Anderson v The Queen
[2014] NTCCA 18
•5 DECEMBER 2014
Anderson v The Queen [2014] NTCCA 18
PARTIES:ANDERSON, Luke
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CCA 27 of 2013 (21311483)
DELIVERED: 5 DECEMBER 2014
HEARING DATES: 9 APRIL and 30 JUNE 2014
JUDGMENT OF: BLOKLAND, BARR & HILEY JJ
APPEALED FROM: RILEY CJ
CATCHWORDS:
CRIMINAL LAW – Appeal – Sentencing – Relevant sentencing factors – Rehabilitation – Sentencing judge did not err in characterising prospects of rehabilitation as “reasonable”.
CRIMINAL LAW – Appeal – Sentencing – Manifest excess – Sentence appropriately reflected sentencing objectives.
CRIMINAL LAW – Appeal – Sentencing – Relevant sentencing factors – Juvenile offender – Failure to order a pre-sentence report – Powers and duties of Supreme Court when sentencing youths – Application of s 69 of Youth Justice Act (NT) – Consideration as to meaning of “Court” in Youth Justice Act (NT) – Supreme Court not mandated to apply Youth Justice Act (NT) when sentencing youths – Primary powers and duties of Supreme Court in sentencing contained in Sentencing Act (NT) – Sentencing judge did not err in failing to request a pre-sentence report – Necessary information was before the court.
CRIMINAL LAW – Appeal – Sentencing – Manifest excess – Non-parole period – Juvenile offender – No minimum non-parole period in Youth Justice Act (NT – Non-parole period manifestly excessive – Appeal allowed in part – Appellant resentenced – Non-parole period reduced from four years and six months to three years.
Youth Justice Act 2005 (NT), s 3, 5, 57, 69, 70, 82, 82(1), 82(1)(b), 82(2), 83, 83(2), 83(5), 85.
Sentencing Act 1995 (NT), s 4, 39A, 40(1), 48A, 54, 55, 55(1), 55A, 70(1)(n), 105, 106, 106(1)(k).
R v Gurruwiwi (2008) 22 NTLR 68; Wesley v The Queen [2014] NTCCA 17, applied.
Manning v Police (1993) 59 SASR 427; Nelson v Chute (1994) 72 A Crim R 85, distinguished from.
Braun and Ebatarintja v The Queen (1997) 6 NTLR 94; Fowler v The Queen [2002] WASCA 296; Gavin v The Queen (1992) 6 WAR 195l Topic v The State of Western Australia [2013] WASCA 157; W (1990) A Crim R 72, referred to.
REPRESENTATION:
Counsel:
Appellant:I Read SC
Respondent: M Nathan
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 13
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINAnderson v The Queen [2014] NTCCA 18
No. CCA 27 of 2013 (21311483)
BETWEEN:
Luke Anderson
Appellant
AND:
The Queen
Respondent
CORAM: BLOKLAND, BARR & HILEY JJ
REASONS FOR JUDGMENT
(Delivered 5 December 2014)
THE COURT:
Introduction
On 3 October 2013 the appellant was sentenced to six years and four months detention / imprisonment with a non-parole period of four years and six months for the crime of sexual intercourse without consent. At the time of the offending the appellant was 17 and the victim was 8 years of age. The appellant was 17 years and 9 months old at the time when he was sentenced.
The appellant sought and was granted leave to appeal against the sentence on four grounds:
1.The learned sentencing judge erred in determining that the appellant’s prospects for rehabilitation were merely “reasonable”.
2.The learned sentencing judge erred in imposing a non-parole period of 70% pursuant to the Sentencing Act rather than imposing a lower non-parole period pursuant to the Youth Justice Act (the Act).
3.The sentence is in all the circumstances of the offending and the circumstances of the appellant manifestly excessive.
4.The learned sentencing judge erred in failing to order a pre-sentence report pursuant to s 69 of the Act.
Powers and duties of the Supreme Court when sentencing youths
This appeal, particularly grounds 2 and 4, raises important questions concerning the powers and duties of the Supreme Court when sentencing youths. The appellant contended that various provisions in the Act, including s 69, applied to the Supreme Court when it sentenced him.
Section 69 provides as follows:
“(1)If a youth has been found guilty of an offence and the Court is considering imposing a sentence of detention or imprisonment, the Court must ensure that it is informed as to the circumstances of the youth.
(2)In order to be informed, the Court must require a pre-sentence report to be provided to it.
(3)However, if the Court is satisfied that it has the information necessary to determine an appropriate sentence, the Court may dispense with the need for a report.
(4)The Court may require the report to address specific matters in relation to the youth that the Court wishes to be informed about.”
The appellant contended that the Court referred to in s 69 includes the Supreme Court whenever it is sentencing a youth. This contention requires reference to the definition of Court in the s 5 of the Act, namely:
“Court means the Youth Justice Court as mentioned in section 45 and, if the context requires, includes:
(a)the Supreme Court exercising its jurisdiction under this Act; and
(b)a magistrate conducting a preliminary examination under this Act in accordance with Part V of the Justices Act.
This in turn requires consideration as to:
(a)what is meant by the reference in the definition of Court to “the Supreme Court exercising its jurisdiction under this Act”; and
(b)whether, in circumstances where the Supreme Court is exercising its jurisdiction under the Act, “the context requires” that the reference to the Court in s 69 includes the Supreme Court.
Counsel for the appellant contended that the scheme of the Act is to provide for justice in relation to youths who have committed or are alleged to have committed offences, and that it will apply to such offenders whether they are being dealt with by the Youth Justice Court or by the Supreme Court.[1] He submitted that the Supreme Court must apply the Act, and that the Supreme Court is also empowered to apply the Sentencing Act, for example in relation to more serious offending.
Counsel referred to the comment by Mildren J dissenting in Braun and Ebatarintja v The Queen that “when either the Supreme Court or the Juvenile Court considers a sentencing disposition in relation to a juvenile, the court should first look to its powers under the Juvenile Justice Act”.[2] However that judgment focused upon an earlier version of s 4 of the Sentencing Act which provided that: “This Act applies to all courts other than the Juvenile Court established under the Juvenile Justice Act and the Supreme Court when exercising its jurisdiction under or in pursuance of that Act.” (emphasis added)
We do not agree with the contention that the Supreme Court must apply the Act whenever it is sentencing a youth.
We consider that the primary powers and duties of the Supreme Court in relation to sentencing offenders, irrespective of their age, are contained in the Sentencing Act, and that those powers may be supplemented by various provisions in the Act.
Section 4 of the Sentencing Act provides that:
“This Act applies to all courts other than the Youth Justice Court continued in existence by the Youth Justice Act.”
The Sentencing Act makes only a few other references to the Youth Justice Court (in s 39A, which applies to community based orders, and s 48A, which applies to community custody orders, both in relation to sexual offences, violent offences and other particular offences) and expressly refers to an offender who is a youth in relation to the mandatory imprisonment provisions contained in Part 3, Division 6A. There is no reason to suppose that the Sentencing Act is not otherwise intended to apply to all offenders, including youths.
Conversely, the Act primarily focuses upon the Youth Justice Court, and contains very few references to the Supreme Court. They are s 57, which permits referral to the Supreme Court for sentencing, and s 82, which sets out sentencing powers of the Supreme Court. There is no reason to suppose that the Act is otherwise intended to apply to the Supreme Court, or that references in the Act to “Court” would normally be otherwise than references to the Youth Justice Court.
The interaction between the Act and the Sentencing Act was discussed in R v Gurruwiwi.[3] As was observed by Martin (BR) CJ, at [2]:
“… The primary source of the sentencing powers of the Supreme Court is the Sentencing Act 1995 (NT): Braun and Ebatarintja v The Queen (1997) 6 NTLR 94 at 100. However, s 82(1)(a) of the Youth Justice Act 2005 (NT) provides that if a youth is found guilty before the Supreme Court the court may, in addition to its powers, exercise the powers of the Youth Justice Court. Speaking generally, therefore, when sentencing a youth, in addition to the powers found in the Sentencing Act, the Supreme Court may call upon the powers of the Youth Justice Court contained in the Youth Justice Act.”
Section 82 of the Act refers to powers of the Supreme Court in sentencing a youth:
“(1)If a youth is found guilty before the Supreme Court of an offence, the Supreme Court may do any of the following:
(a)exercise, in addition to its powers, the powers of the Youth Justice Court;
(b)order that the youth be detained in a detention centre or imprisoned for a period not exceeding the period of imprisonment for which such an offence would be punishable if committed by an adult;
(c)remit the case to the Youth Justice Court.
(2)If the Supreme Court makes an order under subsection (1)(b), it may also make any order in relation to that detention or imprisonment that it could make in relation to a sentence of imprisonment under the Sentencing Act.
(3)If the Supreme Court finds a youth guilty of murder, the Supreme Court may, despite section 157(2) of the Criminal Code, sentence the youth to life imprisonment or a shorter period of detention or imprisonment as it considers appropriate.”
In particular, s 82(1) enables the Supreme Court to exercise the powers of the Youth Justice Court “in addition to its [normal] powers”. This would include the sentencing options conferred upon the Youth Justice Court contained in s 83 and the non-parole period provisions in s 85 of the Act.[4]
Further, s 82(1)(b) coupled with s 82(2), would enable the Supreme Court to order a sentence of detention or imprisonment for a period exceeding the maximum available under s 83(2).[5] Section 83(5) provides that s 83 “does not limit the power of the Supreme Court to impose on the youth a sentence it could otherwise impose on him or her.”
As Martin (BR) CJ said in R v Gurruwiwi, at [8]:
“… The legislative scheme of the Youth Justice Act is designed to provide the Supreme Court with flexibility and a range of powers wider than those contained in the Sentencing Act when dealing with youths. Hence the ability of the court to draw upon the powers found in both the Sentencing Act and the Youth Justice Act.”
We agree that the Supreme Court has broad and flexible powers that enable it to use relevant parts of both statutes when sentencing a youth. However, as we have already stated, we reject the appellant’s contention that the Supreme Court must apply the Act whenever it is sentencing a youth. In rejecting that contention we are not suggesting that the underlying scheme and provisions of the Act should be ignored. On the contrary, we do consider that the Supreme Court should have regard to those matters and the various powers contained in the Act. We note, however that the Sentencing Act confers broad powers upon the Supreme Court to order reports to assist it in the sentencing process, including the ordering of pre-sentence reports.
Application to the present matter
Apart from the fact that the sentencing judge used the composite expression “detention / imprisonment” when he imposed the sentence, there is no suggestion in the sentencing remarks, or elsewhere, that the sentencing judge was doing anything other than exercising the normal powers of the Supreme Court under the Sentencing Act. It is possible that his Honour referred to detention only because he was aware that the appellant would in fact remain in detention and not be put into the prison for the remaining three months or so until he turned 18, not because he was exercising any powers under the Act, for example in s 82(1)(b).
Because s 82(1) of the Act authorised the Supreme Court to exercise powers of the Youth Justice Court in addition to its normal powers, his Honour could have exercised the powers contained in the s 83 of the Act and those which followed, including the fixing of a non-parole period under s 85, unconstrained by the minimum non-parole periods mandated by ss 54 to 55A of the Sentencing Act.[6]
Consideration
The appellant was born on 22 December 1995. At the time of offending in March 2013 he was just under 17 years and three months old. When sentenced in October 2013 he was 17 years and nine months old. He had a solid employment record from the time he left school at the age of 15 and had never been in trouble with the law. The learned sentencing judge considered that his rehabilitation prospects were reasonable. That assessment by his Honour must be seen in the context of sexual offending against a young child, a context in which good family support and a good record of employment did not necessarily indicate good rehabilitation prospects, as they might, for example, in the case of a first property offence or driving offence.
The penile/anal penetration of an eight-year-old girl was a very serious offence. Moreover, it was a disturbing offence, as the learned sentencing judge made clear in his sentencing remarks:
“It is unclear why you acted as you did, other than to seek a sexual gratification. There is no explanation as to why a young man such as yourself, who is otherwise well respected, would undertake this very serious offending.
It is difficult, in those circumstances, to determine your prospects for rehabilitation. However, given your age, your expression of sorrow for your actions, your acceptance of responsibility (albeit belated),[7] and your lack of any relevant history, for present purposes I regard you as having reasonable prospects for rehabilitation. However, notwithstanding your lack of any criminal history and the matters that I have just discussed, it seems to me that, in the absence of any explanation of your conduct, I must give emphasis to the need for personal deterrence.
This was very serious offending. Your victim was just eight years of age and you were, in effect, an older family member. You were in a position of trust. She had every right to expect you to look after her and protect her. You breached the trust in the most serious way.
The offending occurred in circumstances where you took the time and the precaution to move the other children from the scene and to take your victim into the laundry. There was a degree of pre-planning and premeditation. You sought to hide what you are doing. You knew it was wrong, but you persisted.”
His Honour acknowledged in his sentencing remarks that the offence could have been more serious in terms of the extent of penetration and the pain and harm caused. His Honour’s remarks make clear that he understood that the incident was of short duration and that the injuries suffered by the child were relatively minor and would not be long-standing. His Honour also made mention of the fact that there had been no additional gratuitous violence beyond the violence constituting the offence itself.
His Honour’s characterisation of the offence as very serious and his explanation as to particular aspects of the offending which made it very serious were entirely correct. In our judgment, the starting point of eight years, and the head sentence of detention/imprisonment for a period of six years and four months, even in the case of a 17-year-old first offender, appropriately reflected the sentencing objectives of denunciation, punishment, and specific and general deterrence. It has not been established on appeal that the head sentence was manifestly excessive. Nor do we see any reason to disagree with his Honour’s view that the appellant’s prospects for rehabilitation were merely “reasonable”.
We turn to consider the non-parole period of four years and six months, which we note was just over 70% of the head sentence, the minimum mandated by s 55(1) of the Sentencing Act. As we have already observed, s 82(1) permitted the sentencing judge to utilise s 85 of the Act to fix a lower non-parole period when sentencing a youth. In our opinion, in all the circumstances including the fact that the appellant was a first offender, the non-parole period of four years and six months was manifestly excessive. We would allow the appeal and reduce the non-parole period to three years.
Irrespective of s 69 of the Act, the sentencing judge could have ordered a pre-sentence report under s 105 of the Sentencing Act if it was thought necessary. However his Honour had been provided with most of the information that would normally be contained in a pre-sentence report,[8] and there was, and is, no suggestion of any mental health or other problems which would explain or justify the appellant’s conduct.[9] Counsel on appeal could do no more than assert that a pre-sentence report, if it had been obtained, might have suggested that further enquiries of that kind should be made.
A pre-sentence report is often useful for the purpose of considering rehabilitation and risks of further offending, particularly where the court is considering a suspended sentence of some kind. See for example s 106(1)(k) of the Sentencing Act and s 70(1)(n) of the Act. However the seriousness of the present offending and the appropriate sentence for that offending were such that a suspended sentence was neither permissible,[10] nor appropriate. In our opinion there was no error in failing to request a pre-sentence report.[11]
Orders
The appeal is allowed in part. We set aside the non-parole period of four years and six months. We instead set a non-parole period of three years commencing 8 September 2013.
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[1] See for example the Preamble and the Objects set out in s 3 of the Act.
[2]Braun and Ebatarintja v The Queen (1997) 6 NTLR 94 at 105.
[3] R v Gurruwiwi (2008) 22 NTLR 68. See in particular Martin (BR) CJ at [2] – [9], Angel J at [26] – [33] and Riley J at [45] – [54].
[4] R v Gurruwiwi Martin (BR) CJ at [8] and Riley J [52(c)] & [53].
[5] R v Gurruwiwi Martin (BR) CJ at [7] and Angel J at [31], [32], [33(b)].
[6] Cf R v Gurruwiwi Martin (BR) CJ at [8] & [9], Angel J at [33(g)] and Riley J at [52]. See too
Wesley v The Queen [2014] NTCCA 17 at [44].
[7] The plea of guilty was not indicated until almost three months after the oral committal, and only one week before the scheduled pre-record of the vulnerable witness’s evidence and trial – see AB 3.
[8] See for example s 70 of the Act, and s 106 of the Sentencing Act.
[9] Cf the situation in Manning v Police (1993) 59 SASR 427 and Nelson v Chute (1994) 72 A
Crim R 85.
[10] Cf s 40(1) of the Sentencing Act.
[11] See for example W (1990) A Crim R 72; Gavin v The Queen (1992) 6 WAR 195; Fowler v The
Queen [2002] WASCA 296; Topic v The State of Western Australia [2013] WASCA 157 and
Wesley v The Queen [2014] NTCCA 17.
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