M J D v The Queen
[2000] TASSC 175
•14 December 2000
[2000] TASSC 175
CITATION: M J D v R [2000] TASSC 175
PARTIES: D, M J
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 46/2000
DELIVERED ON: 14 December 2000
DELIVERED AT: Hobart
HEARING DATE: 3 November 2000
JUDGMENT OF: Cox CJ, Crawford and Blow JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - General principles - Whether sentence was manifestly excessive - Insufficient weight given to appellant's youth, antecedents and prospects of rehabilitation.
Aust Dig Criminal Law [1003]
REPRESENTATION:
Counsel:
Appellant: M I Evans
Respondent: M P Shirley
Solicitors:
Appellant: Beeton & Mansell
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 175
Number of paragraphs: 12
Serial No 175/2000
File No CCA 46/2000
M J D v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
CRAWFORD J
BLOW J
14 December 2000
Order of the Court:
Appeal allowed.
Sentence of imprisonment for two years quashed.
Sentence of detention for 15 months with effect from 28 June 2000, the execution of the balance of such sentence to be suspended from 3 November 2000 on condition that the appellant be of good behaviour for a period of two years from 3 November 2000 and that he submit to supervision by a probation officer and comply with the directions of that officer throughout such period substituted.
Compensation Order and Levy Order confirmed.
Serial No 175/2000
File No CCA 46/2000
M J D v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
14 December 2000
On the hearing of this appeal on 3 November 2000, the Court quashed the sentence of two years' imprisonment imposed upon the appellant and substituted one of 15 months' detention with effect from 28 June 2000, the date on which he was taken into custody, suspending the execution of the balance of the sentence from 3 November 2000 on certain conditions. We said we would give our reasons at a later time. These are my reasons for the course we took.
The appellant pleaded guilty to two counts of aggravated burglary committed on 9 March 1999 and one count of stealing on that day. In company with other youths, he had gone by car to a caravan park at Port Arthur, intending to steal property from the reception area. The proprietor was awoken at about 3.30am by the sound of a burglar alarm. He entered the office area and found the door forced open and the premises disturbed, although the office safe was still in place. The proprietor returned to his nearby residence, but from it could see three males at the reception door, all wearing balaclavas. He returned and was confronted by one of these males carrying a fire extinguisher, the contents of which were discharged at him. He retreated and armed himself with a rifle. He went outside towards the caravan carpark and saw two or three males carrying his safe towards a car. He fired the rifle into the air and the offenders dropped the safe. They entered a car and went to leave, but the car was turned around and driven back towards the proprietor's position near the safe. He then ran to a different position and observed that the offenders seized the safe and put it in the car before driving off. The safe contained nearly $30,000 and later that night the offenders were caught north of the Tasman Peninsula and the bulk of the money recovered. It appears that at least two other offenders in another car were also involved. The appellant made some admissions on apprehension, but in view of the provisions of the Criminal Law (Detention and Interrogation) Act 1995, the prosecution may have had some difficulties in proving them had the matter gone to trial. When formally interviewed, he declined to participate.
The appellant was born on 8 May 1982 and was thus still 16 years of age at the date of the offences in March 1999. His counsel claimed on his behalf that he remained in the car at all material times and had not entered the burgled premises, nor offered violence to the proprietor. The Crown was in no position to dispute these facts. Although he accepted responsibility for the actions of his co-offenders, he could not have foreseen the violent use made by one of them with the fire extinguisher.
The appellant was described as coming from a warm, loving and supportive family which had observed with distress the behavioural problems which had beset him virtually since Kindergarten days. By the age of 14, he had been diagnosed by his general practitioner as having Attention Deficit Hyperactivity Disorder and this was confirmed by a child psychologist. By Grade 10 he had received an exemption from attending school and was granted a disability allowance in respect of the diagnosed condition. He also had a specific learning disability which retarded his ability to read and limited his ability to engage in acceptable forms of diversion.
The appellant's criminal history commenced in late 1996 when he committed a number of thefts and burglaries. For these offences he was dealt with in the Children's Court in March 1997 and placed on supervised probation for nine months. Later that year he illegally used a motor vehicle and was disqualified for driving until his 18th birthday. A couple of months later, he did the same thing, and was again placed on supervised probation for 15 months. In December 1997, he was convicted of injuring property and stealing a month earlier. No penalty was imposed. Six months later, he drove while disqualified and stole, for both of which offences he was fined $20. In 1998, there were two convictions for obstructing police, the second resulting in a fine of $100 imposed in December 1998. This was the extent of his criminal history prior to the offences at Port Arthur. Three months after these offences occurred, he was dealt with in the Court of Petty Sessions for several offences which had occurred the previous year, namely motor vehicle stealing; burglary and stealing; and injury to property. He was also convicted of three counts of driving while disqualified in 1998 and in March 1999, a few days after the Port Arthur offences. For all these offences, he received terms of imprisonment totalling eight months of which the execution of all save 2 months 19 days was suspended. This was his first period of incarceration and in November 1999 he was dealt with for further post-Port Arthur offences in May 1999 of motor vehicle stealing, burglary, stealing, and injury to property. He received a sentence of nine months' imprisonment, wholly suspended.
A presentence report indicated that the appellant had "demonstrated over the years that he is willing to comply with instructions and guidance from his Youth Justice and more recently his Community Corrections Officer". However, the reporting officer noted, "intervention has not precluded Matthew from re-offending whilst on such orders." She added:
"Matthew's progress has been excellent, as he has complied with all directions given by Mr Baldwin from Community Corrections. He has actively participated in activities for the purpose of completing his Community Service Order hours in a positive and respectful manner. His management plan includes participation in Youth Insearch, tutorial activities with the Aboriginal educational service. More recently Matthew has successfully acquired employment as an assistant floor sander which was initially to be part time however the writer is advised that Matthew has been working full time."
At the time of sentence, the appellant had full time work with his father as a floor sander and had been working satisfactorily in this calling for some three months. He had also arranged to undertake distance education with an institute in Queensland. The learned trial judge's comments on passing sentence were as follows:
"Using a stolen vehicle you, together with two or three others, drove to the Port Arthur Caravan and Cabin Park in the early hours of the morning. The door to the park office was jemmied open. This activated a burglar alarm and attracted the attention of the park operator who lived in an adjoining residence. He confronted three of your group in the office. To discourage his interference one of the group discharged a fire extinguisher at him. He retreated and armed himself with a rifle. He returned to see the office safe being carried away. Upon him discharging his rifle the safe was dropped and those who had been carrying ran to the stolen vehicle. That vehicle was driven directly at the operator who was standing near the safe. He sensibly withdrew. The safe was placed in the rear of the vehicle and you drove off. Using a succession of stolen vehicles you drove to Dunalley, by which time you two had split from your associates. At Dunalley, shortly after driving through a police check Mr Grimsey lost control of the vehicle in which you were travelling and it came to a halt. You both escaped on foot, but were eventually apprehended by police. In the course of Mr Grimsey's flight he disposed of a bag containing $24,000 cash and cheques to a value of $680 which had been removed from the safe. This was found by the police. A bundle of notes to the value of $5,500 has not been recovered. Damage totalling $2,449 was caused to park property. You are jointly and severally ordered to pay compensation of $7,949 to Anthony McIntyre.
You are each convicted on your plea of guilty to two charges of aggravated burglary and one charge of stealing referable to this appalling escapade. These are most serious offences which involved some planning and which you persisted with, notwithstanding that you had been discovered. Force was resorted to when your objectives were resisted. You were all wearing balaclavas and gloves.
Michael William Grimsey you are 19 years of age. M J D you are 18 years of age. I have given careful consideration to the matters put to me by your counsel. I am unpersuaded that there is any reason for me to distinguish between the penalty to be imposed on each of you. You have both pleaded guilty. You have both been convicted of crimes of dishonesty committed prior to these offences. You have both served time in prison. Whilst the steps taken towards reform by you, Mr D, are to be applauded, I note that in the past, notwithstanding your fulsome participation in appropriate rehabilitation programmes, you have continued to offend.
You are each sentenced to two years' imprisonment."
With respect, I think insufficient weight was given in the appellant's case to his youth, antecedents and prospects of rehabilitation. At the time of the offence, he was still only 16 years of age. The age of the other offenders is not known, save that Grimsey was born on 3 October 1980 and was thus about 19 months older and an adult offender. It was put that the experience of two months' imprisonment after these offences had been committed had had a salutary effect on the appellant and his subsequent offences dealt with in November 1999 had been committed by him before that term of imprisonment had been served and not afterwards. While it was true that notwithstanding his full participation in appropriate rehabilitative measures, he had continued to offend, he had not done so after experiencing a period of actual imprisonment.
The crimes were serious and a large amount of money stolen by offenders who persisted in their determination to take the safe, notwithstanding the proprietor's attempts to discourage them. Nevertheless, a sentence of two years' imprisonment on a 16 year old who had not, prior to the commission of those crimes, been incarcerated and whose participation in the crimes was not shown to be any more than the minimum acknowledged by his plea of guilty, was, in my view, manifestly excessive.
I note in passing that some discussion took place before the learned sentencing judge as to the effect of the Youth Justice Act 1997 ("the Act"), ss46(1) and 81. The former subsection provides:
"46 (1) If, in this or any other Act, a penalty including imprisonment is specified in respect of an offence against this or any other Act and a youth is found guilty of the offence, that reference to imprisonment is taken to be a reference to detention."
Section 81 provides:
"81 A period of detention -
(a) must not be imposed if an adult who committed the same offence could not be sentenced to imprisonment; and
(b) must not exceed 2 years."
The view was expressed that a youth, no matter how serious the charge, could not be sentenced to anything other than detention and that the maximum term was two years. If this were so, a youth of almost 18 years who commits murder could not be sentenced to more than two years' detention, a proposition I find difficulty believing Parliament would have countenanced. Although the present case does not require determination of the question, I think the better view is that both provisions operate only to restrict the powers of "the Court" as defined by the Act, that is, the Magistrates Court (Youth Justice Division) and that they in no way cut down the powers of the Supreme Court, those powers not being expressly restricted by the Act, but being augmented by s107 thereof, which provides:
"107 The Supreme Court, or a court of summary jurisdiction other than the Magistrates Court (Youth Justice Division), may exercise all the powers of the Magistrates Court (Youth Justice Division) under this Part in addition to, or instead of, any other power it may exercise when sentencing for an offence, including a prescribed offence, a person who was 10 years old or more but less than 18 years old at the time when he or she committed the offence."
In the circumstances of this case, we chose to exercise a power of punishment by way of detention because it seemed appropriate to the offender and not because we felt constrained to do so by the Act.
File No CCA 46/2000
M J D v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
14 December 2000
The reasons for judgment of the learned Chief Justice essentially contain my own reasons for concurring with the orders made by the Court on 3 November. There is nothing I wish to add.
File No CCA 46/2000
M J D v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
14 December 2000
I have read in draft form the reasons for judgment of the learned Chief Justice. My reasons for the orders made on 3 November 2000 are the same as those stated by him. I agree with the views expressed by him as to the effect of the Youth Justice Act 1997, ss46(1) and 81. There is nothing that I wish to add.
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