The Queen v JHW

Case [2021] NTSCFC 1

CITATION:  The Queen v JHW [2021] NTSCFC 1

PARTIES:  THE QUEEN

v

JHW

TITLE OF COURT:  FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  ON REFERENCE from the Supreme Court exercising Territory jurisdiction

FILE NO:  21946870

DELIVERED:  8 April 2021

HEARING DATE:  23 April 2020

JUDGMENT OF:  Grant CJ, Southwood and Kelly JJ

CATCHWORDS:

SENTENCING – Juvenile offenders – Evidence or mention of prior offences

Question of law reserved for Full Court – If a court finds a youth under the age of 15 guilty of an offence but does not record a conviction, does s 136 of the Youth Justice Act preclude the Supreme Court from taking into account the commission of that offence when sentencing that person at a later date.

Youth Justice Act 2005 (NT) s 5, s 45, s 70, s 81, s 82, s 136, s 147

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, Comcare v Martin (2016) 258 CLR 467, Coverdale v West Coast Council (2016) 259 CLR 164, Maritime Union of Australia v Minister for Immigration and Border Protection (2016) 259 CLR 431, Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, R v Gurruwiwi (2008) 22 NTLR 68, SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, Taylor v Owners–Strata Plan 11564 (2014) 253 CLR 531, Thiess v Collector of Customs (2014) 250 CLR 664, referred to.

REPRESENTATION:

Counsel:
    Crown:  T Moses
    Defendant:  M Aust with J Lowrey

Solicitors:

Crown:Office of the Director of Public Prosecutions

Defendant:North Australian Aboriginal Justice Agency

Judgment category classification:      B
Number of pages:  17

IN THE FULL COURT OF THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v JHW [2021] NTSCFC 1
         No. 21946870

BETWEEN:

THE QUEEN

AND:

JHW

CORAM:   GRANT CJ, SOUTHWOOD & KELLY JJ

REASONS FOR JUDGMENT

(Delivered 8 April 2021)

THE COURT:

  1. On 15 April 2020, a Judge of the Supreme Court reserved the following questions of law for the consideration of the Full Court pursuant to s 21 of the Supreme Court Act 1979 (NT).

    Questions:

    If a court finds a youth under the age of 15 guilty of an offence but does not record a conviction, does s 136 of the Youth Justice Act preclude the Supreme Court from taking into account the commission of that offence when sentencing that person at a later date:

    (a)     if the Supreme Court is sentencing the person under the provisions of the Sentencing Act;

    (b)     if the Supreme Court is sentencing the person under the provisions of the Youth Justice Act; and

    (c)     if the Supreme Court is sentencing the person utilising the provisions of both the Sentencing Act and the Youth Justice Act?

  2. On 23 April 2020, following the hearing of submissions on the reference, the Full Court…

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The Queen v JHW [2021] NTSCFC 1
Case
[2021] NTSCFC 1
Decision Date

CaseChat Overview and Summary

The Queen, represented by the Crown, brought a question of law before the Full Court concerning the sentencing of a youth offender. The dispute centred on whether section 136 of the Youth Justice Act precluded the Supreme Court from considering an offence committed by a youth under the age of 15, where no conviction was recorded for that offence, when sentencing that same youth at a later date.

The legal issue before the court was the proper construction of section 136 of the Youth Justice Act in conjunction with sections 81 and 82 of the same Act. Specifically, the court had to determine if the exception provided in section 136, which limits the consideration of certain offences, extended to the Supreme Court when exercising its sentencing powers over a youth offender, or if the reference to the "Youth Justice Court" in section 136 was intended to be limited to that specific court.

The court reasoned that the legislative purpose of the Youth Justice Act, particularly Part 6, was to grant the Supreme Court all the sentencing powers of the Youth Justice Court, in addition to its own inherent powers. By virtue of section 82(1)(a), the Supreme Court is vested with the powers of the Youth Justice Court. The court held that this vesting carries with it the conditions and incidents necessary for the proper exercise of those powers, including the exception found in section 136. Therefore, the prohibition in section 136 does not affect the Supreme Court's ability to consider such offences when sentencing a youth offender, as the intention was for the Supreme Court to have all the powers of the Youth Justice Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Crown contends that such a result is not required by the legislative text and cannot have been the legislative intention.Discussion and conclusion The proper method or approach to the construction of a statute is by “regard to the text of the statute as a whole, and the subject, scope and purpose of the statute and against the legislative history and antecedent circumstances”.[11] That consideration may, in appropriate circumstances, involve reference to extrinsic materials to confirm the legislative purpose.[12] The question in the present case is not whether s 136 of the Youth Justice Act should be read in anything other than a literal or grammatical way.[13] The question is whether ss 81 and 82 of the Youth Justice Act should be read to extend the exception in s 136 to the Supreme Court when it is sentencing a youth offender. The legislative purpose of the scheme in which s 136 appears informs the question whether the reference to the “Youth Justice Court” in that section is limited to that court. This is because the “objective discernment of statutory purpose is integral to contextual construction”.[14] The purpose and operation of s 82 of the Youth Justice Act was described by Martin (BR) CJ in R v Gurruwiwi in the following terms:[…] the primary source of the sentencing powers of the Supreme Court is the Sentencing Act 1995 (NT): Braun v The Queen (1997) 6 NTLR 94 at 100. However, s 82(1)(a) of the Youth Justice Act 2005 (NT) provides that if a youth is found guilty before the Supreme Court the court may, in addition to its powers, exercise the powers of the Youth Justice Court. Speaking generally, therefore, when sentencing a youth, in addition to the powers found in the Sentencing Act, the Supreme Court may call upon the powers of the Youth Justice Court contained in the Youth Justice Act.[15] Similarly, Riley J observed:Section 82 of the Youth Justice Act provides the powers of the Supreme Court in sentencing a youth who is found guilty before that court of an offence […] […] In addition to the sentencing options available to the Supreme Court under the Sentencing Act it has available to it the powers of the Youth Justice Court which are found in Pt 6 of the Youth Justice Act.[16] It is significant that s 136 also appears in Part 6 and forms part of the scheme for the sentencing of youths created by the legislation. The intention of that scheme as a whole is that the Supreme Court can do everything that the Youth Justice Court can, and more. That is to say, by virtue of s 82(1) of the Youth Justice Act, the Supreme Court has all of its own powers plus all of the powers of the Youth Justice Court, and by virtue of s 136 of the Act, those powers (ie the powers of the Youth Justice Court conferred on the Supreme Court) are not affected by the prohibition in that section. Three particular observations should be made in relation to that conclusion. First, it may be accepted that s 136 of the Youth Justice Act is not a source of power. Rather, it is a prohibition coupled with an exception. However, s 82(1)(a) of the Youth Justice Act vests the Supreme Court with “the powers of the Youth Justice Court”. That investment carries with it all the incidents and conditions necessary for the proper exercise of those powers. One such incident and condition is the exception contained in s 136, and its characterisation as an exception rather than a grant of power cannot displace the requirement that a court empowered to sentence a youth offender under the scheme created by Part 6, Division 1 of the Youth Justice Act must consider “any history of offences previously committed by the youth” and “any previous order [made] in relation to an offence”.

Ratio Decidendi

Legal Principle Established

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