Nandy v Green - [2010] NTSC 29

Nandy v Green [2010] NTSC 29
PARTIES:NANDY, Desmond
v

GREEN, Glennys Kay

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL FROM THE YOUTH JUSTICE COURT EXERCISING TERRITORY JURISDICTION

FILE NO:  JA 2 of 2009 (20932823)
DELIVERED:  2 June 2010
HEARING DATES:  21 May 2010
JUDGMENT OF:  OLSSON AJ
CATCHWORDS:

YOUTH JUSTICE ACT (NT) – JUSTICES APPEAL –
Appeals against sentence – aggravated assault amounting to “sexual offence” - whether sentence manifestly excessive – whether Magistrate erred by failing to consider alternative sentencing options – whether Magistrate failed to have due regard to sentencing principles in the Youth Justice Act – whether conviction ought to have been recorded - appeal allowed – sentence imposed reduced – conviction to stand.

Youth Justice Act, s 4 and s 123; Sexual Offences (Evidence and Procedure) Act; Sentencing Act, s 8.

Brandenburg v Hales and Carlon [2006] NTSC 3; Cranssen v R (1936) 55 CLR 509; DD v Cahill [2009] NTSC 62; R v Avgoustinos (1975) 13 SASR 48; R v Bryant [2005] QCA 19; Salmon v Chute and Another (1994) 94 NTR 1; Sambono v Pettit [2010] NTSC 4, cited.
REPRESENTATION:
Counsel:
Appellant:Ms A L Gill
Respondent:  C W Roberts
Solicitors:
Appellant:CAALAS
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:   C
Judgment ID Number:  Ols 0107
Number of pages:  25

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Nandy v Green [2010] NTSC 29

No. JA 2 of 2009 (20932823)
IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against the sentence of the Youth Justice Court at Alice Springs

BETWEEN:

DESMOND NANDY

Appellant

AND:

GLENNYS KAY GREEN

Respondent

CORAM: OLSSON AJ
REASONS FOR JUDGMENT
(Delivered 2 June 2010)
Introduction

On 2 November 2009, the appellant appeared before a stipendiary Magistrate constituting the Youth Justice Court at Alice Springs. He had pleaded guilty to a charge of having unlawfully assaulted KT, circumstances of aggravation being that she was a female and he was a male and that she was indecently assaulted.
The learned Magistrate had sought a pre-sentence report in respect of the appellant, but was initially unsuccessful in obtaining it because the appellant did not report to the Court’s officer prior to leaving the Court and could not subsequently be located by Community Corrections. The Court eventually received a limited report dated 2 November 2009.
In the event, the learned Magistrate, having heard the relevant undisputed facts, recorded a conviction against the appellant and sentenced him to four months detention, deemed to have commenced on 18 October 2009. He then conditionally suspended that sentence forthwith, with an operational period of 12 months. The conditions imposed related to place of residence and supervision.
A notice of appeal was filed on 2 December 2009. This pleaded that:
(1)the sentence imposed was manifestly excessive;
(2)the learned Magistrate erred by failing to consider sentencing options other than detention; and
(3)he failed to have due regard to the sentencing principles and considerations to be applied to Youth Offenders, as stipulated in the Youth Justice Act.
The relevant notice of appeal was filed out of time and the appellant has sought an extension of time in which to appeal. That application is not opposed by the respondent and I accordingly grant it.
Relevant narrative facts
The offence now under consideration was not dealt with by the learned Magistrate in isolation, nor can it now, logically, be so considered.
On 2 November 2009, the appellant in fact appeared in the Youth Justice Court in relation to four separate charges, to all of which he pleaded guilty. He was then just 14 years of age.
It should be noted that these were not his first encounters with the criminal justice system. Late in September 2008 he was involved in JDS-diversion by way of a family conference in relation to one count of entering a building with intent to commit a crime and three counts of unlawfully damaging property on 19 November 2007 and one count of damaging property where the loss was over $5,000 on 31 October 2008.
Brief details of the offences before the learned Magistrate on 2 November 2009 were:
(1)File 20912247
This file involved two counts of unlawful entry, one count of stealing and two counts of unlawfully damaging property.
The Court was informed that, at about 2:35 am on 19 November 2008, the appellant, in company with four co-offenders, entered McDonald's restaurant through an unlocked, external freezer door. The group made their way to the office, disabled the alarm system by pulling the power cords from the wall, removed two handheld computers and an electronic calibrator, defaced a wall of the office and discharged a fire extinguisher. They then moved to a food preparation area, defaced its walls, damaged an electronic cash register and stole coins from several donation containers. Total damage was in excess of $5,000.
The group then made its way to the Alice Springs Town Council premises in the Civic Centre, where the appellant climbed on the roof and smashed a window. He then entered the building through the broken window and opened a door to allow his co-offenders access to the building. The group searched various rooms and smashed a crystal ornament. Total damage was of the order of $600.
(2)File 20909464
This file related to charges of trespassing on enclosed premises and criminal damage in excess of $5,000.
The Court was told that, in the early evening of 13 March 2009, the appellant, with three co-offenders, climbed a six-foot fence on Brown Street and entered the Tangentyere Youth Services compound. They smashed the front passenger's window of a Toyota Corolla with a rock. They then approached a Toyota commuter bus, smashed the driver's side window with a rock, entered the bus and then smashed most of its windows with a red fire extinguisher. Not content with that, they further smashed most windows of two other buses and a Toyota LandCruiser. In all, 37 windows were smashed, the cost of rectification being about $7,000.
(3)File 20909468
This file concerned one count of entering a building at night with intent and one count of unlawfully damaging property.
The relevant events occurred after the entry into the Youth Services compound. They involved the appellant in company with two of the co-offenders who had been involved in the previous offences.
This group decided to enter the Central Australian Rugby Union canteen on Anzac Oval. By means of a crowbar taken from Woolworths loading bay, they forced open the metal side door of the canteen and also an inner steel meshed door. Thereafter, with the aid of the crowbar, they smashed a wooden door to the bar area, setting off an audible, internal alarm. The alarm caused the group to flee. Damage to the property was assessed at $500.
(4)File 20912247
This file relates to the charge of indecent assault, the subject of the present appeal.
The relevant facts put to the Court were that, on 15 June 2009, the appellant and some friends were walking around the Alice Springs CBD. At about 4 pm, they entered the Yeperenye Shopping Centre and made their way towards the food court area.
Upon reaching that area, the appellant walked past a 42-year-old woman and, as he did so, took a firm grasp of her right breast, to the point of unbalancing her. He then let go of her breast and absconded. However, he was identified on CCTV coverage of the area.
It was therefore made apparent to the learned Magistrate that the offence of 15 June 2009 was the final incident in a series of unlawful and wilful activities over a relatively short time frame.
The appellant's personal circumstances, as made known to the Youth Justice Court
Because of difficulties in preparation of a fully comprehensive pre-sentence report due to a lack of initial cooperation by both the appellant and certain family members, the learned Magistrate only had before him somewhat limited background information in relation to the appellant.
The facts made known to him were:
(1)The appellant was born on 1 October 1996. His parents were separated and there had been domestic violence between them. His aunt had been primarily attempting to look after him since he was about four or five years of age.
(2)He had been enrolled at the Yipirinya School in mid-July 2009, which reported that, whilst he was quite bright, the appellant tended to act up and was disruptive in class. However, he had not actually attended school since 2 September 2009.
(3)He had, for a time, been living with his mother and family members at Kurrajong Drive but, because his uncle who had lived at that address passed away, he and his mother relocated to Ti Tree for a time. His father resided at Amoonguna Community.
(4)After a time, the appellant returned to Amoonguna in the custody of his father and grandmother, so that he could attend Yipirinya School and maintain his life in Alice Springs.
(5) He was involved in a number of organised sporting activities in Alice Springs.
(6)It was suggested that his parents had been somewhat unsupportive in ensuring that the appellant met his obligations to the Court, which had been reflected in failures to appear when required and to cooperate with Community Corrections. It was said that there had been a lack of a stable home environment and proper supervision.
(7)It was reported to the learned Magistrate that the appellant "just runs wild" and that he had resided between his father’s and paternal grandparents’.
(8)The family had now recognised a need for both stability and supervision and his uncle Patrick and his grandmother who reside at Amoonguna were prepared to supervise him and have him reside in their home. Patrick has two daughters who also attended Yipirinya School. He was prepared to ensure that the appellant was appropriately transported so that he could not only attend school, but also organised sporting fixtures. He was further prepared to act as a role model for the appellant. The learned Magistrate was told that Patrick Nandy and his wife were virtual non-drinkers.
(9)The report indicated a fairly general consensus that it was desirable to keep the appellant away from Alice Springs, because he needed to be removed from inappropriate and antisocial peer influences.
The learned Magistrate was told that, in relation to the indecent assault, the appellant came into the Yeperenye Centre with other young boys after attending school and had commenced tapping women on the bottom or approaching them as a game. He was then egged on by the others to do what he did.

The approach of the learned Magistrate

In proceeding to sentence in respect of the various offences, the learned Magistrate had this to say:
"Well, you’ve pleaded guilty before me in respect to a lot of trouble, dealing with going into other people's premises and damaging their property, as well as that serious assault upon that lady who was just walking along minding her own business. Now you need to realise that people have a right to expect that their property won't be broken into or their stuff stolen. Now I'm sure when you have things of your own you'd be very upset if anyone stole them or broke them and that applies to all of us. We all have to get the money to buy our stuff and we don't want it interfered with by people like yourself or anybody else who just do it because they get mixed up with the wrong people and follow those fellows around, instead of doing the right thing.
You have been in custody now for a little while in relation to these matters and the Court is concerned to help you get your life back on track. We don't want to be locking young people up and taking them away from their families. What we want is for them to sit down with their elders and listen to what they've got to say and grow up to be young men who look after their families and obey the law. So you need to listen to your uncle and your extended family and do what they ask you to do. It's important that you go off to school and learn all those things that the teachers teach you at school because that will help you get a job and look after yourself in a good way later on.
What I’ve decided to do today is to let you go home with your uncle and you will have to have some supervision from Community Corrections as well. And listen to everybody because people are concerned about you and want to make sure that you make good decisions for yourself. And you will need to realise, if you haven't already, that if you get into this sort of trouble and come to Court, then you can only expect that you might get locked up and get taken away from your friends and your family. So it's up to you to make good decisions for yourself in the future.”
The learned Magistrate then proceeded to impose the following sentences:
As to File 20912247 -- an aggregate sentence of detention for 14 days commencing on 28 September 2009
As to File 20909464 -- an aggregate sentence of 21 days detention, also to commence on 28 September 2009
As to File 20909468 -- an aggregate sentence of 21 days detention, commencing on the 28 September 2009
As to File 20932823 -- a sentence of 4 months detention to commence on 18 October 2009, suspended immediately, with an operational period of 12 months.
The suspension to which I have referred was conditioned upon the appellant residing with his uncle Patrick at Amoonguna and accepting the supervision of the probation and parole service including obeying all reasonable directions as to residence, reporting, education and involvement in counselling activities. The learned Magistrate deemed time already spent in custody a sufficient punishment in relation to certain breach of bail matters.
Relevant principles
As I commented in the recent case of Sambono v Pettit,[1] it is trite to say that the principles applicable to an appeal of this nature are well settled. They derive from authorities such as Salmon v Chute and Another,[2] and Cranssen v R.[3] With respect, they were very conveniently summarised by Thomas J in the course of her judgment in Brandenburg v Hales and Carlon.[4]
She reiterated the oft-made point that it is fundamental that the exercise by a Magistrate of the sentencing discretion is not to be disturbed on appeal unless error in that exercise is demonstrated, it being presumed that there is no error.
It is not enough that an appellate court considers that it would have imposed a different sentence or that it thinks, for example, that a sentence is overly severe. It interferes only if it can be shown that the sentencing judicial officer was in error or acted on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence. Error may appear in what the sentencing judicial officer has said, or the very terms of the sentence itself may be such as to patently manifest such error.
The basis of the appeal
Counsel for the appellant took, as an important commencement point, the fact that, prior to appearing before the learned Magistrate, the appellant had never been convicted of an offence and ought to have been dealt with as a first offender.
In my opinion such a contention reflects a considerable oversimplification of the actual situation.
True it is that, prior to appearing before the Court on 2 November 2009, the appellant did not have any prior convictions recorded against him, a fact that is, prima facie, relevant in the selection of sentencing options. However, it is quite unreal to suggest that the learned Magistrate ought to have been blind to the real, practical situation.
He was entitled to bear in mind that, not only had the appellant deliberately engaged in a spate of serious offences of which the subject of this appeal was one, but he had done so against the background of a then recent pattern of offending of a serious nature in relation to which he had been extended considerable leniency in the form of diversion -- leniency that had not produced the desired rehabilitative result.
I now turn to the specific grounds of appeal relied on by the appellant.
Grounds 1, 2, 3 and 5
It is asserted on behalf of the appellant that the learned Magistrate gave no proper consideration to the appellant’s youth, immaturity and personal background. Criticism was also advanced to the effect that the learned Magistrate did not indicate either the basis on which he determined that a custodial disposition ought to be ordered, by way of contrast with some alternative disposition and that he also did not indicate what discount, if any, had been allowed for a timely plea. The appellant goes so far as to contend that the learned Magistrate did not consider sentencing options other than a period of immediate detention and had failed to have due regard to the general sentencing principles expressed in the Youth Justice Act and that, when considering sentencing disposition, he failed to give due weight to the appellant's age, lack of antecedents, early plea and personal circumstances.
I approach those contentions on the basis that this matter was dealt with by the learned Magistrate in the context of a busy summary list. The matter had, in fact, been before him on several previous occasions, it having become very apparent that neither the appellant nor his family had been particularly cooperative in facilitating the preparation of a useful pre-sentence report -- given that it emerged that some family disruption had been caused by the death of a family member.
Nevertheless, full information had been provided as to the facts relating to the offences and the appellant's offending history. His counsel had fully explored the highlights of the personal background of the appellant, the problems associated with it and how, it was said, that the offences had come about.
What readily emerged was the picture of an irresponsible, uncontrolled young person who was simply running wild and continuing on a course of serious criminal activity involving very substantial damage and loss to victims, notwithstanding his initial diversion in relation to prior offending conduct of a type similar to certain of that then before the learned Magistrate. Certainly much of the offending had occurred in the context of group activity, but there was not the slightest doubt that the accused had played a significant role in the relevant conduct.
His attitude towards the Court and its processes had been somewhat cavalier, to say the least.
The offence presently under consideration, albeit of a different generic type to those that had preceded it, was the culmination of a course of prior unlawful conduct and, having regard to its inherent gravity as a sexual offence, marked an escalation in relative seriousness of the accused’s activities.
There cannot be the slightest doubt that this very experienced Magistrate was well aware of and gave full consideration to the appellant's youth, immaturity and personal background. Any suggestion to the contrary is, with respect, little short of fanciful.
It is clear that his main focus, quite properly, was on discharging the requirement of s 123 of the Youth Justice Act in explaining to the appellant, in simple terms, the purpose and effect of his dispositions and the consequences of non-compliance with the requirements attaching to the suspension of the custodial order.
It must be accepted that the learned Magistrate did not embark on a fully definitive exposition of his reasons for adopting custodial dispositions rather than alternative forms of sentence; and that he did not expressly indicate the extent to which he had made an allowance for timely pleas. It is, of course, desirable that he should have done so, conformably with the many published authorities in that regard.
However, quite apart from the presumption of regularity, it is and was quite obvious, from the relevant factual circumstances placed before the Court, what the learned Magistrate actually said to the appellant in the course of his s 123 explanation to him and the careful structuring by the learned Magistrate of his detailed sentencing strategy, why he opted for the dispositions actually adopted.

In reality, I do not consider that the learned Magistrate did actually fail to express any reasons for the course that he adopted. His reasons were necessarily implicit in what he said and the manner in which he expressed himself.
It cannot be stressed too strongly that, inherently, the offences before the Court were by no means trivial. Both individually and in their totality they were extremely serious and, as I have indicated, gave rise to very substantial loss and damage to the relevant victims and, in the case of the offence the subject of this appeal, a very nasty experience for a woman who was simply going about her normal activities.
The gravamen of this pattern of conduct was that it followed equally serious earlier offending of a type similar to that of many of the Counts before the learned Magistrate, that had been the subject of the earlier diversion.
Moreover, the learned Magistrate was faced with a clear attitude on the part of the appellant that was scarcely consistent with what I construe as an ultimate convincing expression of regret. What is relied upon in that regard seems to have been extracted from him in the course of preparation of the pre-sentence report as a result of questions put to him.
The appellant had initially been seemingly uncooperative in relation to the preparation of such a report, had deliberately lied to the probation officer and had displayed only limited appreciation of the enormity of his conduct. Even more importantly, it became apparent that he had committed what was a serious "sexual offence" within the meaning of the Sexual Offences (Evidence and Procedure) Act whilst on bail in respect of other, earlier offences.
The learned Magistrate plainly came to the conclusion that the pattern of offending and its nature was so inherently serious and the attitude of the appellant, in continuing to offend whilst on bail, was such that the only responsible course was to impose a suspended custodial disposition that would ensure that there was an effective regime in place to deter the appellant from continuing his depredations on and antisocial conduct within the community -- despite the fact that these were his first actual convictions recorded by a Court.
It was quite obvious that nothing short of that was likely to have any practical remedial effect. In that regard, it is interesting to note that no appeal has been prosecuted in respect to either the recording of convictions against the accused in relation to the other matters that were before the learned Magistrate or the custodial dispositions in relation to them.
It is not to be forgotten that, whilst the Youth Justice Act properly places great emphasis on the need to focus on the rehabilitation of a young offender, s 4 of that statute mandates that, at the end of the day, a balanced approach must be taken between the needs of the youth, the rights of any victim of the youth's offence and the interest of the community. Personal deterrence, in particular, remains an important consideration, particularly in circumstances such as those now under consideration.
This was, patently, one of those relatively rare situations in which, such was the continuing course of serious antisocial conduct of this almost 14-year-old offender that the interests and protection of the community had to be given adequate recognition in achieving a proper balance. They far outweighed consideration of the personal circumstances of the appellant and his lack of recorded antecedents.
The learned Magistrate obviously took the view that "enough was enough" and that stringent measures were manifestly called for to contain an escalating pattern of serious unlawful behaviour and to ensure the future good conduct of the appellant and the due protection of the community.
It is apparent to me that he concluded that the only practical means of doing so was to put in place a regime whereby the appellant was both subject to proper supervision and also confronted with an effective disciplinary sanction in the event of a failure to modify his behaviour. Such a view is scarcely surprising in view of the flagrant breach of bail that had already occurred.
In my opinion, the learned Magistrate was correct in such an assessment, in this particular case. It is quite apparent that nothing short of an appropriate stern deterrent was likely to achieve the rehabilitation of this young man and, at the same time, afford that protection to the community that it is entitled to expect.
It is normally, although not invariably, the practice to indicate what specific allowance has been made in recognition of timely pleas and it is in the interest of transparency that this be done. The learned Magistrate did not give such an indication in this case, but I remain unconvinced that such an experienced judicial officer would not have made an appropriate allowance.
Given the appellant’s somewhat uncooperative attitude and the absence of what I regard as evidence of convincing remorse, his conduct, coupled with the obvious fact that the pleas must, in large measure, have been a recognition of the inevitable, necessarily attracted a relatively modest discount.
I infer that, in relation to the specific offence the subject of the present appeal, the learned Magistrate must have taken, as his commencement point, a sentence of detention approaching five months. I take the stance of Ms Gill, counsel for the appellant, to be that, having regard to the custodial sentences imposed in respect of the other offences not now the subject of appeal, such a commencement point was, manifestly, an undue quantum leap for a young offender who had never before been the subject of a custodial disposition. This was particularly so bearing in mind that, although what was under consideration was a sexual offence, the circumstances related to it did not place the relevant conduct in the most serious category of offences of that type.
Mr Roberts, counsel for the respondent, submitted that, objectively, the impugned sentence properly reflected the gravity of the offending and provided an appropriate vehicle upon which to base the conditional suspension.
He argued that, to impose a lesser sentence, would devalue the objective seriousness of the commission of a sexual offence of the nature in question, particularly because it had been committed whilst the appellant was on bail in respect of yet another serious course of offending. The relevant offence was a degrading act in a public place committed on a total stranger. The appellant's conduct constituted both a contempt for the victim and also a total disregard for the fact that he was already before the Court in respect of other significant offences. He had, in fact, committed some 14 separate offences, giving rise to very considerable loss and damage to victims.
Mr Roberts submitted that age and immaturity alone cannot protect a young offender from imposition of a custodial sentence, even as a first convicted offender, if the circumstances of offending clearly warrant or demand that type of disposition. The s 123 explanation given by the learned Magistrate implies that he had obviously considered the alternative sentencing options open to him.
I agree with the substance of those submissions.
That said, the one concern that I do have is in relation to the period of detention imposed in relation to the offence now under consideration -- bearing in mind that the appellant had never before been the subject of a custodial disposition.
It seems to me that the situation called for a modest disposition that could act as an effective deterrent against future unlawful conduct, but not one that was unduly severe, bearing in mind the appellant's age. Indeed, I am quite satisfied that the learned Magistrate correctly assessed that, in the particular circumstances of this case, no alternative type of disposition available to him was likely to achieve such a result.
By a somewhat narrow margin, I am satisfied that the period of detention ordered was, on the face of it, manifestly excessive in the case of this offender. He had already served 15 days in detention and that, coupled with the possibility of a modest further period if he again offended, was what was called for.
Whilst the indecent assault was, of course, inherently serious by reason of it being a sexual offence, nevertheless it was toward the lower end of the relevant scale, no long term consequences appear to have been caused to the victim and it must be conceded that the conduct was intended more or less as a stupid lark than a deliberate, positive commission of a sexual assault, as such, in the sense pertinent to adult offenders.
I consider that, on such a basis, the first ground of appeal has been made out.
Ground 4
This ground asserts that the learned Magistrate erred in recording a conviction against the appellant, given his young age, lack of antecedents, the circumstances of the offending and his personal circumstances.
This ground is somewhat curious for two reasons.
First, it was never suggested to the learned Magistrate on behalf of the appellant that a conviction ought not to be recorded, either as to the offence now in issue or any of the other related matters dealt with on 2 November 2009.
Second, no appeals have been prosecuted in relation to the other Counts dealt with by the learned Magistrate on that date.
In her written submission, Ms Gill simply averred that the learned Magistrate gave no consideration in sentencing the appellant to the matters referred to in Ground 4.
In the course of her oral submissions I took her, in effect, to essentially base her argument on the proposition that, because the offence under consideration was a sexual offence and thus more inherently serious than many other offences (in that it could give rise to adverse later consequences in the event that the appellant committed some other sexual offence) the recording of a conviction in this instance was unduly harsh and ought not to have occurred.
Given the fact that this question was not raised as an issue before the learned Magistrate it is unsurprising that he did not advert to it. It is equally unsurprising that he did not apparently seriously contemplate the possibility of not recording a conviction.
Whilst it must be conceded that somewhat different considerations do arise as to the recording of convictions in the case of a young offender,[5] by way of contrast with an adult offender, nonetheless, certain of the conceptual considerations are common to both. What is involved is, in some respects, a balancing exercise.
As was pointed out by Bray CJ in R v Avgoustinos,[6] whilst the recording of a conviction has a punitive aspect, there is an important public interest in convictions being recorded to express community disapproval of an offender's conduct and as a means of enabling those who have a proper interest in dealing with an offender (eg in relation to dealings with government agencies and prospective employers) to know the type of person with whom they are dealing. In general, a court will be more inclined not to record a conviction where the offending has had no direct effect on the victim and where the breach is not deliberate and blatant. That, of course, is scarcely the situation in the instant case.
In the case of DD v Cahill[7] Riley J commented:
"The Youth Justice Court itself does not provide any guidance as to the matters to be taken into account in determining whether or not to record a conviction. The decision involves an exercise of discretion. However, the discretion must be exercised judicially and, in that process, all of the relevant surrounding circumstances must be considered, including factors of the kind identified in s 8 of the Sentencing Act. In addition, it is appropriate to consider the consequences of the imposition of a conviction upon the person concerned. The recording of a conviction has been described as 'a formal and solemn act marking the court’s and society’s disapproval of the defendant's wrongdoing'. The recording of a conviction is, in itself, an element of punishment. In some cases, notably with adult offenders, it may encourage an offender to refrain from further offending and may act as a deterrent to others. That is less likely to be a consideration in the case of a very young offender who may be expected to be less mature, less aware of the consequences of an act, subject to peer pressure and less responsible than an adult".
It is to be noted that s 8 of the Sentencing Act stipulates that, in deciding whether or not to record a conviction, a court shall have regard to the circumstances of the case including:
·The character, antecedents, age, health or mental condition of the offender;
·the extent, if any, to which the offence is of a trivial nature; or
·the extent, if any, to which the offence was committed under extenuating circumstances
It is at once apparent that the relevant offence was neither trivial nor committed under extenuating circumstances.
The appellant complains that the learned Magistrate gave no consideration to the matters referred to by Riley J in DD v Cahill.
The short riposte to that complaint is that it is unsurprising that he made no express reference to them in the circumstances. Not only was he not requested to consider not recording a conviction but, prima facie, there were no obvious circumstances suggestive of a need to do so. Quite apart from the fact that there is an obvious illogicality in recording convictions as to the less serious offences (as to which no complaint is made) and not the more serious offence, the fact is that, when considered in the context of the whole course of offending by the appellant over time, there was simply no rational basis for any non-recording.
This ground is not made out.
Conclusion
Having regard to my conclusion as to Grounds 1, 2, 3 and 5, this appeal must be allowed and the custodial sentence imposed set aside. In my opinion, there should be substituted for the sentence imposed a sentence of two months detention deemed to have commenced on 18 October 2009, suspended as of 2 November 2009 on the same terms as were imposed by the learned Magistrate and with the same operational period as was stipulated by him.
There will be orders accordingly.

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[1] [2010] NTSC 4.

[2] (1994) 94 NTR 1 at 24.

[3] (1936) 55 CLR 509 at 519.

[4] [2006] NTSC 3.

[5] As to which see R v Bryant [2005] QCA 19.

[6] (1975) 13 SASR 48 at 49.

[7] [2009] NTSC 62 at [14], [15].