Brokus v Eaton
[2010] NTSC 20
•04/05/2010
Brokus v Eaton [2010] NTSC 20
PARTIES: BROKUS, Fabian v EATON, Donald TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION FILE NOS: 21004294/21004299 DELIVERED: 4 May 2010 HEARING DATES: 4 May 2010 JUDGMENT OF: MARTIN (BR) CJ APPEAL FROM: BORCHERS SM CATCHWORDS: CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE
Manifest ly excessive – whether Magistrate fell into error – young first
offender – alternatives to actual imprisonment appeal allowed.
Sentencing Act 1951 (NT) s 78B; Young Offenders Act 1993 (SA), s 58;
Youth Justice Act 2005 (NT), s 81(6).
REPRESENTATION:
Counsel:
Appellant: J Tapnelnelu Respondent: C Roberts Solicitors:
Appellant: CAALAS Respondent: DPP Judgment category classificat ion: B Judgment ID Number: Mar1007 Number of pages: 9 IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN Brokus v Eaton [2010] NTSC 20
Nos. 21004294/21004299
BETWEEN:
FABIAN BROKUS
Appellant
AND:
DONALD EATON
Respondent
CORAM: MARTIN (BR) CJ REASONS FOR JUDGMENT
(Delivered 4 May 2010)
Introduction
This is an appeal against sentences of imprisonment imposed for crimes
committed on 2 and 4 February 2010 when, in the company of others, the
appellant broke into the Alice Springs Gillen Club and stole alcohol.
Sentences of one and two months imprisonment were imposed, to be served
cumulatively, making a total sentence of three months.
| [2] | In essence the appellant contends that the end result of imprisonment for |
| three months, to be served immediately and without any suspension, resulted | |
| in a sentence that was manifestly excessive. | |
| [3] | For the reasons that follow, the appeal is allowed to the extent that the total |
| sentence of imprisonment for three months is suspended after service of | |
| 24 days. | |
| Facts |
The appellant turned 18 shortly before committing the offences. Normally
resident with his family in Ernabella in the north of South Australia, the
appellant came to Alice Springs before Christmas 2009 with the intention of
holidaying during the Christmas/New Year period. He resided with his aunt
and uncle in a house at the Little Sisters Camp where he was reliant upon
their generosity because he was not receiving any Centrelink benefits.
| [5] | In the early hours of Tuesday 2 February 2010, the appellant and five other |
| male persons decided to break into the Gillen Club and steal alcohol. At | |
| about 2.50am the group drove to the club and jumped the back fence into the | |
| rear beer garden where a cooffender, Christopher Coulthard, picked up a | |
| stool and used it to smash open the window to the outdoor serving area of | |
| the bar. The glass was smashed and the Crimsafe mesh popped away from | |
| the window frame. Approximately $500 damage was caused. |
The appellant and another offender entered the building via the damaged
window. Counsel informed the learned Magistrate, Mr Borchers SM, that
the appellant was told by Coulthard to enter the premises because the
appellant did not have any warrants outstanding. The appellant was also
smaller and could fit through the window. In addition it was put to the
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Magistrate that the appellant was scared of Coulthard and did not want to
refuse.
Once inside the premises, the appellant and the other offender who entered
the premises passed bottles of alcohol to cooffenders outside. The total
value of property stolen was $700.
Two days later on Thursday 4 February 2010, again in the early hours, the
appellant and two other male persons decided to break into the Gillen Club
and steal alcohol. The two cooffenders were not involved in the earlier
offence. The appellant was the only offender common to both offences.
At about 1.50am the appellant and his two cooffenders jumped the back
fence where a cooffender picked up a stool and used it to smash the
window. Again the Crimsafe mesh popped off the window frame. This was
the same method of entry as had been used two days earlier. Approximately
$500 damage was caused.
The appellant entered the building via the damaged window and removed
alcohol from the bar fridge which he passed to his cooffenders. The total
value of property stolen was $100. The appellant was detained by security
guards while attempting to leave the building.
In a later record of interview, the appellant made full admissions with
respect to both occasions. When asked why he entered the Gillen Club on
the first occasion, the appellant said that Coulthard had told him to go in.
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As to why he entered on the second occasion, the appellant replied “He told
me to go in”.
Manifestly excessive
The appellant turned 18 on 28 January 2010, four days before he committed
the first offence. He had never previously been convicted of a criminal
offence. In these circumstances, although s 78B of the Sentencing Act
required that a sentence of imprisonment be imposed unless there were
“exceptional circumstances in relation to the offence or the offender”, the
principles governing the exercise of the sentencing discretion with respect to
youthful offenders were of particular importance. The Youth Justice Act no longer applied to the appellant because he was 18 at the time of the
offending, but the rationale underlying the principles enunciated in the
Youth Justice Act for the sentencing of offenders under the age of 18 does
th
not simply become irrelevant as if a tap was turned off on an offender’s 18
birthday. For example, although the provision in the Youth Justice Act
directing that the Court impose a sentence of detention or imprisonment on
the youth only as a last result no longer applies, 1 this approach remains
appropriate in respect of an offender who has only just turned 18 and has not
previously been convicted of a criminal offence. Where the legislation
requires that a sentence of imprisonment be imposed, this approach becomes
particularly important in considering the length of the period of actual
imprisonment that the offender should be required to serve.
Youth Justice Act 2005 (NT), s 81(6).
4
The learned Magistrate took into account the appellant’s young age, but it is
unclear whether his Honour took into account that the appellant had never
previously been convicted of a criminal offence. The prosecutor tendered a
South Australian document headed “Offender History Report” which
referred to charges of criminal trespass and dishonestly taking property and
gave the date of the offences as 12 May 2009. However, it was noted on the
Report that both charges had been adjourned and reference was made to the
last hearing on 16 September 2009 as being a “family conference”. The
Magistrate clarified the meaning of the document with the prosecutor, but
made no further mention of it and did not refer to the absence of any prior
conviction.
The appellant now complains that the Magistrate erred in admitting the
Report. However, no objection was made to the admission of the Report and
counsel for the appellant specifically stated that it was a matter for the
Magistrate to determine what weight should be given to the document or the
information contained in it.
| [15] | In South Australia, s 58 of the Young Offenders Act 1993 (SA) specifically |
| directs that offences for which a youth was dealt with by way of family | |
| conference must be disregarded when that person is later dealt with for | |
| offending as an adult. There is no identical provision in the Northern | |
| Territory Youth Justice Act. Section 136 provides that where a youth is | |
| found guilty of an offence, but no conviction is recorded, no mention may be | |
| made of that offence to a court other than a Youth Justice Court unless the |
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youth had turned 15 years of age at the time the offence was committed.
Section 136 applies where a court finds a youth guilty of an offence, but in
South Australia disposition by way of a family conference does not follow a
finding of guilt. It can occur if a youth “admits the commission of a minor
offence”.
In these circumstances, at the least it was appropriate to treat the appellant
as a young offender who had never previously been convicted of a criminal
offence.
Notwithstanding the appellant’s youth and absence of any prior conviction,
bearing in mind s 78B of the Sentencing Act, I am not persuaded that the
individual sentences were manifestly excessive. Nor am I persuaded that the
decision to accumulate the sentences, making a total sentence of three
months, resulted in a sentence that was manifestly excessive. There was no
tariff and there was a range of sentence available to the Magistrate. It was
open to his Honour to accumulate the sentences as they were separate
occasions involving different cooffenders.
The aspect of the sentencing that has given me cause for significant disquiet
is the question of the period to be served. Again, this involves the exercise
of a sentencing discretion and there is no rule that a young first offender
shall never be required to serve all or a significant proportion of a total
sentence such as three months imprisonment. Each case must be determined
according to its circumstances and particular regard must be had to the
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seriousness of the offending when weighed against matters personal to the
offender. At times offending is so serious that matters personal to an
offender, including youth and prior good character, must take second place
to considerations of general deterrence and retribution. However, the
appellant’s offending was not in that category. No doubt general deterrence
was important, particularly in the community of Alice Springs where
breaking into commercial properties and stealing alcohol is far too
prevalent, but the appellant’s youth and lack of prior convictions required
that very careful consideration be given to whether there was an appropriate
alternative to requiring that the appellant serve the full period of three
months. It is in this area that, with respect, in my view the Magistrate fell
into error.
The Magistrate was informed that the appellant wished to return to Ernabella
and it was submitted that his Honour could suspend the sentence after
service of a short period to enable that return to occur. However, the
Magistrate rejected that submission because he reached the view that the
appellant would not comply with conditions of suspension. The following
passage from his Honour’s reasons express this conclusion:
“You have an incapacity for complying with the simplest of court
orders. It is clear that you signed a bail form which directed you to
attend court. You’ve acknowledged that you signed it. You now say
you didn’t understand it. A submission has been made on your
behalf that you be released early from gaol on conditions. It is clear
that you would not understand those and therefore would not comply
with any conditions.”
7
The reference to bail arose because the appellant was bailed to appear in the
Court of Summary Jurisdiction on 11 February 2010 and failed to attend. In
response to a question by the Magistrate as to why the appellant did not
attend Court, counsel informed his Honour that the appellant “just wasn’t
aware of the court date”. Shown the bail form, counsel confirmed that the
appellant acknowledged his signature, but said he did not see the date on the
document. It was on the basis of the failure to appear and the explanation
given by counsel that his Honour reached the conclusions in the passage I
have cited.
In my opinion, the failure to comply with a bail obligation did not justify a
conclusion that the appellant had “an incapacity for complying with the
simplest of court orders”. Nor did it justify a conclusion that if the
appellant was released on a suspended sentence with conditions, it was
“clear” that he would not understand the conditions and, therefore, would
not comply with them. Although the appellant signed the bail undertaking,
there was no evidence as to whether any explanation was given to the
appellant of his obligation to attend on the particular date. No attempt was
made to explore the capacity of the appellant to understand conditions of
suspension. The Magistrate was not given any information as to the
appellant’s education. When the question of the bail form was raised,
counsel for the appellant informed the Magistrate that counsel did not know
whether the appellant could read or write.
8
In my opinion the Magistrate erred in drawing the conclusions to which I
have referred. Inadequate consideration was given to alternatives to service
of the full period of three months, particularly as the appellant had been in
custody for three days. Sentencing occurred on 25 February 2010. The
appellant had been in custody since 23 February 2010. These errors were of
significance given the appellant’s youth and absence of prior offending and
resulted in a miscarriage of the sentencing discretion.
| [23] | The appeal is allowed to the extent that the commencement date of |
| 24 February 2010 is set aside and the aggregate sentence of one month is to | |
| commence on 23 February 2010. Further, total sentence of three months is | |
| suspended after service of 24 days, which period the appellant has already | |
| served. The operative period of suspension is nine months commencing | |
| 25 February 2010. It is a condition of suspension that as soon as reasonably | |
| practicable the appellant return to Ernabella and not leave Ernabella for a | |
| period of three months from today except for the purposes of a medical | |
| emergency. Further, it is a condition that during the operative period the | |
| appellant is not to attend within 50 kilometres of Alice Springs except for | |
| the purposes of a medical emergency. |
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