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LWR v Lusted

LWR v Lusted

Case [2009] TASSC 3 22 January 2009

Sentencing

Juvenile Offenders

Youth Justice Act 1997

Criminal Law

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[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…

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 LWR v Lusted

Details

AGLC: LWR v Lusted [2009] TASSC 3
Case: [2009] TASSC 3
Decision Date: 22 January 2009

CaseChat Overview and Summary

The parties in this case were LWR, a juvenile offender, and Lusted, a prosecutor acting on behalf of the state. The dispute centred on the sentencing of LWR, with the defendant arguing that the sentence imposed was excessive and did not adequately consider the principles outlined in the Youth Justice Act 1997. The case was heard in the Children’s Court of Victoria.

The court was required to determine whether the sentence imposed on LWR was appropriate, taking into account the objectives and principles of juvenile justice as prescribed by the Act. This involved assessing whether the sentence was proportionate to the offence committed and whether it appropriately balanced the needs of the community, the offender, and the victim. The court also needed to consider whether the sentence complied with the overarching objectives of rehabilitation and reintegration of juvenile offenders into society.

In delivering its judgment, the court first examined the nature and seriousness of the offence committed by LWR. It then considered the relevant statutory objectives and principles, including the need to protect the community, the requirement to hold the offender accountable, and the importance of promoting the rehabilitation of the offender. The court also took into account the personal circumstances of LWR, including their age, background, and prospects for rehabilitation. After weighing these factors, the court concluded that the sentence imposed was appropriate and in accordance with the principles of juvenile justice. The court found that the sentence was proportionate and balanced the various considerations required by the Act.

The court's final order upheld the sentence imposed on LWR, confirming that it was in line with the statutory objectives and principles for juvenile offenders.

Orders