C v The Queen

[2002] TASSC 55

[2002] TASSC 55

CITATION:              C v R [2002] TASSC 55

PARTIES:  C

v
R

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  375/2001
DELIVERED ON:  15 August 2002
DELIVERED AT:  Burnie
HEARING DATE:  15 August 2002
JUDGMENT OF:  Evans J

[Edited edition of Reasons for Judgment delivered orally]

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Juvenile offenders - Sentencing as child or adult and imprisonment - Discretion to sentence as adult - Whether the Supreme Court's powers are confined by the Youth Justice Act 1997.

Criminal Code  1924 (Tas), s389.
Youth Justices Act 1997 (Tas), Pt 4, s109.
Sentencing Act 1997 (Tas), ss5, 94, 97.
Aust Dig Criminal Law [857]

REPRESENTATION:

Counsel:
           Applicant:  C J Gibson
           Respondent:  J P Ransom
Solicitors:
           Applicant:  AT Legals
           Respondent:  Director of Public Prosecutions

Judgment  Number:  [2002] TASSC 55
Number of paragraphs:  6

Serial No 55/2002
File No 375/2001

C v THE QUEEN

REASONS FOR JUDGMENT  EVANS J

(DELIVERED ORALLY)  15 August 2002

1. On 28 May 2002, I sentenced the applicant to fifteen months' imprisonment to commence at the expiration of any sentence he was currently serving.  He applies pursuant to the Sentencing Act 1997, s94, for the variation of that sentence. That section empowers the Court to vary or rescind a sentence that is contrary to law.

1. When I sentenced the applicant, he was a youth for the purposes of the Youth Justice Act 1997. When sentencing him, I recorded that I was dealing with him under the provisions of the Sentencing Act, not the powers vested in the Supreme Court by the Youth Justice Act, s107.

1. On behalf of the applicant, it is in substance contended that the course adopted by me was contrary to law and that in sentencing the applicant, the Court failed to recognise the provisions of the Youth Justice Act, in particular ss46, 85 and 109.  Matters which can be derived from those sections which are relied upon by the applicant are: that in relation to a youth a statute specifying a penalty of imprisonment is to be taken as specifying a penalty of detention; that the earliest release date for a youth serving a period of in excess of six months' detention is 50 per cent of that period; and that an order that a youth serve a cumulative period of detention may commence from the youth's earliest release date.

1. The contention that the sentence imposed on the applicant is contrary to law can only succeed if, when sentencing a youth, this Court is bound by the provisions of the Youth Justice Act, Pt 4.

1. The applicant was sentenced upon his conviction on a charge of causing grievous bodily harm in breach of the Criminal Code, s172. The Code, s389, provides that subject to the provisions of the Sentencing Act or any other statute, and except where otherwise expressly provided, the punishment for any crime shall be imprisonment for 21 years, or by fine, or by both such punishments.  The Sentencing Act, which consolidated the State's sentencing law, enlarges the range of sentencing orders that can be made by this Court, or the Court of Criminal Appeal, or the Court of Petty Sessions.  The effect of the Sentencing Act, s5, is that save for two sections of the Youth Justice Act which deal with area restriction orders, the Sentencing Act does not apply to the Magistrates Court (Youth Justice Division).  The Youth Justice Act, s159, established the Magistrates Court (Youth Justice Division) which, in that Act, is defined as "the Court". The Youth Justice Act, Pt 4, is comprised of ss26 - 108 which, consistent with the heading to that Part "Court proceedings against a youth", detail a multiplicity of matters in relation to proceedings against a youth in "the Court", that is, the Magistrates Court (Youth Justice Division). I will not trouble to deal with the content of the sections in that Part in any detail. It is sufficient to say that all but two of the sections include an express reference to "the Court" and only three of the sections refer to the Supreme Court. Section 28 refers to the Supreme Court in relation to the circumstances in which the Magistrates Court (Youth Justice Division) may hear and determine a plea of guilty from a jointly charged youth. Section 31 places restrictions on the publication of proceedings of the Magistrates Court (Youth Justice Division), and s108 provides that s31 applies with necessary adaptions to proceedings against a youth in the Supreme Court. More significantly, s107 provides that the Supreme Court "may exercise all the powers of the Magistrates Court (Youth Justice Division) under this Part". As this section plainly recognises, in the absence of it, the Supreme Court would not be entitled to exercise any of the powers given to the Magistrates Court (Youth Justice Division) by that Part. This recognition is an acknowledgment that, save as expressly provided, the Supreme Court is not bound by any of the sections contained in that Part. Section 107 is an enabling provision which allows the Supreme Court to exercise the powers referred to. It is intended to supplement the powers of the Supreme Court and is not intended to confine them. When the Supreme Court sentences a youth pursuant to the powers vested in it by the Sentencing Act, the Court's powers are not circumscribed by any of the provisions contained in the Youth Justice Act, Pt 4.

1. I am accordingly not persuaded that the sentence imposed on the applicant was unlawful or that any of the other matters which enliven the Court's jurisdiction under the Sentencing Act, s94, have been established. The application is dismissed.