CN v Beck

[2017] ACTSC 250

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

CN v Beck

Citation:

[2017] ACTSC 250

Hearing Date:

15 August 2017

DecisionDate:

15 August 2017

Before:

Murrell CJ

Decision:

Appeal dismissed.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from ACT Childrens Court – appeal against sentence  – whether sentence manifestly harsh and excessive – breach of good behaviour order – re-sentenced in Childrens Court to partially suspended sentence – offence objectively serious – non-compliance with good behaviour order obligations – appeal dismissed

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT) ss 108, 110(2)

Crimes Act 1900 (ACT) s 375(16)(a)

Magistrates Court Act 1930 (ACT) s 216

Cases Cited:

Amos v McCarron [2017] ACTSC 6; 79 MVR 179

Dalton v Queen [2015] ACTCA 48

NC v The Queen [2017] ACTCA 31

Parties:

CN (Appellant)

Teresa Beck (Respondent)

Representation:

Counsel

Mr J Moffett (Appellant)

Mr T Hickey (Respondent)

Solicitors

Aboriginal Legal Service (NSW/ACT) (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 39 of 2017

Decision under appeal: 

Court/Tribunal:             ACT Childrens Court

Before:  Chief Magistrate Walker

Date of Decision:         27 April 2017

Case Title:  Beck v CN

Court File Number:       CH 897 of 2014

MURRELL CJ:

The proceedings

1. On 5 November 2014, when he was 15 years old, the appellant committed an act of indecency on a child under the age of 10 (he pulled down the underpants of a five year old female relative and tickled her genital area). 

1. On 19 February 2016, the Childrens Court sentenced the appellant by imposing an 18 month good behaviour order with a supervision condition of 12 months or such lesser period as the Director General deemed appropriate.

1. Between 17 December 2015 and 20 April 2016, the appellant was in custody.  After he was released, he received directions from Child and Youth Protection Services.  Between 11 November 2016 and 7 December 2016, he received three warning letters concerning failure to adhere to a residence condition and failure to attend supervision and counselling appointments.  He committed no new offence. 

1. He was brought before the Childrens Court for breach of the good behaviour order.

1. On 27 April 2017, the Childrens Court (the Chief Magistrate) found that the breach was established and re-sentenced the appellant to four months' imprisonment, backdated to 23 February 2017 (to take account of 64 days spent in custody on remand for the subject offence and other alleged offences).  The sentence was suspended from 27 April 2017 (the re-sentencing date) on the appellant entering a 12 month good behaviour order (to 26 April 2018) to be supervised for 12 months or such lesser period as the Director General deemed appropriate.

The appeal

1. The appellant appealed against the sentence on the ground that it was manifestly harsh and excessive in the circumstances. 

1. The principles applying to a complaint of manifest excess are well-known and were recently endorsed by the Court of Appeal in NC v The Queen [2017] ACTCA 31 at [51] (quoting Dalton v Queen [2015] ACTCA 48 at [18]):

·     Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 2002 CLR 321 (Dinsdale).

·     The relevant test is whether the sentence is unreasonable or plainly unjust:  House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen(2014) 305 ALR 323 at [61].

·     In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].

·     It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

Reasons of the Childrens Court

1. Pursuant to s 108(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), one of the options available to the Court was to cancel the good behaviour order and re-sentence the offender for the offence for which the good behaviour order was made.  The Chief Magistrate decided to adopt that course. 

1. The Chief Magistrate noted the maximum penalty of 12 years' imprisonment. 

1. Her Honour characterised the objective seriousness of the offence in the following way:

...[N]ot the most serious example at all but it certainly was not insignificant.  The assault was against a five-year-old relative of yours and it was a direct touching of her genitalia and she was clearly affected by it because she complained of it immediately to other family members.

1. Her Honour then dealt at length with the appellant's subjective circumstances.  Her Honour noted his “tumultuous” family background and the fact that he had suffered abuse, and referred to the appellant's contact with the justice system and his housing and employment needs.  Her Honour noted that the appellant was resistant to supervision and counselling.

1. The Chief Magistrate observed that she was faced with a “stark choice” between letting the appellant "do what [he] like[d]" or, at the other extreme, imposing "essentially a sentence of imprisonment".  Her Honour expressed concern about the number of young Indigenous men in custody and recognised that imprisonment was a “sentence of last resort”. 

1. The Chief Magistrate considered the relevant provisions of the Crimes (Sentencing) Act2005 (ACT), including the relevant sentencing purposes, and the appellant’s youth. Her Honour was aware that rehabilitation was the most important sentencing purpose for young people.

1. Prior to imposing sentence, the Chief Magistrate had afforded the appellant’s legal representatives a short adjournment to make inquiries about options that may have combined supervision and treatment with opportunities for cultural connection.  Unfortunately, no suitable options were identified.

Consideration

1. As noted above, the sole ground of appeal was manifest excess. 

1. During the appeal hearing, the appellant made two submissions in support of that ground.

1. First, it was submitted that the Chief Magistrate had failed to engage with the argument advanced by the appellant’s solicitor that no further action should be taken on the breach. 

1. I reject that submission.  The Chief Magistrate not only referred to the submission, but engaged with it.  When referring to the “stark choice” with which she was confronted, she noted that one choice was to do nothing, as submitted by the appellant.

1. Second, it was submitted that the Chief Magistrate had failed to afford procedural fairness to the appellant in relation to the possible imposition of a suspended sentence of imprisonment.  In effect, it was submitted that her Honour should not have elevated the original good behaviour order to a suspended sentence with an associated good behaviour order without clearly signalling that intent and allowing the appellant to make submissions directly on that point.

1. There are several answers to that submission.  First, it was not raised as an independent ground of appeal.  Second, on a re-sentencing exercise, all sentencing options are re-opened.  Third, during the Children Court proceedings, there was considerable discussion about the period of 64 days that the appellant had spent in custody, with a view to ensuring that that the whole period was taken into account.  Although the manner in which the period was to be taken into account was not articulated, it must have been obvious from the discussion that a further period of imprisonment was in contemplation.  Finally, the prosecutor in the Childrens Court submitted that compliance with a good behaviour order needed to be secured by “a deterrent”.  This must have been a reference to a suspended sentence; it is difficult to identify another possible “deterrent”.

1. The Chief Magistrate was concerned that the offence in question was one of interfering with a very young child in circumstances where the appellant had been abused and had not engaged with services to deal with the abuse.  No doubt, had her Honour been presented with a promising treatment option, she would have seized it.  But in the absence of a promising treatment option, there was no basis upon which her Honour could reasonably abandon a supervision condition in favour of a more lenient sentence; i.e. there was no basis upon which her Honour could reasonably let the appellant “do what [he] like[d]” rather than impose a sentence that reflected purposes such as denunciation and accountability.

Manifest excess

1. The offence before the Childrens Court was an objectively serious matter. It carried a maximum penalty of 12 years' imprisonment, albeit restricted to a two year sentence in the Childrens Court by s 375(16)(a) of the Crimes Act 1900 (ACT).

1. The particular offence before the Court was a serious offence of its type.  It involved a 15 year old young person interfering with a five year old relative.  The offender pulled down the victim’s underwear and there was skin on skin contact.  In assessing objective seriousness, the age of the victim is important; the maximum age for a victim of such an offence is 10 years.  Although not a relationship of trust, the relationship between the offender and the victim involved an element of trust and responsibility. 

1. The appellant’s subjective circumstances aroused sympathy, but also frustration.  The appellant had not taken any positive steps to engage with treatment, which he obviously required.  Rehabilitation is a dominant sentencing purpose for any young person.  However, particularly where rehabilitation options have been exhausted, other sentencing purposes must play a significant role, including denunciation (to which the Chief Magistrate referred).

1. On the appeal, the appellant cited Amos v McCarron [2017] ACTSC 6; 79 MVR 179, which involved the activation of a suspended sentence. Where a good behaviour order is associated with a suspended sentence, a slightly different legislative framework applies. Under s 110(2) of the Sentence Administration Act, where the good behaviour order is cancelled, the court must either impose the suspended sentence or re-sentence the offender.  In theory, this gives the court a wide discretion.  However, in general, courts have adopted the starting point that the suspended sentence will be imposed.  Of course, the decision to do so may be ameliorated by other considerations, such as positive performance under a good behaviour order.  It would be unusual for a re-sentencing court to impose a sentence that is longer than the original suspended sentence.

1. In this case, the appellant was originally sentenced to a good behaviour order simpliciter.  The appellant had taken no positive steps pursuant to that order.  The imposition of the same sentence would be fruitless. 

1. There was no error in the course adopted by the Chief Magistrate.  Given the objective and subjective considerations, and relevant sentencing purposes, the sentence imposed by her Honour was not manifestly excessive.

Orders

1. The appeal is dismissed.

1. Pursuant to s 216 of the Magistrates Court Act 1930 (ACT), the appellant’s sentence was stayed from 25 May 2017 pending the appeal. For the purpose of confirming the orders of the Chief Magistrate, by consent, the appellant is re-sentenced as follows:

(a)He is sentenced to four months’ imprisonment from 11 June 2017.

(b)The sentence is to be suspended and the offender released on 15 August 2017 (after serving 64 days from 11 June 2017), on the condition that:

(i)He signs an undertaking to comply with good behaviour obligations from 15 August 2017.

(ii)He is to be on probation subject to the supervision of the Director General and is to comply with all reasonable directions of the Director General for a period of 11 months or such lesser period as deemed appropriate.

(iii)He is to attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed.

(iv)He is to undertake medical treatment and supervision as directed.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date:1 September 2017