Children's Court New South Wales Medium Neutral Citation: R v Thomas [2023] NSWChC 3 Hearing dates: 24 February 2023 Date of orders: 24 February 2023 Decision date: 24 February 2023 Jurisdiction: Criminal Before: Children's Magistrate Hayes Decision: Dismissed with caution under section 33(1)(a)(i) Catchwords: CHILDREN – Criminal Law – Youth Koori Court Legislation Cited: Children (Criminal Proceedings) Act 1987 Cases Cited: R v Dickison [2004] NSWCCA 457 R v Hampton [1999] NSWCCA 341 R v Millwood [2012] NSWCCA 2 Category: Principal judgment Parties: Thomas (Young Person) Representation: Mr Kitchen (Prosecutor) Ms Gillies (Young Person) File Number(s): 2022/00311372 Publication restriction: Pseudonyms have been used to protect the identity of the child. JUDGMENT Background 1. Thomas is proudly Wiradjuri and Kamilaroi. 2. Thomas, you said you were guilty of: 1. Having a knife at Parramatta Railway station. 2. On a different day you scared your carer by pointing a knife at them. You did this when the Court had told you not to scare your carer. 3. On a different day you scared a person on the train. 4. On a different day you lit a fire on the train. 1. I have a copy of the police facts. I also have your criminal record. 2. Your solicitor, Ms Gillies has said being in detention, taken together with your involvement in the Youth Koori Court is enough penalty, and I should dismiss these matters with a caution. 3. I agree with Ms Gillies and so does the prosecutor, Mr Kitchen. 4. Ms Gillies has also provided me a report from Kerry, the mental health clinician that you spoke to last year. 5. Thomas, first, I am going to talk about your behaviour. 6. Then, I am going to talk about the mental health report. 7. Then, I am going to talk about your participation in the Youth Koori Court. 8. Then, I will tell you what the penalty is. 9. When I have done all these things, we will celebrate your graduation from the Youth Koori Court. 10. If you need a break let me or Ms Gillies know. Your Behaviour 1. I learn a lot from other bigger courts: often the Court of Criminal Appeal. 2. The Court of Criminal Appeal says that the use of a knife specifically aggravates the seriousness of an offence: R v Dickson [2005] – a knife makes it worse; and the penalty is bigger. 3. There is another Court of Criminal Appeal decision that says why it is worse - that is because a knife in an emotional situation increases the danger: R v Hampton [1999] NSWCCA 341 at [10]. 4. When people are very emotional, they do not think about what they are doing. People can get injured or even die. Sometimes even the person holding the knife is harmed. 5. In your matter no one was injured. 6. Fires are dangerous. More people die from smoke than flames. 7. Breathing smoke can cause health problems like burning eyes and breathing problems. 8. Fire can cause people to panic; and people can get injured trying to escape. 9. There was no damage from the fire but it is still serious. 10. I also learn things from people who do research. 11. A report from the Australian Law Reform Commission says that mental violence, that includes constant verbal abuse, harassment or scaring can be devastating – in some cases, the fear lasts longer than an injury. 12. Thomas, it is worse when you scare someone when the Court has already told you not to. 13. I have talked about your behaviour. Now, I will talk about the mental health clinician report. Mental Health Clinician Report 1. The report says Thomas has experienced significant physical and emotional trauma including abuse and neglect. Thomas has a genetic predisposition to mental illness with diagnosis of bipolar disorder and schizophrenia on both sides of his family. 2. Thomas has been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, post-traumatic stress disorder and mild intellectual disability. 3. Thomas has a history of acute presentations to hospital for suicide attempt, increased confusion with aggression in the context of changes to medication; and there are other behaviours as well. 4. This is important Thomas, because it means you are not as responsible as other people: 1. Who should know their behaviour is wrong or, 2. Can better control their behaviour. 1. It is also important because Ms Gillies was able to persuade me to deal with other matters under Mental Health law. 2. Thomas, the report also says you were removed from your parents when you were one. You lived in multiple short-term family and refuge placements. 3. This is not your fault; but it is important because separation affects your development, and it is worse when there are lots of separations. 4. The Court of Criminal Appeal said: "Common sense and common humanity dictate that [a person who had a disadvantaged and dysfunctional upbringing] will have fewer emotional resources to guide his (or her) behavioural decisions": R v Millwood [2012] NSWCCA 2 Simpson J at [69]. 5. You were also removed from your culture. 6. Removal causes trauma, more so in cultures of extended family dwelling. 7. The United Nations Convention on the Rights of the Child recognises the importance of cultural heritage: see Article 20. 8. I think this is because culture is core to your identity. It is who you are. 9. This is why your involvement with the Youth Koori Court was so vital. Youth Koori Court 1. On most review days you walked into Court with a big smile - saying a genuine 'Hello Aunty' or 'Hello Uncle' or today it was 'Hello Aunties'. 2. Even when you were a bit stressed you were still pleased to see the Elders. 3. Elders helped you to understand culture, to understand history; and supported you to improve connection. 4. You connected with culture. For example, Richard from the Men's Shed (Western Sydney University) spoke today about how brilliant you are; and how involved you are with traditional arts and shared stories. 5. Sam told the Court about your involvement with Mission Australia and their encouragement of a conversational approach to problem solving. This assisted you to regulate your emotions and identify positive relationships. 6. There is no recent offending; you have participated in 7 reviews. 7. You once said that you apply for jobs and never hear back. 8. It was not long ago that you were worried you would be homeless. 9. I don't know how someone can be in care for 17 years and be worried about homelessness. I don't know why there is no leaving care plan, no provision for you to return to country and no money to buy shoes for your new job. 10. But things are getting better. 11. You now have a secure home. 12. Kylie told us about a job that you would be great at. Jodie helped with your resume. You got the job. You start work on Monday. 13. Michael tells me that Youth Justice are linking with DCJ to access leaving care plans. 14. And late this afternoon Caterina of the Legal Aid NSW Children's Civil Law Service - who has helped with your NDIS, helped with your financial management; and advocated long and strong for your leaving care plan - tells me your plan is now approved. 15. The plan includes funding to visit Country. And Jodie is going to ensure you have work shoes for Monday. Sentencing 1. The Youth Koori Court Practice Note says I must consider your participation in the Youth Koori Court when sentencing; and I do. Order 1. Each matter is dismissed with a caution under section 33(1)(a)(i). ********** 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: 02 March 2023