Marks v McLeay

[2023] NTSC 85

CITATION:Marks v McLeay [2023] NTSC 85

PARTIES:MARKS, Joseph

and

MCLEAY, Ross

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:LCA 15 of 2023 (22211722),

LCA 16 of 2023 (22215302) and

LCA 17 of 2023 (22219408)

DELIVERED:  27 September 2023

HEARING DATE:  15 August and 5 September 2023

JUDGMENT OF:  Barr J

CATCHWORDS:

CRIMINAL LAW – Sentencing – Youth Justice Act 2005 – Appeal against severity of sentence – Appellant re-offended while subject to good behaviour orders – Breach of order – Sentencing options in s 121(6) Youth Justice Act 2005 include varying order, alternatively revoking order/re-sentencing – Statutory alternatives – Youth Justice Court purportedly made orders varying and re-sentencing – Error of law – Proposed that appeal be allowed on ground not relied on by appellant – Proposed that consideration of breach of orders be remitted to Youth Justice Court for further hearing – Circumstances require parties to given opportunity to make further submissions before final orders made  

Local Court (Criminal Procedure) Act 1928 (NT) s 165, s 172, s 177
Youth Justice Act 2005 (NT) s 83, s 121, s 144

R v McInerney (1986) 42 SASR 125; Carnese v The Queen [2009] NTCCA 8; Verity v SB [2011] NTSC 26, applied

REPRESENTATION:

Counsel:

Appellant:C Leonard

Respondent:  P Williams

Solicitors:

Appellants:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Bar2311

Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Marks v McLeay [2023] NTSC 85

No. LCA 15 of 2023 (22211722),
No. LCA 16 of 2023 (22215302) and
No. LCA 17 of 2023 (22219408)

BETWEEN:

JOSEPH MARKS

Appellant

AND:

ROSS MCLEAY

Respondent

CORAM:    BARR J

REASONS FOR DECISION

(Delivered 27 September 2023)

1. These are appeals against the severity of a number of sentences imposed for offences committed by the appellant as a 17 year old. On the first ground, the sentences are said to be manifestly excessive because convictions were recorded. On the second ground, it is contended that the learned sentencing judge acted beyond power as a judge of the Youth Justice Court dealing with an offender pursuant to s 121 Youth Justice Act 2005 for the breach of good behaviour orders.

2. On 7 July 2022, Judge Bamber sitting in the Youth Justice Court in Alice Springs imposed non-conviction good behaviour orders for the appellant’s offending on 17 April 2022 (file 22211722), on 20 May 2022 (file 22215302) and on 27 June 2022 (file 22219408).

3. The offences committed on 17 April 2022 were (1) contravening a domestic violence order (DVO), and (2) resisting a member of the police force in the execution of his duty. It may be noted that the appellant was born in January 2005 and so was 17 years and three months old at the time of offending.

4. According to the statement of facts provided to the Youth Justice Court, police officers observed the appellant intimidating and threatening the 15 year old female victim. She had been named as the ‘protected person’ in a police DVO served earlier that day. Police officers intervened as the appellant stormed towards the teenage girl. The appellant then squared up into a boxing stance, yelling at the protected person in a loud and threatening tone. When police attempted to physically restrain the appellant to prevent a further escalation, he resisted arrest by dropping his weight and swinging his arms to break free from police hold. He continued to resist by flailing his arms and legs and then pulling his arms under his body to resist police attempts to handcuff him. He then physically resisted attempts by police to put him into the back of the police caged vehicle.

5. The offences committed on 20 May 2022 were (1) contravening a DVO, (2) unlawfully assaulting a male victim, aggravated by the use of a weapon, namely a hammer and (3) damaging property. In brief, after entering the male victim’s front yard and damaging his mailbox with a hammer, the appellant “presented the hammer in such a manner that made [the victim] believe he was going to throw the hammer at him”.[1] Still in possession of the hammer, the appellant went to a house where the 15 year old female protected person was staying and yelled, “Open the door”. This frightened the victim. Police were called and the appellant was arrested.

6. The offences committed on 27 June 2022 were (1) damaging property, namely a glass door window at the Mutitjulu Police Station, (2) behaving in a disorderly manner in a police station and (3) resisting a member of the police force in the execution of his duty. At the time, the appellant was on bail for the offences committed on 20 May 2022. One of the conditions of bail was that he not approach or contact the 15 year old protected person. In the afternoon of 27 June 2022, police found the appellant at a house in Mutitjulu in the company of the protected person, in breach of the bail condition. When the police attempted to arrest him, he physically resisted by pulling away, falling to the ground, holding on to the doorframe, and even holding on to the protected person. It took three officers to overpower him and place him in handcuffs. As he was being escorted to the police caged vehicle, he fell to the ground, and dropped to his knees at the cage door. This required police to lift him up into the cage while he was twisting, rolling and kicking out. When he was placed in the back of the cage, he pushed out with his legs to prevent police from closing the door. The resisting behaviour continued for 13 minutes. Meanwhile, because of the appellant’s actions, his family became agitated towards police. The police officers sensibly allowed the appellant out of the cage and placed him on the ground. Family members then spoke with him and with police. However, after about 12 minutes of talking with family, the appellant refused their instructions to get up and into the cage. This required police to again lift the appellant into the cage, but it appears that he then engaged in “resisting behaviour” for another five minutes.

7. After being placed in a cell at the Mutitjulu Watch House, the appellant acted in a disorderly manner by kicking the cell doors and shouting out. He then repeatedly kicked a cell window, causing it to shatter and rendering it unsafe. The cost to repair the window was estimated to be $2,000. After his bail application was refused, the appellant resisted being placed back into his cell and would not allow police to close the door. Police eventually overpowered him and took him to ground at the rear of the cell to allow police sufficient time to get out and shut the door. The appellant then started kicking the cell window and door for the next couple of hours.

8. As mentioned in [2] above, on 7 July 2022, Judge Bamber imposed non-conviction good behaviour orders for all of the appellant’s offending. On the same day, Judge Bamber confirmed the domestic violence order against the appellant. That DVO restrained the appellant from directly or indirectly approaching or remaining in the company of the protected person: in effect a full non-contact order.

9. On 12 January 2023, the appellant contravened the DVO. He went up to the victim while she was waiting in line at the food court at the Yeperenye Shopping Centre in Alice Springs. He pulled on her sleeve and asked for money for food. When the victim moved and sat at a table, the appellant sat on a chair behind her, from where he leaned his head on her right shoulder and continued to ask for money. The victim moved chairs two or three times but each time the appellant moved and sat close to her or at the same table, facing her. When the victim went outside for a cigarette, the appellant followed her and stood next to her for some time. They then walked away together towards the Alice Springs public library. A witness, who was a close relative of the victim, followed the victim and saw the victim and the appellant walking along Gregory Terrace towards the Todd River. The appellant said, “Don’t call the police. I’m not going to hurt her”. The witness replied “I don’t give a damn. Leave my daughter alone. Don’t you understand DVOs?”.

10. On 13 March 2023, in file 22306092, Judge Bamber sentenced the appellant for the DVO contravention committed on 12 January 2023. His Honour convicted the appellant and imposed a 12-month good behaviour order, pursuant to s 83(1)(f) Youth Justice Act 2005. His Honour described it as a “zero-recognizance bond”.[2] After sentencing for the fresh offending, Judge Bamber dealt with the appellant for the breach of the non-conviction good behaviour orders made on 7 July 2022, referred to in [2] above. The sentencing remarks were very brief, but it appears that his Honour convicted the appellant on all charges, and that he varied the good behaviour orders by extending the period of the orders to a date 12 months from 13 March 2023. I set out the relevant part of the sentencing remarks below:[3]

    And the good behaviour bond is across the other three files. Again, I am going to convict you and place you on a bond extended until 12 months from today.

11. The reference to “the other three files” is to the files relating to offending on 17 April 2022 (file 2221 1722), on 20 May 2022 (file 2221 5302) and on 27 June 2022 (file 2221 9408). I note that the extended period of the good behaviour orders previously imposed would take their operation to 12 March 2024, still within the two-year maximum period specified in s 83(1)(f)(i) Youth Justice Act 2005, which ran from 7 July 2022.

    The appeals

12. The appellant has pressed three separate appeal proceedings in this Court: LCA 15/2023; LCA 16/2023 and LCA 17/2023.[4] All three relate to the sentencing of the appellant on 13 March 2023 for the offences charged in the three files referred to in [11] above. In all three, the appellant contends that the sentences imposed were manifestly excessive because convictions were entered.

13. In addition to the ground of manifest access, the appellant relies on a second  ground of appeal in each appeal proceeding, as follows:[5]

    That the Youth Justice Court erred in exercising its power under s 121(6)(a)(i) Youth Justice Act 2005 and acted beyond its power in recording a conviction.    

14. Given its relevance to the second ground, I set out below s 121(6) of the Act:

    If the Court is satisfied by evidence on oath or by affidavit, or by the admission of a youth, that the youth has breached an order, the Court may:

    (a)   if the order is still in force:

    (i)confirm or vary the order; or

    (ii)revoke the order and deal with the youth under section 83 as if it had just found him or her guilty of the relevant offence or offences; and

    (b)if the order is no longer in force – deal with the youth under section 83 as if it had just found him or her guilty of the relevant offence or offences.

15. Counsel for the appellant contends that there was a fundamental error in his Honour’s approach. Although she acknowledges that Judge Bamber did not indicate the statutory provision(s) of the Youth Justice Act 2005 relied on by him, counsel contends that in extending the period of the good behaviour orders (“bond extended until 12 months from today”), his Honour thereby varied the orders, necessarily utilising the power under s 121(6)(a)(i) Youth Justice Act 2005. However, in proceeding to convict on all matters, his Honour was resentencing the appellant, that is, sentencing him under s 83(1) Youth Justice Act 2005, utilising the power under s 121(6)(a)(ii) of the Act. Counsel for the appellant contends that his Honour fell into error, because proceeding under subparagraph (a)(ii) of s 121(6) is an alternative to proceeding under subparagraph (a)(i), and his Honour was not lawfully able to do both.

16. I raised with the parties when the appeal first came on for hearing the possible characterisation of the good behaviour orders made on 7 July 2022 as “non-conviction good behaviour orders” and that imposing convictions and extending the good behaviour orders together came within the concept of varying the orders under s 121(6)(a)(i) Youth Justice Act 2005. However, as counsel for the appellant submits, that characterisation fails to take account of two important matters.

17. The first matter is that a conviction is not a mere formality or an additional endorsement on the court file having no significance. The recording of a conviction is to be regarded as a component of a sentence.[6] As a result, to proceed to conviction is necessarily a step in sentencing.

18. The second matter is the structure of s 83(1) Youth Justice Act 2005. The reference to ‘conviction’ in the chapeau of the subsection makes it a preliminary sentencing option independent of the ‘orders’ the Youth Justice Court may make.[7] Those orders are separately listed within paragraphs (a) to (m) of s 83(1). I agree with the submission made by counsel for the respondent that the reference to a conviction in the opening words of s 83(1) does not “fuse a conviction (or non-conviction) into a single order with whatever order is made under [paragraphs] (a) to (m).”[8]

19. In a manner complementary to s 83 Youth Justice Act 2005, the drafting of s 121 of the Act, which deals with the consequences of the breach of an ‘order’, is clearly directed at breaches of orders listed within s 83(1). This is particularly so in relation to s 121(6), but it may be first noted that s 121(1) sets out the circumstances in which a youth breaches an ‘order’, which include failing without reasonable excuse to comply with a term or condition of the order and re-offending while he or she is subject to the order.[9] The options then available to the Youth Justice Court for breach of an order are set out in s 121(6), extracted in [14] above. It is tolerably clear that recourse to s 83 of the Act is required if the Court considers that confirming or even varying an order is insufficient (or if the order is no longer in force).

20. However, if the order is still in force, the Court cannot have recourse to s 83 without first revoking the order which has been breached.

21. My conclusion is that, following a proven breach, proceeding to conviction is a sentencing option only where the Court deals with the youth under s 83 Youth Justice Act 2005, whether pursuant to s 121(6)(a)(ii) or s 121(6)(b) of the Act. There is no statutory warrant to proceed to conviction in circumstances where the Court has varied the breached order pursuant to s 121(6)(a)(i) of the Act.

22. However, the corollary to the conclusion in the previous paragraph is that there is no statutory warrant to vary the breached order pursuant to s 121(6)(a)(i), by extending the operation of the order, where the Court has dealt with the offender under s 83 Youth Justice Act 2005 by proceeding to conviction.

23. Counsel for the appellant is clearly correct in her contention that proceeding under s 121(6)(a)(ii) is an alternative to proceeding under s 121(6)(a)(i), and that the Youth Justice Court was not lawfully able to do both. It is tolerably clear that the Youth Justice Court did both, and thereby erred in law.

24. The consequences of that legal error are difficult to determine. It is clear that, if the Youth Justice Court purported to record convictions in circumstances where it had exercised its power to vary under s 121(6)(a)(i) Youth Justice Act 2005, then the Court erred in law. However, it is also clear that, if the Youth Justice Court purported to extend the operation of the good behaviour orders in circumstances where it had exercised its power under s 121(6)(a)(ii) and s 83 Youth Justice Act 2005 by recording convictions, the Court erred in law. The very brief sentencing remarks extracted in [10] above are quite unhelpful. It is unclear whether the Court’s mention of the word ‘convict’ means that the Court first convicted the appellant and then, in error, extended the previous good behaviour order (the “bond”). If that were the case, the question arises as to whether the conviction was lawful in circumstances where the Youth Justice Court had not revoked the breached orders, such revocation being a condition precedent to the Court proceeding under s 83, pursuant to s 121(6)(a)(ii).

25. In the circumstances explained by me, I do not see how I can allow the three appeals on the second ground, stated in [13] above. However, I propose to allow the appeal on the grounds stated in indented par 2 in [27] below.

26. One of the options open to this Court is to remit the case for further hearing before the Youth Justice Court, pursuant to s 177(2)(d) Local Court (Criminal Procedure) Act 1928. The provision serves a useful purpose in circumstances such as the present, where the Supreme Court is satisfied that there has been an error of law but it is inappropriate for the matter to be dealt with by the Supreme Court further, for a number of reasons.

27. In the circumstances, I would propose to make the following orders in relation to each appeal:

    1. Pursuant to s 144 (3) Youth Justice Act 2005 read with s 165 Local Court (Criminal Procedure) Act 1928, I dispense with compliance with a condition precedent to the right of appeal, namely service of notice in accordance with s 172 Local Court (Criminal Procedure) Act 1928 within 28 days from the time of the convictions appealed against.

    2.    The appeal is allowed on the ground that the Youth Justice Court erred in purporting both to record a conviction and to exercise its power to vary a good behaviour order. 

    3.    The convictions recorded by the Youth Justice Court be set aside. 

    4.    The orders made by the Youth Justice Court, varying the good behaviour orders by extending their operation, be set aside,

    5. Pursuant to s 144 (3) Youth Justice Act 2005 read with s 177(2)(d) Local Court (Criminal Procedure) Act 1928, I remit the breaches of order for further hearing before the Youth Justice Court.

28. The intent of the proposed orders 3 and 4 is to create a tabula rasa. I have not decided the merits of the first ground of appeal. In that context, I have made order 4, setting aside the order(s) extending the period of the good behaviour orders, to ensure that the Youth Justice Court is able to consider the breaches without being constrained by any of its earlier orders. If, hypothetically, the Youth Justice Court considered that it was in the interests of justice to convict the appellant on one or more charges, it would be unjust if the orders extending the period of the good behaviour orders were allowed to stand, effectively preventing recourse by the Youth Justice Court to s 83(1) of the Youth Justice Act 2005.

29. My reason for not deciding the first ground of appeal is that I consider that the Youth Justice Court is better placed than this Court to deal with the appellant’s breaches of its orders. The outstanding matters should be remitted to the Youth Justice Court. I am mindful of the considerable experience of Judge Bamber as a magistrate and Local Court judge, and specifically his knowledge of socio-cultural issues and the extent to which they impact on the lives of young persons in Central Australia. Because of his Honour’s previous involvement in the appellant’s various cases, he has a much better understanding of the appellant and his personal circumstances than I do.

30. Before I make formal orders, I direct that this judgment be provided to the parties, to give them the opportunity to make any further submissions in relation to the proposed orders. I am mindful that the ground on which I propose to allow the appeal is not the same as the ground argued by counsel for the appellant.

31. I grant liberty to both parties to apply.

    ------------

[1]      Statement of Facts, par 11.

[2]Transcript 13/03/2023, p 16.5.

[3]      Transcript 13/03/2023, p 16.6.

[4]      There was a fourth appeal proceeding, LCA 18/2023, in which the appellant asserted that the sentence imposed on 13 March 2023 for the DVO contravention on 12 January 2023 was manifestly excessive on account of the recording of a conviction. However, that appeal was discontinued prior to the hearing date of the remaining three appeals.

[5]      Appellant's outline of submissions, July 2023, par 12; Additional submissions on behalf of appellant, 30 August 2023, par 3.

[6]See Carnese v The Queen [2009] NTCCA 8, approving R v McInerney (1986) 42 SASR 125; Hales v Adams [2005] NTSC 86; Verity v SB [2011] NTSC 26 at [28].

[7] In this context, it should be noted that the section heading to s 83 YJA, “Orders Court may make” is not part of the Act. See s 55(2) Interpretation Act 1978. It would be part of the Act if the Act had been enacted after 1 July 2006 or the section heading had been amended or inserted after 1 July 2006. 

[8]Respondent’s submissions, 30 August 2023, par 23.

[9] See s 121(1)(a) & (c).