested that she would be returned to the care of Guardian Youth Care. For reasons given on Friday that was a matter of concern for the Court.
To put into orders a prohibition that she be supervised by that organisation might be unduly restrictive as there may in fact, from a purely practical point of view, be no alternative. The Court's concerns in that regard can, in the Court's view, be addressed by providing a copy of its remarks to the Minister, the Director General of the Department of Family and Community Services, the President of the Children's Court and the Manager, Casework, ISSA Adolescent Services Murrumbidgee Far West and Western Districts.
What I propose to do is to make the usual orders that she be subject to supervision and further supervision as provided for in the standard conditions of parole and add a further condition she not be supervised by, or in the care of, the victim or not to have any contact by any means with the victim.
AB, the Court convicts you and sentences you to imprisonment. It fixes a non-parole period of 18 months and a total term of three years to commence on 14 April 2016 [as corrected 13 April 2016]. The Court orders your release to parole on 13 October 2017 [as corrected 12 October 2017]. Such parole is to be subject to supervision and further supervision as provided for in the standard conditions of parole prescribed by the regulations under the Crimes (Administration of Sentence) Act 1999. It is a further condition of parole that whilst on parole the Young Offender not be supervised by or in the care of the victim and not to have any contact, by any means whatsoever, with the victim. Pursuant to s 19 Children (Criminal Proceedings) Act the Court orders the sentence be served as a juvenile offender.
My remarks will be directed as indicated when they are transcribed. Now what I have done is to sentence you to three years imprisonment starting when the police arrested you. There is a non-parole period of 18 months. That means you'll be released to parole on 13 October this year and then you'll be on parole for a period of 18 months after that.
Now one thing that applies or one condition of parole is that you don't commit any offences whilst you're on parole. So, if you do that, it is one way you can breach your parole. You will be subject to supervision by officers, either of Juvenile Justice or parole authority and they can give you directions about where you can live, who you can mix with and who you can't mix with, what people you need to see to get help that you need. If you don't follow the directions of those people you'll also be in breach of your parole.
Now if you are found to be in breach of your parole your parole will be removed and you'll have to go back into custody to serve the balance of the sentence, do you understand.
OFFENDER: Yes.
HIS HONOUR: All right well I hope you do. Are there any other orders that are required?
CLAYTON: There's not your Honour but if I might just correct something from the record a moment ago. My friend was correct, I just found the relevant order, the final AVO expired 15 September of this year.
HIS HONOUR: Thank you for that Mr Crown.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 July 2017