M v Callinan
[2003] TASSC 95
•3 October 2003
[2003] TASSC 95
CITATION: M v Callinan [2003] TASSC 95
PARTIES: M
v
CALLINAN, Belinda Jane
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 86/2003
LCA 87/2003
LCA 88/2003
DELIVERED ON: 3 October 2003
DELIVERED AT: Hobart
HEARING DATES: 1 October 2003
JUDGMENT OF: Blow J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: R Mainwaring
Respondent: M S Cox
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2003] TASSC 95
Number of Paragraphs: 13
Serial No 95/2003
File No LCA 86/2003LCA 87/2003
LCA 88/2003
M v BELINDA JANE CALLINAN
REASONS FOR JUDGMENT BLOW J
3 October 2003
The applicant has moved for the review of a global sentence of two months' detention imposed by a magistrate in the Youth Justice Division of the Magistrates Court in respect of three complaints. The magistrate ordered that the sentence commence on the date that she imposed it, namely 1 September 2003. The applicant contends that she was obliged by the Youth Justice Act 1997 ("the Act"), s88(1), to backdate the sentence to the date that he was taken into custody, namely 17 June 2003. The respondent contends that it was open to the learned magistrate to take the course that she did.
On 17 June the applicant went on some sort of spree, committed a large number of offences, was arrested, and was detained in custody. He was charged with those offences on four complaints: No 12971/03 (aggravated burglary, stealing, armed robbery, and assault); No 12972/03 (motor vehicle stealing); No 12973/03 (stealing property worth $4.50); and No 12974/03 (trespassing at the Eastlands Shopping Centre). He remained in custody in relation to all those complaints from 17 June until 1 September.
On 18 June the applicant was brought before a magistrate on the four complaints relating to 17 June, and on two complaints relating to earlier offences: No 579/03 (unlicensed driving, unregistered vehicle, uninsured vehicle, and driving with alcohol in his body), and No 5069/03 (failing to appear). He was remanded in custody on all six complaints, and remained in custody on all six until 1 September.
On 1 July the applicant appeared before a magistrate on two new complaints: No 13760/03A (assault), and No 13761/03 (resisting a police officer, and unlawfully using a dangerous article in a public place). He was remanded in custody in relation to those new complaints, and remained in custody in relation to them, and in relation to all the other complaints I have mentioned, until 1 September. He pleaded guilty to all charges on these last two complaints on 24 July.
As a result of representations by defence counsel, the prosecuting authorities decided not to proceed with the charge of armed robbery (count 3 on complaint 12971/03, allegedly committed on 17 June), but to charge the applicant with demanding money with menaces in respect of the same incident. That charge was contained in complaint 15890/03, which came before the court on 1 September for the first time.
On the morning of 1 September, the learned magistrate sentenced the applicant on a number of the less serious charges. She convicted him of the driving charges on complaint 579/03. On the charge of driving with alcohol in his body, she fined him and disqualified him from driving for five months. On complaints 5069/03, 12973/03 and 12974/03, she made an order for 12 months' probation. On complaints 13760/03A and 13761/03, she convicted the applicant on each charge and sentenced him to four months' detention, wholly suspended. Immediately before making all those orders, she said that she was taking into account "the period of time already spent in custody".
On the afternoon of 1 September, the learned magistrate dealt with the three complaints to which the present motions to review relate: complaint 12971/03 (aggravated burglary, stealing, armed robbery, and assault), complaint 12972/03 (motor vehicle stealing), and complaint 15890/03 (demanding money with menaces). During the day, the applicant had been brought before the Supreme Court on the armed robbery charge, and had been discharged in relation to it. No evidence was offered on the charge of aggravated burglary. It was dismissed. Pleas of guilty were either entered or adhered to in relation to all other charges on the three complaints. In her sentencing remarks, the learned magistrate mentioned that, in sentencing the applicant that morning, she had taken into account the fact that he had been in custody for a period of time. She said that if she had been dealing with the morning's matters and the afternoon's matters on a global basis, she would have had no hesitation in making an order which saw the applicant remain in custody for a further period, and went on to state the reasons why she would have taken that course. She said that she proposed to take into account the sentence that she had imposed that morning on other matters. On the charges of stealing, assault, motor vehicle stealing, and demanding money with menaces, she convicted the applicant and made a global order that he serve a period of two months' detention to date from that day. The applicant contends that the imposition of a sentence of detention dating from that day was not open to her, since he had been in custody in relation to the charges of stealing, assault and motor vehicle stealing (complaints 12971/03 and 12972/03) since 17 June.
The Act, s89, contains the following:
"89 ¾ (1) If a detention order is made, any period during which the youth was held in custody pending the determination of the proceedings for the offence is counted as service of detention under that order.
(2) If a youth is held in custody pending the determination of proceedings for an offence and during that time the youth is also held in custody pending the determination of other proceedings for another offence, the Court may decide that the whole or part of the period of custody for which the youth was held pending the determination of the other proceedings is to be counted for the purposes of subsection (1)."
A number of observations can be made about s89. For one thing, it is not necessary for a magistrate to say anything as to the commencement date of a sentence in order for s89(1) to operate. Thus, if the learned magistrate had said nothing as to the commencement date of a period of detention in respect of the charges on which the applicant had been in custody since 17 June, his sentence would automatically have run from that date. Further, s89(2) is a provision that can apply only when the magistrate makes a decision that some or all of a period of custody is to be counted for the purposes of s89(1). In this case, it was open to the learned magistrate to decide that the whole of the period from 17 June to 1 September was to be counted towards any period of detention ordered in respect of complaints 12971/03 and 12972/03, or that some part of that period was to be so counted. In the absence of a decision that only part of the period was to be counted, given that s89(1) was apparently intended to ensure fair treatment for defendants, I think the effect of s89(1) would have been that the whole of the period in custody would have to be counted as part of the period of detention.
Counsel for the respondent made a submission to the effect that, in substance, the learned magistrate had decided pursuant to s89(2) that none of the period in custody prior to 1 September was to be counted as service of detention pursuant to her detention order. I disagree. I acknowledge that the words of a busy magistrate exercising summary jurisdiction should not be interpreted pedantically. However, with great respect to the learned magistrate, I take her remarks to indicate that she had completely overlooked s89. She did not refer to the applicant having spent time in custody simultaneously in relation to the offences in respect of which she was making the detention order and other offences. It is true that at one point she mentioned that she had taken his time in custody into account in sentencing him for other offences that morning, and that she later said that the detention order would date from that day. However that in my view is not sufficient to indicate an exercise of the power conferred by s89(2).
In my view there was no reasonable basis for s89(2) to be applied to the applicant's detriment in respect of the period that he spent in custody from 17 June to 30 June inclusive. It is true that he was in custody during that period both in respect of offences that were the subject of the detention order and in respect of other offences. But those other offences, or alleged offences, comprised the aggravated burglary charge which had been dismissed, the armed robbery charge which had been replaced with the charge of demanding money with menaces, a charge of stealing property worth $4.50, a charge of trespassing at the Eastlands Shopping Centre, the traffic charges, and the charge of failing to appear. However it would have been appropriate for the learned magistrate to achieve the result she desired by sentencing the applicant to two months and 14 days' detention on complaints 12971/03 and 12972/03, deciding that the period from 1 July to 31 August inclusive was not to be counted as service of detention under that order, and sentencing the applicant to a concurrent two months' detention on complaint 15890/03.
By simply making an order for two months' detention with effect from the day of sentence, the learned magistrate imposed a penalty that she was not empowered to impose. It will have to be quashed. Counsel for the applicant submitted that the appropriate course was for the order for two months' detention to stand, but for it to be backdated to 17 June, with the result that her client should be treated as having completed his period of detention on 16 August. I disagree. Such a penalty would be more lenient than the penalty the learned magistrate intended to impose. The only appropriate course is for the applicant to be sentenced afresh. I could do that, but I think it would be more appropriate for a magistrate experienced in the work of the Youth Justice Division to undertake that task. I think it would be preferable for the same magistrate to undertake that task but, in the light of the comments of the High Court in Minister for Immigration and Multicultural Affairs v Wang (2003) 77 ALJR 786, I will not make an order that the matter be remitted to her. I simply express a preference that the matter be dealt with by her after it is remitted.
For these reasons, I order in relation to each of the three motions to review that the motion be allowed, the sentencing orders quashed, and the complaint remitted to the Youth Justice Division of the Magistrates Court for determination according to law. I order that the applicant appear before a magistrate in the Youth Justice Division of the Magistrates Court on 15 October 2003 at 2.15pm. His bail will continue.
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