JB v Geoffrey Hyde
[2013] ACTSC 216
•18 October 2013
JB v GEOFFREY HYDE
[2013] ACTSC 216 (18 October 2013)
APPEAL – Appeals from the Childrens Court – appeal against sentence – appeal on the ground of manifest excess – appeal upheld
EVIDENCE – Documentary evidence – Childrens Court – desirability of marking documentary evidence as exhibits
Crimes (Sentencing) Act 2005 (ACT), Ch 8A
Crimes (Sentence Administration) Act 2005 (ACT)
Crimes Act 1900 (ACT), s 26
Criminal Code 2002 (ACT), s 361(1)
Magistrates Court Act 1930 (ACT), s 216, Part 3.10, Div 3.10
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Grimshaw v Mann [2013] ACTSC 189
Grooms v Toohey (2012) 7 ACTLR 1
Ledson v Taylor [2010] ACTSC 42
Mill v The Queen (1988) 166 CLR 59
R v BB [2013] ACTSC 58
R v King (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 June 2012)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 68 of 2013
Judge: Refshauge ACJ
Supreme Court of the ACT
Date: 18 October 2013
IN THE SUPREME COURT OF THE )
) No. SCA 68 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JB
Appellant
AND:GEOFFREY HYDE
Respondent
ORDER
Judge: Refshauge ACJ
Date: 18 October 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed.
The sentence on matter CH 536/2013 be set aside.
In lieu, JB be sentenced to four months imprisonment from 14 September 2013.
That sentence be suspended on 22 November 2013 and JB be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 to be of good behaviour for a period of 12 months from 22 November 2013 with a probation condition that he be under the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him including directions as to counselling or treatment for alcohol and drug offences or as directed.
Sentencing is a difficult judicial task. It has become much more complicated also by reason of the legislation that now regulates it. An additional challenge is when there are, as here, multiple offences for which a partial concurrency is appropriate. That challenges the sentencer further. See R v King (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 June 2012).
This process is also a challenge when the offender is a young person to which the special provisions of Ch 8A of the Crimes (Sentencing) Act 2005(ACT) applies.
The appellant, JB, was born in 1996 and was, at the date on which he committed the first of the series of offences relevant to the subject offences in this appeal, just 16 years old; he remained that age until the end of that series. The series of offences spanned from 29 November 2012 to 22 May 2013 and these constituted breaches of good behaviour orders which needed curial attention in the sentencing.
On 14 August 2013, JB was sentenced to imprisonment for what appeared to be a total period of something approaching 12 months commencing on 22 May 2013 and then continuing for a further nine months from 22 September 2013 to be suspended after five months of full time custody. JB has appealed against that sentence.
JURISDICTION
Part 3.10 of the Magistrates Court Act 1930 (ACT) gives the court jurisdiction to hear and determine appeals from the Childrens Court, because it is the Magistrates Court simply renamed for the purpose of dealing with certain matters involving those under the age of 18 years, though with some different provisions.
Division 3.10.2 regulates appeals in criminal matters such as this appeal.
I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals; I apply them in this case.
Sentences imposed in the Childrens Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence.
I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Childrens Court was affected by a specific error but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.
Specific errors may be errors of law, errors of fact, taking account irrelevant or extraneous considerations or failing to take account of relevant or material considerations.
If I find specific error, but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and re-impose the same sentence.
Even if I cannot identify specific error, I may uphold the appeal and substitute another sentencing for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.
Under s 216 of the Magistrates Court Act, the filing of a notice of appeal stays the enforcement of the sentence or penalty, the subject of the appeal; that often has to be addressed at the conclusion of the appeal.
The Notice of Appeal filed by JB through his lawyers claims that the sentence was, in the circumstances, manifestly excessive.
THE FACTS
JB had been banned from the Belconnen Shopping Centre for 12 months from 15 June 2012, but was on those premises on 22 May 2013, that is, about one month before the ban had concluded. He was stopped by security staff as he was, therefore, trespassing on the premises. JB became agitated and swore at the security staff, becoming more aggressive despite the near presence of women and children. Police arrived and asked him to calm down and mind his language, but he became even more aggressive, punching a barrier. Police officers, fearing that he may injure staff, placed him in handcuffs, at which time JB started spitting at a police officer, with spittle landing on the officer’s shoe. JB continued to kick and struggle, striking out at police and security officers, managing to connect with the legs of two of the latter, the security officers. He was placed under restraint but continued to make offensive and obscene comments to the police. He was found to be in possession of a bottle of bourbon whiskey.
He was arrested and charged with various offences. Ultimately he pleaded guilty to assaulting two of the security officers constituted by kicking them and the spitting at the police officer, resisting the two police officers, trespassing on the premises and possessing liquor.
The only offences really at issue in these proceedings are the assault but the appeal also concerned the offences of resisting a public official. Assault is an offence against s 26 of the Crimes Act 1900 (ACT) and attracts a maximum penalty of two years imprisonment. Resisting a public official, in this case a police officer, in the exercise of his or her function, as such, and knowing that he or she was such a public official is an offence against s 361(1) of the Criminal Code 2002 (ACT) and is punishable by a maximum of 200 penalty units (that is a fine of $22,000) or imprisonment for two years or both.
SUBJECTIVE CIRCUMSTANCES
The proceedings in the CourtChildrens
JB was clearly known to the learned sentencing Magistrate. The Pre-Sentence Report prepared for the hearing referred, for much of the relevant material, to earlier reports, which do not appear to have been in evidence. That her Honour may have been aware of that can be inferred from the fact that her Honour had sentenced JB before. That may be one of the advantages of having a dedicated Childrens Court and Childrens Court Magistrate.
It is, however, difficult for me to assess JB’s subjective circumstances when I do not have all the relevant material.
Her Honour did say however – and this cannot have been taken from the Pre-Sentence Report that was in evidence before me because there was none of this material in it – as follows:
I just want to say that I know that throughout his childhood, [JB] has had some significant difficulties, that family circumstances haven’t always been ideal. [JB] has been for a long period of time now, in fact, since I think he was first before the court back in June 2009 and it seems to me that there was a lot of concern about [JB]’s health, his physical health, his mental health, and whether he was capable of learning new ways of behaving and as the years have gone on, as I understand it from the Pre-Sentence Report factors that have been put before me, and also I can see from [JB]’s record and I know from my own experience in dealing with [JB] that he has tended to spend various periods in custody having committed various offences and I note in that respect that his prior record has offences mainly of assault and damage property which to me indicate again this aggressive and violent acting out that [JB] engages in. I am concerned about some of the matters that were raised in the Pre-Sentence Report and not the least of which is the issue of [JB]’s education. I know that Mr Fleming said that [JB] is now trying a bit harder at that. I hope that that continues to be the case because really if you want to make something of your future, [JB], it is important that you get the best education you possibly can and if that means that you get it in Bimberi because of some circumstances, you know, I am sure that you’re able to get a fine education there. The teachers are very dedicated but you have to co-operate and you have to engage with them and if you do not do that, it is going to be a long time just sitting there by yourself.
I can tell, however, from the material before me, the following:
· JB is said to have exhibited defiant and abusive behaviour outside his home but has been respectful and compliant when residing at the residence where he is supervised by trained youth workers.
· his relationship with his parents, with whom he is not residing, is positive and he maintains regular contact with his father and irregular but positive contact with his mother.
· he clearly displays problematic behaviour whilst in custody, described as “problematic and defiant.”
· he managed to collect 17 disciplinary matters in his 76 days of pre-sentence custody at Bimberi and his behaviour was described as “abusive, threatening and defiant.”
· he has refused to attend education classes but states that he is afraid of being bullied by other young people at the Bimberi Youth Detention Centre. The staff say, however, that this is often instigated by him.
· more recently, however, he has been engaged in education and sporting programs and involving himself in extra-curricular activities.
· he has indicated an interest in an apprenticeship in mechanics.
Use of illicit substances and alcohol
He clearly has abused illicit drugs and consumes alcohol but I had no further information. An assessment by the Court Alcohol and Drug Assessment Service (CADAS) has been made. Whether a report was prepared, I cannot say, but it does not appear to have been before the Court.
For the reasons I set out in Grooms v Toohey (2012) 7 ACTLR 1 at 6; [24] and in Grimshaw v Mann [2013] ACTSC 189 at [19]-[23], the difficulties with determining what has actually been tendered in the Magistrates Court and what is actually before a Magistrates Court when proceedings are to be considered on appeal make the task of an appellate court quite challenging. This also applies to the Childrens Court.
It was submitted to the Magistrate by the JB’s counsel that he had undergone some counselling whilst in custody, but it was not clear whether that was specifically for drug and alcohol use or more generally. It has certainly been recommended for alcohol and drug use, and that would clearly also be desirable.
The Pre-Sentence Report noted that JB had difficulty in complying with court orders. Since he had been on bail, five breaches had been alleged.
In submissions by his counsel, it was suggested that JB was making some progress with his education. That was disputed by the prosecutor, who noted it was inconsistent with what was stated in the Pre-Sentence Report.
It was also submitted that he had the assistance of Turnaround, a valuable program which I have described in the R v BB [2013] ACTSC 58 at [56]-[60]. That would be of valuable support to JB, though it is not always a successful intervention.
Criminal history
JB has an unenviable criminal record. He first appeared in court on 14 June 2009 for two offences of common assault. Since then, he has been dealt with for a further 22 offences which, together, include 13 assault offences and six offences of damaging property. That justifies, clearly, the Magistrate’s comment that I referred to earlier above. He does not appear to have been sentenced for terms of immediate imprisonment, though, on 10 May 2013, he was sentenced to six months imprisonment which was immediately suspended.
SENTENCING
Defendant’s submissions on sentence
Mr M Fleming, counsel for JB before the learned Magistrate, submitted that JB had improved his behaviour and had had time to think about his behaviour in the three months he had been in custody.
He had little accurate memory of the incident itself and appreciated what was shown on the video which captured the closed circuit television record of the events, but made it clear his memory was well affected by alcohol.
He has also experienced having his food spat on, which made him realise what deplorable conduct spitting is. Mr Fleming had submitted that JB had reviewed his peer associations and did not “want to engage with anyone who would lead him astray.” He had some productive plans and was becoming involved with sport, more recently, while in detention.
He was, Mr Fleming had submitted, improving his behaviour. He had submitted that JB, “[i]s somebody who takes his medicine eventually when he calms down and realises what has happened has been his doing.” JB was, Mr Fleming had submitted, seeking another opportunity to prove himself as he was realising that his action were having consequences and that his actions of the past had not been acceptable.
Prosecution’s submissions on sentence
The prosecutor had submitted that JB’s history of assaults and damage property meant that the opportunities given by the courts were not having the right effect. Indeed, she had submitted that there was a developing propensity to violence which, if not addressed, would see continued criminal behaviour and continued court appearances. She had submitted that JB seemed to be unable to control his emotions when unhappy or feeling that he’s been unjustly treated. It was necessary, she had submitted, that it be made clear to JB that there are rules in place which need to be followed. The behaviour was unacceptable towards officers simply doing their duty and their job. The prosecutor also had noted that the offences breached six previous good behaviour orders including a suspended sentence. She further had noted that JB had spent 76 days in pre-sentence custody.
Specific deterrence was, she had submitted, an important factor in sentencing JB as well as general deterrence and denunciation.
THE SENTENCE
The learned Magistrate was dealing, at the same time, with some other matters which, for reasons that will become clear, were not the subject of the appeal. To understand this, it is necessary to refer to a little more of JB’s criminal history. On 10 May 2013, her Honour sentenced JB for four offences of damaging property, two offences of common assault, one offence of trespass on premises and one of offence of minor theft. Her Honour also dealt with six good behaviour orders that these offences had breached and, in each case, took no further action. On one of the offences of damaging property, her Honour sentenced JB to six months imprisonment, immediately suspended, with a good behaviour order for 12 months. On the other matters, her Honour made good behaviour orders for 12 months on one, of which there was a probation condition and a condition to undertake certain courses, counselling or treatment as directed.
On 14 August 2013, her Honour also dealt with JB for two offences of assault which occurred on 29 November 2012, that is, well before these offences, and the sentencing for them. Her Honour imposed a proper sentence of two months imprisonment for these offences but wholly concurrent with the sentences for which her Honour was dealing with JB for the incidents on 22 March 2013. That recognises the delay in prosecuting those offences and the fact that, had they been dealt with the other offences for which he had been sentenced at earlier stages, they would probably have been concurrent or not added to the total penalties that were imposed.
There were then the offences of assault on 22 March 2013 and of damaging property on 3 February 2013. In respect of the assault, that was an occasion of spitting at a custodial officer in the Bimberi Youth Detention Centre and of damaging property at the same centre for which Her Honour imposed sentence of 3 months and 4 months imprisonment but to commence on 22 May 2013 so as to take into account
For the breach of the good behaviour order imposed on 10 May 2013, Her Honour imposed a sentence of six months imprisonment to commence on 22 May 2013 but to be wholly concurrent with the sentence for one of the above assaults. That offence consisted of smashing windows in the Bimberi Youth Detention Centre when he was provoked by what is described in the statement of facts as “derogatory remarks about his parents.”
What is not mentioned in that sentencing is that he had already spent 124 days in pre-sentence custody and that, of course, should have been taken into account, either by backdating the sentence or by reducing the sentence. It seems to me that that would otherwise have effectively meant a sentence of nine months imprisonment for the offences of smashing the windows, and that, clearly, would have been manifestly excessive. Therefore, it seems to me that what her Honour was doing, although not expressing it, was taking into account the earlier pre-sentence custody that would require backdating of the six month sentence if it were ever to be imposed.
However, when her Honour activated that sentence, her Honour only backdated it to 22 May 2013 so as to take into account some of the pre-sentence custody, but not the whole of the 124 days which should have been taken into account.
Her Honour then imposed sentences for the other offences which were constituted by the events of 22 May 2013, some of which are subject to the appeal.
· For the trespass on the premises, her Honour sentenced him to the rising of the court, which, I have explained in Ledson v Taylor [2010] ACTSC 42 at [56]-[60].
· For the possession of liquor her Honour also sentenced him to the rising of the court.
· For the assault of one of the security officers, her Honour imposed imprisonment for nine months which was partially concurrent as to two months with the sentence activated of six months that had been earlier suspended, namely from 22 September 2013.
· For one of the other assaults, her Honour imposed a sentence of five months imprisonment; on the other, five months imprisonment, both to be concurrent and to commence on 22 September 2013.
· For the two charges of resisting the public official in the execution of their duty, her Honour imposed three months imprisonment on each to start on 22 September 2013.
Her Honour ordered that the sentence of nine months imprisonment, which was to commence on 22 September 2013, should be suspended after five months with a good behaviour order for 12 months.
CONSIDERATION
JB’s counsel, Mr J Sabharwal, says that there was a problem with the activation of the suspended sentence because it did not take into account the pre-sentence custody. I agree with this. Only about two months of that six months was, in fact, left to be served; the other period having been served in pre-sentence custody.
In my view, while the fact that these offences occurred very shortly after that sentence was imposed, it was not, on the grounds of totality (see Mill v The Queen (1988) 166 CLR 59), necessary to impose the whole of the balance of that sentence; indeed, her Honour acknowledged that it was not proper to impose the whole of that sentence, as her Honour made a substantial part of it concurrent.
I would have, in fact, commenced that sentence on 14 February 2013, to represent the specific deterrence that was deserved in this case. I cannot deal with that, however, as it is not before me, but I can deal with the other sentence so as to recognise the fact that should have been taken into account.
The real issue, then, on this sentence, is the sentence of nine months imprisonment imposed for the assault, which constituted the kicking of one of the security officers. It was four months longer than the penalty imposed on the other assault on the security officer. No explanation was offered by her Honour as to why one should be more than twice as long as the other offence. It was not a particularly more serious offence than the other. They were both simply kicked, as I understand it. It was serious enough and it was the second offence on the day.
In my view, five months imprisonment would be appropriate for the sentence for that assault. I would make that sentence commence on 14 September 2013 which is to take into account the presentence custody on the earlier activation of the sentence for the damage property that had earlier been imposed.
That is a total period of imprisonment from 22 May 2013 to 14 February 2014. It seems to me that in the circumstances that is an appropriate period of imprisonment to reflect the criminality of the events of 22 May 2013.
However, I would suspend that after JB has spent six months in custody, that is, I would suspend the sentence on 22 November 2013 and I would make a good behaviour order.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.
Associate:
Date:
Counsel for the Applicant: Mr J Sabharwal
Solicitor for the Applicant: Mark Fleming Lawyers
Counsel for the Respondent: Ms R Griffiths
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 18 October 2013
Date of judgment: 18 October 2013
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