SH v McKinlay - [2019] NTSC 76

CITATION:SH v McKinlay [2019] NTSC 76
PARTIES:SH
v

McKINLAY, Matthew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from the YOUTH JUSTICE COURT exercising Territory jurisdiction
FILE NO:LCA 7 of 2019 (21810321)
DELIVERED:  9 October 2019
HEARING DATE:  3 October 2019
JUDGMENT OF:  Mildren AJ

CATCHWORDS:
CRIMINAL LAW – Youth Justice Court – appeal – twelve year old offender - manifestly excessive – detention backdated – suspended sentence forthwith on conditions – discharged without conviction – period held in suspense - operational period of the suspension – appeal relating to aggregate sentence imposed – clearly and obviously excessive – retributive aspect of sentencing - respondent concedes – special deterrence not required - progress towards reform – appeal allowed – good behaviour order
Youth Justice Act 2005 s 4; s 83(2)(b)(i)
Young Offenders Act 1994 (WA) s 120(2)
BB v The Queen [2014] NTCCA 13, Simmonds v Hill (1986) 38 NTR 31, M v Waldron (1988) 90 FLR 355 , P (a Minor) v Hill (1992) 110 FLR 42, applied
P (a Minor) v Hill (1992) 110 FLR 42, Yovanovic v Price (1985) 33 NTR 24, WO (a child) v Western Australia; RM (a child) v Western Australia (2005) 153 A Crim R 352, LA v Kennedy [2007] NTSC 56, referred to
REPRESENTATION:
Counsel:
Appellant:E Fenge
Respondent:  G Dooley
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Mil19555
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
SH v McKinlay [2019] NTSC 76

No. LCA 7 of 2019 (21810321)

BETWEEN:

SH

Appellant

AND:

MATTHEW McKINLAY

Respondent

CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 9 October 2019)

This is an appeal against the severity of a sentence imposed by the Youth Justice Court on the ground that the sentence imposed was manifestly excessive. On 3 October 2019 after hearing submissions by the parties, I allowed the appeal, and resentenced the appellant. I said then that I would deliver my reasons at a later time. These are my reasons.
Background
The appellant in this matter is SH who was sentenced by a Judge of the Youth Justice Court in relation to a number of charges on various files which were dealt with together. In relation to nine counts on file 2181032, on 24 May 2019 the learned Judge imposed, without conviction, a sentence of eight months detention backdated to 7 February 2019 to take into account time spent on remand. The sentence imposed was suspended forthwith on conditions.
In relation to three counts on file 21813528 the learned Judge imposed an aggregate sentence of six months detention without conviction, also backdated to commence on 7 February 2019, suspended forthwith on conditions.
In relation to a number of counts of breach of bail, the court ordered that the appellant be discharged without conviction, although the court noted that the appellant would be required to pay a victim levy…

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 SH v McKinlay

Details

AGLC: SH v McKinlay [2019] NTSC 76
Case: [2019] NTSC 76
Decision Date: 9 October 2019

CaseChat Overview and Summary

In the matter of SH v McKinlay, the appellant, a twelve-year-old boy, sought to appeal against the sentence imposed by the Youth Justice Court in relation to a series of offences committed in Alice Springs. The offences included aggravated unlawful entry with intent to steal, causing damage to property, stealing, and attempted unlawful use of a motor vehicle. The appeal focused on the aggregate sentence imposed, with the respondent conceding that the sentence was excessive.

The legal issues before the court were whether the aggregate sentence imposed was manifestly excessive and, if so, whether it was appropriate to allow the appeal and impose a different sentence. The court considered the retributive aspect of sentencing, the progress towards reform made by the appellant, and the need for special deterrence. The respondent conceded that the sentence was excessive, and the court did not consider special deterrence necessary.

The court held that the aggregate sentence imposed was clearly and obviously excessive, taking into account the appellant's age, personal circumstances, and the progress he had made towards reform. The court considered that the sentence should reflect the retributive aspect of sentencing but also allow for the appellant's rehabilitation and reintegration into society. The court allowed the appeal and imposed a different sentence, including a good behaviour order.

The court's final orders included discharging the appellant without conviction, with a good behaviour order for a period of twelve months. The period the appellant had already spent in detention was to be taken into account as operational time for the suspension of the sentence. The court also ordered that the appellant be released forthwith on the conditions of the good behaviour order.

Orders

Orders of the court

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Background

Background to the litigation

The present appeal relates only to the aggregate sentence imposed in relation to the nine counts on file 2181032. In summary, there were three counts of aggravated unlawful entry with intent to steal; two counts of intentionally causing damage to property; two counts of stealing; one count of attempted unlawful use of a motor vehicle and one count of trespass on premises. These offences were committed between 25 and 27 February 2018. At that time, the appellant was aged 12, having been born on 22 April 2005 (and not 2004 as some of the documentation states).The facts relating to the offending The following is a short summary of the offending. Between 9.30 am on Sunday 25 February 2019 and 9.56 pm on Tuesday 27 February 2018, the appellant and co-offenders entered four residences in Alice Springs, viz at 17 Lindsay Avenue, 2 Goyder Street, 1/2 Sturt Terrace and 34 Chewings Street. At 17 Lindsay Avenue, no items were stolen. A co-offender damaged a door handle and flyscreen. The premises were unoccupied. The damage was assessed at $2000. At 2 Goyder Street, the co-offender stole a laptop and damaged a flyscreen. The premises were occupied at the time. The laptop was valued at $1200 and the damage was estimated at $100. The offenders left the scene when disturbed by one of the residents. The laptop was not recovered. At 1/2 Sturt Terrace, a handbag containing $30, personal cards and car keys were stolen. A mechanism supporting the window louvres was damaged and an attempt was made to start the vehicle. The premises were occupied by three adults who were asleep at the time. One of the occupants interrupted the attempt to steal the car. The value of the property stolen was $1060 and the damage to the property amounted to $200. The handbag was since recovered but not its contents. At 34 Chewings Street, the appellant and a co-offender entered the property intending to steal items within. The occupant was alerted to a neighbour’s dog barking. The offenders jumped over the back fence. No items were stolen or damaged. The main co-offenders were two youths aged 13 and 17. The appellant was arrested by police who caught him fleeing the Chewings Street property. The appellant participated in a formal record of interview with police on 28February during which he made admissions.The appellant’s personal circumstances The appellant was born in Alice Springs on 24 April 2005. At the time of the offending he was 12 years of age. He has four siblings ranging in age from 22 years to seven months as at March 2019. His parents separated when he was two years old. The family are Aboriginal. He speaks Pitjantjatjara and Arrernte as well as English. It is not clear where the appellant was living in his early years. It could have been in Alice Springs or in a bush community. When he was aged six, his mother relocated to Ceduna with the appellant and his siblings to live with family. His mother obtained employment there and the appellant attended school. In November 2015 the appellant, then aged 10, and one of his older brothers were placed in the care of the Department of Child Protection in South Australia. At that time the family had moved to live in Elizabeth Park, South Australia. Concerns arose because of neglect, domestic violence, and substance misuse. He was placed in “commercial care”. This involves carers employed on a rotational basis. In July 2015, the appellant had committed the offence of dishonestly taking property without consent which was dealt with by the Elizabeth Children’s Court in January 2016. He was given a formal caution.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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