HKSAR v. James Peter Gurnell

DCCC 759/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 759 OF 2013

----------------------

---------------------

Reasons for Sentence

---------------------

1.The 18-year-old defendant in this case pleaded guilty to two charges of burglary. A third charge was ordered to remain on the court file. The 1st charge related to theft by the defendant of $2,470 from a ticket booth at Central Pier 5 in Central on 5 May 2013. Charge 3 related to an attempt by the defendant to commit a similar offence on 3 June 2013.

The Facts

2.The defendant’s commission of the first offence did not come to light until he was arrested for Charge 3.  At about 1.36 am on 3 June 2013, the defendant was spotted by staff of the New World Ferry stretching his arm through the ticket booth towards the door of the booth. The defendant was also observed trying to open the door of the booth.  The defendant was observed going between the window and the door of the booth on a few occasions.

3.The staff alerted the police.  A police officer arrived, noticed the defendant stretching his arm through the booth window, and shouted out to him.  The defendant ran away and was stopped by the police officer a short distance away.

4.The defendant admitted that he was trying to steal from the booth and that he had stolen money from the booth on a previous occasion.  He said that he was under the influence of alcohol.

5.Subsequent investigation revealed that $2,470 had been stolen from the booth on 5 May.  Staff of the ferry said that the drawer of the booth from which the money was stolen contained $6,000 to $7,000.  CCTV footage showed the defendant opening the door of the booth and stealing from the drawer.

Mitigation

Personal Circumstances

6.The defendant has a clear record.  According to the probation officer who prepared the suitability report for community service order, she stated that the defendant was born as the sole child of his parents and was brought up in a single family in England.  His parents had separated since he was toddler.  His father, an Australian, had come to Hong Kong to start a business of producing anti-theft backpacks, travel luggage, in 1998, whilst his mother, a British lady, had stayed in England to bring the accused up to 13 years old.  They then moved to Perth, Australia.

7.It was revealed the accused, having been assessed to have Attention Deficiency and Hyperactivity Disorder since his childhood, had manifested behavioural, learning and social problems, being impulsive, overactive, inattentive, and easily distracted in class or in group situations.  He had received the assistance of teachers, clinical psychologists and psychiatrists.  It appears that medication has significantly improved his performance since he was in England, but his condition fluctuated, and he was not quite tolerated and accepted by the schools.

8.After his completion of Grade 7, his mother then took him to Australia in 2008, cherishing the hope to help him start anew. However, he and his mother still faced similar struggles once he had experienced transferring to school in Australia.  Meanwhile, he maintained receiving treatment and therapies of a psychiatrist and psychologist.  The effects were reportedly positive, and he became more sociable, widely enlarged his social circle, actively engaged in sports he liked, and acquired more satisfactory academic performance.

9.The accused was accepted into university, Faculty of Arts, after completion of Grade 12 in 2011/12, but he chose to take a year off prior to university, which was against the advice of his mother and even some of the professionals helping him.  However, he, after promising his mother that he would continue his studies after a year, was allowed to come to Hong Kong in March 2013 to join his father, who allegedly had usually met him three to four times yearly in the past and come to Hong Kong for a couple of times for vacation.

10.His father, having a cohabitant presently, had often been busily engaged in work and needed to go on business trips from time to time, which might have affected his supervision of his son.  However, his father intended to train his independence and set a schedule for him as a sort of budgeting training.  He was only given limited money to spend.  Whilst staying in Hong Kong, socially he mainly got along with children of his father’s friends.  In his leisure he attended a Thai boxing training centre, and drank beer with his friends sometimes.  He also smoked, consuming a packet every four days, but denied having any drug abuse history.

11.After being arrested for the indexed offence, his father managed to find him work as a chef assistant in a restaurant run by his father’s friends from June to August 2013, earning $7,800 per month.  He then worked as a warehouse assistant in his father’s company from August to the present, namely Pack Safe Smart Travel Gear, earning $8,100 per month.

12.To train his discipline, his father advised him having a tight schedule and budgeting.  To enhance his sense of responsibility, he also needed to pay rental of $1,500 to his father.  During the bail period, the defendant reportedly resumed a healthy lifestyle, worked from dawn till dusk, and went to the gymnasium before returning home at Lamma Island.  He also took up some voluntary work.

13.His mother, as a single parent, had struggled a lot and put her strenuous and unceasing efforts to help the accused to achieve better development in the past years.  Despite her busy work schedule as an occupational health and safety manager in Australia, she travelled to Hong Kong repeatedly to support the defendant, showing much care and concern about him. She commented that the defendant was a kind-hearted and sociable youngster with a strong character to prove himself due to his lack in confidence, but was not in the least a malicious person.  She asks for a non-custodial sentence.

14.His father said that the accused, prior to coming to Hong Kong, had got very satisfactory academic results in his final school year, showing his good learning potential.  His father commented that during his bail period, he coped well with the work despite lacking experience, and he presently led a regulated living with almost daily gymnastic training.  In his leisure time the accused usually surfed the internet and listened to music, showing no traits of misbehaviour or undesirable association.  His father kept on maintaining the independent discipline and budgeting training on him, and he seemed to be able to keep abreast with his father’s requirements.  His father was convinced that he had learnt a bitter lesson and become more mature.

15.The report stated that due to the uncertain right of abode status of the defendant in Hong Kong, community service would not really be an option.

16.On the last occasion that the defendant appeared before the court two reports were submitted to the court, one prepared by a psychiatrist, and the other by a psychologist.  The psychiatrist stated that he has been treating the defendant since October 2009 for Attention Deficit Hyperactivity Disorder, which is a condition characterised by poor concentration, disorganisation, overactivity and impulsivity.  The defendant responded to counselling and medication and was able to complete Year 12.  The psychiatrist commented that unfortunately the defendant decided to take a break from his studies and has not been engaged in anything productive.  He said the defendant also stopped taking his medication.  He commented that his involvement in the offences in Hong Kong indicated that the defendant’s impulsivity had become a problem again.  He prescribed compounded dexamphetamine 20 milligram capsules to be taken each morning.  He stated that the medication would stimulate the organisation part of the defendant’s brain which keeps other parts of his brain under control.  He stated that without medication, the defendant is prone to behaviour typical of someone who has poor focus and impulsivity.

17.The psychologist has also been treating the defendant since September 2010.  His observations were consistent with those of the psychiatrist.

18.As commented in the probation report for the community service order, the defendant since his arrest has been working and is leading a more regular lifestyle.

Sentencing Considerations

19.In HKSAR v Leung Pui Shan in 2007, Stock VP stated that:

“Sentencing is an art which must carefully be moulded not only to the category of offence but to the offender. There is a danger of sentencing becoming over-mechanical with too little regard for unusual circumstances that might arise in relation to the commission of particular offences and too little regard to circumstances peculiar to the offender. Experience suggests that mitigation advanced sometimes takes the form of a mantra in our courts, with the courts being told the age, health circumstances and number of offenders’ family members and other matters which have little to do whatsoever with what has led the particular offender to the commission of the offence and what circumstances peculiar to the offender might go to mitigation of sentence. There are certain offences, and those are well known, in which personal circumstances and the circumstances leading to an offence will count less than in others because those offences demand as a matter of public protection deterrence as an overwhelming consideration. That said, the circumstances of this case provide an opportune moment in which to stress the need for individual justice, having regard of course to the policy considerations that might dictate in a category of case or a stern general approach, but never forgetting that the courts are, on each sentencing occasion, dealing with an individual whose peculiar circumstances, if they exist, always deserve careful attention. Consistency in sentencing is important, but consistency does not dictate blindness to individual circumstances of a case and to those of the offender. An overly rigid preoccupation with uniformity can be inimical to individual justice.”

20.In HKSAR v Yeung Kwan Kuen CACC 475-476/2012, in dealing with an appellant convicted of six offences involving theft and obtaining and attempting to obtain properties by using stolen credit cards, Stock VP stated:

“Whilst offences of this type in this case would normally or usually call for a term of imprisonment, the circumstances of the offender and the circumstances in which he came to commit the offences were not normal or usual. It did not take a great deal of study on our part nor obviously on the part of the single judge who granted leave to recognise that this was a case which called for the real possibility of an unusual sentencing course. The appellant was a young man of previous good character. The appellant was in gainful employment. The appellant had been suffering from a long‑term mental health problem for which he had been receiving treatment well before the offences were committed so as to distinguish this case from those where psychiatric problems present themselves only after arrest and before sentence. The commission of the offences followed close upon the heels of a traumatic event in the appellant’s life, namely the death of his grandmother, with whom he had been particularly close. That traumatic event also coincided with the coming off of his medication. Bipolar disease or not, as to which psychiatrists were not ad idem, and the fact that the offences were committed in these highly unusual circumstances, call for particular attention and a degree of compassion. The appellant had pleaded guilty. The appellant made full compensation to all those whose loss could be identified and did so before sentence. The appellant has secured a new qualification after his arrest which provided fresh opportunity for gainful employment. We think it obvious that this was not a case that required imprisonment. To the contrary, it required creative sentencing whereby a young man who came and lived with a very caring family could be helped towards a prospect at least though not the guarantee of rehabilitation.”

21.In the current case, although the defendant pleaded guilty to the offences of burglary, in my view, the offences are more akin to offences of sneak theft.  As regards the 1st offence, the offence was committed in a kiosk where the defendant had reached into the drawer of the kiosk and taken only some of the cash that was in the drawer.

22.Many of the mitigating features identified in the case of Yeung Kwan Kuen are also present in this case.  The defendant is a young man of previous good character.  I noted that Yeung Kwan Kuen was in fact 21 at the date of sentence, whereas this defendant was only 17 at the date the offences were committed.

23.The defendant has been suffering from a long-term medical condition for which he had received treatment well before the offences were committed so as to distinguish the case from those where psychiatric problems present only after arrest.  The defendant had stopped taking the medication.  The defendant pleaded guilty.  The defendant has offered to compensate the victim company.  The defendant has secured employment since his arrest, and engaged in voluntary work.  In addition, the defendant has been offered a place at university commencing next March.

24.Many of the sentencing options available for sentencing defendants of the defendant’s age in Hong Kong are not available in this case because of language constraints.  As I mentioned earlier, a CSO report was prepared, and because of the uncertain status of the defendant in Hong Kong, community service is not an option.

25.Notwithstanding that, I regard the labelling of these offences of burglary to be somewhat technical, in my view, the offences are sufficiently serious to merit a custodial sentence.  I have considered whether or not there exist exceptional circumstances which would enable the court to suspend any such sentence.  I have considered a number of matters in relation to the offence and the offender in deciding this case.

26.The defendant, as I mentioned earlier, has a clear record and was 17 when the offences were committed.  I have perused the reports submitted by the psychologist and psychiatrist, and both confirm he was diagnosed to be suffering from ADHD well before the commission of the offences and was prescribed medication for that condition.  At the time of the offences he was not taking the medication but was under the influence of alcohol, which may have exacerbated his proclivity to make irrational decisions.

27.The defendant was being treated for ADHD whilst in full‑time education.  He has now completed that education and was living with his father in Lamma at the time of the offences.  His father was frequently away from Hong Kong for business reasons.  At the time of the offences the defendant was not working, nor was he engaged in any form of structured activity. 

28.Since the commission of the offences, he has been employed.  There is a very favourable letter from his employer which states the defendant was required to perform unpleasant and laborious tasks as a kitchen worker, and quickly established himself as a valued member of the workforce. 

29.There is also a favourable report from Pathfinders in connection with voluntary work he performs on their behalf.

30.His mother had come to Hong Kong for the purpose of these proceedings and had brought with her medication prescribed by Dr Patterson to treat the defendant’s ADHD.

31.A number of alternative methods of dealing with the defendant are not available because of language problems and because of his uncertain status in Hong Kong.

32.The defendant spent six days in custody following his arrest.

33.In my view, no one of these factors would amount to an exceptional circumstance, but the collective impact of all the relevant circumstances, in my view, do make this case exceptional. 

34.I therefore propose to impose concurrent sentences of 6 months’ imprisonment in respect of each of the offences, and order that each sentence shall be suspended for 18 months.

35.What that means is this:  that you are not going to go to prison today, but if you reoffend in the next 18 months, you would go to prison for 6 months, together with any further sentence that might be imposed in respect of the new offences.

36.I note that on the previous occasion compensation was offered to the victim company of $2,470.  I order, subject to any objections from your counsel, that that be paid from your bail money.