IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0285 

AS		
		
v   		
		
THE QUEEN		

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JUDGE:	Champion J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	13 December 2018; 4 April 2019	
DATE OF SENTENCE:	12 April 2019	
CASE MAY BE CITED AS:	AS v The Queen	
MEDIUM NEUTRAL CITATION:	[2019] VSC 260	

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CRIMINAL LAW – Sentence – Appeal against sentencing decision of the President of the Children’s Court – Sentence set aside – Rehearing – Charges of aggravated burglary, assault with intent to commit a sexual offence, theft, possession of a controlled weapon – Early pleas of guilty – Some remorse – High culpability – Deportation – Rehabilitation of significant importance – Community protection – Sentenced to detention in a youth justice centre for a total period of 24 months – Children, Youth and Families Act 2005 ss 360 – 362, 413(3)(b), 424, 426, 430I(2) - Migration Act 1958 s 501.

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APPEARANCES:
	Counsel	Solicitors	
For the Appellant	Ms D. Dempsey	Victoria Legal Aid	
			
For the Respondent 	Ms M. Mahady	Office of Public Prosecutions	

HIS HONOUR:
Introduction
1	This is an appeal by AS (‘the appellant’) against a sentencing decision of the President of the Children’s Court to the Supreme Court of Victoria, under s 424(b) of the Children, Youth and Families Act 2005 (‘CYF Act’).
2	On 7 September 2018, the appellant pleaded guilty before the Children’s Court to one charge of aggravated burglary (intention to steal and person present), one charge of assault with intent to commit a sexual offence, two charges of theft, and one charge of possession of a controlled weapon.
3	On 5 October 2018, the President of the Children’s Court sentenced the appellant to a total effective sentence of two years and six months’ detention in a youth justice centre, with 171 days declared as pre-sentence detention. Pursuant to s 6AAA of the Sentencing Act 1991, Her Honour declared that, had the appellant not pleaded guilty, she would have sentenced him to a period of three years and six months’ detention in a youth justice centre.
4	Pursuant to s 426(1) of the CYF Act, an appeal brought under s 424 must be conducted as a re-hearing. Section 426(2) of the CYF Act provides that the appellate court must set aside the sentence of the Children’s Court and may impose any sentence the Court considers appropriate, and which the Children’s Court could have imposed. I set aside the President’s sentence at the hearing on 13 December 2018.
Background
Circumstances of the offending
5	At approximately 9.30am on 12 April 2018, the appellant entered a premises in St Albans with the intention to steal. At the time he entered, a 19-year-old female (‘the victim’) was asleep in one of the bedrooms. 
6	The appellant had been living at his uncle’s address directly next door to the premises in the week prior to the incident.  The victim and the appellant were not known to each other.
7	The victim shared the house with three other people. On 12 April 2018, she arrived home from work at about 1.00am, locked the front door, and talked with her housemates until about 4.00am. The three other housemates left the premises some time later that morning. When the applicant entered the premises at 9.30am, the victim was alone in the house and asleep in her bedroom.
8	To enter the property, the appellant climbed over the dividing fence from his uncle’s house and went in through a rear unlocked sliding door. He entered the front bedroom of one of the residents and stole an Apple iPhone. He then entered the bedroom of another resident and stole a pair of sunglasses and a bag containing approximately $50 in coins. He also stole a laptop from the lounge area.  These actions constitute the two charges of theft.
9	The appellant then went to the kitchen and took possession of a large cooking knife. He entered the victim’s bedroom, and she woke up to him standing beside her bed with the knife in his hand. The appellant was pointing the knife towards her, and was wearing a black mask that covered the bottom half of his face. 
10	The appellant said to the victim, ‘Get off your clothes now’. The victim replied ‘no’ and moved back towards the wall of the bedroom. The appellant  placed the knife on her left leg and moved it up and down. The victim was on her back and continued to move away, saying, ‘Please, no’.  The appellant rolled her onto her stomach using his hands, reached down to pull her pants up her left leg and grabbed at her top to pull it up. The victim began crying and repeating ‘no, please’. The appellant continued to attempt to take off her clothes. He reached for her from behind and positioned his right arm around her neck so that she was in a headlock. He tightened his grip, putting pressure on and squeezing her neck.
11	The victim struggled against the appellant. He continued squeezing and pushing against her left shoulder. She was very fearful, believing the appellant would rape her and that she may die. The victim is unsure if she lost consciousness, but next found herself alone on the floor, with the appellant no longer in the bedroom. She was dizzy, scared and confused.  
12	These circumstances constitute the charges of aggravated burglary and assault with intent to commit a sexual offence. 
Police investigation
13	At approximately 9.43am, the victim left her bedroom and went to the kitchen. She could not see the appellant, as he had left. She ran outside to seek help, holding her neck and shouting that someone was in her house. The police were called and the victim provided a description of the appellant.
14	The victim was taken to the Sunshine Hospital where she was found to have a number of injuries, including red marks to her neck, and tenderness and discomfort to her left shoulder.
15	The appellant’s uncle assisted police investigations. He provided a statement noting a chair pushed up against the back fence of his house had not been there the night before. While giving the statement, he received a text message from the appellant, which read ‘Uncle don’t tell the cops I stay with you’. 
16	Police located the knife used by the appellant on the bed in the victim’s bedroom. It was approximately 40 centimetres in length.  Fingerprints matching those of the appellant were also found on the outside handle of the rear sliding door at the premises, the handle of the victim’s bedroom door, and on her iPhone. 
Arrest and interview
17	The appellant was arrested on 17 April 2018 and searched by investigators, who located a Swiss Army knife in his pocket. These circumstances are the basis of the charge of possession of a controlled weapon without excuse.
18	The appellant was taken to a police station and formally interviewed. He denied committing the alleged offences, or being in the vicinity of St Albans at the time of the offence. He told police that he had left the area earlier that morning and caught a train to Flinders Street. When questioned about the location of the offending, the applicant said he had ‘ no interest in the house next door’, did not know who lived there and had never attended the address. This account was untrue and clearly contrary to evidence obtained by police, including CCTV footage, mobile telephone records and fingerprints.   
Victim Impact Statements
19	I received four victim impact statements in this matter from the victim and three other residents of the St Albans premises, which I have read and considered.
Personal circumstances 
20	The appellant was born in Samoa. He was 17 years of age at the date of the offending, and is now 18.
21	The appellant’s family moved to New Zealand from Samoa when he was three years old. He has five siblings who, with his mother and father, still live in New Zealand. 
22	He attended primary, intermediate and high school in New Zealand. He was expelled from high school in 2016, before completing Year 10.  During this time, he committed a number of offences and was dealt with in the Manuka Youth Court. He was placed on a supervised disposition which he successfully completed.
23	The appellant moved to Australia in September 2017 to distance himself from a pro-criminal social group upon completion of his supervised order. Upon arrival, he lived with extended family and gained casual employment though an employment agency, working for some time in warehousing and construction.  
24	At the time of the offending, the appellant was unemployed and had moved to live with his uncle. It appears he moved away from his extended family because they had found it difficult to care for him in their circumstances.
25	The appellant has had issues with the abuse of drugs. He smoked marijuana in New Zealand while at high school, which escalated to daily use once he moved to Australia. He has also abused methamphetamine and alcohol. He has been referred to a mental health nurse after an episode of self-harm whilst in detention.
26	After his arrest on 17 April 2018, the appellant was remanded at the Parkville Youth Justice Precinct until he was sentenced in the Children’s Court.  He is now detained at the Malmsbury Youth Justice Centre.
27	While on remand at Parkville, the applicant attended an educational day program through Parkville College. Unfortunately, it is also alleged he has been involved in a number of incidents involving violence against another inmates at Parkville. 
Pre-sentence and YSAS reports
28	At the plea hearing in the Children’s Court, the Court ordered a youth justice pre-sentence report be prepared, as required by s 412(1)(e) of the CYF Act. The report provided by the Department of Justice and Community Safety, authored by Brenton Reid and dated 2 October 2018, recommended that the appellant be sentenced to a period of custody. 
29	While that report was detailed in a number of respects, I was of the opinion it did not sufficiently address aspects of the appellant’s sexual offending. In particular, it did not address his explanation for this offending, or the level of risk of him committing further offending of a sexual nature in the future. 
30	Section 430I(2) of the CYF Act provides that a court hearing an appeal must order a pre-sentence report if it is considering making a youth justice centre order. Accordingly, I ordered a pre-sentence report be provided to the court, with a specific request that it address the appellant’s sexual offending. 
31	That report , authored by Kane Lines and dated 21 February 2019, referred to an earlier report from the Youth Health and Rehabilitation Service (YSAS) dated 4 January 2019. The YSAS report was authored by Julian Nolan, provisional psychologist, under the supervision of Bruce Young, senior psychologist, and was also provided to the court upon subpoena of the appellant. I will discuss aspects of these reports later in these reasons.
Appropriate sentencing disposition
The relevant legislation
32	Section 360(1) of the CYF Act lists the types of sentences that may be imposed upon a child, graduated in level of seriousness. Sub-section (j), the final and most severe in the list, provides that a court may convict the child and order that he be detained in a youth justice centre under s 412 of the CYF Act.
33	Section 361 of the CYF Act provides that a court must not impose any sentence set out in s 360(1), unless satisfied that it is not appropriate to impose a sentence referred to in a preceding paragraph of that section. 
34	Section 362(1) of the CYF Act provides that, in determining which sentence to impose, the Court must, as far as practicable, have regard to:
(a)     	the need to strengthen and preserve the relationship between the child and the child’s family; and 
(b)    	the desirability of allowing the child to live at home; and
(c)     	the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and 
(d)  	the need to minimise the stigma to the child resulting from a court determination; and 
(e)     	the suitability of the sentence to the child; and 
(f)     	if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and 
(g)     	the need to protect the community, or any person, from the violent or other wrongful acts of the child— 
(i)     	in all cases where the sentence is for a Category A serious youth offence or a Category B serious youth offence; or 
(ii)     	in any other case—if it is appropriate to do so. 
(h)     	if appropriate, the need to deter the child from committing offences in remand centres, youth residential centres or youth justice centres.
35	Pursuant to s 413(3)(b) of the CYF Act, if a child is convicted on the same day, or in the same proceeding, of more than one offence, the aggregate term of detention in a youth justice centre which may be required in respect of all of the offences must not exceed four years. This section applies to the appellant’s circumstances.
The appellant’s contentions
36	The appellant submits the punitive and retributive considerations which apply to adult offenders must largely be set aside when sentencing a young offender. 
37	The appellant concedes that an order detaining him in a youth justice centre pursuant to s 412 of the CYF Act is the appropriate sentencing disposition in this matter.  However, it was submitted that a term less than that set by the Children’s Court ought be imposed, having regard to various factors, including that:
•	the appellant was sentenced to a total effective sentence of two years and six months’ detention, in circumstances where the maximum sentence that could be imposed was four years’ detention;
•	he has no prior convictions in relation to the charge of aggravated burglary, no prior convictions involving a weapon and has only ever received a community based disposition in relation to property-based offences;
•	he pleaded guilty at a very early opportunity and has demonstrated some remorse; and
•	by virtue of his age, general deterrence is excluded from consideration, and rehabilitation is the paramount consideration. 
Sentencing factors
Nature and gravity of the offending
38	The appellant concedes his offending was serious, however, he points to a number of matters that may qualify the objective seriousness. The respondent argued the offending was serious and the current incidents represent an escalation in the appellant’s offending, with reference to his criminal history in New Zealand.
39	In respect to the aggravated burglary, it was noted on behalf of the appellant that he acted alone, he did not enter by actually breaking into the premises, that it occurred during day implying he was reckless as to whether a person was present, and although his face was covered, he did not wear gloves.  
40	In all the circumstances I regard the aggravated burglary and associated theft charges as being in the mid-range of seriousness. 
41	As to the assault with intent to commit a sexual offence, it was put on the appellant’s behalf it was spontaneous and opportunistic, that the knife was obtained at the scene, that he acted alone, and he desisted of his own volition.
42	While I accept these factors, I find the gravity of this offending was very serious. Although the appellant may have been reckless as to whether there was an occupant in the house when he entered, and completed the thefts unarmed, he proceeded to arm himself with a knife before entering the victim’s bedroom. 
43	I have already outlined some details of the appellant’s actions against the victim, who was home alone and entitled to feel safe. This offending was terrifying, and she was traumatised by the incident. It involved the use of violence, as well as demands and attempts to remove her clothes by an unknown person in her bedroom. These circumstances are chilling and very disturbing. 
44	Further, the second pre-sentence report provided to the Court states the appellant conceded that ‘he choked her to the point of collapsing’, and she became unconscious. This was not contested between the parties. Thus, the appellant appears to have desisted only once he realised the victim went into some state of collapse. Rendering a victim to a state of unconsciousness during an attack that involved an element of sexual motivation is extremely serious. It is of grave concern that this type of offending was carried out by a 17-year-old boy.
45	As to seriousness of the possession of a controlled weapon, my conclusion is that this offending was towards the lower end of seriousness. The weapon was a pocket knife and it was not suggested that the possession of it was associated with the appellant’s other offending described above.
Guilty plea 
46	The appellant submits that his plea of guilty at an early opportunity avoided the necessity for a contested hearing, had utilitarian benefits, and importantly obviated the need for the victim to give evidence. It is argued that these matters go to his acceptance of responsibility and willingness to facilitate the course of justice. It was further submitted that it demonstrates his remorse.
47	The respondent acknowledged the appellant must be given a discount for the utilitarian benefit of his early plea. 
48	I accept that the appellant’s plea of guilty must be afforded substantial weight in considering the sentence to be imposed. In my opinion the fact that the victim was not put through the ordeal of giving evidence in a contested hearing is a significant mitigating factor.
Remorse
49	In respect to remorse, the appellant points to Mr Reid’s report of 2 October 2018, which notes that he had exhibited a shifting attitude towards his offending and ‘appears to have built some remorse towards the victim’. It was further submitted that the appellant disclosed to Mr Reid that he had had the opportunity to reflect on his offending and its effect on the victim, after hearing her victim impact statement. It was noted that Mr Reid was of the opinion that the appellant was making positive steps towards his rehabilitation.
50	The respondent conceded there is evidence of some remorse, but submitted the appellant failed to take full responsibility for his actions. When recounting the offending to Mr Reid, the appellant made no mention of telling the victim to remove her clothes, that he moved the knife up and down on her leg, and that he tried to remove her clothing.  
51	It is of some concern that Mr Lines’ report of February 2019 notes that the appellant continues to deny any intent to perform a sexual act, and he claims he did not direct the victim to take off her clothes. While I accept some degree or remorse has been demonstrated, it is troubling that the appellant has not yet fully acknowledged responsibility for his offending of a sexual nature. It appears genuine remorse is taking some time to develop.
Deportation
52	The appellant is a non-citizen under the Migration Act 1958. On 9 May 2018, he received a notice of intention to consider cancellation of his visa from the Department of Home Affairs. The appellant has written a letter of appeal in respect to this notice and is awaiting a response from the authorities.  Relevantly, s 501(3A) of the Migration Act 1958, requires the Minister to cancel a visa granted to a person where they do not pass the character test due to having a ‘substantial criminal record’. A person is taken to have substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more, pursuant to s 501(7)(e).
53	It is submitted on behalf of the appellant that although his deportation remains speculative, these circumstances make the burden of detention greater on him. The respondent acknowledges the prospect of deportation is a proper factor to consider in determining the appropriate sentence.
54	I am not in position to make a clear determination of the likelihood of the appellant’s deportation, however I am prepared to accept that the uncertainty of his situation is likely to weigh heavily. I have taken this into account my determination of the appropriate sentence. 
The appellant’s level of culpability
55	The appellant’s level of culpability for his offending at the house and towards the victim is high. The aggravated burglary involved a degree of planning and deliberation, and after a significant period in the house, the appellant armed himself with a large knife. I accept that the offending of a sexual nature was more than likely opportunistic and spontaneous. However, his actions towards the victim were deliberate and terrifying. The rendering of her into an unconscious state involved a significant degree of violence. Fortunately, he desisted from his attack at a time she was likely to have been powerless.  
56	I briefly outlined the appellant’s personal circumstances above. It was submitted on his behalf, that his offending must be viewed in the context of a disadvantaged background. The YSAS report notes the appellant grew up in dysfunctional family circumstances, involving early childhood trauma through exposure to regular and frequent family violence from his father towards his mother. The appellant has vivid recollections of his father assaulting his mother, with he and his siblings watching on feeling powerless to intervene. The report notes the appellant describes his father as a negative and violent role model, and it appears the appellant established sexist and misogynistic attitudes and beliefs towards women.
57	The appellant submits his prior offending of thefts occurred because he was trying to support his family. It was also noted that at the time of the appellant’s current offending, he was angry, frustrated and felt that he had no support, as he was having difficulty gaining employment and his accommodation had become unstable. It was submitted that a background of disadvantage heavily affects a person’s behaviour, especially in the case of a young person yet to develop maturity.
Sentencing purposes
58	It was correctly submitted on behalf of the appellant, and conceded by the respondent, that the principle of general deterrence is excluded from consideration in sentencing a child. In assessing the appropriate sentence to be imposed on a young offender, rehabilitation is a primary objective. Further, s 362(1)(g) of the CYF Act requires a sentencing court to take into account the need to protect the community from the violent or other wrongful acts of a child where appropriate. 
Rehabilitation
59	The appellant submits the appellant has strong prospects of rehabilitation, taking into account his early plea of guilty, his development of insight and empathy, and a degree of willingness to address underlying issues that led to the offending. 
60	The appellant submitted the YSAS report states he demonstrated, with some prompting and support, a degree of insight, empathy, and understanding of the impact his offending had on the victim. Mr Nolan also notes the appellant is open to engaging in psychological intervention to address factors that contributed to his offending. I note it is positive that he is engaging in the Male Adolescent Program for Positive Sexuality (MAPPS) and other programs in the custodial setting.
61	However, according to Mr Nolan and as noted above, the appellant still denies any sexual intent associated with his offending. The report further notes his behaviour showed a degree of intention and threat unrelated to the behaviour of a ‘simple break and enter’.  
62	The respondent argues the appellant’s prospects of rehabilitation must be somewhat guarded in light of his reported behaviour whilst at Parkville Youth Justice Centre and his prior criminal history. Mr Reid’s report noted he has been involved in a number of violent incidents while remanded in custody, some of which have resulted in charges of intentionally and recklessly causing injury. The appellant’s involvement in these incidents is of concern. The respondent also argues that the appellant’s characterisation of his prior New Zealand convictions as ‘property-based’ is incorrect, asserting that assault with intent to rob was a violent offence.
63	There appears to be conflicting indicators as to the appellant’s prospects of rehabilitation. There are a number of rehabilitative programs available to him, and I accept he seems to have expressed some desire to address the issues underlying his behaviour.  While it appears his steps toward rehabilitation are not happening quickly, and I am cautious about his prospects of rehabilitation, I acknowledge there are some positive signs. I am strongly of the opinion that it is in his and the community’s interests that the appellant is provided the opportunity for rehabilitation. 
Protection of the community
64	The two pre-sentence reports identify concerns that the appellant remains a risk to the community. Mr Lines notes in his report that the appellant struggles to control his anger and responds with frustration and abuse if his needs are not met instantly. A series of psychometric assessments conducted by Mr Nolan, recorded the following results:
•	a ‘very high level of anger and aggression’ on the ‘Aggression Questionnaire’, which is a self-report questionnaire that measures the interplay between anger and aggression; 
•	a ‘high risk which concords with his static risk’ on the ‘Risk for Sexual Violence Protocol’, designed to assess the risk of sexual re-offending among adults; and
•	in the high risk category on the ‘STATIC-99’ assessment for predicting sexual recidivism, given his ‘past history of non-sexual violence conviction, his age at offence, and the fact the victim was female and not related to him’.
65	Mr Nolan concluded that the appellant has misogynistic attitudes, poor empathy and the need to gratify his own sexual needs and desires, which enabled him to terrify the victim without appreciating her level of fear and trauma. Referring to this assessment, Mr Lines’ report concludes that the appellant committed offences of a ‘serious, sexual and violent nature’, there was ‘evidence of planning’, and he ‘demonstrated elements of denial and minimisation regarding the sexual offending’. 
66	Given the conclusions that the appellant presents a continuing risk to the community at this point, I regard it as vital that he continues to receive rehabilitative programs whilst remaining in a custodial setting.  
Sentence
67	In forming the appropriate sentence to be imposed, I have taken into account the factors set out in s 362(1) of the CYF Act, the appellant’s prospects of and actions towards rehabilitation, his early plea of guilty and a certain degree of remorse. I also acknowledge that he was 17 years old at the time of his offending, is now 18 years old, and has been in custody for almost 12 months. 
68	Taking all matters into account, I have formed the view that it is appropriate to impose a period of detention in a youth justice centre. The total period of detention he should be required to serve is 24 months.  The sentence I impose in respect to each charge is as follows:
•	Aggravated burglary - person present 	Convicted and detained in a Youth Justice Centre for a period of 6 months, to be served cumulatively on the base sentence
•	Assault - intent to commit a sexual offence	Convicted and detained in a Youth Justice Centre for a period of 18 months (the base sentence)
•	Two charges of theft			Convicted and detained in a Youth Justice Centre for an aggregate period of 3 months, to be served concurrently with the base sentence 
•	Possess controlled weapon without excuse	Convicted and detained in a Youth Justice Centre for a period of 1 month, to be served concurrently with the base sentence.
69	I declare that but for the appellant’s plea of guilty, I would have sentenced him to a total of two years and six months detention in a youth justice centre.
70	I declare that he has served a period of 360 days detention in a youth justice centre, which means he will serve approximately 12 months further in detention.