Children's Court New South Wales Medium Neutral Citation: R v Linda [2022] NSWChC 3 Hearing dates: 12 August 2022 Date of orders: 12 August 2022 Decision date: 12 August 2022 Jurisdiction: Criminal Before: Children's Magistrate Hayes Decision: Dismissed under section 33 (1)(a) Catchwords: CHILDREN – Criminal Law – Youth Koori Court Legislation Cited: Children (Criminal Proceedings) Act 1987 Cases Cited: KT v R [2008] NSWCCA MS2 & Ors v Regina [2005] NSWCCA 397 Muldrock v The Queen [2011] 244 CLR R v Henry [1999] 46 NSWLR 346 R v Pogson [2012] NSWCCA 225 Category: Principal judgment Parties: Young Person New South Wales Police Force Representation: Mr Berger (Prosecutor) Ms Hudson-Buhagiar (Young Person) File Number(s): 2021/00014490 2021/00066451 2021/00102574 2021/00189599 2021/00303675 Publication restriction: Pseudonyms have been used to protect the identity of the child. Judgment Background 1. Linda is proudly Noonuccal and Worimi. 2. Linda pleaded guilty to Affray x1, Assault Occasioning Bodily Harm x 5 and Assault. 3. The Police facts refer to 26 prior charges. 4. The facts assert that Linda is part of a juvenile criminal network, and the offences place the community at extreme risk. Linda has 8 breaches of bail. 5. Linda was 13 or 14 years old at the time of offending. 6. Linda was referred to the Youth Koori Court (YKC). 7. Linda is now 15. 8. Linda graduates YKC today. 9. Prior to graduation the Court must finalise all charges. Youth Koori Court 1. Linda was admitted into the YKC on 5 November 2021. 2. Linda agreed to an Action and Support Plan on 19 November 2021. 3. The Action and Support Plan focussed on: * exploring the role violence plays in Linda's life * cultural support, predominantly referral to Darumu * attending school daily * reducing Linda's 'fines' debt * undergo a legal health check * applying for a tax file number, creating a resume, and covering letter; with a target of applying for 5 jobs 1. The lead agency was Mission Australia. The lead person was Sam. 2. Linda complied with her Action and Support Plan. 3. Compliance included weekly meetings with Sam, completion of the RAGE program, engagement with Darumu, a good school attendance rate, a debt reduction from $2,200.00 to $450.00, completion of the legal health check, obtaining part time work, and nil re-offending. 4. There have been no matters of violence for over 12 months. Submissions 1. Ms Hudson-Buhagiar prepared careful and extensive written submissions addressing the factors that the Court must consider on sentence. 2. I largely agree with those submissions. 3. The Prosecutor, Mr Berger submits that the Court must recognise the harm done - noting the matters are of violence. Decision 1. Linda - Ms Hudson-Buhagiar assesses your engagement with the YKC as 'great'. 2. Ms Hudson-Buhagiar says you have engaged particularly well in the cultural aspects and that past disconnection is a direct impact of stolen generation and overall dispossession of Aboriginal persons. 3. Ms Hudson-Buhagiar says there is a lot for the court to consider. 4. The timing of your guilty pleas, the maximum penalties, the facts, how serious the offences are, including your moral culpability. 5. I have considered the Justice Health Report. 6. In that report you presented to Westmead Hospital around the time of these offences after a deliberate overdose of medication with suicidal ideation and auditory hallucinations. 7. I accept that there is a causal connection between your mental health and the commission of the offences that reduces your moral culpability: see Muldrock v The Queen [2011] 244 CLR 120. 8. Some time ago I asked Ms Hudson-Buhagiar how to better describe moral culpability. We agreed that it is assessing how responsible a person is taking into account their personal circumstances including their ability to appreciate the wrongfulness of their actions or capacity to control conduct. 9. I accept Ms Hudson-Buhagiar's submission that your behaviour falls within the meaning of impulsivity as per R v Henry [1999] 46 NSWLR 346. This means you did not plan the offending and you did not think much about it before you acted. 10. I have heard what Ms Hudson-Buhagiar says about your own situation. 11. The Court must also consider the purpose of sentencing. 12. I want to explain this a little more. 13. The purposes for which a court may impose a penalty are as follows: * to ensure a person is adequately punished for the offence. There have been restrictions on your freedom – by the curfew, by returning to court on ten occasions so I can see your progress, and by you attending to the activities in your Action and Support Plan. * to prevent crime by deterring you and others from committing similar offences. For young people - an arrest, bail conditions and coming to court is a deterrent. I also accept that general deterrence is not so relevant because of what is contained in the Justice Health Report. * to denounce your conduct. Violence committed in public is against the good order of our community. People should feel safe in public. The Elders set proper expectations. * to recognise the harm done. It is important that victims feel that justice has been done. The Action and Support Plan's focus on addressing violent conduct is recognition of harm done; and demonstrably denounces your conduct. * to make you accountable for your actions. Section 6(b) Children (Criminal Proceedings) Act 1987 requires me to have regard to the principle that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance. Elders hold you accountable but give direction and support. * to protect the community. The protection of the community can be best achieved, in appropriate matters, by focussing on rehabilitation. Therefore, the next purpose is really important. * to promote rehabilitation. In R v Pogson [2012] NSWCCA225 at [103] the Court of Criminal Appeal said, "Rehabilitation has as its purpose the remodelling of a person's thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law-abiding citizen". This is central when sentencing young people. 1. In MS2 & Ors v Regina, [15] Adams J identified two of the reasons that the youthfulness of an offender is a significant factor in sentencing. The first is the "substantial public interest in the rehabilitation of young offenders": [16] The second is "that immaturity is relevant to culpability or criminality" because "children do not have adult value judgments, adult experience, adult appreciation of consequences". [17] 2. When children are to be sentenced, greater weight is given to rehabilitation and less weight to deterrence: see KT v R [2008] NSWCCA [18] 3. Linda, I want you to know what I have learnt from you. * The RAGE strategies you apply in dealing with anger management were good. * I wrote down what you told Sam some time ago: You are uncomfortable but becoming comfortable about being uncomfortable. That was beautifully said, and I think I understand. * I now know about part time employment restrictions for young people who are attending school. Thank you for prioritising education. 1. Lastly, sometimes the hardest part of my role is working out someone's prospects of rehabilitation. 2. I learnt from you in these matters that this is easy - because you have done so much so well over so long. ORDER 1. Each charge is dismissed under section 33 (1)(a). 2. Your graduation begins. 3. Note: It is wonderful that Sam is here today and can join in the celebration of your graduation. 4. Thank you also to Uncle Cliff for your words, wisdom and acknowledgement to Country. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2022