Nathan Richardson v Peter Cumming and David Peach - [2000] NTSC 46

Nathan Richardson v Peter Cumming and David Peach
[2000] NTSC 46
PARTIES:NATHAN RICHARDSON
v

PETER CUMMING

AND

DAVID PEACH

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL FROM THE JUVENILE COURT EXERCISING TERRITORY JURISDICTION
FILE NO:JA 18 and 19 of 2000
(20003071 & 20004814)

DELIVERED:  23 June 2000
HEARING DATES:  30 May and 19 June 2000
JUDGMENT OF:  BAILEY J
REPRESENTATION:
Counsel:
Appellant:S. Cox
Respondent:  J. Blokland
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  bai0004
Number of pages:  10

bai0004
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Nathan Richardson v Peter Cumming and David Peach
[2000] NTSC 46
No. JA 18 and 19 of 2000
(20003071 and 20004814)

BETWEEN:
NATHAN RICHARDSON

Appellant
AND:
PETER CUMMING

First Respondent
AND:
DAVID PEACH
Second Respondent

CORAM: BAILEY J
REASONS FOR JUDGMENT
(Delivered 23 June 2000)

On Friday 10 March 2000, the juvenile appellant was convicted upon his own pleas of the following offences and received the following sentences:

Offence Date of Offence Sentence

Unlawful entry       12.12.99                 120 hours Community Service Order
Stealing                  12.12.99                 40 hours Community Service Order
Unlawful entry       23.12.99                 120 hours Community Service Order
Unlawful entry       02.01.00                 120 hours Community Service Order
Stealing                  02.01.00                 8 hours Community Service Order

Offence Date of Offence Sentence

Unlawful entry       26.02.00
Stealing                  26.02.00                 3 months detention (suspended
Unlawful entry       26.02.00                 for 12 months; supervision

Stealing 26.02.00 for 6 months)

Unlawful entry 28.02.00
Stealing 28.02.00

In addition to the above offences, the appellant pleaded guilty to three charges of unlawful damage to property (to a total value of $3,100) committed in connection with the February offences of unlawful entry and stealing. The appellant was discharged without penalty in relation to those three offences.
Ms Cox, who appeared on behalf of the appellant before this Court (but not before the Juvenile Court) sought to rely on the following grounds of appeal:
(a)that the learned sentencing magistrate erred in failing to give weight, or sufficient weight, to matters apart from the appellant’s pleas of guilty; and
(b)that the sentences imposed by the learned sentencing magistrate were manifestly excessive.
It is unnecessary here to set out full details of the appellant’s offences. The six unlawful entries and five stealings followed a familiar pattern of opportunistic and poorly executed unlawful entries to domestic premises, a school, a training centre and a social club. On each occasion the appellant was in the company of young adult associates. In the course of committing the offences, nearly $3,500 damage was caused to various premises and the property stolen comprised: cash ($1000), cigarettes ($300), food ($40) and a torch ($20).
The appellant was born on 24 November 1983 and accordingly was 16 years old at the time of the offences and at the date of his sentencing.
The offences of February 2000 were committed whilst the appellant was on bail for the earlier offences. The appellant spent five days in custody prior to the plea and sentence proceedings on 10 March 2000.
The appellant had no history of offending prior to the offences in question. Before the learned magistrate it was submitted that the appellant had followed his older associates in breaking into premises in search of money and food. It was pressed that the appellant was often left hungry after his mother spent a large proportion of the family income on alcohol. Counsel for the appellant before the learned magistrate stressed the appellant’s clear record, his full co-operation with the police, his pleas of guilty and the need for a sentence structured to promote his rehabilitation in the light of his young age. It was submitted that, taking into account the five days which the appellant had spent in custody, a community service order would be an appropriate penalty. The police prosecutor did not seek to argue against such a disposition and commented that a custodial sentence, actual or suspended, would fall outside the usual range of offences of the present character having regard to the appellant’s background and the circumstances generally.
The learned magistrate during the course of submissions indicated that he was familiar with the sentencing principles applicable to juveniles by reference to such well known authorities as Simmonds v Hill (1986) 38 NTR 31 and M v Hill (1993) 114 FLR 59. The learned magistrate expressly excluded retribution as a relevant factor in sentencing a juvenile and recognised the weight to be given to rehabilitation as the dominant consideration. The learned magistrate also observed:
“He’s committed offences whilst on bail, very shortly after being bailed. Now that’s a very worrying factor and special measures have to be taken with this juvenile to engender in him a process of thought that he must never offend again”.
Aside from exchanges with counsel during the course of submissions, the learned magistrate did not give reasons in imposing the sentences which are the subject of this appeal. From the passage set out above, it would appear that a major consideration (and perhaps the major consideration) in the learned magistrate’s reasons for sentence was his view that the appellant would benefit from a measure of personal deterrence. Even accepting that view, it must be said that the learned magistrate’s approach in sentencing the appellant falls a long way short of what is required in sentencing any offender, juvenile or adult.
It is impossible to know from what the learned magistrate did say during the course of submissions of the extent, if any, to which he took into account the powerful subjective mitigating factors in favour of the appellant, namely his young age, clear record, full co-operation and pleas of guilty. No reference was made to the time spent by the appellant in custody and no reference was made to the objective seriousness of the appellant’s offending.
I consider that the learned magistrate’s omission to provide reasons in announcing sentence amounts to a fundamental error. In Hill v Arnold (1976) 9 ALR 350 of 357, Muirhead J observed:
“This Court remains appreciative of the difficulties and pressures under which our magistrates are working, but nevertheless, it is important that at least succinct reasons for decision be given”.
This was said in the context of a contested case regarding reasons for conviction, but in my view, the principle is equally applicable in matters of sentence and this is particularly so where, as here, the learned magistrate decides to impose a custodial sentence (albeit fully suspended) on a juvenile. It is incumbent upon magistrates to provide reasons for their decisions on both conviction and sentence. The extent and depth of such reasons will, of course, vary with the circumstances, but as a minimum, a person is entitled to know why he has been convicted and why he has been sentenced to a particular penalty.
In the present case, there was almost a complete absence of reasons for sentence. On this basis alone, the appellant is entitled to succeed in his appeal. However, it was further submitted by Ms Cox that the sentence imposed was manifestly excessive in all the circumstances. In the proceedings before the learned magistrate, some support for this view came from the Police prosecutor, Sergeant David Peach, an officer with considerable experience in the prosecution of juvenile first offenders.
When invited by the learned magistrate to make submissions on sentence, Sergeant Peach said:
“Sir, he is a first offender and sir, I would submit that detention, whether actual or suspended, sir, wouldn’t be appropriate in his case.”
Sergeant Peach also indicated that in his recent experience, juvenile first offenders had not received sentences of detention (suspended or immediate) for offences of a similar nature. The learned magistrate rejected the views of Sergeant Peach, again emphasising that the appellant had committed offences whilst on bail.
In this Court, at my request, Ms Cox has provided me with details of recent sentences imposed by the Juvenile Court on Aboriginal first offenders found guilty of unlawful entries and stealings in remote communities. The material supplied was limited to matters dealt with for the period from September 1998 until the present. A summary of the information is as follows:

File No. No. and Nature of Offences Disposition

20003197        Unlawful entry x 8  Conviction – 12 months
and                  Stealing x 8  supervised GBB and
20008651        Unlawful damage x 7  96 hours CSO
Trespass x 1

File No.           No. and Nature of Offences          Disposition
9816249          Trespass x 1  Without conviction –
Unlawful entry x 1  12 months GBB

9816257 Unlawful entry x 1 Without conviction –
Stealing x 1 12 months GBB

9821453          Unlawful entry x 15  Conviction – 8 months
Stealing x 16  detention, suspended
  Trespass x 1  for 12 months
  Interference with a motor               (supervision for 6 months
  vehicle x 1  and outstation residence
for 12 months)

9823413          Unlawful entry x 1  Without conviction –
Stealing x 1  12 months GBB
  Unlawful damage x 1
  Trespass x 1
Attempt to unlawfully use
  a motor vehicle x 1

9823719          Unlawful entry x 2  Without conviction –
Stealing x 2  6 months GBB and
  Unlawful damage x 2  120 hours CSO
  Trespass x 1
  Unlawful use of a motor
  vehicle x 1
  Attempted unlawful use of
  motor vehicle x 1

9824294 Unlawful entry x 1 Without conviction –
Unlawful damage x 1 8 months GBB (requiring
daily school attendance)

9824469          Unlawful entry x 1  Conviction – 12 months
Stealing x 1  supervised GBB
Trespass x 1
  Unlawful damage x 1
  Attempted unlawful use of
a motor vehicle x 1

9901317          Unlawful entry x 1  Conviction – 12 months
Stealing x 1  GBB (requiring daily
Unlawful damage x 1  school attendance)

File No. No. and Nature of Offences Disposition

9908632 Unlawful entry x 3 Conviction – 24 months
Stealing x 1 GBB (supervised for
6 months)

It is apparent from the above summary that with one exception (file no.9821453) the recent practice of the Juvenile Court has not been to impose (suspended) sentences of detention upon first time offenders in remote communities.
I note that the juvenile offender in the first matter in the summary was a co-offender of the present appellant in respect of all offences occurring on file 20003197 and most offences occurring on file 20008651. The co-offender is around one month younger than the present appellant and was sentenced some two months after the present appellant.
In the present case, I consider that the learned magistrate placed undue emphasis upon personal deterrence as a sentencing objective. To the extent that the learned magistrate expressed any reasons for sentence, he emphasised that the offences committed in February 2000 occurred very shortly after the appellant had been bailed for the offences committed during December 1999 and January 2000. The commission of further offences whilst on bail is undoubtedly a serious aggravating factor. While in sentencing juveniles rehabilitation is the paramount consideration, this does not mean that other sentencing objectives are not to be totally excluded. For example, Mildren J in Forrester v Dredge (unreported) No. JA 78 of 1996, delivered 19 February 1997 observed:
“…general deterrence does have a role to play even in the sentencing of juveniles and the weight to be given to it must vary according to the circumstances of the case, including the nature of the charge.”
(and see also the comments of Thomas J adopting these remarks in Grego v Setter, unreported, delivered 19 December 1997).
In the case of a juvenile offender, a sentence structured to promote rehabilitation may (and often will) include measures which have the effect of including an element of personal deterrence. However, in the present case, I consider that the learned magistrate’s emphasis on personal deterrence was excessive in all the circumstances. In my view, a unsophisticated juvenile with no prior experience of the criminal justice system would be unlikely to appreciate the full gravity of committing further offences while on bail for similar offending. Further, the sentences imposed are beyond the range of a sound exercise of judicial discretion for cases of similar nature in the case of a juvenile first offender.
For the above reasons, I set aside the sentences imposed upon the appellant. I confirm that a conviction is to be recorded with respect to each of the eleven offences, referred to at paragraph [1] above, and I substitute the following orders:
(a)with respect to each of the eleven offences, the appellant is ordered to be released on a bond on his own recognizance in the sum of $500 to be of good behavior for 12 months from 23 June 2000; and
(b)with respect to each of the three offences of unlawful entry committed during February 2000, the appellant is ordered, pursuant to section 53AA of the Juvenile Justice Act, to participate in an approved project for 32 hours in the case of each of the three offences.
The total of 96 hours required to be completed under the three community service orders is required to be completed by 23 September 2000. The appellant is to receive credit for the number of hours, if any, which the appellant has undertaken in an approved project in compliance with the learned magistrate’s order of 10 March 2000.
Finally, I note that in imposing the substituted sentences I have taken into account the five days which the appellant served in custody prior to his appearance before the learned magistrate on 10 March 2000.

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