Barnes v Howie

[2010] NTSC 42

Barnes v Howie [2010] NTSC 42

PARTIES:	ANDREE BARNES
v
RICHARD HOWIE
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NOS:	JA 15 of 2010 and 16 of 2010
(21008482 & 21012227)
DELIVERED:	11 August 2010
HEARING DATES:	11 August 2010
JUDGMENT OF:	RILEY J
APPEAL FROM:	OLIVER SM
CATCHWORDS:

YOUTH JUSTICE ACT – Appeal against sentence – whether sentence manifestly excessive – youth – sentencing principles – weight to be given to seriousness of offending, age, deterrence, protection of the community, supervision – appeal dismissed

Liddy v R (2005) NTCCA 4

REPRESENTATION:

Counsel:

Appellant:	P Bellach
Respondent:	S Ozolins

Solicitors:

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

Judgment category classification: C

Judgment ID Number:	Ril1024
Number of pages:	11
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Barnes v Howie [2010] NTSC 42

Nos. JA 15 of 2010 & 16 of 2010 (21008482 & 21012227)

BETWEEN:

ANDREE BARNES

Appellant

AND:

RICHARD HOWIE

Respondent

CORAM:  RILEY J

REASONS FOR JUDGMENT

(Delivered 11 August 2010)

[1] the Youth Justice Court to various offences arising out of events which
occurred on 10 March 2010 and on 12 April 2010. On 5 May 2010 the
appellant was sentenced in relation to those offences to an aggregate term of

On 20 April 2010 the appellant, who was aged 17 years, pleaded guilty in the appellant had served a period of detention of one month. He appeals against the sentences on the basis that the individual aggregate sentences and the total effective sentence imposed by the learned Magistrate were manifestly excessive.

[3]

The offending

[2] 2010. The appellant and co-offenders unlawfully entered the premises of
the Beswick Community Store. They armed themselves with several metal
bars which they used to force entry to the premises through a metal barrier.
They then forced open a steel roller door which formed a secondary barrier
to entry. Once inside the offenders located a safe which they unsuccessfully
attempted to open with force. The safe was damaged in the process. The
offenders then entered the kitchen area of the premises and consumed food
and soft drink. They left the premises with a quantity of stolen items. Some
time later they returned to the premises and gained entry in the same

The first set of offences occurred between 1.00 am and 2.00 am on 10 March the store from a storeroom. They used the metal bars and other implements to create a hole through which they gained entry to the storeroom. They then smashed the lock of a shipping container within which was a second safe. They attempted to open the safe but again were unsuccessful. The offenders stole cigarettes, tobacco, soft drink and mobile telephones. The total value of items removed from the store was $3000 and the damage caused to the building was valued at $5000. The appellant was arrested on 10 March 2010. He later entered into an electronic record of interview in which he made full admissions. The appellant was granted bail.

The second set of offences occurred approximately one month later on premises of the Beswick Community Store. They armed themselves with metal bars and other housebreaking implements. Once more they overcame the barriers to entry and stole drinks and grocery items. The value of items stolen was $1000 and the damage caused to the building was estimated at $5000. The appellant was arrested on 12 April 2010. He declined to participate in an electronic record of interview.

[4] to: (a) having unlawfully damaged property when preparing to commit a
crime, namely unlawful entry with intent to steal for which the maximum
penalty is imprisonment for seven years; (b) unlawful entry of the building In relation to the offending of 10 March 2010 the appellant pleaded guilty for 14 years; (c) stealing property valued at $3000 for which the maximum penalty is imprisonment for seven years; and (d) attempting to steal the contents of the safe for which the maximum penalty is imprisonment for three years and six months. In relation to the offending of 12 April 2010 he pleaded guilty to: (a) unlawfully damaging property when preparing to commit a crime, namely unlawful entry with intent to steal (seven years maximum); (b) unlawfully entering a building at night with intent to commit the crime of stealing (14 years maximum); and (c) stealing a quantity of drinks and groceries valued at $1000 (seven years maximum).

1. The learned sentencing Magistrate imposed an aggregate sentence of four months detention in relation to the offences committed on 10 March 2010. In relation to the offending of 12 April 2010 her Honour imposed an

aggregate sentence of detention of four months, two months of which were
to be served concurrently with the earlier sentence. The total effective
sentence was therefore detention for a period of six months backdated to
reflect time in custody and then suspended from 12 May 2010 under
conditions as to residence and supervision.

Manifest excess

[6] in all of the circumstances. The principles applicable to such an appeal are
well known. It is fundamental that the exercise of the sentencing discretion
is not disturbed on appeal unless error in that exercise is shown. The
presumption is that there is no error. An appellate court does not interfere
with the sentence imposed merely because it is of the view that the sentence
is excessive. It interferes only if it be shown that the sentencing judge was
in error in acting on a wrong principle or in misunderstanding or in wrongly
assessing some salient feature of the evidence. The error may appear in
what the sentencing judge said in the proceedings or the sentence itself may
be so excessive as to manifest such error. In relying upon this ground it is
incumbent upon the appellant to show that the sentence was not just The complaint of the appellant is that the sentence was manifestly excessive obviously, and not just arguably, excessive.[1]

1. In support of the ground of appeal that the sentences were manifestly excessive the appellant submitted that the learned Magistrate:

[8] evolving position as it developed over the series of hearings leading up to
the final disposition. It was submitted that the learned Magistrate was
initially prepared to accept that a community-based disposition would be
appropriate but then "appeared to dramatically change her view of the
appropriate disposition". A fair reading of the transcript does not support
the submission. It is apparent that the learned Magistrate regarded the
offending as serious from the very start but, nevertheless, was prepared to
consider an assessment for supervision and an assessment for a community
work order. Early in the proceedings her Honour observed that the
offending was not "ordinary juvenile offending" and noted that it was "out In his written submissions counsel for the appellant focused upon the "moved into much more serious behaviour and he’s 17 years old". When the matter came back before her Honour she observed:

(a) erred in application of the principles relevant to the sentencing of
young offenders by imposing a sentence which gave special
prominence to deterrence and protection of the community in
circumstances where that approach was not warranted;

(b) the learned Magistrate erred in approach when counsel for the appellant sought to challenge the veracity of material contained in the supervision and community work order assessments;

(c) the learned Magistrate gave insufficient weight to the appellant's

youth, maturity and lack of prior convictions; and

(d) the starting point for the individual aggregate sentences was
manifestly excessive.

Error in giving "special prominence" to deterrence and protection of the community

My view is that these are offences that warrant a term of detention. The real question is whether he should be required to serve the whole term of detention or whether it should be partly suspended on conditions.

where the appellant was motivated by a desire for food and was influenced
by others. It was noted that on the first occasion he was under the influence
of petrol sniffing. Her Honour was aware of those matters but regarded the
offending as serious, referring to the considerable damage done to the store
on each entry, the fact that the offending occurred at night time, the
substantial value of the goods stolen, the attempts to steal the contents of
the safe and the impact that the offending had upon the community at occurred in a group, was unsophisticated and occurred in circumstances was angry and the appellant was not welcome in the community at the time of sentencing. Her Honour noted that the appellant was aged 17 years and was therefore "not a particularly young youth". Her Honour could have added that the second set of offences occurred whilst the appellant was at large after having been arrested and charged in relation to the earlier offences and whilst he was on bail. In my view, in all the circumstances of the offending and the offender, the learned Magistrate was correct in describing the offending as serious and concluding that it warranted a term of detention.

1. The view taken by her Honour of the seriousness of the offending is reflected in the sentencing remarks where her Honour said:

   At the end of the day, however, these are serious dishonesty offences
   and they require a term of detention to be served. That is both so
   that you understand how serious this misbehaviour is and you think
   twice before you get involved (with) anything of this nature again
   and second to send a message to the community that this sort of
   behaviour by young men in a community is not acceptable and will
   have strict punishment.

2. The appellant conceded that the offences were serious but submitted that they were not so serious as to require immediate actual detention. It was submitted that the learned Magistrate "mischaracterised the gravity of the offences, inflating the objective seriousness of the appellant’s offending”. The appellant submitted that the offending was less serious because it

[12] the author of the report give evidence and be available for cross-
examination. Reference to the transcript reveals that early in the
submissions counsel in fact advised the learned Magistrate that he wished
"to take issue with (the report) and if it is relied upon, seek it to be
established in evidence”. The issue being debated with counsel in relation
to the report was whether the appellant was welcome to return to the

1. Her Honour did not, as it was submitted, place inordinate weight on a disposition which emphasised deterrence as a means of addressing the anger and frustration of members of the Beswick community. The extent to which the community was affected as a victim of the offence was a factor to be taken into account along with many other factors. There is nothing to suggest that it was accorded undue weight.

   The challenge to the supervision and community work order assessments

   It was submitted on behalf of the appellant that counsel had requested that the community.

2. As her Honour noted, the report was made to the Court pursuant to the provisions of the Youth Justice Act. It did not have to be established in evidence. The Act provides for such reports to be made to the Court and permits a person, such as the appellant, to cross-examine the author of the report or the person who carried out an investigation on which the report was based. The youth reported on, or a responsible adult in respect of the youth, may give evidence or call witnesses to rebut the contents of the report.[2] Counsel was alerted to the right to lead evidence from the appellant or any other person to rebut the contents of the report but, at no stage, did he do so.

3. There was further discussion between the Court and counsel and the learned Magistrate then said:

   … clearly he has to have somewhere to live that is supportive of him,
   and that is the concern that was raised in the Corrections report, is
   that there wasn't anyone who was providing support, control and
   direction in Beswick, so I think it's a matter of identifying if there is
   an appropriate residential situation that would provide that sort of
   level of support and control.

4. The matter was then adjourned with counsel for the appellant indicating that the issue would be investigated. When the matter returned to Court counsel was unable to add any useful information. Counsel did not at that time seek to lead evidence or to cross-examine the author of the report. He did not

seek an adjournment to enable evidence to be called. Her Honour suggested
that the issue could be resolved by requiring the appellant to live with his
uncle at Burunga but subject to the power in his Parole Officer to permit
him to travel to Beswick. The learned sentencing Magistrate was concerned
as to the safety of the appellant if he returned to Beswick and, in that
context, made it clear that she was:

... not putting an absolute ban on that, but I think it is appropriate
given what I have said and in terms of his own safety, that some
direction be given by Probation with respect to the need to travel to
and from Beswick. There may be occasions when he is required
there for particular family ceremonial matters and that is a matter
that the Probation Officer can consider on an issue by issue basis.

1. Importantly, for present purposes, the place at which the appellant was to reside during the course of his suspended sentence did not have any impact upon the length of the sentence or the period of the supervision.

   The youth of the appellant and his lack of prior convictions

2. The appellant submitted that the learned Magistrate incorrectly stated the appellant's age and therefore characterised him as being more mature and closer to adulthood than he was. The learned Magistrate correctly said that

the appellant was 17 years of age but incorrectly commented that his birthday was in August rather than February. Her Honour then observed that he was "not a particularly young youth" and there is no challenge to that conclusion. There was no submission that he was immature for his age. I am unable to see how the difference of six months had any impact upon the sentence imposed in all the circumstances.

[18]

prior convictions. However, he had been the subject of a diversion in

In the course of submissions it was pointed out that the appellant had no commit a crime and stealing on two separate occasions being April 2006 and January 2007. On each occasion a family conference had been conducted. Those matters were addressed by the learned Magistrate.

Manifest excess

1. It was submitted on behalf of the appellant that the learned Magistrate allowed a reduction in the order of 25% for the appellant’s pleas of guilty on each file. It followed that the starting point must have been a sentence of five months and 10 days which, the appellant submitted, was outside the range of sentencing discretion having regard to the objective seriousness of the offences and all other relevant circumstances.

2. In my opinion the sentences imposed for the two groups of offending were not outside the range available to her Honour. Error on the part of her Honour has not been demonstrated. In my view and in the circumstances of the offence and the offender it cannot be said that the sentence was manifestly excessive.

[21] The appeal is dismissed.

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[1] Liddy v R (2005) NTCCA 4 at [12].
[2] Section 74 of the Youth Justice Act.