A v Tasmania
[2005] TASSC 12
•15 March 2005
[2005] TASSC 12
CITATION: A v Tasmania [2005] TASSC 12
PARTIES: A
v
STATE OF TASMANIA
TITLE OF COURT: APPELLATE
JURISDICTION: COURT OF CRIMINAL APPEAL (TAS)
FILE NO/S: CCA 114/2004
DELIVERED ON: 15 March 2005
DELIVERED AT: Hobart
HEARING DATE: 7 March 2005
JUDGMENT OF: Crawford, Evans and Blow JJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – First offenders – Suspension of sentence – Particular cases – Stealing and burning vehicles and other offences – Juvenile offender – Avoidance of former associates.
Aust Dig Criminal Law [854]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: L A Mason
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 12
Number of paragraphs: 21
Serial No 12/2005
File No CCA 114/2004
A v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
EVANS J
BLOW J
15 March 2005
Orders of the Court:
That the appeal be allowed.
That the detention order imposed on 17 November 2004 be set aside.
That the appellant be sentenced to 15 months' detention with effect from 6 October 2004, with five months thereof suspended on condition that he commit no crime or offence relating to any other person's property within two years after his release from detention.
That a probation order pursuant to the Youth Justice Act 1997, s47(1)(f), operate in respect of the appellant for 12 months commencing on 6 May 2005, with special conditions that (a) he must attend educational, personal, health and other programs as directed by his assigned youth justice worker; and (b) that he must undergo medical, psychiatric, psychological and drug counselling and treatment as directed by his assigned youth justice worker.
Serial No 12/2005
File No CCA 114/2004
A v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
15 March 2005
I agree with the reasons for judgment of Blow J and the orders he proposes.
File No CCA 114/2004
A v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
15 March 2005
I agree with the reasons for judgment prepared by Blow J and with the orders he proposes.
File No CCA 114/2004
A v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
15 March 2005
This is an appeal against sentence. The appellant was sentenced to 18 months' detention pursuant to the Youth Justice Act 1997. No part of that sentence was suspended. The appellant contends that the sentence was manifestly excessive. The sentence related to 14 charges. The appellant pleaded guilty to all of them. One of them was the subject of an indictment. The appellant had pleaded guilty to three other charges in the Magistrates Court, and been committed for sentence. The other 10 charges were pending in the Magistrates Court, but were dealt with by the learned sentencing judge pursuant to the Criminal Code, s385A.
The facts and the 14 charges
The 14 charges related to six distinct criminal escapades participated in by the appellant during the period from 31 May 2003 to 24 June 2003.
The first escapade was on 31 May 2003. The appellant and two companions unlawfully took a Nissan Pulsar sedan. It was driven from Hobart to Clarendon Vale. The appellant got out. The co-offenders left with the vehicle. It was not asserted that the appellant had been responsible for any loss or damage in relation to that vehicle. The only charge arising out of this escapade was a charge of motor vehicle stealing under the Police Offences Act 1935, s37B(1).
The second escapade occurred on the night of 1 June 2003 and/or the early hours of 2 June 2003. The appellant and the same two companions broke into a pizza shop and stole soft drinks, chocolate bars, ice creams and money, to a total value of $700. They damaged a pinball machine in order to steal money that was in it. In order to remove the stolen property, they unlawfully took a Holden Commodore sedan. They later set that vehicle on fire in order to destroy any fingerprint and DNA evidence that might link them to their crimes. The vehicle was destroyed. It was worth $2,000. It was uninsured. None of the property stolen on that night was recovered. The charges dealt with by the learned sentencing judge in relation to this escapade comprised the following:
·burglary (relating to the pizza shop);
·stealing (relating to the goods and money stolen from the pizza shop);
·injury to property, contrary to the Police Offences Act, s37 (relating to the pinball machine);
·motor vehicle stealing, contrary to the Police Offences Act, s37B(1);
·unlawfully setting fire to property, contrary to the Criminal Code, s269.
The third escapade occurred in the early hours of 9 June 2003. The appellant and the same two companions went to a residence in Rokeby and stole another Holden Commodore from its driveway. They drove to Bridgewater, where they set fire to the vehicle. It was destroyed. It was uninsured. It was worth $2,000. The appellant told the police that it was his idea to set fire to it because his fingerprints were "all through it". The only charge dealt with by the learned sentencing judge in relation to this escapade was a charge of unlawfully setting fire to property contrary to the Criminal Code, s269.
The fourth escapade occurred on 20 June 2003. The appellant and the same two companions unlawfully took a Mazda sedan from the driveway of a house in Howrah. Whilst driving in it, they passed a milk truck. The driver stopped. The appellant and one of the others entered the milk truck as trespassers and stole two crates of milk worth about $70. They were interrupted. They fled. The stolen property was recovered. There was no suggestion of any damage to the Mazda. The charges dealt with by the learned sentencing judge in relation to this escapade were as follows:
·motor vehicle stealing, contrary to the Police Offences Act, s37B(1);
·burglary (of the milk truck);
·stealing (of the two crates of milk).
The fifth escapade occurred on 22 June 2003. The appellant and others were driving in a vehicle, perhaps lawfully. They drove into a service station, put fuel worth $20.30 into the tank, and drove off without paying. They drove to Bridgewater, where the vehicle broke down. They unlawfully took a Toyota Hi-lux vehicle from an address in Gagebrook, drove it to Clarendon Vale, and set fire to it in order to get rid of fingerprints and DNA. It was destroyed. It was worth $3,500. It was uninsured. The charges dealt with by the learned sentencing judge arising out of this escapade comprised the following:
·stealing (of petrol worth $20.30);
·unlawfully setting fire to property;
·stealing (of the Toyota Hi-lux).
The sixth escapade occurred on 24 June 2003. The appellant and others stole property worth $580 from a vehicle. The stolen property was not recovered. It was insured. The insurance company suffered a loss. The only charge arising from this escapade was a charge of stealing the property worth $580.
The 14 charges to which the appellant pleaded guilty thus comprised two charges of burglary, five charges of stealing, three charges of motor vehicle stealing, three charges of unlawfully setting fire to property, and one charge of injury to property. The loss and damage inflicted as a result of these crimes totalled about $9,500. Most significantly, three innocent people lost uninsured motor vehicles. Although the three vehicles were inexpensive, the loss of an uninsured vehicle will usually be a very significant loss for its owner. Frequently someone who owns a cheap vehicle cannot afford to replace it.
Prior, contemporaneous and subsequent offences
Before the commission of these crimes and offences, the appellant had no convictions. On 2 May 2003 he had been cautioned by a constable for consuming liquor in a public place, and possessing liquor when he was too young to do so. On 22 March 2003, he committed two minor traffic offences, in relation to which he was convicted and fined the following year. Otherwise he had apparently not been in any trouble.
During the period when the relevant 14 crimes and offences were committed, the appellant committed other crimes and offences which were dealt with by a magistrate on 6 May 2004, some months prior to him coming before the learned sentencing judge. The learned magistrate dealt with four charges of motor vehicle stealing and three charges of stealing. One of the charges of motor vehicle stealing related to the Holden Commodore that was taken on 9 June 2003 during the third escapade. The others related to vehicles taken on 20 June 2003 during the fourth escapade and on 24 June 2003 during the sixth escapade. On these four charges, the learned magistrate, without imposing a conviction, sentenced the appellant to 56 hours' community service and disqualified him from driving for 9 months. The three charges of stealing were minor ones, involving property worth $35, $25 and $10. On those charges, the learned magistrate, without imposing any convictions, made a probation order for a period of 12 months.
By the time these 14 charges came before the learned sentencing judge, the appellant had committed some further minor offences which had been dealt with by magistrates. On 24 July 2003, he assaulted someone and contravened the conditions of a notice, as a result of which he was released, without conviction, on condition that for six months he was to be of good behaviour and commit no similar offence. Between October 2003 and January 2004 he committed five further offences: unlawfully possessing property (twice), driving without a licence, stealing (property worth $65), and assault. These five offences were dealt with on 6 May 2004, at the same time as the charges of stealing and motor vehicle stealing that I have referred to. The probation order made that day related to these five offences as well as the three minor stealing charges. They must have been minor offences. Otherwise, I would think, the learned magistrate would have taken a less lenient course. The fact that the appellant committed three minor property offences during this subsequent period of course weighed against the imposition of a lenient sentence.
When one examines the appellant's record, it is evident that the only period of serious criminal activity on his part was the period to which the 14 charges related. He had already been sentenced to 56 hours' community service and placed on 12 months' probation in relation to a mixture of related and unrelated offences committed during that period.
Mitigating factors
The appellant was only 17 years old when he committed the crimes and offences in question. He was 18 years old when sentenced. He had pleaded guilty to all the charges. A youth justice worker provided a quite favourable pre-sentence report in which he said that he expected that the appellant would complete his hours of community service within the required time; that the appellant had participated in a course on helpful hints for employment; that the appellant hoped to go to the mainland, undertake a course, become a chef, and start a new life; that the appellant was willing to undertake a program called "The U-Turn Program"; that the appellant had made a decision that he did not want to continue committing crimes, and had said to his friends that he would not go along with them; that the appellant showed quite a deal of remorse, and greatly regretted his actions and their impact on others; that he had made changes in his living arrangements in order to avoid the people with whom he had been offending; and that a suspended detention order was recommended. The learned sentencing judge was told that the appellant had become involved with his co-offenders, who were older men, following the death of his older brother, which was the result of a tragic accident at the family home. The older men were apparently friends of the deceased brother. One of them had been sentenced by another judge to 2½ years' imprisonment, but that man had a very bad criminal record, and was sentenced for a more serious collection of crimes, involving the theft of 10 vehicles, the incineration of four of them, and the infliction of loss and damage amounting to nearly $50,000. Because of those circumstances, it was appropriate for the appellant to receive a much more lenient sentence than that co-offender.
Was the sentence manifestly excessive?
The maximum period of detention that may be specified in a detention order is two years: Youth Justice Act, s81(b). When a judge sentences a youth, or sentences an adult for crimes committed as a youth, otherwise than under s385A, the Criminal Code applies, and there is nothing to prevent sentences of imprisonment exceeding two years from being imposed in appropriate cases. A youth sentenced to detention is required to be released from detention the day after completing half the sentence of detention: Youth Justice Act, s109(1). At that stage, a supervised release order must be made under s110. If the offender breaches the conditions of a supervised release order prior to the expiry of the sentence, an arrest warrant can be issued under s120, and the offender returned to custody for the balance of the sentence. These provisions operate instead of the parole legislation applicable to adult offenders.
The crimes and offences committed by the appellant included some quite serious ones, particularly those relating to the incineration of the three uninsured vehicles. In my view, a detention order was the only appropriate penalty. However, in light of the mitigating factors that I have referred to, I think that the sentence of 18 months' detention, none of which was suspended, was manifestly excessive. I think it very significant that these crimes and offences were committed by a 17 year old who was effectively a first offender, and who had taken appropriate steps to stay out of serious trouble. It follows that, in my view, this Court should allow the appeal, set aside the detention order imposed by the learned sentencing judge, and impose a more lenient sentence.
Re-sentencing
In my view, this is an appropriate case for a partially suspended detention order. The suspension of part of it would provide an incentive to the appellant to continue to improve his efforts to reform.
The appellant has been in custody since 6 October last, ie for a little over 5 months. In the circumstances, I think the most appropriate sentence is one of 15 months' detention with effect from 6 October 2004, with 5 months thereof suspended on condition that the appellant commit no crime or offence relating to any other person's property within two years after his release from detention. As a result, the appellant would be released from detention as soon as a supervised release order could be prepared and signed.
His present probation order will expire on 5 May 2005. I think he needs the assistance of a probation officer beyond that date. I would therefore also make a probation order pursuant to the Youth Justice Act, s47(1)(f), to operate for 12 months commencing on 6 May 2005, with special conditions that (a) the appellant must attend educational, personal, health and other programs as directed by his assigned youth justice worker; and (b) that he must undergo medical, psychiatric, psychological and drug counselling and treatment as directed by his assigned youth justice worker.
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