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District Court 26 November 2015

Jacob PLUM v R (No 1)

[2015] NSWDC 405

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEALS AGAINST SENTENCE JUVENILE OFFENDER CONTROL ORDER PARTICULAR OFFENCES AGGRAVATED BREAK AND ENTER

Citation: Jacob PLUM v R (No 1) [2015] NSWDC 405
Court: District Court of New South Wales
Date: 26 November 2015
Judge: Cogswell SC DCJ

Background

The appellant, a fifteen-year-old juvenile offender identified by the pseudonym Jacob Plum, appealed against the sentence imposed by a Children's Court magistrate in Orange. The magistrate had sentenced him to a twelve-month control order (the juvenile equivalent of a custodial sentence) with a six-month non-parole period, commencing 31 October 2015. The sentence consolidated eight separate charges arising from a pattern of offending between January 2014 and March 2015.

The offences included aggravated break and enter into a vacant Department of Housing property, repeated incidents of reckless and intentional damage to property, intimidating a member of school staff, and knowingly contravening an apprehended personal violence order held by his mother. The magistrate had previously attempted good behaviour bonds and a suspended control order, both of which the appellant had breached.

Through his solicitor, the appellant did not challenge the twelve-month control order itself. The appeal was directed solely at whether the six-month non-parole period should be reduced to allow earlier release, given his age, diagnosed behavioural disorders, and apparent remorse.

  • Whether the non-parole period of six months, fixed by the Children's Court, was excessive having regard to the appellant's age, personal circumstances, and rehabilitative prospects.
  • Whether a juvenile offender with diagnosed attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder, who had recently commenced medication, had demonstrated sufficient progress to warrant early release.
  • Whether the balance between community protection, the seriousness and number of offences, and the appellant's rehabilitation supported a reduction in the non-parole period at this stage.

Decision

Cogswell SC DCJ concluded that immediate release was not appropriate. Although the judge was impressed by the appellant's demeanour in evidence and accepted that he was genuinely remorseful, the pattern of persistent non-compliance with court orders and the serious nature of the eight offences weighed against early release. The judge noted that the magistrate had in fact been lenient by consolidating all eight offences into a single sentence rather than imposing multiple consecutive or concurrent terms.

The judge also identified a practical concern about timing. The appellant had only recently commenced medication for ADHD and oppositional defiant disorder, and there had been insufficient time to assess its effect. Release by Christmas was considered too early for that assessment to be meaningful, or for confidence in the appellant's likely compliance to be established.

The court took into account supporting evidence from a paediatric specialist, a Juvenile Justice officer, the appellant's mother, and the appellant himself. The judge noted the appellant's stated desire to continue his education and to be near his grandmother in Walgett. These factors were not dismissed, but were weighed against the need for further time in custody given the number and seriousness of the offences.

Rather than determining the appeal immediately, the judge adjourned it to 22 January 2016. At that point, an up-to-date Juvenile Justice report would be available covering the appellant's behaviour and medication progress in custody. The judge indicated that, if the report was favourable, a reduction in the non-parole period to allow release in February 2016 (ahead of the new school term) would be seriously considered.

Orders Made

  • Appeal adjourned to 22 January 2016.
  • Bail not applied for and refused.
  • Up-to-date Juvenile Justice report directed to be prepared and provided to the court on or before 20 January 2016.

Key Takeaways

  • The District Court confirmed that an appeal against sentence by a juvenile offender can be directed solely at the non-parole period, without challenging the head sentence itself.
  • Where a juvenile has only recently commenced medical treatment for a diagnosed behavioural disorder, a court may find it premature to reduce a non-parole period before the treatment's effects can be assessed.
  • A sentencing court's decision to consolidate multiple offences against different victims into a single control order may be viewed on appeal as a lenient approach, rather than as a starting point for further reduction.
  • Factors including remorse, desire for education, family support, and a diagnosed disorder were accepted as relevant to the appeal, but did not outweigh concerns about persistent non-compliance and the volume of serious offending.
  • Adjourning a sentence appeal to obtain updated reports on a juvenile's custody behaviour and medical progress is a recognised procedural step when the court is not yet satisfied that conditions for early release are met.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 60E(1) (intimidating school staff), 112(2) (aggravated break and enter), 195(1) (damaging property)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) (contravening an apprehended violence order)

Cases cited: No cases were cited in the judgment.