R v BB [2013] ACTSC 58

4. That BB not contact directly or indirectly or approach within 100 metres of Stephanie Morales.

2. The person supervising BB be requested to direct him to undertake urinalysis on at least two occasions in each month during the bail period.

3. The Director-General prepare a Pre-Sentence Report under Part 4.2 of the Crime (Sentencing) Act 2005 (ACT), to address each of the Pre-Sentence Report matters set out in s 40A of that Act, limited to updating the report of 19 March 2013.

4. The Court Alcohol and Drug Assessment Service prepare a report of the monitoring undertaken by it of BB and provide options for ongoing treatment or counselling from the end of the bail period.

1. BB is 16 years old. He has a shocking criminal history, which includes six offences of aggravated burglary, six offences of burglary, thefts associated with each of these offences plus two offences of minor theft, three offences involving the taking or using of a motor vehicle without the owner's consent, five offences of damaging property, three traffic offences, two offences of common assault and two offences of failing to appear in accordance with his bail undertaking.

2. In addition to these forty-one offences, he has a number of breaches of court orders that have been made in respect of these offences. It is relevant that twenty-six of these offences, which were committed in fourteen incidents which were clustered around five discrete periods of time, often with periods of months between them, were dealt with on one occasion. While that does not mitigate the seriousness of the offences, it does put into some context the pattern of offending.

3. The first of the offences occurred when he was 13 and the last when he was 15. This description would, by itself, ordinarily indicate that a severely punitive sentence was required for the further offences for which he now appears before me.

4. Section 133C(2) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), however, provides, "in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice". I have referred at some length to that statutory imperative in TM v Karapanos (2011) 250 FLR 366 at 380-1; [103]-[109]. I do not need to repeat what I said there, but I adopt it.

5. On 14 February 2012, I sentenced BB for the twenty-six offences. I imposed a total sentence of two years and ten months, but suspended it on that day, BB having spent nearly three months in custody. I made a good behaviour order for three years. See R v BM (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 14 February 2012).

6. BB breached that order by being discharged from a drug rehabilitation agency to which he was, by virtue of the good behaviour order, mandated to attend. He was, however, eligible for re-admission and was re-admitted shortly thereafter, so while cancelling the order as the statute required me to do, I re-sentenced BB effectively to the same sentence, though I extended the period of the good behaviour order.

7. On 26 October 2012, I had to deal with BB for breaches of that order. They related to his continued use of alcohol and cannabis and his failure to comply with directions, including directions about participating in drug rehabilitation programs and education. He was remanded in custody.

8. On 29 October 2012, I analysed the situation carefully and, as required, cancelled the good behaviour order. I re-sentenced BB along the same lines as before, but extended the period of the good behaviour order and required him in addition to perform 100 hours of community service work within twelve months.

9. On 29 September 2012, however, BB rode in a stolen motor vehicle. On 20 November 2012, he entered a home in O'Connor, stole some coins and a vase to a total value of $175 and, during the burglary, forced some French windows open, causing damage to the doors and doorframe.

• Riding in a stolen motor vehicle, contrary to s 318(2) of the Criminal Code 2002 (ACT) (the Criminal Code), punishable by a maximum penalty of 500 penalty units (that is, a fine of $5,500) or imprisonment for five years or both;

• Burglary, an offence against s 311 of the Criminal Code, attracting a maximum penalty of 1,400 penalty units (that is, a fine of $154,000) or imprisonment for fourteen years or both; and

• Damaging property, an offence under s 403(1) of the Criminal Code, for which the maximum penalty is 1,000 penalty units (that is, a fine of $110,000) or imprisonment for ten years or both.

11. He pleaded guilty in the Magistrates Court to these offences and was committed to this court for sentence. Convictions for the latter two offences will breach the good behaviour order that I made on 29 October 2012. He was arrested on 7 December 2012 and has remained in custody since then.

12. He came before me for sentence on 22 March 2013. After hearing the prosecution case, he applied through his counsel, Ms T Warwick, for an adjournment and to be granted bail. The application was opposed.

13. In order to evaluate the application, it is necessary to recount some of the evidence that was given in the Crown's case on sentencing.

14. A Pre-Sentence Report was prepared, as directed by the Court under Part 4.2 of the Sentencing Act. I also heard oral evidence from Ms Ronia McDade, Senior Manager of Youth Justice Case Management of the Community Services Directorate. There were, in my view, five relevant areas that need to be addressed and evaluated.

• BB's behaviour whilst under supervision on the good behaviour order

(1) BB's behaviour whilst under supervision on the good behaviour order

16. It is clear that BB's compliance in the community, while under the good behaviour order which I had made, was patchy. That order required him to be under supervision and comply with reasonable directions of his supervisor. His compliance with this order was inconsistent. The evidence was a little unclear, for the supervision on bail and under the good behaviour order was not clearly separated in the Pre-Sentence Report. It was reported that he "had times of compliance and non-compliance". It was, however, reported that "[p]rior to [him] being remanded, [BB] continued to engage in regular supervision".

17. There were two main problems, however, namely, his continued use of cannabis and his failure to comply with the curfew, both presumably directions that had been made by his supervisor. Certainly, the evidence was that the curfew was such a direction.

18. There were, on the evidence, two occasions when the curfew had been breached: on 18 November 2012 and 2 December 2012. Ms McDade, however, considered that on the first occasion there were mitigating circumstances. She said that he had been at the home of his former girlfriend. He had not recalled that it was Sunday and that the buses did not run as frequently as on other nights, so had had to walk home. His former girlfriend phoned the residence, Premier Youthworks (where he was living in accordance with his supervisor's directions), and advised them of his progress until he arrived at 10:50 pm.

19. It appears, although it did not come from Ms McDade, that he had breached his bail also on the occasion when he had driven in the motor vehicle on 29 September 2012, as will appear later.

20. His continued use of cannabis was also a significant problem. On 23 April 2012 he was discharged from a drug rehabilitation program for using cannabis. As he was re-admitted, no action was taken on the breaches I have noted above. After a further discharge, however, he remained in the community for some time, but was re-admitted and graduated from the program in June 2012.

21. Since then, however, he has returned to cannabis use and on two occasions cannabis has been found in his room at Premier Youthworks. He has also returned a number of urinalysis results positive for cannabis. The breach for which I re-sentenced BB on 29 October 2012 involved continuing consumption of cannabis, as well as other matters which were breaches of directions that he had been given.

22. BB has said of his period in residential rehabilitation, "I didn't let it help, I got told about drugs and the effect they cause on your body, but I did not learn how to stop using them, they did not help with my addiction." This is not inconsistent with the evidence given by Ms McDade that Youth Justice, in a review of the programs for drug rehabilitation for those under the care of Youth Justice, had taken the decision that the qualifications of those counsellors employed by ACT Health's Alcohol and Drug Program (ADP) were significantly superior to a number of other agencies, such that they now preferred referral to ADP.

23. BB also acknowledged that he found it impossible to continue not using cannabis when his former girlfriend used it every day. When he was arrested, he ended that relationship.

24. He did not, however, take advantage of the Outreach counselling from the drug agency that had been offered to him after his graduation and to which he was referred.

25. BB has, since being in custody, been counselled by a staff member of ADP. He has attended all the arranged programs and it appears that this has been productive. He has acknowledged that he has a drug problem and recognises that he needs support to overcome it. He would want to continue to see that counsellor in the community and this can be arranged. He has indicated that the counselling has also addressed emotional issues, which he has had trouble talking about in the past.

26. It is clear that BB did not take full advantage of the opportunity I gave him on the sentence of a suspended term of imprisonment and a good behaviour order. Indeed, his behaviour at times was quite worrying and unacceptable. On the other hand, he did complete the residential drug rehabilitation program, as mandated, though with a couple of false starts. The evidence was also that prior to his arrest he had engaged in regular supervision with Youth Justice Case Management.

27. There was one inexcusable failure to comply with his curfew between 14 February 2012 and 7 December 2012 on the evidence before me, although there was a further failure, which was not reported through the Pre-Sentence Report.

28. There were also stresses in the relationship with his former girlfriend. Her use of cannabis was clearly a significant contributor to his ongoing use. At some stage his former girlfriend told him that she was pregnant. She had a miscarriage in early November and this led to constant arguments between them. He also then discovered communications from her to a male, which had led him to believe that she was going to leave him for that male.

29. While he must learn to deal with such stresses in life, it seems to me unrealistic to expect a 16 year old to deal well with such challenges. That he has ended the relationship shows that he is maturing, but also that he has removed a significant cause of the failures to comply with his obligations under the good behaviour orders.

30. Unsurprisingly, BB had some difficulties in his early time on remand at Bimberi Youth Justice Centre. I had details of an incident in which he thought a fellow detainee had made disparaging remarks about his mother and he assaulted the detainee, punching him in the face and the head. A report of the incident said that BB later told staff that he was sorry for what he did and wished to speak to the other detainee so that they might be involved in a mediation and move on. Not unexpectedly, the other detainee declined to participate in such a process.

31. The Pre-Sentence Report stated that subsequently BB's "behaviour has improved substantially". He did receive a minor behaviour breach on 13 March 2013 for wearing a sentenced prisoner's clothing.

32. A more serious incident occurred, however, on 17 March 2013. He was charged with "contravening a direction by a youth detention officer, being in a prohibited area without a Senior Manager's approval and creating or participating in a disturbance". The incident was described as BB "running around the courtyard without permission".

33. It was apparently necessary for other detainees to be secured in their cabins for less than half an hour so that there was sufficient staff to address BB's behaviour. It was necessary to use mechanical restraints to detain him. This is, of course, a worrying matter.

34. The genesis of the matter was that BB had been allocated to a group where there were some older detainees. He had asked to be moved to another group because he said that he had been bullied in the group. His request was denied. I was given no information about how the bullying was to be addressed. As any school in the ACT is required to have in place practices and programs designed "to ensure that all students are protected from bullying" (see ACT Government Department of Education and Training, Countering Bullying, Harassment and Violence in ACT Public Schools (Policy Statement CBH200704, 2007)), it would be surprising if the same obligations are not imposed on Bimberi Youth Justice Centre.

35. There was, in the evidence before me, no evidence of any violence. BB simply said that he "has to do something to get them to move me". Ms McDade did say that she was unable to confirm that these incidents were the only infractions committed by BB while in custody.

36. It was put to me that as BB could not behave in custody, there must be a real risk that he would not behave while in the community. The incident just five days before his court appearance was especially emphasised. In my view, the worrying incident is the first one, where there was actual violence. There are, however, four things that need to be said about it.

37. In the first place, BB is, on the evidence, very close to his mother and aspersions cast on her would be quite likely to provoke a strong reaction. Secondly, this was shortly after he had been arrested, three days after he had been returned to custody, when he was clearly finding it difficult to cope. Thirdly, there was, in the evidence before me, no other occasions of violence to other detainees or to custodial staff while he was in custody. Finally, there are only two offences of violence in BB's criminal record and they were committed on 18 July 2009, well over three and a half years ago.

38. While the incidents show some lack of maturity and some unacceptable behaviour, it seems to me that the circumstances of their occurrence do not lead me to infer that they are a good indicator of his likely behaviour in the community. His period in custody has also been significantly less disruptive than on the last occasion he was in custody, when he was subject to a number of incident reports, including "throwing stones at the windows of his unit causing the window to break, engaging in altercations with other detainees, refusing to follow instructions or complete chores, damaging property, being abusive to staff over the intercom and making nuisance calls through the intercom".

39. BB has used his time in custody quite productively to address a number of issues that are important to his rehabilitation. BB earlier showed reluctance to engage in further education, (see, eg, R v BM (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 October 2012) 5-6). Despite this, he has now all but completed his Year 10 certificate whilst in custody. He is said to have been "working solidly" and is one of his teacher's "hardest workers". He has demonstrated more focus in class and can work independently.

40. He has also gained his White Card, has completed first aid training and has completed the Bronze Medallion training, which has given him skills required for performing lifeguard duties. He has also sought to be permitted to access Road Ready Training.

41. As noted above, BB has engaged with ADP and has completed six counselling sessions. He wishes to continue that in the community, when allowed. He has engaged in regular sessions with a staff member from Relationships Australia, which have helped him to work through familial issues.

42. His mother remained in regular contact with him until 1 March 2013 when she apparently relocated and has not visited him since. His older sister and her partner, however, remain in contact with him and were in court during the sentencing proceedings. Though it has not made much difference earlier, family support is an important factor generally in rehabilitation.

43. As also noted above, BB has ended his relationship with his former girlfriend.

44. It is clear that his peer group has been very problematic. BB would like to leave Canberra but the parental responsibility of the Community Services Director-General makes this difficult. There is a real risk that on his return to the community he will not be able to avoid his former peer relationships which have been so deleterious.

45. The steps that BB has taken show significant progress towards rehabilitation. They include a number of issues that have been the subject of concern in the past and which have been sought to be addressed by, for example, conditions attached to bail or conditions attached to good behaviour orders.

46. The steps taken by BB show also a growing maturity as one would expect. I quoted the comments of Judge Michael Bourke, an experienced County Court judge in Victoria and chair of the state's Youth Parole Board, in my remarks on sentencing on 29 October 2012, and this rings very true in the case of BB.

47. Viewed baldly from the bare facts, the offences, to which BB has now pleaded guilty, show an apparent contumelious disregard for the rights of other members of the community. Without detracting from the serious invasion of rights that they represent, BB's explanations, however, do provide a somewhat different perspective on the offences. This is not so much to reduce the seriousness as to give an insight into the circumstances under which they were committed so as to help in determining how the sentencing should balance the necessary purposes set out in s 7 of the Sentencing Act.

48. As to the first offence, BB said that he had been drinking alcohol at his former girlfriend's house and realised he needed to return home to avoid breaching the curfew. He called the house and was warned that if he was not home by 10:10 pm he would be breached. He got a call from a friend who asked him if he wanted a lift home and he accepted the offer.

49. He admitted that he knew his friend did not have a car and realised when his friend arrived that it was stolen. Being keen to get home, however, he got into the car. They stopped at a friend's house and he decided to stay there and drink alcohol instead of continuing on to his refuge. He woke up next morning and then returned to the refuge where he was residing.

50. This raises a lot of questions of concern and the story has some gaps in it, but it has not been challenged. He named his friend who was driving the car and admitted that he knew the car was stolen, both admissions against interest.

51. On the other hand it shows he was drinking alcohol and that he rather suddenly decided, after being concerned about meeting his curfew obligations, not to meet those obligations. He did return to his residence the next day, however. There was no suggestion he was involved in the theft of the car but he did knowingly get into a stolen car, though he was, at that stage, trying to meet his curfew obligations, an intention that changed along the way.

52. In the second offence he was again at his former girlfriend's house; this is when he found the text messages on her phone that suggested she was going to leave him for another male he did not know. He became very angry and wanted to "get drunk", went to the shops to get alcohol but could not get any, so he broke into a 'random' house, stole some money and bought some drugs.

53. BB did not seem to show any remorse for his behaviour, though in a letter to me which was tendered in the sentencing proceedings, he did say "[t]hinking now how I would feel if someone broke into my mother's or sister's house has helped me to think about the victims of my crimes and how they feel."

54. These are serious offences and the type for which he has been sentenced to imprisonment, though suspended.

55. The triggers for the offences, however, are matters that he has been addressing while in custody. He has addressed the influence of his former girlfriend, the relationship with whom has now ended, and he has seemingly addressed, more effectively, his use of drugs and alcohol.

56. It is proposed that BB participate in the Turnaround program.

57. The Turnaround program was established following a report by RPR Consulting, Turning Lives Around: Effective Service Responses for Young People with Intensive Support Needs (Final Report, June 2002), which found that the service system had been unable to respond adequately to the needs of a small group of young people between age twelve to eighteen with extremely high and complex needs, and that a substantial shift in the culture of service delivery was needed.

58. Turnaround establishes a team for each young person and includes not only those who already have relationships with him or her, but also involves other professionals and members of his or her family. It is an integrated and collaborative approach to meet the young person's needs.

59. A program has been prepared for BB which includes elements addressing the following: accommodation, family relationships, education and vocational matters, health and well-being, life skills, directions by Youth Justice and recreation. It is comprehensive and builds on the achievements made in Bimberi as well as being directed to the vulnerabilities he has in the community and to strengthening the pro-social attitudes and behaviours which he must internalise.

60. The proposal is supported by Youth Justice and has clearly been carefully crafted with input from a number of relevant professionals.

61. There were, unfortunately, some relevant absences of important participants from the meeting on 5 March 2013 when the plan was agreed. It is an important opportunity to address BB's criminogenic behaviour, attitudes and vulnerabilities. It is, in fact, the next stage for someone like BB who is not yet so mature that there is not an opportunity for reform but for whom the less supported, more self-reliant options such as the good behaviour orders of the past, have not yet worked.

62. The only basis for adjourning a sentencing hearing is if bail is granted. The only reason that this is being sought is that BB wishes to show that he has really turned a corner and taken positive steps to address the behaviour and circumstances underpinning his criminality and that he can continue with this, particularly within the community.

63. Mr A Williamson, who appeared for the prosecution, opposed the application on the basis that the fresh offences, to which BB has pleaded guilty, meant that I must impose the sentence that I had suspended. He submitted, as is often said, that if I do not do so, that will bring the process of suspended sentences into disrepute.

64. I said as much in Saga v Reid [2010] ACTSC 59 at [99]- [101] referring to what had been said in cases such as Taylor v Bowden [2009] ACTSC 13, Director of Public Prosecutions (NSW) v Cooke & Anor (2007) 168 A Crim R 379 and R v Marston (1993) 60 SASR 320.

65. He also referred to what I had said when re-sentencing BB on 29 October 2012. I had heard evidence on that occasion from a police officer investigating offences that BB might have committed. Despite adducing that evidence, the prosecution submitted that I should not take it into account. I did not do so. I did say, however:

If [BB] has committed these offences - and they are certainly offences of the type for which he has been dealt with in these proceedings - then there is an almost certainty that the good behaviour order would be cancelled and the period of imprisonment that has been suspended would be activated and imposed in full.

66. While that statement may not have been able strictly to have been implemented because I was, without objection from the prosecution, about to cancel the good behaviour order that those offences would have breached, it was an approach that, so far as the legislation allows, should be followed.

67. There are, however, a number of issues. The first is that the offences for which evidence was then given are not the ones to which BB has now pleaded guilty. The offences were a burglary, or more likely, an aggravated burglary in which $17,000 worth of jewellery was stolen and a motor vehicle taken without consent.

68. BB has not been charged with, and certainly not pleaded guilty to, any of these offences. The offence which may have made him a suspect is the fact that there was incriminating evidence of him riding in a motor vehicle that had been taken at or around the time of that burglary or aggravated burglary.

69. He has, however, only been charged with riding in that vehicle and in the circumstances outlined above. The statement of facts does refer to this vehicle being involved in a car chase, but there is nothing in the statement about the number of people in the vehicle at that time. In any event, as I have said, the good behaviour order which this offence has breached has already been cancelled.

70. The burglary of 30 November 2012 is, however, a breach of the subsequently imposed good behaviour order of 29 October 2012. I do consider that I should impose the sentence that was suspended for that offence. That, however, is not the end of the matter. I cannot, by virtue of s 64(1) of the Sentencing Act make a non-parole period, even though the sentencing exceeds 12 months.

71. Instead, however, s 133G of that Act provides:

(1) This section applies if the court is sentencing a young offender to imprisonment under section 10.

(2) The sentence of imprisonment must be a last resort and for the shortest appropriate term.

(3) The court must consider making a combination sentence consisting of -

(b) a good behaviour order with a supervision condition.

72. These are strong legislative directives as to the way in which the Court should deal with young offenders. They are not at all inconsistent with well-known common law approaches to such sentencing. These principles have been set out by McClellan CJ at CL in KT v the Queen [2008] NSWCCA 51; (2008) 182 A Crim R 571 at 577-8; [22]- [26]. In summary they are:

(1) Considerations of general deterrence and principles of retribution are, in most cases, of less significance when sentencing a young person than when sentencing an adult for the same offence.

(2) Young people, in recognition of their capacity to reform and mould their character to conform with society's norms, require considerable emphasis to be placed on the need to provide an opportunity for rehabilitation.

(3) The law recognises that the cognitive, emotional and psychological immaturity of a young person contributes to their breaching of the law and so allowance is made for youth and not just their biological age.

(4) The weight given to such youth does not vary depending on the seriousness of the offence.

(5) Considerations of general deterrence and retribution cannot be completely ignored as there is a considerable public interest in deterring criminal conduct.

(6) The emphasis on rehabilitation rather than general deterrence or retribution may be moderated where a young offender has behaved in the way adults might behave, thus considering matters such as use of weapons, pre-meditation, prior history, and the nature and circumstances of the offence.

(7) The weight given to these considerations diminishes as the offender's age approaches the age of maturity.

73. It seems to me that these principles and the legislation requires me to consider carefully the period of incarceration before BB can be sentenced.

74. He has, of course, been in custody for 108 days since 7 December 2012, and that must be taken into account.

75. He wishes to show that he has turned a corner. There has been some positive evidence of that. His entry to Turnaround is a significant difference from the other occasions on which he has been released into the community. I have also a more complete picture of the issues that have contributed to his criminality.

76. There are a number of very promising signs, though there is still a long way to go. It seems to me that I would benefit from an opportunity to see how BB will respond to Turnaround and to being in the community in the context of the efforts he has so far made.

77. I am not making a deferred sentence order. I am also not deciding that further incarceration is not appropriate. I am, however, giving BB an opportunity to show that the steps he has made in Bimberi are not merely show in order to be released, but are a genuine sign of his growing maturity and realising that he needs strenuously to address these issues as he will otherwise spend much of his future in custody.

78. I appreciate that this is a risk and that members of the community are the ones who may suffer if my estimate of BB's efforts are mistaken. I am fortified, however, by the evidence of Ms McDade that bail is, in this case, a better mechanism than a good behaviour order, for breaches can and will more promptly be brought back to the attention of the court.

79. Ultimately, if rehabilitation is a success, it will be much safer for the community than the blunt tools of deterrence and incapacitation. Given the efforts BB has made, I consider it is appropriate.

80. Accordingly, I will grant BB bail to appear before me at 9:30 am on 22 May 2013 for sentence with the following conditions:

1. That he accept supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him, including as to the use of alcohol and other drugs, as to urinalysis and as to a curfew.

2. That he participate in the Turnaround Program and comply with the obligations of that program and any directions made by the professional participants in the program.

3. That he accept monitoring by the Court Alcohol and Drug Assessment Service and consent to any person by whom he is supported or counselled in the Turnaround Program providing any information reasonably required by that service.

4. That he not contact, directly or indirectly, or approach within 100 metres of Stephanie Morales.

81. I will request that the person supervising BB direct him to undertake urinalysis on at least two occasions in each month during the bail period.

82. I will direct the Director-General to prepare a Pre-Sentence Report under Pt 4.2 of the Crime (Sentencing) Act 2005 (ACT), to address each of the Pre-Sentence Report matters set out in s 40A of that Act but limited to updating the report of 19 March 2013.

83. I will request CADAS to prepare a report of the monitoring undertaken by it and to provide options for ongoing treatment or counselling from the end of the bail period.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Kim Bolas Criminal Law