L v Goodwin - [2013] TASSC 29

[2013] TASSC 29

COURT: SUPREME COURT OF TASMANIA

CITATION: L v Goodwin [2013] TASSC 29

PARTIES:  L, K J
  v
  GOODWIN, Kelly
  McCONNON, Alicia

FILE NO:  278/2013
DELIVERED ON:  27 June 2013
DELIVERED AT:  Hobart
HEARING DATE:  27 June 2013
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Family Law and Child Welfare – Child welfare under State legislation – Crimes and offences by children – Other matters – Backdating of sentence of detention – Time spent in custody before determination of charges.

Youth Justice Act 1997 (Tas) , ss83(1), 89(1).
Aust Dig Family Law and Child Welfare [605]

REPRESENTATION:

Counsel:
           Applicant:  T Smith
           Respondent:  S Nicholson
Solicitors:
           Applicant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASSC 29
Number of paragraphs: 15

Serial No 29/2013
File No 278/2013

K J L v KELLIE GOODWIN and ALICIA McCONNON

REASONS FOR JUDGMENT BLOW CJ

(DELIVERED ORALLY) 27 June 2013

This is a motion for the review of a sentencing order made by a magistrate in the Youth Justice Division of the Magistrates Court. The learned magistrate, Mr Daly, decided to sentence the applicant to three months' detention. The applicant had spent some time in custody in relation to the charges upon which he was sentenced. The learned magistrate initially, on 12 March 2013, sentenced the applicant to three months' detention and ordered that that period of detention was to commence on 27 February 2013. The learned magistrate was under the impression that the applicant had spent 14 days in custody in relation to the charges. He backdated his order accordingly.

He was wrong about the period that the applicant had spent in custody. In fact, in relation to these charges, the applicant was remanded in custody on 28 December, bailed on 31 December, remanded in custody again on 10 January, and bailed again on 19 February. In computing the number of days that the applicant spent in custody, the proper course is to count each day that he went in, and each day that he came out, as whole days. One does not count the number of sleeps. One counts the number of days when the applicant was in custody for part or all of the day. Using that methodology, the applicant had spent 45 days in custody, not 14.

It appears that somebody at the Ashley Youth Detention Centre calculated that the applicant had spent 42 days in custody, and sent word to the magistrate that he had made a mistake. The learned magistrate relisted the matter, and it came before him on 13 March, the day after he had initially imposed sentence. The learned magistrate had the power to vary a sentence that was based on an error of fact under s100A of the Youth Justice Act 1997 ("the Act"). He exercised that power. He said to the applicant:

"So what I'm going to do is to revoke the sentence that I made yesterday, give you the same amount of time but not backdate it to 27…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading L v Goodwin

Details

AGLC: L v Goodwin [2013] TASSC 29
Case: [2013] TASSC 29
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the matter of L v Goodwin, the court was tasked with considering the welfare of a child under the provisions of state legislation, specifically addressing the issue of a child committing offences and the appropriateness of a detention sentence. The case involved a child, L, who had been charged with various offences and subsequently detained. The primary concern was whether the sentence of detention could be backdated to account for the time the child had already spent in custody prior to the determination of the charges.

The court needed to decide whether it was appropriate to backdate the sentence to reflect the period during which the child had been held in custody. Additionally, the court had to weigh the welfare of the child against the need to address the child's offending behaviour. The central legal issue was whether the statutory provisions allowed for the backdating of the detention sentence and, if so, whether such a practice was in the best interests of the child.

The court held that the statutory provisions did permit the backdating of a detention sentence to include the time spent in custody before the determination of the charges. The court emphasised the importance of considering the welfare of the child as the paramount concern. It concluded that, in this instance, backdating the sentence was in the best interests of the child, as it provided a more coherent and just outcome by accounting for the time already served. The court found that the welfare of the child was best served by ensuring that the sentence reflected the full period of detention, including the pre-determination custody time. The court also highlighted the need for such decisions to be made on a case-by-case basis, taking into account the specific circumstances and welfare of each child.

Orders