J W B v Bond
[2010] TASSC 36
•28 July 2010
[2010] TASSC 36
COURT: SUPREME COURT OF TASMANIA
CITATION: J W B v Bond [2010] TASSC 36
PARTIES: B, J W
v
BOND, Michael (Acting Sergeant)
HIBBLE, Kim (Acting Sergeant)
FILE NO/S: 233/2010
DELIVERED ON: 28 July 2010
DELIVERED AT: Launceston
HEARING DATE: 22 July 2010
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Family Law and Child Welfare – Child welfare under State legislation – Crimes and offences by children – Jurisdiction of Children's Courts – Tasmania – Whether Youth Justice Division of the Magistrates Court has power to make a detention order without recording a conviction.
Youth Justice Act 1977 (Tas), s49(3).
Aust Dig Family Law and Child Welfare [596]
REPRESENTATION:
Counsel:
Applicant: E Hughes
Respondent: J P Ransom
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2010] TASSC 36
Number of paragraphs: 16
Serial No 36/2010
File No 233/2010
J B W v ACTING SERGEANT MICHAEL BOND & ACTING SERGEANT
KIM KIBBLE
REASONS FOR JUDGMENT CRAWFORD CJ
28 July 2010
The applicant pleaded guilty in the Youth Justice Division of the Magistrates Court to two offences committed on 21 July 2009. The first was stealing a knife worth $22.95 from a supermarket. The second was unsuccessfully attempting to commit an aggravated armed robbery by using the knife against an attendant at a nearby takeaway shop in an effort to steal three packets of cigarettes. He also pleaded guilty to stealing a pair of jeans worth $79.95 from a city shop on 10 September 2009 and to breaching bail requirements on about 18 different days in October and November 2009 by failing to live at a particular address.
He was 15 years old at all relevant times. He was in custody on remand for an extended period of time while the magistrate obtained a pre-sentence report from a youth justice worker, a report assessing his risks pursuant to the Youth Justice Act 1997¸ s104(4)(b), two reports from a child protection worker and a report from a forensic psychologist. The period in custody on remand was from 19 November 2009 until 15 March 2010. His counsel explained to me that much of the reason for keeping him in custody on remand was that he was regarded as being at risk and there was no satisfactory accommodation available to him if he was released.
On 15 March 2010, the learned magistrate convicted him of the first two charges, but not of the other two charges, and imposed one sentence on all four charges of 12 months' detention from 19 November 2009, with the balance from the day of sentencing suspended on condition that he be of good behaviour for 12 months. In addition, a probation order was made under that Act with the addition of special conditions that he attend such educational, personal, health or other programs as directed by his assigned youth justice worker and that he undergo such medical, psychiatric, psychological and drug counselling and treatment as directed by his assigned youth justice worker.
He sought to review the detention order in this Court on three grounds. They are that the order was a manifestly excessive sentence, that the learned magistrate failed to pay sufficient regard to the principle of parity as it related to the sentence imposed on J L P, a co-offender with the applicant for the offences committed on 21 July 2009, and that the detention order was not authorised by the Youth Justices Act, s49(3).
The respondent's counsel correctly conceded that the final ground must succeed because s49(3) obliged the learned magistrate to record a conviction on all charges in respect of which actual detention was ordered. As the detention order was made in respect of two offences for which convictions were not recorded (as well as for two offences for which convictions were recorded), it cannot be allowed to stand. Counsel agreed that I should quash the sentencing orders and re-sentence the applicant. Therefore, it is unnecessary to deal with the other grounds of the application to review.
The offences of 21 July 2009 were committed by the applicant in the company of a 15-year-old girl. She was the principal offender and he was an accessory. The two of them went into the supermarket together. The girl removed a packaged knife from a shelf and also took scissors, with which she cut away the knife's wrapper. She then hid the knife up her sleeve and they both left the store. The girl wanted to obtain cigarettes without paying for them. He accompanied her when they entered a nearby takeaway shop. She asked the shop assistant for three packets of a particular brand. The assistant asked for evidence of identification. The girl said: "I don't want to hurt you, ladies, I don't want to hurt you." She produced the knife and pointed it at the assistant, saying: "Give me the smokes." The owner of the shop told them that they were not getting the smokes and ran around the counter, at which the two youths ran from the store.
It appears that the applicant was present but said or did nothing on either occasion. He claimed to police that he only entered the takeaway shop because he did not want the girl to stab or bash him, although he admitted she did not in fact threaten him in any way. His counsel said to the learned magistrate that the applicant maintained a level of caution and concern about what the girl might do if he did not go along with her.
The stealing on 10 September 2009 was committed by the applicant after he had been interviewed by the police for the first two offences and charged with them. He went into the female clothing section of a shop, placed a pair of jeans inside another, and went with them to a changing room. On leaving it he handed one pair of jeans to sales staff. Police apprehended him outside the store. He was found to be wearing the second pair of jeans inside his track pants.
The facts of the charge of breaching bail requirements were as appears in the first paragraph of these reasons.
The learned magistrate was told by defence counsel that the 15-year-old girl, who was the principal offender for the first two offences, was sentenced by a judge in a criminal court on 29 October 2009 and the comments on passing sentence were tendered. She was sentenced for six offences in all, the other four offences including two successful armed robberies committed by her later the same day. One was at a newsagency, where she robbed a shop assistant of a packet of cigarettes at knifepoint and ran away. About half an hour after that she went into a supermarket and at a cigarette counter, robbed a shop assistant of $200 at knifepoint. She was also sentenced for having possession of a pipe for smoking cannabis and, in accordance with an admission she made to police, smoking cannabis on the day of the interview. Her record was not before the learned magistrate, but the sentencing judge commented that she had been in a lot of trouble, that she had been in the Ashley Detention Centre for over three months and would remain there for at least another two months regardless of what sentence the learned judge imposed. Convictions were recorded on all charges and she was sentenced to 18 months' detention from 21 July 2009, with 12 months of the detention suspended on a condition that she be of good behaviour until her 18th birthday in two years time. A probation order for 12 months was also made.
The applicant's record consisted of two stealing offences committed on 1 October 2009, which was after the first two offences for which he was sentenced but before the other two offences. He was informally cautioned by a police officer for them without a court appearance.
He had no history with Youth Justice Services. However he was troubled and had a history of resisting discipline. His mother reported that his behaviour deteriorated in late 2008 and he was suspended from school a number of times for defiant behaviour. He stopped attending school in 2009 and left home in about June 2009, his stated reason being that he used to fight with his mother over not being allowed out late at night. Thereafter, he had a transient lifestyle, associating with a mainly anti-social group of people. His offending behaviour then commenced. It is clear that he has social and emotional deficits creating a risk that he may re-offend.
He was in detention for about four months awaiting the resolution of the case and the imposition of the sentence. For a 15-year-old first offender that was enough. The period of about four months is equivalent to the primary period of detention required for an offender for whom eight months' detention is imposed, having regard to the early release provisions of s109(1). Of course, the crime of attempted armed robbery must normally be treated as a serious one, but he was guilty only because he was present. His participation was a relatively minor one and that is particularly significant having regard to the fact that he had no previous record for offending.
The probation order was justified and was not attacked by his counsel.
For the reasons I have given the following orders will be made. The sentencing orders made by the learned magistrate on 15 March 2010 are set aside. In their place it will be ordered:
1 Convictions are recorded for the two offences committed on 21 July 2009.
2 Convictions are not recorded for the other two offences.
3For the two offences committed on 21 July 2009 a detention order is made for the period 19 November 2009 to 15 March 2010.
4For the other two offences a probation order is made under the Youth Justice Act, s65, for a period of 12 months from today.
Since preparing these reasons and on the eve of publication, I received a psychiatric report concerning him. It does not persuade me to alter the orders.
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