NF v Luke Ridley
[2004] ACTSC 110
NF v LUKE RIDLEY [2004] ACTSC 110 (16 September 2004)
EX TEMPORE JUDGMENT
No. SCA 33 of 2004
Judge: Crispin J
Supreme Court of the ACT
Date: 16 September 2004
IN THE SUPREME COURT OF THE )
) No. SCA 33 of 2004
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:NF
Applicant
AND:LUKE RIDLEY
Respondent
ORDER
Judge: Crispin J
Date: 16 September 2004
Place: Canberra
THE COURT ORDERS THAT:
the appeal be allowed, that the sentence of the learned magistrate in relation to the offence of armed robbery be set aside;
the appellant be committed to an institution in the Australian Capital Territory for a period of 12 months rather than 18 months, and that such sentence be served concurrently with the other sentences that were imposed upon the same date. The sentences will, of course, date from the same date as those imposed by the magistrate.
This is an appeal against the perceived severity of a sentence imposed upon a young person for an offence of armed robbery. The young person in question was part of a group of seven young people, one of whom had a screwdriver, who approached a man on 15 February 2004 in the early hours of the morning and proceeded to rob him. The member of the group with the screwdriver produced that implement and held it to the throat of the victim. A mobile phone, a neck chain and some items of clothing were taken.
It should be observed that the young person was not, by any means, established to have been the initiator of this criminal enterprise, nor was she the person with the screwdriver. Furthermore, and this is a very significant fact, she was then only 15 years of age, having been born on 28 November 1988.
The young person was sentenced to a term of 18 months’ imprisonment in respect of that charge. She was also sentenced, on the same day, for a number of other offences, namely breach of a community service order, breach of a recognizance previously imposed upon her for unlawfully riding in a motor vehicle, minor theft and three counts of burglary. In relation to each of those offences she received sentences requiring her to be confined in an institution, but those sentences were to be served concurrently with the sentence for armed robbery.
The young person had previous convictions for a number of offences including, perhaps most significantly, convictions recorded in August of 2002 for arson, robbery and three counts of assault.
The learned magistrate had the benefit of a court report from Youth Justice Services which indicated that she was the third child of her parents who had moved to Canberra from Coffs Harbour about five years ago. The report indicated that the young person had said that she had a good relationship with her family, though she was prone to running away when she formed the impression that her mother had been drinking too much.
She said that she had had a variety of living arrangements during 2002 and 2003. It appears that her parents and sister relocated to Coffs Harbour in March 2003 and that she elected not to go with them. According to ACT Youth Justice Services’ file notes, South Eastern Aboriginal Legal Aid had assisted the young person by providing accommodation for her at Lowanna Refuge. However, she remained there only one night before leaving to live with a friend. After breaching her bail, she moved to Coffs Harbour in June 2003 but returned with her sister in September of that year.
She first came to the attention of Family Services in October 2001 due to non-attendance at school and reports were received in the following year regarding lack of parental guidance and involvement with ACT Youth Justice.
According to the case worker with ACT Family Services, allegations of emotional abuse and neglect were substantiated and there was an agreement being arranged for her mother to undergo treatment for alcoholism. However, the family left Canberra and the case was formally closed in October of 2003.
The young person’s attendance at school has been spasmodic, though she attended educational programs at Quamby Youth Detention Centre whilst committed there between August 2002 and February 2003. She reported that prior to that time she had been smoking up to three sticks of marijuana per day but had been using less after her release.
She was apparently referred to the Court Alcohol and Drug Assessment Service in early April 2003 and attended with the assistance of the South Eastern Aboriginal Legal Service. Information from CADAS indicated that she had high levels of binge drinking with friends but was unwilling to engage in counselling.
In dealing with the matter, his Worship indicated that he would otherwise have thought that an overall sentence of about two years would have been appropriate for all of the offences with which he was concerned, but accepted that it was appropriate to allow a substantial discount for her pleas of guilty.
He observed that there was no capacity to suspend sentences imposed upon a young person and said, “If I was dealing with her as an adult, I would certainly be of the view that I would require her to serve 12 months and that six would be suspended.” He added, and again I quote, “But as a child and accepting the limitations on sentencing and the role that Juvenile Justice then play and when they release people and things of that sort, but if it was to be less than 12 months in reality, it’s a pointless exercise, I think.”
Mr Edmonds, who appears on behalf of the young person, submits that this approach involved a clear error of law. It indicated that his Worship had thought it appropriate to ultimately impose a sentence that would require the young person to serve 18 months in custody on the assumption that that sentence would be effectively mitigated by periods of remission, and that as a consequence it would be reduced to only 12 months, or something a little more than that. He had taken that view, notwithstanding the fact that he would have sentenced an adult offender to only 18 months’ imprisonment and even then ordered that six months of that sentence be wholly suspended.
I do not interpret his Worship’s remarks as reflecting that approach. In my opinion, his Worship was not intending to convey an indication that, had the young person been an adult, he would have sentenced her to a term of 18 months’ imprisonment. Indeed, had the young person been an adult, it would not have been open to his Worship to sentence her at all for an offence of armed robbery, since the maximum penalty prescribed for such an offence is beyond the jurisdictional limit of the Magistrates Court.
What I think his Worship was endeavouring to indicate was that if the sentencing regime and powers applicable to the young person had been similar to those applicable to an adult, he would have adopted the course of imposing a sentence of 18 months’ imprisonment or a committal requiring her to spend 18 months in custody, and then suspending that sentence after 12 months. Accordingly, I reject that challenge to his Worship’s discretion.
In my opinion, Mr Edmonds was on firmer ground in submitting that it had been inappropriate for his Worship to approach the matter by determining the amount of time which he thought it appropriate for the young person to spend in custody and then effectively engineering that result by increasing the sentence to a point which would achieve that period in custody, even after allowing for remissions.
The correct approach is rather to determine the sentence that is appropriate for the offence or offences in question and to trust that the authorities will mitigate the effect of the sentence so imposed only if it is appropriate to do so.
The sentencing of young people is governed by the Children and Young People Act 1999 (ACT), s 68 of which provides that:
If a decision is to be made under this part in relation to a young person or young offender, the decision-maker must make the decision in accordance with the following principles.
(a) if a young person does anything that is contrary to law, he or she should be encouraged to accept responsibility for their behaviour and held accountable;
(b) the young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways;
(c) an young person may only be detained in custody for an offence (whether on arrest, in remand or under sentence) as a last resort;
(d) young offenders should be dealt with in the criminal law system in a manner consistent with their age and maturity and have the same rights and protection before the law as would adults in similar circumstances;
(e) on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community;
(f) a balanced approach must be taken between the needs of the young offender, the rights of any victim of the action that constituted the young offender’s offence and the interests of the community.
Section 99 provides, inter alia, that:
The Children’s Court may not make an order for the imprisonment of a young person for a period longer than the period that could have been imposed in respect of the offence if the offence had been committed by an adult.
The power to grant remissions is provided by s 127 of the Act, and that is in the following terms:
If a young person has been committed to an institution, the chief executive may, unless the Childrens Court otherwise ordered when committing the young person, having regard to the young person’s conduct and industry or to special circumstances, reduce the period stated by the court under that paragraph by not more than 1/3 of the period so stated.
It may be noted that this is a discretionary power rather than a provision of automatic application. Accordingly it seems to me that notwithstanding any perception that remissions of that kind are commonly granted or even normally granted, it is a statutory discretion which is imposed upon the chief executive subject to the power of a magistrate to order that no such remissions be granted.
In the absence of any such indication - and I would hasten to say that in my view the power to give such an indication should be exercised only in relatively exceptional circumstances - it is a matter for the chief executive to determine whether any remissions, and if so what remissions, should be granted to a particular detainee, subject to the limitation imposed by that Act.
Similar considerations had, in the past, arisen in relation to adult offenders sentenced in this jurisdiction. In my opinion a sentence or non-parole period should not be increased due to considerations of this kind.
Subject to this matter, I would have thought, with respect to Mr Edmonds’ other submissions, that the learned magistrate had approached this matter in an impeccable manner and I would otherwise not have interfered with the discretion which he exercised. However, it follows that, from the view that I’ve expressed, that his decision was, in my view, vitiated by error of law, and accordingly I am obliged to re-sentence the young person.
I order that the appeal be allowed, that the sentence of the learned magistrate in relation to the offence of armed robbery be set aside. In lieu thereof I order that she be committed to an institution in the Australian Capital Territory for a period of 12 months rather than 18 months, and that such sentence be served concurrently with
the other sentences that were imposed upon the same date. The sentences will, of course, date from the same date as those imposed by the magistrate.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 25 October 2004
Counsel for the appellant: Mr P Edmonds
Solicitor for the appellant: South Eastern Aboriginal Legal Service
Counsel for the respondent: Ms M Hunter
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 16 September 2004
Date of judgment: 16 September 2004
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