District Court New South Wales Medium Neutral Citation: Jacob PLUM v R (No 1) [2015] NSWDC 405 Hearing dates: 20 & 26 November 2015 Date of orders: 26 November 2015 Decision date: 26 November 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: 1. Matter adjourned. 2. Updated Juvenile Justice report ordered for 20 January 2016. Catchwords: CRIMINAL LAW – appeals against sentence – juvenile offender – control order – particular offences – aggravated break and enter – damaging property – intimidating a member of school staff – contravene apprehended domestic violence order – on conditional liberty at time of offending – nature and circumstances of offender – 15 years old – diagnosed behavioural disorders – commenced medication – insight into impact of offending – desire to continue education – need for support in the community – proposed reduction of non-parole period Legislation Cited: Crimes Act 1900 (NSW), ss 60E(1), 195(1), 112(2) Crimes (Domestic and Personal Violence) Act 2007, s 14(1) Category: Principal judgment Parties: Mr Jacob Plum (Appellant) Regina (Respondent) Representation: Solicitors: R Pettet, Aboriginal Legal Service (NSW/ACT) (Appellant) K O'Keeffe, Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2015/14396; 2015/95785; 2014/79046; 2014/6825 Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender. Identifying information has been removed from this version of the remarks to comply with the statute and the offender's name has been replaced with a pseudonym (which is a colour). Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 31 October 2015 File Number(s): 2015/14396; 2015/95785; 2014/79046; 2014/06825 Judgment 1. District Court Judges hear appeals from magistrates. That includes Children's Court magistrates. I am hearing one of those appeals. The appeal is by a young man named Jacob Plum [a pseudonym]. He is now fifteen. He has been before the Children's Court here in Orange a number of times. He has been given good behaviour bonds but breached them. In the end the Children's Court magistrate cancelled the bonds and sentenced young Jacob Plum to the equivalent for a juvenile of gaol. That is called a control order. 2. The magistrate gave him a twelve month control order and fixed a non-parole period - during which Jacob cannot be released - of six months. The control order started on 31 October 2015 - just a few weeks ago - and the non-parole period therefore will not expire for another six months. That will happen on 30 May 2016. 3. Jacob Plum, through his lawyer Ms R Pettet, has appealed against the sentence. Ms Pettet says on behalf of Jacob Plum that although the sentence itself of twelve months is understandable, there is a good argument for reducing the non-parole period from six months to something less than that so that her client can be released sooner. 4. Ms Pettet called witnesses in the appeal, namely her client, Jacob Plum, his mother and a Juvenile Justice officer, Ms Roberts. 5. Before saying what I propose to do with this appeal, it is important for a judge to set out just why a person has been sent to gaol or in this case a juvenile detention centre. 6. Jacob Plum's behaviour over the last 18 months or so has been more than a little out of control. The charges that he faced in the Children's Court and which the magistrate sentenced him for started off with an aggravated break and enter into a vacant house. That happened on 8 January 2014. He and his companions also damaged the house. So the first of the two charges is aggravated break and enter. That is a serious crime. The Crimes Act 1900 (NSW) makes it an offence by s 112(2) and the damage to property is an offence against the same Crimes Act but s 195(1). 7. Jacob Plum and some of his mates broke into a house in South Terrace here in Orange. It was vacant. It belonged to the Department of Housing. Once they were inside they broke the rear window and damaged some other things inside including a CCTV camera. That was all on 8 January 2014. 8. Then, only a couple of months later, Jacob Plum was in trouble again. This time it involved school. It happened on 14 March 2014. He was a pupil at [school]. That is a school which caters for children with particular issues. He went to school that morning and the programme involved them working on another campus of the school - at a farm. Jacob started damaging some netting and he was told to stop. He ignored this and was told that he was going to be sent home. Then the principal was called. Jacob Plum got angry and yelled at both the principal and the other teacher in very abusive language. He was told to calm down and he became even more abusive, threatening to kick the principal. That verbal abuse was so serious that Jacob Plum was charged with a crime called intimidating a member of school staff. That is also a crime in the Crimes Act, s 60E(1). 9. After threatening the school staff he picked up a timber plank and began hitting the building. That did not cause much damage, so he went around to another part of the building and started to smash a window. He bashed a colour bond gate. The school went into lockdown. He kicked the gate over. He was told to leave. He yelled at the principal again. He pulled off three grates and used them to smash every panel of the colour bond fence. Again he was charged with reckless damage to property which, as I said, is a Crimes Act offence against s 195(1). 10. Jacob Plum stayed out of trouble for another six months or so, but then on 14 December 2014 he was at home and smashed his bedroom windows. He also stabbed a photograph of his own mother with a large knife. He went outside, picked up a brick and threw it into a house window. He threw more bricks into the windows. Again he was charged with the damage to the property. 11. Again he stayed out of trouble for a few months but things deteriorated again earlier this year on 27 March. He had an argument with his older brother who was living at home. He smashed up his own room with a golf club. It put several holes in the wall of his bedroom. He went into the hallway and bashed a hole in the hallway. The police were called, and he abused them. In fact his mother was at home and in that behaviour he breached an apprehended personal violence order which she had against him. 12. So on that occasion he was charged not only with the usual damaging property offence but another crime called knowingly contravening a prohibition in an apprehended violence order. That is where someone breaches the order. That is an offence against s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It too is a serious offence. 13. Again he was charged with an offence which occurred a few days later on 31 March 2015 - intentionally damaging property. 14. So Jacob Plum had accumulated quite a few charges against him. For the offences earlier last year he came before the Children's Court and got the benefit of a good behaviour bond. But then he breached the bond by November that year and came back before the Children's Court but by that stage, he had also further breached the bond by the damage caused by his activity in December that year at home. 15. In the meantime he came before the court for the fresh charges of what he had done at home. That was not until August this year. He pleaded guilty to the charges on 10 August and was given a control order but the Children's Court magistrate suspended the control order. But then by a couple of months later he had not complied with the good behaviour bond that goes along with a suspension and so again there was an application to cancel the good behaviour bond and the suspended sentence. In the end the Children's Court magistrate was left very little choice but to impose the sentences which the magistrate did. 16. In fact, on one view of things the magistrate was pretty lenient with Jacob Plum. I say this because for all of these offences (and there are eight of them) the magistrate gave him only one sentence. That was the twelve months with the non-parole period of six months. One would normally expect a number of sentences for all of those offences because some of the victims were different. The sentences would sometimes overlap, or be back to back. But what the magistrate did was to roll them all up into one sentence so, as I said, it seems to me that he did pretty well in the sentence that he got. 17. One often thinks in a case like this, why would a person appeal? But as I said, Ms Pettet has made out an argument for the appeal, not saying that the main sentence was out of order but that he should be given an opportunity to be released earlier. 18. The documents before me - which include exhibit A from the prosecution - include a number of juvenile justice reports. They are always very helpful and this case is the same. They contain very helpful insights and information about a young offender. Jacob Plum has not been cooperating with the good behaviour bonds and the various ways that the court has been trying to get him to settle down. That is why in the end the magistrate had to effectively lock him up. Time and time again the juvenile justice reports say that he was not complying with the orders. 19. There's a helpful report from a Dr Paul Bloomfield who works at the Orange Paediatric Clinic. He has diagnosed Jacob Plum with attention deficit hyperactivity disorder as well as oppositional defiant disorder. As the doctor pointed out, it has caused problems with schooling and the authorities. It looks as though the doctor has an interest in Jacob Plum and the doctor commenced him on a medication called Concerta back in April last year. 20. When Ms Pettet called her client Jacob Plum to give evidence he told me some of his background story. He is one of four boys. He is the third one. He has got a little brother who is four. He and his little brother live with their mother here in Orange. He remembers there being domestics between his mum and his stepfather and he thinks his stepfather is in a correctional centre at the moment. He is close to his grandmother, but she lives in Walgett. Also she is not well. He wants to be able to see his grandmother again sooner rather than later. 21. Jacob Plum is doing year nine whilst he is in Orana Juvenile Detention Centre and he said it is better than the special school that he was at before. The plan is, he said, that his mother would like to go back to Walgett to be near his grandmother. He had an aunt looking after his grandmother, but sadly she died. But of course he is in custody at least until 30 May next year. 22. He says at school he is getting back to reading and writing and he says that is important to him. He knows that the medication will help him to concentrate at school. He says that if he was released he would be more compliant this time and comply with the Juvenile Justice people. 23. Jacob Plum broke down in court when he was talking about his mother. It seems to me that he has really come to appreciate how much his mother supports him and how much grief he is causing her. As he said in court, she has his best interests at heart and she has done everything for him. In fact he described her as a beautiful mum. He acknowledged that he had been stressed and was giving her a hard time. 24. In cross examination by Ms K O'Keeffe who appears for the respondent to the appeal who is the Director of Public Prosecutions, he acknowledged that he needs to talk to people when he feels stressed. And he said that he had learnt some lessons about dealing with stress such as deep breathing. He wants to do his best at school and improve his education. If school does not work he would be prepared to do TAFE. 25. Ms Pettet called Sonia Plum [another pseudonym], who is Jacob's mother. She explained how she would like to go back to Walgett and would like to take Jacob with her. It is apparently a four hour drive between here and Walgett. She said her mother is really sick and she would like to have Jacob up there with her. She proved that she is a good mother by saying that she would do anything for her kids and she would back him. She said that her children should be with her. She has got the papers for an application to [a new school] and they are prepared to give him a go and she would back him and help him with his medication and she knows that he needs a counsellor. 26. Ms Plum wants to keep Dr Bloomfield as his doctor and would travel back to Orange to do that. She knows that getting him back to school is very important. She actually said that Jacob seems a bit more settled and mature now, more so than he used to be. 27. The Juvenile Justice officer was Naomi Roberts. Her evidence was very impressive and very helpful. She acknowledged that it was a difficult case. Jacob seems to get into trouble when he is with his mates. He seemed to put them above his family and the community. She said she had not seen him upset before like he got upset in court and that he is showing a bit more empathy towards his mother. She thinks that he is quite bright and has a lot of potential. The trouble is he has made poor decisions. Juvenile Justice would be able to do home visits at Walgett, even though they come from Bourke to do that and they would provide some transport. 28. All that evidence was given last Friday on 20 November 2015. I adjourned the case to today because I wanted to obtain some more information. Ms Pettet, as I said, suggested that he be released sooner rather than later. I was not convinced of that and nor was Ms O'Keeffe. 29. So the case came back before me today and Ms Pettet called Naomi Roberts again. She has been on the job since last Friday. She has spoken to the principal at Walgett. They need to get a special grant because of Jacob's special needs and they need to put in an application. The last opportunity has just passed so it will need to happen early next year. The grant would be to have him get special support at school. The school is prepared to take him on but needs to sort out this sort of thing. 30. Ms Roberts said that Jacob has just started back on the Concerta medication. I did not say that before - he has stopped and started on that - but he is back on it, and the doctors want to see how he goes on it. That usually takes about four or six weeks and then they see how he is going. The idea is that it should help him settle in class and concentrate more. But it also would help him it seems with his general behaviour and outlook. 31. There is a good Aboriginal Medical Service in Walgett where there is a psychiatrist and a paediatrician and a counsellor. There are a couple of very good supportive programmes. One is run by the PCYC, another is run by Mission Australia. They seem to offer very good opportunities for somebody like Jacob Plum. 32. Ms Pettet asked Ms Roberts whether perhaps day leave might be allowed for him to see his grandmother. The answer was no because his classification is not low enough for that. He has apparently been misbehaving in custody recently. He was throwing rocks at staff and ignoring directions and using bad language and even used some graffiti. But Juvenile Justice persevere in trying to get him to comply and to help him at the school there and his classes at Orana in juvenile detention. She hopes that he will settle down and realise what the consequences of his behaviour are. 33. Ms O'Keeffe asked whether these PCYC and Mission Australia programmes were available in Orange. They are but he did not go along and in re-examination Ms Pettet asked about making attendance at those courses in Walgett a condition of parole. There are counsellors available in juvenile detention and including qualified psychologists. Jacob has got himself talking to one of those psychologists about anger management. He is allowed to see that psychologist at any time. 34. Ms Pettet said to me today that she knows that her client really would like to get out today so that he can be at home for Christmas but she acknowledged fairly and reasonably that that is not likely. She is right about that. She wondered whether he could be released just in time for Christmas so that he could be there for Christmas and spend the summer in Walgett until he goes back to school in mid to late February. It would give him time to take his medication. 35. Ms O'Keeffe on the other hand, whilst acknowledging the importance of rehabilitation, pointed out that some of his offences - the property damage offences - were quite serious. She said that they were at the higher end. Some of them were committed in the home of the victim. That is true. He committed these offences in his mother's home, which was his own home. He used a weapon such as a golf club. Things got out of control fairly quickly. Of course the break and enter was a very serious offence. 36. Some of his misbehaviour in custody has been very recent, like only a few days ago. Ms O'Keeffe correctly pointed out the concern which the community would have about him re-offending if I let him out too soon, acknowledging, again, that age and rehabilitation were in his favour. She also acknowledged, fairly, that he was obviously remorseful. 37. What I have decided to do after hearing these arguments, is this. I think to let him out now is not acceptable. He is still misbehaving and he still needs to spend time in custody for what he did. But I also think letting him out by Christmas would be too early. I do not think there would be time for the medication to work and also I am not yet convinced that he will toe the line. I think he will. He is well intentioned, but something happens to him and he goes off and misbehaves again. 38. I might say I am impressed by him as a witness. He gave very impressive evidence and is obviously very upset at his own behaviour. But he needs a lot of support and I think he needs more of this support and also, as Ms O'Keeffe said, to spend more time in custody because of this spate of serious offences that he has committed. Not only one or two, but eight separate crimes. 39. So what I did this morning (and I am just giving my reasons for making this decision) is that I have decided to adjourn the appeal until 22 January next year. On that day I will get an up to date report on how Jacob has been going on his medication, and if it looks as though he has been behaving himself reasonably well and has been settling down in custody, then I would be inclined to reduce the non-parole period so that he can get out in February some time in order to hopefully start at [the new school]. I might, as Ms Pettet said, let him out a few days earlier than the start of school so that he can settle in with his mother at Walgett and hopefully his grandmother. But I do think for the reasons that I have given that it is too early to release him now. 40. So the order which I make now, officially, is that I adjourn this appeal to 22 January 2016. HIS HONOUR: I assume bail is not applied for? No. 1. Bail is not applied for and refused. HIS HONOUR: Now should I get an up to date Juvenile Justice report? PETTET: Yes I think so your Honour because I don't think Ms Roberts will be able to attend because it won't be here. 1. I direct an up to date Juvenile Justice report to be prepared and made available to the court on or before 20 January 2016. ********** 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: 09 August 2016