KN v Frizzell
[2020] ACTSC 217
•18 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | KN v Frizzell |
Citation: | [2020] ACTSC 217 |
Hearing Dates: | 29 January 2020, 10 February 2020 and 18 June 2020 |
DecisionDate: | 18 June 2020 |
ReasonsDate: | 10 August 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [112]-[115] |
Catchwords: | APPEAL AND RE-SENTENCE – APPEAL – Appeal from Childrens Court – appeal against sentence – sentence of a young person – whether sentence manifestly excessive – whether Magistrate considered alternatives to imprisonment – whether rehabilitation properly considered – resentence |
Legislation Cited: | Bail Act 1992 (ACT) s 49 Children and Young People Act 2008 (ACT) s 94 Road Transport (Driver Licensing) Act 1999 (ACT) s 31 |
Cases Cited: | Achuthan v Coates (1986) 6 NSWLR 472 Balthazaar v The Queen [2012] ACTCA 26 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | KN (Appellant) Emma Frizzell (1st Respondent) David Driessen (2nd Respondent) |
Representation: | Counsel J Cooper (Appellant) K Reardon (1st and 2nd Respondents) |
| Solicitors Aboriginal Legal Service NSW/ACT (Appellant) ACT Director of Public Prosecutions (1st and 2nd Respondents) | |
File Number: | SCA 54 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Childrens Court Before: Magistrate Cook Date of Decision: 2 September 2019 Case Title: Frizzell v KN Court File Number: CH19/253, CH18/1120 |
LOUKAS-KARLSSON J
Introduction
KN (the appellant) appeals from a sentence imposed in the ACT Childrens Court on 2 September 2019. The appellant was convicted and sentenced by Magistrate Cook (the Magistrate) for the following offences:
(a)Failure to appear before the Childrens Court, in contravention of s 49(1) of the Bail Act 1992 (ACT); and
(b)Drive motor vehicle without consent, in contravention of s 318(2) of the Criminal Code 2002 (ACT).
For the offence of failing to appear, the appellant was sentenced to two months’ fulltime imprisonment. For the offence of driving a motor vehicle without consent (the dishonest drive offence), the appellant was sentenced to three months’ fulltime imprisonment, partly concurrent with the failure to appear sentence.
At the time of sentence, the appellant had been in custody on remand for 5 months and 11 days. On the day of sentence, the appellant was also sentenced for the following offences:
(a)Trespass contrary to s 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth);
(b)Unlicensed driving contrary to s 31 of the Road Transport (Driver Licensing) Act 1999 (ACT); and
(c)Attempted minor theft contrary to s 321 of the Criminal Code 2002 (ACT).
For each of these offences, the Magistrate found the offences proved without conviction. That result was pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) in relation to the unlicensed drive and minor theft, and pursuant to s 19B of the Crimes Act 1914 (Cth) in relation to the trespass.
Jurisdiction
The Supreme Court’s appellate jurisdiction in relation to sentence appeals from the Magistrates Court is derived from ss 207 and 208 of the Magistrates Court Act 1930 (ACT).
Facts
The facts of the offences are set out in the Agreed Statement of Facts and may be summarised as follows.
Dishonest Drive Offence
Around 3am on Monday 1 January 2018, Mr Allen Setiabudi (the victim) finished work in Kambah. As he was walking towards his vehicle, he saw two young males walking towards him. One of the males was the appellant.
The victim offered the two males a lift and cleared space in the car for them to sit. The appellant asked if he could drive, as he was not comfortable with other people driving. The victim initially said no but eventually agreed upon the appellant’s insistence.
The appellant and the co-offender got in the car and the appellant drove it to another location in Kambah. The appellant stopped the vehicle, and the victim heard the rear door open and the sound of smashing glass. The victim turned and saw the co-offender holding a broken wine bottle. Both the appellant and co-offender shouted at the victim to get out of the car.
The victim exited the vehicle with his bag and called the police. Around 8am that morning, the victim’s vehicle was observed at an intersection in Richardson. The vehicle had left the road and collided with a road sign.
The appellant was connected with the offence following a forensic procedure conducted on the appellant in August 2018.
Failure to Appear
On 17 December 2018, the appellant appeared before the Childrens Court, at which time he gave an undertaking to appear again on 21 January 2019.
On 21 January 2019, the appellant failed to appear before the Court. As a result, a warrant was issued for failure to answer bail.
Two months later, on 23 March 2019, police were conducting a foot patrol in Greenway when they observed the appellant in the company of a friend. Police recognised the appellant and arrested him.
Grounds of Appeal
By way of Notice of Appeal dated 19 September 2019, the appellant appealed against the whole of the sentence imposed on the grounds that the sentence was manifestly excessive.
The appellant sought orders that the sentence imposed in the Childrens Court be set aside and substituted with a sentence deemed appropriate by this Court.
Appellant’s Submissions
The appellant submitted, firstly, that the appellant is a disadvantaged Aboriginal youth, with a hearing disability and a significant child protection history. On the appellant’s submission, the fixed terms of imprisonment were manifestly excessive; they failed to take account of the need to promote the appellant’s rehabilitation; and the result was that they were plainly unjust.
The appellant submitted, correctly, that the principles in relation to appeals on the ground of manifest excess are settled, citing Dalton v The Queen [2015] ACTCA 48 at [18] (Dalton) and R v Nicholas [2019] ACTCA 36 at [67].
The appellant summarised their submissions as follows (Written submissions at [4]-[7]). In relation to the failure to appear, the appellant submitted that the sentence imposed was plainly unjust on three bases:
(a)Approach: The Magistrate’s approach that the starting point for this kind of offence is fulltime imprisonment is wrong (Transcript of Childrens Court Proceedings 19.13-15). The Magistrate failed to properly consider alternatives to fulltime imprisonment;
(b)Objective seriousness: The Magistrate erred in the assessment of objective seriousness, for example, by failing to consider that the fail to appear was in relation to a second mention. A sentence of two months’ imprisonment was outside the range; and
(c)Subjective features: The Magistrate failed to properly consider the principle of rehabilitation, which is of particular relevance given the individual circumstances of the appellant.
In relation to the dishonest drive offence, the appellant submitted that the sentence imposed was manifestly excessive as it failed to take into account:
(a)the principle of promoting rehabilitation; and
(b)alternatives to fulltime imprisonment or the possibility of a combination sentence.
Appellant’s Submissions – Failure to Appear
Incorrect Approach to Sentencing – the Ursino Principle
The appellant submitted that the Magistrate’s approach presumed fulltime imprisonment as a starting point for the failure to appear, quoting the following from the Magistrate in the Childrens Court proceedings (T 19.13-15):
That is why ordinarily, as the Supreme Court has formed the view, terms of imprisonment are imposed, and they are imposed often … and they are served on a fulltime basis generally.
The appellant submitted that this approach was incorrect as it is inconsistent with the requirement under s 10 of the Sentencing Act; it fails to take account of alternatives to fulltime imprisonment; and it impermissibly constrains the sentencing discretion. While noting the difficulties a busy local or Childrens Court faces, the appellant submitted that there was a misunderstanding of the operation of law, and that that misunderstanding impacted on the sentencing outcome (T 10/2/20, 4-5).
While the Magistrate did not cite specific authority, the appellant submitted that, based on experience in the ACT Childrens Court, the authority of Ursino v Read [2005] ACTSC 106 (Ursino) is often cited to support this approach. Notably, Crispin J stated at [12], in reference to the remarks of Magistrate Burns (as he then was):
As his Honour observed, offences of failing to appear in answer to a bail undertaking are prevalent, and the commission of offences of that character put the community to the expense and inconvenience of having to locate and arrest the absconding defendant and bring him or her back to the court. Furthermore, if the alleged offenders were permitted, without significant penalty, to delay trials or sentencing proceedings by failing to answer their bail, confidence in the whole process could suffer and other alleged offenders might be encouraged to adopt a similar course. Hence, in the absence of any significant mitigating factor, custodial sentences should be expected for offences of this kind.
(Emphasis added).
The appellant submitted that this authority does not permit a Magistrate to presume a starting point of fulltime imprisonment, as such an approach is contrary to statute and is wrong at law (Written submissions at [7]).
Section 10(2) of the Sentencing Act provides:
The court may, by order sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
The appellant submitted that the Magistrate’s approach of presuming fulltime imprisonment was inconsistent with this statutory requirement.
In addition to the s 10 requirement, s 133G of the Sentencing Act requires that, when sentencing young offenders, imprisonment “must be a last resort and for the shortest appropriate term” and that “the court must consider making a combination sentence”. The appellant submitted that these principles are further reflected in the s 94 of the Children and Young people Act 2008 (ACT) (Children and Young People Act).
The appellant submitted that, although the Magistrate made reference to both s 10 and s 133G in his sentencing remarks (Transcript of Childrens Court proceedings 23.23-29), the resulting sentence of two months’ fulltime imprisonment “fails to reflect these statutory requirements” (Written submissions at [27]).
The appellant further submitted that, in applying Ursino, the Magistrate impermissibly constrained his sentencing discretion.
In support of this submission, the appellant drew analogy with the reasoning of the NSW Court of Criminal Appeal in Parente v The Queen [2017] NSWCCA 284; 96 NSWLR 633 (Parente), which considered the Clark principle, developed in R v Peter Michael Clark (Unreported, NSW Court of Criminal Appeal, 15 March 1990). The Court in Parente described the Clark principle as follows:
A person who supplies drugs on more than one occasion to a degree where his or her activities can be described as ‘trafficking’ or who is substantially involved in supply, must receive a fulltime custodial sentence unless there are exceptional circumstances.
(Emphasis added).
The Court in Parente held that the Clark principle should not be applied because it had no statutory root and was incompatible with judicial discretion: at [101]-[105]. The appellant submitted that, similarly, “the Ursino principle has no statutory root and to presume a starting point of fulltime imprisonment, impermissibly constraining judicial discretion”. In this case, that has “miscarried the discretion and contributed to a manifestly excessive result”.
Objective Seriousness & Moral Culpability
The appellant submitted that imprisonment was not within range and that the Magistrate applied “a blanket approach” to the assessment of objective seriousness.
The appellant further submitted that there was no assessment of circumstances that were “central” to the assessment of objective seriousness, including the following:
(a)the failure to appear was in relation to a second mention in the Childrens Court;
(b)it was not a hearing date or trial date; and
(c)there were no witnesses waiting at court.
The explanation given for the offence by the appellant was that he was unable to obtain a lift to attend court. The Magistrate accepted the explanation, however, made the following comments (Transcript of Childrens Court proceedings at 19.1-8):
I might otherwise have accepted [that the appellant was unable to get to court], but the real difficulty in doing so is you make no attempt to come back before the court on any other occasion until you’re arrested on 23 March, two months after you’re required to come to court.
So while it’s put, I accept the basis that it’s been put, but do I accept it as a basis for what is otherwise [an] objectively serious offence, is people not coming to court, and that is that if every young person or every other offender were not to come to court then nothing would ever happen.
Later in the sentencing remarks, the Magistrate assessed the objective seriousness as “medium”, because the appellant did not present to court in the two months prior to arrest (Transcript of Childrens Court Proceedings 24.15-19).
In relation to that assessment, the appellant submitted the following (Written submissions at [53]):
This is unreasonable. In the absence of any deliberate avoidance and in the circumstances of an Aboriginal youth whose inability to get a lift to Court arose as part of his disadvantage, it is unclear how the failure of the appellant to get himself into the Court could elevate the objective seriousness to the middle of the range.
The appellant also raised the fact that the appellant not having a family member available to take him to court occurred “in the context of a significant child protection history”.
It was noted by the appellant that the sentence hearing was the first time the Magistrate became aware of the extent of the appellant’s hearing loss; this was the first time the appellant was provided with hearing loops in court. The Magistrate himself acknowledged that, until that point, the appellant had not been comprehending proceedings: “I previously read out the charges and of course the realisation ultimately dawned on me, perhaps because of the manner by which you were observing the proceedings was clearly based on the fact that you weren’t really comprehending any of it” (Transcript of Childrens Court Proceedings 16.31-34).
The appellant submitted that hearing loss and social disadvantage are relevant to the assessment of moral culpability, and that the circumstances in this case required the application of the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy). The appellant further noted that these principles are mandatory considerations on sentence, citing R v Irwin [2019] NSWCCA 133 at [3]-[5].
The appellant further submitted that the Magistrate therefore “did not assess the impact of social disadvantage and hearing loss on the appellant’s moral culpability”, which constituted a failure to take into account mandatory sentencing considerations.
Finally the appellant submitted the following (Written submissions at [61]-[62]):
The general principle expressed in Ursino should not be permitted to elevate the facts to being “objectively serious” such that fulltime imprisonment should be presumed. The sentence did not properly assess the objective seriousness of the facts of this case.
Imprisonment was not in range. The result was plainly unjust.
Rehabilitation
The appellant submitted that the sentence was “wrong” because it failed to take account of the principle of rehabilitation.
The appellant provided a summary of the evidence calling for rehabilitation, including the young person’s age, hearing disability, childhood disadvantage, childhood drug addiction, grief from the death of his grandfather in 2017, education, and limited criminal record (Written submissions at [65]).
Taking these factors into account, the appellant submitted that there was a need for “individualised application of the principle of rehabilitation” in this case.
The appellant submitted that the need to promote rehabilitation in this sentence was elevated by the overriding legislative purpose of rehabilitating young offenders provided in s 133C(1) of the Sentencing Act; the Youth Justice Principles in s 94(i) of the Children and Young People Act; s 22 of the Human Rights Act 2004 (ACT); and the common law principles emphasising the need to rehabilitate young offenders: KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22], adopted in R v BM (Unreported, Supreme Court of the ACT, 29 October 2012, Refshauge J).
The Magistrate accepted that rehabilitation has a primary role in sentencing; however, rejected its application in the context of the appellant’s criminal record (written Submissions at [69]).
The appellant relied on the following extract of the Childrens Court Proceedings (T 17.32-40):
Rehabilitation of young people is a focus for us … But that does not work for you as your criminal history, which is before the court, recognises because you have reoffended when you’ve been given the opportunity for the previous drive unlicensed when section 17 orders were put in place and he proving of the possess knife without reasonable excuse which carried the good behaviour order attaching to it.
The appellant submitted that the Magistrate was in error in diminishing the need for rehabilitation because of a limited criminal record, which had no convictions. The appellant submitted that “there is no rule that rehabilitation applies only on the ‘first occasion’”.
It was also submitted by the appellant that the fixed term of fulltime imprisonment “did not respond to the evidentiary need for rehabilitation”.
Appellant’s Submission – Dishonest Drive
The appellant submitted that the fixed term of three months of fulltime imprisonment for the dishonest drive offence was manifestly excessive because it failed to take into account the principles of rehabilitation and the possibility of alternatives to fulltime imprisonment or a combination sentence.
The appellant accepted that the dishonest drive was more serious than the fail to appear offence; however, it was submitted that, in the circumstances, “alternatives to imprisonment were not only in range but required to give effect to the principle of rehabilitation and imprisonment as a last resort”.
The appellant reiterated the submissions in relation to the rehabilitative needs of a disadvantaged Aboriginal young person, his limited criminal record, and the extended period of time spent in custody on remand. The appellant further noted the pre-sentence report (PSR) recommendation that the appellant could be supported through supervision.
Finally, the appellant submitted that, taking into account the principle of imprisonment as a last resort, “alternatives involving an element of supervision were the only available result on sentence” (Written Submissions at [83]).
The appellant concluded that sentencing the appellant to a fixed term of imprisonment was therefore plainly unjust and manifestly excessive.
Respondent’s Submissions
The respondent agreed that the principles applicable to manifest excess appeals were summarised in Dalton at [18]. The respondent further referred to Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [22], Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31], and DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [10] in relation to the principles governing manifest excess and the importance of having regard to the context of the maximum penalty.
The respondent submitted that “to assert that a sentence is manifestly excessive calls into question what is a quintessentially discretionary decision, the preservation of which is of vital importance to the administration of criminal justice”, citing Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15].
The respondent noted that, in Bugmy at [22], the High Court emphasised that the assessment of objective seriousness is a discretionary exercise and a matter for the sentencing judge.
Respondent’s Submissions – Failure to Appear
The respondent submitted that, contrary to the appellant’s submission, the Magistrate did not presume a starting point of fulltime imprisonment. The respondent noted that the reference to Ursino was simply a comment by the Magistrate that terms of imprisonment are ordinarily imposed for that offence (Transcript of Childrens Court Proceedings, 19.13-15). It was also submitted that the remark was a brief comment for the purpose of emphasising to KN the seriousness of the offence (T 10/2/20, 17.44-18.4)
The respondent further submitted that the Magistrate “clearly” noted the relevance of ss 10 and 133G of the Sentencing Act (Transcript of Childrens Court Proceedings 23.23-29).
In relation to the appellant’s submission that Ursino impermissibly constrains the sentencing discretion, it was submitted that the analogy drawn between Ursino and Parente is flawed. The respondent further submitted that, regardless of the view taken in relation to manifest excess, there is no need to consider whether there is a principle in Ursino that was misapplied by the sentencing Magistrate. Counsel for the respondent stated: “finding error in that is reading too far into the sentencing Magistrate’s reasons” (T 10/2/20, 19.1-4).
The respondent submitted that, at [12], Ursino “makes general comment on the seriousness of the offence of failing to appear, and notes matters relevant to the assessment of that general seriousness, such as the impact on the community and the need for general deterrence” (Written Submissions at [13]). In relation to disposition, Ursino states: “absent any significant mitigating factor, custodial sentences should be expected for offences of this kind”: at [12].
The respondent submitted that the statement in Ursino “is not directly analogous to ‘the Clark principle’ considered in Parente” as Clark “was prescriptive as to the result”. The principle considered in Parente was that offenders “must receive a fulltime custodial sentence unless there are exceptional circumstances”: Parente at [45] (emphasis added). The respondent submitted that the full court in Parente proceeded to summarise the body of case law following the Clark principle, as well as the developed case law on the ‘test’ that it created, citing Parente at [76]-[81]).
The respondent submitted that the statement in Ursino “does not prescribe to the decision maker a sentence they must apply, rather is an observation as to the seriousness of the offence, and sentences that should be expected.”
In respect of the Magistrate’s compliance with the Youth Justice Principles under s 94 of the Children and Young People Act, it was submitted that a sentence immediately releasing a young person from custody would be compliant with that section (Written Submissions at [18]).
Objective Seriousness
In relation to objective seriousness, the respondent conceded that the Magistrate “did not appear to consider that the court date was a mention, nor did either party submit on it”.
The respondent noted that the Magistrate considered the fact that the young person was “required to be arrested to secure his attendance at court”, and that the offence was found to fall at the mid-range.
Subjective Features
It was submitted by the respondent that the young person has “compelling subjective circumstances” and that the “Court may be satisfied that, in light of these subjective circumstances, the sentence imposed for the charge of failing to appear is manifestly excessive”.
The respondent submitted that, if the Court is satisfied that the sentence was manifestly excessive, the Court should resentence the appellant. In re-sentencing the appellant, the respondent submitted that the following factors would be relevant:
(a)the objective seriousness of the offence, noting that the fail to appear was for a mention and that a warrant was required to bring the appellant to court;
(b)the appellant’s subjective circumstances, as set out in the PSR; and
(c)the application of the Bugmy principles.
Application of Bugmy Principles
The respondent submitted that the Magistrate did not refer to the application of the Bugmy principles, and nor did either party clearly state during the proceedings that those principles should be considered (Written Submissions at [24]).
The respondent accepted that applying the Bugmy principles is not a matter of discretion, as confirmed in Irwin. The respondent submitted, however, that Irwin dealt with a decision in which the sentencing judge, having been asked to consider the Bugmy principles, declined to do so. It was submitted that “the same complaint cannot be raised in circumstances where neither party sought the application of Bugmy principles”.
The respondent further submitted that, in spite of the failure to explicitly acknowledge the relevance of Bugmy, the sentencing Magistrate “did have regard to the appellant’s history of childhood deprivation” as set out in the PSR.
Respondent’s Submissions – Dishonest Drive
Rehabilitation
The respondent submitted that the Magistrate had regard to the principle of rehabilitation throughout his reasons. It was submitted that this was most clearly the case when the sentences on all charges are considered together, rather than discreetly (Written Submissions at [28]).
In support of this submission, the respondent noted, for example, that, in relation to the charge of driving unlicensed, the Magistrate declined to impose a conviction after acknowledging that the mandatory disqualification period following a conviction would negatively impact on the appellant’s ability to engage with education and employment (Transcript of Childrens Court Proceedings 24.29-34).
The respondent cited DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15] for the principle that ex tempore remarks made in a busy magistrates court should not be “picked over”. Instead, an appeal court is concerned with the “substance of what the magistrate said”: Achuthan v Coates (1986) 6 NSWLR 472 at 479, referred to in Barron v Laverty [2019] ACTSC 198; 346 FLR 442.
The respondent submitted that it was unnecessary for the Magistrate to refer “explicitly to each charge to which he was applying the consideration of rehabilitation when it was clearly present in his reasons”.
In relation to the decision to decline to impose a supervision component to the sentence for the dishonest drive, the Magistrate referred to a good behaviour order already in place for the possess knife charge as “running till 2020” (Transcript of Childrens Court proceedings, 25.16). The respondent submitted that this decision was made in error, as the good behaviour order had already expired at the time of sentence.
Finally, in relation to rehabilitation, the respondent submitted that “the appellant’s assertion that a sentence of imprisonment is automatically a sentence that does not reflect the principle of rehabilitation is unfounded”. The respondent noted that the PSR details the appellant’s re-engagement with education and services while remanded at Bimberi Youth Justice Centre.
Alternatives to Fulltime Imprisonment
The respondent submitted that the sentencing Magistrate made clear reference to ss 10 and 133G of the Sentencing Act, and that this is sufficient to establish that the Magistrate turned his mind to those matters (Transcript of Childrens Court proceedings 23.23-29).
The respondent submitted that, in circumstances where the appellant had already spent over five months in custody, the imposition of a suspended or combination sentence could have been overly onerous.
Finally, the respondent submitted that a sentence of three months of fulltime imprisonment for a mid-range offence of dishonestly driving a motor vehicle was “within the range of appropriate outcomes for such an offence”.
Consideration
Manifest Excess Principles
The principles in relation to appeals of this nature are usefully summarised in Dalton at [18]:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
· The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
To justify appellate intervention, it is not sufficient that an appeal court would have imposed a different sentence: Balthazaar v The Queen [2012] ACTCA 26 at [61]. Intervention is only warranted where the difference is such that, in all the circumstances, the appellate court concludes that there must have been a misapplication of principle even though where and how is not apparent from the statement of reasons: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [59] (Hili), Dinsdale and Barbaro.
Ursino
In Parente, a five-judge bench of the NSW Criminal Court of Appeal held that the Clark principle should no longer be applied: at [106]. The Court’s reasoning relied on general sentencing principles in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75]-[77], Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27], Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [49] and Hili at [36]-[38].
The Court at [105] of Parente stated that Simpson JA was correct in Robertson v The Queen [2017] NSWCCA 205 at [89] to refer to the Clark principle as one that “crosses the boundary between identifying the ‘unifying principles’ to be applied in any sentencing decision and imposing an unlegislated judicially created constraint on the sentencing discretion”.
In coming to their conclusion, the Court emphasised that that Clark principle was “prescriptive” and of “universal application” subject only to the existence of exceptional circumstances: at [101].
In this case, it cannot be said that the Magistrate fell into error in making a veiled reference to Ursino by way of emphasising to the young person that the offence of failing to appear was a serious offence. The statement by the Magistrate must be seen in that context, and in the context of a busy Childrens Court that “has a heavy workload and operates under considerable pressure” and where “decisions are usually delivered ex tempore”: Bethke v Phelan [2016] ACTSC 328 at [33]. See also Barron v Laverty [2019] ACTSC 198 and DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402.
The statement in Ursino is not directly analogous to the properly much-criticised prescriptive phrase in Clark. Nevertheless, the phrase in Ursino should certainly not be interpreted in a manner that is inimical to, and inconsistent with, the individual sentencing discretion and instinctive synthesis. This must be so in respect of both young persons and adults. In the case of a young person, rehabilitation, perforce, must loom large in the sentencing equation, in accordance with both case law and statute.
Principles Relevant in the Sentencing of Young Offenders
In sentencing a young offender, the relevant legislation includes the Sentencing Act, the Children and Young People Act and the Human Rights Act (2004) ACT.
Relevant sections of the Sentencing Act include:
133CYoung offenders – purposes of sentencing
(1) Despite section 7(2), in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in section 7(1).
(2) Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice.
133DYoung offenders – sentencing – additional relevant considerations
(1)In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters:
a.the young offender’s culpability for the offence having regard to his or her maturity;
b.the young offender’s state of development;
c.the past and present family circumstances of the young offender.
(2)This section applies in addition to section 33 (Sentencing – relevant consideration).
…
133GYoung offenders – sentences of imprisonment
(1)This section applies if a court is sentencing a young offender to imprisonment under section 10.
(2)The sentence of imprisonment must be a last resort and for the shortest appropriate term.
(3)The court must consider making a combination sentence consisting of –
a.the sentence of imprisonment; and
b.a good behaviour order with a supervision condition.
(4)The court must not sentence the young offender to imprisonment for life.
(Emphasis added).
Section 94 of the Children & Young People Act is also relevant and provides as follows:
94Youth justice principles
(1)For the criminal matters chapters, in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that is relevant (the youth justice principles):
a.if a child or young person does something that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable;
b.a child or young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways;
c.a child or young person should be consulted about, and be given the opportunity to take part in making, decisions that affect the child or young person, to the maximum extent possible taking into consideration their age, maturity and developmental capacity;
d.if practicable and appropriate, decisions about an Aboriginal or Torres Strait Islander child or young person should be made in a way that involves their community;
e.if a child or young person is charged with an offence, he or she should have prompt access to legal assistance, and any legal proceeding relating to the offence should begin as soon as possible;
f.a child or young person may only be detained in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the minimum time necessary;
g.children, young people and other young offenders should be dealt with in the criminal law system in in a way consistent with their age, maturity and developmental capacity and have at least the same rights and protection before the law as would adults in similar circumstances;
h.on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community;
i.it is a high priority that intervention with young offenders must promote their rehabilitation, and must be balanced with the rights of any victim of the young offender’s offence and the interests of the community.
(2)The decision-maker may also consider any other relevant matter.
(3)The youth justice principles are intended to be interpreted consistently with relevant human rights instruments and jurisprudence.
(4)A reference in subsection (1) to a child or young person includes a reference to a person who is at least 18 years old but is being dealt with in relation to an offence committed, or allege to have been committed, when he or she was under 18 years old.
(Emphasis added).
Relevantly, s 22 of the Human Rights Act 2004 (ACT) provides:
22Rights in criminal proceedings
…
(3)A child who is charged with a criminal offence has the right to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation.
(Emphasis added).
There are a number of common law principles relevant to the sentencing of youth offenders. These principles are helpfully summarised by McClellan CJ in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[23], and adopted in this jurisdiction in R v BM (Supreme Court of the ACT, unreported, 29 October 2012, Refshauge J):
22 The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].
23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).
(Emphasis added).
Conclusion on Manifest Excess
Taking into account the youth sentencing principles set out above, and the facts of this case addressed by the appellant, I have come to the conclusion that the sentence was manifestly excessive.
In this case, appellate intervention is warranted. Imprisonment must be a last resort: s 133G Sentencing Act. Possible alternatives to imprisonment were not properly considered; they should have been.
By its very nature, manifest excess or manifest inadequacy is a conclusion that does not admit of lengthy exposition: Hili at [59].
Taking into account all the relevant factors, both objective and subjective, that must be considered in the process of instinctive synthesis, it cannot be said that a sentence of imprisonment was the only alternative for the young person in this case. A sentence of imprisonment was, on all the facts, and taking into account the relevant principles, manifestly excessive in the case of this young offender.
This ground is upheld with respect to both the failure to appear and the dishonest drive.
Re-Sentence
Submissions on Re-Sentence
In relation to the failure to appear, the appellant submitted that the offence should be found proven with no further penalty. In oral submissions, the appellant supported this with reference to the factors in s 17 of the Sentencing Act. In relation to the dishonest drive offence, the appellant submitted that a conviction and a short good behaviour order would be appropriate.
The appellant submitted that recent High Court cases “reinvigorate the importance of the broad sentencing discretion” (Written Submissions on Re-Sentence at [3], citing R v Wyper [2017] ACTCA 59 at [83] and DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41 at [7]).
In relation to objective seriousness, the appellant submitted that the failure to appear was in relation to a second mention in the Childrens Court; it was not a sentence date nor was it a trial date; there was no family support for transport; and it was not deliberate. The respondent submitted that the only additional factor was the fact a warrant was required to bring the young person to Court. The respondent largely accepted the submissions of the appellant in respect of re-sentence, noting that “whilst failing to appear is a serious offence, this is an example of a low end failing to appear.”
In relation to the objective seriousness of the dishonest drive offence, it was agreed between parties that the offence fell within the mid-range.
In relation to moral culpability for the offences, the appellant pointed to the fact that the appellant had a hearing disability and had not previously understood proceedings; had a significant child protection history; experienced early exposure to drugs; and received limited family support in getting to Court. The respondent correctly accepted these factors and noted the application of Bugmy in relation to childhood disadvantage.
The appellant submitted that, in relation to rehabilitation, the young person requires supervision given “his fragile progress in education, insight into drugs, and negative friendships”. The appellant submitted that this could be achieved by a good behaviour bond for the dishonest drive offence. The respondent submitted that, in relation to the dishonest drive offence, the s 10 threshold had been crossed (T 18/6/20, 11.31-33).
Both parties raised the issue of delay, with the appellant submitting that it was a relevant factor on re-sentence, and the respondent noting that it was not delay on the part of the police or prosecution (T 18/6/20, 11-12).
The respondent, in written submissions, noted the importance of promoting rehabilitation: s 133C(1) Sentencing Act and s 94(i) Children and Young People Act. In relation to the failure to appear, the respondent submitted that general deterrence, denunciation, and punishment were also of particular relevance. In relation to the dishonest drive offence, the respondent submitted that the recognition of harm to the victim, protection of the community, and punishment were also relevant sentencing principles.
The young person entered pleas of guilty to both offences. In relation to the failure to appear, the plea was entered at the earliest opportunity. In relation to the dishonest drive offence, the plea was entered after previously entering a plea of not guilty, and after a brief had already been prepared. It was accepted by the respondent that a discount should apply in relation to both pleas of guilty.
Ultimately, in oral submissions, the respondent stated, with reference to the imposition of a s 17 order for the fail to appear, “I don't cavil with most of what my friend has said in addressing those criteria” (T 18/6/20, 17.19-20). The respondent submitted that an option would be to sentence the offender to the rising of the Court in respect of the dishonest drive offence (T 18/6/20, 12.1-7).
Consideration
There are a number of matters relevant to the young person that should be taken into account on re-sentence. These include the following:
(a)Age: The appellant was 14 years of age at the time of the dishonest drive offence; 15 years of age at the time of the fail to appear offence; and 16 years of age at the time of sentence.
(b)Hearing disability: The appellant has “significant and long standing chronic conductive hearing loss” and he stopped wearing hearing aids due to bullying (PSR, p. 7). No hearing aids were provided in the Childrens Court until the sentence hearing, including on the occasion the matter was adjourned prior to the failure to appear.
(c)Childhood disadvantage: The appellant had experienced a significant child protection history, including reports of neglect, exposure to parental substance abuse, and exposure to family violence (PSR, p. 4).
(d)Childhood drug addiction: The appellant was exposed to drugs at an early age, commencing use of cannabis at 11 years of age and use of alcohol at 12 years of age (PSR, p. 7).
(e)Grief: The PSR indicated that the appellant continues to experience unresolved grief from the death of his grandfather in 2017.
(f)Education: The appellant has “struggled at school” and, at the time of sentence, was performing at the academic level of a 10-year-old. In custody, the appellant started the Year 10 certificate and was “highly praised for his art and woodwork” (PSR, p. 6). In this respect, his counsel submitted that “the one guiding light was the totem pole last year that he got celebrated for, and that was a cultural activity and it was woodwork” (T 18/6/20, 5.19-20).
(g)Criminal record: At the time of sentence, the appellant’s criminal record was comprised of two non-conviction orders imposed for unlicensed driving and possessing a knife. The appellant was in breach of an eight-month good behaviour order imposed for possession of the knife. It was his first failure to appear.
In February 2020, I adjourned this matter for the young person to have the opportunity for rehabilitation and to further prove himself in that regard. In June, his counsel stated: “I’m here to announce that there has been no more trouble. There’s no more offences” (T 18/6/20, 3.39-40). On that occasion, counsel for the young offender tendered two letters that are also relevant on re-sentence:
(a)A letter dated 25 November 2019 from OzChild ACT outlining the young person’s family’s participation in the Functional Family Therapy – Child Welfare program. The letter states that the family has successfully engaged in the program, which aims to assist families facing challenging situations by improving family dynamics, communications and relationships.
(b)A letter dated 17 June 2020 from Malcolm Towney, a Family Support Worker at Gugan Gulwan Youth Aboriginal Corporation. The letter outlines the impact of intergenerational trauma on the young person and states that Gugan Gulwan will work with the young person to mitigate the impacts of this trauma and to provide a supportive, culturally appropriate place to connect the young person and his family to healing factors. In oral submissions, counsel for the young person stated that the young person “found a card … outside the front of the house and it had the name Malcolm Towney and a number. He [the young person] called it” and, in this way, the young person began to engage with Gugan Galwan (T 18/6/20, 4.33-36). Counsel for the young person stated that “school didn’t work” but that Mr Towney has contacts and is assisting the young person in finding work (T 18/6/20, 5.1-30).
Taking all these factors into account, along with the additional evidence on re-sentence referred to above, it is appropriate to deal with the failure to appear by way of s 17 and find the offence proven with no further action taken.
It is further appropriate in all of the circumstances to deal with the dishonest drive offence by way of conviction and good behaviour order.
Orders
The appeal is allowed.
The convictions and sentences recorded by the Magistrate in respect of charges CH19/253 and CH18/1120 are set aside.
In respect of charge CH19/253, failure to appear, I find the offence proven and take no further action.
In respect of charge CH19/1120, drive motor vehicle without consent, I record a conviction. The appellant is to enter into a 12-month good behaviour order with the core conditions as prescribed in s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT).
| I certify that the preceding [115] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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Amendments
12 August 2020 Insert heading “Consideration” Between [107] and [108]
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