Cook v Nash & Anor - [2007] NTSC 14

Cook v Nash & Anor [2007] NTSC 14
PARTIES:SASHA MARY KATHLEEN COOK
v

MARK STEPHEN NASH
RENAE MOANA McGARVIE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NOS:JA 4 of 2006 and JA 5 of 2006 (20512155, 20512790)
DELIVERED:  22 February 2007
HEARING DATES:  12 May 2006
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

JUSTICES APPEAL – Justices Act – juvenile offender – sentencing – appeal against conviction and sentence – schoolgirl with no record – influence of older offender – (NT) Juvenile Justice Act 1983 s 53 – appeal allowed – convictions quashed – appellant re-sentenced

Girrabul v The Queen [2003] NTSC 101; R v Hearne (2001) 124 A Crim R 451; Simmonds v Hill (1986) 38 NTR 31; Wood v Samuels (1974) 8 SASR 465, applied

R v Bell (1999) 30 MVR 115; M v Waldron (1988) 56 NTR 1; 90 FLR 355; Nelson v Chute (1994) 72 A Crim R 85; P (a minor) v Hill (1992) 110 FLR 42; R v GDP (1991) 53 A Crim R 112; R v Sherpa (2001) 34 MVR 345; Smith [1964] Crim LR 70; R v Toombs (2001) 34 MVR 509; R v Tran (2002) 4 VR 457; Yovanovic v Pryce (1985) 33 NTR 24, referred to
REPRESENTATION:
Counsel:
Appellant:G Bryant
Respondents:  J Down
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondents:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Sou0740
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Cook v Nash & Anor [2007] NTSC 14

Nos JA 4 of 2006 and JA 5 of 2006 (20512155 and 20512790)

IN THE MATTER OF the Justices Act
AND IN THE MATTER OF an appeal against sentence of the Juvenile Court at Darwin

BETWEEN:
SASHA MARY KATHLEEN COOK

Appellant
AND:
MARK STEPHEN NASH
AND:
RENAE MOANA McGARVIE

Respondents

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 22 February 2007)
Introduction

These are appeals against sentence under s 58 of the Juvenile Justice Act.
On 23 December 2005 the appellant pleaded guilty to three offences with which she was charged in the Juvenile Court. She received the following sentences. First, for the offence of unlawfully damaging a Holden utility being the property of Mr Stefan Magoulas on 22 May 2005 at Darwin contrary to s 251(1) of the Criminal Code the appellant was convicted and ordered to do 56 hours of unpaid community work within two months of being convicted. Secondly, for the offence of stealing the front left exterior rear view mirror of a Holden utility being the property of Mr Magoulas on 22 May at Darwin contrary to s 210 of the Criminal Code the appellant was convicted and ordered to do 24 hours unpaid community work within two months of being convicted. Thirdly, for the offence of doing a dangerous act on 27 May 2005 at Darwin contrary to s 154(1) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook v Nash & Anor

Details

AGLC: Cook v Nash [2007] NTSC 14
Case: [2007] NTSC 14
Decision Date: 22 February 2007

CaseChat Overview and Summary

In the case of Cook v Nash & Anor, the appellant, who was a 16-year-old schoolgirl with no prior criminal record, appealed against her convictions and sentences. The appellant, who had a troubled upbringing, was influenced by an older offender, Jennifer Alanna Cooper, and participated in damaging the property of Mr. Magoulas in retaliation for an insult. The appeal centred on the assertion that the presiding magistrate erred in recording convictions against the appellant, that the sentences imposed were manifestly excessive, and that the magistrate failed to give adequate weight to the appellant's prospects of rehabilitation.

The legal issues that the court was required to decide included whether the presiding magistrate applied the appropriate sentencing principles for juveniles and whether the sentences imposed were proportionate and conducive to the appellant's rehabilitation. The court considered whether the magistrate adequately recognised the diminished culpability of the appellant, a first-time offender, and whether the sentences imposed were excessive in light of the appellant's prospects for rehabilitation.

The court found that the presiding magistrate failed to apply the sentencing principles appropriate for juveniles, giving undue weight to punishment and the objective facts of the case. The court held that it was an error to take a period of detention as the starting point for all of the offences faced by the appellant. The court emphasised that in cases involving juvenile offenders, the primacy of rehabilitation should not be diminished by reference to the seriousness of the offence. The court quashed the appellant's convictions and re-sentenced her, taking into account the principles enunciated in Simmonds v Hill and Girrabul v The Queen. The court found that the sentences imposed were manifestly excessive and not conducive to the appellant's rehabilitation.

The court ordered that the convictions be quashed, and the appellant be re-sentenced in accordance with the principles of juvenile justice, with a focus on rehabilitation and the appellant's prospects for becoming a law-abiding citizen. The court also considered the need to minimise the stigma resulting from a court determination and to avoid amplifying the juvenile offender's deviance.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal are that: the presiding magistrate erred in recording convictions against the appellant; each of the sentences is manifestly excessive; and the presiding magistrate failed to give any weight or adequate weight to the appellant’s prospects of rehabilitation.The Facts The facts are as follows. The appellant was born on 3 May 1989. She was 16 years of age at the time that she committed the offences which are the subject of these appeals. The appellant was previously of good character. She had never previously been to court for any offence. She had a dysfunctional upbringing. Her mother and father separated when she was four years of age. When she was five years of age her father left the Northern Territory and went to live in South Australia. The appellant does not get on with her mother. She left home when she was about 13 years of age and started living independently with older men. The appellant is an intelligent young person who deliberately conceals her scholastic ability. The author of the pre-sentence report that was before the Juvenile Court opined that the appellant was not a criminally minded person and that the chance of her committing similar offences was remote. It was further considered that the appellant’s prospects of rehabilitation were excellent. However, concerns were expressed about her emotional and psychological welfare. Prior to the offending which is the subject of these appeals, the appellant had become friendly with Jennifer Alanna Cooper who is four years older than her. Ms Cooper was not a good influence on the appellant. She had been in a relationship with Mr Magoulas. The relationship lasted for about two years. The relationship ended when Ms Cooper became pregnant. Mr Magoulas did not want to keep the baby. He felt that they were too young. He persuaded Ms Cooper to have an abortion. He gave her money for an abortion. Ms Cooper ended up having a spontaneous miscarriage. When the relationship came to an end there was considerable animosity between them. Ms Cooper involved the appellant in her animosity towards Mr Magoulas. She got the appellant onside and the appellant took a disliking to Mr Magoulas. After Mr Magoulas separated from Ms Cooper he began a relationship with another woman. Unbeknown to her, Mr Magoulas and Ms Cooper continued a secret sexual relationship. The appellant became friends with Ms Cooper shortly after the secret relationship ended. On the evening of Saturday 21 May 2005 the appellant and Ms Cooper travelled into Darwin City in Ms Cooper’s motor car. They visited the Victoria Hotel and a nightclub, the Lost Arc, where they socialised. Mr Magoulas worked as a bouncer at the Lost Arc. At about 2.00 am on Sunday 22 May 2005 the appellant and Ms Cooper left the Lost Arc and drove off along Mitchell Street. As they were driving down Mitchell Street, Mr Magoulas called out the word “slut” in the direction of their motor car. The appellant thought that the remark was directed at her. She felt very insulted by this remark and she became extremely angry. She decided to retaliate by damaging his Holden utility. The appellant and Ms Cooper knew where the staff of the Lost Arc parked their motor vehicles. Ms Cooper parked her motor car in front of the Darwin Entertainment Centre. They then walked down to the car park of the Holiday Inn with the intention of finding and damaging the Holden utility that was owned by Mr Magoulas.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The offending was objectively serious and the presiding magistrate gave appropriate weight to all relevant subjective matters including rehabilitation of the appellant. The sentences that were imposed on the appellant were not such as to destroy the rehabilitation process.Conclusion I accept the appellant’s submissions in both appeals. The presiding magistrate failed to apply the sentencing principles appropriate to juveniles. His Honour gave undue weight to punishment and the objective facts. It was an error to take a period of detention as the starting point for all of the offences that the appellant faced. His Honour failed to adequately recognise the diminished culpability of the appellant and to give due weight to individualised treatment of the appellant directed towards her rehabilitation. As a result, each of the sentences imposed on the appellant were manifestly excessive. In cases involving this level of offending the primacy of rehabilitation in sentencing juveniles should not be diminished by reference to the seriousness of the offence: R vHearne (2001) 124 A Crim R 451 at 458 [24]. The appellant was sentenced under the provisions of the Juvenile Justices Act. The Act is no longer in force. However, it was in force at the time that the appellant was sentenced by the Juvenile Court. Section 53 of the Juvenile Justice Act empowered the Juvenile Court when it found a charge proven against a juvenile, to dispose of the case in a number of ways, with or without proceeding to a conviction. Guidance as to the exercise of the sentencing discretion in the case of juveniles may be found from the following statements of principle which were enunciated by this court in Simmonds v Hill (1986) 38 NTR 31 at 33 by Maurice J and applied in Nelson v Chute (1994) 72 A Crim R 85; P (a minor) v Hill (1992) 110 FLR 42; M v Waldron (1988) 56 NTR 1; 90 FLR 355; and Yovanovic v Pryce (1985) 33 NTR 24. First, the overwhelming concern of a court when sentencing juveniles is the young offender’s development as a law abiding citizen. The court should be at pains to ensure that its sentences do not alienate young offenders. This is particularly so in the case of a first offender. Before imposing a particular sentence on a juvenile a court must ask itself if it is necessary to go beyond the lesser options. It is also important to have regard to the needs of the juvenile to ultimately obtain employment and to take into account the need to minimise the stigma to a juvenile resulting from a court determination and to avoid amplifying the juvenile offender’s deviance. None of the above principles exclude consideration being given to the objective facts of the offending; to protection of the community; to holding juveniles properly accountable; and to deterrence in the appropriate case. Those factors must still be considered. However, those factors are to be considered in accordance with the principles enunciated in Simmonds v Hill (supra). In Girrabul v The Queen [2003] NTSC 101 Martin (BF) CJ (as he then was) stated:The sentencing remarks in those cases derive from particular circumstances of the offence and the juvenile offender there under consideration. However, there is a theme which recognises that in the case of juveniles the sentencer is required to consider sentencing options by firstly taking into account the psychological and social needs of the individual wrongdoer and applying that which can be best directed towards meeting his or her needs and aiding rehabilitation. The appropriate resources of the state available to support that welfare objective are often to be engaged both before the sentencing and after. Accountability, personal responsibility for the offending, and deterrence both personal and general, may be brought to bear within that framework by the imposition of restraints which can work together with the rehabilitative measures. The two models are not mutually exclusive. Striking the desirable balance between divergent objectives may often be a difficult task but the nature of the offending must not be allowed to overshadow its cause. The offender's background, including age and criminal history, will always be relevant factors as will the family and state resources available.

Ratio Decidendi

Legal Principle Established

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