JED (a minor) v O'Berg - [2015] NTSC 7

JED (a minor) v O’Berg [2015] NTSC 7
PARTIES:JED (a minor)

v
O’Berg, Gregory

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 8 of 2014 (21432634)
DELIVERED:  15 JANUARY 2015
HEARING DATES:  15 JANUARY 2015
JUDGMENT OF:  KELLY J
APPEAL FROM:  J BIRCH MM
REPRESENTATION:
Counsel:
Appellant:C Ng
Respondent:  R Micairan
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  KEL 15002
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
JED (a minor) v O’Berg [2015] NTSC 7

No. JA 8 of 2014 (21432634)
BETWEEN:

JED (a minor)

Appellant

AND:

GREGORY O’BERG

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
EX TEMPORE
(Delivered 15 January 2015)

The appellant is only 11 years old. On 18 June 2014 when he was 10 years old he was dealt with by the Youth Justice Court for seven assault charges, some aggravated including using a weapon, two charges of disorderly behaviour in a police station and three charges of breach of bail. He has what can only be described as extreme behavioural problems. It is not necessary to describe these in detail. Suffice it to say that the multiple reports which were before the learned sentencing magistrate make very disturbing reading. Because of his extreme youth no convictions were recorded and he was given a good behaviour bond. He is in care with the Department of Children and Families (“the Department”) and the assault charges all relate to various assaults on his carers.
On 23 September 2014 he came back before the Youth Justice Court to be dealt with for 1 charge committed on 23 June 2014 and three charges committed on 16 July 2014 (two assault charges and one charge of using objectionable words). These charges too related to assaults on his carers.
The matter came before Mr Birch MM on 23 September 2014. A wealth of material was placed before his Honour including a report from Ross Park Primary School, a care plan from the Department, a report from the Department, an assessment by Dr Chambers, a further letter from Dr Chambers which updated that report and a psychiatric report from Dr Alder. His Honour also heard from the child’s grandmother and father.
At the time of his first appearance the child was in detention. His Honour adjourned the matter to 13 October for sentencing. The adjournment was necessary because the Department had advised that they were still in the process of obtaining suitable accommodation and carers.
His Honour adjourned the matter but remarked, “I can’t keep somebody in custody just because some accommodation’s not available”. On 13 October 2014 his Honour proceeded to sentence the appellant. The further offending was in breach of the good behaviour bond imposed for the nine previous assaults and other offences. In resentencing for those matters his Honour said:
Unfortunately, this trouble occurred whilst you were on the good behaviour bonds that I placed you on and, in my view, the violence has escalated. And it happened a very short time, in my view, after I dealt with you on the last occasion.
… I’m not satisfied that I should continue those good behaviour bonds. You’ve got enough things that you have to deal with in engaging with your new carers and dealing with going off to school and the other matters that are happening for you.
And I’m going to revoke those today. I’m going to take into account, obviously, the fact that you’ve been on remand since 15 July and I’m really pleased to hear the report from the officer that your attitude changed significantly while you were out there and that you’ve been making an effort.
… the time you’ve spent on remand has finished those cases for you.
In dealing with the offences that occurred on 23 June and 31 July his Honour said:
In regard to the offending that occurred on 23 June and 31 July on file 099 and 222, in respect to the assaults on each of those workers today, without recording a conviction, you are sentenced to two months detention on each of those matters which is also to commence on 15 July.
So, again, because of the period of time that you’ve been on remand, that’s finished. So all of that trouble is behind you and you’ve got a clear slate now to start from scratch.
In dealing with the assaults committed on 16 July his Honour said:
The assaults as I’ve alluded to that occurred on 16 July, in my view, are serious and in respect to each of those matters, without any conviction, I’m going to impose an aggregate sentence of six months detention on you that commences on 15 July.
His Honour did not record any convictions against the appellant. The appellant has appealed against the sentence imposed on the following grounds.
1)the head sentence and the operational period were manifestly excessive;
2)the learned Magistrate failed to properly apply the principle that detention is a punishment of last resort;
3)the learned Magistrate erred in not affording the appellant procedural fairness;
4)the learned Magistrate failed to give sufficient weight to the subjective circumstances of the appellant;
5)the learned Magistrate failed to properly have regard to the object of rehabilitation;
6)the learned Magistrate erred in imposing an aggregate sentence.
It is common ground that the appeal should be allowed on ground 6, namely that the magistrate erred in imposing an aggregate sentence. Section 125(3) of the Youth Justice Act provides that the Youth Justice Court may not impose an aggregate sentence where one of the offences is a violent offence. As the respondent rightly conceded two of the three offences with which the appellant was sentenced in relation to the offences committed on 16 July 2014 were violent offences. Accordingly, the appeal is allowed on this ground.
Ground 3 has been formally abandoned. I turn now to deal with the remaining grounds of the appeal.
The approach of the courts when dealing with juveniles must be cautious, patient and caring, with the interests of the juvenile foremost in mind. Of course, there are some offences which warrant an immediate custodial sentence notwithstanding that the offender is a juvenile and notwithstanding, even, that the juvenile has no prior convictions. But these are for extremely serious crimes, usually, but not always, crimes of violence where it is right that the need to punish and deter is given particular emphasis: see R v Williams.[1]I do not say, of course, that in the case of a persistent offender, where the crimes are not in the extremely serious category, that is not appropriate to order detention or imprisonment. But even in such cases, detention or imprisonment should only be used as a last resort, where all other options are inappropriate and the need for deterrence and to protect the community must be given special prominence.[2]
To my mind, it is apparent from a fair reading of the transcript of proceedings on 23 September 2014 and 13 October 2014 that this is precisely the approach taken by the sentencing magistrate. He plainly had the interests of the appellant foremost in mind. He was concerned to see that the appellant was released from detention and into appropriate care at the earliest available opportunity and that in relation to all but the 16 July offences he could “start from scratch” with a “clear slate” and “put that trouble behind him”.
Counsel for the appellant made a fairly half-hearted submission at the sentencing hearing that the appellant be placed on a Griffiths remand. His Honour considered and rejected the suggestion being of the view that it was in the interest of the appellant that the matters be finalised. The exchange was as follows:
… I did ask your Honour to consider putting him on so to speak, a Griffiths remand. It is at the end of the day a matter for your Honour. But if your Honour’s – and your Honour’s said that earlier, you know, if your Honour’s minded to finalise all the matters, I’d be ---
… Well I think what Dr Chambers has set out in her report and the other material that I’ve been able to consider on the previous matters that I dealt with, I don’t think [JED’s] best interests are served by some form of a Griffiths remand.
It’s my view that I should finalise these matters for him today and I also think that it’s not in his best interests that I seek any reports from Community Corrections, the Department and others are dealing with the more important aspects of his life and I think to have another third party involved wouldn’t help him at all.
Counsel then asked his Honour to consider a good behaviour bond while commenting that it was “something rather out of range”, in light of the fact that the appellant had been in custody for almost three months. His Honour rejected that proposal as well stating, “Well, I’m going to take into account the time that he has spent in custody, certainly.” (Mr Ng for the appellant stressed that his comment was not a concession but a submission that an unusual disposition was appropriate in the special circumstances of the appellant.)
Ground 4
It was suggested that the learned magistrate failed to give sufficient weight to the subjective circumstances of the appellant. This submission is likewise rejected. As already mentioned, his Honour had before him a large amount of material relating to the appellant’s very difficult and very challenging personal circumstances. Counsel for the appellant referred to written submissions to very significant mitigating circumstances which were put forward to his Honour without challenge. He contended that the submissions were clearly accepted by the learned magistrate but were only referred to in passing as the appellant’s “own special circumstances” in his Honour’s sentencing remarks.
As this submission impliedly concedes, his Honour did accept the submissions by counsel for the appellant in relation to the mitigating effect of the appellant’s very challenging and difficult personal circumstances. In sentencing he said:
But I take into account your own special circumstances and all of the material that was given to me on the last occasion as well as this time around, particularly Dr Chambers’ report.
This remark fairly and adequately indicates that the learned magistrate took into account all of this material. Nothing further was required.
In oral submissions, counsel for the appellant submitted that although the concepts of denunciation and deterrence were not mentioned by his Honour, one could infer that his Honour placed too much emphasis on these concepts, from his remarks about the seriousness and escalation of the offending. I do not agree. As I have already mentioned, in my view a fair reading of the transcript indicates that his Honour plainly had the interests of the appellant, his extreme youth and special circumstances foremost in mind.
Ground 5
It was contended that the learned magistrate failed to properly have regard to the object of rehabilitation. In my view this is simply incorrect.
Counsel for the appellant in written submissions conceded that his Honour, in referring to the better care and welfare arrangements and the positive change in attitude of the appellant did have regard to the issue of rehabilitation. He submitted, however, that, “the sentence imposed did not give effect to the promotion of the appellant’s rehabilitation”.
In my view this is simply incorrect. The appellant was immediately released from detention into the care of the Department under an appropriate care plan. He was not given any further period of detention but rather was given a suspended sentence which ought to operate as a strong incentive to rehabilitation. Indeed it is the major purpose of a suspended sentence of imprisonment. It is further to be noted that no conviction was recorded in order to maximise the young offender’s chances of moving forward with a clean slate as his Honour emphasized.
Grounds 1 and 2
It was submitted in ground 2 that the learned magistrate failed to properly apply the principle that detention is punishment of last resort and, too, in ground 1 that both the sentence and the operational period were manifestly excessive.
I disagree with both submissions. As pointed out in written submissions by counsel for the respondent, there was no practical alternative available to the court taking into account that the plan proffered by defence counsel was for the appellant to return to the care of the Department and that a care plan devised by the team overseeing the appellant’s placement in the Department. The other sentencing option appropriate to the circumstances of the offending (for example a community work order) would have had the potential to disrupt such plans and would not have been appropriate. Moreover counsel for the appellant did not suggest to the court that such an alternative disposition would be appropriate.
In written submissions in support of the submission that the period of the sentence and the operational period were both manifestly excessive, counsel for the appellant submitted that the sentence of six months should be reviewed in the context of the legislative limit of 12 months detention which could have been imposed by the Youth Justice Court on the appellant. As counsel for the appellant appropriately conceded, the submission is incorrect. It is well established that what is to be taken into account by a judicial officer imposing a sentence is not the jurisdictional limit of the court but the maximum penalty imposed by the legislature for an offence.[3] In this case the maximum penalty imposed for assault is imprisonment for two years and for an aggravated assault imprisonment for five years.
It was further submitted on behalf of the appellant that the operational period of 14 months was manifestly excessive given:
(a)the statutory maximum of 2 years that may be imposed by virtue of s 98(3) of the Youth Justice Act, and
(b)the principle set out in s 4(m) of that act that:
“a decision affecting a youth should, as far as practicable, be made and implemented within a time frame appropriate to the youth's sense of time”.
14 months, it was submitted, was simply too long for an 11 year old boy.
The principles to be applied in appeals of this nature are well known. The trial judge’s exercise of the sentencing discretion is not to be disturbed on appeal unless error has been shown in the exercise of the discretion. The presumption is that there is no error. The appeal court will interfere only if it is shown that the sentencing judge acted on a wrong principle. The error may appear in what the sentencing judge has said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error.[4]
The appellant has not demonstrated that the learned magistrate acted on any wrong principle, failed to take into account any relevant considerations or took into account any irrelevant considerations. In my view, the sentence was not manifestly excessive and this ground of appeal must fail.
The period of six months was within range given the seriousness of the offending, the circumstances of both the offences and the child, the fact that the offending was committed in breach of good behaviour bonds and bail, that it was escalating, and that there had been no appreciable effect on the appellant of any other disposition imposed. The sentence was fully suspended so as to give the child an incentive to reform.
Likewise, to my mind, the operational period of 14 months, though comparatively lengthy, was not manifestly excessive. I note the report of Dr Adler (tendered at the sentencing hearing on the appellant’s behalf) expresses the views that:
5.JED appears to respond best to clear messages from adults who can set clear, non-violent limits. …
6. … it is important that he is given clear information about:
i.What is considered acceptable and unacceptable behaviour, …
ii.The consequences for different types of unacceptable behaviour.
iii.The benefits, in terms of reduced restrictions, of continuing acceptable behaviour.
…
As counsel for the respondent pointed out, the sentence imposed by the learned sentencing magistrate was calculated to provide the appellant with a clear statement of what is and is not acceptable behaviour, with clearly spelled out consequences for unacceptable behaviour (the prospect of having to serve the three months suspended) and future benefits for compliance – namely moving forward with a clean slate and no conviction recorded if no further offending is committed in the clearly specified operational period. Further no additional conditions were imposed which might have interfered with the regime put in place by the Department for the appellant’s benefit and future wellbeing, and which the appellant may have found burdensome if imposed over a 14 month period.
Counsel for the appellant submitted that a further good behaviour bond would have been more appropriate in the circumstances, perhaps with conditions imposed such as that he take his medication. I do not agree. I consider that such a sentence would have been less likely to facilitate rehabilitation, would have been in fact more burdensome to the appellant (every refusal to take his medication, for example, would have had the potential to see him in breach of his bond), would have lacked the benefits of certainty outlined above and had the potential to interfere with the non-punitive regime put in place by the Department to facilitate the child’s development and education.
As the appeal has been allowed on ground 6, my options are to resentence the appellant or send it back to the learned magistrate for resentencing.
In an appeal of this nature I would normally consider it appropriate to send it back to the learned magistrate for resentencing. However, in light of the appellant’s extreme youth and the importance noted by the learned magistrate of finalising this matter as expeditiously as possible, I propose taking the course of resentencing the appellant.
The fact that I have not found the sentence to be manifestly excessive does not mean that I should automatically impose the same sentence. It is incumbent upon me to bring an independent mind to the exercise of the sentencing discretion. Nevertheless having considered all of the material that was before the learned magistrate, it does seem to me in the circumstances that a total sentence of six months detention beginning on 15 July 2014 (the date the appellant was taken into custody) and an operative period of 14 months are both appropriate. Further I consider it would be unsettling and inappropriate for a different sentence to be imposed at this time. I consider it in the interest of the child and the interest of fostering his rehabilitation that the recommendations of Dr Adler be followed. He needs a clear consistent message from the adult world about what is expected of him and the consequences that will follow if he does not comply, as well as incentives – both positive and negative to desist from the offending behaviour that has got him into all this trouble. In my view the sentence of the learned magistrate provided that and it would be counter-productive to interfere with it.
On count 1 the appellant is sentenced to a period of detention for six months beginning on 15 July 2014. On count 2 the appellant is sentenced to a period of detention for two months to be served concurrently with the sentence for count 1. On count 3 the appellant is sentenced to a period of detention for one week to be served concurrently with the sentences for counts 1 and 2. I fix an operational period of 14 months likewise from 15 July 2014. There will be no further conditions.

[1] (1992) 109 FLR 1 at 7

[2] P (a Minor) v Hill 110 FLR 42 at 48

[3] Wheeler v Eaton [2012] NTSC 80 at [17] referencing Taylor v Malagorski [2011] NTSC 98 at [24] and C v Gokel [1999] NTSC 93 at [14]-[15].

[4] R v Tait and Bartley (1979) 24 ALR 473 at 476 and Salmon v Chute (1994) 94 NTR 1 at 24.