DPP v Swain (a pseudonym) (No.2) [2025] ACTSC 209

• Sentencing of 17 year old Aboriginal offender for serious driving and robbery offences after participation in sentencing conversation in Pilot Circle Sentencing List – profoundly disadvantaged and traumatic childhood – removed from parents at 14 months – foster care involved abuse, separation from siblings and instability – no meaningful connection with any adult charged with his care – let down by system – history of contact with juvenile justice system – Bugmy considerations given full weight: at [167]-[209]
• Psychologist report made detailed treatment recommendations including cultural supports and cultural healing plan – emphasis on facilitating offender’s cultural connectivity, identity and connectedness to culture – positive prospects of rehabilitation: at [210]-[226]
• Noted offender at risk of institutionalisation given his background of institutional care and evidence of short time in adult correctional centre – accelerated impact of youth detention as a source of institutionalisation compared to adults – “children are less able to tolerate highly constrained environments without distorting their developmental trajectory” (see Institutionalisation, Dr Robyn Shields AM and Dr Andrew, 2024): at [218]-[219]
• Sentencing Judge found:

[222] … The risk of institutionalisation has the capacity to drastically impede his rehabilitative potential. By virtue of his youth, Pedro has the capacity to be guided toward positive change notwithstanding some of the negative patterns he has thus far established: see Azzopardi v R [2011] VSCA 372; 35 VR 43 and R v Forster-Jones (No 2) [2019] ACTSC 286. The effect on Pedro of incarceration in an adult prison at this stage of his life would undoubtedly hinder his capacity for rehabilitation. This includes the risk that the environment, as well as the anti-social attitudes it fuels, will become normalised.

[223] Rehabilitation is a pursuit in both Pedro and the community’s interests, it being the most durable guarantor of community protection: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].