LWR v Lusted
[2009] TASSC 3
•22 January 2009
[2009] TASSC 3
CITATION: LWR v Lusted [2009] TASSC 3
PARTIES: R, LW
v
LUSTED, Gary
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 950/2008
DELIVERED ON: 22 January 2009
DELIVERED AT: Hobart
HEARING DATE: 9 December 2008
JUDGMENT OF: Porter J
CATCHWORDS:
Criminal Law – Judgment and punishment – Sentence – Juvenile offenders – Relevant principles – Objectives and principles under Youth Justice Act 1997 – Proper approach.
Conroy v S [2005] TASSC 101, followed.
JA (A Child) v The State of Western Australia [2008] WASCA 70, applied.
Aust Dig Criminal Law [855]
Criminal Law – Judgment and punishment – Sentence – Juvenile offenders – Detention - Periods of youth detention to be served cumulatively – Totality principle – Proper approach where period to commence on earliest release date of previous period – Earliest release date set by statute at 50 per cent of detention period – Whether effect of orders manifestly excessive.
Youth Justice Act 1997 (Tas), s85(2).
R v Yates [1985] VR 41; George v R [1986] Tas R 49 at 64; R v Paivinen (1985) 158 CLR 489; Hoare v R (1989) 167 CLR 348, referred to.
Burke v R [1983] Tas R 85; R v Devine (No 2) 56/1998, applied.
Aust Dig Criminal Law [856]
REPRESENTATION:
Counsel:
Applicant: M L Doyle
Respondent: J P Ransom
Solicitors:
Applicant: Beeton and Mansell
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 3
Number of paragraphs: 40
Serial No 3/2009
File No 950/2008
LWR v GARY LUSTED
REASONS FOR JUDGMENT PORTER J
22 January 2009
Introduction
The applicant is 16 years old and will turn 17 in early 2009. He has committed numerous offences of dishonesty and violence since March 2004. In a period from November 2007 to April 2008, he went on a spree of serious offending, the most egregious instances of which were unlawfully setting fire to property on 28 November 2007, (a motor vehicle with a monetary value of some $18,000), and an aggravated armed robbery on 16 April 2008 (involving the theft of a motor cycle).
On 24 September 2008, the applicant was sentenced by a judge of this Court to detention for a period of six months to commence on 24 April 2008, on the charge of aggravated armed robbery; (the "Supreme Court sentence"). On 1 October 2008, he was sentenced by a magistrate in respect of the balance of the November 2007 - April 2008 offences, and in respect of applications relating to breaches of community service and probation orders, and the implementation of a suspended term of detention. As to the offences, the applicant was convicted and a "global penalty" of 12 months' detention to commence on 24 July 2008 was imposed; (the "first sentence"). That date was the earliest release date in respect of the detention ordered by this Court. I will later deal with the concept of earliest release date under the Youth Justice Act 1997 ("the Act"). The suspended detention order imposed on 12 February 2007 was put into effect in its entirety, "to commence at the expiration of any period of detention that [the applicant] is now serving or liable to serve"; (the "second sentence").
The magistrate's orders on 1 October 2008 are the subject of this notice to review. Although there were two orders of detention and two orders by which those periods were made cumulative, the sole ground of the notice is that the magistrate "erred in law in imposing a sentence of detention which was manifestly excessive in all the circumstances of the case".
The applicant's history of offending
The applicant first appeared in the Youth Justice Division of the Magistrates Court on 22 September 2005 in respect of an offence of common assault committed on 17 March 2004. Up to and including an appearance on 18 January 2008, he had been dealt with for the following matters:
| Burglary — 44 Attempted burglary — 4 Stealing — 27 Motor vehicle stealing — 10 Destroy/Injury to property — 8 Aggravated burglary — 1 Possess dangerous article — 2 Assault — 2 | Trespass — 1 Driving whilst disqualified — 2 Threaten police — 1 Abusive language to police — 1 Breach of bail — 3 Failing to wear helmet — 1 Breach of probation order — 8 Fail to appear — 1 |
There are two appearances which have particular significance. On 12 February 2007, the applicant was sentenced to 12 months' detention commencing on 6 December 2006 under the Act. He was released from that detention in June 2007. On 18 January 2008 was sentenced to six months' detention, the execution of which was wholly suspended on condition he be of good behaviour for a period of 12 months. This sentence relates to a number of offences of dishonesty committed in the period before February 2007 and for breaches of probation orders.
The proceedings before the magistrate
The November 2007-April 2008 offences comprised one count of aggravated burglary, five counts of burglary, five of stealing, one of receiving stolen property, two of motor vehicle stealing, one of trespass, and one of destroy property. Additionally, there was the setting fire to property which I have already noted. The bulk of the burglaries and stealings involved thefts from motor vehicles, although one of the stealings was of reasonable significance in that it related to the theft of a motor cycle to a value of approximately $2,700.
The magistrate also had before him three applications; one related to the contravention of the conditions of the suspended detention order, one related to the failure to comply with the terms of a probation order which, in turn, related to a number of complaints previously dealt with, and one to an application to review a community service order, similarly made in respect of a number of previous complaints. All matters came before the magistrate on 25 September 2008.
After the facts were stated, a probation officer summarised the situation as to the various orders. The applicant had contravened the suspended detention order and the probation order by re-offending, and also the probation order by failing to comply with conditions as to reporting and notification of change of address. The applicant was in breach of the community service order in that he failed to attend an induction program. The magistrate was asked to consider revoking the probation order and to make a new order for a period of 12 months upon his release from any detention, to consider "restoring" the six months' suspended detention wholly or in part, and revoking the community service order and proceeding to a re-sentence.
The magistrate was given a copy of a pre-sentence report dated 24 September 2008 which was put before the judge in this Court who dealt with the aggravated armed robbery. The relevant aspects of that report can be summarised as follows:
· upon his release in 2007, the applicant began making positive efforts to report to Youth Justice Services and became involved with educational programs and work experience. However, in mid-February 2008 contact was lost with him as he failed to respond to correspondence, and attempts to contact him by telephone were not productive. Enquiries revealed that he had left his address and had failed to notify Youth Justice Services.
· the applicant seemed to have some insight into the unacceptability of his conduct, but had no empathy for the victim.
· his parents separated when he was 6 years old. Both suffered from diagnosed psychiatric disorders. He had lived a relatively transient and independent lifestyle, having made attempts to live with family and extended family members, but largely moved between fairly unstable and short term placements.
· in the period August to November 2007, he lived with a family friend, and was involved in voluntary community work which led to him being granted permission to travel to Queensland for about six weeks, where he was involved in voluntary community and cultural activities.
· the applicant had "been at odds" with the Ashley Youth Detention Centre for the entire period of his detention, amassing some 13 detention centre offences, including dangerous behaviour, threatening staff and subversive behaviour, and 17 "minor incidents". A report from the case manager said that the applicant appeared to have "little or no empathy for his victims, and he continually shrugs off his responsibilities". In the seven day period prior to the report, the applicant had been able to re-engage in various programs but "staff and service providers have commented that [his] performance is somewhat insincere, as he has displayed little interest in active participation".
· the applicant advised that he wished to return to Flinders Island to live with his mother on his eventual release. Although he had attempted this in the past, he was convinced that this time it would be more successful. The applicant's mother confirmed that she was happy to have him return home and that attempts had been made through the recent purchase of a mutton bird shed to bring the family together and reconnect with their culture.
· it was thought generally that this return to Flinders Island to live with his mother would be of benefit, but that nonetheless the applicant was assessed as being "at high risk of re-offending with high criminogenic needs …", indicating that the applicant required a high level of supervision and support upon his release.
· the applicant had described daily, or almost daily, use of alcohol, marihuana and stimulants, and that he was often under the influence of alcohol or drugs when he offended.
· the author of the report questioned the sincerity of the applicant's previous assertions that he had "perhaps turned a corner in relation to his offending behaviour", given that he had re-offended less than three [sic] months after his release and in such a significant manner.
· there was a recommendation that the applicant be made the subject of a detention order for a period to be determined.
The applicant was represented by counsel. Submissions were made highlighting the potential shown by the applicant's activities whilst living on Bruny Island and the fact that his mother was then in a position to provide accommodation on Flinders Island which would enable him to reconnect with his family. Counsel noted that the applicant had received a sentence of six months' detention backdated to 24 April 2008, meaning that he was eligible for release on 24 July 2008, and submitted that this amount of time in custody should be taken into account. The magistrate was told that a mutton birding shed had been purchased by the applicant's mother and her partner, which would provide the opportunity for employment in a family business and to learn of his culture, and that it was intended that the business would ultimately become that of the applicant. The applicant's mother had held discussions with appropriate agencies and support networks on the Island to find work along the same lines as that which he was carrying out on Bruny Island. The applicant was keen to pursue the opportunity, there having been a resolution of difficulties which had existed with the mother/son relationship over a period of time.
The magistrate adjourned all matters to 1 October 2008 for sentence. The following is a record of what occurred at that time:
"HIS HONOUR: I have regard to what your counsel said on your behalf and your personal circumstances and how these various offences took place and also what's been set out in the pre-sentence report. I do note your advice of counsel last time that instability is the key problem in your life and failing to obtain guidance and that these offences are offences associated with your drifting into a sub-culture and into this way of life. That's as may be. But the community need to be defended from this kind of, protected from this kind of behaviour. I note from your prior history that you have committed many numerous offences of a similar kind and you have been sentenced for periods of detention and suspended detention. And in all the circumstances I need to impose upon you a penalty which reflects the seriousness of these offences.
What I propose to do is to, on each on each complaint is to convict you. And on the complaint – on each charge and each complaint you are convicted and I impose a global penalty, and that is that you are sentenced to 12 months' detention to commence from the 24th July last and at this stage I make no further order in respect of probation, or do we wait until–
PROBATION OFFICER: Sir, I just ask that you revoke the existing probation order and make a new one upon his release for a period of 12 months.
HIS HONOUR: Do I have an application before me?
PROBATION OFFICER: Yes your Honour.
HIS HONOUR: Well it's not on my list. When was it?
PROBATION OFFICER: There are two applications, one from a –
…
[Discussion followed between the magistrate and the probation officer.]
…
HIS HONOUR: Thank you very much, thank you. In respect of each application I'll revoke the existing probation order and order that – I make a new order of probation for 12 months upon his release.
PROBATION OFFICER: Thank you.
HIS HONOUR: Any other?
PROBATION OFFICER: That just leaves the suspended detention order application, your Honour.
HIS HONOUR: And in respect of that matter I order that the entire part of that term be restored. And that's to commence at the expiration of any period of detention the at he's now serving or liable to serve. Does that cover everything?
PROBATION OFFICER: Yes sir.
HIS HONOUR: Yes thank you.
MR DOYLE: May it please sir."
Subsequently, the applicant's counsel raised a query as to what had been intended by the orders made in respect of the existing community service order. The magistrate then revoked that order without making any further order.
The ground of review
In this Court, counsel for the applicant did not make any specific challenges, to the 12 month period of the first sentence or to the activation of the suspended term of six months, as such, but directed his argument to the proposition that the second sentence, made cumulative to the 12 months' detention, all of which was added to the effective term of detention imposed in this Court on 24 September 2008, made the overall sentence achieved by the magistrate's orders, manifestly excessive. In short, it was submitted that the orders offended the "totality principle".
The effect of the magistrate's orders
The Act, ss84 and 85(1), provide as follows:
"84 — Detention orders ordinarily concurrent
If, at the time the Court makes a detention order against a youth for an offence, the youth is serving or has been sentenced to serve a period of detention for another offence, the period of detention under the detention order must be served concurrently with the other period of detention, unless other provision is made under section 85 or another Act.
85 — Court may order detention period to be cumulative
(1) If, at the time the Court makes a detention order against a youth for an offence, the youth is serving or has been sentenced to serve a period of detention for another offence, the Court may order the period of detention under the detention order to take effect on the earliest release date in respect of that other period of detention."
The Act therefore operates presumptively in favour of concurrent detention orders, unless an order is otherwise made, as was done in this case. As has been shown, no reasons were given for the order under s85(1). In ordering the 12 months' detention to commence from 24 July 2008, the magistrate obviously had in mind the earliest release date in respect of the sentence imposed in this Court on 24 April 2008. It will be recalled that the second sentence was, however, expressed to commence at the expiration of any period of detention which the applicant was serving or liable to serve. By virtue of s85(1), that period of detention would have to commence on the earliest release date in respect of the first sentence.
The Act provides for a scheme of early release from a period of detention, not unlike the adult parole system, with the significant exception that the time of early release is essentially not a discretionary exercise after serving a period set by a court, but one provided for in the Act itself. Section 109(1) provides that a youth serving a period of detention under a detention order must be released from detention under a supervised release order, on the earliest release date. "Earliest release date" is defined in s3 as meaning "the day immediately following the completion of 50 per cent of the period of detention during which a youth is liable to be detained (excluding any period of detention during which the youth is released under a supervised release order) or three months, whichever is the longer". That certainty of release, operating as it does in relation to a percentage of the detention period ordered, is an inherent recognition of the prospects of rehabilitation, based on youth alone. This has been adopted in preference to a more individualised system of release as a matter of discretion, after serving a minimum term determined by a court ; Sentencing Act 1997, s17.
Section 109(2) provides that if a youth is serving more than one period of detention under one or more detention orders, the youth must be released from detention under a supervised release order on the last occurring of the relevant earliest release dates. The earliest release date may be extended by up to three days by the Secretary, or by up to 14 days by a court in the event of a "detention offence", although the Secretary in both cases retains a discretion to release the youth under a supervised release order at any time after the original release date; see ss140(3)(c), 141(2) and 142(2).
Part 5 of the Act deals with supervised release orders. Section 110(1) requires the Secretary of the Department to make a supervised release order at the time of or before the release of the youth. A supervised release order may relate to more than a period of detention, although an order has effect until the end of the detention period in respect of which it is made; s110(2) and (3). A supervised release order is subject to the conditions specified in s111. In the event of the contravention of a supervised release order, s117(4) enables the Secretary to, amongst other things, suspend or cancel the order, in which event the youth is liable to arrest and return to detention.
The reference in s85(1) to the "earliest release date" would seem to be a reference to the term as defined. I imagine that additional days resulting from detention offences would affect the final release date in respect of the whole period of detention. On that basis, the order made in the Supreme Court on 24 September 2008 of six months' detention meant, as reflected in the terms of the first sentence, an earliest release date of 24 July 2008. The period of 12 months' detention ordered to commence from 24 July 2008 means an earliest release date of 24 January 2009. The activated suspended term, operating cumulatively as it did, thus means, notionally, a final release date of 24 April 2009.
The end result of all orders is that the applicant is to spend 12 months in detention, followed by supervision for a period of three months. It is that period of supervision because, at least as I see it, a supervised release order cannot be made in respect of a detention order which has ceased to have effect. That is to say, to use this case as an example, the six months' detention ordered in this Court on 24 September 2008, (backdated as it was), expired on 24 October 2008. A further order of detention made before that expiry date could not have the effect of deferring the time at which a supervised release order could be made in respect of the six months' detention, until the earliest release date in respect of the second detention period.
The relevant principles
The "totality principle"
In Mill v R (1988) 166 CLR 59 at 62 – 63, the High Court said:
"The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57, as follows (omitting references):
'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["]; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences".'
See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."
The principle applies where the person is already serving a term of imprisonment at the time of the relevant sentence; see Postiglione v R (1997) 189 CLR 295; Harland-White v R 1/1998; R v Gordon (1994) 71 A Crim R 459 and Draper v Tasmania Police [2004] TASSC 120.
Youth justice principles
There can be no doubt that the common law principles of youth justice involve the predominance, but not the exclusivity, of rehabilitation as a factor in sentencing. Aspects of deterrence and the protection of the community may assume particular significance and weight in appropriate cases; R v Tran (2002) 4 VR 457 per Calloway JA at 462 [14]; R v AEM [2002] NSWCCA 58 at [97] – [98]. The Act, s29(2), now imposes a duty on the Court to take into account the objectives specified in s4 and the principles specified in s5, in any proceedings under the Act. Section 4 sets out the main objectives of the legislation. Relevantly, they are:
"4 — Objectives of Act
The main objectives of this Act are —
(a)…
(b)…
(c)…
(d)to ensure that a youth who has committed an offence is made aware of his or her rights and obligations under the law and of the consequences of contravening the law; and
(e)to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation; and
(f)to enhance and reinforce the roles of guardians, families and communities in —
(i)minimising the incidence of youth crime; and
(ii)punishing and managing youths who have committed offences; and
(iii)rehabilitating youths who have committed offences and directing them towards the goal of becoming responsible citizens; and
(g)to ensure that, whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that is culturally appropriate and recognises and enhances his or her cultural identity; and
(h)to ensure that, whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that takes into account the youth's social and family background and that enhances the youth's capacity to accept personal responsibility for his or her behaviour."
Of these objectives, Slicer J in Conroy v S [2005] TASSC 101 said:
"9The tensions between the stated aims of rehabilitation, punishment, retribution and subjective deterrence are not confined to youth justice and the efficacy of differing models of response remain the subject of academic inquiry, judicial comment and community discourse. The objects stated in the Act are weighted, but not subsumed by, the needs of treatment, acceptance of responsibility, future control, protection and maturation. They reflect an understanding, simply expressed, that historically in many instances, detention within an institution can be counter-productive and further fracture personality (see Lahey v Sanderson [1959] Tas SR 17). But the objectives retain acceptance of 'removal from the community'."
The "General principles of youth justice", which were described by Slicer J in Conroy v S as "more problematic", are set out in the Act, s5 as follows:
"5 — General principles of youth justice
(1) The powers conferred by this Act are to be directed towards the objectives mentioned in section 4 with proper regard to the following principles:
(a)that the youth is to be dealt with, either formally or informally, in a way that encourages the youth to accept responsibility for his or her behaviour;
(b)that the youth is not to be treated more severely than an adult would be;
(c)that the community is to be protected from illegal behaviour;
(d)that the victim of the offence is to be given the opportunity to participate in the process of dealing with the youth as allowed by this Act;
(e)guardians are to be encouraged to fulfil their responsibility for the care and supervision of the youth and should be supported in their efforts to fulfil this responsibility;
(f)guardians should be involved in determining the appropriate sanction as allowed by this Act;
(g)detaining a youth in custody should only be used as a last resort and should only be for as short a time as is necessary;
(h)punishment of a youth is to be designed so as to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
(i)punishment of a youth is to be appropriate to the age, maturity and cultural identity of the youth;
(j)punishment of a youth is to be appropriate to the previous offending history of the youth.
(2) Effect is to be given to the following principles so far as the circumstances of the individual case allow:
(a)compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b)family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;
(c)a youth should not be withdrawn unnecessarily from his or her family environment;
(d)there should be no unnecessary interruption of a youth's education or employment;
(e)a youth's sense of racial, ethnic or cultural identity should not be impaired."
Of these principles in s5(2), Slicer J in Conroy v S at par[10] observed that some "are self-evident, but cumulatively they state, but do not resolve, the tensions of differing purposes". Both the objectives and the general principles set out in the Act, ss4 and 5 respectively, are in not dissimilar terms to the Young Offenders Act 1994 (WA), although that Act has a further provision requiring a court, when dealing with young persons who repeatedly commit serious offences, to give primary consideration to the protection of the community ahead of the statutory principles applicable to young offenders. In JA (A Child) v The State of Western Australia [2008] WASCA 70, Wheeler JA (with whom Martin CJ and Miller JA agreed) said:
"29 In AM (A Child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996), the court held that the Act merely restates the relevant principles concerning the sentencing of juvenile offenders which have long been established by the courts (12). In Yorkshire v The Queen (Unreported, WASCA, Library No 7169, 20 June 1988), Wallace and Smith JJ observed that '[t]here has been universal acceptance by the courts ... that the reformation of the [juvenile] offender is always an important, if not the dominant consideration, and that any sentence should be tailored with greater emphasis on the future welfare of the offender' (10). This emphasis on rehabilitation is consistent with the broader sentencing goal of community protection. As the court observed in B (A Child) (1995) 82 A Crim R 234, '[t]he criminal justice system aims to rehabilitate offenders (particularly young offenders) because rehabilitation removes the danger to the public from one of its (previously) errant members' (244).
30 However, both general and personal deterrence still have a role to play, albeit, generally, a tempered role: The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51 [16]; C (A Child) (1995) 83 A Crim R 561, 564; KSB (A Child) v The State of Western Australia [2004] WASCA 296 [11]. In AM, the court was of the view that:
General deterrence as well as particular deterrence must not be lost sight of, but it is particularly the case for young offenders that their rehabilitation is regarded as offering the best guarantee against their continuing offending, and therefore for the protection of the community from their lawless behaviour, where that is seen as a real possibility. (12)
31 Thus, where rehabilitation seems unlikely, or where the offending or course of offending is serious, or the character and antecedents of the offender justify it, deterrence becomes a significant consideration once more: R v DP (A Child) [2003] WASCA 92 [57]; Ainsworth v D (A Child) (1992) 7 WAR 102, 117; MC (A Child) v The Queen [2003] WASCA 205 [20]."
In the case of AM (A Child) v The Queen, referred to in that passage, the Court of Criminal Appeal also said, following on from the passage quoted by her Honour in par[30], that the inferences to be drawn from the relevant provisions in the context of the general law were as follows:
"Custodial sentences with respect to young offenders are to be used only as a last resort and with no greater severity than absolutely necessary. The rehabilitation and reformation of the young person, consistently with the need to protect the public, remains the primary consideration and focus of the Court and in that regard the court is expressly directed not to lose sight of the importance of the young person continuing in a supportive family situation and in the processes of education and employment."
In my view, the comments of Slicer J in Conroy v S and from the two Western Australian cases which I have set out above, demonstrate the approach to be adopted under the Tasmanian Youth Justice Act.
The significance of the earliest release dates
Counsel for the respondent specifically drew my attention to the Act, s109, the implied submission being that the total period to be served in actual detention was a matter which could be taken into account in assessing the overall impact of the orders. There was no argument to the contrary. Because of s85(1) of the Act, the first and second sentences in fact commence respectively on the earliest release dates of the Supreme Court sentence and the first sentence. The only question may be whether I can take into account the earliest release date in respect of the second sentence; i.e., the "final" release date. It might be thought that to do so would infringe the rule which prevents a court taking into account the likelihood or otherwise of remissions or parole when determining or assessing the length of an appropriate sentence; George v R [1986] Tas R 49 at 64, following R v Yates [1985] VR 41. The rule means that a court should not proceed on the basis that the time by which a sentence exceeds any non-parole period is merely a period of supervision in the community, rather than time that the offender might have to spend in prison; R v Douglas [1959] VR 182.
The rule however, is not that no regard whatsoever can be paid to the possibility of remissions or parole, rather, the essence of it is that a court "… in passing sentence should impose the appropriate sentence for the crime and should not impose a longer sentence merely because the offender may earn remissions for good conduct or be released on parole"; see R v Paivinen (1985) 158 CLR 489 at 494 and the cases cited at 494 – 495 and Hoare v R (1989) 167 CLR 348 at 354. The reasons for the rule are set out in Hoare's case at 354. The rationale for the rule includes a recognition that although expectations of remissions or release on parole might be well grounded and involve a high degree of statistical probability, in strict terms the situation remains one of uncertainty, (see R v Yates (above) at 47), and further, that a sentence of imprisonment should not exceed that which can be justified as appropriate and proportionate.
In the case of detention under the Act, the scheme suggests that a period of detention is effectively a "head sentence" with early release a matter of legislative command, subject only to a possible deferment by up to 14 days in the event of a detention offence being committed. The system of early release thus operates "… on the sentence rather than being a factor relevant to fixing the sentence"; per Zeeman J in Hyland v R 82/1996. Whilst the time of release may not be the subject of any great conjecture, it remains the case that there is a possibility that a youth will have to serve further detention after release, by virtue of s109(1). This is dependent on the behaviour of the youth and what action the Secretary then thinks is appropriate. As Cox J (as he then was) observed in George v R (above) at 64, the impact of a lengthy term of imprisonment on a youth (although in that case one of prior good behaviour), may be serious and far reaching, no matter how or where it is served and no matter if the Parole Board chooses to advance the prospects of rehabilitation by the exercise of its powers. For those reasons, the rule under discussion would in strict terms, it seems, apply to early release in respect of detention orders under the Act.
At the same time, the situation under the Act is quite different to that which exists in relation to remissions and parole. In the case of the former, it is the return to detention which is the subject of uncertainty and speculation, not early release. Under the Act, early release does not constitute, as observed by the Court in R v Yates (above) at 47, an executive "interference" with a court's order. In broad terms, it is a matter of statutory reality. That reality may be very difficult to ignore. In R v Fahey [2001] QCA 82 at [45], the Court of Appeal referred to the "custodial content" of a detention period made under the not dissimilar Queensland provisions, when looking at comparative sentences; see also R v A [2003] QCA 189; R v K [2000] QCA 43 and R v H [2001] QCA 477.
It would not be contrary to principle to recognise the constituent parts of a detention order in fixing or reviewing detention orders, provided it is done for a relevant and permissible purpose and not to increase what would otherwise be an appropriate head sentence. As is made clear in Hoare v R (above), remissions and release on parole can be taken into account in certain circumstances where appropriate; see the Court's judgment at 355. In assessing a sentence of imprisonment, it is not improper to consider the effect of remissions and the expected release date in respect of an earlier term; Burke v R [1983] Tas R 85 at 91. Further, In R v Devine (No 2) 56/1998, Slicer J noted that it was improper to pay regard (inter alia) to a possible date of release on parole in the determination of the length of sentence, "… except, perhaps, in any application of the 'totality' principle."
In my view, at the least, a court considering the application of the totality principle to a youth serving cumulative periods of detention, can have regard to the fact that the ultimate release, subject to a delay of a number of days possibly arising from a detention offence, is certain to occur when 50 per cent of the term of the last detention order has been served. Whether there is any delay as to the final release date rests, in the first instance, in the hands of the detainee. In this case, having regard to the applicant's history, there would have to be some prospects of early release being delayed as a result of detention offences.
The disposition of the motion
Sentencing under the Act requires a significant focus on the rehabilitation of the offender and on allowing the offender to be reintegrated into the community. One objective is to ensure that a youth's capacity to accept personal responsibility for his or her behaviour is enhanced. Regard is to be had to the principle that the community is to be protected from illegal behaviour. That protection is achieved through the rehabilitation of the offender, but also through, as the Act accepts, removal from the community. At the same time, the detention of a youth in custody should only be used as a last resort and for as short a time as is necessary.
The magistrate was required to sentence the applicant for a course of serious and persistent offending which commenced in November 2007, a few months after his release from a previous period of detention. Additionally, the applicant faced the activation of a suspended term of detention in respect of an earlier similar course of offending, mostly involving dishonesty. (It might have been a preferable course for the magistrate to first consider the question of the activation of the suspended detention order, before turning to the question of the appropriate penalty for the more recent offending, although nothing turns on the course adopted.)
Even leaving aside the offending commencing in November 2007, the applicant had assembled an appalling record for offences of dishonesty and violence involving frequent and serious offending commencing in March 2004, and culminating in his detention in February 2007. The six months' custodial content of that detention order did not deter him from further significant offending, nor did the fact that for a short period of that further offending he would have been the subject of a supervised release order. Personal deterrence and having the applicant accept responsibility for his actions were very weighty factors. This was a case in which the function of paying regard to the principle of community protection, needed to be adequately performed. Removal from the community for a lengthy period clearly suggested itself as a necessary measure.
The whole of the material before the magistrate suggested some potential for responsible and law abiding behaviour, but there was little by way of objective signs of motivation or other factors which might bring this about. It is true that there were some prospects of change offered by the greater involvement of the applicant's mother and the proposed move to Flinders Island. Equally though, it can be properly said that a period of reasonably lengthy detention might in fact assist the applicant's rehabilitation by providing the opportunity to address issues of substance abuse, and more generally by providing him with a secure place of stable control and influence; Conroy v S (above) at [12]. The magistrate's comments on passing sentence show that his principal concern was the protection of the community. Given the applicant's history of offending, it cannot be said that the magistrate erred in giving that consideration the prominence which he did.
The applicant needs to show that the magistrate specifically erred in the exercise of his discretion or that the detention orders imposed were so manifestly excessive that error can be inferred. It is trite that it is not for an appellate court to substitute its view as to the appropriate sentence. The question is whether the orders were unreasonable or plainly unjust, or whether they fell within the limits of the discretionary authority vested in the magistrate under the Act. The total period of detention resulting from the various orders, including the Supreme Court sentence, is undoubtedly a very lengthy one. However, after due consideration and for the reasons which I have given, I am not persuaded that the sentence of 12 months' detention, the activation of the six months' detention and the orders by which the two periods were made cumulative, and cumulative to the sentence earlier imposed in this Court, offended the totality principle, or otherwise suggest any error on the part of the magistrate.
The motion is dismissed.
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