SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v NF (No 1)

Citation: [2016] ACTSC 216

Hearing Date: 7 July 2016

Decision Date: 13 July 2016

Before: Refshauge J

Decision: 1. NF be convicted of aiding and abetting in the importation of a marketable quantity of a border controlled drug (CH 15/864).

2. NF be sentenced to 2 years and 6 months imprisonment to commence today.

3. NF be convicted of aiding and abetting in the importation of a marketable quantity of a border controlled drug (CH 15/865).

4. NF be sentenced to 18 months imprisonment to commence today to be wholly concurrent with the first sentence.

5. NF be convicted of aiding and abetting in the importation of a marketable quantity of a border controlled drug (CH 15/866).

6. NF be sentenced to 18 months imprisonment to commence today to be wholly concurrent with the first sentence.

7. Under s 20 of the Crimes Act 1914 (Cth), NF be released upon giving security in the sum of $50 to be of good behaviour for a period of 3 years and he be subject to supervision by the Director-General or her delegate for the period of 3 years or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of that person.

8. NF be convicted of trafficking in a controlled drug, namely MDMA (CH 15/584).

9. NF be sentenced to 12 months imprisonment to commence on 13/5/2018 to be cumulative as to 4 months on the sentences for the Commonwealth offences.

10. NF be convicted of supplying a drug of dependence, namely MDMA (CH 15/854).

11. NF be sentenced to 12 months imprisonment to commence on 13/9/2018 to be cumulative as to 4 months

on the sentences for trafficking MDMA.

12. NF be convicted of trafficking in a controlled drug, namely mephedrone (CH 15/506).

13. NF be sentenced to 12 months imprisonment to commence on 13/1/2019 to be cumulative as to 4 months on the sentences for supplying MDMA.

14. NF be convicted of trafficking in a controlled drug, namely LSD (CH 15/505).

15. NF be sentenced to 12 months imprisonment to commence on 13/5/2019 to be cumulative as to 4 months on the sentences for trafficking mephedrone.

16. NF be convicted of damaging property (CH 15/853).

17. NF be sentenced to 4 months imprisonment to commence on 13/2/2020 to be cumulative as to 1 month on the sentences for trafficking LSD.

18. NF be convicted of damaging property (CH 15/848).

19. NF be sentenced to 4 months imprisonment to commence on 13/3/2020 to be cumulative as to 1 month on the first sentence for damaging property.

20. NF be convicted of damaging property (CH 15/849).

21. NF be sentenced to 4 months imprisonment to commence on 13/3/2020 to be wholly concurrent on the second sentence for damaging property.

22. NF be convicted of damaging property (CH 15/850).

23. NF be sentenced to 4 months imprisonment to commence on 13/3/2020 to be wholly concurrent on the second sentence for damaging property.

24. NF be convicted of possessing a firearm (CH 15/504).

25. NF be sentenced to 2 months imprisonment to commence on 13/6/2020 to be cumulative as to 1 month on the second sentence for damaging property.

26. NF be convicted of possessing a prohibited weapon (CH 15/503).

27. NF be sentenced to 2 months imprisonment to commence on 13/6/2020 to be wholly concurrent on the sentence for possessing a firearm.

28. NF be convicted of possessing prohibited weapon (CH 15/502).

29. NF be sentenced to 2 months imprisonment to commence on 13/6/2020 to be wholly concurrent on the sentence for

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possessing a firearm.

30. That be a total sentence of 4 years and 1 month to be suspended for 3 years.

31. NF be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 3 years, to begin on 13/5/2018, with a probation condition that he accept the supervision of the Director-General or her delegate for the period of 3 years or such lesser period as the person supervising him considers appropriate.

32. NF be convicted of possessing property unlawfully suspected of being stolen (CH 15/507).

33. NF be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 12 months to be concurrent with the Good Behaviour Order in Order 31.

34. NF be convicted of theft (CH 15/851).

35. NF be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 12 months to be concurrent with the Good Behaviour Order in Order 31.

36. NF be convicted of theft (CH 15/852).

37. NF be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 12 months to be concurrent with the Good Behaviour Order in Order 31.

38. NF be directed to pay the sum of $600 to the Registrar of the Supreme Court within 18 months for payment out to Brett Allen.

39. NF be directed to pay the sum of $495.20 to the Registrar of the Supreme Court within 18 months for payment out to Scott Maher.

40. NF be directed to pay the sum of $819.24 to the Registrar of the Supreme Court within 18 months for payment out to Suvransu Brahma.

41. NF be directed to pay the sum of $2058.23 to the Registrar of the Supreme Court within 2 years for payment out to the Australian Capital Territory.

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND

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PROCEDURE – Judgment and punishment – Sentencing – drug offences – importing border controlled drug – purchasing drugs online – trafficking in controlled drug – supplying drug of dependence– damaging property – possessing firearm – possessing prohibited weapon – possessing property unlawfully suspected of being stolen – theft – suspended sentence – recognizance release order – Good Behaviour Order – reparation order

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentencing – young offender – principles of sentencing young offenders – immaturity – rehabilitation

Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 20, 20C, Pt 1BCrimes (Sentencing) Act 2005 (ACT), ss 7, 33, Ch 8ACrimes (Sentencing Administration) Act 2005 (ACT) Drugs of Dependence Act 1989 (ACT), s 164(2)(a)Firearms Act 1996 (ACT), s 43(1)(a)(iii)Prohibited Weapons Act 1996 (ACT), s 5

Criminal Code 2002 (ACT), ss 321, 324(1), 403(1), 603(7)Criminal Code 1995 (Cth), ss 11.2, 307.2, 307.3

Cases Cited: Azzopardi v The Queen (2011) 35 VR 43 Gordon (1994) 71 A Crim R 459 LB v The Queen [2016] ACTCA 6Muldrock v The Queen (2011) 244 CLR 120 OH v Driessen [2015] ACTSC 148 Oliver (1982) 7 A Crim R 174 Roper v Simmons 543 U.S 551 (2005)R v BB [2013] ACTSC 58 R v CV [2013] ACTCA 22R v M (Unreported, Queensland Supreme Court, Douglas J, 16 October 2014)R v McKenna (1992) 7 WAR 455 R v NE [2015] ACTSC 352R v PM [2009] ACTSC 24 R v Smith [1964] Crim LR 70R v Webb (2004) 149 A Crim R 167

Parties: The Queen (Crown)

NF (Defendant)

Representation: CounselMr T Shepherd (Crown)

Mr J Lawton (Defendant)

SolicitorsCommonwealth Director of Public Prosecutions (Crown)

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Lawyers (Defendant)

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File Numbers: SCC 40 of 2016

SCC 41 of 2016

REFSHAUGE J:

1. In OH v Driessen [2015] ACTSC 148 at [74]-[75], I referred, by reference to decisions of the Supreme Court of the United States of America, to the important obligation that statute and common law requires of sentencers when sentencing young offenders, namely to recognise the immaturity which leads them to commit what are often very serious offences, in circumstances where the Supreme Court held that “their irresponsible conduct is not as morally reprehensible as that of an adult” (Roper v Simmons 543 U.S 551 (2005) at 570) and that “it would be misguided to equate the failings of a minor with those of an adult”.

2. This makes the sentencing of young offenders particularly difficult, for they can easily commit very serious crimes that must be dealt with according to law.

3. Now standing before me for sentence is NF, who has pleaded guilty to seventeen offences committed against Commonwealth and Territory laws. Some of those offences are very serious offences judged by the maximum penalties provided by the legislature which, it has been clearly stated, is an important indicator of the relative seriousness of offences. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].

4. The most serious offence is of aiding and abetting the importation of a marketable quantity of unlawfully imported border controlled drug, namely 41.8 grams of pure 3,4-Methylenedioxymethamphetamine (MDMA). This is an offence against ss 11.2 and 307.2 of the Criminal Code 1995 (Cth), which provides a maximum penalty of imprisonment for 25 years and 5000 penalty units (that is, at the time, a fine of $850,000).

5. NF has also been charged with two offences of aiding and abetting the importation of an unlawfully imported border controlled drug, in one case, 1 gram of lysergic acid diethylamide (LSD) and in the other case, 7 grams of MDMA. These are offences contrary to ss 11.2 and 307.3 of the Criminal Code (Cth), for which the maximum penalty is 10 years imprisonment and 2000 penalty units (that is, at the time, a fine of $340,000).

6. Those are the Commonwealth offences. The Territory offences are as follows:

four offences of trafficking in a controlled drug, in one case LSD, in two cases MDMA and in a third case 4-methylmethcathinone (mephedrone), an offence against s 603(7) of the Criminal Code 2002 (ACT), for which the maximum penalty is 1000 penalty units (that is, at the time, a fine of $150,000) and 10 years imprisonment;

two offences of possessing a prohibited weapon when not authorised, in one case two butterfly knives and in another case two knuckledusters, an offence against s 5 of the Prohibited Weapons Act 1996 (ACT), which provides for a maximum penalty, in each case, of 500 penalty units (that is, at the time, a fine of $75,000) and imprisonment for five years;

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one count of possessing a firearm, namely a black semiautomatic Sim Pro 2340 air pistol, while not authorised to do so, an offence against s 43(1)(a)(iii) of the Firearms Act 1996 (ACT), for which the maximum penalty is imprisonment for five years;

unlawfully possessing property reasonably suspected of being stolen or otherwise unlawfully obtained, in this case a high-visibility vest belonging to the Australian Federal Police, being an offence against s 324(1) of the Criminal Code (ACT), for which the maximum penalty is 50 penalty units (that is, at the time, a maximum fine of $7,500) and imprisonment for six months;

four counts of intentionally causing damage to property, namely various motor vehicles and a bus shelter, in each case an offence against s 403(1) of the Criminal Code (ACT), for which the maximum penalty is 1000 penalty units, (that is, at the time, a fine of $150,000) and imprisonment for 10 years;

an offence of supplying MDMA to another person, an offence under s 164(2)(a) of the Drugs of Dependence Act 1989 (ACT), which attracts a maximum penalty of 500 penalty units (that is, at the time, a fine of $75,000) and imprisonment for five years;

two offences of theft of property with a replacement value of $2000 or less when stolen, an offence contrary to s 321 of the Criminal Code (ACT), which provides for a maximum penalty of 50 penalty units (that is, at the time, a fine of $7,500) and imprisonment for six months;

The Facts

7. So far as the Commonwealth offences are concerned, they involve the assistance provided by NF to NE, who imported drugs. I have set out in R v NE [2015] ACTSC 352 at [10]-[16], the facts relating to NE's offending. NF was the friend referred to in those passages.

8. On 21 January 2015, NF applied for a post office box at Dickson Post Office in his own name and provided his own address, his own mobile phone number and his own email address, together with a photographic identification, being his own ACT Driver Licence.

9. On 20 February 2015, the Australian Customs and Border Protection Service intercepted an international mail item addressed to NE but at the post office box obtained by NF. That item was analysed to be one gram of LSD. LSD is a border controlled drug subject to the prohibition in s 307(3) of the Criminal Code (Cth).

10. On 27 February 2015, police received a further notification from the Australian Custom and Border Protection Service of another international mail item which had been intercepted in Sydney, also addressed to NE, with the delivery address at the post office box obtained by NF.

11. The contents of that item were analysed and shown to be seven grams of MDMA. MDMA is also a border-controlled drug subject to the prohibition in s 307(3) of the Criminal Code (Cth).

12. On 19 May 2015, police executed a search warrant at the home of NE. I have referred to what was located in R v NE at [16]-[18].

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13. On the same day, police executed a search warrant at the home of NF. Before I refer to that, it is necessary to refer to some prior events which constituted the Territory offence of trafficking in mephedrone.

14. In that case, NF contacted another young person, JK, on 11 February 2015, asking him to hold drugs for him as he had just received a shipment and needed to hide them from his mother. This may suggest that, at least by mid-February, NF was receiving imported drugs himself.

15. NF met JK outside the Dickson Post Office and gave him a clear clip seal bag containing a white crystalline substance, which JK put in his schoolbag.

16. Two days later, the police found JK in possession of the bag and he told police that he had received the substance from NF. Police seized the item, which was analysed and confirmed to be 0.072 grams of mephedrone.

17. When police executed the search warrant of the home of NF on 19 May 2015, they found a clip seal bag, inside which was a gel cap capsule containing a white crystalline substance later analysed to be 0.97 grams of MDMA and $180 in Australian currency. This constituted one of the charges of trafficking in a controlled drug.

18. Police also found a semi automatic air pistol for which NF had no licence, permit or other authorisation to possess.

19. They located a Versace Eros box containing a small silver tin, in which was a clip seal bag containing a single white pill, later confirmed by analysis to be 0.097 grams of MDMA, part of a trafficking charge in that substance.

20. They also found a clip seal bag containing three coloured squares of blotting paper, confirmed on analysis to be 0.029 grams of LSD, which also constituted one of the trafficking charges.

21. Also located in the wardrobe in NF's bedroom were two balisong or butterfly flick knifes, the subject of one of the charges of possessing a prohibited weapon, and an Australian Federal Police high-visibility vest, the subject of the charge of unlawful possession.

22. From the windowsill in NF's bedroom police seized two silver knuckledusters, which are the subject of the other charge of prohibited possession.

23. Also seized were items including a wallet containing a number of identification cards in various names and 13 bank deposit slips for three bank accounts with deposits totalling $2170. They also located a black PC tower, a number of mobile phones, some handwritten IOU notes addressed to NF and a set of digital scales. These items were relevant to the charges as they likely constituted paraphernalia associated with drug dealing and associated financial transactions.

24. The mobile phones seized were subject to analysis and showed numerous text, Facebook and other messages to and from NF identifying his involvement in the trafficking in drugs and numerous images of him pictured with drugs.

25. It is not necessary to set out the details of the messages.

26. On 16 May 2015, a young woman, KS, held an unsupervised party at her residence, as her parents had left Canberra for the weekend. Many of the people in attendance at the party were under the age of 18 years.

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27. NF arrived shortly after and produced a Mentos packet from a blue cooler bag that he was carrying. The packet contained capsules of MDMA. He consumed one of the capsules and then gave another to one of the young persons at the party on the basis that the young person would pay for it later. This was one of the charges of trafficking in MDMA.

28. Later, NF, KS and some other people left the residence, and one of the group decided she would like to steal a street sign. NF returned to KS's residence and took the necessary tools to help remove the street sign from the pole to which it was attached. He returned to the intersection where he climbed the pole and used the tools he had taken to remove the street sign. He handed the sign to the member of the group who had asked for it and the group returned to KS's residence, where NF posed for photographs with the street sign. While he was responsible for removing the sign and has accepted responsibility for that, as is appropriate, I accept that it was not his idea and that others were also involved, perhaps encouraging or egging him on.

29. Later, NF, in company with the same group, left the residence and walked down the street towards three vehicles parked in the street. NF used his foot to kick the driver's side driving mirror off three vehicles. In one case the mirror was completely broken, in another case the mirror was pushed forward and the plastic cover broken and in the third the mirror was broken from the vehicle, hanging via the mirror's wiring. These constituted three of the counts of damaging property.

30. NF continued to walk down the street towards a bus shelter. He commented that it would be funny to damage the bus shelter and then asked the other people to pick up rocks from the ground and throw them at the bus shelter while he used his mobile phone to film the damage.

31. Throwing rocks at the bus shelter produced no damage, and NF then produced an implement that he was carrying and struck one of the rear glass panels with it about four or five times. The glass broke into two pieces but remained in the framing. This was one of the counts of damage. NF, while pleading guilty, and so acknowledging his role, asserts that others were also involved. I am prepared to accept that, but that does not reduce his culpability very much.

32. NF returned to the residence where the party had been, but a short time later left the residence again and approached a white Toyota Corolla which was parked in the driveway of one of the houses in the street. The vehicle was unlocked and he opened one of the doors, removing a compact disc from the vehicle. This constituted one of the offences of minor theft. Again, NF did raise a different version with the author of the Pre-Sentence Report, but it was inconsistent with the plea and has not been pressed before me. I shall ignore it.

33. The owner of the vehicle arrived home shortly after and noticed that the doors and boot to his vehicle were open. He went looking for the people responsible and saw a group of people, including NF. He shouted for them to stop but they all dispersed. The owner contacted police and police later arrived, locating NF, who was identified but denied any involvement in the matter.

34. He later texted one of the girls in the group asking her to back him up with a story consistent with his innocence, telling her, "If I get blamed for this my entire life is basically fucked."

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35. There were other text conversations about the incident. Police found on NF's phone the video taken by him of people throwing rocks at the bus shelter and an image of him with his friends and the stolen street sign. Other members of the group provided statements to police and video of the incidents, including the damaging of the bus shelter by NF.

36. The owners of the vehicles whose mirrors had been smashed provided costs for the repair of the vehicle, being $495.20, $819.24 and $103.43. One of the owners indicated an excess fee of $600 for the repairs of the vehicle. Those sums are sought in compensation.

The Offences

37. The drug offences are serious offences. This is clear from the maximum penalties that have been legislated by the Parliament. See Oliver (1982) 7 A Crim R 174 at 176.

38. There is no doubt that drug abuse causes serious problems in our community. Not only does it have a devastating effect on the lives of those addicted, but they tend to prey on the community, particularly as the addiction takes hold, and they face difficulties in finding the funds to feed their habit, targeting other members of the community and, in particular, their possessions and property.

39. This is not only through dishonesty offences, such as burglary and theft, or more serious offences, but also through trafficking, whereby they expand the number of addicts in order to obtain money for their own purposes.

40. In this case, it was suggested that the trafficking was not of great seriousness. In the first place, so far as the Commonwealth offences are concerned, NF only assisted NE to import the drugs. He did it in a most unsophisticated way by using his own contact details so that he could be readily identified.

41. In addition, it was suggested that there was only one occasion of trafficking in each case of the other Territory offences. Nevertheless the text messages and the deposit slips show that this was not likely to be an isolated incident and it was likely that NF did conduct some more serious trafficking business. It is, however, important that he be sentenced only for the offences with which he is charged, although the circumstances of that offending are relevant.

42. I had some oral evidence from NF's mother, who explained the context for the prohibited weapons. She indicated that she had herself given one of the knives to her son. It was a knife that had been given to her many years ago. Clearly, she was unaware that it was a prohibited weapon. I did not have details about the circumstances of the other knives.

43. As to the knuckledusters, she indicated that they were, in fact, a model of the symbol of a sports team. One of the knuckle dusters could not be used as a weapon. NF had, in fact, made the knuckle dusters himself.

44. As for the gun, no ammunition was found for the gun and there was no suggestion that NF had ever used it himself.

45. Nevertheless, it is clear from recent incidents around the world that weapons can be used to commit serious crimes and the illegal possession of them is a serious offence.

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46. The damage property offences are troubling. They constitute pure vandalism, which is, of course, unacceptable in our community. NF's mother was more shocked and surprised about these offences because NF is very interested in cars and understands their value and the value people place on them.

47. The vandalism was senseless and inexplicable. It was out of character and inconsistent with his asserted concern for motor vehicles.

48. While that suggests, perhaps, that NF is less likely to reoffend, it does not reduce, by much, the seriousness of the offences.

Subjective Circumstances

49. I had a most comprehensive Pre-Sentence Report, a report of the Court Alcohol and Drug Assessment Service (CADAS) and NF's mother gave oral testimony. From this evidence I can make the following findings.

50. NF is now 17 years old; he was 16 at the time of the offending.

51. He lives with his parents and his younger sister.

52. It appears he has a supportive home environment with good relationships with all members of his family. Indeed, the author of the Pre-Sentence Report described his connections with his family to be "positive, strong and an important aspect of his life".

53. At home, he experienced adequate and appropriate rules and boundaries which he viewed as fair and recognised that he should respect and adhere to them. Generally, he followed those rules and boundaries and there was no need for his parents to enforce them. This attitude was confirmed by his mother.

54. It was, accordingly, a huge shock for his parents to find out the fact of his offending and then the extent and seriousness of it. In evidence, it was clearly difficult for NF’s mother to explain how her son came to be involved in this criminal activity.

55. NF attended primary school in Canberra, changing schools at about Year 3 or 4. He is obviously a highly intelligent young man and found the school environment boring because he was not challenged academically. Indeed, he could solve the Rubik's Cube within 16 seconds and was spelling at the level of a Year 10 student when he was in Year 4. This led to him being frustrated at school.

56. NF suffered some bullying also at school because of his red hair, demeanour and intelligence. Nevertheless, he was able to form friendships and engage in activities with his peers.

57. He was successful at high school in achieving his Year 10 certificate. He had some issues initially with other male students and was involved in a few incidents but, after a period of time, he and the students were able to work out their differences and became good friends.

58. Again, he found that he was not academically challenged and, although capable of achieving well academically, he started not applying himself, therefore not getting the results that could be expected. He did have some trouble in high school, although it was said to be a result of "miscommunication" issues with his teachers. His parents say that NF is a very "literal person" and, as a result, would often question or seek out the reasons for a teacher's actions and decisions, especially in relation to himself, and this could come across badly, although that was obviously not his intention.

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59. In 2015, he enrolled at a local college, but did not enjoy his time there. Some of this appeared to be behavioural and some of it seemed to flow from him being charged with these offences.

60. As a result, his attendance diminished and he told his parents that he no longer wished to attend the college. He wished to change schools.

61. Ultimately, he did change college and commenced afresh at a new college in 2016. In the interim he was in paid employment until the Christmas holidays.

62. He then recommenced Year 11 at the new college and the experiences there have been generally positive. While he is doing the work required, he admitted to the author of the Pre-Sentence Report that he could apply himself more. He intends to obtain his Year 12 certificate but will not continue with further studies, believing that he should move into vocational education, probably in the electrical trades.

63. NF has also worked as a pizza delivery driver, but ceased employment because the costs of petrol almost exceeded what he was earning.

64. Accordingly, he is not in paid employment at the moment and has no independent form of income, although if he does enter, as he intends, the Australian School Based Apprenticeship Scheme as an electrician, he would receive some income.

65. Both his parents are engaged in full-time employment and, while they had some financial stringencies during an earlier period, they are now earning an adequate income for the family.

66. NF has not reported any medical or psychiatric history.

67. NF denies any alcoholic or substance misuse issues. The CADAS report states that he advised that he rarely consumes alcohol, because, when he did, he thought it was "gross" and did not like it.

68. He has smoked cannabis twice but it made him feel uncomfortable.

69. He denies any other substance abuse.

70. There is a slight inconsistency between those reports and the Statement of Facts, which suggests that when he arrived at the party on 16 May 2015 NF took one of the capsules of MDMA. I cannot resolve that inconsistency but, in the circumstances, am prepared to accept that he does not have, at this time, a drug or alcohol problem.

71. While NF has a lot of associates, he has only one real friend. At the time of offending he admits that his peer associations were not positive and he has indicated that he is no longer involved with those peers, nor has he any intention to associate with them in the future.

72. There is a suggestion that NF was influenced by NE, who undoubtedly was the moving party in the original enterprise of importing drugs through the internet.

73. It appears, however, that NF "branched out on his own" and became involved with the distribution of drugs on his own account.

74. NF enjoys a range of indoor and outdoor activities, including climbing, skating and he has a particular interest in making, fixing and working on things, particularly his car.

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75. NF experienced some bullying while growing up. As well as his hair, demeanour and intelligence, which I mentioned above, it has been associated with personal tics which he exhibits when he feels nervous and uncomfortable.

76. The Pre-Sentence Report describes NF as displaying "an ability to sympathise, be remorseful and overall [viewing] different levels of society as fair and equitable".

77. NF has never been in serious trouble with the law and has never been charged with any other crimes or been subject to periods of probation or custody. He is entitled to the benefit of that circumstance.

78. NF has, however, been subject to strict bail supervision and has complied satisfactorily. There have been no reported concerns and he has engaged in interviews as required for the preparation of the Pre-Sentence Report, interacting co-operatively, respectfully and in a positive manner.

79. During the period of bail supervision, his bail conditions were made more strict. He was made subject to a curfew which, for a 17-year-old young man, was quite restrictive. Nevertheless, he complied with it and has not been subject to any breach. There is relevance in sentencing to being subject to and complying with strict bail conditions. See R v Webb (2004) 149 A Crim R 167 at 170; [18]. I will take this into account.

80. At his current college, NF has been subject to two disciplinary matters about three weeks apart. In the first case he was reported to have performed a burnout in the front car park of the college, then accused the principal of lying about the investigation and then reacted with obscenities when the accusation was seen as preposterous.

81. In a second incident, he declined to move some sporting equipment as directed and behaved badly. When he was told to leave the class he swore at the teacher and was suspended for two days.

82. There is a sense that he can behave in a rather brattish fashion.

83. NF was subject to the Youth Level of Service/Case Management Inventory. This is an evidence based risk assessment tool designed to measure a range of static and dynamic factors known to be related to recidivism.

84. On that test the following results were reported. The result was low for the level of criminogenic need in the area of family circumstances and parenting. This is a strength for NF and may positively affect and reduce the likelihood of a risk of re-offending.

85. His criminogenic need in regard to education and employment showed a moderate result which reflects some disruption in the classroom and on school property, together with his low achievement.

86. These can be addressed if he is willing to do so, and he should.

87. In relation to peer associations, he was assessed as at a low level of risk and he was also assessed as at a low level of risk with regard to involvement in leisure and recreational activities.

88. In relation to his level of risk with regard to personality and behaviour, he was assessed as at a moderate risk.

89. As far as his attitudes and orientation is concerned he was assessed as at a low risk.

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90. With regard to his prior and current offences and criminal disposition he was assessed as at a low risk.

91. Accordingly, his current assessment overall of the likelihood of re-offending places him in a low risk category for general recidivism.

92. The author of the Pre-Sentence Report spoke to NF in some detail about the offending behaviour.

93. As I have noted already, while NF had some different points of view about some of the facts, he did not wish to challenge any of them in these proceedings and accepted responsibility for his actions.

94. He had a rather literal, but perhaps understandable, perspective on the consequences of his actions and felt that, for example, drug users to whom he supplied drugs should be personally responsible for their own actions.

95. He did, himself, take ownership of his own actions and acknowledged that his offending was inappropriate and he certainly wishes he had not committed any of the offences. When asked if he felt he might do such things again, he stated, "I probably wouldn't do it again" and then commented, "No, I wouldn't do it at all." He expressed no intention to hurt people and showed a level of inexperience in failing to understand that, while use of illicit substances might produce no immediate harm, a longer term perspective (something that perhaps young people have difficulty in appreciating) could show much more serious consequences.

96. He explained that one of the knives was an old one that his mother had when growing up (which was confirmed by his mother in evidence as noted above (at [42]), and the other was from a mate. He reported making the knuckledusters himself when he was bored. He denied that there was any purpose to use these weapons as such and that they were purely for display.

97. The author of the Pre-Sentence Report suggested that NF displayed a level of remorse for his involvement as well as an understanding of the impact that these offences have had on his family. He was able to identify impacts on the victims, particularly in relation to the damage property offences, but found more difficulty in identifying the impacts of the drug-related offences, perhaps for the reasons I have indicated above. He acknowledged that what he did was wrong and has taken ownership of the consequences of his behaviour.

98. The assessment conducted by the Pre-Sentence Report author showed that there were no areas for high need in addressing his behaviour and the areas of moderate need were in the areas of education and employment and personality and behaviour. The latter, perhaps, indicating that some level of further supervision would be desirable, and that was recommended in the Pre-Sentence Report.

99. In all it seems to me that NF is a good candidate for rehabilitation and that it is highly likely that this extremely serious, but nevertheless horrendous, period in his life is a circumstance that he could use if he applies his intelligence to making a positive contribution to the community and staying out of the criminal courts in the future.

Consideration

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100. The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, there are elements of general deterrence which are required, although for a young person that is less significant.

101. The purposes of sentencing for the Commonwealth offences are also set out in the Crimes Act 1914 (Cth). They are generally consistent with those in the Crimes (Sentencing) Act.

102. Some element of specific deterrence may be required in this case to ensure NF’s continued compliance with pro-social activity within the community, although the circumstances set out in the Pre-Sentence Report do not suggest that the experience that NF has now had in the criminal courts will be lost on him. He is unlikely to come before the criminal courts again.

103. There is, under the Crimes (Sentencing) Act, a specific regime for the sentencing of young people set out in Ch 8A of that Act. In R v BB [2013] ACTSC 58 at [72], I summarised the principles relating to the sentencing of young offenders as follows:

(1) Considerations of general deterrence and principles of retribution are, in most cases, of less significance when sentencing a young person than when sentencing an adult for the same offence.

(2) Young people, in recognition of their capacity to reform and mould their character to conform with society's norms, require considerable emphasis to be placed on the need to provide an opportunity for rehabilitation.

(3) The law recognises that the cognitive, emotional and psychological immaturity of a young person contributes to their breaching of the law and so allowance is made for youth and not just their biological age.

(4) The weight given to such youth does not vary depending on the seriousness of the offence.

(5) Considerations of general deterrence and retribution cannot be completely ignored as there is a considerable public interest in deterring criminal conduct.

(6) The emphasis on rehabilitation rather than general deterrence or retribution may be moderated where a young offender has behaved in the way adults might behave, thus considering matters such as use of weapons, pre-meditation, prior history, and the nature and circumstances of the offence.

(7) The weight given to these considerations diminishes as the offender's age approaches the age of maturity.

104. These last two principles, however, must be modified. In LB v The Queen [2016] ACTCA 6 at [24], the Court of Appeal held that neither of these principles "sit comfortably with the statutory regime in Ch 8A of the Crimes (Sentencing) Act." That Act focuses attention "on individualised justice and considerations such as the young offender's maturity and state of development". I accept that this is appropriate.

105. As was commented in Azzopardi v The Queen (2011) 35 VR 43 at 53; [34], young offenders, being immature, are "more prone to ill-considered or rash decisions". Thus, they "may lack the degree of insight, judgment and self-control that is possessed by an adult". Further, they "may not fully appreciate the nature, seriousness and consequences of their criminal conduct".

106. As further commented, courts recognised the potential for young offenders to be redeemed and rehabilitated. As the English Court of Criminal Appeal commented in R v Smith [1964] Crim LR 70:

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...in the case of a young offender there can be rarely any conflict between his interests and the public’s. The public have no greater interest than that he should become a good citizen. The court would take a risk and allow his release.

107. I note further that it was pointed out in Gordon (1994) 71 A Crim R 459 at 469, that immaturity has an important role to play, even with an offender who is over the age of 18, though there still remains a difference between the relevant regimes for an adult and a young offender, as to which, see R v McKenna (1992) 7 WAR 455 at 468.

108. As I pointed out in R v PM [2009] ACTSC 24 at [54], the court must consider rehabilitation as a purpose of sentencing for young offenders. I note that the approach taken in that case to sentencing the young offender was approved by the Court of Appeal in R v CV [2013] ACTCA 22.

109. I take into account also the plea of guilty entered by NF. It was entered in the Magistrates Court. I take it into account both as an early plea and because of the support it gives to the evidence of remorse and acceptance of responsibility. As a result, it entitles him to a significant discount on sentence.

110. I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act. I also have regard to the matters set out in s 16A of the Crimes Act 1914 (Cth). So far as I know them they are set out in these reasons.

111. The submissions in relation to the Commonwealth offences and the Territory offences were somewhat different. Of course, they involved different offences with some differences in seriousness, although the most serious offence was that of aiding and abetting the importation of a marketable quantity of an unlawfully imported border controlled drug.

112. The submission in relation to the Commonwealth offences was that I should proceed to sentence NF in accordance with s 20C of the Crimes Act (Cth), which provides for the sentencing of children and young persons. It provides that a person such as NF may be dealt with as if the offences with which he had been charged had been Territory offences. That would require him to be sentenced in accordance with Ch 8A of the Crimes (Sentencing) Act 2005 (ACT). It was submitted, however, that, while I should proceed in that way, the actual sentences to be imposed should be those available under Commonwealth law under Pt 1B of the Crimes Act due to the practical difficulty that would limit the enforcement mechanisms available to the court in respect of the Commonwealth offences. I am prepared to proceed in the way recommended by the Commonwealth in both cases.

113. Ultimately, it was submitted, in relation to the Commonwealth offences, that a period of imprisonment is the only appropriate sentence because of the significant criminality, but no submissions were made as to how the sentence of imprisonment was to be served.

114. In relation to the Territory offences, however, it was submitted that a sentence of imprisonment was the only appropriate sentence which would adequately reflect the gravamen of the offending, but it appears that the submission was that only full-time custody would be adequate in the circumstances.

115. In relation to both sets of offences, I was provided with comparable decisions. Those in relation to the Commonwealth offences included R v NE, the matter involving NE, as well as the principal decision on which I relied in that case, namely R v M (Unreported,

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Queensland Supreme Court, Douglas J, 16 October 2014). These were helpful decisions.

116. In relation to the Territory offences, I was provided with a number of cases but only dealing with trafficking in drugs, none in relation to any of the other offences. They were not particularly helpful because, principally, all the offenders were adults, although one was only 21 years old. This does not assist with the particular regime under Ch 8A of the Crimes (Sentencing) Act.

117. I have regard to the seriousness of the offences. In my view, so far as the Commonwealth offences are concerned, NF is less culpable than NE. Although he participated in the importation, it was really only to allow his address to be used, and he did it in a most unsophisticated way, where his identity could easily be known.

118. It did appear to me, although I do not find it beyond reasonable doubt as an aggravating offence, that this probably led him on to the trafficking which is the subject of the other offences.

119. I also take into account that he has no prior convictions of any kind and is of reasonably good character. He has problems at school, as I have indicated, but they are perhaps those that might be expected by someone who has been bullied and has learnt to respond. Because of his immaturity, that level of response had not yet been restrained in a way that is appropriate.

120. As there are multiple sentences to be imposed, I must consider the interaction between them carefully.

121. I have considered the length of each of the sentences to ensure that, when there are overlapping common elements between any of the offences, NF is not punished twice.

122. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. This, in general terms, is true of the earlier Commonwealth offences and, to some extent, of the later offences of the Territory.

123. I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of NF's goals. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.

124. As is clear from this, I have formed the view that, having regard to the seriousness of the offences, the only sentence is a sentence of imprisonment, but I do not require NF to serve any period in full-time custody. In my view, his immaturity, his obvious prospects of reform and rehabilitation do not make a period of full-time custody appropriate.

125. NF, please stand.

1. I convict you of aiding and abetting in the importation of a marketable quantity of a border-controlled drug.

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2. I sentence you to two years and six months imprisonment to commence today. Had you not pleaded guilty, I would have sentenced you to three years and nine months imprisonment.

3. I convict you of aiding and abetting in the importation of a border controlled drug, namely, MDMA.

4. I sentence you to 18 months imprisonment, to commence today, to be wholly concurrent with the first sentence. Had you not pleaded guilty, I would have sentenced you to two years and three months imprisonment.

5. I convict you of aiding and abetting in the importation of a border controlled drug, namely, LSD.

6. I sentence you to 18 months imprisonment, to commence today. That is to be wholly concurrent on the second sentence. Had you not pleaded guilty, I would have sentenced you to two years and three months imprisonment.

7. I order, under s 20 of the Crimes Act 1914 (Cth) that you be released today upon giving security in the sum of $50 to be of good behaviour for a period of three years and that you be subject to supervision by the Director-General of the Directorate of Justice and Community Safe or her delegate for the period of three years or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of that person.

8. I convict you of trafficking in a controlled substance, namely, MDMA.

9. I sentence you to 12 months imprisonment, to commence on 13 May 2018, to be cumulative as to four months on the Commonwealth sentences. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.

10. I convict you of supplying a drug of dependence, namely MDMA.

11. I sentence you to 12 months imprisonment, to commence on 13 September 2018, to be cumulative as to four months on the first sentence for trafficking in MDMA. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.

12. I convict you of trafficking in a controlled drug, namely Mephedrone.

13. I sentence you to 12 months imprisonment, to commence on 13 January 2019, to be cumulative to as to four months on the sentence for supplying MDMA.

14. I convict you of trafficking in a controlled drug, namely LSD.

15. I sentence you to 12 months imprisonment, to commence on 13 May 2019, to be cumulative as to four months on the sentence for trafficking in Mephedrone. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.

16. I convict you of damaging property, being a bus shelter.

17. I sentence you to four months imprisonment, to commence on 13 February 2020, to be cumulative as to one month on the sentence for trafficking in LSD. Had you not pleaded guilty, I would have sentenced you to six months imprisonment.

18. I convict you of damaging property, namely, a motor vehicle.

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19. I sentence you to four months imprisonment, to commence on 13 March 2020, to be cumulative as to one month on the sentence for damaging property. Had you not pleaded guilty, I would have sentenced you to six months imprisonment.

20. I convict you of the second count of damaging a motor vehicle.

21. I sentence you to four months imprisonment, to commence on 13 March 2020, to be wholly concurrent with the second sentence of damaging property.

22. I convict you of damaging property, being a motor vehicle.

23. I sentence you to four months imprisonment, to commence on 13 March 2020, to be wholly concurrent on the sentence for the third count of damaging property.

24. I convict you of possessing a firearm, namely, a pistol.

25. I sentence you to two months imprisonment, to commence on 13 June 2020, to be cumulative as to one month on the second charge of damaging property.

26. I convict you of possessing prohibited weapons, namely, the knuckledusters.

27. I sentence you to two months imprisonment, to commence on 13 June 2020, to be wholly concurrent on the charge of possessing the firearm. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.

28. I convict you of possession of prohibited weapons, namely, the two knives.

29. I sentence you to two months imprisonment, to commence on 13 June 2020, to be wholly concurrent with the sentence for possessing a firearm. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.

30. That is a total of 27 months imprisonment, although together with the concurrency it is a total of four years and one month imprisonment.

31. I suspend the Territory offences today for a period of three years. I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of three years, with a probation condition that you accept supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising you for the period of three years or such lesser period as the person supervising you considers appropriate.

32. I convict you of the charge of possessing property unlawfully suspected of being stolen, namely, the CD.

33. I require you to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months to be concurrent with the Good Behaviour Order in Order 31.

34. I convict you of unlawful possession of the high visibility vest.

35. I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months to be concurrent with the Good Behaviour Order in Order 31.

36. I convict you of the theft of the street sign.

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37. I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months to be concurrent with the Good Behaviour Order in Order 31.

38. I require you to pay the sum of $600 to the Registrar of the Supreme Court within 18 months for payment out to Brett Allen.

39. I require you to pay the sum of $495.20 to the Registrar of the Supreme Court within 18 months for payment out to Scott Maher.

40. I require you to pay the sum of $819.24 to the Registrar of the Supreme Court within 18 months for payment out to Suvransu Brahma.

41. I require you to pay the sum of $2058.23 to the Registrar of the Supreme Court within 2 years for payment out to the Australian Capital Territory.

[His Honour then spoke directly to NF]

126. I am sorry NF, I apologise that that is a little complicated and that I have struggled a bit because it was difficult to get all these in order. In effect, I have said that the total criminality that you committed in these offences would ordinarily require you to spend four years and one month in prison. In the circumstances that I have outlined and explained, I do not require you to serve any time in prison, unless you breach the undertakings that I will require you to give.

127. Those undertakings principally require you to commit no further offences punishable by imprisonment within the next three years. If you do so, you can be brought back before me and I can deal with you for the offending, and that includes sending you to gaol, if that is appropriate.

128. There will also be a supervision provision. That supervision provision requires that you be under supervision and that you report to a probation officer, a little like the person who prepared the Pre-Sentence Report. That obligation has two aspects to it. One is a degree of control. The community and the Court, on behalf of the community, has an obligation to see that it can put in place structures that will prevent you from re-offending.

129. I think your family will be the biggest feature in that, but there is also the need for someone official in the community to have some control, to give you some directions about things that will help you; treatment or counselling if there are difficulties, assistance with getting jobs, that kind of thing.

130. There is a second aspect, and that is that that person is someone independent. If things go wrong, there is someone that you can speak to about the difficulties you are having. They are usually people with great resources who are able to point you in a direction whereby you can get some assistance, professional assistance, if that is necessary, community assistance, if that is necessary, to assist you in dealing with those difficulties. So they are two important things.

131. This was a very serious period of offending, and although I can understand that, perhaps through your eyes, it was not serious, it is easy when you get online and you get drugs through the internet, or your mates do, and you hand out drugs, because I understand that there are other people in our community who do that and many of them do not get caught; that does not detract from the seriousness of the offending.

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132. The vandalism is something that you ought to ponder over. You are a person who likes cars. Even if it was not you who did all the damage, you have acknowledged that you did so and you have to suffer the consequences of that. Insofar as that is concerned, you should think carefully about your circumstances, why you did that and, in particular, how you can stop doing that again. You said if you had gone home from the party that would have solved all the problems. Well, as you grow up you do realise that sometimes the best thing to do is not to hang around, even though that sounds fun and even though your mates and your friends and perhaps even some of the people that you might be romantically interested in are there. Go home before things get out of hand and you get stupid.

133. If you are using drugs, and I am uncertain about that, it appears that you have admitted, by acknowledging the Statement of Facts, that you did take some MDMA, then all I can say to you is you can enjoy life without using drugs. Some people can use drugs and get away with it and live a perfectly normal life. The majority of people find that it does affect them and many of them then end up in the criminal courts and many of them end up in prison.

134. Whether drugs are right or wrong, and you will hear all sorts of arguments about that and legalisation, the fact is you are living in this community and I tell you that from experience I see day in and day out people whose lives, and the lives of their families and the lives of many other people with whom they interact, get completely destroyed. Not everyone; I do not see everyone, I understand that, but you cannot pick and choose who is going to be in that position. So all I can say is you should not be part of the process, the regime, where people get into that situation, much less get into that situation yourself.

135. I hope this is a learning experience. You are probably bored by this learning experience and frustrated by it and I can understand that. Do not take it lightly. It is serious. Four years and one month imprisonment is a long period of time for a young man, and that is what faces you if you do not take stock of where you are and put your face strongly and resolutely towards putting this behind you, getting on with an apprenticeship, if that is what you want. Goodness knows, we need good electricians in our community, and we can do with someone with your smarts, if you are as good at the Rubik's Cube as they say.

136. This is your opportunity. You usually only get one opportunity such as this. Take it with both hands, get on with your life and put criminality well behind you. I am sorry that sounds like a sermon, but I do need to take the opportunity to make you understand completely what you face and what opportunity you now have.

I certify that the preceding one hundred and thirty-six [136] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 17 August 2016

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