R v BS-X [2021] ACTSC 160

Legislation Cited: Children and Young People Act 2008 (ACT) s 94 Crimes (Sentence Administration) Act 2005 (ACT) s 86 Crimes (Sentencing) Act 2005 (ACT) pt 4.4., ss 10, 13, 33, 35, 57, 133C, 133D, 133G Criminal Code 2002 (ACT) ss 44, 45A, 312, 318, 321, 403 Human Rights Act (2004) (ACT) s 22 Road Transport (Driver Licensing) Act 1999 (ACT) s 31 Cases Cited: Beale v The Queen [2015] NSWCCA 120 Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Hoskins v R [2021] NSWCCA 169 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 O’Brien v The Queen [2015] ACTCA 47 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Petterson v The Queen [2013] NSWCCA 133 Postiglione v The Queen (1997) 189 CLR 295 R v BM (Unreported, Supreme Court of the ACT, 29 October 2012, Refshauge J) R v Boney [2001] NSWCCA 432 R v Campbell [2010] ACTCA 20 R v Colgan [1999] NSWCCA 292 R v Goolagong (No 2) [2021] ACTSC 131 R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 R v Govinden [1999] NSWCCA 118; 106 A Crim R 314 R v Ho (Unreported, Court of Criminal Appeal of NSW, 28 February 1997) R v Hoschke [2001] NSWCCA 317 R v Irwin [2019] NSWCCA 133 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v TL [2017] ACTCA 18 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCA 109 R v Verdins [2007] VSCA 102; 16 VR 269 R v Wong [2003] NSWCCA 247 R v Wright [2009] NSWCCA 3 R v XX [2009] NSWCCA 115; 195 A Crim R Thompson v The Queen [2018] ACTCA 2 Zdravkovic v Queen [2016] ACTCA 53

Texts Cited: Bugmy Bar Book, Early Exposure to Alcohol and Other Drug Abuse (November 2019) Bugmy Bar Book, Incarceration of a Parent or Caregiver (November 2019) Bugmy Bar Book, Interrupted School Attendance and Suspension (December 2019) Bugmy Bar Book, Out-of-Home Care (November 2019) Bugmy Bar Book, Social Exclusion (June 2020) Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021) Parties: The Queen (Crown) BS-X (Young Person)

Representation: Counsel S McFarland (Crown) B Morrisroe (Young Person)

Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Young Person) File Numbers: SCC 162/2020; SCC 163/2020

LOUKAS-KARLSSON J:

Introduction

1. On 16 April 2021, BS-X (the young person) pleaded guilty to the following offences:

(a) An offence of drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT) (Criminal Code) (CH2020/382). The maximum penalty for this offence is 5 years imprisonment, a fine of $75,000, or both.

(b) An offence of take motor vehicle without consent, contrary to s 318(1) of the Criminal Code (CH2020/385). The maximum penalty for this offence is 5 years imprisonment, a fine of $75,000, or both.

(c) An offence of ride motor vehicle without consent, contrary to s 318(2) of the Criminal Code. The maximum penalty for this offence is 5 years imprisonment, a fine of $75,000, or both.

(d) An offence of joint commission attempted aggravated burglary, contrary to s 312 of the Criminal Code by virtue of ss 44 and 45A of the Criminal Code (CH2020/387). The maximum penalty for this offence is 20 years imprisonment, a fine of $320,000, or both.

(e) Two counts of joint commission aggravated burglary, contrary to s 312 of the Criminal Code by virtue of s 45A of the Criminal Code (CH2020/323; CH2020/324). The maximum penalty for an offence of aggravated burglary is 20 years imprisonment, a fine of $320,000, or both.

(f) An offence of joint commission damaging property, contrary to s 403 of the Criminal Code by virtue of s 45A of the Criminal Code (SCCAN2021/61). The maximum penalty for this offence is imprisonment for 10 years, a fine of $160,000, or both.

2. The following offences are also to be taken into account on a schedule in accordance with pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act):

(a) An offence of minor theft, contrary to s 321 of the Criminal Code (CH2020/384). The maximum penalty for this offence is imprisonment for 6 months, a fine of $8,000, or both.

(b) An offence of driving unlicensed as a first offender, licence never held, contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act) (CH2020/386). The maximum penalty for this offence is a fine of $3,200.

Agreed Facts

3. The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle (Exhibit 1). The agreed facts may be summarised as follows.

The Blue Impreza – CH2020/382, CH2020/384, and CH2020/386

4. On 9 March 2020, Mr Robert Jones reported his blue Subaru Impreza (the blue Impreza) as stolen.

5. On 12 March 2020 at about 5:30AM, the young person drove the blue Impreza to Caltex Service Station in Weston and fuelled the vehicle before driving away without paying for the fuel. (CH2020/382 – drive motor vehicle without consent). The young person was not licensed at the time (additional offence: CH2020/386 – driving unlicensed).

6. The young person fuelled the blue Impreza and went into the store to make a payment with a card. Being unsuccessful, he left some tobacco as a guarantee with the staff member behind the counter and returned to the blue Impreza. He obtained another card from the passenger and re-entered the store to attempt to make payment. He was again unsuccessful (additional offence: CH2020/384 – minor theft).

7. The young person returned to the blue Impreza, where the unidentified passenger moved into the driver’s seat, allowing the young person to enter the passenger seat. The pair drove away.

The Red Camry – CH2020/322

8. At about 10:45pm on 16 March 2020, Mr Mathew Schulze and his partner were in bed at their residence in a unit complex in Conder, when Mr Schulze heard a noise, he thought was the back gate. A short time later he heard a vehicle drive out of the shared driveway of the complex.

9. The next day, Mr Schulze discovered his 2013 red Toyota Camry (the red Camry) had been stolen from his garage.

10. At about 9:00PM on 18 March 2020, police observed the red Camry parked outside the residence of the young person.

11. Between 16 March and 20 March 2020, the young person dishonestly rode in the red Camry without Mr Schulze’s consent (CC2020/322 – ride motor vehicle without consent).

The Silver Volvo – CH2020/385

12. At about 6:50pm on 18 March 2020 the young person took a silver Volvo SC60 (the silver Volvo) bearing ACT registration, belonging to Josephine Grenfell, from her residence, without her consent.

13. The young person was wearing a white jumper with black writing on it. He drove the vehicle past Ms Grenfell’s residence in convoy with the red Camry. He was observed doing so by Ms Grenfell, and his fingerprints were found on the exterior and interior of the silver Volvo (CH2020/385 – take motor vehicle without consent).

Liquor Land Woden – CH2020/387

14. Between 3:45 and 4:00am on 19 March 2020, the young person and the co-offender Mr Jermaine Goolagong (the co-offender Goolagong) attended a car park adjacent to Liquor Land at the Westfield in Woden, in Mr Schulze’s red Camry.

15. The pair, with their faces covered and appearing to wear gloves, exited the vehicle, and moved towards the shop.

16. The young person was wearing a white hooded jumper with a black logo on the front and black ‘EVERLAST’ tracksuit pants.

17. The pair used an object to strike the glass of the front door of the shop. An unknown person approached the Liquor land, and the pair returned to the red Camry and drove away (CH2020/387 – joint commission attempted aggravated burglary).

18. The incident was captured on CCTV. Coles Curtin – SCCAN2021/61 and CH2020/323

19. At about 4:08am on 19 March 2020, the young person and the co-offender Goolagong used Mr Schulze’s red Camry to ram the front sliding doors of Coles Curtin, gaining entry to the premises and causing minimal damage to the rear of the red Camry (SCCAN2021/61 – joint commission damage property).

20. The pair searched the kiosk, broke open a cigarette draw and caused damage to the change master which dispenses cash by trying to force it open.

21. The young person was wearing a white hooded jumper with a black logo on the front and black ‘EVERLAST’ tracksuit pants. The young person had his face covered.

22. The pair stole three cartons of cigarettes valued at $600 (CH2020/323 – joint commission aggravated burglary). The cost to repair the damage to the store was valued at approximately $10,000.

23. The incident was captured on CCTV.

Supabarn Kingston – CH2020/324

24. At about 4:40am on 19 March 2020, the young person and the co-offender Goolagong attended Supabarn in Kingston in Mr Schulze’s red Camry.

25. The young person was wearing a white hooded jumper with a black logo on the front and black ‘EVERLAST’ tracksuit pants and black New Balance running shoes. The young person had his face covered and was wearing gloves.

26. The pair used an object and their feet to smash the front entry door of the premises to gain entry. They accessed the area behind the front counter where they stole several bottles of alcohol valued at $600 (CH2020/324 – joint commission aggravated burglary). The cost of repair from the damage caused to the property was valued at approximately $1,000.

27. The incident was captured on CCTV.

28. At some point during this incident, two bottles of alcohol were dropped by the pair at the front entrance. One of the bottles smashed spilling whiskey onto the pavement.

29. The pair returned to the red Camry and drove off.

Subsequent Events and Arrest of the Young Person

30. Mr Schulze’s red Camry with stolen number plates affixed was located by police on 21 March 2020 in Monash. It was subsequently seized by police and searched. Several fingerprints were located on the interior and exterior of the vehicle. Some of the fingerprints that were located on the exterior of the vehicle were a match for the young person.

31. The young person as arrested on 24 March 2020. On 27 March 2020, police conducted a search of the young person’s residence. During the search, police located a pair of black tracksuit pants with ‘EVERLAST’ written on the left leg in white lettering. A white hooded jumper with a black logo was also located and was found to have the young person’s DNA on the inner collar. Victim Impact

32. While there are no Victim Impact Statements before the Court, the Court acknowledges that the commission of these offences would have been very disturbing for the victims.

33. The Court recognises and acknowledges the effects of these crimes on the victims.

Objective Seriousness

34. Counsel for the young person submitted that the assessment of the objective seriousness of the offences involving the co-offender Goolagong could be drawn from the sentencing remarks made in R v Goolagong (No 2) [2021] ACTSC 131 (R v Goolagong (No 2)) (T4.1-4). I sentenced the co-offender Goolagong. The relevant discussion of the objective seriousness of the offences involving the young person are to be found at paragraphs [53]-[61] in that judgment.

35. Counsel for the young person submitted that the objective seriousness assessment in R v Goolagong (No 2) is appropriate to be applied in the current matter, except for one significant differentiating factor. It was submitted that it was an aggravating feature for the co-offender Goolagong, who was 27 years old at the time of the offences, to have committed the offences with a young person aged 15 years. In sentencing the young person, that aggravating feature was not present (T4.41-46).

36. Counsel for the prosecution agreed that the aggravating feature of the offences being committed with a young person was clearly only applicable to the assessment of objective seriousness in respect of the co-offender Goolagong and echoed concerns about the age differences between the co-offender and the young person (T29.18- 21).

37. It must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. I accept the features identified by the prosecution and defence as set out above and in R v Goolagong (No 2).

Subjective Circumstances

Psychological Report of Vanessa Edwige

38. In evidence before me is a psychological report under the hand of Ms Vanessa Edwige dated 11 July 2021 (the Edwige report). Ms Edwige is a registered psychologist and is a member of the independent advisory panel for the Bugmy Bar 1 Book. Ms Edwige conducted a psychological assessment with the young person on 12 June 2021. The Edwige report also sets out that Ms Edwige sourced information from the young person’s foster mother, BG.

Psychosocial History

39. The Edwige report notes that the young person was born in Canberra and is a Wiradjuri young man through the ancestral birthrights of his mother and father. He

1 The Bugmy Bar Book publishes chapters summarising key research relating to experiences of disadvantage and deprivation. The purpose of the Bugmy Bar Book for the legal profession is to assist with the application of the Bugmy v The Queen [2013] HCA 37; 249 CLR 571 principles. has two older biological siblings, through his father’s relationships and one younger biological sibling through his mother’s relationship.

40. BS-X’s biological mother lived with her partner at the time from when she was 13 years old. Her partner was a family friend and was aged in his late 40’s. BS-X’s mother was subject to a care and protection order, though kept running away. While pregnant with BS-X, she was addicted to heroin and was using methadone. BG informed Ms Edwige that there was family violence in the relationship between BS-X’s mother and father during the pregnancy. BS-X’s mother was admitted to hospital late into her pregnancy as her partner had pushed her down the stairs.

41. BS-X’s mother was 15 years old at the time BS-X was born. She continued to be subject to a care and protection order herself at the time of BS-X’s birth and up until BS-X reached 12 months of age. BS-X was born addicted to heroin and his mother continued to use heroin during his first year of life.

42. BS-X was removed from his mother’s care when he was 12 months of age. BG reported that BS-X had been removed as his eczema condition was severe and he had open wounds. BG reported that BS-X’s mother had refused to provide medical treatment in respect of the eczema pursuant to the care and protection arrangement in place, which led to BS-X’s removal from her care. The removal of BS-X was a traumatic event, with the presence of police officers to assist in the facilitation. BS-X was placed in the care of BG and has been in her care since he was 12 months of age. It is noted that the placement of BS-X was not into an Aboriginal family.

43. B-SX’s mother also came to live with BG for a year when BS-X was two and a half. BG reported that B-SX’s mother was unable to cope with the demands of parenting and was more like a sibling to BS-X. BS-X’s mother also enjoyed being parented herself by BS-X’s foster mother.

44. BS-X lived with BG, her husband and four other children in the house, two of which were older than BS-X and the other two were younger. BS-X was a competitive snowboarder and maintained the sport for approximately four years.

45. BS-X’s mother would attend to visit BS-X while he was growing up. When BS-X was 13 years old, his mother fell pregnant and recommenced her heroin use. BS-X found this difficult to understand and to accept. After discovering that the baby in utero had hydrocephalous and a chromosomal disorder, BS-X’s mother again came to live with BG’s family from when she was five months pregnant.

46. The baby boy survived the pregnancy and like B-SX, was also born addicted to heroin. The baby was born prematurely at eight months and had to have a shunt inserted into his skull to alleviate the pressure and fluid. The baby remained in hospital for some months after he was born. BS-X was extremely stressed about his little brother as he had significant special needs and his mother was unable to care for him.

47. BS-X watched his mother frequent the hospital less and less to visit his baby brother, and also saw that she went back to heroin use. BS-X found this extremely stressful and would say to his mother, ‘why can’t you just look after us?’. The baby came to live with BG for five months until a suitable carer was found. BG reported that this was the beginning of the deterioration of BS-X’s mental health and his behavioural decline. BS-X has had limited contact with his younger brother over the last couple of years.

48. BS-X reported to Ms Edwige that he hated losing his little brother into care and also attributed his event as the catalyst for the change in his behaviour. BS-X stated he had ‘stopped caring about everything’ and started drinking and taking drugs. BS-X noted he then started socialising with other people who were taking drugs. BS-X stated that he ‘felt really let down by everyone’.

49. At the end of 2018, BG separated from her her husband, BS-X’s foster father. After his release from the Bimberi Youth Justice Centre, B-SX initially resided with his foster father. His foster father has mental health issues and is diagnosed with bipolar disorder. In September 2020, BS-X and his foster father got into a heated altercation and the incident was reported to care and protection. The Edwige report noted that BS-X was upset from the altercation and he declined to discuss it further.

50. BS-X has had unsupervised contact with his mother since he was 14 years of age and has witnessed her being drug affected. BS-X’s mother was recently incarcerated for eight months and was released two months ago. BS-X maintained contacted with his mother via email whilst she was in custody.

Education

51. BS-X attended a private school in Canberra from Kindergarten to year eight. BS-X was suspended a number of time towards the end of year eight for emerging behavioural issues at school. BS-X was then home schooled in year eight as he refused to attend school. In year nine, he attended an independent secondary school for young people that were unable to attend mainstream school.

52. BS-X found learning difficult as he experienced issues with concentration. He had a teachers aid to assist him with his work in class. He also experienced racism from his peers and saw the school counsellor at the private school regarding racist slurs. BG reported that throughout BS-X’s schooling he has always presented with significant anxiety.

Drug and Alcohol Abuse

53. BS-X commenced drinking alcohol at the age of 12. He reported to Ms Edwige that he does not drink alcohol very much anymore. BS-X started smoking marijuana at 12 years of age and reported that it helped with his anxiety and made him feel calm. BS- X also reported trying ectasy, although he had only tried it four times and does not like it. BS-X started using cocaine at 13 years of age and commenced regular use at the age of 14. BS-X started using ice at 14 years of age but stopped when he was first released on bail from the Bimberi Youth Justice Centre.

Medical History

54. BS-X is currently prescribed the mood stabiliser Seroquel and has been taking this medication since 2018. BS-X also has been prescribed Clonidine, which is a medication that was originally approved to treat people with high blood pressure but is also used to treat those experiencing ADHD symptoms.

Disadvantage

55. The Edwige report noted that BS-X was placed in long-term foster care with BG from the age of 12 months old. Ms Edwige opined that despite the consistent and supportive foster care placement, BS-X was still exposed to adverse childhood events in utero and in the 12 month period where he was living with his mother. Ms Edwige noted that BS-X was exposed to his mother’s drug dependence throughout his life and that BS-X suffered loss and grief in relation to his mother’s parenting and his younger brother being placed in an out of home care placement as a result of his mother’s drug addiction.

56. Ms Edwige made reference to the chapter of the Bugmy Bar Book by the Bugmy Bar Book Committee titled ‘Early Exposure to Alcohol and Other Drug Abuse’ in reference to BS-X. The Edwige report extracted the following from the chapter ‘Early Exposure to Alcohol and Other Drug Abuse’:

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.

…

A parent’s overriding involvement with alcohol or drugs may leave the parent emotionally and physically unavailable to the child; a parent’s mental functioning, judgement, inhibitions, and/or protective capacity may be seriously impaired, placing the child at increased risk of all forms of abuse and neglect… and consistent exposure in the home may contribute to the child eventually developing alcohol or drug problems.

57. The Edwige report noted that as BS-X has been continuously exposed to his biological mother and her behaviour, he is constantly reminded of why he was placed in out of home care. The Edwige report noted that the Bringing Them Home Report had found that a principal effect of removing Aboriginal and Torres Strait Islander children from their families is the destruction of important family and cultural connections, resulting in alienation, loss of identity, frustration and stilted development of skills and learning.

58. The Edwige report made further reference to the chapter of the Bugmy Bar Book titled ‘Out-of-Home Care’ and included the following:

Research indicates that those entering out-of-home care have poorer outcomes than the average child or young person. They have been identified as having increased developmental, behavioural, emotional, and mental health issues and are less likely to access continuous education, treatment and medical care as a consequence of multiple placements, changes in caseworkers or alternating periods of placement at home and in out-of-home care.

59. The Edwige report noted that BS-X has experienced significant loss and grief. Ms Edwige referred to the complex nature of Aboriginal people’s experiences with loss, which can be multifaceted and complex and can result in cumulative grief. Ms Edwige opined that cumulative grief was relevant for B-SX.

60. Ms Edwige referenced the multiple losses that B-SX has experienced. Ms Edwige articulated the losses of B-SX as follows:

o BS-X’s inability to remain with his biological mother and being taken into care.

o The loss of BS-X’s connection to his Aboriginal family and culture. The Edwige report noted that while there were signficant efforts to help BS-X maintain his cultural knowledge and connectedness to culture, he was living in the care of a non-Aboriginal family.

o The loss of his younger sibling, who was also taken into care. This further provided BS-X with a window into what happened when he himself was a baby and was as if he was looking at his own life as an outsider witness. BG had originally told BS-X as a child that his mother was too young to have him, when BS-X saw his mother with his younger brother, BS-X knew that this narrative was not true.

o The loss of his foster family structure due to the parental separation between BG and her husband.

o The loss of BS-X’s relationship with his foster father as a result of the altercation that occurred when he was residing with his foster father.

61. The Edwige report opined that BS-X has experienced profound trauma as a result of these losses and that BS-X did not possess the emotional capacity to navigate his feelings of overwhelming grief. Instead, BS-X externalised his grief through maladaptive behaviours.

62. In relation to BS-X’s disrupted schooling as a result of his suspensions towards the end of year eight and the racial vilifcation he experienced from his peers, the Edwige report further referenced the Bugmy Bar Book chapters titled ‘Interrupted School Attendance and Suspensions’ and ‘Social Exclusion’. The Edwige report noted that exclusion from school increases a pupil’s likelihood of becoming involved in antisocial behaviour.

63. The Edwige report also drew upon the correlation between parental incarceration, substance abuse, and criminal behaviour reported by adolescents, citing the Bugmy Bar Book chapter titled ‘Incarceration of a Parent or Caregiver’.

Current Psychological State

64. The Edwige report opined that BS-X’s childhood and adolescence had impacted on his self-esteem, sense of connection, and had led to feelings of resentment towards his mother for her inability to care from him and his younger sibling. Ms Edwige stated that this culminated in BS-X experiencing anger and an inability to express his feelings. The Edwige report goes on to state that BS-X has externalised his distress through maladaptive behaviours and substance misuse.

65. BS-X reported to Ms Edwige that he became aware that he was not ‘mentally stable’ two years ago and began experiencing suicidal thoughts and ideation. BS-X stated that he was not coping and would have rage episodes where he would black out. BG informed Ms Edwige that BS-X had become extremely dysregulated and would make disturbing threats. BG reported that the family has a safety plan for when these episodes happen.

Offences

66. In respect of the offences , BS-X reported that he was not ‘feeling ok’ in his head at the time of the offences. BS-X told Ms Edwige that he ‘could not physically cope with [his] life’ and that he felt overwhelmed and confused. BS-X confirmed that he was using ice and marijuana at the time of the offences.

67. BS-X informed Ms Edwige that he feels extremely remorseful for what happened and feels bad for taking people’s possessions. The Edwige report noted that BS-X had become heightened when discussing the offences and began disengaging from the assessment. Ms Edwige opined that it was apparent the discussion was causing BS- X significant distress and feelings of shame.

Diagnosis and Clinical Opinion

68. The Edwige report concluded that BS-X’s clinical presentation meets the criteria in the DSM 5 for Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. BS-X and BG both identified that BS-X’s mother’s pregnancy and the removal of his little brother into care were the catalyst for BS-X’s mental health decline and subsequent behavioural issues. The Edwige report further opined that BS-X presents with complex developmental trauma, which Ms Edwige considered the antecedent for the emergence of his substance misuse and Adjustment Disorder. The Edwige report concluded that BS-X’s complex developmental trauma and adjustment disorder both impacted his ability to make appropriate decisions. At the time of the offences, BS-X was experiencing significant psychological distress.

69. Ms Edwige noted that BS-X presents as a proud young Aboriginal man and noted that he has been involved with Aboriginal organisations in his adolescence. This however could not overcome BS-X’s removal from his Aboriginal culture as a baby and the fact that he grew up with a family who are not Aboriginal. The Edwige report stated that BS-X has been an observer to his Aboriginal culture as a result and has a disconnect with his cultural identity.

Protective Factors

70. The Edwige report noted that BS-X presented with multiple protective factors considered positive for living in the community. These factors included:

(a) BS-X’s supportive and loving foster family;

(b) BS-X’s desire to further his education;

(c) BS-X’s strong desire to access supports to aid his recovery; and

(d) BS-X’s strong desire to connect to his Aboriginal culture.

71. Ms Edwige also noted that BS-X had informed her his goals include continuing to build his connection to his Aboriginal culture and to be accepted to enrol in law at university.

Prosecutions Submissions

72. It was the submission of the prosecution that the young person had been making significant progress in relation to his rehabilitation, schooling, and working (T26.38- 41). The alleged commission of fresh offending came not only as a surprise to the young person’s legal representatives, but also to the prosecution (T26.45-46). It was noted that the fresh matters are to be defended and were not relevant to this sentencing exercise. The presumption of innocence applies. It was submitted that the prosecution’s chief concern was seeing that the young person remains on track (T29.5-7).

73. Counsel also noted that should the young person wish to undertake legal studies, the Australian National University and the University of Canberra offer support for Indigenous students. It was also noted that the New South Wales Bar Association utilises the Indigenous Barristers’ Trust – the Mum Shirl Fund to assist career development opportunities and career prospects for Aboriginal and Torres Strait Islander lawyers (T30.10-19).

Defence Submissions

74. Counsel for the young person noted that BS-X is currently not attending school, but has taken it upon himself to discuss enrollment with Canberra College. It was noted that Canberra College is BS-X’s in area school and that BS-X plans to engage in a hybrid model of education, where he can attend school and engage with trade training (T9.33-42). Counsel noted that as part of the young person’s experience with the Warrumbul Circle Sentencing Court, the young person was referred to the service Yheduun Gauur. This service finds trial periods of work in different trades for young Indigenous people to offer these young people the opportunity to determine what trades they enjoy doing before committing to undertaking an apprenticeship (T10.1- 4).

75. Counsel also noted that the young person has identified that he has a strong relationship with a counsellor from the Ted Noffs foundation and that this counsellor is a protective influence. Counsel stated that the young person had said he would go and speak to the counsellor ‘any day of the week’ (T17.29-33).

76. Counsel informed the court that BS-X remains on his medication regime and that BG is keen to ensure that BS-X maintains his consistency with taking his medication. BG had informed counsel for the young person that the medication routine has assisted the young person immensely in respect of his behaviours (T18.42-46).

77. Further reference was made by counsel for the young person in relation to BS-X’s engagement with the Warrumbul Circle Sentencing Court process which took nine months. It was submitted that the young person remained engaged throughout the process and has now completed his Road Ready course, which would allow him to obtain his driver’s licence. Counsel for the young person noted that this was relevant to the additional offence of driving while unlicensed, which was particularised as the young person being unlicensed when he has never held a licence. It was submitted that the Court could be confident that reoffending of an offence of that nature is minimised (T25.20-27).

78. Counsel noted that the young person had been arrested two days prior to this sentence hearing, in respect of allegations of fresh offending. On that occasion, the prosecution had applied to revoke the young person’s bail in respect of the present offences and the young person was remanded in custody. It was submitted that as the alleged fresh offending remained allegations at this point in time, the Court could proceed with the sentencing exercise and not acknowlege the fresh allegations beyond noting that if the young person did not receive a custodial sentence in respect of the present matters, he would still need to apply for bail in the Childrens Court for the fresh offences (T26.7-11). Reference

79. A reference under the hand of BG, the young person’s foster mother, was tendered in support of the young person. That reference includes the following:

During the 11 months since [BS-X] was released from Bimberi last year we have seen significant improvements and achievements for him in the following areas.

o [BS-X] has been able to integrate back into home life successfully. [BS-X] stays at home most nights and always lets us know where he will be staying if he is not at home.

o [BS-X] has engaged with his paediatrician and has worked with her to make the necessary changes to his medication to find the right combination to treat his physical and mental health. [BS-X] has committed to and maintained a schedule of taking that medication consistently every day which has made a massive improvement on his ability to regulate and maintain his emotions and behaviour. This is a massive improvement as it was something that we were struggling to manage prior to [BS-X] offending and I believe somewhat contributed to the behaviours that led to his offending.

o [BS-X] has tried to engage with a variety of schooling activities. Unfortunately none of these were a good fit or successful for him but including trying out the CIT year 10 Indigenous program as well as trying to re enrol back at… the school he attended before he was incarcerated last year.

o [BS-X] was referred to the circle sentence court for a rehabilitation program through the Magistrates Court. This was a nine month process during which [BS-X] met with the Elders and assisted in creating his own rehabilitation program. The focus of this rehabilitation program was for [BS-X] to work on getting his driver’s licence and also to engage in some kind of work and also to engage in some counselling to assist with his anger issues. [BS-X] attended every session and fully engaged with the process. At the end of this process [BS-X] had completed his road ready course to obtain his learners driver’s licence, as well as engaging with Everyman, a counselling service in Canberra. [BS-X] has engaged in some casual work as an apprentice carpenter, which was a really great experience. [BS-X] impressed the Elders with his ability to participate in his own well-being and rehabilitation and as a result dismissed all of the charges at the end of the process.

o Through the engagement with the Circle Sentencing process [BS-X] was referred to a service provider in Canberra that will continue to assist him in engaging in casual construction work and work experience, to help him figure out which trade he would like to continue in. This is due to commence once [BS-X] is of the age of 17 for safety reasons.

[B-SX] has made significant improvements both within his family life and personal development over the last 12 months. I, as well as the rest of [BS-X]’s family, are committed to continuing to assist him in his rehabilitation and positive outcomes as he moves into young adulthood.

80. I take the reference of BG into account on sentence. Significance of Culture to Wellbeing, Healing and Rehabilitation Report of Vanessa 2 Edwige and Dr Paul Gray

81. As noted above, Ms Edwige is a member of the independent advisory panel for the Bugmy Bar Book and in conjunction with Dr Paul Gray, has recently published a further report for the Bugmy Bar Book titled ‘Significance of Culture to Wellbeing, Healing and Rehabilitation’ (the report). The report echos many of the themes that were apparent in the Edwige report in respect of BS-X. Both counsel acknowledged the report in oral submissions.

82. The report examines rehabilitation and wellbeing for Aboriginal and Torres Strait Islander people. Further, the report examines the relationship between Aboriginal culture, healing, rehabilitation, and the impact of imprisonment. The report highlights the importance of culture to Aboriginal and Torres Strait Islander peoples and therefore, the importance of culturally appropriate treatments to facilitate rehabilitation. The operation of culturally appropriate treatments are explored in relation to the criminal justice system. The report underlines that cultural identity is an important protective factor that promotes self-worth and therefore, rehabilitation.

83. It is important that I interpolate here to note at this juncture that individual rehabilitation is in the public interest for both the individual and for community protection. As stated by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:

Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

84. Counsel for the prosecution referred to the report and made submissions in relation to a portion of the report titled ‘Connection to culture: promotion of resilience and healing’. That portion of the report explores the healing activities that are unique and integral to the cultural wellbeing of Aboriginal and Torres Strait Islander peoples. It was submitted by the prosecution that although BS-X had a supportive and stable foster family, the report demonstrated that it can still have a significant impact on a young Aboriginal person if they do not have that cultural connection, if removed into an non-Aboriginal foster family (T27.19-24). Counsel for the prosecution noted that the Edwige report highlighted that BS-X had reported feeling disconnection from his Aboriginal culture and accepted that this disconnect may have played a role in the young person’s current position being brought before the court (T27.37-43).

85. In my view, the report is significant in the context of the Edwige report and underlines the principles that should be applied in the context of the evidence in this case. In particular, in applying the principles derived from Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy).

Application of Bugmy Principles

86. In Bugmy, the High Court found that the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of

2 This report has been commissioned by the Bugmy Bar Book. Its purpose is to collate research regarding the significance of culture to Aboriginal and Torres Strait Islander people and the significant benefits of connecting to culture, family and community as part of culturally appropriate treatment and care to promote wellbeing, rehabilitation and healing. an offender whose formative years have not been marred in that way: at [40]. Generational disadvantage is relevant to the sentencing of both Aboriginal offenders and non-Aboriginal offenders. Further, the High Court held that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy [42]-[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy at [43]. Social deprivation may impact on those purposes in different ways. The court in Bugmy explained at [44]-[45]:

An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

87. In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:

(a) the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];

(a) the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and

(b) the application of the Bugmy principles is not discretionary: Irwin at [3].

Prosecution Submissions

88. The prosecution in this matter accepted that the Bugmy principles were applicable in light of the young person’s trauma and subjective circumstances (T31.3-6).

Defence Submissions

89. Counsel for the young person submitted that childhood disadvantage was a factor the Court was bound to consider and it was to be provided its full weight regardless of one’s criminal history. Counsel noted that this was less significant in the current matter, as the young person has a limited criminal history. Counsel noted that a discussion of the Bugmy principles was also included in the sentencing remarks of the co-offender in R v Goolagong (No 2) (T24.13-25).

90. It was submitted that it was clear from the Edwige report that the young person has experienced significant childhood disadvantage and trauma. Counsel noted that while the young person has had the significant advantage of a consistent, loving, and supportive foster mother, he has continued to suffer very significant trauma from a constellation of issues beyond the control of BG (T24.32-36).

Conclusion on Bugmy Principles

91. There is no doubt on the evidence before me that the young person has experienced significant childhood disadvantage, and it is appropriate that I take this into account on sentence, in the manner set out in Bugmy, and I do so.

92. I also note the recent discussion of Bugmy in the New South Wales Court of Criminal Appeal decision of Hoskins v R [2021] NSWCCA 169 (Hoskins) where the offender had a stable and secure childhood up until he was 12 years old and then he was reunited with his biological family who were in an environment where crime, alcohol and drug abuse were normalised. In Hoskins, it was noted by Brereton JA at [57] that although the term “profound childhood deprivation” was used by the High Court in Bugmy when referring to its enduring effects, what is required is consideration of “an offender’s deprived background”. Brereton JA further noted at [57]:

There is no magic in the word “profound”, and it is not necessary to characterise an offender’s childhood as one of “profound deprivation” before the principle is engaged.

93. Brereton JA stated at [61] that exposure as a child to the influence of an extended family involved in such an environment is a relevant factor, as it can warp a child’s moral compass and create conditions in which anti-social behaviour becomes normalised. His Honour concluded that this is as true during the formative years of adolescence.

94. These further statements in Hoskins are relevant and particularly apposite in assessing the evidence in the case of B-SX. Additionally, in this case there is an overlap and connection between the application of the Bugmy principles and the principles derived from R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins), in particular in relation to moral culpability. I will now deal with the Verdins principles concerning impaired mental functioning.

Application of Verdins Principles

95. In Verdins, the Victorian Court of Appeal identified six ways in which impaired mental functioning may be relevant in sentencing at [32]:

Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentence in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both (Payne at 444, [43]). 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

5. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

6. In DPP (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at [177], the New South Wales Court of Criminal Appeal set out the relevant principles as follows:

Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

97. The countervailing sentencing consideration does not arise in the case of this young person.

Prosecution Submissions

98. Counsel for the prosecution accepted the application of the Verdins principles in this matter, having regard to the Edwige report.

Defence Submissions

99. In reference to the first limb of Verdins, counsel for the young person submitted that the Edwige report outlined a causal link between the young person’s mental health condition and the offending. Counsel underlined the conclusion of the Edwige report that the young person’s ability to make reasonable judgments was significantly impacted. It was accepted that the young person had voluntarily engaged with illicit substances, but it was ultimately submitted that as the young person commenced substance use at a young age, the first limb of Verdins continued to apply even though it may not do so with an adult offender (T19.8-29).

100. Counsel submitted that in relation to the second limb of the Verdins principles, the young person’s mental health condition meant that the appropriate sentencing disposition would be by way of a good behaviour order (T19.42-47).

101. It was submitted in consideration of the third Verdins limb that the evidence before the Court demonstrated that the young person was not an appropriate vehicle for general deterrence (T23.16-19).

102. Counsel further noted in light of the young person’s limited criminal history, the fourth limb of Verdins highlighted that specific deterrence would not be at the forefront in the sentencing exercise (T23.36-39).

103. In reference to the fifth and final limb of Verdins, it was submitted that although there was no specific material to indicate that any given sentence would weigh more heavily on the young person, the Court could infer from the young person’s mental health conditions that the young person would be impacted by a sentence greater than a person in normal health (T23.40-47).

Conclusion on Verdins Principles

104. Applying the relevant principles to the evidence before me, I am satisfied that the offender’s moral culpability for the offence is reduced by reason of his mental impairment. Further, I accept the submissions of the prosecution and the defence in relation to this issue which are broadly aligned and accord with my view of the evidence in this case.

Youth & Rehabilitation

105. In sentencing a young person, the relevant legislation includes the Crimes (Sentencing) Act, the Children and Young People Act 2008 (ACT) (Children and Young People Act) and the Human Rights Act (2004) (ACT) (Human Rights Act).

106. Relevant sections of the Crimes (Sentencing) Act include: 133C Young offenders – purposes of sentencing (1) Despite section 7(2), in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in section 7(1). (2) Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice. 133D Young offenders – sentencing – additional relevant considerations (1) In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters: a. the young offender’s culpability for the offence having regard to his or her maturity; b. the young offender’s state of development; c. the past and present family circumstances of the young offender. (2) This section applies in addition to section 33 (Sentencing – relevant consideration). … 133G Young offenders – sentences of imprisonment (1) This section applies if a 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 – a. the sentence of imprisonment; and b. a good behaviour order with a supervision condition. (4) The court must not sentence the young offender to imprisonment for life.

107. Section 94 of the Children and Young People Act is also relevant and provides as follows:

94 Youth justice principles (1) For the criminal matters chapters, in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that is relevant (the youth justice principles): a. if a child or young person does something that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable; b. a child or young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways; c. a child or young person should be consulted about, and be given the opportunity to take part in making, decisions that affect the child or young person, to the maximum extent possible taking into consideration their age, maturity and developmental capacity; d. if practicable and appropriate, decisions about an Aboriginal or Torres Strait Islander child or young person should be made in a way that involves their community; e. if a child or young person is charged with an offence, he or she should have prompt access to legal assistance, and any legal proceeding relating to the offence should begin as soon as possible; f. a child or young person may only be detained in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the minimum time necessary; g. children, young people and other young offenders should be dealt with in the criminal law system in in a way consistent with their age, maturity and developmental capacity and have at least the same rights and protection before the law as would adults in similar circumstances; h. on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community; i. it is a high priority that intervention with young offenders must promote their rehabilitation, and must be balanced with the rights of any victim of the young offender’s offence and the interests of the community. (2) The decision-maker may also consider any other relevant matter. (3) The youth justice principles are intended to be interpreted consistently with relevant human rights instruments and jurisprudence. (4) A reference in subsection (1) to a child or young person includes a reference to a person who is at least 18 years old but is being dealt with in relation to an offence committed, or allege to have been committed, when he or she was under 18 years old.

108. Relevantly, s 22 of the Human Rights Act 2004 (ACT) provides:

22 Rights in criminal proceedings … (3) A child who is charged with a criminal offence has the right to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation.

109. There are a number of common law principles relevant to the sentencing of young offenders. These principles are helpfully summarised by McClellan CJ in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[23], and adopted in this jurisdiction in R v BM (Unreported, Supreme Court of the ACT, 29 October 2012, Refshauge J):

22 The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. 23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

110. When sentencing a young person, rehabilitation is usually more important than general deterrence, and the weight to be afforded to the consideration of youth does not vary in accordance with the seriousness of the offending behaviour: R v TL [2017] ACTCA 18 at [39]-[40]. In my view, in sentencing BS-X, rehabilitation is a primary consideration. Conditional Liberty

111. The young person was on bail at the time the offences were committed, in respect of outstanding matters that were dealt with in the Childrens Court and the Warumbul Circle Sentencing Court.

112. In R v Tran [1999] NSWCA 109 at [15], Wood CJ stated:

Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.

113. The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor on sentence.

Criminal History

114. The young person has a limited criminal history, including offences that were found proven and dismissed in the Warrumbul Circle Sentencing Court. The young person’s criminal history also references an offence of attempted aggravated robbery via joint commission that the young person did not receive a conviction for but instead received a 12 month good behaviour order.

Pleas of Guilty and Discount

115. The offender entered pleas of guilty after the matters had been committed for trial in the Supreme Court and after a Criminal Case Conference had been conducted on 24 March 2021. The pleas were entered after negotiations at the Criminal Case Conference that had resulted in a reduction of charges in full satisfaction.

116. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard, if the Court considers that there is a real likelihood that it will sentence the offender, in this case the young person, to a period of imprisonment: s 35(1)(b) Crimes (Sentencing) Act.

Prosecution Submissions

117. Counsel for the prosecution submitted that in ordinary circumstances, it would be the prosecution’s position that the threshold for imprisonment in s 10 of the Crimes (Sentencing) Act would have been crossed, given the nature of the offences the young person is to be sentenced for. However, counsel submitted that given the young person’s subjective circumstances, the prosecution conceded that a sentence of imprisonment was not warranted (T32.15-17 & T33.36-37).

Defence Submissions

118. Counsel for the young person noted that the young person had pleaded guilty at a similar point in time to the co-offender Goolagong. It was noted that the co-offender Goolagong received a discount in the range of 20 per cent: R v Goolagong (No 2).

119. It was submitted that a sentence of imprisonment was not warranted for the young person. Counsel noted that if the Court was minded to sentence the young person to a sentence of imprisonment, a discount in the range of 20 per cent would be appropriate pursuant to Blundell v The Queen [2019] ACTCA 34 (T5.11-13). Conclusion on Guilty Pleas

120. This is a matter where I am not imposing a sentence of imprisonment, taking into account the relevant principles and evidence in this case. I note that the requirement to nominate a discount is only necessary where a term of imprisonment is being contemplated: s 35(1)(b) of the Crimes (Sentencing) Act. In the present circumstances, there is no need to nominate a discount. However, I note if I had contemplated a sentence of imprisonment, a discount in the range of 20 per cent would have been appropriate.

Time in Custody

121. The young person has spent 133 days in custody solely referable to these offences.

Parity

122. The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following:

[J]ust as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48].

123. The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32], Lowe v The Queen (1984) 154 CLR 606, and Petterson v The Queen [2013] NSWCCA 133 at [43].

124. Where one offender is an adult and the other is a young person, it is proper for the Court to recognise that the sentencing takes place in very different regimes: R v Ho (Unreported, Court of Criminal Appeal of NSW, 28 February 1997), R v Colgan [1999] NSWCCA 292; R v Govinden [1999] NSWCCA 118; 106 A Crim R 314; R v Boney [2001] NSWCCA 432; R v Wong [2003] NSWCCA 247.

Prosecution Submissions

125. Counsel for the prosecution noted that there was an immense disparity between the criminal histories of the co-offender Goolagong and the young person (T30.28-30). Counsel did not cavil with the submission advanced on behalf of the young person that substantial parity with the sentence of the co-offender Goolagong was not required (T3.39-40).

Defence Submissions

126. Counsel for the young person noted that this was not a matter where counsel would be submitting that the young person’s sentence would have substantial parity with the sentence imposed on the co-offender Goolagong (T3.34-37). Reference was made by counsel to the age disparity between the young person and the co-offender in support of the submission (T4.45-46).

Conclusion on Parity

127. I note the criminal history of the co-offender Goolagong as discussed in R v Goolagong (No 2) at [93]-[94]. I also note the disparity in ages.

128. In sentencing the young person, I take into account the principles of parity in accordance with the authorities outlined above and note the different factors pertaining to the young person.

Criminal Responsibility & Moral Culpability

129. Although participants to a joint criminal enterprise are equally liable for the offence committed, as a matter of criminal responsibility, it is nevertheless the task of the Court to address the moral culpability of each individual offender. An assessment of moral culpability as distinct from criminal responsibility, where the evidence does differentiate between the acts of offenders, is appropriate: see Beale v The Queen [2015] NSWCCA 120.

130. Further, it is often appropriate to differentiate between relative culpability amongst co-offenders by reference to the conduct of each in the joint criminal enterprise: R v JW [2010] NSWCCA 49; 77 NSWLR 7. See also: R v Wright [2009] NSWCCA 3, R v Hoschke [2001] NSWCCA 317 at [8], R v Goundar [2001] NSWCCA 198; 127 A Crim R 331, and GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198.

131. A number of the matters involve joint commission with the co-offender Goolagong. As conceded by the prosecution, the co-offender Goolagong was a 27 year old man and the young person was 15 years old at the time of those offences, so there was a clear disparity of age and this is relevant to the principles of criminal responsibility and moral culpability.

132. I take these principles into account on sentence.

Additional Offences

133. The young person has requested that, under Part 4.4 of the Crimes (Sentencing) Act, the offences referred to above at [2] be taken into account for the purposes of sentencing in relation to the importation and trafficking offences.

134. A number of relevant principles in relation to consideration of additional offences were enunciated by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]-[50] (Campbell), including:

(c) The Court is required to ask the offender whether they wish the Court to take into account the additional offences, the answer to which much be clear and unequivocal: at [43], Crimes (Sentencing) Act s 57(1).

(d) Any penalty imposed for the offence cannot exceed the maximum penalty even if additional offences are taken into account: at [46], Crimes (Sentencing) Act s 57(1).

(e) In taking additional offences into account, greater weight is given to considerations of personal deterrence and community retribution, and in taking them into account they will no doubt be considered in the assessment of the offender’s character and prospects of rehabilitation: at [47], [50].

(f) It is not necessary for a court to indicate precisely what effect the taking into account the additional offences has, and while there may be occasions when it is appropriate for a judge to refer to the effect, it is not obligatory to do so: at [49]-[50]. (g) “Taking offences into account” means to do so in the same manner as other matters that are taken into account on sentence. It will generally have the result of increasing, or changing the nature of, the sentence to be imposed: at [50].

(h) The offender is not to be sentenced for the additional sentences: at [50].

135. I take into account, in determining the appropriate sentence, the additional offences referred to above at [2]. I also have regard to the principles outlined in Campbell as to how the offences are to be taken into account.

Statutory and Other Relevant Considerations

136. In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act that are known and relevant. I have referred to the relevant matters above.

137. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.

138. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

139. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. As stated above, in my view, an alternative to prison is appropriate.

140. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38.

141. In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27]:

[W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.

142. I take these principles into account in sentencing.

Sentence Prosecution Submissions

142. Counsel for the prosecution submitted that good behaviour orders were appropriate in the circumstances, in light of the Bugmy and Verdins principles. It was submitted that a good behaviour order would act as a check and balance to ensure that the young person resumes and continues on the upward trajectory he was on (T33.33-38).

143. Counsel for the prosecution did not cavil with the submission advanced on behalf of the young person that a supervision condition by the Director-General of the Office for Children, Youth and Family Support (Care and Protection) was not required in this matter (T33.12-29).

Defence Submissions

144. Counsel for the young person submitted that it was appropriate that good behaviour orders were imposed on the young person. It was submitted that a supervision condition by Care and Protection was not necessary in this matter. Counsel noted that the young person has significant support through his foster mother and is already subject to a final care and protection order (T20.1-4).

145. Counsel noted that as the young person is under a final care and protection order, the service ACT Together becomes involved with the young person. The young person’s worker from ACT Together was present at the sentence hearing. Both BG and the young person had instructed counsel that they have a positive relationship with ACT Together, as ACT Together understand the family history (T20.41-46).

146. It was submitted that the relationship between Care and Protection was unstable and worker dependent. Counsel noted that the young person had ‘gone so far as to instruct me that rather than have a supervision condition with Care and Protection, he would in fact rather simply serve his time’ (T21.25-28). Counsel stated that there had been a history of friction with Care and Protection in relation to attempts to breach the young person on bail in relation to supervision conditions and this had caused a fracture in the relationship. This included an occasion where the family were to take a family trip to the coast together and there was a threatened breach. It was submitted that where there was already existing stable supervision regime with BG and ACT Together, an additional supervision condition by Care and Protection was superfluous and could potentially ‘cause more harm than good’ (T22.24-30).

Consideration

147. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and the young person’s subjective matters. Taking all of the above into account, in particularly the principles concerning Bugmy, Verdins, Youth Justice and rehabilitation, in my view, good behaviour orders for the offences are appropriate. I will accede to the submission not to order the additional Care and Protection supervision condition as the submission that there is sufficient supervision currently undertaken is soundly based on the evidence before me.

Orders

148. I make the following orders:

(a) I record convictions in relation to the offences.

(b) For the offence of drive motor vehicle without consent CH2020/382, pursuant to s 13 Crimes Sentencing Act 2005, a good behaviour order for 12 months from today, 22 July 2021 is imposed with the core conditions contained in s 86 of the Crimes (Sentence Administration) Act 2005. (c) For the offence of take motor vehicle without consent CH2020/385, pursuant to s 13 Crimes Sentencing Act 2005, a good behaviour order for 12 months from today, 22 July 2021 is imposed with the core conditions contained in s 86 of the Crimes (Sentence Administration) Act 2005.

(d) For the offence of ride motor vehicle without consent CH2020/322, pursuant to s 13 Crimes Sentencing Act 2005, a good behaviour order for 12 months from today, 22 July 2021 is imposed with the core conditions contained in s 86 of the Crimes (Sentence Administration) Act 2005.

(e) For the offence of attempt aggravated burglary CH2020/38, pursuant to s 13 Crimes Sentencing Act 2005, a good behaviour order for 18 months from today, 22 July 2021 is imposed with the core conditions contained in s 86 of the Crimes (Sentence Administration) Act 2005.

(f) For the offence of aggravated burglary CH2020/323, pursuant to s 13 Crimes Sentencing Act 2005, a good behaviour order for 18 months from today, 22 July 2021 is imposed with the core conditions contained in s 86 of the Crimes (Sentence Administration) Act 2005.

(g) For the offence of aggravated burglary CH2020/324, pursuant to s 13 Crimes Sentencing Act 2005, a good behaviour order for 18 months from today, 22 July 2021 is imposed with the core conditions contained in s 86 of the Crimes (Sentence Administration) Act 2005.

(h) For the offence of damage property SCCAN2021/61, pursuant to s 13 Crimes Sentencing Act 2005, a good behaviour order for 12 months from today, 22 July 2021 is imposed with the core conditions contained in s 86 of the Crimes (Sentence Administration) Act 2005.

(i) Pursuant to Part 4.4 of the Crimes (Sentencing) Act 2005, the offence of drive unlicensed, licence never held CH2020/386 and minor theft CH2020/384 are taken into account.

I certify that the preceding one hundred and forty-eight [148] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson

Associate: Rhiannon McGlinn

Date: 2 August 2021