F v Tasmania
[2020] TASSC 28
•26 June 2020
[2020] TASSC 28
COURT: SUPREME COURT OF TASMANIA
CITATION: F v Tasmania [2020] TASSC 28
PARTIES: KAF
v
STATE OF TASMANIA
FILE NO: LCA 113/2020
DELIVERED ON: 26 June 2020
DELIVERED AT: Hobart
HEARING DATE: 3 June 2020
JUDGMENT OF: Estcourt J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Powers of court – Youth Justice Act 1997 – Appeal against conviction – Whether magistrate erred in law by recording a conviction with no further penalty when such a sentence is not authorised under s 47 of the Act – Appeal allowed – Convictions quashed – Matter remitted to the magistrate for re-sentencing in accordance with law.
Youth Justice Act 1997.
Aust Dig Magistrates [1347]
REPRESENTATION:
Counsel:
Appellant: B Clark
Respondent: V Dawkins
Solicitors:
Appellant: Legal Aid Commission
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASSC 28
Number of paragraphs: 19
Serial No 28/2020
File No LCA 113/2020
KAF v STATE OF TASMANIA
REASONS FOR JUDGMENT ESTCOURT J
26 June 2020
The proceeding and the background
On 7 January 2020 Deputy Chief Magistrate Daly, sentenced the applicant, by recording conviction and imposing a 12 month disqualification from driving, after the applicant had pleaded guilty to complaint 4041/2019, which charged one count of evading police pursuant to s 11A(1) of the Police Powers (Vehicle Interception) Act 2000.
The applicant has filed a notice to review that sentencing order, submitting that his Honour erred in law by recording a conviction with no further penalty when such a sentence is not authorised under s 47 of the Youth Justice Act 1997 (the Act).
On 7 January 2020, the applicant appeared before the learned magistrate in relation to the following complaints:
5187/2019Operate a motor vehicle or motor vessel within 500 metres of residential premises, pursuant to reg 8 of the Environmental Management and Pollution Control (Noise) Regulations 2016.
4041/2019Evade police, pursuant to s 11A of the Police Powers (Vehicle Interception) Act 2000.
4042/2019Drive whilst not the holder of a driver's licence, pursuant to s 8(1) of the Vehicle and Traffic Act 1999.
Operate a motor vehicle or motor vessel within 500 metres of residential premises, pursuant to reg 8 of the Environmental Management and Pollution Control (Noise) Regulations 2016.
Use unregistered motor vehicle, pursuant to s 27(1) of the Vehicle and Traffic Act 1999.
6596/2019Breach of bail, pursuant to s 9 of the Bail Act 1994.
8666/2019Fail to appear, pursuant to s 5(4) of the Bail Act 1994.
Pleas of guilty were entered by the applicant to all charges before the magistrate who imposed a single sentence in relation to complaints 4041/2019 and 4042/2019, and a single sentence in relation to all other complaints.
In other words the learned magistrate sentenced the applicant in relation to the charge of evade police, driving without a licence and driving an unregistered motor vehicle, by recording convictions and imposing a disqualification for a period of 12 months, and in relation to all of the other charges, by making a release and adjournment order on condition that he be of good behaviour for 12 months.
This motion relates only to the single sentence imposed on complaints 4041/2019 and 4042/2019.
The contentions
The applicant was born on 18 October 2002 and was, thus, 16 years old at the time of the offending and 17 years old at the time of the sentencing on 7 January 2020. He had no prior convictions and his offending history was limited to formal and informal police cautions.
The Youth Justice Division of the Magistrates Court has jurisdiction to hear and determine proceedings against a youth for "offences" (s 161(1) of the Act). An offence is defined by s 3 of the Act as "any offence other than a prescribed offence". Pursuant to s 3, the charge of evade police is a prescribed offence for a youth aged fourteen years or older. Therefore, given the applicant's age at the time of committing the offence, it was a prescribed offence and therefore would not ordinarily fall within the jurisdiction of the Youth Justice Division.
However, s 107 (1) of the Act gives a court of summary jurisdiction, other than the Magistrates Court (Youth Justice Division), the discretion to exercise the powers of the Youth Justice Division and sentence a youth pursuant to the Act.
Counsel for the applicant submitted on the sentencing hearing that the learned magistrate ought to use that discretion and sentence the applicant as a youth, pursuant to the Act. His Honour accepted that submission and made an order accordingly with respect to complaint 4041/2019.
The offences charged on complaint 4042/2019 are not prescribed offences for a youth aged 16, and thus the applicant was also sentenced as a youth in respect to the charges on that complaint.
The learned magistrate heard the facts for the prosecutor and sentencing submissions, and then proceeded to sentence the applicant in relation to complaints 4041/2019 and 4042/2019 pursuant to the Act, as already noted, by recording convictions and imposing a period of 12 months' disqualification from driving. His Honour relied upon s 49 as the power to record a conviction.
The applicant submits that the learned magistrate erred by ordering a conviction when he was making no other order pursuant to s 47 of the Act.
The legislation
Section 47 of the Act provides as follows:
"47 Sentences and other orders that may be imposed
(1)If a youth is found guilty of an offence, the Court may do one or more of the following:
(a) dismiss the charge and impose no further sentence;
(b) dismiss the charge and reprimand the youth;
(c)dismiss the charge and require the youth to enter into an undertaking to be of good behaviour;
(d) release the youth and adjourn the proceedings on conditions;
(e) impose a fine;
(f) make a probation order;
(g) order that the youth perform community service;
(h)make a detention order;
(ha)make an order it is permitted to make in accordance with section 161A ;
(i)in the case of a family violence offence, make a rehabilitation program order;
(j)adjourn the proceedings, grant bail to the youth under the Bail Act 1994 and defer, in accordance with Division 7A , sentencing the youth until a date specified in the order.
(1A)Proceedings in relation to an offence may not be adjourned under subsection (1)(j) for a period of more than 12 months from the date of the finding of guilt in respect of the offence.
(1B)Subsection (1)(j) does not limit the power of the Court to adjourn proceedings, grant bail in relation to a period of adjournment or defer sentencing a youth otherwise than under subsection (1)(j) .
(2)In addition to imposing a sentence under subsection (1) , the Court may make one or more of the following orders:
(a)a suspended detention order;
(b)a restitution order;
(c)a compensation order;
(d)subject to this Act, any other order a court may make under another Act in respect of the offence of which the youth is found guilty.
(3)If the Court considers it appropriate that the youth pay an amount by way of compensation and an amount by way of fine but the youth has insufficient resources to pay both amounts, the Court must give preference to ordering the youth to pay the compensation amount.
(3A)In weighing up the matters to be taken into account in determining which orders to make under subsections (1) and (2) in relation to a youth, the Court must ensure that the matter of the rehabilitation of the youth is given more weight than is given to any other individual matter.
(4)In determining what orders to make under subsections (1) and (2) , the Court must have regard to all the circumstances of the case, including –
(a)the nature of the offence; and
(b)the youth's age and any sentences or sanctions previously imposed on the youth by any court or a community conference; and
(c)the impact any orders made will have on the youth's chances of finding or retaining employment or attending education and training."
Section 49 of the Act provides as follows:
"49 Recording conviction
(1)If the Court imposes a sentence under subsection (1) of section 47 that does not include a sentence under section 47(1)(e), (f), (g), (h), (ha) or (i), a conviction is not to be recorded.
(2)If the Court imposes a sentence under section 47(1)(e), (f), (g), (h), (ha) or (i) , the Court may order that a conviction is or is not to be recorded.
(3)If the Court imposes a sentence consisting of or including a period of detention and does not make a suspended detention order suspending the whole of the period of detention, a conviction must be recorded.
(4)In determining whether or not to record a conviction, the Court must have regard to all the circumstances of the case, including –
(a)the nature of the offence; and
(b)the youth's age; and
(c)any sentences or sanctions previously imposed on the youth by any court or community conference and any formal cautions previously administered to the youth; and
(d)the impact the recording of a conviction will have on the youth's chances of rehabilitation generally or finding or retaining employment.
(4A)In determining whether or not to record a conviction, the Court must ensure that the matter of the rehabilitation of the youth is given more weight than is given to any other individual matter.
(5)Except as otherwise provided by this or any other Act, a finding of guilty without the recording of a conviction is not taken to be a conviction for any purpose.
(6)A finding of guilty without the recording of a conviction bars a subsequent proceeding against the youth for the same offence as if a conviction had been recorded."
Discussion
Section 49 does not provide for the recording of a conviction absent a sentence imposed pursuant to s 47(1)(e), (f), (g), (h), (ha) or (i) of the Act. The imposition of a period of disqualification is not such a sentence. Disqualification is an order authorised by s 47(2)(d) which allows any order a court may make "under another Act in respect of the offence of which the youth is found guilty", in this case, both the Police Powers (Vehicle Interception) Act, ss 11(4B) and 15, and the Vehicle and Traffic Act, s 17.
The learned magistrate had no power to record convictions in the circumstances of the sentencing order he otherwise proposed.
Disposition
The parties were agreed that if I reached the view that I have, then I might proceed to resentence the applicant. I have however, decided not to do so.
The motion to review is granted and I set aside that part of the learned magistrate's sentencing order imposing convictions in respect of the offences charged in complaints 4041/2019 and 4042/2019. I quash those convictions and remit the matter to the learned magistrate for re-sentencing in accordance with law.
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