kN v Wilson
[2016] ACTSC 313
•20 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | KN v Wilson |
Citation: | [2016] ACTSC 313 |
Hearing Date: | 20 October 2016 |
DecisionDate: | 20 October 2016 |
Before: | Burns J |
Decision: | See [10] – [13] |
Catchwords: | CRIMINAL LAW – Particular Offences – property offences – aggravated burglary and theft – damage to property– breach of Good Behaviour Order. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Childrens Court – Appeal from Magistrates Court – appeal against sentence – manifestly excessive – application of sentencing principles to juveniles – appeal upheld in part. |
Legislation Cited: | Children and Young People Act 2008 (ACT) Crimes (Sentencing) Act 2005 (ACT) |
Cases Cited: | R v Buckman (1988) 47 SASR 303 Taylor v Bowden [2009] ACTSC 13 |
Parties: | KN (Appellant) The Crown (Respondent) |
Representation: | Counsel Mr J Stewart (Appellant) Mr D Sahu Khan (Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | SCA 51 of 2016 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 28 June 2016 Case Title: Wilson v KN Court File Numbers: CH1899/09; CH 571/10; CC285/15 |
BURNS J:
On 28 June 2016, the appellant was convicted and sentenced by a Magistrate as follows:
(a)on Magistrates Court matter 23 of 2015 (aggravated burglary – intention to damage), a sentence of two months imprisonment to be suspended and the appellant released immediately with a Good Behaviour Order for a period of 24 months with conditions that I will not repeat here;
(b)on Magistrates Court matter 285 of 2015 (damage to property over $1000.00 in value), a sentence of 6 months imprisonment to be suspended and the appellant released immediately with a Good Behaviour Order for a period of 24 months with conditions that I will not repeat here; and a reparation order in the amount of $13,092.12 to be paid within 24 months.
(c)on Childrens Court matter 1899 of 2009 (aggravated burglary – intention to steal), cancellation of Good Behaviour Order and a sentence of 181 days imprisonment; and
(d)on Childrens Court matter 571 of 2010 (aggravated robbery), cancellation of Good Behaviour Order and a sentence of 12 months imprisonment with a 6 month non-parole period,
the appellant having been found on 28 June 2016 to have breached Good Behaviour Orders imposed by the Childrens Court on 28 November 2003 in relation to Childrens Court matters 1899 of 2009 and 571 of 2010.
By an Amended Notice of Appeal lodged on 4 August 2016 the appellant appealed against the sentences imposed for Childrens Court matter 1899 of 2009, Childrens Court matter 571 of 2010 and the amount of the reparation order attached to Magistrates Court matter 285 of 2015. The grounds of the appeal were:
(a)the sentences are manifestly harsh and excessive in the circumstances; and
(b)the learned Magistrate did not properly apply the sentencing principles set out in the Crimes (Sentencing) Act 2005 (ACT) and Children and Young People Act 2008 (ACT), particularly with respect to the promotion of rehabilitation and the principle of individualised justice, and recourse to imprisonment as a measure of last resort.
I have considered the facts as they relate to each of the above offences, however, for present purposes do not consider it necessary to recount those here.
Consideration
In regards to the Childrens Court matters, I am satisfied that the sentences imposed by the Magistrate should be set aside for a number of reasons. Firstly, the learned Magistrate did not consider the age of the offences that she was dealing with at the time that she imposed a sentence. They were, in fact, quite old offences at that time. She also did not refer to the necessity to sentence the appellant in accordance with sentencing principles relating to juveniles.
Her Honour’s sentencing comments which are found on page 19 of the transcript of the proceedings on 28 June 2016 indicate that her Honour relied upon two decisions in determining to impose the balance of the sentences that had previously been suspended. Those decisions were a decision of Justice Gray in this Court in Taylor v Bowden [2009] ACTSC 13 (Taylor v Bowden) and a decision quoted by his Honour in Taylor v Bowden, being R v Buckman (1988) 47 SASR 303, which is a decision of the South Australian Supreme Court in 1988. Both of those, as I am told, involved sentencing with respect to adults.
In addition, her Honour imposed a non-parole period with respect to the sentence of imprisonment that she imposed upon the appellant for Childrens Court matter number 571 of 2010. This was not an option that was available to her under the principles governing the sentencing of juveniles. Her Honour was obliged to consider making a suspended sentence order, that is, to make an early release order based upon suspension of part of the sentence.
It may well be as Mr Sahu Khan, on behalf of the respondent, submitted that her Honour had intended that the appellant should serve only 6 months of the 12 month sentence that she imposed but clearly the method adopted by her Honour was incorrect. The fact that she adopted a method reserved for adult offences or offenders, gives me grave concern about whether her Honour had really turned her mind to the need for her to sentence in accordance with the principles and provisions governing the sentencing of juveniles. For that reason, I will set aside the sentences imposed by the Magistrate and re-sentence the appellant.
With respect to the reparation order made by the Magistrate it appears that her Honour intended to make that reparation order as a condition of the Good Behaviour Order attendant upon the suspension of the sentence imposed on Magistrates Court matter number 285 of 2015. The consequence of making the reparation order a condition of that Good Behaviour Order is that a failure on the part of the appellant to make reparation as required, placed him in jeopardy of having to serve the sentence of imprisonment which had been suspended by her Honour.
The evidence before her Honour clearly established that there was little, if any, prospect of the appellant being able to pay the sum of reparation within the period of two years allowed by the Magistrate. In my opinion it was inappropriate of the Magistrate to impose a condition of a Good Behaviour Order attendant upon a suspended sentence of imprisonment which the appellant could not meet.
Orders
With respect to Childrens Court matter number 1899 of 2009, the Magistrate cancelled the Good Behaviour Order which had previously been imposed and sentenced the appellant to imprisonment for 181 days to start from 28 June 2016 and expire on 25 December 2016. I will allow the appeal and the sentence will be set aside. The appellant will be re-sentenced to the same period of imprisonment, being 181 days from 28 June 2016 until 25 December 2016. The period commencing on 28 June 2016 and expiring on 19 October 2016 will be served by way of full-time imprisonment. The balance will be suspended.
With respect to Childrens Court matter number 571 of 2010, again the Magistrate cancelled the Good Behaviour Order and imposed the balance of the sentence of 12 months commencing on 28 June 2016 and expiring on 27 June 2016 and also set a six month non-parole period. I will allow the appeal and the sentence will be set aside. The sentence of 12 months imprisonment will be reimposed commencing on the 28 June 2016. The period from 28 June 2016 until 19 October 2016 will be served by way of full-time imprisonment with the balance suspended.
With respect to each of those matters (1899 of 2019 and 571 of 2010), there will be a Good Behaviour Order for a period of 18 months from today with a condition that the appellant is to accept the supervision of ACT Youth Justice or its delegate and is to obey all reasonable directions of each such person.
With respect to the Magistrates Court matter 285 of 2015, I will allow the appeal with respect to the sentence imposed to the extent that the condition requiring reparation to be made within a period of two years will be deleted. I will re-sentence to the extent that I will make a reparation order under Chapter 7 of the Crime Sentencing Act 2005 (ACT) simply requiring the offender to make reparation to the ACT in the sum of $13,092.12. That means that the appellant is no longer in jeopardy of being in breach of the Good Behaviour Order of the suspended sentence if he fails to make reparation but it also still leaves open the possibility of the Territory recovering that sum if at some point in the future he is in a financial position to pay it.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 31 October 2016 |
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