D v White
[2006] TASSC 87
•1 November 2006
[2006] TASSC 87
CITATION: D v White [2006] TASSC 87
PARTIES: D
v
WHITE, Sergeant Graham Ross
CHOKLJAT, Acting Sergeant Katrina
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 27/2006
DELIVERED ON: 1 November 2006
DELIVERED AT: Hobart
HEARING DATE: 19 October 2006
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Error in dealing with a contravention of a probation order – Person convicted of stealing an item cannot also be convicted of receiving it.
Youth Justice Act1997 (Tas), s68(4).
R v Seymour [1954] 1 All ER 1006; Goldberg (1985) 19 A Crim R 449; Gilson v R (1991) 172 CLR 353, R v Saliba [1973] Qd R 142, referred to.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: M J Brett
Respondent: S J Bender
Solicitors:
Applicant: P L Corby & Co
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 87
Number of paragraphs: 6
Serial No 87/2006
File No LCA 27/2006
D v WHITE & ANOR
REASONS FOR JUDGMENT EVANS J
1 November 2006
The applicant, a youth aged 12, has filed a notice to review a sentence of 12 months' detention imposed on him in the Magistrates Court (Youth Justice Division) on 1 September 2006. A multitude of matters involving the applicant were before the learned magistrate who imposed the sentence. The applicant had pleaded guilty to 39 of the charges contained in 20 complaints. The applicant had also appeared before the learned magistrate in response to an application pursuant to the Youth Justice Act 1997, s68, as to his contravention of a probation order. That order was made on 22 June 2005 consequent upon the applicant's pleas of guilty to the following charges:
Complaint 41851/04
Charge 1 Stealing between 22 August 2004 and 23 August 2004
Charge 2 Dishonestly acquiring a financial advantage on 23 August 2004
Complaint 30551/05
Charge 1 Aggravated burglary on 27 October 2004
Charge 2 Stealing on 27 October 2004
Charge 3 Motor vehicle stealing on 27 October 2004
Complaint 30556/05
Charge 1 Aggravated burglary on 27 October 2004
Charge 2 Stealing on 27 October 2004.
The probation order was for a period of 12 months from 22 June 2005 and a term of it was that the applicant not commit any offence during that period. As the majority of the offences to which the applicant pleaded guilty were committed subsequent to the imposition of the probation order, not surprisingly, the applicant did not dispute his contravention of that order. It fell to the learned magistrate to deal with that contravention in accordance with the Youth Justice Act, s68(4), which provides:
"68 …
(4) If the Court is satisfied that a youth has contravened the probation order or a special condition to which the probation order is subject, the Court may do one or more of the following:
(a) continue the probation order as it is;
(b) amend the period during which the probation order has effect;
(c) amend the special conditions to which the probation order is subject;
(d) revoke the probation order and, where appropriate, any other order made under section 47 and make another order under that section in respect of the offence."
The facts in relation to the offences as to which the applicant pleaded guilty, together with the facts as to his contravention of the probation order were put to the learned magistrate on 16 August 2006 and the hearing was adjourned to 1 September 2006. On that day, after an address from the applicant's counsel, the learned magistrate said the following in dealing with the applicant:
"Well I take all the sentencing material before the court into account. You have committed a host of offences, over 30 in all and you developed obviously a system that worked and you found it worked, that was in relation to accessing ladies handbags, taking their purses and the cash from the purses and then hanging about business premises until the coast was clear and accessing the till or other sources likely to yield cash. So you became quite adept at those things. In my view, having regard to the reports, and all the other material before the court, nothing other than a sentence of detention would be appropriate for you having regard to your history, your family circumstances and the submissions I have heard. You can do well at Ashley at school there. You have shown you have got the ability to do that. There are convictions upon all complaints and you are sentenced to a period of detention of 12 months, that will commence on and from the 19th June of this year. On your release you will be subject to a probation order of 12 months, that will be supervised and the conditions of that supervised order will be explained to you by your probation officer."
Save for the reference to there being "convictions upon all complaints", the learned magistrate did not better identify the offences to which his comments related and he did not distinguish the manner in which he dealt with those offences, to which the applicant had pleaded guilty, from the manner in which he dealt with the application as to the applicant's breach of the probation order imposed on 22 June 2005. It seems from the comments made by the learned magistrate that the detention order and the probation order were imposed by him in respect of all of the matters on which the applicant was before the court. That the learned magistrate so dealt with all of these matters is confirmed by the record of proceedings endorsed on each complaint. Complaint number 30626/06 records the imposition of a global sentence of 12 months' detention from 19 June 2006, together with a probation order for 12 months from the date of the applicant's release from detention. Every other complaint containing charges to which the applicant pleaded guilty records that on 1 September 2006 the complaint was the subject of: "global order on 30626/06". More significantly, the same endorsement appears on complaints 41851/04, 30551/05 and 30556/05, the complaints on which the applicant had previously been sentenced when the probation order of 22 June 2005 was made.
The course followed by the learned magistrate in dealing with the applicant's breach of that probation order does not comply with the Youth Justice Act, s68(4). The learned magistrate did not address this provision, or the problems it presented, bearing in mind that the probation order ceased on 21 June 2006, well prior to the global sentence imposed by the learned magistrate on 1 September 2006. (Prior to the amendment of the Sentencing Act 1997, s42(6), on 6 May 2005, the same problems could have arisen when dealing with a contravention of a probation order under that Act.) As the probation order had determined, the learned magistrate could not continue it, amend it or revoke it pursuant to the Youth Justice Act, s68(4). It is only in circumstances that would have allowed the learned magistrate to revoke the probation order pursuant to s68(4)(d) that he could have taken that course and re-sentenced the applicant on the three complaints in question. The learned magistrate did not purport to revoke the probation order, he simply, without explanation, once again sentenced the applicant on the three complaints. This was an error.
Another error that occurred in the course of the sentencing hearing is that the applicant was allowed to plead guilty to charges of stealing and receiving arising from the same incident. On complaint 36280/06, the applicant pleaded guilty to a charge of stealing a mobile phone. The facts of that charge were that on 16 December 2005 he stole a Samsung mobile phone valued at $400 from a gym locker. On complaint 33937/06, the applicant pleaded guilty to a charge of receiving that same phone in the knowledge that it had been stolen. "[A] man cannot receive from himself"; R v Seymour [1954] 1 All ER 1006 at 1007 per Lord Goddard CJ speaking for the court of criminal appeal. See also Goldberg (1985) 19 A Crim R 449 at 451 and the decisions of the members of the High Court in Gilson v R (1991) 172 CLR 353. On the facts as put before the learned magistrate on the stealing charge, the applicant was the sole perpetrator of that offence and as such the principal offender. As the principal offender he could not be guilty of receiving the stolen phone from himself. This is not a case where it could be said that the applicant was guilty of stealing as an accessory before the fact, in which case it might be argued that a conviction for receiving is also open; R v Saliba [1973] Qd R 142.
In view of the errors to which I have referred, this appeal must be allowed. Counsel for the respondent does not submit otherwise. I quash the applicant's conviction on the charge of receiving contained in complaint number 33937/06. I quash the sentence imposed by the learned magistrate on all the complaints on which that sentence is recorded, including complaints 41851/04, 30551/05 and 30556/05 and will:
·re-sentence the applicant in respect of the charges to which he pleaded guilty, save for the abovementioned charge of receiving; and
·deal with the application made pursuant to the Youth Justice Act, s68, in respect of the applicant's breach of the probation order made on 22 June 2005 referable to complaints numbered 41851/04, 30551/05 and 30556/05.
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