MB v Masani - [2024] NTSC 71

CITATION:MB v Masani [2024] NTSC 71
PARTIES:MB
v

MASANI, Kolisi

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 23 of 2023 (22300934)
DELIVERED:  3 September 2024
HEARING DATE:  31 July 2024

FURTHER WRITTEN
SUBMISSIONS FILED: 11 August 2024

JUDGMENT OF: Brownhill J
CATCHWORDS:

CRIMINAL LAW – Appeals – Appeal from Youth Justice Court – Youth re-sentenced pursuant to s 121(6) of the Youth Justice Act – Appeal against sentence – Appeal dismissed.
CRIMINAL LAW – Appeals - Whether sentencing Judge misapplied youth sentencing principles – Court must impose sentence of detention only as a last resort – Rehabilitation as the primary sentencing factor for youth offenders – Focus on rehabilitation over deterrence is mediated by matters subjective to the offender – Rehabilitation afforded less weight where an offender has previously failed to modify behaviours – Sentencing Judge considered rehabilitation in the sentencing exercise – Sentence to detention was the only reasonable alternative in the circumstances –Ground of appeal dismissed.
CRIMINAL LAW – Appeals – Whether sentencing Judge failed to apply the principle of totality – Presumption of concurrency under the Youth Justice Act – Presumption of concurrency is rebuttable – Previous sentences were served by the time of re-sentencing – Totality principle applied even though the two sentences had been served – Sentencing Judge did not make express reference to totality within the Reasons – Implicit within Reasons that the Sentencing Judge took into account earlier sentences – No material error made by the Sentencing Judge – Ground of appeal dismissed.
Sayer v The Queen [2018] VSCA 177, TM v The Queen [2017] NTCCA 3 referred to.
Youth Justice Act 2005 (NT) s 126.
REPRESENTATION:
Counsel:
Appellant:A McCowan
Respondent:  T Gooley
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Bro2407
Number of pages:  23

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
MB v Masani [2024] NTSC 71

No. LCA 23 of 2023 (2230094)
BETWEEN:

MB

Appellant

AND:

KOLISI MASANI

Respondent

CORAM: BROWNHILL J
REASONS FOR DECISION
(Delivered 3 September 2024)

The issue in this appeal is whether the sentence of detention for six months imposed by the Youth Justice Court when re-sentencing the appellant pursuant to s 121(6) of the Youth Justice Act 2005 (NT) (‘Act’) for the offences of unlawful entry of a building, stealing and property damage was infected by specific error, namely a failure to apply the sentencing principles applicable to youths and a failure to apply the principle of totality.
Procedural background
On 2 March 2023, the Youth Justice Court sentenced the appellant, following pleas of guilty to the offences of unlawful entry of a building (contrary to s 213 of the Criminal Code), stealing (contrary to s 210 of the Criminal Code) and property damage (contrary to s 241 of the Criminal Code). The appellant received an aggregate sentence of…

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 MB v Masani

Details

AGLC: MB v Masani [2024] NTSC 71
Case: [2024] NTSC 71
Decision Date: 3 September 2024

CaseChat Overview and Summary

In the matter of MB v Masani, the appellant, MB, sought to appeal the sentence imposed by the Youth Justice Court for various offences including unlawful entry, stealing, and property damage. The appeal focused on the length and appropriateness of the sentence, particularly the six-month detention term imposed for these offences. The appellant argued that the sentencing judge had misapplied the principles of youth sentencing and failed to apply the principle of totality, which pertains to the cumulative effect of sentences.

The court was required to determine whether the sentencing judge had erred in applying the principles of youth sentencing and the principle of totality. The appeal centred on the assertion that the sentence imposed was disproportionate and did not adequately consider the rehabilitative needs of the youth offender, nor did it properly account for the cumulative impact of the sentences previously served. The court had to examine the sentencing judge's reasoning to ascertain if the principles applicable to youth offenders were correctly applied and if the principle of totality was appropriately considered.

The court found that the sentencing judge had considered the principles of youth sentencing and the need for rehabilitation, but concluded that detention was the only reasonable alternative given the appellant's history and the seriousness of the offences. The court also determined that the principle of totality was implicitly considered, despite the absence of explicit mention in the sentencing reasons. The court held that the sentence was appropriate and dismissed the appeal, finding no material error in the sentencing process.

The court confirmed the sentence of six months detention for six months, with four months suspended, and ordered the sentences to run concurrently with the previously imposed sentences. The court rejected the appellant's grounds of appeal, affirming the Youth Justice Court's decision.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this appeal is whether the sentence of detention for six months imposed by the Youth Justice Court when re-sentencing the appellant pursuant to s 121(6) of the Youth Justice Act 2005 (NT) (‘Act’) for the offences of unlawful entry of a building, stealing and property damage was infected by specific error, namely a failure to apply the sentencing principles applicable to youths and a failure to apply the principle of totality.Procedural background On 2 March 2023, the Youth Justice Court sentenced the appellant, following pleas of guilty to the offences of unlawful entry of a building (contrary to s 213 of the Criminal Code), stealing (contrary to s 210 of the Criminal Code) and property damage (contrary to s 241 of the Criminal Code). The appellant received an aggregate sentence of 12 months’ detention, suspended after four months, with supervision and other conditions for 12 months from the date of release. That sentence was backdated to 7 December 2022. At the same time, the appellant was also sentenced for numerous offences on six other files, the offences being unlawful entry, property damage, stealing and the like. The appellant was also re-sentenced for breaches of an earlier suspended sentence. The aggregate sentences on each file ranged from two months’ to four months’ detention. All the sentences imposed, including for the offences the subject of this appeal, were backdated to 7 December 2022 and were ordered to be served concurrently. The circumstances of the offending the subject of this appeal were that during the early hours of 22 October 2022, the appellant and a co-offender unlawfully entered the business premises of Lutheran Care in Alice Springs by smashing a window near the back door causing damage to the property with a cost of $1,600 to repair. Once inside the premises, the appellant and his co-offender broke into two safes damaging them in the process with a cost of $3,000 to repair. They then used stolen car keys to steal a vehicle valued at $60,000, to which they caused significant damage whilst driving. When sentencing the appellant, the sentencing Judge observed that, overall, the appellant’s offending was ‘a serious example of this kind of behaviour’, was ‘not particularly out of character’ for him, and was aggravated by the fact that much of it occurred when he was on a suspended sentence. In relation to the offending the subject of this appeal, the sentencing Judge observed that it had been appropriately characterised by both parties as ‘the most serious of all of this trouble’, and that he was satisfied that a period of detention was warranted because of the seriousness of the matters. The sentencing Judge also observed that the appellant’s compliance with the earlier suspended sentence had not been ‘particularly good’. The appellant was released from detention on 6 April 2023, with eight months of the 12 month sentence suspended, and a 12 month operational period. On 11 April 2023, the appellant was found to have breached the suspended sentence by committing an offence of trespass on 9 April 2023. The operational period of the suspended sentence was extended to 30 June 2024. The appellant was also sentenced to one month detention for the trespass offence, backdated to 10 April 2023. He was released from detention on 9 May 2023.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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