Pf v Robert James Caskie and Jm v Scott Lawrence Clifton and Jj v Ngaire Gwendolyn Studholme and Jf v Robert James Caskie [1999] ACTSC 92 (24 September 1999)

Last Updated: 22 October 1999

PF v ROBERT JAMES CASKIE

and

JM v SCOTT LAWRENCE CLIFTON

and

JJ v NGAIRE GWENDOLYN STUDHOLME

and

JF v ROBERT JAMES CASKIE

[1999] ACTSC 92 (24 September 1999)

CATCHWORDS

CRIMINAL APPEAL - against sentence - juvenile offenders - multiple theft and burglary and intentional damage to property - whether Magistrate erred by failing to give due weight to relevant factors and by considering irrelevant factors - whether Magistrate's sentence was manifestly excessive - Magistrate did not give appropriate weight to relevant factors and took into account irrelevant factors - sentencing therefore attended by factual error - result in any event manifestly excessive and in violation of principles applicable when sentencing juveniles - sentence set aside - convictions in lieu recorded and alternative penalties ordered.

Children's Services Act 1986, s 5

House v R [1936] HCA 40; (1936) 55 CLR 499

B v R 1995 82 ACrimR 234

Simmonds v Hill [1986] NTSC 1; (1986) 38 NTR 31, 33

R v Hill [1982] FCA 95; (1982) 60 FLR 302

George v R [1986] TasR 49

R v Boudelah [1991] FCA 124; (1991) 28 FCR 176

R v M (1996) 134 FLR 361

ON APPEAL FROM THE CHILDREN'S COURT

No. SCA 29, 30, 31 and 33 of 1999

Judge: Higgins J

Supreme Court of the ACT

Date: 24 September 1999

IN THE SUPREME COURT OF THE )

) No. SC 29 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDREN'S COURT

BETWEEN: PF

Appellant

AND: ROBERT JAMES CASKIE

Respondent

IN THE SUPREME COURT OF THE )

) No. SC 30 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDREN'S COURT

BETWEEN: JM

Appellant

AND: SCOTT LAWRENCE CLIFTON

Respondent

IN THE SUPREME COURT OF THE )

) No. SC 31 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDREN'S COURT

BETWEEN: JJ

Appellant

AND: NGAIRE GWENDOLYN STUDHOLME

Respondent

IN THE SUPREME COURT OF THE )

) No. SC 29 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDREN'S COURT

BETWEEN: PF

Appellant

AND: ROBERT JAMES CASKIE

Respondent

IN THE SUPREME COURT OF THE )

) No. SC 30 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDREN'S COURT

BETWEEN: JM

Appellant

AND: SCOTT LAWRENCE CLIFTON

Respondent

IN THE SUPREME COURT OF THE )

) No. SC 31 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDREN'S COURT

BETWEEN: JJ

Appellant

AND: NGAIRE GWENDOLYN STUDHOLME

Respondent

IN THE SUPREME COURT OF THE )

) No. SC 33 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDREN'S COURT

BETWEEN: JF

Appellant

AND: ROBERT JAMES CASKIE

Respondent

CORRIGENDA

Coram: Higgins J

Place: Canberra

Date: 19 October 1999

Amendment to Reasons for Judgment dated 24 September 1999.

1. In paragraph 6(a)(i) on line 2 and on line 6 of the orders replace "JJ" with "JF".

2. In paragraph 6(a)(ii) of the orders replace "JJ" with "JF".

3. In paragraph 6(a)(iii) of the orders replace "JJ" with "JF".

Associate to Higgins J

19 October 1999

IN THE SUPREME COURT OF THE )

) No. SC 33 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDREN'S COURT

BETWEEN: JF

Appellant

AND: ROBERT JAMES CASKIE

Respondent

ORDER

Judge: Higgins J

Date: 24 September 1999

Place: Canberra

THE COURT ORDERS THAT:

1. Each of these appeals be upheld.

2. Each of the sentences imposed be set aside.

3. In lieu thereof:

(a) In respect of PF

(i) In respect of Charge no. 99/1264 a conviction is recorded.

* There will be a probation order placing PF on a recognizance in the sum of $500 to be of good behaviour for two years from 7 May 1999, accept the supervision of the Director over that period and obey her or her delegate's reasonable directions.

* There will be an attendance centre order of 104 hours requiring PF to complete 100 hours of community service within six months from this date and four hours of modules as directed by the Director or her delegate.

(ii) In respect of Charge no. 99/1252 a conviction is recorded. PF is to be released on entering into a recognisance himself in the sum of $500 to be of good behaviour for two years from 7 May 1999, accept the supervision of the Director over that period and obey her or her delegate's reasonable directions.

(iii) On each of the remaining charges there will be a conviction recorded. PF is to be released forthwith on entering the recognizance referred to in (ii) above.

4. In lieu thereof:

(a) In respect of JM

(i) In respect of Charge no. 1310/99 a conviction is recorded.

* There will be a probation order placing JM on a recognizance in the sum of $500 to be of good behaviour for eighteen months from 7 May 1999, accept the supervision of the Director over that period and obey her or her delegate's reasonable directions.

* There will be a residency order directing JM to reside as directed by the Director of Family Services or her delegate and to obey all reasonable directions of the Director or her delegate concerning but not limited to educational/vocational programs, family and drug and alcohol counselling.

(iii) On each of the remaining charges there will be a conviction recorded. JM is to be released forthwith upon entering the recognizance referred to in (ii) above.

5. In lieu thereof:

(a) In respect of JJ

(i) In respect of Charge no. 99/1206 a conviction is recorded.

* There will be a probation order placing JJ on a recognizance in the sum of $500 to be of good behaviour for two years from 7 May 1999, accept the supervision of the Director over that period and obey her or her delegate's reasonable directions.

* There will be an attendance centre order of 104 hours requiring JJ to complete 102 hours of community service within six months from this date and four hours of modules as directed by the Director or her delegate.

(ii) In respect of Charge no. 99/1105 a conviction is recorded. JJ is to be released on entering into a recognisance himself in the sum of $500 to be of good behaviour for two years from 7 May 1999, accept the supervision of the Director over that period and obey her or her delegate's reasonable directions.

(iii) On each of the remaining charges there will be a conviction but JJ is to be released forthwith on entering the recognizance referred to in (ii) above.

6. In lieu thereof:

(a) In respect of JF

(i) In respect of Charge no. 99/1198 a conviction is recorded.

* There will be a probation order placing JJ on a recognizance in the sum of $500 to be of good behaviour for two years from 7 May 1999, accept the supervision of the Director over that period and obey her or her delegate's reasonable directions.

* There will be an attendance centre order of 104 hours requiring JJ to complete 100 hours of community service within six months from this date and four hours of modules as directed by the Director or her delegate.

(ii) In respect of Charge no. 99/1185 a conviction is recorded. JJ is to be released upon entering into a recognisance himself in the sum of $500 to be of good behaviour for two years from 7 May 1999, accept the supervision of the Director over that period and obey her or her delegate's reasonable directions.

(iii) On each of the remaining charges there will be a conviction recorded. JJ is to be released forthwith on entering the recognizance referred to in (ii) above.

1. These are four appeals from sentences imposed by Magistrate Doogan in the Children's Court.

2. The four appellants had, in various combinations, perpetrated a large number of burglaries with associated thefts and damage to property.

3. The circumstances of each are as follows.

1. PF

4. This offender is aged thirteen years (date of birth 28 September 1985). On 7 May 1999, he pleaded guilty to thirty-seven charges, being fifteen burglaries, twelve stealing, one attempted theft and nine intentional damage to property.

5. All of these offences were committed between 15 and 25 February 1999. Many of them were committed in company with one or more of the other appellants.

6. The offences came to light on 25 February 1999. Police were called to the Jamison Inn at Macquarie in the Australian Capital Territory. This offender was found in Room 21. The room had been extensively damaged. The cost of repairs was $620.00. There was a large quantity of apparently stolen property also in the room.

7. A short time later the other three offenders came to the room. All four were taken into custody.

8. The total number of charges ultimately levelled against all four offenders was 121. There were eighteen separate incidents. The Compensation Schedule sets out abbreviated details of the various offenders' involvement.

9. PF was the one most extensively involved. His share of compensation sought was $15,696. Next was his elder brother, JF (DOB 20 October 1983) - $11,022. Then JJ $10,297 (DOB 16 March 1984) and JM $4049 (DOB 8 August 1982).

10. An aggravating feature typical of four of the criminal episodes was the wanton damage done to the burgled premises. It went far beyond such damage as might have been necessary to effect entry and to access the goods stolen. This increased the distress to the victims of those offences.

11. PF was granted bail on 26 February 1999. However, due to breach of his bail conditions, he was taken into custody on 25 March 1999. He was again released on bail on 29 March 1999.

12. On 13 April 1999 PF appeared before Magistrate Doogan. He was then remanded in custody until 29 April 1999. A pre-sentence report was ordered. He was remanded in custody as he had, in the meantime, failed to attend counselling as required.

13. However, the matter did not proceed to a hearing until 7 May 1999.

14. PF had, nevertheless, confessed to his involvement in the various offences he had committed. He pleaded guilty at the first opportunity. He had no prior convictions.

15. At the time of the offences he had been "kicked out" of home for fighting with his brother JF. He stated that the primary reason for the offences was to obtain money for survival.

16. However, he also conceded that the scale of the offences had gone beyond mere "survival". Nevertheless, he did express remorse for the damage and loss caused to his victims.

17. There was also a psychological report prepared. That detailed a history including a diagnosis in 1994 of Attention Deficit Disorder. There had been attempts to treat the disorder with medication but PF could not tolerate the drugs. Other treatments were attempted but with little success. He had considerable difficulty, not only with learning but also with aggressive and disruptive behaviour.

18. As a result, the psychologist reported:

"PF's background in which he has constantly challenged rules and the need to conform to "imposed" rules makes him a poor candidate for adhering to moral sanctions of a higher order without considerable intervention."

19. It was recommended that PF be subjected to a "controlled environment" as well as anger management and community service.

20. The sentencing proceedings in relation to all the young persons, including this offender, were heard together. In relation to all of them her Worship referred to the considerable impact their offences, both in monetary and emotional terms, had visited upon their victims.

21. In relation to PF, her Worship observed:

"...the reports indicate - or this is my interpretation of the reports - indicate a person, being PF, who has constantly challenged rules imposed upon him, be it by his parents, by school, by society generally or by the Courts. The latter being evidenced by the fact of his breaching of bail conditions. The report by Mr Hertel [the psychologist] is disturbing in many respects but particularly regarding PF's lack of morality, responsibility and lack of empathy."

22. Her Worship, in relation to all four offenders, then noted, correctly in my respectful opinion, that retribution and deterrence, both general and personal, are not excluded, by virtue of s 5 of the Children's Services Act 1986, as relevant considerations in sentencing. That is notwithstanding that subs (4) enjoins the Court to "regard the best interests of the child as the paramount consideration".

23. The findings made by her Worship in relation to PF also included the following remarks:

"I have formed the view that all four, and this goes for all of them, all four show - or none of the four rather, show any insight whatsoever into the seriousness of the offences which they have committed and the havoc, loss and destruction which they have inflicted on so many persons in the community. None of the four, in my opinion has a stable environment, stable home environment. None of them is committed to the pursuit of any goal, any worthwhile goal. None of them is gainfully at school. A couple of them are talking about perhaps seeking employment, although nothing has happened in relation to that and one wonders about the prospects and reality of children of this age seeking full-time gainful employment, particularly when one of them JF has a history of being employed but not being able to get on so he had to leave.

All of them I find, each one of them, has very serious or have very serious anti-social characteristics. None of them I find has shown any compassion or empathy in relation to what they have done. So in short I find that all of them are a very bad risk to put back out into the community."

24. In consequence her Worship sentenced PF to nine months detention on one charge of burglary. On a second charge, he was sentenced to be released upon a supervised recognizance of two years duration in the sum of $500 following release from detention. On all the others he was convicted but released without further sentence upon that same recognizance.

25. If, as seems to be the case, her Worship considered that she should disbelieve the reported expressions of remorse attributed to PF, referred to in the pre-sentence report, no reasons are given for doing so.

26. PF's youth and psychological condition might, one would think, have explained the irresponsibility and lack of mature judgment which characterised his offences. Further, the evidence did not suggest any lack of stability in PF's family background. He had left a stable home largely because, it seems, of his behavioural problems resulting from his psychological disorders. Those disorders are as real and debilitating as a physical disorder and do affect the moral character of the anti-social behaviour PF had engaged in.

27. Further, given the intervention in PF's life proposed by the pre-sentence report, it seems to me questionable to assume that PF was and would continue to be "a very bad risk" to the community.

28. When dealing with young offenders it is important to have regard to the opinions of those who daily deal with problem children. The writer of the pre-sentence report expressed the opinion that "PF's problems would be better addressed if he remain (sic) in the community".

29. Of course that is not to say that a Court must refrain from imposing a custodial sentence if no other option remains even if a reporting officer recommends otherwise. It also has the duty to consider general deterrence and retribution which may conflict with the need for the rehabilitation of the child in question.

30. Whilst burglaries, particularly a spate of them, are serious offences, very few adult offenders are sentenced to an immediate custodial term for a first offence or even a series of such offences.

31. It does seem that her Worship was heavily influenced by the distress caused to the victims particularly those of the wanton damage caused to some of the burgled premises.

32. Of course, a sentence imposed is not to be overturned on appeal merely because greater or lesser weight is given to a relevant consideration than the appellate bench would give - see House v R [1936] HCA 40; (1936) 55 CLR 499.

33. There may, however, be apparent error, either because factual findings made do not find support in the evidence, or because the result is so manifestly out of proportion with the norm that error is to be assumed.

34. In the present case, the adverse observation her Worship made in respect to the employment situation of all offenders was an irrelevant consideration for offenders as young as PF, though her Worship purported to recognize that it was not realistic to expect them to be pursuing employment. The lack of schooling and life goals her Worship criticized was, in PF's case, a reflection of his psychiatric deficits rather than a matter for which he needed to be punished (as to the relevance of such a consideration - see B v R (1995) 82 ACrimR 234). The reference to lack of remorse and empathy was contradicted by the unchallenged evidence, as was the reflection on PF's family circumstances represented by the balance of her Worship's general remarks.

35. Further, a great deal of weight should have been accorded to the opinion of the youth service officer who carefully assessed PF's situation and recommended a regime of supervision involving an attendance centre order and community service. That was a regime involving both rehabilitation and punishment.

36. The sentencing was therefore attended by apparent factual errors. The result was, in any event, manifestly excessive and a clear violation of the principles applicable to the sentencing of juvenile offenders.

37. The relevant principle is referred to by Maurice J in Simmonds v Hill [1986] NTSC 1; (1986) 38 NTR 31, 33:

"In the Juvenile Court the retributive aspect of sentencing is, at best, of secondary importance. Even lower in the scale if, indeed, it has any place at all, is deterring others. The overwhelming concern is the young offender's development as a law-abiding citizen. The court should be at pains to ensure that its sentences do not alienate its young clients. Particularly is this so in the case of a first offender."

38. Of course, the violence and seriousness of an offence may mandate imprisonment even after making due allowance for the youth of the offender - see e.g. R v Hill [1982] FCA 95; (1982) 60 FLR 302; George v R [1986] TasR 49; R v Boudelah [1991] FCA 124; (1991) 28 FCR 176.

39. Indeed, in Boudelah, though sentences of imprisonment were deemed appropriate, the principle that rehabilitation should be accorded the dominant role was affirmed - see also R v M (1996) 134 FLR 361.

40. If there had been any doubt as to whether or not to impose detention, the psychiatric evidence in relation to PF should have tipped the scales against that option (see B v R (1995) 82 ACrimR 234 per Rowland, Walsh and Owen JJ (CCA WA)). It could not be said, and it would be an error to assume, that, for a first time offender, rehabilitation should be eschewed because the prospects for its success seem unlikely.

41. The sentences imposed are, therefore, set aside. In lieu thereof convictions will be recorded.

42. On charge no. 99/1264 it is ordered that there be a probation order placing PF under the supervision of the Director of Family Services for a period of twelve months. During that period PF is to obey the reasonable directions of the Director or the delegate of the Director, particularly in relation to education/training and counselling.

43. I also make an attendance centre order of 104 hours requiring PF to complete 100 hours of community service work within six months from this date and to attend four hours of modules as directed by the Director or her delegate.

44. On charge no. 99/1252, PF is to be released on entering into a recognizance himself in the sum of $500 to be of good behaviour for two years from 7 May 1999, accept the supervision of the Director over that period and obey her or her delegate's reasonable directions.

45. On the remaining charges there will be no further sentence. PF is to be released upon entering into the recognizance referred to.

2. JM

46. This offender participated in eleven of the criminal episodes. However, police accepted that she had not participated in any of the wanton damage. She had been cooperative and regretful when interviewed.

47. The pre-sentence report in relation to JM noted that she had breached bail conditions. As a result, from 30 April 1999, she had been remanded in custody.

48. Her participation in the criminal conduct, for the most part, consisted of standing by and then assisting to carry stolen items. She had actively discouraged damage and the theft of children's items.

49. According to the reporting youth service officer, JM:

"...articulated (sic) she felt sorry for what she had done and that it was a "...stupid..." thing to have done."

50. JM had left home on 16 February 1999. She had disliked conforming to rules. However, her home appears to have been both stable and caring.

51. Whilst JM had failed to attend a counselling session following her apprehension, she did return to residing at home. She had enrolled at school for Year 11. There had been no adverse comment about her school attendance in 1998.

52. Nevertheless, she breached bail conditions, as noted above, by failing to attend a counselling session.

53. The reporting officer felt JM had over-minimised her involvement in the offences. She felt that JM needed to develop comprehension and "ownership" of "her previous offending behaviours, and the seriousness of the implications of her involvement in the criminal justice system."

54. However, Ms Osman, the reporting officer, nevertheless, recommended an extension of JM's bail for three months "to allow her further time in which to demonstrate to the community the progress she is making".

55. Her Worship did recognise that no allegation of wanton damage was made against JM, and that she had no prior criminal history. It is apparent to me, however, that not all aspects of JM's circumstances warranted the generalised adverse comments I have referred to above at par 23.

56. Her Worship properly noted as adverse to JM the circumstances concerning non-compliance with bail conditions in being found intoxicated with JJ.

57. The assessment of the pre-sentence report made by her Worship was:

"The report comments that JM has minimised her involvement in the offences. This together with her breaches of bail conditions shows a very poor insight. I am told she has not been attending school all year and I am told that the reason for that is that it has been a little bit too awkward to - and I am probably misquoting you here, Ms Hyunga, and I accept that but she has not been attending school. She has been, for want of a better word, just hanging around with her friends."

58. That assessment of the report fails to include the positive comments made by Ms Osman in her assessment.

59. So far as the general adverse comments made by her Worship are concerned, it is not apparent that JM showed no "insight whatsoever into the seriousness of the offences". She had participated in little of the "havoc, loss and destruction" and none of the wanton damage. Her family was a stable one and she seemed to have, until being placed in custody, been intent on completing Year 11.

60. Her Worship sentenced JM to detention for five months and two years supervision on recognizance.

61. That sentence, even by comparison with the others, is manifestly excessive. It fails to give adequate weight to JM's lesser involvement and the significant factor of the absence of participation in the destruction of property. It is based on the errors of fact referred to above.

62. However, given the time JM spent in custody, from 30 April 1999 to 28 July 1999, it seems to me desirable to finalise the matter rather than provide further time on bail.

63. I set aside the previous sentences.

64. In lieu thereof, on charge 1310/99 I record a conviction but, without proceeding further to sentence, I direct that JM be released forthwith upon entering into a recognizance, self in the sum of $500 to be of good behaviour for a period of eighteen months.

65. During that period, JM will:

* Reside as directed by the Director of Family Services or her delegate

* Accept the supervision of the Director and obey all reasonable directions of he Director or her delegate concerning but not limited to educational/vocational programs, family and drug and alcohol counselling.

66. On all other charges, I record convictions. JM is to released forthwith without further sentence upon entering into the above recognizance.

3. JJ

67. This offender, then aged fourteen years eleven months, participated in thirteen of the criminal episodes.

68. He was assessed in the pre-sentence report relating to him as "largely cooperative and compliant whilst on Bail". However, he did commit a breach of a condition of bail by reason of being found in the company of a co-offender and of being then under the influence of alcohol.

69. JJ had been persuaded by PF and JF to take part in the thirteen offences in question. He said that he had gone along with them "for the money". He accepted that the victims "would have been pretty pissed off" and would have had every reason to be.

70. It is difficult to interpret this reported reaction as indicating a lack of insight, empathy or remorse.

71. It is fair comment in relation to JJ that his home environment lacked stability. His father had been absent for long periods, often due to the fact that he had been sentenced to imprisonment. That had caused JJ to leave home and be admitted to a Refuge. His mother had a new partner. The new partner and JJ had been seriously in conflict with each other.

72. Following JJ's apprehension, attempts were made to re-integrate him with his family. He cooperated well with this. He had re-engaged with his father, who seemed to be repentant of his previous criminal activity and anxious to support JJ.

73. Before these offences and during 1998 JJ had failed to attend school. He attempted school in 1999, after his apprehension. He did not successfully persist but he was reported as being eager to pursue an apprenticeship. He had regularly attended counselling.

74. There were serious family issues JJ had to address. A former stepfather, whom he had had a good relationship with, had died. His mother, through no fault of hers, is HIV positive. A stepbrother was still-born.

75. These issues obviously needed to be addressed. The offender's lack of cooperation at school and behavioural difficulties at home can be seen to be related to those tragic and difficult circumstances.

76. In the report in relation to JJ the reporting officer recommended a Probation Order and Attendance Centre Order.

77. Turning to JJ in particular, her Worship commented:

"JJ is not attending school, he has anger management problems, he uses cannabis, he uses alcohol and for my view appears to have little, if any, insight into the seriousness of the offences with which he has been charged. It has been put to me by Ms Hyunga [his counsel] today that JJ does have some empathy with his victims, the four people whose houses he ruined but I do not accept that."

78. Her Worship then referred to his breach of bail conditions.

79. Again, the basis on which her Worship felt she was entitled to disregard the information contained in the pre-sentence report, supported as it was by Ms Hyunga's submissions, is not apparent.

80. Her Worship sentenced JJ in similar terms to PF. For similar reasons, those sentences are manifestly excessive and, though to a lesser extent, based on errors of fact. Again, not all of the negative generalizations made by her Worship in respect of all four offenders, are applicable to JJ.

81. I set aside those sentences and, in lieu thereof, sentences will be imposed as follows.

82. Convictions will be recorded on all charges. On charge no. 99/1206 it is ordered that there be a probation order placing JJ under the supervision of the Director of Family Services for a period of twelve months. During that period JJ is to obey the reasonable directions of the Director or the delegate of the Director, particularly in relation to education/training and counselling.

83. I also make an attendance centre order of 104 hours requiring JJ to complete 102 hours of community service work within six months from this date and attend two hours of modules as directed by the Director or her delegate.

84. On charge no. 99/1105, JJ is to be released on entering into a recognizance, himself in the sum of $500, to be of good behaviour for two years from 7 May 1999, accept the supervision of the Director over that period and obey her or her delegate's reasonable directions.

85. On the remaining charges there will be no further sentence. JJ is to be released on entering into the recognizance referred to.

4. JF

86. This offender was aged fifteen years at the time he participated in fifteen of the eighteen criminal episodes. He told Ms Hourigan, who prepared the pre-sentence report in relation to him, that his primary motivation was to obtain money to pay for food and shelter. That did not, of course, explain the wanton damage he participated in.

87. According to her, however, JF did display "insight to the ramifications of his offending behaviour".

88. He and PF had been "kicked out" of home for fighting with each other. The obvious solution would have been to negotiate a return to home. That would have avoided the occasions for offending. His previous submission to parental discipline had been relatively inconsistent. That attitude extended to school attendance.

89. Nevertheless, as at the date of the report, it was reported that JF had formed the ambition of attending CIT to undertake Year 10.

90. There was no adverse comment on the stability of his family.

91. JF was diagnosed with ADHD (Attention Deficit, Hyperactivity Disorder). As with PF, JF had adverse reactions to the medication prescribed for the disorder. That condition was likely to have contributed to JF's unsatisfactory behaviour prior to his leaving home.

92. He had attended counselling whilst on bail, though he missed some sessions. He was cooperative when he attended, though he, apparently untruthfully, when asked about his non-attendance, suggested he attended all scheduled sessions.

93. The recommendation made by the reporting youth service officer did not support a custodial option, though she accepted that the offences were objectively serious enough to warrant consideration of that option. The reporting officer said:

"...given that this is JF's first involvement with the Canberra Children's Court, his low educational level, lack of direction in terms of vocational options, poor problem solving skills and his partial compliance to counselling, it is believed JF's issues would be better resolved if he remain in the community."

94. Each of those "issues" was then constructively addressed, including the need for JF to submit to punishment and to make reparation to the community.

95. There was also a reference to a report from Mr Hertel, psychologist, in relation to JF. It was not placed before me, but it is summarised in the following terms in the pre-sentence report:

"JF "...displays symptoms of severe maladjustment"... and ... "demonstrates some ability to control his actions...". JF's frankness regarding his current situation were also noted."

96. Mr Hertel's recommendations for treatment of JF seem to have been adopted by the reporting officer.

97. The pre-sentence report seems to have been viewed by her Worship as if it contained only negative observations and provided little or no hope for rehabilitation.

98. Her Worship expressed herself as follows in relation to it:

"...I have noted the comments contained in the pre-sentence report and the psychological report prepared by Russell Hertel and dated 3 May and to the submissions by Ms Gray yesterday on JF's behalf. JF has a history of non-conforming behaviour, doesn't attend school and is hopeful of obtaining employment. He has not developed, according to the report, a sense of morality. He makes excuses for his behaviour and constantly challenges authority."

99. Those statements, adverse to JF, are literally correct but fail to give a fair view of the pre-sentence report as a whole.

100. Nor was it fair to apply to JF all of the adverse comments her Worship purportedly made in respect of all four offenders.

101. JF had been reported as displaying "insight". That was not contradicted. His family environment was not lacking in stability. He had expressed commitment to a CIT course. It was not reported that he had displayed no remorse for his actions. The reference to "insight" being displayed seems to have been intended to include empathy with the plight of the various victims. The conclusion that JF was a "very bad risk" in the community was not supportable on the material presented to her Worship. If her Worship had reason to reject the opinions of the reporting officer it was incumbent upon her to give persuasive reasons for doing so. There were no such reasons.

102. JF was sentenced to a similar term of detention to that imposed upon PF and JJ.

103. That sentence is not sustainable. It is premised on errors of fact, occasioned by a generalised condemnation of all four offenders without regard to the accuracy of those findings in relation to each of them as individuals. The sentence is, in any event, manifestly excessive and must be set aside. In lieu of all sentences so imposed and set aside, JF will be sentenced as follows.

104. Convictions will be recorded on all charges. On charge no. 99/1198 it is ordered that there be a probation order placing JF under the supervision of the Director of Family Services for a period of twelve months. During that period JF is to obey the reasonable directions of the Director or the delegate of the Director, particularly in relation to education/training and counselling.

105. I also make an attendance centre order of 104 hours requiring JF to complete 100 hours of community service work within six months from this date, and to attend four hours of modules as directed by the Director or her delegate.

106. On charge no. 99/1185, JF is to be released on entering into a recognizance himself in the sum of $500 to be of good behaviour for two years from 7 May 1999, accept the supervision of the Director over that period and obey her or her delegate's reasonable directions.

107. On all remaining charges JF is to be released upon entering into the recognizance referred to above, without further sentence.

I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 24 September 1999

Counsel for the Appellant (PF): Mr J Evans

Solicitor for the Appellant (PF): Nimmo Tigwell Clarke

Counsel for the Respondent (Robert James Caskie): Ms P De Veau

Solicitor for the Respondent (Robert James Caskie): ACT Director of Public Prosecutions

Counsel for the Appellant (JM): Ms P Russell

Solicitor for the Appellant (JM): Legal Aid Office (ACT)

Counsel for the Respondent (Scott Lawrence Clifton): Ms P De Veau

Solicitor for the Respondent (Scott Lawrence Clifton): ACT Director of Public Prosecutions

Counsel for the Appellant (JJ): Ms P Russell

Solicitor for the Appellant (JJ): Legal Aid Office (ACT)

Counsel for the Respondent

(Ngaire Gwendolyn Studholme): Ms P De Veau

Solicitor for the Respondent

(Ngaire Gwendolyn Studholme): ACT Director of Public Prosecutions

Counsel for the Appellant (JF): Mr A Doig

Solicitor for the Appellant (JF): Wood Fussell

Counsel for the Respondent (Robert James Caskie): Ms P De Veau

Solicitor for the Respondent (Robert James Caskie): ACT Director of Public Prosecutions

Date of hearing: 28 July 1999

Date of judgment: 24 September 1999