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Parties: ACT Director of Public Prosecutions (Crown) KN (Young person)

Representation: Counsel K Reardon (Crown) J Cooper (Young person)

Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Young person)

File Number: SCC 153 of 2019

LOUKAS-KARLSSON J:

Introduction

1. On 20 November 2019, the young person, KN, pleaded guilty to the following offences before Murrell CJ:

(a) An offence of aggravated burglary contrary to s 312(a) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 2,000 penalty units, imprisonment for 20 years, or both;

(b) An offence of arson contrary to s 404 of the Criminal Code and by virtue of s 45A of that Act. The maximum penalty for this offence is 1,500 penalty units, imprisonment for 15 years, or both; and

(c) An offence of damage property contrary to s 403 of the Criminal Code and by virtue of s 45A of that Act. The maximum penalty for this offence is 1,000 penalty units, imprisonment for 10 years, or both. History of the Matter & Related Appeal Proceedings

2. Subsequent to the pleas of guilty set out above, this sentence matter was before Ashford AJ on 26 November 2019. On that occasion, Ashford AJ granted the young person bail on conditions to accept the supervision of Child and Youth Protection Services (CYPS); not to consume illicit drugs or alcohol; to subject to urinalysis; to report to police once a week; and to abide by a curfew of 10pm to 7am.

3. An appeal from the Magistrates Court for the same young person came before me on 29 January 2020. I formed the view that it was appropriate for the appeal matter and this sentence matter to be dealt with by the same judicial officer. To that end, both the appeal matter and this sentence matter came before me on 10 February 2020 so that the young person’s sentence matter could be dealt with after the conclusion of his appeal matter.

4. On 10 February 2020, the young person had been in the community on bail for over two months and had satisfactorily complied with his bail conditions (T 10/2/20, 22.24- 24.1). He was given the opportunity by the Court to demonstrate his improving prospects for rehabilitation for a further period, and the matter was adjourned to June 2020.

5. When the matter returned to Court in June, there had been no further offending and satisfactory compliance with bail conditions (T 18/6/20, 3.39-40). KN was also supported in Court by Mr Malcolm Towney from Gugan Gulwan Youth Aboriginal Corporation, Mr Peter Savage, Field Officer from the Aboriginal Legal Service, and KN’s mother.

Agreed Facts

6. The agreed facts are set out in the Agreed Statement of Facts, which forms part of the Crown Tender Bundle. These facts may be summarised as follows.

7. The offences were committed at approximately 12.20am on 19 November 2017, when the young person and an unknown co-offender entered the grounds of Namadgi School in Kambah by scaling a perimeter fence. At the time of the offence, the young person was 14 years of age and was a student at the Namadgi School.

8. After entering the school grounds, the young person and co-offender attempted to gain entry to the school’s canteen. One of the young persons kicked the canteen door three times with his right leg, causing the panel in the door to bend. This action was captured on CCTV.

9. The two young persons then moved to another door and gained entry to the canteen by breaking a lock and smashing a small window. While inside the canteen, they stole six bottles of strawberry-flavoured milk.

10. The young person and co-offender then forced entry into the school gymnasium, Building 3A and the Administration Building. They smashed 13 windows in the gymnasium and broke the lock on the side fire door.

11. In the Administration Building, the young person and co-offender broke 12 windows, 2 doors, 5 computers, 2 iPads, a laptop, 3 door locks and 2 megaphones. In Building 3A, they damaged lockers, smashed three external windows and damaged the metal roofing. They also damaged the fire alarm, a speaker, HVAC system, two trestle tables, power point switches and a student chair. Across multiple offices in Building 3A, the young person and co-offender damaged a student chair, two trolleys, a keyboard, a teacher’s desk, and a phone; they also smashed a window and two computers.

12. Further to the damage stated above, while in Building 3A, the young person and co-offender lit a fire in an office, on a desk near a computer. This caused extensive fire damage and smoke damage to Building 3A.

13. While on the grounds of Namadgi School, the young person and co-offender caused damage to a garden shed belonging to the school.

14. The total damage caused by the young person and the co-offender was estimated to be $183,834.89.

15. The young person and co-offender left the Namadgi school grounds at approximately 1.20am and walked to the Kambah Playing Fields, where they met a number of teenagers who had been attending a birthday party nearby. Some of the teenagers identified the young person but were unable to identify the co-offender. Both the young person and co-offender made admissions to damaging property and setting fire to the school.

16. DNA from a wet swab of blood found in the gymnasium and fingerprint evidence found on a Smirnoff vodka bottle in the Deputy Principal’s office in Building 3A connected the young person to the offences.

Victim Impact

17. The prosecution submitted that a key consideration in sentencing is the significant damage caused to the public school: s 33(1)(e) of the Crimes (Sentencing Act) 2005 (ACT) (Sentencing Act). It was submitted that the Court “can infer the significant inconvenience that would have been felt by the students and staff at that school as a result of the damage” (Written Submissions at [10]).

18. The Court acknowledges the substantial damage caused to the school and further acknowledges the significant and serious consequences for students and staff as a result of these offences.

Objective Seriousness

19. In respect of the aggravated burglary, the prosecution submitted that the following factors were relevant to the assessment of objective seriousness: the nature of the premises; whether victims were present at the time; the young person’s motivation; damage to the property; and the level of premeditation or planning involved: Simonds v The Queen [2013] ACTCA 13; R v Forrest (No 2) [2017] ACTSC 83; R v Pahl (No 2) [2017] ACTSC 155; R v McMahon (No 2) [2017] ACTSC 299.

20. The prosecution submitted that the aggravated burglary offence fell “towards the lower end of objective seriousness”, taking into account the following factors (Written Submissions at [2]):

(a) the offence occurred at a public school;

(b) the offence occurred at night when no one would be expected to be at the school; (c) the offending was unsophisticated, in that the young person and co-offender climbed over the fence; and

(d) the young person was suspended from school at the time of the offence.

21. In relation to the arson offence, the prosecution cited the following statement of Burns J in R v NI [2016] ACTSC 361 at [23]:

The offence of arson is always a serious offence in part because of the potential for any fire to spread beyond the control of the young person or others. Offences of arson almost always raise the risk of potential unintended damage to property and danger to others, not least those who are called upon to try to extinguish the fire.

22. It was submitted that the relevant factors for assessing the objective seriousness of arson include whether the offence was committed in circumstances where the fire could spread, or a person could be injured (R v Ridley [2016] ACTSC 97); whether the offence was committed at night; and whether the offence involved accelerant (R v Jackson [2018] ACTSC 40).

23. The prosecution submitted that the offence occurred at night, within a large public building, and there was no evidence of use of accelerant. The prosecution submitted, therefore, that the offence would fall towards the low range of objective seriousness.

24. The young person agreed that the burglary and arson fall at the lower end of objective seriousness. The young person further agreed that the degree of damage related to the property damage offence increases the seriousness; however, it was submitted that the degree of impulsivity involved in the offending lessens the objective seriousness: s 33(1)(a) Sentencing Act and R v Carmody [2016] ACTSC 382 at [54]- [55].

Subjective Circumstances

Pre-Sentence Report

25. In evidence before me is a pre-sentence report (PSR) prepared for the young person dated 15 October 2019. There was no updated report.

26. It should be noted that, in some respects, the PSR was out of date. Since the preparation of the report, the young person has spent nine months in the community on bail. In this time, he has not been convicted of any further offences, and he has been largely compliant with bail conditions (T 18/6/20, 3).

Family Background

27. KN is a young Aboriginal man, currently 17 years of age. He was 14 years of age at the time these offences were committed. He has seven siblings, all born in Canberra, and his parents are from regional New South Wales. KN’s maternal grandmother, paternal grandmother, and paternal grandfather were also identified as part of the family unit. KN indicated that his maternal grandmother has played a large role in supporting the family, and currently cares for two of his siblings as part of a family arrangement.

28. KN reported that he was close to his maternal grandfather before he passed away in 2017. KN’s mother and maternal grandmother indicated that KN’s behaviour changed after his grandfather passed away and that he “wasn’t able to grieve”.

29. The PSR notes that KN and his siblings have been subject to an extensive child protection history. CYPS have received 38 notifications in relation to KN since June 2006, and 12 of these proceeded to further statutory intervention.

30. According to the PSR, KN describes his relationship with both parents as good. Prior to his period of remand, KN was spending 2-3 nights a week staying at friends’ houses. KN also reported good relationships with his siblings and expressed concerns about his younger brother engaging in activities that could also lead him to spending time in Bimberi Youth Justice Centre (Bimberi).

31. KN has positive relationships with his extended family in the Canberra community, although he does not engage with them often. The PSR concludes that there is a low level of criminogenic risk in relation to KN’s family circumstances and parenting; however, there are concerns about KN’s parents’ ability to provide supervision and manage KN’s behaviour.

Education & Employment

32. Since 2015, KN consistently failed to attend class on a regular basis, and this was reflected in his results at school. In 2016 and 2017, KN was suspended from school a number of times for behavioural issues. In 2018, KN’s grades reflected complete disengagement with school, without successful completion of a single subject.

33. KN reported that he had been absent from education for 15 months prior to being remanded. While on remand, KN engaged well with the education unit. Teaching staff reported that he was performing at the educational level of a 10 year old. KN reported that, in relation to literacy and numeracy, he has “always found it tough”. Despite this, KN began his Year 10 certificate while on remand. He was highly praised for his work in art and woodwork.

34. KN reported that he wishes to complete his Year 10 and Year 12 certificates and has considered training to become a carpenter. KN has not previously engaged in any form of employment.

35. In oral submissions on 18 June 2020, counsel for the young person stated that “school didn’t work”, but that the young person is receiving support from Gugan Gulwan “to help him get a white card” and find employment (T 5.1-30).

Medical History

36. KN’s mother reported that, throughout his childhood, KN had recurring ear infections which has now impacted his ability to hear. KN had hearing aids as a child but stopped wearing them due to bullying at school. A report provided by an audiologist from Winnunga Nimmityjah Aboriginal Health and Community Services on 18 July 2019 stated the following:

The results show a significant and long standing chronic conductive hearing loss, worse on the left. He has mild to severe degree of hearing loss and has previously worn hearing aids to assist with this. This degree of hearing loss would impact every part of [KN]’s life including his engagement in learning, his ability to socialise appropriately and his levels of frustration and fatigue.

Drug & Alcohol History

37. The PSR indicates that KN spoke openly and honestly about his drug and alcohol use. KN reported using cannabis regularly at the time of the preparation of the PSR, both with and without the company of friends, and reported that he began using cannabis at the age of 11.

38. KN reported first drinking alcohol at 12 years of age. At the time of the preparation of the PSR, KN indicated he drank alcohol weekly at parties and also consumed MDMA while at parties.

39. KN’s level of criminogenic risk in regard to substance abuse was assessed at that time as high.

40. The PSR indicates that KN saw “no point” in undertaking drug and alcohol programs as consuming drugs and alcohol are part of who he is. He further indicated that he would be unable to comply with bail or good behaviour order conditions not to consume drugs and alcohol, to abide by a curfew, or to reside as directed. The PSR is clearly out of date in this respect. As noted above, the young person has now been on bail for nine months, and there has been “no more trouble” (T 18/6/20, 3.39-40).

Peers & Recreation

41. KN reported that he regularly associates with peers who have been involved with the youth justice system and police. He noted that the majority of his best friends use drugs and consume alcohol.

42. In interviews with KN’s family, his grandmother stated he is a “good boy” who gets involved “in the wrong crowd”. His mother expressed her concern for him continuing to associate with negative peers and “go down the wrong path”.

43. When he was younger, KN participated in organised sport but ceased playing due to having to train twice a week. KN noted that he would consider returning to organised sport in the future, and options to participate in social sport at CIT were discussed.

Experience on Remand

44. The PSR indicates that KN had a mixed experience while on remand in Bimberi. KN received 22 behaviour breaches during the period of remand, in relation to graffiti, damaging property, refusing to follow staff instructions, touching staff property, being disrespectful towards staff, and filming himself dancing during a lockdown. Nevertheless, the PSR notes that KN “has engaged well in educational, sporting and school holidays programs”.

45. The PSR states that, in custody, KN was “reported to become easily distracted and influenced by others within his unit or classroom; this can lead to a negative or a positive response from [KN]”.

Behaviour

46. The PSR indicates that KN has always engaged respectfully with CYPS Case Managers during supervision and case conferences, presenting as a polite, respectful young man.

47. KN indicated that he has been taught that using physical aggression is an appropriate way to resolve conflict. During the preparation of the report, it was noted that KN began to identify characteristics in himself and others that would lead him to further offending. Letter from OzChild ACT

48. In evidence before me is a letter dated 25 November 2019 from OzChild ACT and signed by Jade Gatto, Family Practitioner, and Darren Singh, Team Leader.

49. The letter states that the young person’s family was referred to the Functional Family Therapy – Child Welfare (FFT-CW) program in early 2019. The FFT-CW program is an evidence-based program aimed at families who face challenging situations, including risks that contribute to child abuse and neglect. The program aims to improve family dynamics, communications, and relationships, while decreasing negative and dysfunctional behaviour patterns.

50. The letter includes the following:

I am writing to inform you of the success and determination of the [young person’s] family and to support the return of [KN] to the family home. … Since their referral, the [young person’s] family have voluntarily engaged in the program, attended weekly in-home sessions and as of 7/11/2019 they have completed all phases of the program successfully. Throughout the treatment process the family worked with this therapist to assess underlying trauma and build skills which addressed mental health, substance abuse and behavioural needs of all family members. In order to support [KN’s] ongoing healing, rehabilitation, and connection to family and community, the family has arranged additional FFT-CW sessions to commence upon [KN’s] release. FFT-CW are happy to work with the family and the justice system to ensure [KN] meets his release requirements. Subsequent to FFT-CW, the family are motivated to support [KN] to meet his goals.

Letter from Gugan Gulwan Youth Aboriginal Corporation

51. In evidence before me is a letter dated 17 June 2020 from Mr Malcolm Towney, Family Support Worker at Gugan Gulwan Youth Aboriginal Corporation.

52. The letter states the following:

[KN], like a lot of our young people, has experienced the impacts of intergenerational trauma. Most of the social and health problems we see in Aboriginal and Torres Strait Islander communities today can be linked to intergenerational trauma. This includes family violence, suicide and high rates of incarceration and out-of-home child protection … Common symptoms [of intergenerational trauma] include fear and anxiety, poor relationships, substance abuse, violence and limited impulse control. [KN] has shown a range of these symptoms in his offending behaviour. If people don’t have the opportunity to heal from trauma, it’s likely that their experiences and negative behaviours will start to impact on others, particularly children who are susceptible to significant developmental damage when they experience trauma at a young age. This creates a cycle of trauma, where the impact is passed from one generation to the next, creating a snowball effect of cumulative damage. Unfortunately, [KN] has very real, lived experience of this cycle. It is our hope that the cycle can change with [KN]. Gugan Gulwan will work with [KN] to mitigate some of these impacts providing a supportive, culturally appropriate place to connect [KN], and his extended family, with healing factors. [KN] has a large extended family with strong bonds. After losing several members over the past couple of years the whole family have experienced extensive grief and loss compounding pre-existing loss over many decades. It is our belief that this sound network of family supports will aid him in his attempts to turn his life around. Gugan Gulwan is aware that change happens through parents, extended families and the community and we work alongside the family, as a whole, to achieve results.

53. In Court on 18 June 2020, counsel for the young person indicated that the young person came into contact with Gugan Gulwan when he “found a card … left outside the front of the house and it had the name Malcolm Towney and a number. He called it” (T 4.33-36). Counsel for the young person further noted that Mr Towney “has contacts” and is assisting the young person to find relevant employment (T 18/6/20, 5.1-30).

Criminal History

54. At the time of committing these offences, KN did not have a criminal history. In the time that has passed, he has been sentenced for a number of other offences.

55. In 2018, KN was dealt with by way of non-conviction order pursuant to s 17 of the Sentencing Act for an offence of unlicensed driving and possessing a knife without a reasonable excuse.

56. In September 2019, KN was sentenced in relation to a failure to appear after a bail undertaking; driving a motor vehicle without consent; unlicensed driving; attempted minor theft; and a trespass. In relation to the unlicensed drive, attempted minor theft, and trespass, the offences were proved without proceeding to conviction. For the trespass, KN was placed on a six-month good behaviour order. In relation to the failure to appear and drive motor vehicle without consent, he was sentenced to fulltime imprisonment. These sentences were overturned on appeal in KN v Frizzell [2020] ACTSC 217. In relation to the failure to appear, I found the offence proven with no further action taken, pursuant to s 17. In relation to the dishonest drive offence, I convicted the young person and sentenced him to a 12-month good behaviour order.

57. In October 2019, KN was sentenced in the Supreme Court for a further offence of driving a motor vehicle without consent. He was convicted and sentenced to a 12-month good behaviour order.

58. The prosecution accepted that KN is entitled to leniency in relation to the offences before me, as they are the first in time on his criminal record. It was submitted, however, that the later record can be used by the Court in its assessment of the weight to be given to matters such as specific deterrence.

Plea of Guilty

59. The young person indicated pleas of guilty at the criminal case conference prior to trial, and these pleas were formally entered at the callover one week prior to trial, on 20 November 2019.

60. The prosecution noted that this was in the context of a strong prosecution case that included identification of the young person by bystanders, forensic analysis of blood found in the gymnasium, and fingerprints on a bottle of alcohol located in the Deputy Principal’s office. Nevertheless, the prosecution accepted that the guilty plea is of utilitarian value and should attract a discount (Written Submissions at [20]).

61. A discount of approximately 15% for the plea of guilty is appropriate. Chronology of Events & Time in Custody

62. The timeline of events in relation to these and other offences committed by KN was not without its complexity. A chronology of relevant events was helpfully tendered by counsel for the young person.

63. KN was released on bail by Ashford AJ on 26 November 2019 and has been residing in the community since that date. Counsel for the young person submitted that there had been no further offences since the young person was released on that date; the prosecution did not cavil with this (T 18/6/20, 3.33-44). Effectively, the young person was remanded in custody for 249 days, that is, approximately 8 months, from 23 March 2019 to 26 November 2019, in relation to these offences and the offences related to the appeal.

64. As referred to in the discussion of criminal history, in KN v Frizzell [2020] ACTSC 217, I upheld an appeal against a sentence of fulltime imprisonment imposed on the young person in September 2019. He was re-sentenced to a non-conviction order in respect of one charge, and to a 12-month good behaviour order in respect of another charge. The effect of that decision for sentencing purposes is that the entirety of his period in custody, approximately eight months, can be taken into account in relation to the offences now before the Court.

65. In respect of this, counsel for the young person highlighted the decision of Hawkins v Hawkins [2009] ACTSC 148 at [82], in which Refshauge J stated: “In my view, the presentence custody which is referred to in s 63(2) does not have to be referable only or even primarily to the offence for which the sentence is imposed.” The prosecution accepted this. The prosecution further noted Wronski v Raue [2012] ACTSC 87 at [17], where Penfold J stated: s 63(2) “confers adequate scope for a sentencing court to backdate to an extent that is in all the circumstances fair, without requiring backdating that is inappropriately generous or permitting backdating that is inappropriately unfair”.

66. Therefore, under s 63(2) of the Sentencing Act, the young person’s period of custody in 2019 can be taken into account for the purpose of this sentence.

Comparable Cases

67. The prosecution provided a table of comparable sentences for young people convicted of aggravated burglary and arson offences. These cases are summarised below.

68. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:

[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

69. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54]. Cases involving the charge of aggravated burglary

70. In R v NX [2017] ACTSC 72, the offender was sentenced in relation to four counts of burglary offences, five counts of theft, two counts of driving a motor vehicle without consent, and one count of aggravated burglary. The offender was 16 years of age at the time of the offences. The offender had an extensive criminal history including similar offending. The offender was sentenced to 10 months’ imprisonment reduced from 13 months on account of the early pleas of guilty.

71. In R v TM [2014] ACTSC 394, the offender was sentenced in relation to one count of aggravated robbery, one count of theft, one count of burglary, one count of aggravated burglary, and one count of attempted aggravated burglary. He was 17 and 18 years of age at the time of the offences. The offender had an extensive criminal history for similar offending. Prior to the offending, the offender had been involved in a vehicle collision resulting in a brain injury that significantly affected his intellectual functioning. The sentences were reduced on account of the pleas of guilty. The offender was sentenced to 21 months of imprisonment, reduced to 18 months, for the aggravated burglary. He was sentenced and 14 months’ imprisonment, reduced to 12 months, for the attempted aggravated burglary.

72. In R v GD [2015] ACTSC 401, the offender was sentenced in relation to two counts of aggravated burglary, one count of theft, and three counts of driving a motor vehicle without consent. The offender was 17 years of age. The offender had a substantial criminal history, primarily made up of dishonesty offences. The offender had arrived in Australia with his parent as a refugee when he was a child. He had begun using alcohol and cannabis at the age of nine and, at the time of the offending, had been using methamphetamine. The sentences were reduced on account of the pleas of guilty. The offender was sentenced to 16 months’ imprisonment, reduced to 12 months, for the first aggravated burglary. He was sentenced to 16 months’ imprisonment, reduced to 13 months, for the second aggravated burglary. The sentences were suspended after serving 8 months of imprisonment.

73. In R v CA [2014] ACTSC 332, the offender was sentenced in relation to three counts of aggravated burglary, four counts of theft, three counts of driving a motor vehicle without consent, and three counts of burglary. The offender was 16 and 17 years of age at the time of the offending. The offender had a minor criminal history. He was serving a 12-month good behaviour order at the time of the offending in relation to a driving matter. The offender lived in a very unstable household prior to the offending and had been exposed to drugs and alcohol from a young age. The sentences were reduced on account of the pleas of guilty. The offender was sentenced to 8 months’ imprisonment, reduced to 6 months, for the first aggravated burglary, and 12 months’ imprisonment, reduced to 9 months, for the two subsequent aggravated burglaries.

74. In R v Johnstone [2017] ACTSC 304, the offender was re-sentenced in relation to one count of aggravated burglary, two counts of damage property, one count of theft, and one count of ride motor vehicle without consent. He had been sentenced by Penfold J in relation to these offences in early 2016; however, following the suspension of his term of imprisonment, he breached his good behaviour order by committing further offences and was required to be -re-sentenced. The offender was 23 years of age and had a significant criminal history. The offender had a history of drug and alcohol use from the age of 14 and a disrupted childhood relating to his parents’ alcohol abuse and other medical problems. The offender pleaded guilty to the offences and was re-sentenced to 24 months’ imprisonment for the aggravated burglary offence.

75. In R v McDonald [2017] ACTSC 59, the offender was sentenced in relation to one count of aggravated burglary, two counts of theft, one count of obtaining property by deception, one count of damaging property, and one count of escaping lawful custody. The offender was 21 years of age. The offender had a lengthy criminal history, mostly involving traffic offences, minor dishonesty offences, and two offences of common assault. The offender had previously been placed on good behaviour orders, some of which had resulted in breaches, and others which had resulted in satisfactory compliance. The offender had a positive upbringing and good family relationships, but left school during Year 8. He offender reported having learning difficulties and receiving a disability support pension. The offender commenced daily cannabis use at the age of 14. In relation to the aggravated burglary, the offender was sentenced to 24 months’ imprisonment, reduced to 21 months on account of his plea of guilty.

Cases involving the charge of arson

76. The prosecution noted that there have been no arson convictions in the ACT for person aged under 18 years. Nevertheless, I note in this respect the case of R v NF [2018] ACTSC 165, which involved an arson conviction for an offender who was 18 at the time of the offence. This case is summarised below, along with cases involving the charge of damage property.

77. In R v NI [2016] ACTSC 361, the offender was sentenced in relation to one count of arson and one count of committing an act endangering life. The offender was 21 years of age and had an extensive criminal history. He was an Aboriginal man, raised in circumstances of violence and homeless for 12 months prior to being remanded in custody. The offender began consuming alcohol and cannabis at 10 years of age. He began consuming methylamphetamine at the age of 13 and reported being diagnosed with schizophrenia shortly afterwards. The arson offence involved the offender using a jerry can of petrol to destroy a motor vehicle. In relation to this offence, the offender was sentenced to three years of imprisonment reduced to two years and six months on account of his plea of guilty.

78. In R v Arcus [2016] ACTSC 318, the offender was charged with five counts of arson. All of the offences occurred in a brief course of conduct, when the offender set fire to five vehicles. He was 20 years of age. The offender was a heavy user of methylamphetamine; he set fire to the vehicles out of frustration, having been unable to find a bicycle or other item to steal in order to obtain money to purchase the drug. The offender had a very difficult childhood, growing up in circumstances of drug abuse, domestic violence, neglect, and extreme and inappropriate discipline. For the first four arson offences, he was sentenced to nine months’ imprisonment, reduced to five months on account of the plea of guilty and Ellis factors: R v Ellis (1986) 6 NSWLR 603. For the fifth arson offence, where the value of the loss was significantly lower, he was sentenced to three months’ imprisonment. The sentences were suspended after serving 7 months and 12 days of imprisonment.

79. In R v Bowler [2015] ACTSC 298, the offender was charged with 27 offences, including among them four counts of burglary, two counts of aggravated burglary, five counts of damaging property, five counts of joint commission property damage, and one count of arson. The offender was 18 years of age at the time of the offences. He had commenced consuming alcohol at the age of 14 and methylamphetamine at the age of 16. He had a diagnosed history of ADHD and anxiety as a result of secondary exposure to domestic violence. The arson offence involved setting fire to a stolen vehicle following the commission of the other offences. For the arson offence, the offender received a sentence of 12 months’ imprisonment. after a reduction of 20% on account of his plea of guilty.

80. In R v Ridley [2016] ACTSC 97, the offender was charged with one count of arson. The offender was 18 years of age at the time of the offence. The offender had no previous convictions. The arson offence involved a vehicle being set afire by a co-offender in the course of a common purpose by placing a number of lit sparklers into the cabin of the vehicle. The value of the vehicle was assessed at approximately $2,500 and the offence was found to be at the lower end of seriousness for arson offences. The offender spent one day in custody in relation to the offence. She was sentenced to 12 months’ imprisonment, reduced to 9 months on account of her plea of guilty. The sentence was fully suspended upon entering into a two-year good behaviour order.

81. In R v Jackson [2018] ACTSC 40, the offender was charged with two counts of arson. The offender was 19 years of age. The offender’s criminal history contained one previous drug driving conviction. A plea of guilty was entered in the Supreme Court at the directions stage. The arson offence involved the offender setting fire to and destroying a vehicle which belonged to a former girlfriend, and significantly damaging another nearby vehicle. The value of the vehicle was assessed at $1,500, however, the loss of the car had a significant impact upon the victim. The offender displayed early childhood traits of autism spectrum disorder, Asperger’s, bipolar disorder, anxiety and depression, and had a previously reported diagnosis of borderline personality disorder. The offender spent 123 days in custody prior to sentence solely attributable to the offence. He was sentenced to imprisonment for a period of four months.

82. In R v Matthew [2017] ACTSC 413, the offender was charged with two counts of arson. The offender was 22 years of age and had no prior convictions. The offences involved causing damage to a vehicle, a garage, and the main residence of a home, after the offender gained entry to the garage and placed an accelerant on the vehicle before lighting it. The sentencing judge found that there were a number of aggravating factors, including that the offence was premeditated; it involved an intention to damage property; it was committed at night; it involved the use of an accelerant; and it was committed for the purpose of revenge. The offender had a history of alcohol and methylamphetamine abuse and had been diagnosed with borderline personality disorder and post-traumatic stress disorder. The offender spent 57 days in custody prior to sentencing, 12 days of which were related to other charges. For each offence, the offender received a sentence of 15 months’ imprisonment. This was reduced to 14 months on account of the plea of guilty. The sentences were suspended after serving three months’ imprisonment.

83. In R v Parlov [2017] ACTSC 205, the offender was charged with, and found guilty of, a single count of arson. The offender was 20 years of age at the time of the offence. The offender and a co-offender forced entry into a building containing a small business. Using petrol as an accelerant, they intentionally set fire to the building, causing extensive damage. The offender was paid for his role in the offence. The incoming owners of the business had not finalised insurance arrangements and incurred significant legal, capital, and trading losses. They also suffered significant psychological consequences. The offender had a significant criminal history and was on conditional liberty at the time of the offences. The offender was raised in a supportive family. In his late teens he became a heavy drinker, and prior to the offences used cannabis and methylamphetamine. The offender was sentenced to 3 years’ imprisonment, with a non-parole period of 30 months.

Cases involving the charge of damage property

84. HA v Vince [2014] ACTSC 106 was an appeal against a sentence imposed in the Childrens Court for an offence of damage property. The damage property offence consisted of extensive damage to the offender’s family home. A rear glass door and windows had been smashed; black spray paint had been used on floors, walls, ceiling, and other items in the house; holes had been knocked in walls; and other appliances and fixtures had been damaged. The cost of the repairs required were estimated to be $10,000. The offender was 17 years of age at the time of the offending and had grown up in an intact and loving family. The offender’s mental health had deteriorated from the age of 15, after a serious sporting injury and his introduction to alcohol and illicit drugs. The offender had been diagnosed with significant depression and suicidal thoughts. The sentence imposed by the Magistrate was imprisonment for three months, fully suspended upon entering an 18-month good behaviour order. The appeal was upheld, and the offender was re-sentenced. In coming to the conclusion that the offender should be re-sentenced, Penfold J had regard to the offender’s progress in rehabilitating himself, and the origins of his offending behaviour (including his mental health diagnoses). Upon re-sentence, the offender received a non-conviction order and a good behaviour order.

85. In R v NF (No 1) [2016] ACTSC 216, the offender pleaded guilty to 17 offences committed against Territory and Commonwealth laws, the most serious of which was aiding and abetting the unlawful importation of a marketable quantity of a border-controlled drug. The offender was 16 years of age at the time of the offending. The offences included four counts of intentionally causing damage to property in company, namely various motor vehicles and a bus shelter. The offences were committed in company and involved the offender kicking the mirrors from three vehicles and smashing the rear glass panels of a bus shelter. The offender did not report any issues relating to disadvantage, medical or psychiatric history, or substance use; he was assessed as having strong prospects for rehabilitation. For each damage property offence, the offender was sentenced to six months’ imprisonment, reduced to four months on account of his plea of guilty. Three of the sentences were served concurrently, with one count including a month of cumulation on the overall sentence.

86. In R v NN [2018] ACTSC 43, the offender pleaded guilty to two groups of offences, which occurred in 2009 and in 2017. The offences in the latter group included one count of damaging property. The offender was 24 years of age at the time of the damage property offence. The damage was caused to the automatic door of a convenience store in the course of an aggravated robbery and was assessed by the sentencing judge as being in the low to mid-range of objective seriousness. The offender was on conditional liberty at the time of the offence. The offender reported a dysfunctional upbringing and psychiatric diagnoses of borderline personality disorder, depression, anxiety, and bipolar disorder, which were unable to be confirmed for the purposes of sentencing. He had begun using cannabis from the age of 13, intravenous methamphetamine from the age of 16, and heroin from the age of 22. The offender had a significant criminal history. In relation to the damage property offence, the offender was sentenced to nine months’ imprisonment, reduced to seven months due to his plea of guilty. The overall sentence included two months solely referrable to the damage property offence.

87. In R v NF [2018] ACTSC 165, the offender pleaded guilty to a number of charges, including one count of arson and two counts of property damage. The offender was 18 years of age at the time of the arson and damage property offences. The offender had a significant criminal history and was on conditional liberty at the time of the offences. The arson offence involved a number of participants using two “sparkler bombs” inside a vacant aged care facility. The resulting fire rendered the building structurally unsafe and resulted in directly attributable costs of $187,195.50. The damage property offence involved the offender taking an unattended bobcat and using it to cause substantial damage to nearby playing fields and the canteen of a sporting club. The bobcat was then driven into a pond. The cost of replacing the bobcat was estimated to be about $60,000. The offender did not report any childhood disadvantage or major issues relating to illicit substance use. A psychologist gave evidence that the offender exhibited traits and behaviours consistent with a personality disorder diagnosis. The offender was sentenced to three years’ imprisonment for the arson offence, reduced to two years and three months on account of his plea of guilty. The offender was sentenced to 2 years’ imprisonment for each of the damage property offences, reduced to 18 months on account of his plea of guilty; these sentences were served concurrently.

88. It is trite to observe in this context that every case turns on its own facts and no case outlined above is directly comparable.

Youth & Rehabilitation

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

90. Relevant sections of the 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. (Emphasis added).

91. Section 94 of the Children & 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. (Emphasis added).

92. 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. (Emphasis added).

93. 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]). (Emphasis added).

94. The prosecution noted that, 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].

95. It was submitted by counsel for the young person that KN’s subjective circumstances reduce his moral culpability and require a sentence focusing on rehabilitation: s 33(1)(m) Sentencing Act and Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44] (Bugmy); IS v R [2017] NSWCCA 116 at [65].

96. It was accepted by both parties that rehabilitation was a crucial consideration in KN’s case, and that some form of supervision is required to facilitate this rehabilitation. Application of Bugmy Principles

97. 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 an offender whose formative years have not been marred in that way: at [40]. 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 1 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.

98. 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];

(b) 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

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

99. The prosecution submitted that KN has experienced childhood deprivation, noting in particular his history of engagement with child protection services, early exposure to drugs, and hearing loss. It was submitted that this deprivation was relevant to the assessment of moral culpability, citing Bugmy (Written Submissions at [16]).

100. Counsel for the young person submitted that, at the time of the offending, KN “was a vulnerable 14 year old boy. He was being bullied at school for wearing hearing aids. He was not safe at home … Since being given bail he has stayed out of trouble. He has done enough gaol. He needs supervision to help stay off drugs, get hearing aids and a job.”

101. 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.

Other Relevant Considerations

102. In sentencing the young person, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.

1 See Judicial Commission of NSW, Sentencing Bench Book, at [10-475].

103. Further matters are relevant in relation to sentencing young persons. In this respect, the prosecution referred to the comments of Mossop J in R v NQ [2019] ACTSC 51 at [38], which summarise the statutory principles relevant to sentencing young persons:

The court is therefore obliged to consider the purpose of promoting [ ] rehabilitation and may give more weight to that purpose than it gives to any of the other sentencing purposes in s 7(1) of the Crimes (Sentencing) Act (s 133C(1) Crimes (Sentencing) Act). It must have particular regard to the common law principle of individualised justice: see s 133C(2). The court is obliged to consider the young person’s culpability having regard to [ ] maturity, [ ] state of development and [ ] past and present family circumstances: see s 133D. Any sentence of imprisonment must be a last resort and for the shortest appropriate term: see s 133G. The court must consider making a sentence that combines a sentence of imprisonment and a good behaviour order with a supervision condition: see s 133G(3). There is no capacity to set a non-parole period for a sentence of imprisonment imposed on a young person: see s 64(2).

104. I have referred in detail to these principles at [90]-[94].

105. 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.

106. Counsel for the young person submitted that the circumstances of the individual offences are interrelated, and there is a need for some concurrency. The prosecution accepted that matters of concurrency and totality are relevant given the offences occurred in “one global event”, citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27] and O’Brien v The Queen [2015] ACTCA 47 at [26].

107. 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 The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59, R v Meyboom [2012] ACTCA 48 at [66] and Zdravkovic at [71].

108. I take these principles into account on sentence.

109. Counsel for the young person submitted that an appropriate sentence would be imprisonment backdated, with any remaining time suspended on conditions.

110. The prosecution submitted that a term of imprisonment would be appropriate for this offending and noted the prosecution would not submit against any further term of imprisonment being suspended, taking into account the fact that the young person had spent 249 days in custody already and rehabilitation is particularly important for a young person (T 18/6/20, 8.3-10).

111. The PSR noted that, if the young person was placed on supervision, CYPS will engage with and support the young person in relation to:

(d) education or employment;

(e) drug and alcohol use;

(f) re-engaging with pro-social leisure activities; and

(g) addressing poor peer relations and pro-criminal attitudes. Sentence

112. The appropriate sentence for the aggravated burglary offence is 7 months’ imprisonment, reduced to 6 months on account of the plea of guilty.

113. The appropriate sentence for the arson offence is 7 months’ imprisonment, reduced to 6 months on account of the plea of guilty.

114. The appropriate sentence for the damage property offence is 21 months’ imprisonment, reduced to 18 months on account of the plea of guilty.

115. Overall, there will be a sentence of 24 months. The sentence is to be backdated to 11 December 2019 and suspended after 8 months, that is, suspended from today, 10 August 2020. The effect of these orders is that the young person will remain in the community and be subject to supervision from today.

Orders

116. I make the following orders:

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

(b) In respect of the offence of damage property (CH 1046/2018), the young person is sentenced to a term of 18 months of imprisonment, commencing on 11 December 2019 and concluding on 10 June 2021.

(c) In respect of the offence of aggravated burglary (CH 1012/2018), the young person is sentenced to a term of 6 months of imprisonment, commencing on 11 March 2021 and concluding on 10 September 2021.

(d) In respect of the offence of arson (CH 1013/2018), the young person is sentenced to a term of 6 months of imprisonment, commencing on 11 June 2021 and concluding on 10 December 2021.

(e) Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentence is to be suspended from today, 10 August 2020. The young person will enter into a Good Behaviour Order for a period of 18 months and comply with the core good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT). The young person is to comply with the following additional condition:

(i) Accept supervision of Child & Youth Protection Services and abide by any directions of officers of that service.

I certify that the preceding [116] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.

Associate:

Date: