Michael Owen was born in October 2001. On 8 October 2019 he participated actively in the detaining of his victim, a young man, at a residence in Lake Illawarra. He was arrested on 11 November 2019 and has been in custody in juvenile detention since that date. He was charged with an offence of aggravated detain with intent to obtain an advantage, s 86(3) Crimes Act 1900. That offence carries a maximum penalty of 25 years imprisonment. That maximum is one of many guides to the exercise of my sentencing discretion.
Others were also arrested and charged and are before the Courts so that their liability and culpability can be determined.
[2]
Facts for Sentence
There are agreed facts before the Court; this is a brief summary. The female occupant of the residence in Lake Illawarra had allowed the victim to stay in her spare room. The situation at the home was apparently dire. Food was running low for all the occupants. The victim told them that he would pay some rent as soon as he could. He said he would do this by 8 October 2019 at the latest. He did go to the bank to get some money but as it was a public holiday he could not get it out. He did not have ATM access.
When he returned to the home he promised again to assist with rent and food and said that he would go to the bank first thing in the morning.
R v Owen [2020] NSWDC 791 | Case summary | Zoe
At about 12.30am on 8 October 2019 there was a knock at the door and another young person came in. The victim knew that young person. This young person appeared "edgy". The victim became apprehensive that something was about to occur. Soon after a motorcycle pulled up and the young person left but soon returned to the premises followed by Michael Owen, the offender. The offender locked the door behind them.
The victim had known both the young person and the offender for a short period of time. Another male, an adult, then entered the room through a rear door. He locked that door. At this time the female occupant was in her bedroom.
There were now three people in the locked room with the victim. The offender said, "Now I got him. Let's do it." He and the adult began to assault the victim. The offender threw many punches and kicks at his victim. As the victim attempted to cover himself he was repeatedly struck on the head. The adult also kneed the victim to the left side of his head.
The offender video recorded some of this assault on his mobile phone. I have seen that footage. It shows the ferocity of the violence inflicted, predominantly to the head of the victim. The adult threatened the victim. He was told that he could not leave until he gave the female occupant $150 and the rest of his pay to those in the room. The victim knew he was being detained. He formed a plan to go to the bank in the morning and alert security.
Another person then came to the front of the premises. The three people in the room went out leaving the victim inside. When they returned the young person was carrying a knife, which he had taken from the victim's bag. The young person then jabbed the knife toward the victim, put the knife against his cheek and cut it. That cut required suturing and has left a noticeable scar.
Although the present offender did not wield the knife, the knife was used during the assault and the detention which was still continuing. He accepts through his counsel, Ms Jowett, that while his moral culpability for the use of the knife is less than that of the young person he still bears responsibility for all the harm that was inflicted upon his victim during the period of the detention.
Over the next few hours the victim was subject to verbal abuse from the offender, the young person and the adult. He was made to get on all fours and call himself a dog. The threats continued. He was told numerous times during the morning that he could not leave.
The offender left the room and had a shower. He did not return until around 9:00am. He then had a cigarette and said to the victim, "How are you feeling? We all good now? Now we can move past it." He then left the premises. The victim's detention and attempts to obtain funds from him continued. It was not until 3.30pm that he was able to leave and seek assistance. He was driven to Shellharbour Hospital where he received treatment. The police attended the Hospital soon after.
Numerous attempts were made to locate this offender. Eventually he was arrested on 11 November 2019.
[3]
Victim impact
In his Victim Impact Statement, which he read to the Court, the victim spoke of his injuries and importantly of his continuing fear and loss of trust. His facial scarring has had and will have a continued impact on him.
The Court acknowledged that impact. As Ms Kerr, solicitor, who appears for the Director of Public Prosecution said in her submission both the physical and psychological scars of this incident will be with him for some time. When a matter is concluded the victims of such crimes can attempt to get on with their lives and move forward. By his early plea of guilty the offender has at least facilitated that process. But it is notorious that the physical and psychological scars of such crimes can remain.
The victim was subject to a terrifying incident which took place over a number of hours. He was detained in his temporary home. His freedom to live there peaceably without fear was taken away from him. He was not free to leave. He was continually assaulted. He was injured and during his ordeal he was not to know what his fate was to be. The assault was recorded and he was not to know where that recording would end up.
The purpose of the detention and the assaults appeared to be to get him to hand over money to pay a debt which he had acknowledged and that he had already agreed to pay that day. His assailants failed to appreciate the simple fact that he was not in a position to get the money because the bank had been closed.
There is a vigilante aspect to this offence. The offenders sought to take the law into their own hands to enforce a small debt. Courts must do what they can to signal that such actions - attempts to obtain repayment of a debt, attempts to coerce others, the use of violence against a person in their own home and to detain them for those purposes - must all be condemned.
The offender took an active role in both the detention and the assault. It is correctly noted by the defence that so serious was this offence and so important the offender's role that despite his youth, immaturity and background, only a custodial sentence could meet the purposes of sentencing and only a substantial custodial sentence at that.
[4]
The offender's background
The offender's background and youth allows for some moderation of the sentence both in length and in structure. And, I will turn now to that material.
I am assisted, as always, by a comprehensive report prepared by Ms Van De Velde, a forensic and clinical psychologist. Ms Van De Velde, while she sets out the offender's version, is astute and expert enough not to simply parrot that version but to subject it to appropriate professional testing. Her opinions seem soundly based.
The subjective history upon which she bases much of her opinion is uncontroversial. She acknowledges that there is a lack of empathy on behalf of the offender and treats with appropriate scepticism his expressions to her of regret, shame and remorse.
He told her, "I'm not that kind of person." Well, with respect, although still very young, he is that kind of person. And that is a simple fact he has to confront and deal with. He has to make some important decisions about whether during his time in custody he can change from the person he was to the person he wants to be.
Owen is Aboriginal Australian. He was 17, about to turn 18 at the time he committed this offence. His father, also an Aboriginal Australian, died in custody in 2017; a matter that has had a significant and continuing impact upon him. He was raised by his grandmother and her partner, until he passed away. He has also spent some time with his father and stepmother and lived between Wollongong and Queensland.
As a child it appears he went "off the rails". There is a history of deprivation in the family. She described a history of trauma, anxiety, depression systems and substance use to cope with them. He appears to have been a well behaved young child but peer pressure to use and abuse of illicit drugs has marred his young life. It appears he was diagnosed with depression and anxiety when only 14.
Ms Van De Velde's testing indicates that he was not engaging in any deception or impression management of her. She concluded that testing showed he had experienced symptoms consistent with an anxiety disorder. She formulates that history, at paragraph 37, as being one of disrupted attachment with loss of parental figures and caregivers and adverse child experiences, including physical and verbal abuse.
She notes research which indicates that such a background, particularly separation from important caregivers, can as here lead to a host of maladaptive, cognitive, emotional, physical and social outcomes. It is not unusual to find in such circumstances an association with antisocial peers, clearly an element in this offence.
While Ms Van de Velde finds it difficult to provide a retrospective explanation for what contributed to the offending it appears that this offender from his record (although in the Children's Court and not involving convictions) has fallen into a pattern of antisocial and violent attitudes.
She diagnoses him as having a stimulant use disorder, a sedative hypnotic and anxiolytic use disorder, generalised anxiety disorder, persistent depressive disorder and unspecified trauma and stress related disorders.
In her opinion Owen poses a low to moderate risk of reoffending but there is a risk of engaging in violence unless he can deal with and get help dealing with his personality traits, which appear to be reasonable well entrenched.
She puts forward an incarceration treatment plan that requires dealing with his substance use, mental health and engaging with those who can help him adapt to preventing further offending behaviour. She notes that given the present pandemic and the restrictions of services available at adult corrective services that it could be best managed where he, is in juvenile detention. This finding is supported by the Juvenile Justice Report before me which sets out a similar history, background and prognosis.
It also appears that, given his background, he has made a very positive response to his time in detention. There are no discipline matters, and he has engaged in programs. The Juvenile Justice report notes,
"[Michael's] time spent in custody has assisted him to re-evaluate his life in positive ways such as education pathways to assist with employment opportunities and counselling which has assisted with life's stresses and achieved transformation in regarding to his attitude towards drug use ."
While he must be sentenced at law it is clear to me that all the material establishes not just a finding of special circumstances in relation to the structure of the sentence but also special circumstances pursuant to s 19 Children (Criminal Proceedings) Act 1987. I will direct that he serve his sentence, at least until the age of 21, in juvenile detention.
[5]
Submissions
I am indebted to both counsel for their oral and written submissions. I trust that this judgment does justice to them. The Crown accept that rehabilitation still has a role to play however it is submitted that this offence was so serious an offence that general deterrence must continue to play a part in the sentencing exercise
[6]
Sentencing Young Offenders
I am sentencing Michael as an adult but the law recognises that sentencing young offenders, particularly those who have a background that has significantly compromised their capacity to feel empathy for themselves, let alone others, reduces their moral culpability: Bugmy v The Queen (2013) 249 CLR 571.
Sentencing those who are still young and immature requires a nuanced and sympathetic approach; an approach which shows institutional respect for the problems faced by youth an approach that he did not show at the time for his victim. The principles governing the sentencing of children are well recognised. Some are set out in s 6 of the Children (Criminal Proceedings) Act. Others from the decisions of the Court of Criminal Appeal recognise and emphasise the potential for the cognitive, emotional and-or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during childhood: KT v R (2008) 182 A Crim R 571 at [22]; JM v R [2012] NSWCCA 83; R v GDP (1991) 53 A Crim R 112; Clarke-Jeffries v R [2019] NSWCCA 56.
[7]
Synthesis
Without in any way minimising the objective seriousness or what the offender di to his victim these crimes were committed by an immature young man, still technically a child. His behaviour was therefore not as morally reprehensible as an offence committed by an adult. His criminal and moral failings should not be equated with those of an adult. That said, he well knew the wrongness of his act and his actions.
His youth did impact on his offending and does play a role in diminishing his criminality, although as is submitted to me by the Crown, general deterrence still remains a significant factor.
The community has to understand, as I am sure they do, that such offending cannot and will not be tolerated. This, however, is not a matter that calls for a significantly retributive sentence because of Owen's background, because of his youth, because of his the early cooperation with the course of justice. At the same time the offender has to understand his behaviour was not in any way acceptable and that his attitude to life, offending and to his victim was deplorable.
He is, I believe, showing some insight now but he clearly showed none at the time. He will have to spend a period in custody and for one so young a lengthy period in custody. A paradox is caused by this custodial term as the longer he spends in custody the more likely he is to associate with people who have similar attitudes to the commission of crimes to that which he displayed towards his victim.
Studies, particularly those collated by the Victorian Sentencing Advisory Council, April 2011 "Does Imprisonment Deter? A Review of the Evidence" concluded that, particularly for young offenders imprisonment does not have a deterrent effect. If incarcerated young people are placed with others who have antisocial attitudes after their release they are likely to associate with those they met in custody. Being in custody appears to have a negative effect on the young person's long-term capacity to hold jobs, maintain job stability and can in itself contribute to reoffending.
Sentencing is a synthesis of competing features. I have to attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment, here expressed in time. I do not average out those considerations. How then to balance all of those factors? Mitigating factors can go only so far. I have to recognise them but also recognise the need for a sentence which contributes to the protection of the community by the rehabilitation of the offender. I also have to recognise and by the severity of the sentence acknowledge and vindicate the dignity of this victim of violence.
[8]
Orders
There will be a conviction.
Had it not been for your plea of guilty a sentence of five years would have been imposed. You are entitled to a reduction in the otherwise appropriate sentence of 25% to reflect the utilitarian value of your plea of guilty.
There will be a sentence of three years and nine months. There will be a non-parole period in this matter of two years which will date from 22 October 2019, expire on 22 October 2021. There will be a parole period of one year and nine months from that date.
I make a s 19 Children (Criminal Proceedings) Act finding of special circumstances. I direct pursuant to s 19 of the Children (Criminal Proceedings) Act that, the sentence be served in juvenile detention up until the offender turns 21 on 23 October 2022.
[9]
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Decision last updated: 22 December 2020