MD v Brown - [2012] NTSC 49

MD v Brown & Anor [2012] NTSC 49
PARTIES: MD
v

BROWN, Peter Phillip

&

ELLIS, Sally

&

DENNIEN, Jonathon

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   JA 30 of 2012 (21142894)
JA 31 of 2012 (21143836)
JA 32 of 2012 (21143838)
JA 33 of 2012 (21143843)
JA 34 of 2012 (21202269)

DELIVERED:   20 JULY 2012
HEARING DATES:   2 JULY 2012
APPEAL FROM:   E MORRIS SM
JUDGMENT OF:   KELLY J
CATCHWORDS:

CRIMINAL LAW – Appeal against sentence – Youth Justice Act – failing to give appropriate weight to the principles that a youth should only be kept in custody for an offence as a last resort, and for the shortest period of time – fixing a sentence of imprisonment by reference to time spent on remand and available options for release – no miscarriage of justice – appeal dismissed
CRIMINAL LAW – Appeal against sentence – Youth Justice Act – appeal against sentences imposed because they are manifestly excessive – sentences not manifestly excessive having regard to the gravity of the offending in all of the circumstances – appeal dismissed

Youth Justice Act
Care and Protection of Children Act

Bartusevics v Fisher (1973) 8 SASR 601, applied.

Jambajimba v Dredge (1985) 33 NTR 19; Van Toorenburg v Westphal [2011] NTSC 31, followed.

Carcuro v Norris [2007] NTSC 18; M v Waldron (1988) 56 NTR 1; P (a minor) v Hill (1992) 110 FLR 42, referred to.
REPRESENTATION:
Counsel:
Appellant:   G O’Brien-Hartcher
Respondents:   C Henderson
Solicitors:
Appellant:   North Australian Aboriginal Justice Agency
Respondents:   Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:   KEL12016
Number of pages:   15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
MD v Brown & Anor [2012] NTSC 49
JA 30 of 2012 (21142894)
JA 31 of 2012 (21143836)
JA 32 of 2012 (21143838)
JA 33 of 2012 (21143843)
JA 34 of 2012 (21202269)
BETWEEN:

MD

Applicant

AND:

PETER PHILLIP BROWN

AND:

SALLY ELLIS

AND:

JONATHON DENNIEN

Respondents

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 20 July 2012)

In December 2011 MD was 14 years old. She had already committed a number of serious offences, two counts of entering a dwelling house with intent to commit an offence, two counts of property damage and one count of stealing. One charge of property damage involved “trashing” a school and causing approximately $30,000 worth of damage.
These offences were committed in August 2009 when she was just 12 years old, March 2010 when she was 12 and May 2010 when she was 13. In each case the Youth Justice Court found the offence proven and no conviction was recorded. She was dealt with for all of these offences at the same time and released on a bond to be of good behaviour for 12 months.
MD complied with the conditions of her bond. However, shortly after the 12 months had expired, she committed…

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 MD v Brown

Details

AGLC: MD v Brown & Anor [2012] NTSC 49
Case: [2012] NTSC 49
Decision Date: 20/07/2012

CaseChat Overview and Summary

The matter of MD v Brown involved the sentencing of a young offender by a magistrate. The offender, MD, had been on remand for a lengthy period due to committing further crimes while on bail. The case was heard in the Northern Territory Court of Appeal, which reviewed the magistrate’s sentencing decision. The key legal issue was whether the magistrate had adequately considered alternative sentencing options and the objective seriousness of the offending before imposing a 91-day custodial sentence.

The court examined whether the magistrate had complied with the principles applicable to sentencing youths, particularly focusing on rehabilitation and the interests of the juvenile. It was noted that the magistrate appeared to have been cautious, patient, and caring, emphasizing MD's future wellbeing. However, the court also pointed out that the magistrate did not explicitly state whether she had considered other available options or the objective seriousness of the offending. Although the failure to mention a sentencing principle does not necessarily mean it was overlooked, the court found that the magistrate’s reasons were not as detailed as those in a considered reserved judgment. The court held that while it was acceptable to assume that a magistrate had considered all relevant matters, in this instance, the lack of explicit consideration of alternative options and the objective seriousness of the offending was problematic.

Ultimately, the appeal was dismissed. The court recognised that while the magistrate’s approach was generally in line with sentencing principles for youths, the need for more explicit consideration of alternatives and the objective seriousness of the offending warranted a closer examination. The sentencing decision, however, was upheld as the court found no grounds for overturning the magistrate's conclusion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

She went on to impose the sentences referred to above. In doing so she said:“I’ve written your release date there just to make sure, because I’ve calculated the 91 days from the 16th of the 1st to the 15th of the 4th, but if I’ve got that wrong then I need to adjust that because what I want you to do is to get out on the 15th of the 4th.”Conclusions The learned magistrate was in a difficult situation. It seems to me that she was complying with the spirit of the principles applicable to sentencing youths: she was “cautious, patient and caring”, and kept “the interests of the juvenile foremost in mind”. She was focusing on the future wellbeing of MD with a view to her rehabilitation – taking the period of remand already served as a fait accompli. MD had been on remand for a lengthy period because she had committed further crimes while on bail. It has not been argued that she ought not to have been on remand in the circumstances: she was a persistent offender and it seems to me that the protection of the community did require her to be remanded in custody once she had breached her bail by committing further offences. The environment in which she had been placed by DCF (and to which DCF proposed returning her until the school term started) was not conducive to her rehabilitation. MD herself recognised that when she submitted to the magistrate, through her counsel, that her preference would be to go to Farrar House in Darwin over Anglicare in Katherine in the interim because she would not be so close to friends there and she would not be so likely to go astray. The suggestion by her counsel that MD be placed in Farrar House until school term started was not practicable without further information. The DCF officer who finally attended at the sentencing hearing was unable to tell the magistrate even how many children were housed at Farrar House, let alone whether there would have been a place for MD there until school started. Counsel for the appellant submitted that the learned magistrate should have adjourned the matter briefly to enable the option of her being housed at Farrar House until school started to be explored, but MD’s counsel made no such application at the sentencing hearing. Moreover the sentencing hearing had already been adjourned twice – once for a little over 6 weeks to obtain a pre-sentence report,[4] and once to enable an officer of DCF to be located and requested to come to court while MD waited in the cells. The learned magistrate did not expressly state that she was considering whether there were any appropriate available options other than a custodial sentence. Nor did she expressly state that she considered the objective seriousness of the offending warranted a 91 day custodial sentence in all of the circumstances. It has been said in this Court (and others) numerous times that it is not to be assumed that the failure to mention a sentencing principle means that it has been overlooked.[5] Magistrates are working under pressures which mean that they are simply unable to give the kind of detailed reasons which might be expected of a court delivering a reserved judgment, and sentencing remarks delivered in such circumstances should not be subjected to the same degree of critical analysis as the words in a considered reserved judgment.[6] An appellate court is entitled to assume that a magistrate has considered all matters which are necessarily implicit in any conclusions which he has reached.[7]

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.