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District Court 26 October 2012

Colbalt v R

[2012] NSWDC 305

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCES PARTICULAR OFFENCES NO PRIOR CRIMINALITY DIAGNOSED MENTAL DISORDERS FAVOURABLE JUVENILE JUSTICE REPORT

Citation: Colbalt v R [2012] NSWDC 305
Court: District Court of New South Wales
Date: 26 October 2012
Judge: Cogswell SC DCJ

Background

The appellant was a teenager with diagnosed attention deficit disorder and oppositional defiance disorder. Over approximately ten days in February 2012, she engaged in a serious pattern of criminal behaviour involving assaults at school, theft from a video store, and threatening and abusive conduct directed at police officers while in custody.

The offending arose from a conflict with another student, against whom an apprehended personal violence order had been made. The behaviour escalated to physical altercations involving the other student, school staff, and police, and included graphic threats made against a police officer's child.

The Children's Court sentenced the appellant in July 2012. The magistrate imposed a combination of good behaviour bonds, probation orders, a fine of $150 for larceny, and a 16-month control order (equivalent to a custodial order for a young person) for assaulting police, with that control order suspended. The appellant appealed to the District Court against the severity of the sentences.

  • Whether the suspended control order imposed for assaulting police was appropriate given the appellant's personal circumstances, mental health diagnoses, and subsequent compliance with supervision
  • Whether the $150 fine imposed for larceny was appropriate in the circumstances
  • Whether fresh evidence from the Juvenile Justice officer should be received before the appeal was finally determined

Decision

At the hearing, the appellant's counsel confirmed that the appeals against the probation orders and the good behaviour bond would not be pressed. Leave to withdraw those appeals was granted without opposition from the Director of Public Prosecutions. The two remaining appeals concerned the suspended control order and the fine.

The court noted the tension between the severity of the appellant's conduct and the encouraging picture presented in the Juvenile Justice report dated 10 July 2012. The report recorded that the appellant had complied with all directions from Juvenile Justice since supervision commenced in February 2012, was participating in counselling, had completed an anger management course, and was approximately six weeks ahead of schedule in her distance education program. The Juvenile Justice officer recommended a good behaviour bond and probation, acknowledging that a suspended control order represented a harsher available alternative.

The court determined that, given the gravity of the earlier behaviour alongside the promising developments recorded in the Juvenile Justice report, it was not appropriate to dispose of the appeal without hearing oral evidence from the Juvenile Justice officer in person. The matter was adjourned to allow that evidence to be given and for the appellant to be present at the conclusion of the hearing.

Orders Made

  • Leave granted to withdraw appeals against the probation orders and the good behaviour bond
  • Proceedings adjourned to 29 October 2012 for mention, to fix a date for the conclusion of the hearing with oral evidence from the Juvenile Justice officer and in the presence of the appellant

Note: The judgment reproduced here reflects only the first hearing date. The final orders on the suspended control order and fine are referenced in the catchwords (appeals allowed, suspended control order substituted with a probation order, fine set aside) but the full reasoning on those final orders does not appear in the text provided.

Key Takeaways

  • The District Court declined to finalise a sentencing appeal without receiving fresh oral evidence from the supervising Juvenile Justice officer, treating that evidence as necessary to properly assess a young offender's progress since the original sentence was imposed.
  • A Juvenile Justice report recommending probation rather than a control order is a material consideration in a severity appeal, even where the underlying conduct was serious.
  • Where a young offender has no prior criminal history, carries diagnosed mental health conditions, and has demonstrated genuine compliance with supervision conditions, those factors can weigh significantly against the imposition or maintenance of a control order.
  • Under the Children (Criminal Proceedings) Act 1987 (NSW), the sentencing options available in the Children's Court include good behaviour bonds (s 33(1)(b)), probation orders (s 33(1)(e)), and control orders, which may be suspended (s 33(1B)).
  • The catchwords confirm that the appeals were ultimately allowed, with the suspended control order replaced by a probation order and the fine set aside, though the detailed reasoning from the final hearing is not contained in this published judgment.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 20, 67(1)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 33(1)(b), 33(1)(e), 33(1B)

Cases cited: None stated in the judgment.