EA v Rothe & Ors [2012] NTSC 97

 

PARTIES:                                         EA

 

                                                         v

 

                                                         ROTHE, Jason

 

                                                         EA

 

                                                         v

 

                                                         MOSEL, Jeffery

 

                                                         EA

 

                                                         v

 

                                                         WRIDE, Susan

 

                                                         EA

 

                                                         v

 

                                                         WOOD, Paul

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA 49 of 2012 (21034712); JA 50 of 2012 (21122752); JA 51 of 2012 (21213819); JA 52 of 2012 (21213826); JA 53 of 2012 (21215393); JA 54 of 2012 (21216594); JA 55 of 2012 (21217782); JA 56 of 2012 (21219590); JA 57 of 2012 (21219597); JA 58 of 2012 (21222465); JA 59 of 2012 (21222468)

 

DELIVERED:                                   5 December 2012

 

HEARING DATE:                             5 September 2012

 

JUDGMENT OF:                              BARR J

 

APPEAL FROM:                               FONG LIM SM

 

CATCHWORDS:

 

CRIMINAL LAW – APPEAL AGAINST SENTENCE – YOUTH JUSTICE COURT – TOTALITY

Principle of totality – cumulation and concurrency – 13 year old appellant sentenced to a total of 14 months detention for multiple offences and breaches – series of individual and aggregate sentences imposed with some concurrency ordered – sentence suspended after 10 months served – whether magistrate failed to “take a last look” at the total sentence of detention – totality was considered and taken into account – appeal dismissed

 

CRIMINAL LAW – APPEAL AGAINST SENTENCE – YOUTH JUSTICE COURT – MANIFEST EXCESS

Principles of s 4 Youth Justice Act (NT) – whether individual sentences imposed for offences of unlawful use of motor vehicle, aggravated unlawful entry, trespass and stealing manifestly excessive – whether total sentence of 14 months detention suspended after 10 months manifestly excessive – manifest excess not established – magistrate’s reasons for imposing sentence of detention explained in sentencing remarks – relevant matters taken into account – no error – appeal dismissed

 

CRIMINAL LAW – APPEAL AGAINST SENTENCE – YOUTH JUSTICE COURT

Youth Justice Act (NT) s 4(c) and s 81(6) – principle that a youth should only be kept in custody as a last resort and for shortest appropriate period – whether magistrate imposed a longer sentence on account of appellant’s welfare needs – appellant assessed as unsuitable for a community work order or supervision – total sentence not manifestly excessive – no error – appeal dismissed

 

CRIMINAL LAW – APPEAL AGAINST SENTENCE – YOUTH JUSTICE COURT

Youth Justice Act (NT) s 69 – whether magistrate erred in not ordering a pre-sentence report – magistrate not required to specify reasons for dispensing with requirement to order pre-sentence report – magistrate had a detailed report under s 51 – magistrate had sufficient information – no error – appeal dismissed

 

Justices Act (NT) s 176A

Youth Justice Act (NT) s 4, s 51, s 69, s 81, s 83

 

R v Bernath [1997] 1 VR 271; DPP v Castro [2006] VSCA 197, applied

 

Girrabul v The Queen [2003] NTSC 101; Nelson v Chute (1994) 72 A Crim R 85, distinguished 

 

House v R (1936) 55 CLR 499; Mill v The Queen (1988) 166 CLR 59; Smith v Torney (1984) 29 NTR 31; Pearce v R (1998) 194 CLR 610; Postiglione v The Queen (1997) 189 CLR 295; Wurrawilya v Davis & Anor [2012] NTSC 57, considered 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     S Barlow

    Respondent:                                  D Dalrymple

 

Solicitors:

    Appellant:                                     North Australian Aboriginal Justice Agency

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       Bar1222

Number of pages:                             43



IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

EA v Rothe & Ors [2012] NTSC 97

JA 49 of 2012 (21034712); JA 50 of 2012 (21122752); JA 51 of 2012 (21213819); JA 52 of 2012 (21213826); JA 53 of 2012 (21215393); JA 54 of 2012 (21216594); JA 55 of 2012 (21217782); JA 56 of 2012 (21219590); JA 57 of 2012 (21219597); JA 58 of 2012 (21222465);

JA 59 of 2012 (21222468)

 

 

                                                     BETWEEN:

 

                                                     EA

                                                         Appellant

 

                                                     AND:

 

                                                     JASON ROTHE, JEFFERY MOSEL, PAUL WOOD and SUSAN WRIDE

                                                         Respondents

 

CORAM:     BARR J

 

REASONS FOR JUDGMENT

 

(Delivered 5 December 2012)

Appeal against severity of sentence

[1]       The appellant was born on 18 August 1998.  On 15 June 2012, two months short of turning 14, he was sentenced by the Youth Justice Court to a total of 14 months detention.  The sentence was ordered to be suspended after 10 months, with release on certain conditions. 

[2]       The appellant appeals against his sentence.  The grounds of appeal are that the magistrate failed to properly apply the principle of totality; that the magistrate erred by failing to give appropriate weight to the principle that a youth should only be kept in custody as a last resort and for the shortest appropriate period of time; that the sentence was manifestly excessive; and that the magistrate erred by failing to order a pre-sentence report. 

[3]       As at 15 June 2012, the appellant had been involved in the criminal justice system for about 3 years, since July 2009 (offences committed on 1 July 2009 dealt with on 11 July 2009 by way of diversion and a victim/offender conference).  In the intervening period of time the appellant had come before the Youth Justice Court on multiple occasions, most of them in relation to property offences.  Although the appellant had spent time in detention on remand, the dispositions by the Youth Justice Court in relation to his prior offending utilised non-custodial sentencing options, in particular a ‘no further trouble order’, and various good behaviour bonds.

[4]       On 30 November 2009, at the age of 11, the appellant assaulted a female in a Subway store.  On 29 September 2010, then aged 12, the appellant was found guilty of that assault by the Youth Justice Court and released on a six month no-conviction good behaviour order.

[5]       On 16 December 2010, the appellant was brought back before the Youth Justice Court for a breach of the good behaviour order made only some 2½ months earlier, and some other matters.  The breach was found proved and the appellant was re-sentenced and placed on a 12 month supervised good behaviour order.  On the same day, the appellant was convicted of the aggravated unlawful use of a motor vehicle on 23 October 2010.  

[6]       On 7 October 2011, the Youth Justice Court dealt with the appellant for various offences committed on 3 October 2010, 15 October 2010 (file 21034712) and 7 July 2011 (file 21122752).  The appellant was again given a 12 month good behaviour order. 

[7]       On 5 June 2012, the appellant came before the Youth Justice Court in relation to 10 fresh ‘files’ and two breach ‘files’.  The fresh offending included two charges of unlawfully using motor vehicles (both alleging that the appellant had actually driven the vehicle) and also two aggravated unlawful entry charges and various counts of stealing.  The appellant pleaded guilty to all charges.  He also admitted breaches of the good behaviour order made 7 October 2011 for his offending on 15 October 2010 (file 21034712) and 7 July 2011 (file 21122752).  The magistrate ordered reports in relation to suitability for supervision and community work with the Department of Correctional Services.  All matters were adjourned to 15 June 2012.  The appellant was granted bail. 

[8]       On 15 June 2012, the appellant appeared once more before the Youth Justice Court.  During the adjournment period, he had breached the residential condition of his bail.  He was charged and pleaded guilty to that breach of bail and also to charges for additional offences committed on 16 April and 20 May 2012 (file 21222468).  After hearing further submissions and considering a number of reports, the magistrate sentenced the appellant to a total of 14 months detention.  The sentence was ordered to be suspended after 10 months, subject to supervision and other conditions.  Details of the breach matters, other offending, and the magistrate’s sentencing disposition on the various charges, or sets of charges, are set out in the schedules below. 

File No.

21034712

Charge:

Breach of a good behaviour bond.

Original charges:

3. Unlawfully entered a building, namely room 387 Free Spirit Resort, with the circumstances of aggravation that (i) KP intended to commit the crime of stealing therein and (ii) the said building was a dwelling house (s 213 Criminal Code).

4. Did steal $40 (s 210 Criminal Code).

Re-sentence

Convicted on charges 3 and 4 and sentenced to 2 months detention, commencing 23 February 2012.

Original précis summary:

On 15 October 2010, KP bragged he had a key to a room at the Free Spirit Resort, Palmerston.  The appellant, with co-offenders KP, EzA, AR, OG, VB, SW and SB, went to room number 386 at the Free Spirit Resort but discovered KP’s key did not unlock the door.  Co-offender AR ripped a fly screen from one of the cabin windows in an attempt to enter the cabin but was unable to gain entry.

Co-offender AR went next door to cabin 387 and discovered the door was unlocked.  AR entered the dwelling and advised some of the group he had located two laptops inside.  Co-offenders AR and EzA stole a quantity of goods from cabin 387.

The appellant and co-offenders managed to gain entry to another cabin, number 382, and watched TV inside that cabin.  The group remained inside the cabin and consumed coke and muffins which were stolen by co-offender AR from cabin 387.  The appellant stole $40.  A short time later, the appellant and co-offenders left the Resort and returned to Palmerston.

The appellant was arrested on 16 October 2010.  He participated in an EROI but declined to answer any questions.

 

File No.

21122752

Charge:

Breach of a good behaviour bond.

Original charges:

2. Unlawfully entered a building, namely the Victoria Hotel, Smith Street Mall, with the circumstances of aggravation that (i) EA intended to commit the crime of stealing therein and (ii) the unlawful entry occurred at night time (s 213 Criminal Code).

3. Attempted to steal an assorted quantity of alcohol, valued at $482, the property of the Victoria Hotel (s 210 Criminal Code).

Re-sentence:

For charges 2 and 3, re-sentenced to an aggregate term of detention of 2 months to be served concurrently with the sentence on file 21034712.[1]

Original précis summary:

At approximately 11.35pm on 7 July 2011, the appellant and co-offenders OG, NM, JG and VR went to the front of the Victoria Hotel at Smith Street Mall.  Co-offender NM was armed with a large flat bladed screw driver and a rock, and JG was armed with a large pair of steel scissors.

Co-offenders NM and JG attempted to force open the glass doors to the Hotel but were unsuccessful.  The group approached a side entrance door of the hotel within the Vic Arcade.  Co-offender NM threw a rock at the door, causing the glass to crack, and he then kicked the glass with his steel capped boots, which caused it to shatter.  The appellant and co-offenders then entered the hotel looking for alcohol and money to steal.

The appellant walked behind the bar and stole a quantity of spirits bottles.  The appellant and co-offenders attempted to leave the Hotel with the stolen alcohol but were disturbed by police.  The appellant fled the area.

The incident was captured on CCTV footage and the appellant was later identified by police on the footage.

On 13 July 2011 the appellant was located by police and arrested.  He participated in an EROI but declined to make any comment regarding the incident at the Victoria Hotel.

The value of the stolen alcohol was $482.  None was recovered in a condition fit for re-sale.

 

File No.

21222465

Charge:

1. On 7 June 2012, engaged in conduct that resulted in a breach of a bail undertaking (s 37B Bail Act).

Sentence:

Convicted and sentenced to 1 day detention.[2]

Précis summary:

On 5 June 2012, the appellant was granted bail to appear at the Youth Justice Court on 15 June 2012.  His bail conditions included a condition to reside as directed by CEO, Department of Children and Families, and to obey a curfew to remain at residence between the hours of 7.00pm and 7.00am. 

At approximately 7.30pm on 7 June 2012, police were advised by an employee of the Department of Children and Families that the appellant had not returned to his directed address.

On 12 June 2012, police executed a search warrant.  The appellant heard the police and fled out of a bedroom window and hid in the back yard, where he was located and arrested for breach of bail.

When asked by police why he absconded from the residence at and had not adhered to his curfew conditions, the appellant said “I didn’t want to stay there”.

 

File No.

21215393

Charge:

1. Did steal 1 x fishing rod strap and 1 x men’s watch, valued at $30, the property of K-Mart, Casuarina (s 210 Criminal Code).

Sentence:

Convicted and sentenced to a term of detention of 7 days, cumulative on files 21122752 and 21034712.[3] 

Précis summary:

 In the afternoon of 22 March 2012, the appellant entered K-Mart at Casuarina Shopping Centre with a male co-offender.  The appellant browsed through items at the fishing and tackle department and took possession of a packet of fishing rod elastics.  The appellant removed and discarded the packaging and placed the fishing rod elastic onto his wrist.

The appellant moved on to the men’s wear department and browsed the accessories section.  The appellant took possession of a men’s watch.  He removed and discarded the packaging and placed the watch onto his wrist.

The appellant left K-Mart without paying for the items.  His actions were captured on CCTV footage and he was approached and apprehended by K-Mart security.  Police were notified and the appellant was subsequently arrested.  The appellant declined to participate in an EROI.

Value of fishing rod elastic: $5

Value of watch: $25

Both items were recovered.

 

File No.

21213819

Charges:

1. Unlawfully used a motor vehicle, namely a Mitsubishi Magna NT980-064 (s 218(1) Criminal Code).

3. Drove a motor vehicle, namely a Mitsubishi Magna NT980-064, on a public street, namely various roads in Palmerston, whilst not being the holder of a licence to do so (s 32(1)(a)(i) Traffic Act).

Sentence:

Convicted on charges 1 and 3 and sentenced to an aggregate term of detention of 2 months, to be served concurrently with sentences on the breach files 21034712 and 21122752.[4]

Précis summary:

Between 9.00pm and 10.45pm on 7 April 2012, a Mitsubishi Magna bearing NT registration 980-064 was stolen from outside number 19 Lorna Lim Terrace, Driver.

At about 11.00pm on the same date, the appellant was the driver of the stolen vehicle as it travelled on Davoren Circuit, Moulden. Also present in the vehicle were co-offenders AR, JW, KR, LS and RW.

A short time later, the appellant drove the stolen vehicle on Bonson Terrace, Moulden dangerously, swerving from side to side and intentionally causing the vehicle to lose traction.  The appellant applied the handbrake as the vehicle was travelling at considerable speed, causing it to lock up and skid.  The appellant caused the vehicle to collide with a gutter and narrowly avoided colliding with a street light on Strawbridge Crescent, Moulden.  This caused an amount of damage to a wheel of the vehicle.  Co-offenders RW and LS ran from the vehicle and were located by police a short distance away.

A short time later the appellant and the other co-offenders abandoned the stolen vehicle on Tamarind Road, Moulden, where it was later recovered by police.

The appellant was arrested on 11 April 2012 at his home address.  He participated in an EROI in which he denied being in the stolen vehicle.

 

File No.

21213826

Charges:

1. Trespassed on premises, namely Hog’s Breath Cafe, Palmerston (s 5 Trespass Act).

2. Did steal 1 x Apple Mac laptop, 1 x Nokia mobile phone, 1 x set of Apple brand earphones, 1 x Apple iPhone connectivity cable, 1 x wallet containing Australian currency, valued at approximately $1,780, the property of Puran Thapa (s 210 Criminal Code). 

Sentence:

Convicted and sentenced to an aggregate term of detention of 2 months, cumulative on file 21213819.[5]

Précis summary:

At approximately 6.00pm on 25 March 2012, the appellant entered Hog’s Breath Cafe, Palmerston via a rear door and stole a bag belonging to Puran Thapa.  The appellant then ran from the building.  He was assisted by a number of other unidentified youths who acted as lookouts.  The appellant was captured on CCTV committing the offence.

The stolen bag contained the following property: 1 x Apple Mac laptop, 1 x Nokia mobile phone, 1 x set of Apple brand earphones, 1 x Apple iPhone connectivity cable, 1 x wallet, and approximately $200 cash. 

The appellant opened the wallet and removed the cash before giving the remaining items to his co-offenders.  The appellant used the stolen money to catch a mini-bus to the Moulden Shops where he purchased some food.

On 11 April 2012, the appellant was arrested at his home address and conveyed to the Darwin Watch House where he was entered into custody.  The appellant later participated in an EROI in which he made a number of admissions.

When asked if he was involved in the stealing of the bag and its contents, the appellant replied “I was there.  I took the bag.”

When asked what he did with the stolen bag and its contents the appellant replied “I took the money and gave the rest to the boys.”

Value of stolen property: $1780

 

File No.

21216594

Charge:

7. Unlawfully entered a building, namely 69 Moulden Terrace, with the circumstances of aggravation that (i) EA, EzA and AH intended to commit the crime of stealing therein and (ii) that the said building was a dwelling house (s 213 Criminal Code).

Sentence:

Convicted and sentenced to a term of detention of 2 months, cumulative on 21213826.[6]

Précis Summary:

At approximately 11:30am on 30 April 2012, the appellant and co-offenders AH and EzA went to 69 Moulden Terrace, Moulden, where they formed the joint intent to unlawfully enter the premises.

The appellant watched as co-offender AH smashed the lower glass panel of a window to the dining room.  The appellant and co-offenders then entered the residence.  Co-offender AH rifled through the fridge and cupboards throughout the premises whilst co-offender EzA acted as a lookout.  One of the co-offenders used an unknown implement to damage the lock to the roller door of the shed.

The following property was stolen from inside: 1 x 8GB iPod Touch, 1 x bottle of Baileys Irish Cream Liqueur, 1 x bottle of Bacardi Superior Rum, 1 x bottle of Bundaberg Five Rum, 1 x packaged gift set consisting of a bottle of Jack Daniels with two glasses, 1 x bottle of wine, 2 x hockey sticks, a blue canvas tackle box, a pair of football shorts, a pair of white runners and a pair or black runners.

Total value of stolen goods: approximately $1,205

Total value of unrecovered goods: approximately $250

Value of damaged property: approximately $400

Upon arrival of the victim and police at the premises, the appellant and co-offenders fled over the back fence.  The appellant and co-offenders were chased by police but evaded apprehension.

At 11:26am on 1 May 2012, the appellant was apprehended at his home address and was conveyed to the Darwin Watch House.  He participated in an EROI on 2 May 2012.

When asked why he unlawfully entered the residence he stated “Nuh.”

When asked why he stole property from the residence he stated “Nuh.”

 

File No.

21222468

Charge:

1.  On 16 April 2012, trespassed on premises, namely 69 Moulden Terrace, Moulden (s 5 Trespass Act).

2. On 16 April 2012, trespassed on premises, namely a Toyota Klugar (s 5 Trespass Act).

3. On 16 April 2012, trespassed on premises, namely a Toyota Hilux (s 5 Trespass Act).

4. On 16 April 2012, did steal 1 x iPod Touch, 1 x iPod Classic, 1 x iPod Nano, 1 x Shimano Livefire fishing rod, 1 x fishing rod and reel, 1 x wallet, 1 x womens hand bag, 1 x Oakley sunglasses, 1 x Arnette sunglasses, the property from 69 Moulden Tce (s 210 Criminal Code).

5. On 20 May 2012, unlawfully entered a building, namely 29 Cavanagh St, Darwin City with the circumstance of aggravation that (i) EA intended to commit the crime of stealing therein (s 213 Criminal Code).

6. On 20 May 2012, did steal jewellery, valued at approximately $2000, the property of Bling Jewellery (s 210 Criminal Code).

Sentence:

On charges 1, 2 and 3, sentenced to an aggregate term of detention of 2 months. On charges 4, 5 and 6, sentenced to an aggregate term of detention of 2 months, cumulative on the sentence for charges 1, 2 and 3.[7]

Total sentence of 4 months detention cumulative on file 21216594.

Précis summary:

16 April 2012

In the early hours of 16 April 2012, the appellant with unknown co-offenders went to 69 Moulden Terrace and entered the rear of the premises through a dummy locked access gate.  The appellant with co-offenders searched through two unlocked vehicles, a gold Toyota Kluger and a Champaign Toyota Hilux, and the yard.

The appellant and co-offenders stole the following items from the property at 69 Moulden Terrace: 1 x iPod Touch, 1 x iPod Classic (Richard Baldock engraved on the back), 1 x iPod Nano, 1 x Shimano Livefire fishing rod, 1 x fishing rod and reel, 1 x wallet, 1 x woman’s hand bag, 1 x Oakley sunglasses, 1 x Arnette sunglasses. 

Approximate value: $2,000.

Some of the stolen property was conveyed to the appellant’s home.

20 May 2012 charges

On 20 May 2012, the appellant with unknown co-offenders attended the Bling Jewellery Store at 29 Cavanagh Street, Darwin City.  The group gained entry to the premises by removing glass louvers from a rear window, dropping the louvers on the ground and smashing them in the process (approximate cost of damage $250).

The appellant and co-offenders stole approximately 40 assorted jewellery items from the Store, including earrings, necklaces, bangles, rings and pendants.  Approximate value of stolen property: $2,000.

A fingerprint on a louver at the point of entry to the Store was located by Police Forensics and matched to the appellant.

On 12 June 2012, police executed a search warrant where a black and silver iPod classic with Richard Baldock engraved on the back was located.  This was identified as being the iPod stolen from 69 Moulden Terrace on 16 April 2012.

The appellant was arrested on 12 June 2012 for these and other offences.  He participated in an EROI later that day in which he made some admissions.

When asked if he had stolen anything from 69 Moulden Terrace, he said “I just stood at the fence”.  When asked why he had the stolen property in his possession, he said “I forgot it was there”.  When asked why he had unlawfully entered the Bling Jewellery Store, he said “I just held the door for them”.

 

File No.

21219597

Charge:

2. On 21 May 2012, stole 1 x wallet, Australian currency valued at $50, the property of Dale Thompson (s 210 Criminal Code).

3. On 21 May 2012, unlawfully used a motor vehicle, namely a Mazda 121 Hatchback, NT 975-251 (s 218(1) Criminal Code).

4. On 21 May 2012, drove a motor vehicle, namely a Mazda 121 Hatchback, NT 975-251, on a public street, namely Streets of Moil, whilst not being the holder of a licence to do so (s 32(1)(a)(i) Traffic Act).

5. On 21 May 2012, did steal unleaded fuel, valued at $47.15, the property of United petroleum (s 210 Criminal Code).

6. On 22 May 2012, did steal 1 x bag of Allens lollies, valued at $3.50, the property of BP Pine Creek (s 210 Criminal Code).

8. On 22 May 2012, did steal unleaded fuel, valued at $22.42, the property of BP Pine Creek (s 210 Criminal Code).

Sentence:

Convicted on all charges and sentenced to an aggregate term of detention of 6 months, partially concurrent with file 21222468 by 2 months.[8]

Précis summary:

On 21 May 2012, the appellant and co-offender WM trespassed on the yard at 18 Butters St, Moil.  They entered a parked vehicle at the residence and stole a set of car keys.  The appellant and co-offender used the stolen keys to enter another vehicle parked within the premises, a blue Mazda 121 NT 975-251.  They stole $15 from a wallet inside the Mazda vehicle, discarding the wallet into the garden.

The appellant and co-offender then stole the Mazda 121 NT 975-251.  The appellant, who did not hold a driver’s licence, drove the vehicle from Moil to Casuarina.

At 11.00pm on 21 May 2012, the appellant in company with his co-offender drove the stolen Mazda to United Petroleum, Vanderlin Drive, where the co-offender placed $47.15 worth of unleaded fuel into the vehicle.  The appellant and co-offender drove away from the service station without making payment.

The appellant and co-offender drove to Palmerston and picked up two other co-offenders, MB and JW. The appellant and co-offenders drove the stolen vehicle to Pine Creek, each taking turns at driving.

At 5.54am on 22 May 2012, the appellant and co-offenders stopped at BP service Station, Pine Creek and re-fuelled the vehicle.  They entered the shop and paid for the fuel.  While inside, the appellant stole a bag of lollies worth $3.50.

The appellant and co-offenders drove the stolen vehicle to Katherine, stopping at the Caltex service station, Victoria Highway at 12.15pm.  A co-offender placed $55.42 worth of unleaded fuel in the vehicle and another co-offender drove away without making payment.

At 1.34pm, the appellant and co-offenders drove to BP service station, Pine Creek and placed $22.42 worth of unleaded fuel in the vehicle, driving away without making payment.

At 2.13pm the appellant and co-offenders drove the stolen vehicle into the Adelaide River Township, where they were engaged in a police pursuit.  The appellant was a passenger at this time.  The pursuit was terminated when police lost sight of the vehicle.

At 3.15pm on the same day, the vehicle was again engaged in a police pursuit around the streets of Palmerston before police lost sight of the vehicle.

On 23 May 2012, the appellant was located by police at Palmerston Shopping Centre and arrested.  He was conveyed to the Darwin Watch House and participated in an EROI.

 

File No.

21217782

Charge:

1. On 9 May 2012, engaged in conduct that has resulted in a breach of bail undertaking (s 37B Bail Act).

Sentence:

Not stated but incorporated into the aggregate sentence: “... for all fresh files, taking into account concurrency and accumulation, there will be a total term of detention of 14 months and that will commence on 23 April.”[9]

Précis summary:

On 8 May 2012, the appellant entered into a bail agreement with Oliver SM with conditions, including a condition that he live with his mother and, except as provided for, that he not be absent from home between 7.00 pm and 7.00 am and during those hours to present at the door to police on request.

At 7.08 pm and again at 7.50 pm on 9 May, police attended and were unable to locate the appellant.

At 8.00 am on 10 May, the appellant was located and was arrested for breach of bail.  When asked his reason for breaching his bail, the appellant replied “I was asleep”.

 

File No.

21219590

Charge:

1. On 20 May 2012, engaged in conduct that has resulted in a breach of bail undertaking (s 37B Bail Act).

Sentence:

Not stated but incorporated into the aggregate sentence: “... for all fresh files, taking into account concurrency and accumulation, there will be a total term of detention of 14 months and that will commence on 23 April.”[10]

Précis summary:

On 12 April 2012, the appellant entered into a bail agreement for files 21217245, 21216598, 21216594, 21216593, 21215393, 21213826, and 21213819.  His bail conditions included that he live with his mother and, except as provided for, that he not be absent from home between 7.00 pm and 7.00 am and during those hours to present at the door to police on request.

At 9.42 pm on 20 May 2012, police attended for a bail check.  The appellant did not present himself as required, and his mother told police that he had left the premises at lunch time, saying he was going to the markets.

At 12.25 pm on 23 May, the appellant was located and was arrested and conveyed to the Darwin police station.  When asked why he breached his bail conditions, the appellant replied “I was bored”.

 

[9]       The sentencing and re-sentencing exercise undertaken by the magistrate took into consideration the appellant’s offending from 15 October 2010, when the appellant was 12 years and 2 months old, to 21 May 2012, when the appellant was 13 years and 9 months old.  

[10]     Counsel for the appellant submitted that the magistrate should not place the appellant on suspended sentences in light of the fact that he was only 13 years of age.  Counsel submitted:

“… the only thing really can be done is that DCF[11] in particular but everyone continue to try and support EA to steer him out of this trouble that he’s in and continue to focus on his prospects of rehabilitation, given that he is so young and all that can be done really at this stage is to keep trying various options.”

[11]     The appellant had been declared a child in need of protection under the provisions of the Care and Protection of Children Act 2007, and in the past had been placed in care by the Department of Children and Families.  The appellant had not accepted these placements and, to use the words of his counsel in the Youth Justice Court, had a “habit of self-placing back with mum”.  Unfortunately, the appellant’s mother was not able to look after her son properly and, when he was in her care, he had not been provided with adequate control or guidance; he had not been attending school; and he had been committing serious criminal offences.  The prosecutor referred to the court’s efforts in the past to apply “sensible intervention [to the appellant] to keep him out of trouble and give him safe home options under the care of DCF or a structure around him in schooling so he could start to conform to the community expectation and stay out of trouble.”  He continued:

“But clearly he’s breached court orders by breaching his bail and further reoffending on countless occasions.  And I think that we’re at a point now where EA is safe in Don Dale, he’s getting an education, he’s being cared for, he’s not at risk.  My concern with EA is that if he’s released he’s going to go straight back into offending, breaching any order made by the court which he continually does and running away from DCF care. …  My submission would be that a sensible term of imprisonment. …  I’d like to have a more positive submission in view of where EA’s going, but clearly to this point I think that every intervention possible to the court, and he has had more than his fair share of leniency, he just – he has no respect for it. … EA … needs to make these decisions to change his behaviour.”

[12]     The appellant’s counsel submitted in reply that not only was detention a last resort (particularly given the appellant’s young age) but also that detention should not be used as a welfare measure: “… someone isn’t to be incarcerated for their own good, … it serves the purposes of punishment and deterrence, not to address their welfare needs.”

[13]     The learned magistrate’s sentencing remarks indicate that she fully appreciated that the purpose of detention was not to enforce residential care decisions which DCF had been unable to enforce.  After referring to the appellant’s failure to take advantage of the opportunities offered to him in the past by the Youth Justice Court, and sensitively dealing with the fact that the appellant’s mother was not able to properly care for him, her Honour’s sentencing remarks continued as follows:

“… Ms Read tells me and I agree with her that you should not be kept in Don Dale because it’s difficult for the CEO, the Department, to put you in a home and keep you there.  However, I also have to consider the risks to the community of your offending and what has to be done or what can be done to stop you from doing that.  We have to try and get you to a situation where you can start doing the right thing by yourself and by the community, get yourself healthy, out of danger and out of trouble. 

The message – if I released you today I believe the message I’m giving you is that we don’t care.  Because if I allow you back into the community with no conditions, as Ms Read has been suggesting, I know that you will with no rules, no care, be in a situation that will no doubt lead you to commit further offences.  The law also says to me I have to consider keeping you in Don Dale should be the last resort.  And unfortunately for you, EA, that unfortunately is where we have reached.

 

The only option you have left me today, certainly on your more serious charges, is to require you to spend further time in Don Dale.  I have to remind you and myself that to break into someone’s house with the intention to steal, if you were an adult, the maximum penalty would be 10 years imprisonment and for stealing is seven years imprisonment.  Unlawful use of motor vehicle where you create some damage is also seven years.

 

As a person under the age of 15 the maximum you can get for each of those offences is 12 months in detention.  Now you are going to be spending some time in detention and I’m hoping at the end of that time you will realise what choices you have to make for yourself when you are released and what you can do for yourself to avoid spending further time in Don Dale and avoid, as an adult, spending any time in Berrimah Prison.”

Sentencing Table

[14]     Her Honour then proceeded to sentence on the various matters as set out in the schedules above.  The sentencing table, set out below, demonstrates the effect of the cumulation and concurrency ordered by her Honour.  

Months’

Detention

1

2

3

4

5

6

7

8

9

10

11

12

13

14

GBB #1

Breach

2134712

X

X

 

 

 

 

 

 

 

 

 

 

 

 

GBB #2

Breach 21122752

X

X

 

 

 

 

 

 

 

 

 

 

 

 

Stealing

21215393

 

 

7 days

 

 

 

 

 

 

 

 

 

 

 

Unlawful use MV etc 21213819

X

X

 

 

 

 

 

 

 

 

 

 

 

 

Trespassing/ Stealing

21213826

 

 

X

X

 

 

 

 

 

 

 

 

 

 

Unlawful entry dwelling etc

21216594

 

 

 

 

X

X

 

 

 

 

 

 

 

 

Trespass, stealing + Unlawful entry/ stealing 21222468

 

 

 

 

 

 

X

X

X

X

 

 

 

 

Stealing, unlawful use MV etc

21219597

 

 

 

 

 

 

 

 

X

X

X

X

X

X

Breach of bail

21222465

1 day

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[15]     I now deal with the grounds of appeal.

Ground 1 – failure to properly apply the principle of totality

[16]     The appellant’s complaint is that the magistrate did not stand back and assess the overall sentence she imposed and consider whether any adjustment was warranted for reasons of totality, and that she thus failed to undertake the ‘third stage’ totality exercise referred to in the decisions of the High Court in Mill v The Queen (1988) 166 CLR 59 and Postiglione v The Queen (1997) 189 CLR 295, recently discussed and applied in Wurrawilya v Davis & Anor [2012] NTSC 57.  A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, and questions of totality.[12] 

[17]     It is apparent that the learned sentencing magistrate made the following orders for concurrency: the sentences for the two breach files (21034712 and 21122752, two months detention on each) were ordered to be served concurrently; the sentence of two months detention on file 21213819 was ordered to be served concurrently with the sentence imposed in relation to the breach files; and two months of the six months sentence of detention on file 21219597 was made concurrent with the sentence on file 21222468.

[18]     However, the question I have to consider is whether, after imposing the individual sentences she imposed for each offence, properly allowing for some concurrency and with the sentences “properly made consecutive in accordance with the principles governing consecutive sentences”, the magistrate took “a last look at the total” or “looked back at the product of [her] calculations and discounts”, in the words, respectively, of the High Court in Mill and of Kirby J in Postiglione.

[19]     It is correct that the magistrate did not expressly refer to the fact that she was undertaking the totality stage of the sentencing exercise.  Nor did her Honour  expressly say, “I now remind myself that I need to have one last look over the combined sentencing orders I have made to ensure that they are in accordance with the totality principle”, or words to that effect. 

[20]     However, the appellant has not satisfied me that the magistrate did not take into account the totality principle.  On the contrary, I note that, before imposing individual sentences, her Honour had calculated and expressly referred to the total effective term of detention and the period after which suspension was to take effect.  She was fully aware of the end result at the start.  That is an indication that totality had been assessed and taken into account.  Moreover, her Honour remarked in relation to the concurrency ordered by her in relation to file 21218319:

“… on charges 1 and 3 EA will be convicted and sentenced to an aggregate term of detention of 2 months.  That will be served concurrently with those terms I’ve just read out on the breach files.  Some of this concurrency, Sergeant and Ms Read, is to obviously take into account the principle of totality.”

[21]     The reference to “some of this concurrency” being related to totality was an indication by her Honour that some of the concurrency was related to the second stage consideration of cumulation/concurrency, but that ‘the balance’ of the concurrency was ordered to give effect to the principle of totality.

[22]     Ground 1 must fail.

[23]     I make the further observation that the relevant facts for sentencing in Wurrawilya v Davis & Anor were somewhat unusual, and that the structure of the sentence appealed from was very different to that in the present case.  I add that, in the facts of this case, the presumption, that there is no error, would apply.[13] 

Ground 2 – manifest excess

[24]     The appellant contends that the overall sentence of 14 months, suspended after 10 months, was manifestly excessive.  It is submitted that the sentence is clearly beyond the normal sentencing range for 13 year old offenders and is plainly unjust.  In written submissions, it is submitted on his behalf as follows:

“The objective criminality of the offending was not at the higher end of the scale.  Most offences were opportunistic.  None of the offending was professional in character.  Most offences were committed in company with peers.  Most of the offences involved older co-offenders acting as leaders with the appellant acting as a follower.  This is consistent with his young age, lack of social development, and deprived background.  Immaturity was a substantial mitigating factor.

The nature and quantum of offending was not uncommon for Youth Court offenders.  It is entirely normal for youth offenders to come before the court with a large numbers of offences across many files.  There was nothing exceptional about the offending to justify a sentence that was so over and above sentences imposed on comparable youth offenders.

There was no evidence of a significant violent history, substance abuse or other subjective material which would justify a sentence with such an emphasis on punishment, retribution and the protection of the community.”

[25]     I do not agree that most of the appellant’s offences were opportunistic.  Nor is it clear that most of the offences involved older co-offenders acting as leaders with the appellant acting as a follower.  Moreover, this Court has not been provided with any evidence or other material to support the submission that the sentence was clearly beyond the normal sentencing range for 13 year old offenders.  I say more about that in par [31] below.

[26]     Counsel referred to the imposition of the following individual sentences which were said to be manifestly excessive:

File 21215393 - the 7 day sentence of actual detention for a first shopstealing offence was “unnecessary, counter-productive and draconian”.   

File 21219597 - the sentence of 6 months detention for drive unlicensed and trespass was manifestly excessive.  A term of actual detention or imprisonment for drive unlicensed was manifestly unjust.  This maximum penalty was imposed despite the guilty plea, the age of the appellant, and his status as a youth.

File 21222468 - the sentence of 3 months detention for three trespass offences was further evidence of error.  A custodial penalty for the offence of trespass is extremely rare.

File 21219597 – The sentence of 6 months detention for this offence was manifestly excessive.  Whilst the appellant had one prior for this type of offence, he was largely influenced by the adult co-offender who played a dominant role in the enterprise. 

[27]     I will deal with the submission as to the asserted manifest excess of individual sentences, before considering the sentence overall.  

[28]     I agree that, on file 21215393, the seven day sentence of actual detention for a stealing offence was a severe sentence, even for an adult.  Although this was not the appellant’s first stealing offence or property offence, the seven day sentence of actual detention for stealing was excessive, and arguably manifestly excessive.  Relevant to this appeal, however, that sentence did not affect the overall sentence.  Although the sentence was ordered to be cumulative on the sentences imposed on the two breach files, the two month sentence for trespassing and stealing on file 21213826 was ordered to be cumulative on the sentence on file 21213819, which was itself ordered to be served concurrently with the sentences imposed on the two breach files.  This can be seen in the Sentencing Table at par [14].  The seven day sentence was thus subsumed into the two month sentence on file 21213826, and had no independent operation.

[29]     It is difficult to understand the submission that the sentence of six months detention on file 21219597 for drive unlicensed and trespass was manifestly excessive.  There was no count of trespass charged on that file.  There was one ‘drive unlicensed’, but the aggregate sentence of six months detention was imposed for all of the following: stealing a wallet and money; unlawful use of a motor vehicle (which included driving to Katherine and return, and being engaged in police pursuits in both Pine Creek and Palmerston); driving without a licence; and two counts of stealing fuel.  I agree with counsel for the respondents that, in the case of an aggregate sentence of six months detention, it would be erroneous to assume that the magistrate imposed a sentence of six months (or anything like that that) for the less serious offences comprised within the aggregate offending. 

[30]     The appellant argues separately that the sentence of six months detention for unlawful use of a motor vehicle on file 21219597 was manifestly excessive.  This argument overlooks the fact that there were five other charges on file 21219597, although the unlawful use of a motor vehicle was probably the most serious.  I put that first difficulty to one side.  The appellant then relies on the decision in Nelson v Chute,[14] where Martin (BF) J held that a sentence of seven months detention for a 15 year old male for unlawful use of a motor vehicle was manifestly excessive.  Even though the vehicle had been involved in an accident while the youth was driving and had been written off, Martin J reasoned that the magistrate’s sentencing discretion had miscarried, for several reasons.  The magistrate had little background information about the youth, apart from his extensive record of criminal convictions.  The magistrate erred in failing to seek further information concerning the appellant.  The magistrate erred in principle in deciding that the appellant should be kept in detention under the criminal justice system for further education.  The magistrate had not properly considered the circumstances of the young offender and of the offence.  The offence was the youth’s first offence for unlawful use of a motor vehicle.  The youth was trying to return home to Yuendumu from Alice Springs after unsuccessfully endeavouring to do so lawfully: it was “not a simple joy ride”.[15]  The sentence was far in excess of the range of sentences imposed on juveniles for like offending, as Martin J explained:

“Counsel for the appellant placed before this Court details of sentences imposed on juveniles, who had prior convictions for dishonesty, including unlawful use of motor vehicles, upon conviction for unlawful use of motor vehicles.  Counsel for the respondent did not produce any information which might be a guide as to what might be the pattern for offences such as this in relation to offenders such as the appellant.  It is plain that a sentence of seven months detention is way beyond that imposed upon like offenders (with like records), in the Juvenile Court, for like offences.  The maximum detention was for a period of three months, in other cases detention orders were suspended forthwith upon the offender entering into a bond to be of good behaviour with conditions (including being subjected to supervision), and others tailored for the particular case.  ... The pattern which emerges, admittedly on fairly limited information, but consistent with general policy involving the sentencing of juveniles, is that such persons are not placed in confinement, but rather, given the opportunity to serve the sentence within their communities with supervision (by whom is not explicit), and under such conditions as the sentencing court thinks appropriate in the particular case.”  

[31]     It may be noted that Martin J had material before him sufficient to enable him to identify a range of sentences imposed at that time (1994) on juveniles who were being sentenced for unlawful use of motor vehicles and who had “prior convictions for dishonesty, including unlawful use of motor vehicles”.  As mentioned in par [25] above, I have not received material of that kind.  I have only the assertion of counsel for the appellant, in circumstances where counsel for the respondents contends that the seriousness of the offending clearly justified an aggregate sentence in the order of what was imposed.

[32]     I bear in mind that the unlawful use of a motor vehicle on 21 May 2012 was not the appellant’s first offence of that kind.  He had engaged in the unlawful use of a motor vehicle only six weeks previously, on 7 April 2012, as appears from the facts in file 21213819.  In the earlier offending, the appellant drove a stolen motor vehicle in a dangerous manner on Bonson Terrace, Moulden, swerving from side to side and intentionally causing the vehicle to lose traction.  He then applied the handbrake as the vehicle was travelling at considerable speed, causing the vehicle to skid.  The vehicle collided with the gutter and narrowly avoided colliding with a suburban street light pole.  The appellant was arrested on 11 April 2012, but in his police interview he denied being in the stolen vehicle.  For that earlier offending, the magistrate sentenced the appellant to two months detention, to be served concurrently with the sentences imposed in relation to the two breach files. 

[33]     Different considerations applied to the sentencing of the appellant on the second charge of unlawful use of a motor vehicle, that committed on 21 May 2012.  Although the appellant had not been dealt with by the court for his earlier unlawful use of a motor vehicle, he had been arrested, interviewed by the police, and released on bail.  The appellant seemed not to have learnt any lesson from that.  Moreover, the offending on 21 May 2012 was in some respects worse than the earlier offending in terms of the distances driven and the period during which the owner of the stolen vehicle was deprived of its use. 

[34]     The appellant has not established that the aggregate sentence of six months detention was manifestly excessive for unlawful use of a motor vehicle and for the other five matters charged in file 21219597. 

[35]     I turn to consider the final individual sentence which the appellant says was manifestly excessive: the sentence of three months detention on file 21222468 for three trespass offences.  The appellant’s written submissions are in error in referring to three months detention; the sentence was in fact two months detention.  In my view the magistrate erred in sentencing on file 21222468 because she sentenced on charges 1, 2 and 3, the offences committed at 69 Moulden Terrace in the early hours of 16 April 2012, separately from charge 4, the stealing offence committed at the same address at the same time.  Her Honour in sentencing then grouped charge 4 with charges 5 and 6, the latter two relating to offences of aggravated unlawful entry and stealing committed at 29 Cavenagh Street on 20 May 2012.  Notwithstanding the error, however, I do not consider that four months overall was excessive as an effective aggregate for the six charges on file 21222468.

[36]     Having dealt with individual sentences which were said to be manifestly excessive, I now turn to consider the overall sentence imposed by her Honour.  The appellant refers to a number of matters which are said to “demonstrate the excessive length of the sentence” including the youth of the appellant; the fact that children under 15 are in a different category in terms of sentencing than those who are 15 years and older,[16] and hence a more sympathetic approach is required; that convictions were imposed on all charges; that the utilitarian value of the guilty pleas and the (suggested) evidence of remorse was not properly assessed or recognised; that adding back the assumed discount[17] for the guilty plea on all matters resulted in a starting point which was manifestly excessive; that, contrary to the “normal sentencing practice of the Youth Justice Court”, the ascending order of sentencing options and the principles of s 4 of the Youth Justice Act, the magistrate did not exhaust lesser sentencing options before utilising harsher options; that the appellant had not received the benefit of several lesser sentencing options, for example, he had never been a given community work order or a suspended sentence; that the assessment of appellant as unsuitable for supervision or a community work order did not warrant the sentencing court upgrading to harsher sentencing options; that no reason was given for not imposing a non-custodial disposition on an offender who had not previously been sentenced to a term of detention; that the objective criminality of the appellant’s offending was not at the higher end of the scale; that the “nature and quantum” of offending was not uncommon for Youth Court offenders; that there was no evidence of a significant violent history, substance abuse or other subjective material which would justify a sentence “with such an emphasis on punishment, retribution and the protection of the community”; that the prosecutor had not sought a lengthy term of detention; and that the sentence of detention was inconsistent with the decision of the magistrate to grant bail on 5 June 2012.

[37]     Most of those matters can be dealt with briefly.  The magistrate was well aware of the appellant’s youth but was also aware of the principle set out in s 4(a) Youth Justice Act that a youth must be held accountable and encouraged to accept responsibility for offending behaviour.  As appears from the extract of the magistrate’s sentencing remarks in par [13] above, her Honour was well aware of the risk that the appellant would reoffend if he were released.  Her Honour was also concerned as to the appellant’s rehabilitation, and noted that there had been no progress with rehabilitation to the point of sentencing because, her Honour concluded, the appellant “continues to disconnect and to not want to engage with those people who are trying to help him.”  In sentencing the appellant, her Honour specifically referred to the fact that, because he was under the age of 15, the maximum penalty which the Youth Justice Court could impose was 12 months detention.

[38]     As to the assertion that evidence of remorse was not properly assessed or recognised, I note that the appellant’s counsel in her submissions to the magistrate on 5 and 15 June did not refer to remorse on the part of the appellant.  Counsel referred to the appellant’s realisation “that he shouldn’t have gotten into the car and shouldn’t have driven it” in relation to file 21213819.  She made some submissions to the effect that the appellant accepted responsibility for his offending, but she said nothing which expressed or even suggested remorse on his part.[18]

[39]     At one stage, in relation to restitution, the appellant’s counsel said this to the Court:

I have discussed with EA that while he doesn’t have the capacity to pay restitution because of his age and his personal circumstances, that it might be appropriate for him to try and repay some of what he did through community work.  And we did speak about how people do have to work hard to save up and buy things like computers, which he took.  And so perhaps on that matter I would ask your Honour to consider a small amount of community work on that file also.

[40]     Notwithstanding that counsel told the Court the subject of her discussions with her client, and that she had told him that it might be appropriate for him to try and repay some of what he did through community work, there was no indication given to the Court as to the appellant’s attitude to doing community work or his attitude to doing anything concrete by way of restitution to the significant number of victims of his offending.  The submission of defence counsel was quite bland.

[41]     If counsel had wished to establish remorse, then a lot more could have been done, including calling the offender to give evidence about his remorse.

[42]     Although the appellant was entitled to be given full credit for the utilitarian value of his pleas of guilty, it does not follow that “the guilty pleas were also strong evidence of remorse” as submitted by counsel for the appellant.

[43]     In my opinion, the magistrate did not err in imposing sentences of detention on the appellant.  He had in the past been given significant opportunities by the use of non-custodial sentencing options, but those options had failed to achieve any measure of rehabilitation.  Moreover, her Honour had considered imposing a sentence requiring the appellant to participate in an approved project of community work, as well as a sentence (I assume either a suspended sentence or a good behaviour order) under which the appellant would be under supervision.  However, the appellant was assessed as unsuitable for a community work order and unsuitable for supervision,[19] and that negative assessment significantly limited the possible sentencing options open to the magistrate.  Moreover, as the appellant’s counsel accepts,[20] the magistrate was presented with a sentencing dilemma, based (in part at least) on the inability of the Department of Children and Families to provide an appropriate residential placement for the appellant, who was a child in need of protection.  The appellant’s residential instability, the absence of parental control and guidance in his life, and his unwillingness to engage with people who wanted to help with his rehabilitation were all matters which were relevant to the risk of his re-offending and the prospects of his rehabilitation.

[44]     I would add that the appellant’s offending on the two charges of unlawful use of a motor vehicle, and particularly his involvement in the second, made community protection a factor in his sentencing, in particular because the appellant had not adequately engaged in rehabilitation attempts to that time.  There was considerable justification for the magistrate’s view that if the appellant were not sentenced to detention, he would re-offend again in the very near future.  There were no positive indications that that would not be the case.

[45]      As to the contention that the magistrate did not give reasons “for not imposing a non custodial disposition” on the appellant, that is not made out by reference to the sentencing remarks.  I refer to the sentencing remarks extracted in par [13] above, in which the magistrate explained her reasons for imposing a sentence of detention.  I also note that, at the start of her sentencing remarks,[21] the magistrate referred to the appellant’s history of breaches of ‘no further trouble’ orders and good behaviour orders, and said this to the appellant:

“You have been given opportunities through diversion, no further trouble orders and good behaviour bonds, but you still show to the Court that you are unable to comply with those orders and take those opportunities.  You are someone who has suffered sustained trauma in your life, in my view.  You have been exposed to domestic violence between your parents.  You have been exposed to substance abuse by your mother and you suffered neglect at the hands of your mother. …  

It’s very clear to me that you need a lot of help to give yourself some skills to cope with all that damage that has been caused to you by all of those things that have happened to you in your childcare so far.  It’s also clear to me that you don’t trust anyone to be able to help you and you do not trust yourself to be able to change your life around. …

… I also have to consider the risks to the community of your offending and what has to be done or what can be done to stop you from doing that. 

[46]     Having regard to the extracts from her Honour’s sentencing remarks set out in par [13] and in the previous paragraph, I do not accept the argument that the magistrate did not give reasons for sentencing the appellant to detention.

[47]     The contention that the objective criminality of the appellant’s offending was “not at the higher end of the scale” is without substance.  The magistrate did not state that she considered the appellant’s offending to have been at the higher end of any scale.  The magistrate’s task under s 81(3) Youth Justice Act was to dispose of the matters before her in a way that was “in proportion to the seriousness of the offence.”  The appellant has not established that the magistrate erred in imposing an effective aggregate sentence which was disproportionate to the aggregate of his offending.

[48]     The assertions that the prosecutor had not sought a lengthy term of detention and that the sentence of detention imposed was inconsistent with the decision of the magistrate to grant bail on 5 June 2012 are not to the point.  The learned magistrate had to exercise her own discretion, irrespective of matters submitted or not submitted by the prosecutor.  The fact that her Honour granted bail on 5 June would appear to be no more than an indication that, at that stage, she had an open mind about the sentence she would ultimately impose.  Even if her Honour sent a ‘wrong signal’ about her sentencing intentions, it does not invalidate the exercise of her sentencing discretion 10 days later.  I also note, for possible relevance, that further charges (file 21222468) were before the Youth Justice Court on 15 June 2012, as well as a breach of bail (file 21222465) constituted by the appellant returning to his mother’s home on 7 June, and staying there until 12 June.  The magistrate was entitled to take into account those additional matters.

[49]     Counsel for the respondents submits that the seriousness of the offending clearly justified an aggregate sentence in the order of what was imposed.  He concedes that the sentence overall was a heavy one, but submits that “it was not so objectively disproportionate to the sequence of bouts of offending being addressed by the learned sentencing Magistrate that it could be characterised as ‘excessive’ (especially when taking into account the appellant’s antecedents).”  I accept that submission.

[50]     The appellant has not established that the effective aggregate sentence of 14 months, mitigated by the order for partial suspension after 10 months, was manifestly excessive. 

[51]     There may have been scope for permitting a greater degree of concurrency in respect of the sentences of two months, four months and six months on files 21216594, 21222468 and 21219597 respectively, but the extent of any concurrency was a matter of sentencing discretion.  While it may be thought that the effective total sentence on those three files was heavy, in my view the sentence on file 21213819 was lenient, particularly so given that her Honour permitted it to be served concurrently with the two breach re-sentences.  The appellant has failed to establish error on the part of the learned magistrate.  Her Honour did not err in principle, give weight to irrelevant considerations or fail to take into account relevant ones.  The sentence of 14 months suspended after ten months was not “unreasonable or plainly unjust” in the sense referred to by the High Court in the well-known authority of House v R.[22]  To alter the sentence so as to substitute a lesser sentence would be merely substituting one discretion for another and would not be justified in circumstances where, in my view, her Honour’s discretion did not miscarry.

Ground 3 – custody as a last resort

[52]     Ground 3 of the appeal is that the magistrate erred by failing to give appropriate weight to the principle that a youth should only be kept in custody for an offence as a last resort and for the shortest appropriate period of time.  This reflects the general principle set out in s 4(c) Youth Justice Act.

[53]     The principle is repeated and reinforced in s 81(6) of the Act.  The principle was acknowledged by the learned magistrate.  However, where a ground of appeal is that a sentencing magistrate (or judge) failed to give sufficient weight to a particular factor, in contrast to a ground asserting that the sentencing magistrate (or judge) disregarded a factor altogether or took an irrelevant factor into consideration, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error.[23]

[54]     The appellant argues that the magistrate’s sentencing remarks, read in context, disclose that the purpose of detaining the appellant was “not just as punishment for his offending, but for the additional and erroneous purposes of the appellant becoming healthy and being kept out of danger.”  The appellant further argues that to ‘warehouse’ a child in detention in this way is contrary to fundamental principle and inconsistent with the Youth Justice Act.  The appellant referred to Nelson v Chute[24] for the proposition that the purpose of imprisonment (or detention) is not to confine a youth for his or her own good, or education, or until something better comes along.

[55]     Underlying the appellant’s argument on ground 3 is the proposition that the magistrate imposed a longer sentence on account of the welfare needs of the appellant; that the sentence was unjustifiably longer than that warranted by the objective circumstances of the offending. 

[56]     The appellant’s argument on ground 3 must fail.  I am not satisfied that the learned magistrate imposed a sentence, or made the sentence longer, on account of the welfare needs of the appellant.  As I concluded in par [50], the appellant has not established that the sentence overall was manifestly excessive.  The appellant has failed to demonstrate error on the part of the learned magistrate.  In my judgment, the appellant has misconstrued the magistrate’s sentencing remarks.  The statement by her Honour:

“We have to try and get you to a situation where you can start doing the right thing by yourself and by the community, get yourself healthy, out of danger and out of trouble.”

should be read in the context of the sentencing remarks extracted more fully in par [13] above.  Her Honour there referred to the risks to the community of the appellant’s offending.  The danger adverted to by the magistrate was most probably the danger of the appellant driving (and being driven) in a dangerous manner or at a dangerous speed in stolen vehicles, as charged in files 21213819 and 21219597.  It is obvious that the danger was both to the community and to the appellant himself.  I repeat my observation in par [44] that the appellant’s offending on the two charges of unlawful use of a motor vehicle, and particularly his involvement in the second, made community protection a factor in his sentencing, in particular because the appellant had not adequately engaged in rehabilitation attempts to that time.  Properly understood, her Honour’s comments were an attempt to explain the connection between the appellant’s offending and the sentence of detention she imposed, and to encourage the appellant to start ‘doing the right thing’ by himself and by the community.  Her Honour’s explanation to the appellant indicates that she was aware of the need to achieve a result where the appellant would become a law-abiding adult, a most important consideration when dealing with youth offenders.  

[57]     Counsel for the appellant referred to Girrabul v The Queen [25] where Martin (BR) CJ allowed an appeal against a six month sentence of detention imposed by a magistrate on a 14 year old youth for some 15 property offences, most for stealing petrol.  The offences were committed over a two month period when the youth was 13 years old.  Significantly, the youth had not previously been before the Juvenile Court for any form of offending.  The magistrate took the view that the youth was not amenable to control by the court because he had failed in his bail undertakings.  Martin CJ held that the magistrate had wrongly rejected relevant considerations, and had erred in taking a strong view against permitting the youth, his family members and officers of Correctional Services and Family and Community Services “the opportunity to work together so as to change the course of the youth’s way of life”.  Although Martin CJ acknowledged the magistrate’s concern about the welfare needs of the appellant, he found that the magistrate “erred in principle in thinking that the protection of the community and the dealing with those needs could only be met by an order such as was made” [for six months detention].  

[58]     The sentencing remarks in Girrabul v The Queen relate to the particular circumstances of the offence and the youth offender there under consideration.  Martin CJ was not stating principles to be applied in all Youth Justice Court sentencing.  A comparison, even a detailed comparison, of the facts of one case with the facts of another in order to determine an outcome can result in serious error.  There are often significant relevant differences.  For example, a significant factor in the present appeal is the appellant’s prior record of offending and history of breaches of non-custodial orders.  This factor was not present in Girrabul v The Queen.  

[59]     At the hearing of the appeal, counsel for the appellant sought to lead evidence of an incident involving the appellant which occurred while he was in detention on 24 June 2012.[26]  Counsel asserted that the appellant was subjected to a sexual assault.  The purpose of the tender was to establish that the magistrate erred in thinking that the Don Dale Detention Centre was a healthy or safe environment for a 13 year old boy.  At the time of the incident, the appellant was being housed in a bedroom with a fellow detainee, who was 14 years old.  The fellow detainee “masturbated over” the appellant.  It is unclear from the précis as to whether “masturbated over” meant “masturbated while standing over” or “ejaculated on to”.  The matter was observed and reported to police by Detention Centre staff and the matter was investigated.  The youths were separated after the incident.

[60]     The evidence does not disclose whether the appellant was awake and aware of what was happening during the incident.  Moreover, when the appellant was assessed by a psychologist on 23 August 2012, he made no mention of the incident.  I quote from the report of the consultant psychologist:

EA described his mental state over the past six months as “sad”.  He reported that he disliked his current surroundings and wanted to leave Don Dale Corrections facility.  He then stated that he missed his mother and wanted to be at home with her.  He indicated that his current surroundings were not suitable for him and that he did not feel comfortable.  EA indicated that he was being bullied in the facility, namely in the form of name calling by another detainee.  He stated that this often made him feel “sad”.  EA did not indicate any adverse psychological effects regarding the bullying or any other incidents within Don Dale Juvenile Corrections facility; however this could be indicative of EA’s hesitancy with respect to asking for help.[27]

[61]     While the incident might well have been a disagreeable one for the appellant (if he was aware what was happening), I am not sure how much can be inferred about the effect (if any) it had on him, or as to whether the environment at Don Dale Detention Centre is healthy and safe.  I note that staff intervened promptly, and that the youths were then separated.  If the purpose of the tender was to demonstrate a lack of safety, and that the magistrate erred in her understanding as to detention being a safe environment, I am not sure that this incident is probative of anything relevant to the appeal against sentence.  I add that safety is relative: I pose the question whether detention, even with the risk of exposure to a masturbating room-mate, is safer than driving dangerously in stolen cars on Territory roads, pursued by police?

[62]     A significant problem in the appellant’s case on appeal is that his counsel did not make any constructive submission as to the appropriate sentence which should have been imposed.  Apart from the submission that the appellant should not have been sentenced to detention, and (in the alternative) that the period of detention imposed was excessive and unjust, no submission was put as to how the acknowledged sentencing dilemma facing the magistrate should have been resolved by her Honour.  For example, the complaint was made in written submissions[28] that the appellant “had not received the benefit of several lesser sentencing options.  He had never been a given community work order.  He had never been given a suspended sentence.”  That complaint fails to acknowledge the fact that the appellant was assessed as not suitable for community work, and not suitable for supervision.  It would have been reckless for the learned magistrate to have imposed a suspended sentence without ordering supervision.  Unlike the situation in Girrabul v The Queen, there was no prospect at the time of sentencing that the appellant and any of his family members would usefully work with officers of Correctional Services and Department of Children and Families to change the course of the appellant’s way of life.  

[63]     The tendering of fresh evidence on appeal is dealt with in s 176A Justices Act.  Once preliminary matters are satisfied, the Court is required to receive the evidence unless it decides on balance that it “would not afford a ground for allowing the appeal”.  This is a test of relevance to the issues on the appeal.[29]  In my view, the evidence of the incident on 24 June 2012, if received, would not afford a ground for allowing the appeal, and I am so satisfied.  I therefore do not admit the evidence. 

Ground 4 – failing to order a pre-sentence report

[64]     Under s 69 Youth Justice Act, where the Youth Justice Court is considering imposing a sentence of detention or imprisonment on a youth, it must ensure that “it is informed as to the circumstances of the youth”.  In order to be informed, the Court must require a pre-sentence report to be provided to it, unless the Court is satisfied that it has the information necessary to determine an appropriate sentence, in which case it may dispense with the need for a report.

[65]     The appellant’s counsel in the Youth Justice Court did not ask the magistrate to order a pre-sentence report, but a possible explanation is that counsel did not appreciate that her Honour was contemplating a sentence of detention.

[66]     The complaint made on appeal, inter alia, is that a pre-sentence report would have provided information and assisted the court to more properly consider the length of the sentence, and the proportions of the sentence respectively to be served and suspended.  It is also argued that there was material before the court to give rise to a real question as to the appellant’s psychological condition and whether or not this had a bearing on his moral culpability and rehabilitation needs.  It is further argued that, given the statutory requirement to order a pre-sentence report, the magistrate erred in not giving reasons for the decision to dispense with need for a pre-sentence report.

[67]     Even if the magistrate had required a pre-sentence report, I note that an assessment of the appellant’s psychological condition would not have been provided unless separately requested.  The appellant’s counsel did not ask the magistrate to request a psychological assessment.

[68]     There is no requirement in the Youth Justice Act that a magistrate specify his or her reasons for exercising the discretion in s 69(3) of the Act to dispense with the need for a pre-sentence report.  In the present case the learned magistrate had an updated and very detailed report under s 51 of the Act,[30] the assessment report in relation to community work, and the assessment report in relation to supervision by Northern Territory Correctional Services.  There is no reason to infer anything other than that the learned magistrate was properly satisfied that she had the information necessary to determine an appropriate sentence, in particular given that her Honour demonstrated a detailed knowledge and understanding of the appellant’s circumstances in her sentencing remarks.

[69]     Ground 4 must therefore fail.  No error has been made out.

[70]      It follows that the appeal must be dismissed.

[71]      Given the result of this appeal there will be no re-sentencing of the appellant.  I therefore decline to receive the evidence contained in the report of psychologist, Brooke Simpson, dated 27 August 2012 (MFI “B” on the appeal).  I acknowledge that the report is very informative and that it contains some carefully considered suggestions for supporting the appellant after his release from detention.  However, it does not afford a ground for allowing the appeal.

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[1]     Transcript 15/06/2012 p 15.4.

[2]     Transcript 15/06/2012 p 15.5.

[3]     Transcript 15/06/2012 p 15.7.

[4]     Transcript 15/05/2012 p 15.10.

[5]     Transcript 15/06/2012 p 16.2.

[6]     Transcript 15/06/2012 p 16.3.

[7]     Transcript 15/06/2012 p 16.5.

[8]     Transcript 15/06/2012 p 16.7.

[9]     Transcript 15/06/2012 p 16.9.

[10]    Transcript 15/06/2012 p 16.9.

[11]    “DCF” is a reference to the Department of Children and Families. 

[12]    Pearce v R (1998) 194 CLR 610 at 624, per McHugh, Hayne and Callinan JJ.

[13]    See, for example, Midjumbani v Moore [2009] NTSC 27 at [33];  Carne v  Wride and Carne v Nicholas [2012] NTSC 33 at [40].

[14]    Nelson v Chute (1994) 72 A Crim R 85.

[15]    72 A Crim R 85 at 94.7.

[16]    s 83(2) Youth Justice Act.

[17]    Based on the 25% discount allowed on file 21219597.

[18]    Transcript 5 June 2012 at pp 6 – 9.

[19]    Transcript 15 June 2012 p 6.6.

[20]    Outline of submissions, paragraph 27.

[21]    Transcript 15 June 2012 p 13.

[22]    House v R (1936) 55 CLR 499 at 504-505; see also Cranssen v R (1936) 55 CLR 509 at 519-520. 

[23]    R v Bernath [1997] 1 VR 271 at 277 per Calloway J, approved by the Court of Appeal of the Supreme Court of Victoria in DPP v Castro [2006] VSCA 197 at [17]; cited with approval in Johnson v The Queen [2012] NTCCA 14 at [25].

[24]    (1994) 72 A Crim R 85.

[25]    Girrabul v The Queen [2003] NTSC 101 at [16].

[26]    MFI “A” - Affidavit of Dara Reid sworn 28 August 2012, par 8.

[27]    Psychologist assessment and report, Brooke Simpson, 27 August 2012, MFI “B” on the appeal.

[28]    Outline of Submissions for the appellant, par 11(v).

[29]    Smith v Torney (1984) 29 NTR 31 at 33, per Muiread J. 

[30]    Section 51 Report, prepared by Ms Lynch of the Department of Children and Families dated 11 June 2012.  A report under s 51(3) Youth Justice Act is not a pre-sentence report, but details the results of investigation into the circumstances of the youth, and any action taken by the CEO, Department of Children and Families, to promote the wellbeing of the youth.