Aboriginal Legal Service (NSW/ACT)

ALS News

Billie tripped and dropped yarndi but made it home for Christmas

25 Jan 2017

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Young Billie* with an intellectual disability was found guilty (after hearing) of an indecent assault on a person under the age of 16 years.

He was sentenced to a 12 months suspended control order.

Control orders are like a term of imprisonment, but you don’t go to prison. Instead, a control order can order a person to stay in their home for up to 12 hours every day; wear a tracking device; report to someone at a certain time and place; and/or allow themselves to be photographed and fingerprinted.

Once the sentencing was completed, the Magistrate told Billie to go to the court registry to sign his bond papers.

On his way there, Billie tripped and accidentally dropped a small amount of cannabis (0.05 grams) from his hand. Police arrested him. Billie was charged with ‘possess prohibited drug’. He was released, and he went home. 

A few weeks later, Billie didn’t report to the police even though it was one of his bail conditions. This means he breached bail.

The police filed a detention application against Billie. They wanted to change the conditions of his bail.

The Magistrate agreed to the application as Billie had breached both his bail conditions and the conditions of the control order. He had done that when he dropped the cannabis. When Billie committed this offence he breached the conditions of the s 33(1)(g) suspended control order and the s33(1)(e) probation order.  Consequently, it was likely the Magistrate would convert Billie’s suspended control order into a control order to be served by way of full time custody.  If this happened Billie would spend the period of his control order in a Juvenile Detention Centre.

When back in court, Billie entered a guilty plea to possession of a prohibited drug. 

While in custody waiting to be sentenced, Billie talked to his ALS solicitor.

Billie told the solicitor the day he was charged with ‘possess prohibited drug’, he had been with his mum and dad.

Billie told the solicitor everything had been ‘okay’ but then his dad started arguing with his mum about losing his ‘yarndi’ (cannabis). His dad had got so angry he left. But then Billie found his dad’s yarndi.

Billie told the ALS solicitor he’d been holding it in his hand to give back to his dad.

But then he’d tripped and dropped it, and the police had charged him.

When back in court, the ALS solicitor talked to the Court on behalf of Billie.

The solicitor said the Court should not cancel Billie’s suspended control order (or take action on the previous breach of probation orders) as the breach was both (1) trivial and (2) there were good reasons for the failure to comply. 

The ALS solicitor told the court a caution was appropriate in this case. A caution is more serious than a warning.

The solicitor argued that giving Billie a custodial penalty – which means imprisonment in either a prison, home detention, intensive correction order or compulsory drug treatment detention - would be disproportionate to the objective seriousness of the offence.

The solicitor referred the court to Section 6 (e) of the Children (Criminal Proceedings) Act 1987 which states the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.

The solicitor also referred the court to Billie’s considerable ‘disadvantage’ as highlighted through Bugmy/Fernando, his intellectual disability, the extenuating circumstances surrounding the breach, and the fact that Billie had no priors for drug offences.

In both the breach proceedings and sentence, the Court had the benefit of prior knowledge about Billie’s parents, as well as two Juvenile Justice reports emphasising the dysfunctional nature of his family life, his intellectual disability, and the relationship between this and his offending behaviour.  

Billie received a s33(1)(a) caution for the possession of a prohibited drug. This sort of caution is given by the Children’s Court when a child has been found guilty but the court can dismiss the charge with a caution.

The court took no other action for Billie’s breach of the suspended control order or the two probation orders.  As a result, Billie was released from custody and remains on a suspended control order and the probation orders.

Billie was extremely happy that he was able to spend Christmas with his family and attend his uncle’s funeral.

 

* Names have been  changed to protect identities.

 

Image gratefully sourced from http://bit.ly/2jcqID8

 


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