DN v Burns
[2020] NTSC 12
•9 March 2020
CITATION:DN v Burns & Anor [2020] NTSC 12
PARTIES:DN
v
BURNS, Gregory
and:
SWIFT, Adam
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 12 of 2018 (21820076)
LCA 13 of 2018 (21831045)
LCA 14 of 2018 (21828614)
LCA 15 of 2018 (21831829)
LCA 16 of 2018 (21831064)
DELIVERED ON: 9 March 2020
HEARING DATE: 27 February 2019
JUDGMENT OF: Grant CJ
CATCHWORDS:
CRIME – Appeals – Appeal against sentence – Misapplication of principle – Recording of convictions – Manifest excess – Totality
Whether Youth Justice Court erred in the application of the principles and requirements of the Youth Justice Act – Whether Youth Justice Court erred in recording convictions – Whether Youth Justice Court erred in the application of the principle of totality – Whether sentence manifestly excessive –Appeal allowed in part – Appellant resentenced.
Local Court (Criminal Procedure) Act 1928 (NT) s 163
Youth Justice Act 2005 (NT) s 3, s 4, s 5, s 51, s 63, s 68, s 69, s 81Abbott v Wilson [2017] NTSC 50, Allan v Transurban City Link Limited (2001) 208 CLR 167, Anderson v The Queen [2014] NTCCA 18, BB v The Queen [2014] NTCCA 13, Brown v Lyons [2017] NTSC 9, C (A Child) v The Queen (1995) 83 A Crim R 561, Cahyadi v R (2007) 168 A Crim R 41, Carroll v The Queen (2011) 29 NTLR 106, CI v Heath [2017] NTSC 38, Cook v Nash [2017] NTSC 14, CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261, DD v Cahill [2009] NTSC 62, Dinsdale v The Queen (2000) 202 CLR 321, Director of Public Prosecutions v Mattiuzzo (2011) 29 NTLR 189, EA v Rothe & Ors [2012] NTSC 97, Flynn v Apuatimi [2019] NTSC 1, Girrabul v The Queen [2003] NTSC 101, Hanks v The Queen [2011] VSCA 7, Haritos v Commissioner of Taxation (2015) 233 FCR 315, LA v Kennedy [2009] NTSC 56, M v Waldron (1988) 90 FLR 355, McKenna v The Queen (1992) 7 WAR 455, Mill v The Queen (1988) 166 CLR 59, Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31, Nguyen v R [2007] NSWCCA 14, Noakes v The Queen [2015] NTCCA 7, P (a minor) v Hill (1992) 110 FLR 42, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, R v Mills [1998] 4 VR 235, R v Bloomfield [1999] NTCCA 137, R v Goodwin [2003] NTCCA 9, S v Australian Crime Commission (2005) 144 FCR 431, Simmonds v Hill (1986) 38 NTR 31, SB v Heath [2017] NTSC 13, Step v Atkins [2008] NTCCA 5, The Queen v Yunupingu [2007] NTSC 41, TM v The Queen [2017] NTCCA 3, Verity v SB [2011] NTSC 26, Wesley v The Queen [2014] NTCCA 17, WO (A Child) v Western Australia [2005] WASCA 94, referred to.
REPRESENTATION:
Counsel:
Appellant:JM Lowrey
Respondents: S Lapinski
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondents: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: GRA2002
Number of pages: 60
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSDN v Burns & Anor [2020] NTSC 12
LCA 12 of 2018 (21820076)
LCA 13 of 2018 (21831045)
LCA 14 of 2018 (21828614)
LCA 15 of 2018 (21831829)
LCA 16 of 2018 (21831064)
BETWEEN:
DN
Appellant
AND:
GREGORY BURNS
First Respondent
AND:
ADAM SWIFT
Second Respondent
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 9 March 2020)
[1]These are appeals brought pursuant to s 144 of the Youth Justice Act 2005 (NT). Four of the appeals are from sentences imposed by the Youth Justice Court for offences arising from four separate incidents. The offences committed during three of those incidents constituted the breach of a good behaviour bond which had been imposed at an earlier time, and an appeal is also brought from that re-sentence.
The offences
[2]The appellant was 15 years old at the time of the offending. He was leading a peripatetic lifestyle travelling between and residing variously in Kintore, Papunya and Alice Springs. The offences were all committed in Alice Springs.
[3]The first incident took place on 26 April 2018. At some time in the afternoon or night of that day the appellant attended a residential unit with the intention of stealing from that dwelling. He forced open the rear sliding door to gain access causing minor damage to the locking mechanism of the door. He searched the dwelling in a way which disordered its contents, and stole $20 in loose coins and a road bike valued at $1000. His fingerprints were found on an envelope in the unit. He was arrested on 2 July 2018 and charged with property damage, aggravated unlawful entry and two counts of stealing (File 21828614).
[4]On 5 May 2018, following the first incident but before the appellant’s arrest for that offending, he unlawfully entered a residential unit shortly before 6 o’clock in the morning with the intention of stealing from that dwelling. He stole a Nintendo game console, a gold ring valued at $6000 and the keys to a motor vehicle which was parked outside the dwelling. The appellant placed the game console and the gold ring in the vehicle and attempted to start it but fled when he was disturbed by the occupant of the dwelling. The appellant was arrested on 7 May 2018 and charged with aggravated unlawful entry, stealing and interference with a motor vehicle. Those charges were dealt with by the Youth Justice Court on 16 May 2018, at which time the offences were found to be proved without proceeding to conviction and the appellant was placed a good behaviour bond for 12 months (File 21820076).
[5]The second incident took place on 15 July 2018, approximately two months after the appellant had been placed on the good behaviour bond and approximately two weeks after he had been arrested in relation to the first incident. At the time of the second incident the appellant was at liberty on bail which had been granted in relation to the charges arising from the first incident. The conditions of that bail required the appellant to return to Kintore on or before 5 July 2018, and not to return to Alice Springs except in case of medical emergency. The appellant had remained in Alice Springs in breach of the conditions of bail.
[6]At about 10 o’clock on the night of 15 July 2018 the appellant and a co-offender formed an intention to enter the Hose Tech business premises. The appellant pried the doorway open using a tool which forced the doorway from its housing. The doorway was rendered inoperable and subsequently required repair. The appellant then entered the premises and stole an unknown quantity of loose coins. The appellant and his co-offender then went to the business premises of Desert Edge Motor Cycles, which was located across the street from the Hose Tech premises. The appellant and his co-offender forced entry through the front door way to the premises, shattering the glass and damaging the locking mechanisms in the process. Once inside, the appellant stole $260 from the cash register and three motorcycles with a total value of approximately $9000. The appellant and his co-offender then smashed the lock of an external gate and wheeled the motorcycles out onto the street. They discarded two of the motorcycles and left with the third, which was never recovered. The appellant was arrested on 20 July 2018 and charged with two counts of aggravated unlawful entry, two counts of property damage and two counts of stealing (File 21831064).
[7]The third incident took place on 20 July 2018, five days after the second incident and before his arrest for that offending. At the time of the third incident the appellant remained at liberty on the bail which had been granted in relation to the charges arising from the first incident, and by his continuing presence in Alice Springs remained in breach of the conditions of that bail.
[8]At about 8 o’clock on the evening of 20 July 2018 the appellant formed the intention to unlawfully enter the business premises of McMahon Services for the purpose of stealing from those premises. He jumped the fence, removed the screen from a bathroom window causing damage to the value of $300, and entered the building through that window. Once inside he took toiletries to the value of $20 before an alarm was triggered causing him to leave the premises. He then used bolt cutters to cut a hole in the chain mesh fence of the neighbouring business premises, causing damage to the value of $500. He entered those premises and stole a motorised go-kart valued at $700, which he pushed onto the street through the hole in the fence and then drove away. He drove the go-kart around on public roads until he saw police and abandoned the vehicle. The appellant was arrested by police just before midnight on that same night. He was charged with breach of bail, two counts of property damage, unlawful entry, stealing, trespass, unlawful use of a motor vehicle and driving a motor vehicle while unlicensed (File 21831045).
[9]The fourth incident took place on 27 July 2018. On 23 July 2018 the appellant had been granted bail by the Youth Justice Court in relation to the charges arising from the third incident on conditions that he leave Alice Springs that day, that he reside at Kintore with his mother that he not enter Alice Springs except in case of medical or dental emergency. On 27 July 2018 the appellant was located at a residence in Alice Springs in breach of the conditions of bail. He was charged with breach of bail (File 21831829).
[10]The conduct involved in the second, third and fourth incidents, which took place between 15 and 27 July 2018, constituted a breach of the good behaviour bond which had been imposed on 16 May 2018.
Sentences imposed by the Youth Justice Court
[11]Those charges arising from each of those incidents came finally before the Youth Justice Court on 19 October 2018.
[12]The Court found the appellant guilty of the four offences arising out of the first incident, and the three offences in respect of which the good behaviour bond had been imposed in May 2018, but did not impose convictions in respect of those offences. For those offences the appellant was ordered to complete 100 hours of community work by 26 February 2019.
[13]The Court convicted the appellant of the 15 offences arising out of the second, third and fourth incidents and sentenced the appellant to detention for a total effective period of two months and 14 days. That sentence to detention was suspended after the appellant had served six days (including five days which he had already spent in custody), subject to conditions that he be supervised by Territory Families for a period of 18 months, that he obey all reasonable directions given by Community Youth Justice Officers, that he reside with his mother at the Kintore community, that he not enter Alice Springs except with the permission of a Community Youth Justice Officer or in case of medical or dental emergency, and that he participate in a youth services program as directed by a Community Youth Justice Officer.
Grounds of appeal
[14]The appellant presses four grounds of appeal.
[15]The first ground of appeal is that the Youth Justice Court erred in the application of the principles and requirements of the Youth Justice Act 2005 (NT). The principles and requirements particularised in that ground are:
(a)that a responsible adult be in attendance during proceedings against a youth;
(b)that the Youth Justice Court have regard to the general principles set out in s 4 of the Youth Justice Act;
(c)that the Youth Justice Court must consider any information about the youth or the offence that may assist in deciding how to dispose of the matter;
(d)that the Youth Justice Court must dispose of the matter in a way that is proportionate to the seriousness of the offence;
(e)that the absence of participation of a youth’s family in the proceedings, or the absence of opportunities to engage in educational programs or employment, should not result in a youth being dealt with more severely for an offence;
(f)that the Youth Justice Court should impose a sentence of detention only as a last resort; and
(g)that where the Youth Justice Court is considering imposing a sentence of detention it should first require a pre-sentence report.
[16]The first ground of appeal is brought from each of the dispositions made by the Youth Justice Court on 19 October 2018, although the principles and requirements in relation to the imposition of a sentence of detention form part of the particulars of error only for those dispositions by which a custodial sentence was imposed.
[17]The second, third and fourth grounds of appeal have application only to the 15 offences charged arising out of the second, third and fourth incidents for which custodial sentences were imposed and convictions recorded. Those grounds of appeal are:
(a)the Youth Justice Court erred in recording convictions;
(b)the Youth Justice Court erred in the application of the principle of totality; and
(c)the sentence was, in all of the circumstances, manifestly excessive.
The course of proceedings in the Youth Justice Court
[18]On 23 July 2018 the appellant appeared in the Youth Justice Court at Alice Springs on the charges arising from the second and third incidents, which took place on 15 and 20 July 2018 respectively. His mother was in attendance at that time as the “responsible adult” within the meaning of s 5 of the Youth Justice Act[1], and as required by s 63 of the Youth Justice Act. The appellant’s legal representative indicated that the appellant would be pleading guilty to the charges subject to agreement in relation to the facts to be proffered by the Crown. The appellant was granted bail to 25 September 2018. As already described, bail was granted on condition that the appellant leave Alice Springs that day and on 27 July 2018 he was located in Alice Springs in breach of the conditions of bail.
[19]On 25 September 2018 the appellant appeared in the Youth Justice Court at Kintore on the charges arising from all four incidents, again with his mother as the responsible adult. At that time he pleaded guilty to all offences charged. Those pleas also constituted an admission to the breach of the good behaviour bond that had been imposed in May 2018, requiring the matter to be dealt with under s 121(6) of the Youth Justice Act. The Court was satisfied by the admission of the appellant that he had breached the obligation to be of good behaviour. Counsel for the appellant then proceeded to make submissions in relation to the circumstances of the appellant and the offending. The Court ordered a report pursuant to s 71 of the Youth Justice Act as to the suitability of the appellant for a sentence which included supervision and/or a community work order.
[20]As there was no Community Youth Justice Officer from Territory Families present in Kintore on that day, the sentencing proceedings were adjourned to 18 October 2018 in Alice Springs to allow the report to be prepared by Territory Families. Bail was enlarged on the same terms and conditions, including that the appellant reside at Kintore with his mother. The appellant was given leave to appear by telephone from Kintore at the resumption of proceedings on 18 October 2018.
[21]On 8 October 2018 the Community Youth Justice Officer who had been given the task of preparing the assessment of suitability made contact with the appellant’s mother in Kintore and arranged to meet with the appellant in the community on 11 October 2018. When the officer arrived in Kintore on that day she was advised that the appellant’s mother had travelled to Alice Springs and that the appellant was playing football in Papunya. While in Kintore the officer gathered various information in relation to the appellant’s personal circumstances from family members and youth services. The officer then returned to Alice Springs.
[22]On 16 October 2018 the officer managed to make telephone contact with the appellant. He was in Alice Springs at that time, and remained in breach of the condition of bail that he reside in Kintore. The officer asked the appellant to come to the office of Territory Families to be interviewed for the purpose of the assessment. The appellant replied that he was “too busy with friends” and that he would “come in later when I want to”.
[23]On 17 October 2018 the officer attended at the house in Alice Springs in which the appellant had advised he was residing. The adults who were present at the house told the officer that they did not know the appellant and that he had gone somewhere else.
[24]The officer then prepared a report on the appellant’s suitability for supervision dated 17 October 2018. That report described the unsuccessful attempts that had been made to interview the appellant for the purpose of preparing the assessment, and contained the following further information and conclusions:
(a)The appellant is a 15 year old Aboriginal male born and raised in Kintore by his mother and father. He is one of six siblings. Both his paternal and maternal grandmothers have been involved in his upbringing.
(b)The grandmothers advised that the appellant was a “good boy” when residing in Kintore and actively engaged in traditional activities there, but when in Alice Springs he tended to fall into bad company and get into trouble. The appellant had been initiated through ceremony and his family in Kintore, and particularly his paternal uncles, were trying to teach him to behave in the “right way”.
(c)The appellant had some positive engagement with a social worker from the MacDonnell Regional Council. The social worker advised that the appellant had been attending the youth program and appeared to understand the seriousness of his offending. If the appellant was sentenced to a community work order the Council social workers would be able to provide work as part of the youth program, including umpiring football matches, cleaning vehicles, picking up litter and cleaning the youth services office.
(d)Due to the appellant’s “nomadic lifestyle” and his lack of engagement with the Youth Outreach and Re-Engagement Team within Territory Families, the appellant was assessed as unsuitable for supervision and community work. In reaching that conclusion the report noted that the Youth Outreach Team had been attempting to engage with the appellant since January 2018 without success.
[25]On 18 October 2018 the appellant appeared in person at the Youth Justice Court in Alice Springs in breach of the condition of bail requiring him to reside at Kintore. At that time the appellant was accompanied by a social worker from the MacDonnell Regional Council and the appellant’s cousin, who was 19 years of age. The sentencing judge remanded the appellant in custody until 10 o’clock on 19 October 2018 pending receipt of a report from Territory Families. It appears from the transcript that the sentencing judge did not at that time have the report which had been prepared on 17 October 2018.
[26]On 18 October 2018 a different Community Youth Justice Officer from Territory Families spoke with the appellant in company with a social worker from the MacDonnell Regional Council. It is not apparent from the materials on appeal whether that conversation took place before or after the appellant had been remanded in custody until 10 o’clock the following day. Following the interview that officer prepared a further report on the appellant’s suitability for supervision dated 18 October 2018. That report contained the following information and conclusions:
(a)The appellant had agreed to work with the Youth Outreach and Re-Engagement Team, and showed at least some understanding of the role of that team and the support it could provide.
(b)The appellant had agreed to work with the MacDonnell Regional Council youth services if a community work order was made. The appellant was advised that his participation and compliance would be recorded and reported to the Court, and he advised that he would comply with the process.
(c)The social worker advised the appellant that he would be able to transport the appellant back to Kintore the following day, and the appellant agreed to reside at a particular house in Alice Springs that night subject to a curfew between 7 pm and 7 am.
(d)The appellant was reluctant to agree to any condition that he not enter Alice Springs, but understood that his offending behaviours occurred while he was in Alice Springs.
(e)As advised in the previous report, if the appellant was sentenced to a community work order MacDonnell Regional Council social workers would be able to provide suitable work as part of the youth program.
(f)The appellant was assessed as suitable for supervision by Territory Families while residing in Kintore subject to conditions which included good behaviour, compliance with directions from Community Youth Justice Officers, participation in the youth services program and not entering Alice Springs except in case of medical or dental emergency or with permission from a Community Youth Justice Officer. There was an agreement between Territory Families and police to ensure that all breaches of orders were reported and brought before the Court.
[27]On 19 October 2018 the appellant appeared before the Youth Justice Court accompanied by two social workers from the MacDonnell Regional Council. A Community Youth Justice Officer from Territory Families was also in attendance. It would appear that on resumption of the proceedings the sentencing judge had been provided with the reports prepared on 17 and 18 October 2018. The appellant’s mother was available to participate by telephone from Kintore, but the sentencing judge determined to proceed in her absence.
[28]The sentencing judge then questioned the Community Youth Justice Officer as to why there had been no representative from Territory Families present in Court at Kintore on 25 September 2018 and how that Agency could provide adequate supervision under community-based orders if its officers did not travel to Kintore. The Community Youth Justice Officer advised that officers from Territory Families did travel to Kintore, but had not been there on 25 September 2018. The sentencing judge then enquired why Community Youth Justice Officers who had met with the appellant in Alice Springs for the purpose of preparing the assessment of suitability did not report his breach of the condition of bail to police. The Community Youth Justice Officer in attendance was unable to answer that question.
[29]The sentencing judge then questioned one of the Council social workers, including as to why they had not reported the appellant’s breach of bail, why the appellant was not in school and whether they were aware of the circumstances which had led to the appellant being before the Court. The social worker advised that they were not aware that the appellant’s presence in Alice Springs was in breach of any condition of bail, that they understood the appellant was in Alice Springs for the purpose of attending court, and that they were aware the appellant was before court on breaking and entering charges but not the details of that conduct.
[30]The sentencing judge then stood the matter down until some officer from Territory Families could attend to explain why the breach of bail had not been reported. When the matter resumed later on that day, the Community Youth Justice Officer who had prepared the second assessment report provided the following information to the Court. Territory Families was unaware that the conditions of bail required the appellant to reside in Kintore because at the time bail was granted and subsequently enlarged there was no order that the appellant be supervised by Territory Families during the period of bail. Although officers from Territory Families did not necessarily attend Kintore during Court sittings, they did attend regularly for the purpose of linking youths under supervision to a support network within the community, which included the health clinic, youth outreach services, police and the youth’s family, for the purpose of formulating and implementing a plan for the youth’s supervision and rehabilitation.
[31]The sentencing judge then provided a pithy summary of the appellant’s offending conduct over the previous six months directed to the nature and consequences of that offending, the appellant’s repeated breaches of court orders, the risk of reoffending and the purpose of community protection. That summary concluded with the observation that the appellant was in the habit of moving between Kintore, Papunya and Alice Springs without apparent parental or familial supervision or control, did not attend school, did not appear to have any effective support networks directed to ameliorating his behaviours, and had failed to comply with the Court’s previous direction that he reside and remain in Kintore.
[32]In response to those observations, counsel for the appellant submitted that the Court could fashion an order, whether in the grant of bail or on sentence, which would require the appellant to reside at the Saltbush accommodation facility in Alice Springs. The sentencing judge queried the appropriateness of that arrangement in circumstances where Saltbush was not a secure facility and police were not necessarily notified if and when residents left the facility. The concern obviously held by the sentencing judge in that respect was that the appellant had a recent history of repetitive property offending while unsupervised and at large in Alice Springs.
[33]The sentencing judge indicated that he would not grant the appellant further bail given that he had reoffended while on bail and subject to an order to be of good behaviour. The sentencing judge then proceeded to sentence on receiving an assurance from the social worker that the appellant would be taken back to Kintore the following day. The sentencing remarks were as follows:
HIS HONOUR: I will set out the offending for which you pleaded guilty. I accept that in pleading guilty that you understand what you did was wrong and against the law. I also accept that in pleading guilty at Kintore on 25 September, this was the first time that you had the opportunity to do so and for that, you are to be given some credit.
But, in committing these offences you broke a promise that you made in this court. You were legally represented. It was explained to you what that promise was and it only lasted ten days. You made a promise that you would stay out of trouble for a year and you did not do it.
Ten days later you did exactly what you said you would not do, break into someone’s private house, go through their possessions, damage their property and steal some of their property.
When you were caught for that you were given bail and you were told to go to Kintore. You did not do that. You stayed in Alice Springs and you broke into four more premises. Fortunately, they were not private houses, they were businesses. But, nevertheless, those business owners have all suffered loss which you will not make up.
Granted bail again. You broke the bail by staying in Alice Springs. No explanation, you were not with your grandmother. You were at a house in Abbott’s Camp. You came to court in Kintore. You were granted bail again by me. Stay in Kintore, I will get a report, you will engage with this court by being in the Kintore Police Station yesterday and I would sentence you on the basis of the report.
You did not stay in Kintore. No explanation has been given. The fact of the matter is, you do exactly what you want to do. You do not obey your mother. You do not obey your grandmother. You do not stay with your siblings. You do exactly what you want to do. That is why you are totally and utterly uneducated.
You have never been to school for very long. You cannot read or write and your chances of getting a job are negligible. They are the decisions that you have made. I am not sure whether you have been encouraged by your family not to value school, but you have reached a point in your life at the age of 16 that you are unemployable and that your prospects in the future are only receipt of some form of government benefit.
You have done that because you have not listened to your family. I accept that from your perspective, being on the streets of Alice Springs with a group of other kids in which you can commit offences is more fun than living at Kintore and that is why you gravitate here.
It provides you with a life, being on the outside. But, unfortunately it has caught up with you now. You will not appreciate it, but the police now have your identity. They have your identity through DNA. They have your identity for a number of other forensic methods and should you continue to break into premises you will find yourself behind bars.
At some stage you may well find yourself as the youngest person in the adult gaol, which will be an unenviable position for you. These are serious offences. They have been committed in the face of you thumbing your nose at the authority of the court.
It is important in my view, regardless that this is a youth court, that the authority of this court be imposed upon those that believe it is nothing more than a joke. Somewhere between 70 and 80 per cent of youths who walk out of this court with a good behaviour bond offend straight away, because it is ineffectual.
Asking a young person who is not subject to any regulation in their own domestic life to obey the law is a farce and it proves so and the statistics prove so. It is up to those that have some responsibility to you to ensure that you understand that the law is important.
It is the law that governs our civil society. It is the law under which we all have to behave ourselves, each and everyone one of us. You do not seem to understand that. You do not seem to understand that the society in which you live is in fact governed by laws and that you have decided to embark upon a series of events showing that you will do exactly what you want, regardless of what this court demands of you.
I accept the usual arguments that you are 15. I take into account all the considerations that you get as a youth under the Youth Justice Act. I accept now that you have taken some responsibility for your behaviour. I have significant doubts at this stage as to your rehabilitation.
I know the arguments. I have heard them endlessly over the last 13 years. You are young, your chances of rehabilitation are high. However, you have demonstrated over the last six months a degree of anarchy in the society in which you live and I do not know that I can see anything just at the moment which will assist.
However, having said that, what you do not appreciate is that this room, this court is full of people who want to assist you; full of people who are paid by the government to see if they can get you back on the right track. Each and every one of them is genuine in their desires to help you.
It is up to you whether you want to, in some way, accept what advice they may give you. You have not to date. You have not been clear with people as to why you are in so much trouble. You have not been clear to people why it is that you are hanging around Alice Springs when you are supposed to be at Kintore.
So, taking those matters into account, specifically the provisions of the Youth Justice Act, the offending will be dealt with in the following manner: in relation to the offences first in time, on file ending 1064, you still get the benefit of youth in relation to those matters.
I apologise. The first file is 8614, yes. You still get the benefit of youth in relation to those matters. Without proceeding to conviction on counts 1, 2, 3 and 4, there is an aggregate sentence of 80 hours of community work, four victims’ levies of $50 for works to be completed by 26 February 2019.
In relation to the offending on file 1064, the offending that took place on 15 July after you had been bailed and after you signed a promise to stay out of trouble, you will be convicted of each of those offences. That is counts 1 to 6 inclusive. There is an aggregate sentence of 1 months’ detention.
In relation to the offending on file 1045, which is the breach of bail on 5 July and the offending on 20 July, you will be convicted of all those offences, 1 to 8 inclusive as an aggregate sentence of 1 month and it is cumulative on the other one.
On the breach of bail, 27 July, this is a particularly egregious – that is serious breach. You were given your opportunities to leave Alice Springs; you chose not to do so. It demonstrates not only your contempt for this court, but also it demonstrates that you are not really serious about going back to stay at Kintore.
On that matter, you will be convicted and sentenced to 14 days. That 14 days is also cumulative. It is a total effective sentence of 2 months and 14 days. It commenced on 14 October. That takes into account the time that you have been in custody.
You will be released tomorrow. You will be released tomorrow on the following conditions: you will enter into a good behaviour bond for 18 months on your own recognizance of $300 and you will accept the following conditions:
(1) You will accept supervision and obey all reasonable directions of a Territory Families community youth justice officer.
(2) You will immediately leave Alice Springs and not return or remain within the township of Alice Springs for the duration of this order except (a) with the permission of your community youth justice officer, or (b) to attend to emergency medical or dental treatment.
(3) You will reside at Kintore with your mother, Mrs Grisele Barku and you will notify your community youth justice officer of any change in your address.
(4) You will participate in the McDonnell Shire Council Youth Services Programs as directed.
In addition, this offending breaches your promise that you made on 16 May. I find that breach proved by the subsequent offending. Pursuant to s 121 of the Youth Justice Act I revoke the order of 16 May 2018 and resentence you. Without proceeding to conviction on the three charges, 1, 2 and 3, there is an aggregate sentence of 20 hours of a community work order and that is also to be completed by 26 February 2019.
In the wash up, DN, is the following: you have got to complete 100 hours of community work by the end of February next year. You have got about 2 months and 10 days detention hanging over your head for a year and a half. You are subject to supervision and you are not to come to Alice Springs.
You are to engage in programs set for you by the McDonnell Shire Council.
Yes, Mr Lowrey, anything further?
MR LOWREY: Your Honour, I do not there has been no presentence report in relation since detention. I also note is that both months of detention are wholly suspended for 18 months following his release tomorrow. Is that correct?
HIS HONOUR: Yes.
MR LOWREY: Eighteen months. Yes. Your Honour, other than the lack of presentence report - - -
HIS HONOUR: I'm not giving a presentence report. I gave him an opportunity to make himself available. He didn’t.
MR LOWREY: I appreciate that, your Honour. Nothing further, your Honour.
[34]Against that background, I turn to consider the grounds of appeal.
The principles and requirements of the Youth Justice Act
[35]As described above, the first ground of appeal is that the sentencing court erred in the application of the principles and requirements of the Youth Justice Act. Section 3 of the Youth Justice Act sets out the objects of the legislation, which include:
(a) to specify the general principles of justice in respect of youth;
(b) to provide for the administration of justice in respect of youth;
(c) to provide how a youth who has committed, or is alleged to have committed, an offence is to be dealt with;
(d) to ensure that a youth who has committed an offence is made aware of his or her obligations (and rights) under the law and of the consequences of contravening the law;
(e) to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation …
[36]That statement of objects is self-explanatory, and draws specific attention to the need to ensure that a youth who has committed an offence is made aware of the consequences of contravening the law and to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation. Those objects are to be achieved in the application of the general principles of youth justice which are described in the following section. However, that statement of objects cannot control or cut down clear statutory language used in a substantive provision of the Youth Justice Act, or command a particular outcome in the exercise of discretionary power.[2]
[37]Section 4 of the Youth Justice Act states the general principles of youth justice. So far as is relevant to the determination of these appeals, that statement provides:
The following are general principles that must be taken into account in the administration of this Act:
(a) if a youth commits an offence, he or she must be held accountable and encouraged to accept responsibility for the behaviour;
(b) the youth should be dealt with in a way that acknowledges his or her needs and will provide him or her with the opportunity to develop in socially responsible ways;
(c) a youth should only be kept in custody for an offence (whether on arrest, in remand or under sentence) as a last resort and for the shortest appropriate period of time;
(d) a youth must be dealt with in the criminal law system in a manner consistent with his or her age and maturity and have the same rights and protection before the law as would an adult in similar circumstances;
(e) a youth should be made aware of his or her obligations under the law and of the consequences of contravening the law;
(f) a youth who commits an offence should be dealt with in a way that allows him or her to be re-integrated into the community;
(g) a balanced approach must be taken between the needs of the youth, the rights of any victim of the youth's offence and the interests of the community;
(h) family relationships between a youth and members of his or her family should, where appropriate, be preserved and strengthened;
(i) a youth should not be withdrawn unnecessarily from his or her family environment and there should be no unnecessary interruption of a youth's education or employment;
(j) a youth's sense of racial, ethnic or cultural identity should be acknowledged and he or she should have the opportunity to maintain it;
(k) ….
(l) A responsible adult in respect of a youth should be encouraged to fulfil his or her responsibility for the care and supervision of the youth;
(m) ….
(n) punishment of a youth must be designed to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
[38]Those principles are matters which must be taken into account in the administration of the Youth Justice Act generally. They do not relate solely or specifically to the judicial function, and also extend to the performance of functions by police, community youth justice officers and detention centre staff. Again, while those principles are relevant considerations which must be taken into account, a single principle or combination of principles will not necessarily direct a particular outcome.
[39]The application of those principles, together with other relevant considerations, requires a balancing exercise with reference to the particular task to be performed. By way of example, the principle that a balanced approach must be taken between the needs of the youth, the rights of any victim of the youth's offence and the interests of the community expressly recognises that there will sometimes be a tension between the achievement and service of various interests, and recognises that the rights of victims and the purpose of community protection will not necessarily be subjugated to the interests of the youth. As a general proposition the interests of the community will be served by the successful rehabilitation of an offender, but the community interest and the interests of a youth offender are not necessarily coextensive.
[40]Those general principles are then given specific application to the exercise of the judicial function, together with various other principles and considerations. Section 81 of the Youth Justice Act provides:
Principles and considerations to be applied to youth offenders
(1) When sentencing a youth who has been found guilty of an offence, the Court must have regard to:
(a) the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b) the general principles of youth justice set out in section 4.
(2) The Court must consider any information about the youth or the offence that may assist the Court to decide how to dispose of the matter, and in particular must consider:
(a) the nature and seriousness of the offence; and
(b) any history of offences previously committed by the youth; and
(c) the youth's cultural background; and
(d)the age and maturity of the youth; and
(e) any previous order in relation to an offence that still applies to the youth, and any further order that is liable to be imposed if the youth has not complied with the terms of the previous order; and
(f) the extent to which any person was affected as a victim of the offence.
(3) The Court must dispose of the matter in a way that is in proportion to the seriousness of the offence.
(4) The Court must have regard to the fact that the rehabilitation of a youth may be facilitated by:
(a) the participation of the youth's family; and
(b) giving the youth opportunities to engage in educational programs and in employment,
but the absence of such participation or opportunities must not result in the youth being dealt with more severely for the offence.
(5) The Court must take into account whether the youth has taken steps to make amends with any of the victims of the offence.
(6) The Court must impose a sentence of detention or imprisonment on a youth only as a last resort, and a sentence of imprisonment only if there is no appropriate alternative.
[41]The reference in s 81(1)(a) to “the principles applying generally for disposing of charges of offences” includes the purposes of sentencing at common law which are now prescribed in s 5 of the Sentencing Act 1995 (NT). Those purposes include punishment, rehabilitation, personal and general deterrence, denunciation and community protection. Those purposes also have application to the sentencing of youths, although it is well-recognised that they are subject to modification in that context. The youthfulness of an offender will usually form a valid ground for extending leniency and adopting a therapeutic approach to sentencing. Young offenders are usually less culpable due to immaturity and the fact that they have not fully developed a capacity to control impulsive behaviour. Rehabilitation is usually a far more important consideration than punishment and deterrence when dealing with youthful offenders, and particularly first offenders.[3] However, this does not mean that rehabilitation will necessarily be the “paramount” sentencing consideration in all cases, or that rehabilitation will necessarily be more important than other sentencing purposes.[4] As Southwood J stated in The Queen v Yunupingu:[5]
The model of youth justice upon which the Youth Justice Act is based is not a welfare model of youth justice. The emphasis of the Youth Justice Act is not purely on the rehabilitation of youth offenders who have committed serious crimes. Instead the Youth Justice Act balances the principles of due legal process, of accountability for behaviour, proportionality of sentence, minimising formal intervention, and opening possibilities of restorative justice. The provisions of the Act are tipped towards individual responsibility, accountability and protecting the community.
[42]It is convenient to deal first with the particular asserting that the sentencing judge failed to have regard to the general principles set out in the Youth Justice Act. Those principles are couched in normative rather than prescriptive terms, and require the sentencing court to undertake the balancing exercise described above. Having regard to the remarks made on sentencing which are extracted above, the nature and sequence of the offending which is described at the outset of these reasons, and the appellant’s personal circumstances at the time of sentence, I am unable to conclude that the sentencing judge failed to have regard to those principles or misapplied them in some general sense. The appellant identifies two matters said to constitute specific error in that respect. The first contention is that the sentencing judge erred in failing to take into account age and maturity as relevant considerations. The second contention is that the sentencing judge erred in ordering the removal of the appellant from the community.
[43]Section 4(d) of the Youth Justice Act provides that a youth must be dealt with in a manner consistent with his or her age and maturity. That is repeated in s 81(2) of the Youth Justice Act, which requires the Court to consider the age and maturity of the youth. The assertion that the sentencing judge failed to take those matters into account is based on a particular reading of three statements made during the course of submissions and sentencing on 19 October 2018. They were:
I believe that’s a serious violation of people’s lives and I don’t care that’s it’s a 15-year-old because he knows the difference between right and wrong. In this house, he stole a ring, a computer valued at $6500 worth and then he stole a motor vehicle.
…
I accept the usual arguments that you are 15. I take into account all the considerations that you get as a youth under the Youth Justice Act. I accept now that you have taken some responsibility for your behaviour. I have significant doubts at this stage as to your rehabilitation.
I know the arguments. I have heard them endlessly over the last 13 years. You are young, your chances of rehabilitation are high. However, you have demonstrated over the last six months a degree of anarchy in the society in which you live and I do not know that I can see anything just at the moment which will assist.
[44]The appellant’s complaint in relation to those passages is the sophistic assertion that the sentencing judge characterised age and maturity as arguments rather than relevant and essential considerations in the sentencing calculus. On that characterisation, the sentencing judge disregarded the jurisdictional limits on the exercise of judicial power in relation to a juvenile offender. That submission should be rejected. It is clear from the remarks that the sentencing judge had the applicant’s age and maturity firmly in mind as relevant considerations, and assessed those matters having regard to the appellant’s capacity to know that his conduct was wrong, his moral culpability and his prospects of rehabilitation.
[45]The contention that the sentencing judge erred in ordering the removal of the appellant from the community is based on various principles in s 4 of the Youth Justice Act, including that the appellant should have been dealt with in a way that acknowledged his needs and provided him with the opportunity to develop in socially responsible ways[6]; that the appellant should have been dealt with in a way that allowed him to be reintegrated into the community[7]; that the relationships between the appellant and his family should be preserved and strengthened[8]; and that the appellant should not have been withdrawn unnecessarily from his family environment or have had unnecessary interruption of his education or employment[9]. It is said that these principles were infringed by the condition of the order requiring the appellant to leave Alice Springs to reside in Kintore, and not return to or remain within Alice Springs except with the permission of a Community Youth Justice Officer or in case of medical or dental emergency. A number of observations should be made about the terms of that order.
[46]First, the courts in this jurisdiction frequently and routinely impose conditions on bail and orders suspending sentence requiring the subject of the order to reside in a specified place and/or not to enter a specified place except with permission or in case of emergency. Conditions of that nature are directed variously to community protection, the protection of victims and/or criminogenic factors specific to the subject.
[47]Second, the condition in this case was imposed with reference to the fact that the appellant had recently committed 20 property offences over a three month period while in Alice Springs. The information before the sentencing judge included that the appellant was generally well-behaved while residing in Kintore but tended to fall into bad company and get into trouble while in Alice Springs, and that his family in Kintore were trying to teach him to behave in the “right way”. It was presumably due to those circumstances that during the course of sentencing submissions on 25 September 2018 defence counsel expressly canvassed possibility of a disposition involving a suspended sentence subject to a condition that the appellant not enter Alice Springs. Those considerations also no doubt informed the assessment by Territory Families that the appellant was suitable for supervision while residing in Kintore subject to conditions which included good behaviour, compliance with directions from Community Youth Justice Officers, participation in the youth services program and not entering Alice Springs except in case of medical or dental emergency or with permission from a Community Youth Justice Officer.
[48]Third, that the imposition of a condition in those terms would place a restriction on the appellant’s interactions with his extended family in Alice Springs, and particularly his grandmother, was a matter which had to be balanced with the other sentencing purposes, including the protection of the community and the appellant’s development in a socially responsible way.
[49]Fourth, to the extent that the conditions might at some time in the future bear adversely on the appellant’s educational or employment prospects, or interfere with such matters as enrolment for Centrelink benefits, there is facility both for permission from a Community Youth Justice Officer and for application to the Court for the variation of the order. It is no valid ground of complaint to speculate that the condition might at some point in the future fetter the appellant’s vocational or other development where the circumstances at the time the order was made suggested that residence in Kintore was in both the appellant’s and the community’s best interests.
[50]Fifth, while there are community youth social services available in Alice Springs, the information before the sentencing judge included that MacDonnell Regional Council social workers would be able to provide suitable community work for the appellant in Kintore as part of the youth program, and that officers from Territory Families travelled regularly to Kintore for the purpose of linking youths under supervision to a support network within the community which included the health clinic, youth outreach services, police and the youth’s family.
[51]Having regard to those factors and considerations, it cannot be said that the sentences were imposed in disregard of principles properly taken into account in the administration of the Youth Justice Act. While arguments might be made about the weight to be accorded to the different principles and considerations prescribed in ss 4 and 81 of the Youth Justice Act, any contention that the sentencing court has accorded inadequate or excessive weight to a factor or principle is properly viewed as a particular of manifest excess.[10] For similar reasons, the contentions that the sentencing judge failed to dispose of the matter in a way that was proportionate to the seriousness of the offences, and wrongly imposed a sentence of detention, properly fall for consideration in the context of those grounds of appeal asserting manifest excess, error in the recording of convictions and error in the application of the principle of totality.
[52]The next particular of this ground of appeal is that the sentencing judge failed to comply with the requirement that a responsible adult be in attendance during proceedings against a youth. That requires some consideration of the nature of this appeal. Section 144(3) of the Youth Justice Act provides that the provisions of the Local Court (Criminal Procedure) Act 1928 (NT) relating to appeals from the Local Court apply, with the necessary changes, to an appeal from the Youth Justice Court. Section 163(1) of the Local Court (Criminal Procedure) Act provides relevantly that a party may appeal to the Supreme Court from a conviction, order or adjudication on a ground which involves sentence, error on a matter or question of fact, error on a matter or question of law, or error on a matter or question of mixed fact and law.
[53]No error of fact was involved in the determination to proceed in the absence of a responsible adult, and any challenge to sentence on this ground is contingent on establishing that the sentencing judge committed an error of law in doing so. Moreover, the avenue of appeal is limited to “a finding of guilt, conviction, order or adjudication”. In this context, that is a reference to a final order or adjudication[11] and it would be necessary to establish that proceeding in the absence of a responsible adult constituted an error of law which vitiated the sentences finally imposed. That error of law may be either jurisdictional or non-jurisdictional in nature.[12] In either case, the essential question is the same. That is, was it a mistaken assertion of jurisdiction, or outside the limits on the Court’s powers, or a misdirection in law to proceed in the absence of a responsible adult? That question is to be answered by reference to the statutory text[13], and the subject matter and objects of s 63 of the Youth Justice Act, which provides:
Responsible adults to attend court
(1) A responsible adult in respect of a youth must attend the Court and remain in attendance during proceedings against the youth for an offence.
(2) Subsection (1) does not apply if the Court is satisfied that it would be unreasonable to require that attendance.
(3) If a responsible adult fails without reasonable excuse to attend the Court, or remain in attendance during the proceedings, the Court may direct that a warrant or summons be issued to bring the responsible adult before the Court at that or a further hearing.
(4) The Court may:
(a) adjourn the proceedings to allow for the responsible adult to be present; and
(b) continue the hearing after the adjournment despite that the responsible adult is not present.
[54]That requirement recognises that although a youth offender may be held criminally responsible for his or her conduct, he or she remains in minority and will ordinarily be subject to the exercise of parental responsibility. The requirement is primarily referable to the principle expressed at s 4(l) of the Youth Justice Act that “a responsible adult in respect of a youth should be encouraged to fulfil his or her responsibility for the care and supervision of the youth”. It is also less directly referable to the principles that a youth should be encouraged to accept responsibility for the offending behaviour, that family relationships between a youth and members of his or her family should be preserved and strengthened, and that a youth should not be withdrawn unnecessarily from his or her family environment.
[55]In assessing the contention made on appeal, it must be noted that the operation of s 63 of the Youth Justice Act is to cast an obligation on the responsible adult in respect of the youth to attend Court and remain in attendance during proceedings against the youth. So much is apparent from both the terms of the obligation and the fact that the Court may direct the issue of a warrant or summons to compel the responsible adult’s attendance. That is consistent with the legislative object and principle of promoting parental responsibility. The Court may also relieve the responsible adult of the statutory obligation if it would be unreasonable to require that attendance. Perhaps most significantly for these purposes, the provision also contemplates expressly that the Court may hear and determine a matter in the absence of the responsible adult.
[56]While it is plain that s 63 of the Youth Justice Act casts an obligation on the responsible adult to attend court during proceedings against the youth, it is quite a different proposition that a sentencing judge will fall into error by proceeding in the absence of a responsible adult. The presence of the responsible adult in the process aims to encourage appropriate supervision, care, guidance and support after the imposition of sentence in order to maximise the youth’s chances of rehabilitation and development of a sense of social responsibility.[14] However, what is also plain from the language of the statute is that the presence of a responsible adult is not a precondition to the exercise of the Court’s powers in relation to conviction, sentence or any other form of order or adjudication. While there might conceivably be particular circumstances in which proceeding in the absence of the responsible adult is so unreasonable, arbitrary or antithetical to the statutory objects as to constitute error in law, this is not such a case.
[57]In the present matter, the responsible adult had been present when the appellant appeared in the Youth Justice Court in Alice Springs on 23 July 2018. That appearance was in relation to the charges arising from the second and third incidents, and the responsible adult was presumably made aware of the conduct on the part of the appellant giving rise to those charges. The appellant was granted bail to 25 September 2018, and the responsible adult was presumably made aware of the conditions of that bail. Despite that, the appellant did not leave Alice Springs as required and was subsequently located in Alice Springs in breach of the conditions of bail.
[58]The responsible adult was again present on 25 September 2018 when the appellant appeared in the Youth Justice Court in Kintore on the charges arising from all four incidents. At that time he pleaded guilty to all offences charged and the responsible adult must necessarily in that process have been made aware of the conduct giving rise to those charges. Bail was enlarged on the condition that the appellant reside at Kintore with his mother. Despite that, by 11 October 2018 both the appellant and the responsible adult had left Kintore and travelled to separate localities.
[59]It would have been unreasonable for the sentencing judge to require the responsible adult to travel from Kintore to Alice Springs for sentencing on 19 October 2018, and there would likely have been limited utility in the responsible adult participating and following proceedings by telephone. Having regard to those matters, it is understandable why the sentencing judge determined to proceed to sentence on 19 October 2018 without the participation of the responsible adult by telephone from the store in Kintore. There was no error of law involved in that determination, although, as has previously been observed, it is preferable for a responsible adult to be present and this Court is not to be seen as encouraging any other practice in ordinary circumstances.[15]
[60]The contention that the sentencing judge erred in proceeding in the absence of the responsible adult is related, in a circumstantial sense at least, to the further particular of appeal that the sentencing judge dealt with the appellant more severely because of the absence of participation of the appellant’s family in the proceedings, or the absence of opportunities to engage in educational programs or employment. Section 81(4) of the Youth Justice Act provides:
The Court must have regard to the fact that the rehabilitation of a youth may be facilitated by:
(a) the participation of the youth's family; and
(b) giving the youth opportunities to engage in educational programs and in employment,
but the absence of such participation or opportunities must not result in the youth being dealt with more severely for the offence.
[61]The purpose and operation of that provision is clear. Rehabilitation is a principal consideration when dealing with a young offender, and good prospects of rehabilitation may operate as a mitigating factor. For those reasons, processes which may facilitate rehabilitation should be implemented where possible and those factors should be taken into account as mitigatory. On the other hand, the absence of family participation, employment and educational programs cannot lead to a sentencing disposition which would be more severe than the objective and subjective circumstances would otherwise require. The purpose and operation of the provision is not that a youth who does not have the benefit of those facilitative factors will still be entitled to their mitigating effect.
[62]The appellant’s complaint in this respect is that the sentencing judge found that an undertaking to be of good behaviour would be of no value in the circumstances, in part on the basis that those with responsibility for the care of the appellant had not been able to control him. The appellant draws attention to the fact that the sentencing judge placed significant emphasis on the appellant’s failure to comply with the conditions of bail. While it may well be the case that a previous breach of a bail undertaking without surety is an insufficient basis on which to conclude that an undertaking to be of good behaviour would be of no value[16], that was not the only basis on which the sentencing judge harboured concerns about the appellant’s compliance.
[63]As already described, on 16 May 2018 the appellant took the benefit of a 12 month good behaviour bond in respect of an unlawful entry, stealing and a related offence. On 15 July 2018, the appellant committed six further property offences involving two separate business premises while subject to the order to be of good behaviour. Those further offences were also committed while the appellant was on bail in respect of four charges of property offending which had been committed at an earlier time. Then, on 20 July 2018 the appellant committed a further six property offences and one driving offence while still subject to the good behaviour order and while still on bail in respect of the earlier offending. It is unsurprising in those circumstances that the sentencing judge expressed some concern about the appellant’s likely compliance with any further order to be of good behaviour.
[64]It is also correct to say that the sentencing judge placed significant emphasis on community protection as a sentencing purpose; but it cannot be said that in doing so the appellant was dealt with more severely for the offences by reason of lack of family participation in his rehabilitation or the absence of any particular educational program or employment opportunity. Nor did the sentencing judge find that the appellant had no prospects of rehabilitation. The observation made by the sentencing judge was that he had “significant doubts at this stage as to [the appellant’s] rehabilitation”. That finding was reasonably open on the material before the sentencing judge, and did not infringe s 81(4) of the Youth Justice Act.
[65]The next particular of this ground of appeal is that the Youth Justice Court failed to consider information about the youth or the offence that might have assisted in deciding how to dispose of the matter. This contention is predicated on s 81(2) of the Youth Justice Act, which imposes a general obligation on the Court to consider information of that nature, and a specific obligation to consider the nature and seriousness of the offence, the youth’s criminal history, the youth’s cultural background, the youth’s age and maturity, any subsisting orders and the likely consequences of the breach of that order, and the extent to which any person was affected as a victim of the offence. While the provision obliges the sentencing court to consider information of that type, it does not cast an obligation on the sentencing court to conduct any open-ended investigation or enquiry directed to identifying the existence or otherwise of such information. The process remains essentially adversarial rather than inquisitorial.
[66]Subject to exceptions such as the requirement for a pre-sentence report in certain circumstances (which is discussed further below), the primary onus remains on the parties to place the relevant information about the youth and the offence before the Court. It is that information which the Court is obliged to take into account. The appellant contends that on the circumstances which presented to the sentencing judge, it was incumbent on him to undertake a range of further enquiries. Leaving aside for the moment the issue of a pre-sentence report, that submission should not be accepted.
[67]There was no obligation under s 51(2) of the Youth Justice Act to require the CEO of Territory Families to report on the circumstances of the appellant, not least because the material before the Court did not give rise to a belief that the appellant was a “child in need of protection” or that there was a risk to his “well-being” within the meaning of the Care and Protection of Children Act 2007 (NT). In any event, by the time sentence was imposed officers from that Agency had been alerted to the appellant’s circumstances, had interviewed the appellant in relation to his social and other circumstances, and had prepared two reports assessing his suitability for supervision.
[68]There was no obligation on the sentencing judge to order what is described in the appellant’s submissions as an “educational report” detailing the appellant’s engagement with the education system. There is no specific reference to an “educational report” in the legislative regime. The appellant contends this could and should have been done pursuant to the general authorisation to “seek submissions or reports” conferred by s 68 of the Youth Justice Act. Whatever the practice may be in the Youth Justice Court, the terms of that section leave it unclear from whom and by what power an “educational report” could be ordered. In any event, the information before the sentencing judge indicated that the appellant did not attend school on a regular basis and that there was no adult exercising parental responsibility to ensure that he did so. It is unlikely that an “educational report” would have assisted in the sentencing calculus beyond the requirements that the appellant accept supervision and direction from Community Youth Justice Officers, reside at Kintore with his mother and participate in the Council’s youth services programs.
[69]Similar conclusions may be drawn in relation to the other submissions made in support of this particular of the first ground of appeal. For the reasons that have already been described concerning the attendance of a responsible adult, it is difficult to see what utility there would have been in further adjourning the matter to allow the responsible person from Kintore to attend Court and “engage with the justice system”. There was no call to adjourn the matter to allow Community Youth Justice Officers and social workers from the Council “to make further plans to re-engage the [appellant] in their services”. The appellant had already been assessed for that purpose and was to be released into the care of a social worker from the Council for repatriation to Kintore. Community Youth Justice Officers had advised the Court on the day sentencing was imposed that there was an existing support network in Kintore for youths under supervision, and the question of employment opportunities for the appellant was properly explored in that context rather than as part of some extended judicial process. There was also no call to adjourn the matter further to seek a bail assessment report to identify an appropriate residence for the appellant. Residence with his mother in Kintore under the terms of the order was no doubt appropriate, and certainly more appropriate than residence in Alice Springs having regard to the appellant’s recent history.
[70]The final particular of this ground of appeal is that the Youth Justice Court erred in failing to require a pre-sentence report before imposing a sentence of detention. Section 69 of the Youth Justice Act provides:
Court must require pre-sentence report
(1) If a youth has been found guilty of an offence and the Court is considering imposing a sentence of detention or imprisonment, the Court must ensure that it is informed as to the circumstances of the youth.
(2) In order to be informed, the Court must require a pre-sentence report to be provided to it.
(3) However, if the Court is satisfied that it has the information necessary to determine an appropriate sentence, the Court may dispense with the need for a report.
(4) The Court may require the report to address specific matters in relation to the youth that the Court wishes to be informed about.
[71]Section 69 of the Youth Justice Act then sets out the matters which may be set out in a pre-sentence report, subject to the requirement of relevance. Those matters include age, social history, medical and psychiatric history, educational background, employment history, the circumstances of the offences, the extent to which the youth is complying with any sentence currently imposed, the financial circumstances of the youth and his or her family, any special needs of the youth, any programs or other assistance available to the youth and risk issues in relation to further offending.
[72]Unlike the provision for the attendance of the responsible adult, in its terms s 69 of the Youth Justice Act casts an obligation on the Court to require a pre-sentence report if it is considering imposing a sentence of detention or imprisonment.[17] However, a similar question arises. That is whether there can be discerned from the language of the provision a legislative purpose to invalidate the exercise of power that fails to comply with the requirement to order a pre-sentence report.
[73]In answering that question, the first matter to be noted is that the requirement may be dispensed with if the Court is satisfied it has the necessary information. While a pre-sentence report might be expected to disclose further information, the question is whether further information is “necessary to determine an appropriate sentence”.[18] The second matter to be noted is that by the time the sentencing judge proceeded to sentence on 19 October 2018 he had the benefit of submissions made by the parties at the time the pleas of guilty were entered, two reports assessing the appellant’s suitability for supervision including the youth services programs and support structures available in Kintore, agreed facts in relation to the circumstances of the offences, details in relation to the good behaviour bond which had previously been imposed and the offences in respect of which that order was made, and a general understanding of the appellant’s educational and family circumstances. There was no suggestion that the appellant had any relevant medical and psychiatric history or special needs arising from such a history.
[74]When the question of a pre-sentence report was expressly raised, the sentencing judge indicated that he was not going to order a pre-sentence report because he had already given the appellant “opportunity to make himself available”. That was presumably a reference to the order previously made for an assessment of suitability for supervision, and the appellant’s absence from Kintore at the time Community Youth Justice Officers attended for the purpose of undertaking that assessment. It is not immediately clear why reference was made to that matter when the appellant had subsequently been interviewed and assessed on two occasions in the days leading up to 19 October 2018, and where the appellant’s previous delinquency in that respect was irrelevant to whether a pre-sentence should be ordered.
[75]That irrelevancy notwithstanding, it may be inferred that the sentencing judge was satisfied that he had the information necessary to determine an appropriate sentence without need for a pre-sentence report. The question of a pre-sentence report was raised during the course of sentencing submissions on 25 September 2018, as was a disposition involving an order suspending sentence, and the sentencing judge determined at that time to order an assessment of the appellant’s suitability for supervision. That assessment was before the sentencing judge at the time he proceeded to sentence on 19 October 2018. Error would only be established in the failure to order a pre-sentence report if there was no reasonable ground on which the Court could be satisfied that it had the information necessary to determine an appropriate sentence. While it was no doubt open to the sentencing judge to order a pre-sentence report, it was not in error to dispense with that requirement having regard to the information already before the Court.
[76]This ground of appeal is dismissed.
The recording of convictions
[77]The second ground of appeal is that the Youth Justice Court erred in recording convictions. The general principles which have application to the imposition of a conviction on a juvenile offender may be summarised as follows:[19]
(a)When sentencing juvenile offenders the principles prescribed in the Youth Justice Act have application such that a finding that an offence has been proved without proceeding to conviction should not be reserved for special or unusual cases.[20] Equally, however, there is no rule or presumption that youthful offenders, and even first offenders, will not have a conviction recorded.
(b)The recording of a conviction is not a condition precedent to the imposition of punishment under the terms of the Youth Justice Act, and the exercise of the discretion may give rise to considerations separate to and distinct from those which inform the assessment of the objective seriousness of the offending.[21]
(c)In the case of very young offenders and first offenders committing minor offences, the interests of the community are best served by emphasising rehabilitation and the youth’s positive social development over the deterrent purposes of sentencing.
(d)The recording of a conviction may not serve the purpose of personal deterrence if the consequences of that disposition are not apparent to or ascertainable by the youth.[22]
(e)Before imposing a conviction a court must ask itself whether it is necessary to go beyond the lesser options. In making that determination it is necessary to bear in mind that the recording of a conviction it is both punitive in itself and a significant act of social censure. It may also be detrimental to a youth’s future prospects of securing employment, occupational and other licences, insurance cover and travel documentation, and as a result counter-productive to the purpose of rehabilitation.[23]
(f)Under the terms of the Criminal Records (Spent Convictions) Act 1992 (NT) a conviction imposed by the Youth Justice Court will be spent after five years provided the offender does not reoffend, and where the Court does not record a conviction the record is spent immediately upon the offender being discharged.
(g)Particular care must also be taken in determining whether or not to record a conviction in circumstances where to do so might lead to some significant additional penalty (such as under a mandatory sentencing regime).[24]
(h)The decision whether or not to record a conviction is discretionary and the ordinary principles which govern appeals from determinations of that nature have application.
[78]It is uncertain in this case whether the recording of convictions was likely to have any specific deterrent effect on the appellant. Although the appellant was said to understand that his conduct was wrong and against the law, it might be considered unlikely that his understanding and appreciation of the consequences of a conviction would operate on his future conduct. On the other side of the equation, while it may be accepted as a general proposition that the recording of a conviction may be prejudicial to a youth’s future vocational and other activities, it might also be considered unlikely that juvenile convictions would operate against the appellant in the market in which he would be likely to seek and find employment in the future. The appellant’s personal circumstances are also such that it is not possible to identify any specific service or certification which he is likely to call on in the future but which would be denied to him by reason of juvenile convictions, but the possibility remains nonetheless.
[79]It is unnecessary to determine those matters in this case. Convictions were imposed in respect of the 15 offences arising out of the second, third and fourth incidents. The Crown has conceded that those convictions should not have been imposed and the appeal is allowed in that respect.
Manifest excess and the principle of totality
[80]It is convenient to deal with the third and fourth grounds of appeal together. They are that the Youth Justice Court erred in the application of the principle of totality; and that the sentence was, in all of the circumstances, manifestly excessive. In advancing those grounds of appeal it is of very limited utility to draw attention to the outcomes in other cases below the level of general principle. There will invariably be differences and distinctions in terms of age, personal circumstances, prior record, history of breaches and the nature and pattern of the offending involved.
[81]The sentencing judge in this case placed particular emphasis on the prevalence and consequences of property offending of this type in Alice Springs, and was correct to do so. Although the facts may sometimes be distorted in selective media reports and the political debate, the incidence of these matters coming before the courts in the Northern Territory bears out the sentencing judge’s assessment of prevalence. It is also the case that offending of this type causes great disquiet in the community. It has a deleterious effect on commercial operations in the form of business disruption, increased insurance premiums and general loss. Where the offending involves unlawful entry to and stealing from a dwelling, it is apt to cause emotional disturbance and feelings of invasion in the householder. These consequences should not be disregarded or understated.
[82]The causes underlying this type of offending are multifactorial and beyond the capacity of the courts to address. However, that the crime is prevalent is a relevant factor to take into account in determining punishment, because prevalence adds to the gravity of the crime and requires a greater emphasis on deterrence in the sentencing process. That is recognised specifically in s 5(2)(g) of the Sentencing Act, which requires a sentencing court to take into account the prevalence of the offence. It is recognised generally in those principles of the Youth Justice Act which require a balanced approach to be taken between the needs of the youth, the rights of any victim of the youth’s offence and the interests of the community[25], and the requirement that the court must consider the nature and seriousness of the offence[26].
[83]It was also an aggravating circumstance that the further offences were committed while the appellant was on bail which had been granted in relation to the offences committed in the course of the first incident, and committed while the appellant was subject to a good behaviour order. To treat those circumstances as aggravating is not to penalise an offender for an offence other than that for which the sentence is imposed. It is to recognise that the gravity of the offending is increased by the fact the offender has repeated the type of offence previously charged while entrusted to remain in the community.
[84]Having regard to the number of offences, the multiple instances of offending, and the circumstances in which the offending in July 2018 took place, the total effective period of detention of two months and 14 days imposed in respect of the offending which was committed in July 2018 would be manifestly inadequate in the case of an adult offender. Although there is no tariff for this type of offending, the crimes of unlawful entry, stealing and property damage routinely attract sentences in this Court well in excess of that imposed by the sentencing judge in this case.[27] The question which presents here is whether the sentence imposed is properly characterised as manifestly excessive having regard to the principles which have application in sentencing youths, and in particular the requirement that the Court must impose a sentence of detention on a youth only as a last resort.
[85]Two consequences of the specific sentencing regime in the Youth Justice Act are that the scale of penalties for children is lower than that in the adult courts and the purposes of sentencing are qualitatively different.[28] However, even in the case of adult offenders imprisonment is a sanction of last resort[29], and the provision to that effect in the Youth Justice Act adds nothing to general sentencing principles. In considering whether the point of last resort has been reached, the sentencing court must consider the number and seriousness of the offender’s prior offences, the response to previous court orders and whether the offender’s “history of offending is such that the point has been reached where the protection of the community requires detention rather than further emphasis on rehabilitation”.[30]
[86]The sentencing judge in this case took a discriminating approach to the sentencing exercise. A sentence to detention was not imposed for the four offences arising out of the first incident. That was no doubt because the appellant had not previously been before the Court at the time those offences were committed. Similarly, the sentencing judge did not impose a sentence to detention for the three offences in respect of which the good behaviour bond had been imposed in May 2018, as that was the first occasion on which the appellant had been subjected to any criminal sanction. That course was taken notwithstanding that it was open to the sentencing judge under s 121(6) of the Youth Justice Act to deal with the appellant as if he had just been found guilty of the relevant offences, and having regard to his conduct in the intervening period.
[87]It was not disproportionate to the seriousness of those offences to impose an aggregate sentence of 80 hours of community work for the four offences arising out of the first incident and an aggregate sentence of 20 hours of community work for the three offences in respect of which the good behaviour bond had been imposed. Those dispositions also had the benefit of encouraging the appellant to engage with the youth program run by the MacDonnell Regional Council for the purpose of completing the community work order.
[88]Sentences to detention were imposed only in respect of the 15 offences arising out of the second, third and fourth incidents. That approach drew a distinction between the circumstances of the offending in April and May 2018, and the circumstances of the subsequent offending in July 2018. The property offending in July 2018 involved two separate episodes in four separate business premises. It was committed after the appellant had taken the benefit of the good behaviour order for the offending in May 2018, and following his conditional release on bail for the offending in April 2018. In proceeding as he did, it was both relevant and proper for the sentencing judge to consider whether a lenient disposition had previously been imposed and to take into account the youth’s response to that exercise of leniency.
[89]The selective approach taken makes it plain that the sentencing judge gave consideration to the alternatives to imposing sentences to detention. The other dispositions open in this case included the imposition of a further good behaviour order or a community work order. The appellant had already taken the benefit of and breached a good behaviour order. The sentencing judge clearly concluded that the appellant’s pattern of offending had reached the point where a sentence involving a period of detention which was suspended was necessary for the purposes of denunciation and to mark the community’s disapproval of the conduct; would best serve the need for community protection; and was the best measure to encourage the youth’s development as a law-abiding citizen. That conclusion is consistent with the fact that during the course of the sentencing submissions on 25 September 2018, counsel who appeared for the appellant on that occasion acknowledged that a sentence to detention which was suspended was within range as a possible disposition. While the appellant is not bound by that submission for the purposes of this appeal, it goes some way to demonstrating that a disposition of that type was unremarkable in these circumstances.
[90]I turn then to the terms which were imposed. For the six offences which were committed on 15 July 2018, an aggregate sentence of one month was imposed. For the seven offences subsequently committed on 20 July 2018, together with the breach of bail committed on 5 July 2018, an aggregate sentence of one month was imposed. The aggregate sentences represented a small fraction of the maximum penalties applicable to the offences involved. Even allowing for the particular considerations which apply to young offenders, it cannot be said that the imposition of a total effective sentence to detention for two months for the property offences which was effectively suspended forthwith was in these circumstances so “egregiously erroneous”[31] that the sentencing judge must have made a sentencing error.
[91]Detention for 14 days was imposed for the breach of bail committed on 27 July 2018. The maximum penalty for the breach of bail offence was imprisonment for two years and/or a fine of 200 penalty units. The sentencing judge described that offence as “a particularly egregious – that is serious – breach. You were given your opportunities to leave Alice Springs; you chose not to do so. It demonstrates not only your contempt for this court, but also it demonstrates that you are not really serious about going back to stay at Kintore.” The sentencing judge’s frustration in that respect is understandable. The appellant had repeatedly flouted the condition of bail which was intended to both serve the purpose of community protection and remove him from the temptation to reoffend.
[92]Even allowing for that, the appellant’s moral culpability for the bail offence was of a quite different order to his culpability for the property offences. The appellant no doubt well understood that he ought not commit those acts in relation to the property of others because they were both morally wrong and in breach of the law. The breach of bail stands in a different category having regard to the appellant’s environment and circumstances. He was a 15 year old boy living a transient existence moving between Kintore, Papunya and Alice Springs. He had apparently been doing so for some years and no doubt had familial ties and some form of cultural obligation in each centre. Even allowing that the conditions of bail were explained to him on each occasion, it is unlikely that the appellant readily understood the seriousness of remaining in Alice Springs with friends and relatives notwithstanding the condition imposed by the Court, or that it was morally wrong to do so. The appellant’s default in that respect was also not the fundamental failure to appear in court in accordance with an undertaking, for which a sentence to detention or imprisonment might be expected. In the circumstances, the imposition of 14 days’ detention for the breach of a condition of bail was manifestly excessive.
[93]That leaves the question of totality. The essence of the appellant’s contention in this respect is that the sentences were made cumulative in circumstances where the offences for which they were imposed shared features in common. Those features are said to be the age and personal circumstances of the appellant; that the offences were all committed in July 2018; and that the offences were of a similar character, including the aggravating circumstances.
[94]It should first be noted that the sentencing judge imposed an aggregate sentence of one month in respect of the six offences committed on 15 July 2018, and an aggregate sentence of one month in respect of the seven offences committed on 20 July 2018 and the earlier breach of bail. That aggregation already reflected to some degree the common features of the offences committed on each occasion.
[95]The second thing to note is that the similarity between the offending committed on 15 July 2018 and that committed on 20 July 2018 gave rise to no necessary call for concurrency. In Carroll v The Queen the Court of Criminal Appeal made the following broad statement of principle in relation to cumulation and concurrency in sentencing (footnotes omitted):[32]
The following principles are well established. First, s 50 of the Sentencing Act creates a prima facie rule that terms of imprisonment are to be served concurrently unless the court “otherwise orders”. There is no fetter on the discretion exercised by the Court and the prima facie rule can be displaced by a positive decision. Secondly, it is both impractical and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether the sentences should be ordered to be served concurrently or consecutively. The assessment is always a matter of fact and degree. Reasonable minds might differ as to the need for cumulation. Often there will be no clearly correct answer. Thirdly, an offender should not be sentenced simply and indiscriminately for each crime he is convicted of but for what can be characterised as his criminal conduct. The sentences for the individual offences and the total sentence imposed must be proportionate to the criminality in each case.
….
However, the overriding concern is that the sentences for the individual offences and the total sentence imposed be proportionate to the criminality of each case. Concurrency may be appropriate because the crimes which gave rise to the offender’s convictions are so closely related and interdependent. What is necessarily required in every case is a sound discretionary judgment as to whether there should be cumulation or concurrency.
[96]Where the offences form part of a single episode of criminality with common factors it is more likely that the sentence imposed for one of the offences will reflect the criminality of both, particularly where the circumstances in which each offence was committed were “highly interdependent”.[33] The offending on 15 and 20 July 2018 did not constitute a single episode of criminality. Although the offences committed at each premises might be characterised as such, the sentences imposed for offences committed at one premises did not wholly encompass the criminality of the offences committed at other premises.[34] Each episode constituted a separate invasion of the community’s right to peace and order, and different victims were involved on each occasion.
[97]The third matter to note in this context is that totality is concerned with the overall appropriateness of the penalty to be served for a number of different criminal events. The overriding principle is that the total sentence must not exceed the total criminality.[35] While that no doubt requires a consideration of whether the proposed sentence is justly proportionate to the whole of the offender’s conduct, it is not incumbent on the sentencing court to undertake the mechanical process of fixing sentence and then explicitly giving consideration to the question of totality. The process, including the consideration of totality, remains one of instinctive synthesis. For the same reasons as discussed above in the context of manifest excess, a total sentence of two months’ detention for these 13 offences was not disproportionate.
[98]This ground of appeal is allowed only in relation to the imposition of 14 days’ detention for the breach of a condition of bail.
Disposition
[99]I make the following orders:
1.The appeals in Files 21831064, 21831045 and 21831829 are allowed in part.
2.The convictions imposed in Files 21831064, 21831045 and 21831829 are set aside.
3.The offences in Files 21831064 and 21831045 are proved without proceeding to conviction.
4.For the breach of bail in File 21831829, the offence is proved without proceeding to conviction and the appellant is discharged without further penalty.
5.The orders made in Files 21828614, 21820076, 21831064, 21831045 and 21831829 are otherwise affirmed.
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[1]That section defines the term "responsible adult", in respect of a youth, to mean "a person who exercises parental responsibility for the youth, whether the responsibility is exercised in accordance with contemporary social practice, Aboriginal customary law and Aboriginal tradition or in any way".
[2]Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 78; CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261 at [99]; S v Australian Crime Commission (2005) 144 FCR 431 at [22]; Director of Public Prosecutions v Mattiuzzo (2011) 29 NTLR 189 at [14].
[3]R v Mills [1998] 4 VR 235.
[4]See TM v The Queen [2017] NTCCA 3 at [25]-[26]. As the seriousness of the criminality increases there will be “a corresponding reduction in the mitigating effects of the offender’s youth”: see Fox & Freiberg, Sentencing: State And Federal Law In Victoria ( (Third Edition), Law Book Company, 2014, p 355. See also R v Bloomfield [1999] NTCCA 137 at [21], [34]; R v Goodwin [2003] NTCCA 9 at [10]-[11]. Rehabilitation may also carry less weight in the case of a repeat offender who has previously been afforded a number of opportunities to modify his or her behaviours through the imposition of non-custodial dispositions, but has failed to do so and has committed a serious criminal offence.
[5]The Queen v Yunupingu [2007] NTSC 41 at [35].
[6]Youth Justice Act, s 4(b).
[7]Youth Justice Act, s 4(f).
[8]Youth Justice Act, s 4(h).
[9]Youth Justice Act, s 4(i).
[10]Noakes v The Queen [2015] NTCCA 7 at [15], citing DPP v Terrick; DPP v Marks; DPP v Stewart [2009] VSCA 220; 24 VR 457 at 459-460.
[11]Step v Atkins [2008] NTCCA 5 at [26]-[32].
[12] Allan v Transurban City Link Limited (2001) 208 CLR 167 at [11]; Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [62].
[13]As the High Court has observed in a different context, the question is whether there can be discerned from the language of the statute, its subject matter and objects a legislative purpose to invalidate the exercise of power that fails to comply with the requirement: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]. See also the subsequent decision in Forest & Forest Pty Ltd v Wilson [2017] HCA 30; 346 ALR 1 at [62]-[63].
[14] See, for example, SB v Heath [2017] NTSC 13 at [32].
[15] SB v Heath [2017] NTSC 13 at [34].
[16] Girrabul v The Queen [2003] NTSC 101 at [4].
[17] The presently accepted position is that a "sentence of detention" for these purposes includes a sentence which is wholly suspended or partly suspended forthwith: see SB v Heath [2017] NTSC 13 at [24]; BB v The Queen [2014] NTCCA 13 at [39]; Brown v Lyons [2017] NTSC 9.
[18] See, for example, SB v Heath [2017] NTSC 13 at [27; Wesley v The Queen [2014] NTCCA 17 at [28]-[33]; EA v Rothe & Ors [2012] NTSC 97 at [65]-[69]; Anderson v The Queen [2014] NTCCA 18 at [27]-[28].
[19] See also the general discussion in DD v Cahill [2009] NTSC 62 at [11]-[17].
[20]Simmonds v Hill (1986) 38 NTR 31 at 33.
[21] M v Waldron (1988) 90 FLR 355 at 360; P (a minor) v Hill (1992) 110 FLR 42 at 47-48; Verity v SB [2011] NTSC 26 at [34]-[36]; Cook v Nash [2017] NTSC 14 at [26].
[22] CI v Heath [2017] NTSC 38 at [29]; DD v Cahill [2009] NTSC 62 at [15].
[23]LA v Kennedy [2009] NTSC 56 at [20]; DD v Cahill [2009] NTSC 62 at [16].
[24]Abbott v Wilson [2017] NTSC 50 at [49].
[25] Youth Justice Act, s 4(g)
[26] Youth Justice Act, s 81(2)(a).
[27] See the discussion in Flynn v Apuatimi [2019] NTSC 1at [33]-[27].
[28] McKenna v The Queen (1992) 7 WAR 455; C (A Child) v The Queen (1995) 83 A Crim R 561.
[29]See Dinsdale v The Queen (2000) 202 CLR 321.
[30] WO (A Child) v Western Australia [2005] WASCA 94 at [65].
[31] Hanks v The Queen [2011] VSCA 7 per Bongiorno JA at [22], Redlich JA agreeing. Also cited in Namala v Whittington [2016] NTSC 71 at [25].
[32] Carroll v The Queen [2011] NTCCA 6; 29 NTLR 106 at [42] and [44].
[33] Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]; Nguyen v R [2007] NSWCCA 14 at [12]; Carroll v The Queen [2011] NTCCA 6; 29 NTLR 106 at [40].
[34] See the discussion in Nguyen v R [2007] NSWCCA 14 at [12].
[35]Mill v The Queen (1988) 166 CLR 59 at 63.
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