H v Steele
[2007] TASSC 110
•19 December 2007
[2007] TASSC 110
CITATION: H v Steele [2007] TASSC 110
PARTIES: H
v
STEELE, Jacqueline
HIBBLE, Kim
GROVES, Patrick
LUSTED, Gary
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 783/2007
DELIVERED ON: 19 December 2007
DELIVERED AT: Launceston
HEARING DATE: 11 December 2007
JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Juvenile offenders – Sentencing as child or adult and imprisonment – Power under the Youth Justice Act – Whether sentence of imprisonment for breach of youth probation order authorised – Offender an adult at time of resentence.
Youth Justice Act 1997 (Tas), s68(4).
Aust Dig Criminal Law [857]
Family Law and Child Welfare – Child welfare under State legislation – Crimes and offences by children – Jurisdiction of Children's Courts – Tasmania – Breach of probation order made under Youth Justice Act – Whether sentence of imprisonment authorised – Offender an adult at time of resentence.
Youth Justice Act 1997 (Tas), s68(4).
Aust Dig Family Law and Child Welfare [596]
REPRESENTATION:
Counsel:
Applicant: A M Cohen
Respondent: J P Ransom
Solicitors:
Applicant: Rae & Partners
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 110
Number of paragraphs: 13
Serial No 110/2007
File No 783/2007
H v JACQUELINE STEELE, KIM HIBBLE, PATRICK GROVES and GARY LUSTED
REASONS FOR JUDGMENT CRAWFORD J
19 December 2007
On 27 March 2006 the applicant appeared before a magistrate, Mr P H Wilson, sitting in the Youth Justice Division of the Magistrates Court. He had pleaded guilty to 35 charges on five complaints:
30252/06
Breach of bail on 4 January 2006
30627/06 – counts 1 and 2
Aggravated burglary and stealing on 9 October 2005
31372/06 – counts 1 – 7
Stealing on 21 January 2006
Contravening conditions of bail notices on 21, 22 and 23 (twice) January 2006
Aggravated burglary and stealing on 23 January 2006
32135/06 – counts 1 – 21
Aggravated burglary and stealing sometime in 2005 (twice), 18 and 23 October 2005, 28 December 2005, and 5, 7 and 15 January 2006
Burglary on 16 December 2005
Stealing between 16 December 2005 and 19 January 2006
Selling a controlled plant or its products between 20 December 2005 and 20 January 2006
Attempted aggravated burglary and stealing on 16 January 2006
40988/05 – counts 1 – 4
Burglary and stealing on 1 and 8 November 2005
The offences were committed on various dates between sometime in 2005 and 23 January 2006. He was born on 18 August 1988 and therefore, was aged either 16 or 17 when he committed them. Accordingly, he was a "youth" for the purposes of the Youth Justice Act 1997 ("the Act"). See s3(1).
On the same date the applicant also appeared before the learned magistrate in the Youth Justice Division on complaint 34103/05 for contravening a condition of a suspended detention order made on 29 August 2005 for an assault with indecent intent, and on complaint 35256/05 for contravening a condition of the suspended detention order and contravening a condition of a probation order also made on 29 August 2005, for a stealing.
The orders made by the learned magistrate on that occasion were firstly, for the contravention of the detention and probation orders, the orders were revoked and he was re-sentenced for the assault with indecent intent and the stealing to a two months' detention order commencing on 24 January 2006. For the offences on the five complaints detailed above, a detention order was made for 16 months cumulative upon the detention order for two months. In addition, for those offences, a probation order was made for 12 months commencing on his release, which occurred on 24 December 2006. All of those orders were made pursuant to powers under the Act.
Following his release, he offended many more times between 29 January 2007 and 25 April 2007, when he was aged 18 and no longer a youth under the Act. He was charged with those offences on five complaints that were made between 20 April and 1 June 2007 when he was 18 years of age, and a sixth complaint made on 7 September 2007 when he was 19 years of age. Those six complaints were for hearing in a court of petty sessions. He was also charged with two offences committed on 16 October 2005 on a complaint made on 7 April 2006 for hearing in the Youth Justice Division. On the date of the commission of the offences and the date of the making of the complaint he was 17 years of age. The charges of a total of 21 offences on the seven complaints, to which he pleaded guilty, were:
34236/06 – counts 1 and 2
Trespass and destroying property on 19 October 2005
33988/07 – counts 1 – 7
Aggravated burglary and stealing on 11 and 28 March and 5 April 2007
Dishonestly acquiring a financial advantage on 2 April 2007
34176/07 – counts 1, 3 and 5 – 9
Stealing on 12 February 2007
Aggravated burglary and stealing on 19 April 2007
Dishonestly acquiring a financial advantage on 19 and 21 April 2007
Contravening a condition of a bail notice on 25 April 2007
35010/07 – count 2
Common assault on 1 March 2007
35625/07 – count 2
Receiving stolen property on 22 February 2007
35628/07
Receiving stolen property on 29 January 2007
39344/07 – counts 1 – 3
Attempted aggravated burglary on 1 February 2007
Contravening conditions of a bail notice on 13 and 20 April 2007
On those seven complaints he appeared before the same magistrate for hearing on 17 October 2007 and was sentenced on 18 October 2007, when he was 19 years of age. However, before relating what the sentence was, I should mention what also occurred at the hearing on 17 October 2007. A probation officer applied for an order consequent upon the applicant's breach of a condition of the probation order made on 27 March 2006 by committing another offence which, if committed by an adult, could be punishable by imprisonment. There was no doubt that he had breached that condition by committing many such offences between January and April 2007. The probation officer asked the learned magistrate to consider revoking the probation order under the Act, s68(4)(b), "and re-sentence him according to the Sentencing Act 1997" for the offences for which the probation order was originally made. Counsel for the respondents concedes that it was an error to seek re-sentencing under the Sentencing Act because the learned magistrate had no power to do so. I will return to that issue in due course. The facts concerning the original offences were then provided to the learned magistrate. On the following day, 18 October 2007, submissions in mitigation of penalty were made by the applicant's counsel to the learned magistrate. No submission addressed the power of the learned magistrate. As soon as the submissions had been completed, his Honour made the orders that are the subject of the present motion to review. After noting that the applicant had an appalling history of offending in a dishonest way and that he had offended "virtually unremittingly", his Honour observed that the applicant faced "numerous serious and significant offences before this court here today" and that he was still a youthful offender. The following orders were then expressed:
"There is an in globo penalty whereby the existing probation orders are revoked and you are re-sentenced on the complaints which led to the making of the probation order to a term of 10 months' imprisonment, that will commence on and from the date you were first remanded in custody, which I am told is the 27th April of this year.
Further, and upon the fresh complaints here in this court you are sentenced to a term of 14 months' imprisonment cumulative to that term just imposed, that is a total of 24 months' imprisonment and I express a non-parole period of 18 months regarding that total term. ... You will also be subject to a probation order upon your release and that will be a supervised order and it will contain all the usual conditions which will be explained to you by your probation officer. That order will continue for 12 months following upon your release and hopefully that will be a useful tool for you to work your way back into the community."
The motion to review has two grounds only, they being that the learned magistrate erred in law by failing to give sufficient weight to the totality principle when imposing a global sentence and that the learned magistrate erred in law by imposing a sentence that was manifestly excessive in all the circumstances. However, at the hearing of the motion, counsel for the respondents pointed out that the re-sentence of the applicant to imprisonment for 10 months, following revocation of the probation order, was without power and could not stand. It is appropriate to consider that question before any other.
The probation order of 27 March 2006 was made under the Act, s47(1)(f). Proceedings arising from a contravention of such an order are governed by s68. By subs(1), a prescribed person may apply to the Magistrates Court (Youth Justice Division) for an order under subs(4) if it appears that a youth has contravened a probation order. As noted earlier, the applicant was a youth for the purposes of the Act. The powers of subs(4) include, in par(d), that the court may "revoke the probation order and, where appropriate, any other order made under section 47 and make another order under that section in respect of the offence". What may have been ordered following revocation of the probation order under s47, in respect of the offences for which the probation order was made on 27 March 2006? By s47(1)(h), a detention order may have been made, but nothing in the section authorised a sentence of imprisonment. There is nothing in the Act that authorises a sentence of imprisonment for a breach of a probation order made under the Act in the Youth Justice Division. Section 103, which deals with cases in which a person was under 18 years of age at the time of the commission of the offence but 18 or older at the time of the commencement of the proceedings for the offence, does not authorise it. Section 107A, which concerns contravention of orders made under s47 by the Supreme Court or a summary court, does not apply, for the original probation order was not made by either of those courts but by the Magistrates Court (Youth Justice Division). By s107A(1), a summary court "means a court of summary jurisdiction other than the Magistrates Court (Youth Justice Division)".
It follows that the learned magistrate had no power to sentence the applicant to a term of 10 months' imprisonment consequent upon his breach of the probation order that was made in the Magistrates Court (Youth Justice Division) on 27 March 2006 and the sentence must be quashed.
I observe that under the Sentencing Act, s42(1) and (5), a breach of a probation order made under that Act amounts to an offence and is punishable by a fine not exceeding $1000 and a term of imprisonment not exceeding three months. In addition, under subs(6), the court dealing with the matter may cancel the probation order and deal with the offender in any manner in which the court could deal with the offender had it just found the offender guilty of the offence or offences for which the probation order was made. While there is a similar power under the Youth Justice Act to the power in s42(6) when dealing with a contravention of a probation order made in the Youth Justice Division, there is no corresponding provision that makes a contravention an offence.
When imposing the sentence of 10 months' imprisonment consequent upon the contravention of the probation order, the learned magistrate made no mention of the fact that for the offences in question a detention order for 16 months was also made against the applicant originally and that he had served the detention as required by law. When considering whether to re-sentence the applicant for the same offences, it was the duty of the learned magistrate to take into account the detention already suffered by the applicant for the offences, yet his Honour made no mention of it. It is possible that the matter was overlooked. In any event, further punishment was not warranted. The combination of detention order and probation order should have been treated as punishment by way of the detention order and supervision and assistance to the applicant following his release by way of the probation order. Further punishment following contravention of the probation order was inappropriate in the circumstances of the case.
Counsel for the applicant conceded that the sentence of 14 months' imprisonment for the more recent offences was not manifestly excessive or erroneous. Nevertheless, it must also be quashed because it was expressed as being cumulative to the other term of imprisonment, which will be quashed, and because his Honour imposed a non-parole period of 18 months, which cannot be allowed to stand in the circumstances.
Accordingly, the sentence of 10 months' imprisonment, the sentence of 14 months' imprisonment and the order that there be a non-parole period of 18 months are quashed. The probation order will remain revoked and no other order will be made in addition for its contravention. For the more recent offences on the seven complaints, he is sentenced to imprisonment for 14 months from 27 April 2007, which was the date upon which he was taken into custody, and it is ordered that he not be eligible for parole until he has served nine months of the imprisonment, which is the minimum period of time he should spend in prison for the offences. The fresh probation order for 12 months following his release, that was made by the learned magistrate, will remain.
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