Children and Young People Act 2008 (ACT)

Crimes Act 1900 (ACT), ss 26, 60(1), 61(2)

Crimes (Sentence Administration) Act 2005 (ACT), s 108

Crimes (Sentencing) Act 2005 (ACT), ss 20, 35A, 133H, Chapter 8A

Criminal Code 2002 (ACT), ss 308, 311, 312, 318, 321, 403

Magistrates Court Act 1930 (ACT), s 90B

Road Transport (Driver Licensing) Act 1999 (ACT), s 31(2)

Supreme Court Act 1933 (ACT), s 68D

Legal Aid ACT (Offender)

SCC 246 of 2014; SCC 247 of 2014; SCC 248 of 2014; SCC 221 of 2015; SCC 240 of 2015; SCC 241 of 2015

1. TI is to be dealt with today for 31 offences. He has pleaded guilty to 26 offences, and has been found guilty by a jury of another four offences. There is also a scheduled offence to be taken into account.

2. TI has pleaded guilty to the following offences:

(a) eight burglaries and one attempted burglary arising under s 311 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 14 years imprisonment;

(b) three thefts under s 308 of the Criminal Code, carrying a maximum penalty including 10 years imprisonment;

(c) one aggravated burglary under s 312 of the Criminal Code, carrying a maximum penalty including 20 years imprisonment;

(d) five offences of taking, riding in or driving a motor vehicle dishonestly and without consent under s 318 of the Criminal Code, carrying a maximum penalty including five years imprisonment;

(e) four offences of damaging property under s 403 of the Criminal Code, with a maximum penalty including 10 years imprisonment;

(f) two minor thefts under s 321 of the Criminal Code, carrying a maximum penalty including six months imprisonment;

(g) one offence of being an unlicensed driver, never having held a licence and as a first offender, under s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT), carrying a maximum penalty including a fine of $2,200; and

(h) one common assault under s 26 of the Crimes Act 1900 (ACT), carrying a maximum penalty including two years imprisonment.

3. The minor thefts, unlicensed driving and common assault are summary charges which have been transferred from the Magistrates Court as related offences under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT).

4. In sentencing TI for one of the offences involving driving a motor vehicle dishonestly and without consent, I am also asked to take into account an offence of unlicensed driving as a repeat offender. That offence arises under s 31(2) of the Road Transport (Driver Licensing) Act and carries a maximum penalty including six months imprisonment.

(a) three acts of indecency without consent contrary to s 60(1) of the Crimes Act, carrying a maximum penalty including seven years imprisonment; and

(b) one act of indecency in the presence of a person aged under 16 contrary to s 61(2) of the Crimes Act, with a maximum penalty including 10 years imprisonment.

6. The offences from which these charges arose were committed in the course of more than a dozen different incidents in a period starting in September 2012 and ending only eight weeks ago on 13 October 2015. TI turned 18 only shortly before the most recent set of offences, and so committed most of these offences as a juvenile.

7. Most of the offences are described in two agreed Statements of Facts.

8. The first Statement of Facts records 12 incidents dating back to 2012.

9. Incident 1 involved a burglary and a theft committed during the day on 26 September 2012. TI entered a house in Latham (CH2014/640), and then stole two scooters, and approximately $5, to a total value of $263 (CH2014/641).

10. Incident 2 involved a burglary and theft and the taking of a motor vehicle. The burglary took place in the early hours of the morning of 14 October 2012, and involved a house in McKellar (CH2014/642). From that house, TI stole house keys, vehicle keys for a Toyota Camry, and a wallet, valued at $100 (CH2014/643). He then took the Toyota Camry itself from the premises (CH2014/644). The car was later involved in a police chase, although the Statement of Facts does not specify that TI was in the car at that time.

11. Incident 3 occurred between 24 January and 28 January 2013, when TI rode in a silver BMW without the consent of the owner (CH2014/645). When police saw the stolen BMW being driven on Gungahlin Drive, they tried to stop it, but it drove away at speed. The Statement of Facts suggests that there was a brief pursuit that was terminated before TI and his co-offender, identified by TI as GD, stopped and abandoned the car.

12. Incident 4 was another burglary, this time of a house in Higgins on 6 February 2013 (CH2014/647). Items were disturbed but apparently no property was taken.

13. Incident 5 occurred around 4.45 am on a day in early February 2013. TI dishonestly and without consent rode in a Ford Fairmont motor vehicle belonging to another person (CH2014/646). The car was driven in a dangerous manner and crashed, rolling on to its side, before police arrived. Although the Statement of Facts does not say that TI had been the driver, TI told the Youth Justice pre-sentence report author about how he had driven the car until he crashed it.

14. Incident 6 occurred on 10 February 2013. TI took a motor vehicle, a Ford Fiesta, belonging to one Courtney Peet (CH2014/649). He and his co-offender GD then used the Ford Fiesta for three days before police stopped them as they parked the car in an underground car park.

15. Incident 7 began at about 4.30 am on 19 February 2013, when TI burgled a house in Higgins with intent to commit theft (CH2014/650). Three people were at home at the time, and TI went into a bedroom where a sleeping occupant had already been woken by his noise. After TI left the building through the window of that bedroom, he made loud and aggressive comments from outside the house.

16. Incidents 8 and 9 involved two burglaries, a theft and a damage property offence. Between 18 December and 21 December 2013, TI entered a house in Higgins (CH2014/651). He had initially tried to enter the house in the evening of 18 December and left after he had disturbed the occupant. She then spent the next night at a friend's house, and returned to her house the following day to find that her house had been ransacked and various items of property including perfume, jewellery and a mobile phone containing photos of sentimental value had been stolen. The occupant of the house then went overseas for about two weeks. When she returned, she found that her front door was open and a black kitchen knife had been embedded in her mattress, which she interpreted as a threat. DNA evidence linked TI to the burglary and theft (CH2014/652; CH2014/653). TI told the pre-sentence report author that he had picked up the knife inside the house when he thought there was someone else there, and had abandoned it later when he was no longer worried, saying, "I just stuck it in the bed to get rid of it"; he agreed that the occupant could have been very scared when she found the knife in her bed.

17. Incident 10, which gave rise to one charge of aggravated burglary, two of damage property, and two of minor theft, deserves to be described in more detail then I have done for the previous incidents.

18. Cynthia Wang lived in a two-bedroom, two-storey townhouse in Lyneham, with bedrooms and bathrooms on the upper level. On 4 April 2014 her friend, Anita Dragovic, stayed in the spare bedroom. At about 1.00 am, Ms Dragovic was awakened by a noise outside her bedroom window. She looked out the window and saw a male, now known to have been TI, walking back and forth between the townhouse and the complex's pool. Ms Dragovic woke Ms Wang up and they watched TI from a bedroom window.

19. Eventually, Ms Dragovic told TI to "Fuck off" as she believed that he was looking for somewhere to break in. TI approached the front door of the townhouse and started throwing stones at the bedroom window. Ms Dragovic went to call police. While she was calling police, Ms Wang said to TI, "Piss off or I'm calling the cops". He shouted, "Are you a girl?" and "I just want to fuck you". TI approached the front door and pressed the door bell several times. He then tried to scale the walls of the townhouse and, failing to do this, he continued to throw objects at the house. Fearing that TI might actually get into the house, Ms Wang armed herself with a knife, while Ms Dragovic called the police.

20. While downstairs calling police, Ms Dragovic saw the downstairs light turn on and heard keys jingling. She called out in distress, "He's in the house".

21. The two women ran to the bathroom and barricaded themselves in with furniture. Seconds later, TI began shoving and banging on the bathroom door while the two women leaned against it on the other side. This banging and shoving caused a hole in the door. During the struggle to keep the door shut, TI managed to open it about 10 centimetres. While trying to get the bathroom door open, he said in an aggressive tone, "I just want to fuck you". In an effort to scare TI away, Ms Dragovic yelled that the police had arrived; TI stopped trying to get into the bathroom and everything went quiet. Ms Dragovic called the police again and remained in the bathroom until police did arrive. Police searched the townhouse and surrounds, but did not locate anyone.

22. Ms Dragovic's handbag, make-up bag, iPad and $100-150 in cash, and Ms Wang's DFAT identity pass, had been taken from the townhouse.

23. Police searched the surrounding area and found the bags and iPad, but not the DFAT identity pass or the cash. The iPad had been damaged and would no longer work.

24. TI's entry into the unit was the aggravated burglary; although not mentioned in the Statement of Facts, it seems that the statutory aggravating feature of this burglary was that TI was armed with a frying pan which he used in his attempt to get into the bathroom despite the resistance of the two women (CH2014/664).

25. Incident 11 involved attempted burglary and damaging property committed on 26 April 2014. TI tried over a period of about 35 minutes to enter a house in McKellar intending to commit theft (CH2014/381). The occupant of the house was at home, and heard him bash hard at the front door, rattle the back door, and bash on the side window. She was very frightened. In the morning she discovered that all of her flyscreens had been ripped out of their frames, and that holes had been torn in two security screen doors (CH2014/380).

26. Incident 12 involved a burglary of a house around the same time and in the same street as Incident 11, and an assault. Late one evening between 24 April and 28 April 2014, TI broke into the house and assaulted the female occupier when he disturbed her in the laundry (CH2014/422; CH15/752).

27. There is also a transferred charge of driving unlicensed, never having been licensed and as a first offender, in contravention of s 31(2) of the Road Transport (Driver Licensing) Act. This offence was committed on 12 February 2013 and involved TI driving the car taken in Incident 6.

28. The second Statement of Facts records that around 3.30 am on 13 October 2015, police noticed a car being driven without lights in Scullin. They stopped the car, and two people got out and ran. Police caught the passenger, but TI, who had been driving, escaped. Later that morning, TI broke into a house in Scullin where the female occupant had been asleep, and stole items to a total value of just over $1,000, including a laptop which was later found not far from the house but under a running tap.

29. This incident gave rise to charges of driving a motor vehicle dishonestly and without consent, burglary, and minor theft (transferred from the Magistrates Court), and to the scheduled offence of driving unlicensed as a repeat offender (CC2015/10066).

30. A reparation order has been sought on the basis that the laptop was valued at "approximately $900", the telephone handset that was stolen was worth $50, and $65 in cash was taken from the complainant's wallet.

31. Finally, I note that, although TI was not charged in relation to this aspect of the incident, if indeed any charge would have been available, the undisputed Statement of Facts records that TI had during the incident called through the bedroom window, "My name is Jason Day and I want to lick your pussy".

32. The charges that went to trial involved three incidents in which TI approached a young woman, or in one case a 13-year-old girl, in public areas in Belconnen (in two cases while riding his bicycle). (CH2014/450; CH2014/451; CH2014/452; CH2014/375). In three of the offences, TI exposed his genitals and asked the victims to engage with him in a sexual way. One of the offences involved TI grabbing a victim's buttocks as he rode past her on his bicycle immediately before he committed one of the exposure offences.

33. The material before me suggests that TI initially came to police attention after offences committed during Incident 10, but fingerprint analysis was not completed before police spoke to him after the last of the indecency offences, TI, having been identified by a former schoolmate as having been in the area of that offence at the relevant time. TI was also linked to several other incidents by DNA evidence or fingerprint evidence.

34. On 29 April 2014, TI was arrested and charged with several indecency offences, not all of which went to trial. Except as already mentioned in relation to several of the earlier incidents, the process by which TI was also identified as a suspect in various other offences is not before me.

35. Apart from the four charges that went to trial, TI pleaded guilty relatively early to almost all of the other 27 current charges.

36. On 22 September 2014 he pleaded guilty to 21 of the current charges:

(a) TI had initially pleaded not guilty to one of them when he was first charged in mid May;

(b) two of the others had been laid nearly five months before the pleas of guilty were made;

(c) 15 of them had been laid two months before the pleas of guilty, in July 2014; and

(d) three had been laid only three weeks before the pleas of guilty.

37. Another charge laid in July 2014 was not pleaded to until TI was committed to the Supreme Court, but in the absence of advice to the contrary I assume that this reflected an administrative oversight, since he had pleaded guilty in the Magistrates Court to the more serious charge arising out of the same incident (Incident 10).

38. Another charge arising out of Incident 10 was laid in August but not pleaded to until October 2014.

39. One charge, the common assault, was laid after TI's trial in substitution for an earlier charge to which he had previously pleaded guilty; this was done as a result of evidence given at the trial, and the plea to the new charge came quickly.

40. Three offences were committed very recently, after TI had turned 18 and after a period of nearly 16 months during which he had been on bail without any further offending. Those pleas of guilty were entered at the earliest opportunity.

41. Before me, counsel indicated that TI adhered to his pleas of guilty to all the current charges.

42. Although some of the pleas of guilty came more quickly than others, none of them seems to have been unduly delayed and I shall, where relevant, provide plea of guilty discounts appropriate for early pleas of guilty.

43. TI, having been arrested on 29 April 2014, was released on bail on 18 June 2014 on conditions requiring close supervision by his family. He was again arrested on 21 October 2015 after the most recent offences, and has been in custody ever since.

44. TI initially spent 50 days in custody in respect of the juvenile offences, and has now been in custody since 21 October this year. This gives a backdating date of 1 September 2015.

45. As well as the two Statements of Facts, and the evidence in TI's trial on the act of indecency matters, the following material is in evidence before me:

(a) six victim impact statements, to which I shall refer later;

(b) TI's criminal history; and

(c) a pre-sentence report dated 20 October 2015 (prepared by Darren Gledhill and attaching a psychological assessment prepared by Gerard Webster & Associates) and an email clarifying one aspect of the psychological assessment.

46. All of that material was tendered by the prosecution.

47. The prosecutor also provided some sentencing statistics extracted from the ACT Sentencing Database relating to all the offences except those that would normally be dealt with in the Magistrates Court, as well as for the common assault charge. The statistics were provided for offenders under 18 and, where those statistics involved so few cases as to be meaningless, also for all offenders. I have had regard to that material.

(a) a psychological report dated 1 October 2015 from Thomas Sutton; and

(b) the Manual for the Juvenile Sex Offender Assessment Protocol - II (that document was received on the basis that I would not rely on it without first raising the matter with both counsel, and in the event that has not been necessary).

(a) Darren Gledhill, TI's Youth Justice bail supervisor (since 18 June 2014);

(b) Joel Moffatt, the co-author of Dr Webster's psychological assessment of TI;

(c) Thomas Sutton;

(d) TI; and

(e) TI's adoptive mother, DI.

50. In considering the objective seriousness of the various offences, I have had regard to the following matters.

51. First, I note that the offences range in seriousness from an aggravated burglary carrying a maximum penalty of 20 years imprisonment to offences of taking or driving in motor vehicles without consent, carrying penalties of five years imprisonment, as well as offences not normally dealt with in the Supreme Court that carry penalties of up to six months imprisonment or, in one case, only a fine.

52. As to the act of indecency offences, I note that all the victims were alone and in that respect vulnerable at the time of the offences, the 13-year-old victim being even more vulnerable than the others. All of them described their fear at the time of the offences. As well, one of the victims had a heart condition possibly adversely affected by increased heart rate (and therefore at risk of an adverse affect from fear).

53. All the indecency offences were in one sense opportunistic, but I accept the prosecutor's submission that, having come upon his victims, TI followed them, albeit not for long in most cases, or returned to them after riding past before committing the offences.

54. The prosecutor identified various features of the indecency offences as relevant to sentencing. I accept in most cases their relevance, but do not see that any of them is an aggravating feature of the offences.

55. First, there is the fact that the victims of the indecency offences had to give evidence at a trial. At least in respect of ACT offences, not requiring a victim to give evidence may be one of the justifications for a plea of guilty discount. Choosing to go to trial (with its necessary consequence for witnesses) does not aggravate an offence.

56. Nor can I see that an act of indecency committed by a stranger, another feature identified by the prosecutor, is worse than one committed by an offender known to the victim - indeed a victim may find it easier to report such an occurrence involving a stranger than when it involves a family member, friend or person in authority.

57. Furthermore, while an act of indecency might be aggravated by being committed otherwise than for personal gratification (perhaps to shame or insult the victim), personal gratification, noted by the prosecutor as the apparent motive for the indecency offences, seems to me to fall squarely within the basic act of indecency offence rather than aggravating it.

58. Nor do I accept that TI's continuing denial of the offences, also noted by the prosecutor as relevant in assessing the offences, is an aggravating feature - as with requiring victims to give evidence, it is the absence of denial, and a willingness to take responsibility for offences, that justifies a plea of guilty discount.

59. I accept that the first indecency offence was committed in premises that were in one sense part of the victim's home (that is, a communal laundry in the student residence complex where the victim lived), but I note that this place was apparently open to many such residents, and to that extent is more like a public area than a part of someone's home.

60. TI has not sought a sentencing discount for assisting in the administration of justice under s 35A of the Crimes (Sentencing) Act 2005 (ACT) in respect of the trial matters. Accordingly, I cannot see that the extended cross-examination of the victim of Counts 3 and 4, which was mentioned by the prosecutor but is hardly inappropriate for an offender who denies his guilt, is even relevant in determining the sentence; certainly it is not relevant in determining the seriousness of the offence.

61. I agree with counsel's assessment of the indecency offences as generally of low to mid-range seriousness.

62. Many of the dishonesty offences, in which I include also the damage property offences for these purposes, seem to have been opportunistic in the sense that no particular premises were targeted, but TI has admitted to the pre-sentence report author that on most of the relevant occasions he had gone out intending to commit burglaries for financial gain. It is notable that in some of the incidents, TI seems to have been, if anything, encouraged by the presence of occupants in the houses he was trying to break into, and certainly not inhibited in making his presence known.

63. The burglary in Incident 2 was aggravated by having been committed at a time when people were likely to be, and were in fact, at home.

64. The take motor vehicle offences in Incidents 2 and 3 were aggravated by the involvement of the cars in police pursuits (although I note that it is not clear that TI was in the car taken in Incident 2 at the time of the pursuit).

65. Incident 5, another motor vehicle offence, was aggravated by the erratic driving of the motor vehicle, the danger thereby posed to members of the public, and the fact that the vehicle was eventually involved in an accident in which it rolled onto its side.

66. Incident 6 was aggravated by TI having taken the car, then keeping possession of it, and using it for three days.

67. Incident 7 involved a burglary committed at a time when people would usually be at home; in this case people were at home and indeed one of them was sleeping in a room entered by TI. The making of loud and aggressive comments from outside the house would have been frightening to the occupants.

68. Incidents 8 and 9 involved two charges relating to burglaries at the same house, apparently several days apart. The relevant offences are somewhat aggravated by TI's action in leaving a knife in the mattress on the complainant's bed, an objectively disturbing act and one which did in fact disturb the complainant.

69. Incident 10 was aggravated by the threats of sexual violence, and by the use of physical violence in trying to confront the complainants rather than leaving when it became apparent that the townhouse was occupied.

70. The attempted burglary in Incident 11 took place while occupants would have been likely to be home, and one person was in fact home and alone. The repeated attempts to get into the house, and TI's apparent lack of concern about drawing his actions to attention, are also notable.

71. Incident 12 related to the burglary in the course of which the female householder was assaulted. Burglaries in homes are generally accepted as more serious than burglaries in commercial premises, and no doubt the victim's experience in being confronted and then assaulted by TI would have been frightening. On the other hand, there is no evidence before me that the victim in that case is properly described as "elderly", as put by the prosecutor.

72. The most recent burglary was also committed at a time when occupants of the house were likely to be home, and a person was in fact at home. She was subjected to a shouted comment that could have been seen as a threat of sexual assault.

73. The motor vehicle offence committed on the same occasion came to the attention of police because the car was being driven at night without lights on, and there was a brief although relatively sedate police pursuit (apparently being conducted at about 60 kph).

74. Several of the burglaries took place close to TI's home or his girlfriend's home. TI has conceded that he knew some of the people whose homes he was burgling.

75. The pre-sentence report prepared in relation to all TI's juvenile dishonesty offences records expressions of remorse, regret and embarrassment about those offences, especially those committed against neighbours who were known to TI. That remorse, regret and embarrassment are the subject of comment in one of the psychological reports that will be discussed shortly. In his oral evidence, TI expressed regret that he had committed the most recent offences because he had "screwed up" after doing so well for so long, and said that he was embarrassed for himself and his family.

76. As mentioned, six victim impact statements were provided.

77. Lalantha Liyange's house was burgled and then his car was taken, using keys taken from the house (Incident 2). Mr Liyange and his family had migrated to Australia only three years previously, and were already suffering financial hardship before they lost their car. They spent money repairing a replacement car lent to them by a friend, and also had to change the locks on their house because there was a house key with the car keys that had been taken. Their children became nervous about the prospect of thieves coming into the house at night.

78. Courtney Peet, whose car was taken (Incident 6) reported that she had saved up to buy her car, her first big purchase, and struggled with continuing to pay for it in the seven weeks that she was without it. As well, she reported the burden placed on family and friends by her reliance on them for transport, including to and from work. Ms Peet estimated that the cost to her of being without the car and of getting it back was about $1,500.

79. Ying Xia, whose house was burgled twice (Incidents 8 and 9) and who also suffered property damage and minor theft in the incident, described her fear as she waited for police to arrive while TI was banging on the laundry door. She does not sleep well, especially after the second incident in which a knife was stuck into her mattress. Although the items stolen from her home were not of great monetary value, she said that both the gifts from friends and the family photographs on her phone were of great sentimental value.

80. Cynthia Wang, one of the victims of Incident 10, described the fear and anger she experienced when TI broke into her house, shouting sexual threats and finally almost breaking into the bathroom where she had her friend had barricaded themselves. She was distressed by the lack of support she received from neighbours in her complex, by what she saw as the late arrival of the police, and by unsympathetic treatment by the complex's body corporate after the event. She has suffered severe emotional and financial strain as a result of the incident and has felt obliged to leave Canberra. Her distress has affected her personal relationships in various ways, and she has lost trust in the legal system.

81. Anita Dragovic, Ms Wang's friend and the other victim of Incident 10, said she had never been as scared as she was that night, and described becoming jumpy and suspicious and suffering high stress, broken sleep and hellish nightmares.

82. Saovarose Lai, the victim of Incident 12, said that she now lives with fear and anxiety in her own home, especially when alone, and does not like to walk into dark rooms there. In particular, she still feels uncomfortable in the laundry, where she confronted TI and was assaulted by him. She had her husband have increased security round their house, including by cutting down a large tree and rose bush that they believe allowed TI access to their backyard.

83. Most of the non-sexual offences (those I have just been discussing), are in my view also of low to mid-range seriousness.

84. I have also had regard in the sentencing to TI's subjective circumstances.

86. His criminal history before the offending I am dealing with was almost non-existent, consisting of one offence or riding or driving in a motor vehicle dishonestly and without consent, and one giving a false name and address. Those offences were committed when TI was 15 years old; no convictions were recorded, but good behaviour orders for 15 months were made. A number of the current offences were committed in breach of those good behaviour orders.

87. TI had a difficult start in life, being born to a 14-year-old girl who had abused alcohol, heroin and amphetamines during her pregnancy. While still very young (the evidence before me puts his age variously at six weeks and 12 months), TI was adopted by a relative, who has cared for him as part of her family ever since. She had provided a loving home in which TI has formed close bonds with his adoptive mother's partner and her other children, most of whom are older than TI. However, TI's discovery, when he was aged 12, of his adoption seems to have been very distressing, and after that his behaviour deteriorated at home and school. At 15 he began offending. Apparently around the same time, TI left home and dropped out of school. He spent the next eight months living with various friends, including the family of his then girlfriend, with whom TI now has two children. The relationship has ended, but TI sees the two children regularly.

88. During his nearly 16 months on bail, TI worked in a coffee shop, then in a bakery with his brother-in-law, and then in a work placement intended to lead to an apprenticeship in bricklaying. This has been interrupted by his remand in custody after the recent adult offending.

89. TI has no physical health problems, but was diagnosed with ADHD and briefly medicated for it while at primary school.

90. TI claimed in evidence before me that before his 18th birthday he wasn't "a drinker of alcohol", but the pre-sentence report records TI's claims that a number of the earlier offences were committed under the influence of alcohol. In oral evidence, TI attributed the October offending to intoxication. It seems in fact that this occasion, when TI was taken out drinking as part of celebrating his birthday, gave him an opportunity to escape the very close supervision under which his family had kept him since his previous release on bail.

91. TI has also experimented with most illicit drugs, and for some time was using cannabis in large quantities and apparently on a daily and almost constant basis.

92. TI has engaged with what the pre-sentence report author described as "drug intervention", and has apparently reduced or possibly given up cannabis use. The pre-sentence report notes that his alcohol use will be addressed "through ongoing interventions".

93. TI maintains his innocence of the indecency offences and so has offered no explanation for them.

94. The pre-sentence report author, in a report which appears to have been prepared before the new offences were committed in October this year, assessed TI's "level of service" needs, and concluded that he had no areas of high or moderate need, and that in respect of all relevant areas (notably, matters such as family circumstances and parenting, educational background, peer associations, personality and behaviour, and substance abuse) his needs were low. It is unsurprising that such an assessment was made after TI's successful more than 15 months on bail, and very disappointing that the recent offences have called those assessments into question.

95. After TI was found guilty of the four acts of indecency offences, I ordered a pre-sentence report that dealt with those offences. Apparently, in accordance with their usual practice where sexual offences are involved, Youth Justice commissioned a report from the psychologists Gerard Webster & Associates (which I shall refer to as the Webster Report). The defence then obtained a separate psychological report from Mr Tom Sutton (the Sutton Report), and a considerable part of this sentencing hearing was devoted to cross-examination of the two psychologists, and arguments about the significance of their reports.

96. Among other things, considerable court time was expended after it emerged that an amended version of the Webster Report had been provided very late in the sentencing process without any indication to the ultimate recipients that several significant passages in the by then 28-page report had been revised. Those revisions involved small but potentially significant changes, for instance, the report indicated that TI's recidivism risk in relation to sexual offending was higher than had previously been indicated. Although, as I understand it, the revised version had been provided to TI's representatives, the difference came to light only when the prosecutor (apparently unaware that defence counsel had not seen the material she was reading in its current form) read an extract from the amended report in court, taking counsel for TI quite by surprise.

97. It is not clear where the fault lay in this development. However, the original document ran to 27 pages before revision, single spaced and in quite a small font. I cannot see that it is acceptable to provide a revised version of such a long and dense document (especially one that carries the same date and signature as the original version) to anyone without identifying, first, that the document has been revised and, secondly, the details of the revision.

98. The Webster Report focussed on TI's sexual offences. However, it provided a general diagnosis of Conduct Disorder, and reported that TI had a lack of empathy with his victims, and with his own family member in respect of the strains his behaviour put on them, and a lack of insight into the seriousness of his current position. The report suggested that TI's expression of empathy and remorse (albeit not made at all in respect of the sexual offences) appeared to the authors as possibly rehearsed and as responding to expectations rather than as reflecting genuine emotions.

99. The report identified several risk factors said to be highly significant in relation to TI's sexual offending, being:

(a) the number of different victims;

(b) what was described as "non-sexual delinquent behaviour";

(c) early offending, although not necessarily sexual (TI has 11 charges relating to offences before he turned 16);

(d) a failure to take responsibility for his offending;

(e) a lack of insight into the need for change, and into his various risk factors; and

(f) a tendency to rely on cognitive distortions such as minimising or denying offending.

100. The Webster Report assessed TI's risk of recidivism in relation to both sexual offending and other kinds of offending as high. It recommended participation in anger management and "other relevant programs" as well as a sex-offender specific program, and what is described as "Forensic Psychotherapy so treatment can also address the underlying issues that have led to this psychological state that are yet to be identified".

101. The report also recommended psychoeducation for the family unit, particularly TI's adoptive parents, so that they understand "the severity and complexity of his circumstances" and can support him in a more informed way.

102. The Webster Report concluded with a comment to the effect that TI's long period without further offending could indicate some level of maturity. As already noted, the factual foundation for such optimism appears to have now disappeared.

(a) that TI has "compromised inhibitory mental shifting and judgment (of risk) capacities consistent with delayed or damaged frontal systems of the brain";

(b) that in the average person, frontal systems may be still developing until the late twenties; and

(c) that the necessary neurological maturation in TI might be helped by "social and environmental structure, containment and learning of delays to gratification" (counsel for TI pointed out that this seemed to be describing what had been provided by TI's family in the 15 or 16 month bail period).

104. Mr Sutton diagnosed TI with an Anti-social Personality Disorder.

105. One of the authors of the Webster Report, Joel Moffatt, said in oral evidence that Conduct Disorder and Anti-social Personality Disorder are on a spectrum and closely related, but that Anti-social Personality Disorder is only appropriate as an adult diagnosis, the criteria for which include (although not apparently as a necessary condition) a juvenile diagnosis of Conduct Disorder. Mr Moffatt noted that people with Anti-social Personality Disorder are often not amenable to treatment, but that given TI's age he should at least be offered some form of intervention.

106. Defence counsel conceded that some kind of sex offenders program might be useful, while noting that TI's frontal lobe damage, referred to by Mr Sutton, might limit the value of such a program.

107. I note also that TI continues to deny both the sexual offences and, in conversation with the Youth Justice pre-sentence report author, the sexual comments made during Incident 10. Due to time constraints, no pre-sentence report was obtained for the October 2015 offences, so I have no information about TI's attitude to the sexual component of that incident.

108. In general, however, I understand that a sex offenders program may also have little value if TI maintains his denials.

egocentric, satisfies his own impulses, may take advantage of others and has little sense of loyalty, even to those who are close to him. Although he reports feelings of guilt over past transgressions, I am unsure from these results if the remorse is of any lasting nature. He can be expected to place little importance on his social role [and] responsibilities. His behaviour can be reckless and risky.

110. More controversially, Mr Sutton opined that although TI is at risk for some form of non-sexual re-offending, he is not at risk for any further sexual offending. This conclusion seems to have been based on statistical research on sexual re-offending by juvenile sex offenders, which indicates that "the rate of sexual re-offending for juveniles is low", rather than on any specific assessment of TI. It is clear that there are difficulties in the statistical prediction of sexual re-offending by juvenile offenders, for reasons set out in material quoted by Mr Sutton; among the problems identified is "relatively low base rates of sexual recidivism".

111. Both psychologists' reports were prepared before TI committed the October 2015 offences, and although TI was not charged with any sexual offences arising out of that incident (and indeed I do not suggest that any sexual offences were committed), his statement to the female victim of the October 2015 burglary that I have already quoted cannot be ignored in this context, given its consistency with some of the elements of the sexual offending that is the subject of jury verdicts and with things apparently said by TI during Incident 10 (although denied by him in his discussions with the pre-sentence report author).

112. Given the different approaches taken to the assessment of TI's risk of sexual re-offending, I do not see any prospect of reconciling the two opinions as to the risk of sexual recidivism, but nor do I see any particular need to do so, as I shall explain in due course.

113. All of these offences call for general deterrence, and it is sadly clear that TI, despite managing not to offend for more than 15 months while on bail, is still very much in need of personal deterrence.

Plea of guilty/assistance to law enforcement authorities

114. As already mentioned, TI has pleaded guilty to most of these offences, and appropriate plea of guilty discounts will be given, recognising both the considerable utilitarian value of the pleas of guilty, and also some willingness to take responsibility for his actions.

115. Although TI has now turned 18, most of the offences for which I am sentencing him were committed before that, some when he was quite a lot younger. Accordingly, I must sentence him as a young offender for those offences committed as a young offender, and must have regard to the principles for sentencing young offenders found in Chapter 8A of the Crimes (Sentencing) Act. Those principles can be relevantly summarised as follows:

(a) I must consider the sentencing purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than to any other sentencing purpose.

(b) I must have particular regard to the common law principle of individualised justice and, in addition to the matters generally applicable in sentencing:

• (i) to the young offender's culpability for the offences having regard to his maturity;
• (ii) to his state of development; and
• (iii) to his past and present family circumstances.

(c) I may sentence a young offender to a prison term but, as for other offenders, only if I am satisfied that no other penalty is appropriate. Any such sentence of imprisonment must be a last resort and for the shortest appropriate term.

(d) If a prison sentence is imposed, I must not set a non-parole period, but must consider making a good behaviour order with a supervision condition in addition to the prison sentence. I may alternatively suspend some of the prison sentence and make a good behaviour order for at least as long as the suspended part of the prison sentence.

116. The operation of those provisions is to some extent complicated by the need to sentence TI for one series of offences committed as an adult. There is no particular complication in structuring the sentences, but determining those sentences has been complicated by considerations of where TI is likely to serve any prison sentence and the impact of that on the many factors relevant in sentencing him.

117. Section 133H of the Crimes (Sentencing) Act provides that a person who, before turning 21, is sentenced to imprisonment for offences committed under the age of 18 would serve any custodial part of that sentence in a "detention place" unless he or she is transferred to a "correctional centre" (which seems to be required after the offender turns 21).

118. "Correctional centre" does not seem to be defined in the Children and Young People Act 2008 (ACT), but I infer that it refers to an adult prison; "detention centre" is defined, but only as a place declared to be a detention centre.

119. The operation of those provisions in conjunction with the sentences that I impose in relation to the adult offences is obscure, but I have acted on the basis that while I have no power to determine where any custodial part of TI's sentences would be served, I am not precluded from expressing a view about that matter.

120. The offences for which I am sentencing TI were in several cases committed with co-offenders. Incidents 3 and 6 were apparently committed with GD, who is nearly a year younger than TI but who had, at least at the time of Incident 6, a more significant criminal history in that he had started offending at a younger age and had been involved in serious aggravated robbery when only 13. For an offence arising out of Incident 6, GD was sentenced to seven months imprisonment, suspended after he had served two months.

121. I understand that TI's co-offenders in Incident 2 and the October 2015 motor vehicle offence both admitted their guilt to police but were not charged.

122. Defence counsel submitted that TI's time in custody, especially adult custody. should be minimised as far as it could be consistently with the requirements of proper sentencing. I agree with the general proposition put on behalf of TI, that his rehabilitation ought to be a, if not the, major factor in his sentencing, noting the accepted view that the rehabilitation of a young offender is as important and valuable to the community as it is to the offender personally. However, I have not been persuaded that custodial time can end immediately.

123. I have already noted the disagreement between the two psychologists about TI's risk of sexual re-offending. The disagreement in my view has at least as much to say about the different approaches adopted by the two psychologists as it does about the actual risk; that is, the Webster Report tries to assess TI's risk whereas the Sutton Report focuses on the statistical risk for people in a category that includes TI. I do not propose to adopt the conclusions of either psychologist in relation to that question, but I will say that I am concerned about TI's continuing denial not only of the sexual offending subject to the jury verdicts but also of other behaviour with unusual sexual overtones, being his conduct during Incident 10 and the October 2015 burglary.

124. I also note that TI's unusual sexual behaviour appears to have begun in April 2014 (when both Incident 10 and the several acts of indecency occurred) and to have resumed as soon as TI re-offended shortly after he turned 18. It is not clear whether this is coincidental, or whether it reflects the emergence and escalation of a tendency to odd sexual behaviour. Nor does there seem to be any real basis for assessing, at this stage, whether this behaviour will stop, continue or escalate.

125. However, I would strongly recommend that the relevant authorities take all possible steps to ensure that TI is offered some kind of sex offenders program, whether in custody or in the community, as a matter of urgency, and that any such program takes account of the useful information provided by both the psychologists' reports prepared for this sentencing.

126. I also recommend that TI's family receives the help recommended by the Webster Report to enable them to better support TI in the future.

127. As to the currently undetermined risk that TI might re-offend in a sexual way, I do not consider that at this stage it provides any basis for extending what would otherwise be an appropriate sentence for the offences I am dealing with. Given the uncertainties about TI's prognosis, and the legislative focus on his rehabilitation, I consider there is nothing to be gained at this stage from trying to resolve the psychologists' dispute.

128. TI, please stand. I record convictions on the following charges:

(a) eight counts of burglary;

(b) three counts of theft;

(c) one count of aggravated burglary;

(d) one count of attempted burglary;

(e) two counts of taking a motor vehicle dishonestly and without consent;

(f) three counts of riding or driving in a motor vehicle dishonestly and without consent;

(g) four counts of damaging property;

(h) three counts of act of indecency without consent;

(i) one offence of an act of indecency in the presence of a person aged under 16;

(j) two offences of minor theft;

(k) one offence of being an unlicensed driver never having held a licence and as a first offender; and

(l) one offence of assault.

129. I also note the scheduled offence of driving unlicensed as a repeat offender (CC15/10066), and I have taken it into account in sentencing for the 2015 motor vehicle offence (CC15/10065).

130. TI, the convictions arising out of Incidents 8, 9, 10, 11 and 12 and the indecency offences put you in breach of the 15-month good behaviour orders made in the Magistrates Court in June 2013. Under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), I take no further action on those breaches.

131. As mentioned earlier, the victim of the last burglary and associated minor theft has sought a reparation order in the amount of $1,015. Accordingly, under s 20 of the Sentencing Act, I order that you pay $1,015 to the complainant, Erica Rushton, by five monthly instalments of $203 each, the first to be paid on 1 August 2016. Mr Livingston will explain to you that those payments are to be made into court, not directly to the complainant.

133. For all the offences committed on or before February 2013, which are the offences arising out of Incidents 1 - 7, and for the two minor theft offences arising out of Incident 10, having recorded convictions on those offences, I now order that you sign undertakings to comply with your good behaviour obligations for a period of 12 months from now, subject only to the core conditions.

134. Next, before I impose prison sentences for most of the remaining offences, I mention that I am imposing these sentences as a last resort, given the various aspects of the evidence before me that suggest that you have not yet begun to take your offending sufficiently seriously. I sentence you:

(a) for the burglary and theft committed in Incident 8 - to 6 months imprisonment and 3 months imprisonment respectively, reduced from 8 months and 4 months for your pleas of guilty;

(b) for the burglary and damage property offences committed in Incident 9 - to 9 months imprisonment and 2 months imprisonment, reduced from 12 months and 3 months for the pleas of guilty;

(c) for the aggravated burglary and the two damage property offences committed in Incident 10 - to 15 months, 4 months and 3 months imprisonment respectively, reduced from 20 months, 5 months and 4 months for the pleas of guilty.

135. Those seven sentences that I've just mentioned are all to run from 1 September 2015, to take account of pre-sentence custody, giving a total period of imprisonment for those offences of 15 months running from 1 September this year.

(a) for the attempted burglary and damage property offences committed in Incident 11 - to 9 months and 4 months imprisonment, reduced from 12 months and 5 months, to be served concurrently with each other and so that the 9-month sentence adds 2 months to the total sentence;

(b) for the burglary and assault committed in Incident 12 - to 9 months and 3 months imprisonment, reduced from 12 months and 4 months, to be served concurrently with each other, and so that the 9-month sentence adds another 2 months to the total sentence.

(a) for Count 1, the act of indecency - you are sentenced to 8 months imprisonment to be accumulated on the burglary sentence for Incident 12 so as to add 6 months to the total sentence;

(b) for Counts 3 and 4, two further acts of indecency - to 4 months and 6 months imprisonment to be served concurrently with each other but so as to add 4 months to the total sentence;

(c) for Count 5, the act of indecency in the presence of a person under 16 years - to 9 months imprisonment, accumulated so as to add 4 months to the total sentence.

138. That gives a total sentence so far of 33 months imprisonment.

139. Finally, for the October 2015 offences, I sentence you:

(a) for the motor vehicle offence - to 6 months imprisonment, reduced from 8 months for your pleas of guilty; and

(b) for the burglary and minor theft - to 15 months and 3 months imprisonment, reduced from 20 months and 4 months.

140. Those three October 2015 sentences are to be served concurrently with each other and so as to add another 8 months to the total sentence, giving a total sentence of 41 months or 3 years and 5 months imprisonment.

141. As already mentioned, the sentence will be backdated to 1 September this year to take account of pre-sentence custody and so it will run until 31 January 2019.

142. The sentence will be suspended with effect from 31 May next year, by which time you will have served all but one of the first seven sentences.

143. I now order that when you are released, before you are released, you sign undertakings to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act for a period of three years from when you are released, and I note that the good behaviour orders will only apply to the 12 sentences of imprisonment that will not have been fully served by the time you are released.

144. It may be that at least two good behaviour undertakings will be required, one relating to the juvenile offences and one to the adult offences but, if so, they are both to run for the same period and to be subject to the same general conditions, although possibly involving two different supervising services.

145. The conditions of the good behaviour order are:

(a) that for such period not exceeding three years from the date when you are released as your supervising service (whether that's Corrections or Youth Justice) considers necessary, you accept the supervision of that supervising service and obey all reasonable directions of the relevant Director-General or delegate;

(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer; and

(c) that you be assessed and, if found suitable, you undertake an appropriate program or other treatments relating to sexual offending.

146. You will be given a written copy of the good behaviour order, or orders, and it will be read to you by officials when you sign it. In short, TI, it means that for three years after you are released, you need to keep out of trouble, keep in close contact with your supervising service, whether that's Youth Justice or Corrective Services, and do as you're told by your supervisor. If you commit another offence during that three years, or if you otherwise breach your good behaviour undertakings, you may find yourself back before this court to be re-sentenced for all your outstanding offences. Depending on exactly how you've breached your undertaking, you could well find yourself serving another part of this sentence in full-time custody, and I remind you that will have served [nine] months of a sentence of three years and five months, so there'll still be two years and [eight] months left that you could spend in custody.

147. I note, for the attention of the Corrections authorities, that the period of custody that TI is to serve before his first release date will relate entirely to offences committed before he turns 18, and that I can see no benefit, but plenty of disadvantage, in him remaining in an adult prison for the next few months.

148. If you have any questions about this order, TI, I suggest you ask Mr Livingston; he'll be able to explain it to you again in detail.

I certify that the preceding one hundred and forty-nine [149] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.