SBM v Gordon [2011 ] NTSC 18

PARTIES:                                         SBM

                                                         v

                                                         Gordon, Robert Karena

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:                                          JA 40 of 2010 (21015510) and
                                                         JA 41 of 2010 (21011926)

DELIVERED:                                   4 March 2011

HEARING DATES:                           1 October 2010

JUDGMENT OF:                              KELLY J

APPEAL FROM:                               G CAVANAGH SM

CATCHWORDS:

Criminal Code, s 210, 213, 218, 226B, 277(2) 
Justices Act, s 186

REPRESENTATION:

Counsel:
    Appellant:                                     C Bala
    Respondent:                                  S Lau with M Thomas

 

 

Solicitors:
    Appellant:                                     North Australian Aboriginal Justice Agency
    Respondent:                                  Office of the Director of Public Prosecutions

Judgment category classification:    C
Judgment ID Number:                       KEL 11005
Number of pages:                             10


IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

SBM v Gordon [2011] NTSC 18
No. JA 40 of 2010 (21015510) and
JA 41 of 2010 (21011926)

 

                                                     BETWEEN:

                                                     SBM
                                                         Appellant

                                                     AND:

                                                     ROBERT KARENA GORDON
                                                         Respondent

CORAM:     KELLY J

REASONS FOR JUDGMENT

(Delivered 4 March 2011)

On 7 July 2010 the appellant entered pleas of guilty to the following charges in the Nhulunbuy Youth Justice Court:

  1. Count 1
  2. Did attempt to commit a crime, namely unlawful entry and stealing contrary to s 277(2) of the Criminal Code.
  3. Count 2
  4. Unlawfully used a motor vehicle, namely, a white Toyota Mini Bus, NT registered 716-392:
  5. AND that the said unlawful use involved the following circumstances of aggravation:
  6. The property unlawfully used was of the value of $20,000.00 or greater, namely $40,000.00.
  7. The said white Toyota Mini Bus, NT registered 716-392 was taken with the intention of using it in connection with the commission of an offence not being a regulatory offence.
  8. Contrary to s 218 of the Criminal Code.
  9. [The maximum penalty for this offence is imprisonment for 7 years.]
  10. Count 3
  11. Unlawfully entered a business premises, namely Gove Country Golf Club, East Woody Road, Nhulunbuy and unlawfully damaged the business premises.
  12. Contrary to s 226B of the Criminal Code.
  13. [The maximum penalty for this offence is imprisonment for 7 years.]
  14. Count 4
  15. Did steal 1 x 1125ml Bundaberg Rum, 1 x 1125 Jim Beam, 1 x 1125ml Wild Turkey, 1 x 1125ml Smirnoff Vodka, 6 x Jim Beam and Cola cans and 10 x packets of Winfield Blue Cigarettes, valued at $354.00, the property of Michael Nolan for the Gove Country Golf Club.
  16. Contrary to s 210 of the Criminal Code.
  17. [The maximum penalty for this offence is imprisonment for 7 years.]
  18. Count 6
  19. Unlawfully used a motor vehicle, namely, a Toyota Hilux, NT registered 953-519:
  20. AND that the said unlawful use involved the following circumstance of aggravation:
  21. The property unlawfully used was of the value of $20,000.00 or greater, namely $38,000.00.
  22. The said Toyota Hilux, NT registered 953-519 was taken with the intention of using it in connection with the commission of an offence not being a regulatory offence.
  23. Contrary to s 218 of the Criminal Code.
  24. Count 9
  25. Unlawfully entered business premises, namely Gove Yacht Club, Drimmie Head Road, Nhulunbuy, and unlawfully damaged the business premises.
  26. Contrary to s 226B of the Criminal Code.
  27. [The maximum penalty for this offence is imprisonment for 7 years.]
  28. Count 10
  29. Did steal assorted liquor and Australian currency, valued at $1,550.45, the property of Sam DRURY, for the Gove Yacht Club.
  30. Contrary to s 210 of the Criminal Code.
  31. [The maximum penalty for this offence is imprisonment for 7 years.]

On 7 July 2010 the learned Magistrate sentenced the appellant.  In relation to counts 2, 3, 4, 6, 9 and 10, the appellant was convicted and given an aggregate sentence of three months’ detention suspended forthwith on his entering into a bond of $500.00 on his own recognizance to be of good behaviour for 12 months.
On count 1 the appellant was convicted and sentenced to one month detention cumulative on the sentence for the other counts and suspended on the same terms and conditions.  This gave a total effective sentence of four months’ detention suspended forthwith.
The appellant now appeals against his conviction on count 1 on the ground that the charge did not disclose any offence known to law.
The wording of the charge was as follows:

  1. “On the 5th day of May 2010
  2. At Yirrkala in the Northern Territory of Australia
  3. 1.     did attempt to commit a crime, namely Unlawful Entry and Stealing:
  4. contrary to s 277(2) of the Criminal Code. 
  5. PARTICULARS

With two co-offenders did attempt to break into the Yirrkala Arts Centre by using a shovel and your attempt to jemmy open the front double doors of the building in order to steal some money, and caused damage to the doors in the attempt.”
The appellant submits that the wording of the charge referred to two distinct offences namely “unlawful entry” and “stealing” but that there is no offence known to law that fuses the two offences together to create a single offence.
While conceding that the charge was unfortunately worded, the respondent contends that count 1 was understood by all concerned at the time to mean that at the nominated place and time, the crime which the appellant attempted to commit was unlawful entry with intent to commit a crime, namely stealing, contrary to s 277(2) and s 213 of the Criminal Code.
The respondent relies on s 186 of the Justices Act which provides:
186.  Findings of guilt, &c., not voidable for want of form, & c.

  1. No finding of guilt or order of the Court, or other proceeding before Justices, shall be void or voidable, or liable to be quashed, annulled, or set aside in any manner, by reason of any deficiency in the statement of the offence therein described, if the offence is stated in the words of the Special Act, or if it appears that the offence was one against the true intent and meaning of the Special Act.
  2. No judgment, finding of guilt, or order of the Court, or other proceeding before Justices, shall be quashed or set aside for any mere matter of form or technical error, or mistake in any name, date, or title, or in any matter of description only; but in all cases regard shall be had alone to the substantial merits and justice of the case.”

The respondent points out that the appellant was legally represented and pleaded guilty to the charge.
The facts as put to the Court were as follows:
“MR LADER:        To the next file, file ending 510, the facts are that in the early hours of Saturday, 8 May 2010, the defendant SBM and two co-offenders formed a common intention to break into the Yirrkala Arts and Crafts Centre to steal money.  The defendant and co-offenders located a shovel at the rear of the arts centre and then went to the front double doors of the building.  The defendant and co-offenders then used the nose of the shovel as a jemmy placing it between the two doors and attempted to force the doors open.
                   The defendant and co-offenders attempted to gain entry for some time before giving up.  At 1.51 pm that same day the defendant participated in a record of interview and made full admissions to the offence.  When the defendant was asked why he wanted to get inside the Yirrkala Arts Centre he replied: ‘Try to steal money’.  When asked if it was the wrong or the right thing to do, he replied: ‘Wrong’.  At no time did the defendant or co-offenders have permission to make any attempt to enter the Yirrkala Art Centre property.”
Those facts were admitted.
It is clear from the admitted facts that the substance of the charge against the appellant was that he attempted to commit the offence of unlawful entry with intent to commit a crime, namely, stealing.  There was no suggestion by counsel for the appellant at the time that the appellant (or counsel) had any difficulty understanding the substance of the charge. 
The charge is indeed very badly worded.  Moreover the particulars of the charge contain matter irrelevant to the charge of attempted entry with intent to commit a crime, that is that the appellant and his co-offenders “caused damage to the doors in that attempt”.  The respondent concedes that that matter should not have been contained in the particulars.  However counsel for the appellant pointed out that the prosecutor did not allege any damage in his submissions to the learned magistrate, and it can be seen from the agreed facts referred to above that damage was not alleged as part of the material facts relating to the charge.
In my view, s 186 of the Act applies.  The error in the description of the charge in and of itself is not sufficient to justify setting aside the conviction.  The substance of what was alleged against the appellant was clear; it amounted to an allegation that the appellant along with two co-offenders attempted to unlawfully enter the Yirrkala Arts Centre with intent to commit a crime namely stealing money; and the appellant pleaded guilty to that charge having the benefit of legal advice and legal representation.  In those circumstances the substantial merits and justice of the case do not require the conviction to be set aside.
The appellant also appeals against the sentence.  The first ground of appeal in relation to the sentence is that the learned Magistrate erred in failing to consider the principle that imprisonment is a last resort.
In sentencing the appellant the learned Magistrate said:
“Well in my view, I think there needs to be some detention awarded to him but I’ll suspend it on a good behaviour bond.  He spent last year on a family conference being diverted for similar charges.  He didn’t learn his lesson and he’s got into some real big trouble.”
As the appellant conceded, it was not necessary for the learned Magistrate to methodically list and discount every disposition available. 
It can be inferred on the passage quoted above that the learned Magistrate’s reasons for imposing a term of detention included that the appellant did not learn a lesson from undertaking family conferencing on similar offences.  It is not suggested that this was not a relevant consideration.
I do not accept the appellant’s submission that it can be inferred from the above paragraph that the learned sentencing Magistrate did not consider other sentencing options before determining that a sentence of detention suspended on a good behaviour bond was appropriate. 
As counsel for the respondent pointed out the Magistrate was entitled to take into account:

    1. the seriousness of the offending (i.e. $200.00 worth of damages to the Gove Country Golf Club and $1,221.00 worth of damages to the Gove Country Yacht Club as well as property to the value of $1,550.45 stolen from the Gove Country Yacht Club);
    2. the repetitive nature of the offending (i.e. three separate incidents of unlawful entry in little over one month);
    3. that the offence of attempted unlawful entry with intent to steal occurred four days after the appellant had attended court with his father on the earlier sentences and whilst on bail for those offences; and
    4. that the appellant had already been offered diversion in relation to offences of a similar nature committed the previous year.

In my view the sentence of suspended detention was perfectly appropriate.
The appellant argued the last two grounds of appeal together, namely that the learned Magistrate erred in giving insufficient weight to the youth’s subjective factors, namely his lack of prior convictions, youth and prospects for rehabilitation; and that the sentence was manifestly excessive in all the circumstances.
I see nothing in the learned Magistrate’s sentencing remarks to suggest that he did not take into account and give appropriate weight to these subjective factors.  Counsel for the appellant made submissions in relation to the appellant’s age and school attendance and tendered a reference from the school.  He also made the Magistrate aware of the appellant’s background under the personal details.
The learned Magistrate was aware of the appellant’s lack of prior convictions but was also aware of the fact that he had been placed on diversion for similar charges in the previous year.  Counsel for the appellant submitted that a good behaviour bond was the appropriate sentence.  The learned Magistrate said, “Well in my view, I think there needs to be some detention awarded to him but I’ll suspend it on a good behaviour bond.”
In my view that sentence was not manifestly excessive.  It was within the available sentencing range, given the matters referred to in paragraph 19 above which the learned sentencing Magistrate was entitled to take into account. 


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Mununggurr v Gordon [2011] NTSC 18

No. JA 40 of 2010 (21015510) and

JA 41 of 2010 (21011926)

 

 

                                                     BETWEEN:

 

                                                     STEVEN BURRWAL MUNUNGGURR

                                                         Appellant

 

                                                     AND:

 

                                                     ROBERT KARENA GORDON

                                                         Respondent

 

CORAM:     KELLY J

 

REASONS FOR JUDGMENT

 

(Delivered 4 March 2011)

 

[1]       On 7 July 2010 the appellant entered pleas of guilty to the following charges in the Nhulunbuy Youth Justice Court:

Count 1

Did attempt to commit a crime, namely unlawful entry and stealing contrary to s 277(2) of the Criminal Code.

Count 2

Unlawfully used a motor vehicle, namely, a white Toyota Mini Bus, NT registered 716-392:

AND that the said unlawful use involved the following circumstances of aggravation:

The property unlawfully used was of the value of $20,000.00 or greater, namely $40,000.00.

The said white Toyota Mini Bus, NT registered 716-392 was taken with the intention of using it in connection with the commission of an offence not being a regulatory offence.

Contrary to s 218 of the Criminal Code.

[The maximum penalty for this offence is imprisonment for 7 years.]

Count 3

Unlawfully entered a business premises, namely Gove Country Golf Club, East Woody Road, Nhulunbuy and unlawfully damaged the business premises.

Contrary to s 226B of the Criminal Code.

[The maximum penalty for this offence is imprisonment for 7 years.]

Count 4

Did steal 1 x 1125ml Bundaberg Rum, 1 x 1125 Jim Beam, 1 x 1125ml Wild Turkey, 1 x 1125ml Smirnoff Vodka, 6 x Jim Beam and Cola cans and 10 x packets of Winfield Blue Cigarettes, valued at $354.00, the property of Michael Nolan for the Gove Country Golf Club.

Contrary to s 210 of the Criminal Code.

[The maximum penalty for this offence is imprisonment for 7 years.]

Count 6

Unlawfully used a motor vehicle, namely, a Toyota Hilux, NT registered 953-519:

AND that the said unlawful use involved the following circumstance of aggravation:

The property unlawfully used was of the value of $20,000.00 or greater, namely $38,000.00.

The said Toyota Hilux, NT registered 953-519 was taken with the intention of using it in connection with the commission of an offence not being a regulatory offence.

Contrary to s 218 of the Criminal Code.

Count 9

Unlawfully entered business premises, namely Gove Yacht Club, Drimmie Head Road, Nhulunbuy, and unlawfully damaged the business premises.

Contrary to s 226B of the Criminal Code.

[The maximum penalty for this offence is imprisonment for 7 years.]

Count 10

Did steal assorted liquor and Australian currency, valued at $1,550.45, the property of Sam DRURY, for the Gove Yacht Club.

Contrary to s 210 of the Criminal Code.

[The maximum penalty for this offence is imprisonment for 7 years.]

[2]       On 7 July 2010 the learned Magistrate sentenced the appellant.  In relation to counts 2, 3, 4, 6, 9 and 10, the appellant was convicted and given an aggregate sentence of three months’ detention suspended forthwith on his entering into a bond of $500.00 on his own recognizance to be of good behaviour for 12 months.

[3]       On count 1 the appellant was convicted and sentenced to one month detention cumulative on the sentence for the other counts and suspended on the same terms and conditions.  This gave a total effective sentence of four months’ detention suspended forthwith.

[4]       The appellant now appeals against his conviction on count 1 on the ground that the charge did not disclose any offence known to law.

[5]       The wording of the charge was as follows:

“On the 5th day of May 2010

At Yirrkala in the Northern Territory of Australia

1.     did attempt to commit a crime, namely Unlawful Entry and Stealing:

contrary to s 277(2) of the Criminal Code. 

PARTICULARS

With two co-offenders did attempt to break into the Yirrkala Arts Centre by using a shovel and your attempt to jemmy open the front double doors of the building in order to steal some money, and caused damage to the doors in the attempt.”

[6]       The appellant submits that the wording of the charge referred to two distinct offences namely “unlawful entry” and “stealing” but that there is no offence known to law that fuses the two offences together to create a single offence.

[7]       While conceding that the charge was unfortunately worded, the respondent contends that count 1 was understood by all concerned at the time to mean that at the nominated place and time, the crime which appellant attempted to commit was unlawful entry with intent to commit a crime, namely stealing, contrary to s 277(2) and s 213 of the Criminal Code.

[8]       The respondent relies on s 186 of the Justices Act which provides:

186.  Findings of guilt, &c., not voidable for want of form, & c.

(1)         No finding of guilt or order of the Court, or other proceeding before Justices, shall be void or voidable, or liable to be quashed, annulled, or set aside in any manner, by reason of any deficiency in the statement of the offence therein described, if the offence is stated in the words of the Special Act, or if it appears that the offence was one against the true intent and meaning of the Special Act.

(2)         No judgment, finding of guilt, or order of the Court, or other proceeding before Justices, shall be quashed or set aside for any mere matter of form or technical error, or mistake in any name, date, or title, or in any matter of description only; but in all cases regard shall be had alone to the substantial merits and justice of the case.”

[9]       The respondent points out that the appellant was legally represented and pleaded guilty to the charge.

[10]     The facts as put to the Court were as follows:

“MR LADER:        To the next file, file ending 510, the facts are that in the early hours of Saturday, 8 May 2010, the defendant Steven Mununggurr and two co-offenders formed a common intention to break into the Yirrkala Arts and Crafts Centre to steal money.  The defendant and co-offenders located a shovel at the rear of the arts centre and then went to the front double doors of the building.  The defendant and co-offenders then used the nose of the shovel as a jemmy placing it between the two doors and attempted to force the doors open.

                   The defendant and co-offenders attempted to gain entry for some time before giving up.  At 1.51 pm that same day the defendant participated in a record of interview and made full admissions to the offence.  When the defendant was asked why he wanted to get inside the Yirrkala Arts Centre he replied: ‘Try to steal money’.  When asked if it was the wrong or the right thing to do, he replied: ‘Wrong’.  At no time did the defendant or co-offenders have permission to make any attempt to enter the Yirrkala Art Centre property.”

[11]     Those facts were admitted.

[12]     It is clear from the admitted facts that the substance of the charge against the appellant was that he attempted to commit the offence of unlawful entry with intent to commit a crime, namely, stealing.  There was no suggestion by counsel for the appellant at the time that the appellant (or counsel) had any difficulty understanding the substance of the charge. 

[13]     The charge is indeed very badly worded.  Moreover the particulars of the charge contain matter irrelevant to the charge of attempted entry with intent to commit a crime, that is that the appellant and his co-offenders “caused damage to the doors in that attempt”.  The respondent concedes that that matter should not have been contained in the particulars.  However counsel for the appellant pointed out that the prosecutor did not allege any damage in his submissions to the learned magistrate, and it can be seen from the agreed facts referred to above that damage was not alleged as part of the material facts relating to the charge.

[14]     In my view, s 186 of the Act applies.  The error in the description of the charge in and of itself is not sufficient to justify setting aside the conviction.  The substance of what was alleged against the appellant was clear; it amounted to an allegation that the appellant along with two co-offenders attempted to unlawfully enter the Yirrkala Arts Centre with intent to commit a crime namely stealing money; and the appellant pleaded guilty to that charge having the benefit of legal advice and legal representation.  In those circumstances the substantial merits and justice of the case do not require the conviction to be set aside.

[15]     The appellant also appeals against the sentence.  The first ground of appeal in relation to the sentence is that the learned Magistrate erred in failing to consider the principle that imprisonment is a last resort.

[16]     In sentencing the appellant the learned Magistrate said:

“Well in my view, I think there needs to be some detention awarded to him but I’ll suspend it on a good behaviour bond.  He spent last year on a family conference being diverted for similar charges.  He didn’t learn his lesson and he’s got into some real big trouble.”

[17]     As the appellant conceded, it was not necessary for the learned Magistrate to methodically list and discount every disposition available. 

[18]     It can be inferred on the passage quoted above that the learned Magistrate’s reasons for imposing a term of detention included that the appellant did not learn a lesson from undertaking family conferencing on similar offences.  It is not suggested that this was not a relevant consideration.

[19]     I do not accept the appellant’s submission that it can be inferred from the above paragraph that the learned sentencing Magistrate did not consider other sentencing options before determining that a sentence of detention suspended on a good behaviour bond was appropriate. 

[20]     As counsel for the respondent pointed out the Magistrate was entitled to take into account:

(a)         the seriousness of the offending (i.e. $200.00 worth of damages to the Gove Country Golf Club and $1,221.00 worth of damages to the Gove Country Yacht Club as well as property to the value of $1,550.45 stolen from the Gove Country Yacht Club);

(b)        the repetitive nature of the offending (i.e. three separate incidents of unlawful entry in little over one month);

(c)        that the offence of attempted unlawful entry with intent to steal occurred four days after the appellant had attended court with his father on the earlier sentences and whilst on bail for those offences; and

(d)        that the appellant had already been offered diversion in relation to offences of a similar nature committed the previous year.

[21]     In my view the sentence of suspended detention was perfectly appropriate.

[22]     The appellant argued the last two grounds of appeal together, namely that the learned Magistrate erred in giving insufficient weight to the youth’s subjective factors, namely his lack of prior convictions, youth and prospects for rehabilitation; and that the sentence was manifestly excessive in all the circumstances.

[23]     I see nothing in the learned Magistrate’s sentencing remarks to suggest that he did not take into account and give appropriate weight to these subjective factors.  Counsel for the appellant made submissions in relation to the appellant’s age and school attendance and tendered a reference from the school.  He also made the Magistrate aware of the appellant’s background under the personal details.

[24]     The learned Magistrate was aware of the appellant’s lack of prior convictions but was also aware of the fact that he had been placed on diversion for similar charges in the previous year.  Counsel for the appellant submitted that a good behaviour bond was the appropriate sentence.  The learned Magistrate said, “Well in my view, I think there needs to be some detention awarded to him but I’ll suspend it on a good behaviour bond.”

[25]     In my view that sentence was not manifestly excessive.  It was within the available sentencing range.  Given the matters referred to in paragraph 19 above which the learned sentencing Magistrate was entitled to take into account.