D v Boonstra
[2006] TASSC 11
•2 March 2006
[2006] TASSC 11
CITATION: D v Boonstra [2006] TASSC 11
PARTIES: D
v
BOONSTRA, Frank Marcel
CALLINAN, Belinda Jane
HARLEY, Michael Joseph
REARDON, Penelope Lynn
CONROY, Simon Matthew
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 76/2005
DELIVERED ON: 2 March 2006
DELIVERED AT: Hobart
HEARING DATE: 2 March 2006
JUDGMENT OF: Slicer J
[Edited Reasons for Judgment Delivered Orally]
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing - Generally – Review of sentence – Juvenile offender.
Dinsdale v R (2000) 74 ALJR 1538, followed.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Appellant: K Cuthbertson
Respondent: D Robertson
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 11
Number of paragraphs: 17
Serial No 11/2006
File No LCA 76/2005
D v FRANK MARCEL BOONSTRA, BELINDA JANE CALLINAN,
MICHAEL JOSEPH HARLEY, PENELOPE LYNN REARDON
AND SIMON MATTHEW CONTROY
REASONS FOR JUDGMENT SLICER J
(DELIVERED ORALLY) 2 March 2006
This appeal against an order made in the Magistrates Court, Youth Justice Division, comprises two grounds;
"1 The learned magistrate erred in factor and/or in law in that the said sentence was manifestly excessive in all the circumstances; and
2 The learned magistrate erred in law in suspending the period of detention imposed for a period of 2 years contrary to s 91(2)(a)."
Ground 2 is upheld and, consistent with the earlier decision of Conroy v S [2005] TASSC 101, it would appear that the magistrate overlooked the import of the Youth Justice Act 1997 ("the Act"), s91(2)(a).
The sentence imposed by the learned magistrate was effectively one of a detention order of 18 months, of which time served was taken into account and an allowance of two months made because of the combination of statutory remissions and the time actually served. In imposing that sentence, the learned magistrate took into account some instances of failing to appear in court, and showing indifference, on the part of the appellant I presume, to the overall process, but in my view, the failure to appear in July 2005 formed no part of that process and was not taken into account by the magistrate and will be ignored for the purpose of this determination.
The offences involved were numerous and included 19 acts of dishonesty, one of violence, some breaches of court orders, and one charge of destruction of property. The value of the property was approximately $20,000, although there was some issue as to the value of jewellery which was the subject of one of the complaints.
The appellant's course of conduct was prolonged, certainly over a more lengthy period than that discussed by the Court of Criminal Appeal in A v State of Tasmania [2005] TASSC 5, and some of the offences were committed after earlier charges which were also the subject of this hearing. In other words, some of the later offences subject to this hearing had occurred after she had already been charged and interviewed for other matters which were also the subject of this hearing, and the conclusion open to the learned magistrate was that she had earlier notice of the potential consequences of her conduct.
The order itself was at the higher range of penalties, given her age and circumstances, but I am guided more by what the High Court said in Dinsdale v R (2000) 74 ALJR 1538 in my approach to testing whether, at the end of the day, the effective penalty imposed was manifestly excessive. The provisions of the Act are not only about sanction, but also take into account the need, where possible, for there to be some degree of care and control of the conduct of a young person.
Here the learned magistrate took into account what appeared to be a change in direction in her life. He had earlier expressed concern that she was indifferent to the court process and indifferent to the consequences of her conduct, and had asked for specific assistance from the Youth Justice case worker in relation to that relevant matter and addressed the question in his sentencing comments, stating:
"I took a severe view, not only of what you've done but also of what I thought was a degree of mindless obstinacy that you're adopting which was the position that you were taking that was inconsistent with you staying out of trouble in future and inconsistent with you ever reaching the goals, the high goals that you have set for yourself. To put this really bluntly, and perhaps a little unkindly, I think you have finally woken up to yourself, or perhaps more accurately, I think there is now a good chance that you have and that being the case, I am prepared to take a chance."
The learned magistrate went on to say that that assessment diminished the risk to the community of misconduct, but drew the appellant's attention to the possibility of breach of her suspended detention conditions. He said he thought that was a particularly important undertaking for her to have given, because in her case, as it would be in many other cases, it opened up sentencing possibilities that were not otherwise attractive to the court. In doing so, he brought to the attention of the offender that the sanction of immediate detention was not appropriate, but that he concentrated on future control in accordance with her undertaking.
That might explain why at first blush the sentence, had it been an effective sentence, was certainly high, but in my view not manifestly excessive, because that was not the effect of the sentence imposed. As I have said, the learned magistrate took into account her change in direction and in doing so he followed the recommendation of the Case Officer who had suggested orders made in accordance with s47(1)(h) and (2), and, more importantly, (2)(a).
The method of desired future control, in turn, impacted on the question or issue of future rehabilitation which is counter to the claim that the sentence was manifestly excessive. But in the context of the comments of the learned magistrate, the subjective history of the appellant, in that she had not been responsive to earlier attempts to modify her conduct, the actual sentence must be looked at in a different context.
The actual order made provided the appellant with an opportunity for change. It provided for no further actual detention, subject to those conditions. The conditions themselves were not onerous and were consistent with an attempted method of subjective deterrence and an incentive for the appellant to abide by her own undertakings. In other words, they were intended as an aide to rehabilitation and that the possible future sanction itself, although high, must be looked at in that light. If she had changed her approach or attitude or conduct, then the conditions themselves were not onerous and the matter would run its course. If not, then the breach of the conditions or further misconduct would have made the learned magistrate's earlier order an appropriate one.
It is not correct to say that the learned magistrate was required to accept that there had been clear and conclusive evidence of a change of attitude. A letter dated 10 October 2005, from her Case Manager, advised that following discussion with a child psychologist, Dr Fernando:
"[The appellant] needs to attend counselling at Clare House. Naturally [the appellant] is not in favour of that, and has only attended one session, arranged by the writer in conjunction with the Education Department."
That is not necessarily a critique of the appellant, but it shows that at the stage of the sentencing process, she had not necessarily manifested a complete change in attitude, nor that she was not in need of future deterrence as a form of control.
As I have said, the detention order, looked at in isolation, although high, was not outside the parameters of the permitted range open to the learned magistrate. Given that her conduct was over an extended period and comprised a variety of forms of misconduct, the amount involved, and that some of the offences were committed in company, it could not be said that she was an innocent bystander. Further, there had been some earlier indifference to the juvenile justice requirements, or to court sanctions, which suggested that there was a need to fix a potential sanction as an aide to change, rather than as a form of punishment. It was also relevant that there had been some escalation in her conduct which had included some violence in the form of personal violence and the destruction of property.
The non-imposition of convictions shows that the learned magistrate had regard for her future course in life and that this order was intended to reinforce, in a negative sense, her desire to change. I am also mindful that there is a distinction between actual custody or detention and the suspension of that detention.
Accordingly, in my opinion, ground 1 has not been made out. The order itself does not in some inchoate way demonstrate that it was manifestly excessive as the result of a flaw in the process.
Having upheld ground 2, I will, however, quash the order made by the learned magistrate, since it was a global sentence and penalty. Given my disposition of ground 1, it is not appropriate to remit the matter for further hearing before the learned magistrate. Accordingly, the orders which I make are corrective in that they will replicate the original order, subject to the variation of the period of suspension as required by the Act, s91(2).
The orders are:
1 That motion to review ground 2 be upheld and the orders made on 25 October 2005 are quashed.
2 That in lieu thereof the appellant serve a period of detention of 16 months which is wholly suspended for a period of 1 year, such order to operate as and from the date fixed by the Youth Justice Court.
3 Reinstate the conditions imposed by the learned magistrate, with the exception of 3 and 11, namely:
1 You must not commit any offence which if committed by an adult could be punishable by imprisonment.
2 You must be of good behaviour.
4 You must report to the assigned Youth Justice Worker as required by him or her.
5 You must receive visits from the assigned Youth Justice Worker as required by him or her.
6 You must not leave the State of Tasmania without the written permission of the Secretary.
7 You must notify the assigned Youth Justice Worker of any change of school or employment before, or within 2 working days, after the change.
8 You must obey the reasonable and lawful instructions of the assigned Youth Justice Worker.
9 You must attend the following education, personal, health, and other programs as directed by the assigned Youth Justice Worker.
10 Comply with the directions in regard to residence by Child and Family Services and/or Youth Justice.
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