LA v Kennedy - [2007] NTSC 56

LA v Kennedy [2007] NTSC 56
PARTIES:LA

v
KENNEDY, GAVIN DEAN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:No JA 27/2007 (20531018)
DELIVERED:  6 November 2007
HEARING DATES:  29 October 2007
JUDGMENT OF:  MILDREN J
APPEAL FROM:  Youth Justice Court
CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sentence – whether conviction should be recorded – juvenile offender – nature of the offence – no prior convictions – appellant undergoing apprenticeship – consequence of recording conviction – Youth Justice Act – appeal allowed
Statutes:
Criminal Records (Spent Convictions) Act, s 6(2), s 7(1), s 7(3)
Sentencing Act, s 4(1), s 7(a), s 8
Youth Justice Act 2005, s 11, s 12, s 136, s 144, s 223, s 223(2), s 3(d), s 3(e), s 4, s 4(m), s 83, s 83(1), s 83(1)(a), s 83(1)(b)
References:
Fox and Freiberg, Sentencing, State and Federal Law in Victoria, 2^nd ed, Oxford University Press, Melbourne, 1999
Citations:
Referred to:
Carcuro v Norris [2007] NTSC 18
Cook v Nash & McGarvie [2007] NTSC 14
Curtis v Sidik & Najar (1999) 9 NTLR 115
Forrester v Dredge (unreported, Supreme Court of the Northern Territory, 19 February 1997)
Girrabul v The Queen [2003] NTSC 101
Grego v Setter (unreported, Supreme Court of the Northern Territory, 19 December 1997)
LPR v O’Brien (unreported, Supreme Court of the Northern Territory, 15 March 1996)
P (a Minor) v Hill (1992) 110 FLR 42
Parmbuk v Garner [1999] NTSC 108
R v Briese, ex parte Attorney-General (1998) 1 Qd R 487
R v Williams (1992) 109 FLR 1
Simmonds v Hill (1986) 38 NTR 31
REPRESENTATION:
Counsel:
Appellant:S Barlow
Respondent:  K Sharafeldin
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
LA v Kennedy [2007] NTSC 56

No. No JA 27/2007 (20531018)
BETWEEN:

LA

Appellant

AND:

GAVIN DEAN KENNEDY

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 6 November 2007)

This is an appeal from the Youth Justice Court pursuant to s 144 of the Youth Justice Act 2005 (the Act).
The grounds of the appeal (as amended) are as follows:
“1.That the learned Magistrate failed to properly consider whether or not to record a conviction.
2.That the learned Magistrate erred by failing to properly consider the plea of guilty.”
At the conclusion of the hearing, I allowed the appeal, set aside the sentencing order of the learned Magistrate and resentenced the appellant by finding the charge proved and, without proceeding to a conviction, discharged the appellant without penalty. I said that I would later provide reasons for my decision. These are those reasons.
Background facts
On 6 June 2007 the appellant, who was then aged 16, pleaded guilty to two counts of stealing. The first count (file 20503141) involved stealing a wallet worth $50 and $370 in notes kept in…

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 LA v Kennedy

Details

AGLC: LA v Kennedy [2007] NTSC 56
Case: [2007] NTSC 56
Decision Date: 6 November 2007

CaseChat Overview and Summary

The appeal in LA v Kennedy was brought by the appellant against a conviction and sentence imposed by the learned Magistrate. The appellant, who was a juvenile offender, had pleaded guilty to two counts of stealing. The primary legal issue before the court was whether the learned Magistrate had correctly exercised the discretion to record a conviction, considering the appellant's age, lack of prior convictions, and the nature of the offences. The court also had to consider the implications of the Youth Justice Act 2005 and its guiding principles, especially in light of the appellant's current circumstances, including her apprenticeship and lack of recent offending.

The court found that the learned Magistrate had failed to properly consider the appropriate discretion in deciding whether to record a conviction. The Youth Justice Act provides for a broad discretion in sentencing juvenile offenders, including the option to not record a conviction even when a penalty is imposed. The court emphasised the importance of considering the objects and principles of the Act, particularly ensuring that the youth is made aware of their obligations under the law, given appropriate treatment, and provided opportunities for rehabilitation and reintegration into the community. Given the appellant's age, the relatively minor nature of the offences, and the absence of any recent offending, the court concluded that the Magistrate had not adequately exercised the discretion afforded by the Act.

Accordingly, the court allowed the appeal, set aside the sentencing order, and resentenced the appellant by finding the charge proved but discharging her without penalty. The court highlighted the importance of considering the specific circumstances of juvenile offenders, including their age, maturity, and potential for rehabilitation, when deciding whether to record a conviction. The court's decision underscores the need for sentencing authorities to carefully balance the principles of the Youth Justice Act with the individual circumstances of the offender.

The final orders of the court were that the appeal was allowed, the sentencing order of the learned Magistrate was set aside, and the appellant was discharged without penalty, with no conviction recorded.

Orders

Orders of the court

1. Appeal allowed.

Background

Background to the litigation

At the conclusion of the hearing, I allowed the appeal, set aside the sentencing order of the learned Magistrate and resentenced the appellant by finding the charge proved and, without proceeding to a conviction, discharged the appellant without penalty. I said that I would later provide reasons for my decision. These are those reasons.Background facts On 6 June 2007 the appellant, who was then aged 16, pleaded guilty to two counts of stealing. The first count (file 20503141) involved stealing a wallet worth $50 and $370 in notes kept in the wallet from a taxi driver just after midnight on 8 March 2003. The appellant at that time was 11 years of age. There were six other offenders in the taxi at the time. The appellant paid the taxi driver $20 from his own money for the fare. The rest of the money was divided up amongst the offenders. The appellant and three of her co-offenders were apprehended. An amount of $170 was returned to the victim. On 12 June 2003 the appellant participated in an electronic record of interview and made full admissions. The appellant had no prior record. The learned Magistrate found the facts proved but declined to record a conviction or impose any further penalty. There is no appeal from that matter. The second count (file 20531018) related to shoplifting from the Target store at Palmerston on 20 May 2005. At the time she was aged 14 years and 3 weeks. She was in the company of a friend who had a four year old child with her. The friend began stealing items from the store and placing them on the child, so the appellant followed suit. The appellant stole a scrunchee valued at $5.57 and two watches valued at $24.99 each, making the total value of the items stolen $55.55. The appellant was stopped by store security outside the store and, when questioned, returned the stolen property. She later participated in an electronically recorded interview with the police and made full admissions. At the time of this offending, the appellant had not previously been dealt with by the Juvenile Court. On 28 June 2005 the appellant was found guilty of similar offences by the Juvenile Court and was dealt with by a no conviction bond and placed on a bond to be of good behaviour for 12 months. So far as the second count was concerned, no charge was laid and the appellant was dealt with by way of diversion. At the time of the offending the relevant Act dealing with juvenile offenders was the Juvenile Justice Act. That Act remained in force until it was repealed and replaced by the Youth Justice Act 2005, which came into force on 1 August 2006. At the time when the appellant was diverted, there were no provisions in the Juvenile Justice Act dealing with diversion and it seems that diversion was an act of the executive not supported by legislation. Diversion is now dealt with in Part 3 of the Act. However, s 223 of the Act provides that the Act applies in relation to offences committed by a youth before the commencement date, but “a youth is not liable to a greater penalty in respect of an offence committed before the commencement date than he or she would be if the repealed Act was still in force” (s 223(2)).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the prosecution submitted that a conviction with no further penalty was appropriate “due to the fact that the [appellant] had been dealt with in relation to similar offending previously. She’s had the opportunities (sic) although of being diverted, however did not engage with that process”.The decision of the learned Magistrate The learned Magistrate gave very short reasons. So far as this matter is concerned, after noting that the appellant had an apprenticeship, helped her mother at home and had not been in trouble since, the learned Magistrate said “… these sort of offences unfortunately are too prevalent and in my view a conviction should be registered against your name”. Consequently, a conviction without further penalty was imposed.Ground 1 – failed to properly consider whether to record a conviction In my opinion this ground is made out. The Act provides, by s 83(1), for the alternative dispositions available to the Youth Justice Court by an ascending order commencing with dismissal of the charge and ending with detention or imprisonment. In each case, the Court has the power, if the charge is proven, not to record a conviction and the Act contemplates that the power might be used even in a case where the Court orders detention or imprisonment. However, no specific guidance is provided by the Act as to the factors to be considered by the Court in deciding whether or not to record a conviction. The Court is given a complete discretion, although there are indications to be found in the Act which may be of some relevance. Section 3 of the Act sets out the objects of the Act. Of relevance are s 3(d) and s 3(e):“(d)to ensure that a youth who has committed an offence is made aware of his or her obligations (and rights) under the law and of the consequences of contravening the law;(e)to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation.” Section 4 sets out the general principles that must be taken into account in the administration of the Act. Of relevance to this question are the following:“(b)the youth should be dealt with in a way that acknowledges his or her needs and will provide him or her with the opportunity to develop in socially responsible ways; (c)a youth should only be kept in custody for an offence (whether on arrest, in remand or under sentence) as a last resort and for the shortest appropriate period of time; (d)a youth must be dealt with in the criminal law system in a manner consistent with his or her age and maturity and have the same rights and protection before the law as would an adult in similar circumstances; (e)a youth should be made aware of his or her obligations under the law and of the consequences of contravening the law; (f)a youth who commits an offence should be dealt with in a way that allows him or her to be re-integrated into the community; (g)a balanced approach must be taken between the needs of the youth, the rights of any victim of the youth's offence and the interests of the community; …(m)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; (n)punishment of a youth must be designed to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways; …”

Ratio Decidendi

Legal Principle Established

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