R v Chokljat
[2006] TASSC 71
•5 October 2006
[2006] TASSC 71
CITATION: R v Chokljat [2006] TASSC 71
PARTIES: R
v
CHOKLJAT, Katrina
LUSTED, Gary
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 21/2006
DELIVERED ON: 5 October 2006
DELIVERED AT: Launceston
HEARING DATE: 22 September and 2 October 2006
JUDGMENT OF: Slicer J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing - Generally – Review of sentence – Juvenile offender.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: P O'Halloran
Respondent: J Ransom
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 71
Number of paragraphs: 29
Serial No 71/2006
File No LCA 21/2006
R v KATRINA CHOKLJAT and GARY LUSTED
REASONS FOR JUDGMENT SLICER J
5 October 2006
The applicant was sentenced to a period of detention of eight months following his conviction for offences committed in July 2005 and May 2006. He was aged 15 and 16 years at the time of the respective offences. The sole ground of appeal is:
"The sentence imposed by the learned Magistrate was manifestly excessive in all the circumstances."
The admixture of disparate offences, their times of occurrence, the timing of the hearing of a "disputed facts" hearing, and the immediate imposition of a global sentence was unfortunate. Care is required in the sentencing process involving a 16 year old, especially if the consequence is a custodial order. Theory and practice, research and judicial experience, show that a custodial sentence, too readily imposed or made too easily, is counterproductive. It might reflect an instinctive or intuitive response by a judicial officer, but be harmful to the individual, family and society in general over a longer period.
That is not to say that detention is never an appropriate response to young persons aged 15 or 16. In some instances it is warranted, both in the interests of the youth and those affected by his or her conduct. Detention can be beneficial as a method of removal from particular circumstances, the provision of intensive care, counselling and adjustment, and provide for a degree of certainty and security for a troubled or fractured adolescent. In some instances it is appropriate simply as a means of "removal" from the capacity to cause trouble. The difficulty is in making the assessment in the light of potential outcomes. The Youth Justice Act 1997 ("the Act"), s5, is a statement by Parliament of the complex principles which ought govern the judicial response to criminal, antisocial, or troubled conduct by young persons. Relevant here is the Act, s5(1)(g) and (h) and 5(2)(d) which state:
"(1) The powers conferred by this Act are to be directed towards the objectives mentioned in section 4 with proper regard to the following principles:
…
(g)detaining a youth in custody should only be used as a last resort and should only be for as short a time as is necessary;
(h)punishment of a youth is to be designed so as to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways.
…
(2) Effect is to be given to the following principles so far as the circumstances of the individual case allow:
…
(d)there should be no unnecessary interruption of a youth's education or employment."
Here the admixture was understandable. But the time of the hearing of the components makes it difficult to identify the components of the "global sentence" and give proper consideration to whether the outcome constituted a "sentence which was manifestly excessive".
Nature and circumstance of the offences
In September 2005, the applicant was charged with the assault on 5 August on the father of his girlfriend. The applicant and the daughter had been in a relationship which included the family unit for some 12 months, but it had broken down in about July. On 8 July 2005, the applicant had trespassed onto the complainant's property and stolen a crossbow and six arrows from an unlocked shed on those premises. He was interviewed in July but only charged with the crimes of burglary and stealing by complaint made on 3 November 2005. It was evidence that the taking of the crossbow, the turbulent relationship between the applicant and the daughter, its ending and the assault on the father, were interrelated. On 6 February 2006, the date of the third appearance, the applicant entered pleas of guilty to the two complaints, but indicated that certain facts relating to the assault were in dispute. Those complaints were adjourned to 20 March, 31 May, 8 June, 22 June and 6 July. The "disputed facts" hearing was held on 6 July and the decision reserved until 20 July.
On 17 May, the applicant was charged with offences of motor vehicle stealing and possession of cannabis. The applicant had stolen two vehicles, set fire to one, and stolen from the other on the same day, 12 May 2006. He was held in custody on 17 May 2006. The conduct of the matter was transferred to Magistrate Wilson who recorded pleas of guilty entered by the applicant on 31 May 2006. The magistrate directed that he be furnished with a "Youth Justice Report". The matters came back to the court of petty sessions on 8 and 26 June, and 6 July. There was good reason to have both sets of matters brought before the same magistrate. But, once done, care was required.
A comprehensive report was prepared by a Youth Justice Worker on 5 July and, quite properly, stated:
"As [the applicant] has legal representation, the details of his offences will not be discussed."
However, some reference was made in the report as to the applicant's acceptance of his role in the assault and that "he was 'very drunk and high' on drugs at the time."
The report was presented to the court on 6 July. On that day the court dealt with the "disputed facts" hearing concerning the events of 2005. The magistrate had that material before him before he commenced his deliberation of the disputed facts relevant to sentence.
On 20 July 2006, the magistrate made findings adverse to the applicant. He rejected any evidence which might have been favourable to the applicant, including that provided by the applicant and two youths who were present on 5 August 2005. The complainant and his wife had given evidence but the daughter, who was present at the scene of the altercation, neither provided a statement to police, nor gave evidence at the hearing. That the events of 5 August were complex was recognised by the complainant's personal solicitor who, when the complainant had been sworn, advised the court:
"mr doyle: May it please your Honour I represent Mr Green, at this stage I rise to my feet to indicate that we will be making an objection to him giving evidence and be seeking certification in relation to that, I'm certainly aware sir –
his honour: On what basis can you object to him giving evidence in a case where he's merely a witness?
mr doyle: The basis is sir, that the evidence that Mr Green will give today may lead to self-incrimination and that's particularly highly put sir because he is charged out of the same set of circumstances for a common assault charge sir. On that basis his evidence today may be self-incriminating.
his honour: Well I don't know that until we get to that point do I?
mr doyle: No you don't sir and I simply ask you to note the objection at this stage because if nothing is self-incriminating then nothing will come of it. If it is we can deal with certification at the end of his evidence pursuant to the Acts."
The complainant, whose evidence was led by the prosecutor, not his solicitor, stated that he had heard "stubbies" land on his roof and:
"I raced out and jumped on the thing and had a look and it was that dark but I saw a group of them yellin' and yahooin' and giving me a hard time but anyway –
…
I come out the back door, straight across onto the fence and looked into Malcombe Street which runs down beside me which is only a matter of here to the television, six metres and I saw them all yahooing and carrying going up the street.
Right, how many did you see? … Oh about half a dozen.
…
Then I went back inside and Wendy started doing the dishes and that and about 10 minutes later it started again, I could hear them coming so I went out to the gate which is right outside the kitchen window and it's got a hole in it to put your hand through to open it and that and I was watching them come past and they were calling me names and this sort of thing and –
Okay, now the first time they went past did you hear anything, was anything said? ... Oh yeah, they were doing the same thing, 'Greenie you asshole' and all that sort of stuff and –
And when they were coming back? ... Same thing.
Did you recognise any voices? ... I don't know the others, the only voice I could really say I knew was [the applicant's] yeah.
Now you've got to the gate? ... Yep.
These young chaps are coming back? ... They're comin' past, it's dark as.
Did you do anything then? ... Yeah I was looking through the gate and as they were coming past my gateway I opened the gate and I went 'RAAAAAAH' like this and you should have seen the run like cut cats, yeah."
After these events he heard the noise of more stubbies thrown at his home and saw:
"Well a few guys standing in the road with palings, sticks of timber, bouncing up and down like they were on pogo sticks, callin' me an asshole again and all this and goin' to bash your head–
The sticks were bouncing up and down? ... Yeah they were right off the tree.
Who were they? ... [The applicant] and I found out the other one was [R].
But you didn't know him at that stage? ... No I'd seen these kids but I don't put names to them or anything, you know –
There was only the two of them? ... Yeah.
Did you go out to the gate? ... I did.
Right, was nothing said to you at this stage? ... In what way, like.
Did [the applicant] say anything to you? ... Oh yeah, it never stopped from the whole time I showed my face around the corner.
What had [the applicant] said at this stage? ... Oh stuff like, 'you arsehole', 'bust your head' – I was going to put the hose on them but Wendy – actually my wife said, 'don't be stupid' but–
Okay now [the applicant's] there and this other chap who you know now to be [TR], did [TR] do anything? ... Well when I went through the gate I walked up towards them and they both had their sticks up in the air like this and they were bouncing them and as I walked towards [the applicant] [TR] flinched and as he flinched I turned to him and that was it, the last I remember was picking me up and they were running down the road."
The magistrate was entitled to find that the complainant was not carrying a weapon at the time the blow was struck and his findings made on the "disputed facts" hearing not the subject of the notice to review. He was entitled to find that the altercation had been caused by the "crossbow" incident, although it should be noted that no complaint was made or filed until 3 November 2005, three months after the assault. A report had been made to police before that date and the offender was interviewed on 15 July and 5 August 2005. The magistrate was entitled on the evidence to resolve the issue:
"… in dispute in favour of the prosecution, that is, essentially that Paul Green was never armed nor did he use a spirit level or pinch bar against anyone. I am satisfied that the events of the evening had more to do with Paul Green's complaint of theft of a crossbow implicating the defendant than with anything else."
But it is difficult to use that finding and the evidence on the "disputed facts" hearing to conclude, as the magistrate did when sentencing, that the "assault was a particularly vicious one". There is no material in the appeal book which sets out how the facts were originally stated to the magistrate.
On 20 July at the conclusion of the statement of reasons, the prosecutor stated the facts in relation to the crimes and offences committed in May 2006. It is difficult to understand that statement of facts and accordingly it will be set out in full:
"And that's also with 37410/06, index 24. This burglary occurred, there was a garage underneath the residence which was forced. Stolen were two Pitt Monster motor bikes, a Sony Playstation 2, and the total value of the property was about $3,000. On Friday, the 12th May 2006, a white Nissan Pulsar was entered by forcing the driver's door with a pair of scissors, it was started with those scissors, driven to Kings Meadows where it had been left in the Kings Meadows Golf Club because it had run out of fuel. A maroon Nissan Pulsar was stolen from beside 2 Woolven Road, Youngtown, and driven to BP Invermay $10 worth of fuel was placed in it and the driver drove off without making payment. It was driven to Scottsdale. It was sighted by police for failing to stop. It was last seen driving towards Bridport and it was located in Seascape Drive, Lulworth, completely burnt out. The vehicle was valued at approximately $400. On the 16th May, the defendant, [the applicant], participated in a video record of interview during which he admitted his involvement. He admitted receiving the stolen property from Bluegum Road and that includes the motorbikes and PS2s. He then assisted taking the bikes to Waverley where he rode them the following day but hasn't seen them since. He admitted taking the PS2 back to his residence and keeping it. He stated they stole a Nissan Pulsar. He drove it to Kings Meadows. It ran out of petrol. He said they then walked to Youngtown and stole the second Nissan Pulsar. He admitted to stealing the petrol from BP Invermay and driving to Scottsdale before fleeing police. He stated that two or three persons had been involved in setting the vehicle alight in order to destroy any DNA evidence. He said he lit the front driver's seat with a cigarette lighter. He was then arrested, charged and processed and whilst being processed a small quantity of cannabis was found in his wallet. He said it was his, obviously. He was then detained for Court.
And dealing with 405019, this concerns the crossbow, your Honour. 8th of July last year the defendant entered the property of Mr Green in Marlborough Street. He went into an unlocked shed and went into a storeroom inside that shed and removed the crossbow and six bolts. He left the property taking it away in a backpack. It was recovered from a garden shed in Blaydon Street, Kings Meadows, by police on the 12th July. The defendant attended Headquarters on the 15th and volunteered for interview. He made admissions to entering the property and removing the crossbow and bolts. He said he took it to a friend's place and hiding it in a garden shed. He said the reason he took the crossbow was so he could shoot rabbits. They are I believe all the facts on the matters before your Honour today. At the state of file compilation, sir, there were no priors."
The applicant had previously been "formally cautioned" by a police officer and during a community conference on 17 and 20 April 2004 and on 9 March 2005.
The court had been provided with a comprehensive report prepared by a Youth Justice Officer and confirmed by the Co-ordinator. The applicant had been in detention since 16 May and departmental officers had had time and opportunity to observe the applicant over a lengthy period. The report was made in consultation with the Ashley Youth Detention Centre nurse and after the obtaining of a "SECA Psychological Screening Report".
Relevant to disposition, the report disclosed:
(1)The applicant had lived in a stable and secure environment with a "real" father since he was three months old. The family had lived in Longford for some 7 – 8 years.
(2)He has an "extended" family in Sydney and intended to live with them following release.
(3)He had moved away from his family home at the beginning of 2006 because of parental disapproval of his drug use. He had led a peripatetic existence, returning to his family home only days before admission to Ashley.
(4)He had completed year 10 schooling but was expelled in year 11 (2006) because of absence, the period during which he was involved with drugs. He had undertaken gainful employment which provided skills which would be useful in obtaining work in New South Wales or Queensland. Moving to Sydney were he could live with his "mother's family" had been discussed with his family as a means of advancement and making a "fresh start".
(5)Drug use had involved association with friends "… who were clearly a negative influence on him and 'love to fight' during the time of his offences". The statement of the magistrate in his sentencing comments, "you loved to fight during the time of your offending" represents a misunderstanding of this part of the report. It might also explain the later conclusion of the magistrate that the assault in 2005 was "particularly vicious".
(6)That the time spent at Ashley and the observations of conduct made during that period had been productive. The report states:
"[The applicant] said his time in custody has been the 'worse [sic] experience of his life'. He had made a few friends but has stayed in his room for a significant amount of time due to incidents of physical assault. On two occasions the perpetrators were removed from the situation but due to the ongoing problem, [the applicant] was re-located to a different unit last week.
[The applicant] has taken part in all programs such as art, education, cooking, sport, gym and he has specifically enjoyed the relaxation therapy program. Consultation with the Ashley Youth Detention Centre Nurse, revealed that she has had a number of chats with [the applicant] and he was evidently upset when he was 'picked on'. She stated that [the applicant] appeared to take on a 'victim' mentality and assessed whether he was at risk of harming himself. According to the SECAPS assessment, [the applicant] has previously attempted suicide more than half a year ago."
(7)Concerns remained about "drug use", "peer pressure", accommodation and emotional stability, but there remained positive indications for change.
The prosecutor had outlined, albeit briefly and in a confusing manner, the involvement of others in the course of criminal conduct in May. In the plea in mitigation, the applicant's counsel had stated:
"I ask you to note, your Honour, he voluntarily sought police assistance and made admissions in relation to these and as outlined in the Youth Justice report the named complainants in relation to these matters caused the defendant some significant stress due to the nature of their ownership of the vehicles and the participation in motor cycle organisations within the Launceston area."
In relation to this area, the Youth Justice Worker had reported to the court:
"As far as [the applicant's] remaining charges which were carried out in May 2006, he stated that they were undertaken as a 'bikie gang' were threatening him. He said he committed these offences so that he could go to Ashley Youth Detention Centre for safety. He told Police what he had done and as a result he was remanded. Jon Morrison from the Bail Options Program at Anglicare was informed of this by [the applicant] also. [The applicant] stated the threatening phone calls have since been proven a hoax as other friends involved have not been touched. "
That material was not challenged by the prosecutor.
The recommendation made by the Youth Justice Worker was:
"1That [the applicant] is placed on a Probation Order for 12 months pursuant to Section 47 (1) f [sic] of the Youth Justice Act 1997 with the following special condition:
a)that he attend educational, employment, personal, health and other programs namely alcohol and drug and psychological counselling as directed by his Youth Justice Worker.
Should Your Honour be considering community service orders as an appropriate sanction in respect to these matters, the author can indicate that [the applicant] has been assessed as unsuitable to perform community service as he may be re-locating to the Mainland of Australia."
The recommendation was based on verifiable material and credible observations. It did not enter the area of speculation nor provide a "one sided" analysis of the problem. It took into account the potential for change by removal from previous associates and the prospect of employment in another State with the advantages of family stability. It recommended that a community service order was not appropriate as it would inhibit the options open to the applicant. The report provided a cogent basis for the making of orders which would reflect the objects of the Act and take into account the subjective circumstances of the offender.
The magistrate was not, of course, obliged to accept the recommendation. The court remained responsible for the disposition and not constrained by the recommendation.
The comments of the magistrate in the determination of outcome were:
"You have no prior convictions, you are a youth. The principles of Youth Justice apply obviously and the main area to concern this Court is your rehabilitation. I refer to the report that I have in which the reporter says that you state that you chose drugs over everything and pursued that sort of a lifestyle for about six months before you returned home three days your admission to Ashley because you had become sick of that sort of a lifestyle. You said that you spent time with friends who were clearly a negative influence upon you. You recognise that. And you loved to fight during the time of your offending. You said you took drugs such as ecstasy, speed, marijuana, and morphine during the last couple of years and you have taken these more regularly approximately six months ago and you were drinking alcohol to excess on occasion as well. You said that you did crimes in order to pay for the lifestyle you'd chosen. The reporter states that you now say that you have come to the realisation that that sort of a lifestyle that you chose was wrecking you and you wanted to go home. It said that you clearly expressed remorse for your offending and said even though you hear this all the time I'm not doing it any more. You continued to explain to the reporter that it was stupid and you want to start afresh. The things you did seemed all right at the time but you now realise they weren't smart. There remains some significant concerns regarding your drug and alcohol use. The peer group you have chosen and your anger management and it's thought that you require a high level of supervision.
I am dealing with a number of charges and I've already indicated that you have no previous convictions. But these charges this Court is dealing with are serious and significant matters in themselves. And, of course, as I say there are a number of them. The charge of common assault was a particularly vicious one and you hit this fellow, Green, around the ear with a fence picket, it snapped in two on one account, and that he himself said his ears were ringing and ringing and you said that he was stumbling around making funny noises which I understood you to mean gurgling sort of noises. So that was a serious assault.
The offences concerning the motor vehicle thefts are bad enough. Then you set fire to one, the last one, in order to destroy any forensic evidence. Then there are the offences of stealing and aggravated burglary and stealing and receiving.
Taking all matters into account I make the following orders. You are convicted upon each complaint. I apply an in globo penalty by way of a term of eight months' detention. That will commence on and from the date you were remanded in custody, namely, the 16th May of this year. On your release you will be subject to a supervised order for 12 months which will contain all the usual conditions which will be explained to you by your Youth Justice worker. They're the orders of the Court."
There were a number of factual errors in the comments, but alone they would not warrant a finding of error. But recitation of the material provided and a statement of the nature of the crimes and offences does not constitute analysis. There were cogent reasons to consider that the May events occurred during a troubled period of life; there was evidence to suggest change and limited maturation; there were possibilities that a change of location, but with continued family support, could result in a change of associates and lifestyle.
The Act, s81, provides that a period of detention must not exceed two years, even if fixed cumulatively (s85).
The applicant had voluntarily approached police in May 2006 and provided details of his involvement in the car thefts and arson. There was little independent evidence at that stage of the identity of the offenders. The applicant had acquiesced in his detention in Ashley because of concerns for the reaction of his associates. He had entered an early plea to the offences. He had been subject to an actual period of detention of 2½ months at the time of the order.
The terms of the order show it to be manifestly excessive. The motion to review is upheld and the order made by the magistrate, quashed.
The parties have requested that this Court determine disposition rather than delay the matter further by remission. The Court has been provided with a further report by a Youth Justice Worker following the hearing of the appeal. That report confirms that the applicant has continued to respond well to counselling and supervision and that prospects for change remain positive.
The applicant had been in custody between 17 May and 10 August, a period of two months and three weeks. The orders of this Court are:
(1)The applicant be subject to a detention order of four months, such order to commence as and from 17 May 2006.
(2)That the operation of such order be suspended as and from 10 August 2006 on condition that the applicant be of good behaviour for a period of 18 months.
(3)That the applicant be subject to a probation order for a period of 12 months.
(4)That the applicant attend educational, employment, personal, health and other programs namely alcohol and drug and psychological counselling as directed by his Youth Justice Worker.
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