Thomas John Wellington v The Queen

[1982] FCA 260

Re: THOMAS JOHN WELLINGTON
And: THE QUEEN (1982) 65 FLR 163
No. NTG8 of 1982
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Franki(1), St. John(1) and Toohey(1) JJ.

CATCHWORDS

Criminal Law - Appeal against conviction and sentence - Jurisdiction of Supreme Court to deal with offences committed by children under 17 years - Validity of committal proceedings - Whether Magistrate had discretion to deal with certain offences summarily - Effect of mistake as to age on sentence.

Child Welfare Act ss.25, 26, 27.

Justices Act ss.120, 121A, 121B, 122, 122A, 123A, 161.

Criminal Law - Appeal against conviction and sentence - Jurisdiction of Supreme Court to deal with offences committed by children under seventeen years - Validity of committal proceedings - Whether magistrate had discretion to deal with certain offences summarily - Effect of mistake as to age on sentence - Child Welfare Act 1958 (N.T.), ss. 25, 26, 27 - Justices Act 1928 (N.T.), ss. 120, 121A, 121B, 122, 122A, 123A, 161.

HEADNOTE

The appellant, having been committed for trial, was convicted in the Supreme Court of the Northern Territory on 30th April, 1982, on five counts, two of larceny and three of breaking, entering and stealing. He was sentenced to be imprisoned with hard labour for four years on the first count of larceny, six months on the second, and for six months on each of the last three counts. All sentences were to be served concurrently. Further orders were made as to his release on recognizances after serving one year.

The trial judge was told by the Crown that the appellant was born on 8th September, 1963. Counsel for the appellant stated "the prisoner tells me he is seventeen years of age and he will be eighteen this September". It was ascertained that the appellant was in fact born on 4th September, 1965, and was fifteen years old when he committed all but the first count of larceny, at which time he had just turned sixteen years.

The appeal sought to overturn both conviction and sentence; the attack on conviction was based on the wrong apprehension of the appellant's age.

Held: Per curiam - (1) The Supreme Court has jurisdiction to deal with an offence committed by a child as defined in the Child Welfare Act 1958.
(2) The magistrate had no jurisdiction to deal with the charge of larceny from the person, for which the maximum penalty exceeds ten years, unless he had sought to proceed under the provisions of s. 161 of the Justices Act 1928. The charges were all indictable offences under s. 20 of the Criminal Law and Procedure Act 1978 (N.T.) and in the absence of consent pursuant to s. 161 of the Justices Act the magistrate had no power to deal with any of the charges. The appellant had neither asked the magistrate to deal with the charges, or any of them, nor consented to the magistrate so doing, and there was no consent from any guardian or parent.
(3) In considering the charges against the appellant, the magistrate had to take into account "any other relevant circumstances" pursuant to s. 122A of the Justices Act 1928. The fact that the appellant did not seek to have the magistrate deal with any of the charges but proceeded upon the basis that it would be better that they all went to the Supreme Court would be very relevant, even in cases where the magistrate had a discretion to deal with the charges summarily.
(4) There was no reason to conclude that the Supreme Court lacked jurisdiction to deal with any of the offences or that the magistrate failed to exercise his discretion in relation to the question of committal.
(5) The difference in the facts before the trial judge and the appeal court, namely as to the appellant's age, was sufficient to justify a reconsideration of the sentence. Having regard to his age when he committed the offences, the period already served, some six months and three weeks, was sufficient custodial sentence.
(6) The sentence on the conviction for larceny from a person should be reduced from four years to two years and six months. The appellant should be released upon his entering into his own recognizance in the sum of $1,000 to be of good behaviour until 30th October, 1983. The appellant should be under the supervision of the Director of Correctional Services or his delegate during that period and he should obey all reasonable directions from the Director or his delegate.

HEARING

Darwin, 1982, September 21-22, 30; October 1; November 15. #DATE 15:11:1982

APPEAL.

The appellant appealed against five convictions entered on 30th April, 1982, and against the sentence imposed.

The facts appear fully in the judgment.

D. Hore-Lacy, for the appellant.

P.J.B. Tiffin, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Central Australian Aboriginal Legal Aid Service.

Solicitors for the respondent: Crown Prosecutor, Department of Law, Northern Territory.

P.H. MORRISON

ORDER

The orders of the Supreme Court of the Northern Territory made on 30 April 1982 are varied to the following extent:-

(a) The period of imprisonment with hard labour imposed in respect of the conviction for larceny from the person is reduced to 2 years and 6 months.

(b) The appellant be released forthwith upon entering into his own recognizance in the amount of one thousand dollars ($1000) to be of good behaviour until 30 October 1983, that he be under the supervision of the Director of Correctional Services or his delegate during that period and that he obey all reasonable directions from the Director or his delegate.

JUDGE1

On 30 April 1982 the appellant, Thomas John Wellington, was convicted by the Supreme Court of the Northern Territory on five counts contained in three indictments.

The counts were -

(a) larceny from a person under s.160 of the Criminal Law Consolidation Act, maximum penalty 14 years;

(b) larceny in a dwelling house, under s.182 of the same Act, maximum penalty 8 years; and

(c) three counts of break, enter and steal, under s.178(1) of the same Act, maximum penalty 8 years.

The appellant was sentenced to be imprisoned with hard labour for four years on the first count, for six months on the second count and for six months on each of the three break, enter and steal counts.

All sentences of six months were to be served concurrently with the sentence of four years. It was further ordered that the appellant be released after serving 12 months of the sentence upon entering into his own recognizance in the sum of $500 with one surety of $500 to be of good behaviour for a period of three years and that he be under the supervision of the Director of Correctional Services or his delegate and obey all reasonable instructions.

The appellant has appealed against his sentence upon the ground that in all the circumstances it was manifestly excessive. He was represented by counsel in the proceedings before the Supreme Court and pleaded guilty to all five counts. The learned trial Judge had before him submissions by both counsel, evidence of one person who had known the appellant for about five years, and an antecedent report. The Crown stated that the appellant was aged 18 and was born on 8 September 1963. Counsel for the appellant stated "the prisoner tells me he is 17 years of age and he will be 18 this September". On this basis the learned trial Judge when sentencing the appellant said: "You are a young man of about 17 years of age". On any of the information before the Court the appellant was over the age of 17 years. However, the truth was that, in the case of the larceny from a person, the appellant had attained 16 about one month before committing the offence and in the other cases he was up to six weeks younger.

When the appeal first came before this Court we were told by counsel for the appellant that he wished to amend the notice of appeal by putting in issue the validity of the proceedings which resulted in the convictions, because the matter had proceeded on a wrong view of the appellant's age.

As a result of enquiries made by the Crown, it was ascertained that the appellant, who was part Aboriginal, was born on 4 September 1965 and not 8 September 1963. We granted an application to amend the notice of appeal by adding an additional ground that:

"The appellant was wrongly convicted on the basis that the Supreme Court wrongly exercised jurisdiction in that the appellant was unlawfully committed for trial by the Court of Summary Jurisdiction instead of being dealt with by a properly constituted Children's Court exercising its lawful powers.".

We then stood the matter over for a week for clarification of the factual position. The Court also admitted the appellant to bail on his own recognizance after the Crown had raised the question, indicating that it would not oppose an application for bail.

When the hearing resumed the Crown stated a number of agreed facts which the Court was invited to take into account. In view of the erroneous information which had been before the learned trial Judge concerning the age of the appellant, we admitted these agreed facts under our power to admit further evidence.

The attack upon the conviction was based upon two propositions. First, that when the offences were committed the appellant was either aged 15 or had just turned 16 and the Supreme Court had no jurisdiction to deal with indictable offences (other than homicide) committed by children of that age unless the proceedings were commenced either by way of an ex-officio indictment under the hand of the Attorney-General or, by indictment under the hand of a person appointed by the Attorney-General, following a committal for trial where that procedure was available (Criminal Law and Procedure Act ss.13,14). Secondly, that if the Magistrate who purported to commit the appellant for trial had a discretion not to do so, he failed to exercise that discretion. This argument was based substantially upon the proposition that the Magistrate held the view that he had no alternative but to commit the appellant for trial.

No attack had been made in the Supreme Court upon the validity of the committal proceedings or the indictment. We admitted certain depositions of the proceedings before the Magistrate. These depositions may not be a complete record of the proceedings. A copy of the information in relation to the charge of larceny from the person was also admitted. This information alleged the value of the property stolen to be $250 although the indictment alleged a value of $450. This difference was only relevant to the jurisdiction of the magistrate to deal summarily with certain offences under s.120 of the Justices Act.

We were told by counsel for the Crown that the question of jurisdiction in such matters was an important question arising not infrequently in the administration of justice in the Northern Territory.

The Magistrate who committed the appellant at all times proceeded upon the basis that he was a child within the meaning of the Child Welfare Act. This is quite clear from the depositions.

The argument before us ranged over a very wide field. A preliminary question for consideration is whether the Supreme Court had jurisdiction to hear the charges when the offences had been committed by a child under the age of 17 years, being either 15 or 16.

Although s.27(1) of the Child Welfare Act provides that on and after the establishment of the Children's Court the jurisdiction of every Court of Summary Jurisdiction in respect of matters as to which the Children's Court has jurisdiction shall cease, s.27(2) makes it clear that this does not abridge or prejudice "(a) the ministerial powers of Justices in cases of committal for trial".

Counsel for the appellant suggested that, except for the offence of homicide, the Supreme Court had no jurisdiction to deal with a child as defined in the Child Welfare Act. However, counsel could not point to any specific provision to this effect. In our opinion the submission is unfounded. Section 26(1) of the Child Welfare Act reads:

"Subject to this Act, the Children's Court -

(a) has in respect of all offences committed by children, the jurisdiction which a Court of Summary Jurisdiction would have; and

(b) shall hear and determine all complaints and applications under this Act."

Section 26(2) prescribes the power of the Children's Court to impose penalties on children.

Section 26(4) reads:

"Where a court, other than the Children's Court, deals with an offence, other than homicide, committed by a child, that court may exercise the powers of the Children's Court under sub-section (2) of this section, and an order made in the exercise of those powers shall have effect as if it were an order of the Children's Court.".

This section proceeds upon the basis that there are other courts which have power to deal with offences committed by a child. We have no doubt that the Supreme Court falls within this section. We note that s.161(1) of the Justices Act refers to the parent or guardian of a child charged with an indictable offence other than homicide being " . . . informed of his right to have the child tried by the Supreme Court . . . ". This acknowledges the jurisdiction of the Supreme Court.

We see nothing in any of the legislation to which our attention has been directed to support the proposition that there is any statutory limitation on the jurisdiction of the Supreme Court to deal with a child who is properly before it. It was common ground that an indictment must be under the hand of the Attorney-General or, if under the hand of a person appointed by the Attorney-General, an accused must have been committed for trial.

We turn now to the validity of the committal proceedings.

There is no reason to assume that proper informations were not before the Magistrate when he committed the appellant. Counsel for the appellant said to the Magistrate in relation to the charge of larceny in a dwelling house:

"Your Worship, I am not going to enter a plea in this jurisdiction in relation to this matter - the burglary. The situation is that the robbery or larceny from a person carries a maximum of 14 years, Your Worship, and I would anticipate that it is not one that you would be fit to deal with. I think that you have already indicated that that would be your attitude in relation to that charge; and the defendant would need to go to the Supreme Court for sentence on that and I feel that it would probably be appropriate to send the other matters to the Supreme Court as well, Your Worship.".

Counsel also said:

"Those other charges, Your Worship, the four break, enter and steals are not guilties and I would ask for a committal hearing in relation to those matters.".

As already mentioned, there were only three charges of break, enter and steal, not four.

It is perfectly clear from these and other passages that the appellant neither asked the Magistrate to deal with the charges or any of them nor consented to the Magistrate so doing. Nor was there any consent from a parent or guardian.

Section 120 of the Justices Act gives a magistrate power to deal summarily with certain minor offences without the consent of the defendant. But in the present case the Magistrate could not have dealt with the offence of larceny from the person unless it fell within the category in s.120(1)(i) of "larceny from the person without violence", as extended by s.120(2)(a) to cases where the property did not exceed in value $400. No argument was presented on the limits of larceny from the person without violence. In any event, there is nothing to show that the larceny was without violence.

Sections 122, 122A, 123A and 161 of the Justices Act bear upon the power of a magistrate or justices to deal summarily with certain offences. Although those sections were mentioned in the course of argument, we do not think it necessary to detail all of them in these reasons.

It is appropriate now to consider the powers of the Children's Court in relation to offences committed by children as therein defined. Section 26(1)(a) of the Child Welfare Act invests that Court, in respect of all offences committed by children as therein defined, with the jurisdiction which a Court of Summary Jurisdiction would otherwise have had. Section 25 applies the provisions of the Justices Act to the Children's Court.

Sections 123A and 161(1) of the Justices Act place restrictions upon the exercise of summary jurisdiction in relation to children. Section 123A reads:
"123A. Where a child under the age of 18 years is charged with an offence, nothing in this Division shall authorize the Court to deal with the case in a summary way if the parent or guardian of the child objects to the offence being dealt with summarily."

Section 161(1) reads:

"161(1). Where a child under the age of 18 years is charged before a Special Magistrate, or 2 or more Justices, with any indictable offence, other than homicide, the Special Magistrate or Justices, if he or they think it expedient so to do, and if the parent or guardian of the child so charged, when informed of his right to have the child tried by the Supreme Court, does not object to the child being dealt with summarily, may deal summarily with the offence."

Section 21 of the Criminal Law and Procedure Act reads:

"21. Unless the contrary intention appears, offences against a law of the Territory which -

(a) are punishable by imprisonment but for a period not exceeding 6 months;

(b) not being punishable by imprisonment, are not declared to be indictable offences,

are punishable on summary conviction."

Section 20 provides that, subject to the provisions of a law of the Territory which provides for the hearing or determination of offences in a summary manner, offences against a law of the Territory punishable by imprisonment for a period exceeding 6 months shall be indictable offences.

Certain powers are vested in a Court of Summary Jurisdiction in relation to minor offences by ss.120-133 of the Justices Act without regard, except for ss.123A and 161, to whether the offence is committed by an adult or child. Section 123A, which was inserted by s.19 of Ordinance No. 31 of 1961, precludes a Court of Summary Jurisdiction from dealing in a summary way with an offence if the parent or guardian of the child objects. This section is to be read with s.161 which was amended at the same time. Section 161 deals only with hearing of charges against children of indictable offences; it requires that the parent or guardian of the child must be informed of the right to have the child tried by the Supreme Court and must not raise any objection. Both ss.123A and 161 apply to all children under the age of 18 years but, so far as concerns the Children's Court, the section is only relevant in relation to a child as defined in the Child Welfare Act and is applicable because of s.26(1)(a) of the Child Welfare Act.

Before the Children's Court can deal with an indictable offence s.161 must be complied with. If the offence is not indictable s.123A is relevant.

The offences charged were all indictable offences (Criminal Law and Procedure Act s.20) so as the matter stood the Magistrate could not have been expected to seek to exercise powers under s.161 when counsel for the appellant was suggesting a different course. If the Magistrate had power to deal with the charges without the consent referred to in s.161 the question of his discretion would have arisen. If the powers in s.120 or 121A were relied upon, s.123A would have been applicable as would s.122A.

Section 121A deals with more serious offences than s.120 and does not permit summary proceedings for offences within its ambit without the consent of the defendant (s.121A(1)(e)).

However, in considering the charges against the appellant, the Magistrate had to take into account "any other relevant circumstances" (s.122A). In our opinion the fact that the appellant did not seek to have the Magistrate deal with any of the charges but proceeded upon the basis that it would be better that they all went to the Supreme Court would be very relevant even in cases where the Magistrate had a discretion to deal with the charges summarily.

Would there have been power had the appellant not been a child? This question was argued extensively but we doubt its relevance.

Section 121B provides:

"Nothing in section 121A applies to or in relation to an offence punishable by imprisonment for life or for a term exceeding 10 years.".

Section 121B prohibits s.121A applying to offences where the maximum penalty exceeds 10 years. A magistrate might well be disinclined to deal with larceny from the person without violence under s.120, without the consent of the defendant, even in a case where he had power so to do.

The Magistrate certainly had no power to act under s.121A in relation to the offence of larceny from a person. We do not see how he could have dealt with a charge in respect of larceny in a dwelling house under s.120. No argument was directed to us on this question but it would appear that the charge of larceny in a dwelling house under s.182 of the Criminal Law Consolidation Act could not be regarded as a charge of simple larceny under s.135 of the Act where the maximum term of imprisonment is two years. We also have difficulty in seeing how the charges of break, enter and steal under s.178 of the Criminal Law Consolidation Act, for which a maximum penalty of 8 years is provided, could have been dealt with under s.120.

We are of the opinion that, at least in relation to the charge of larceny from the person, for which the maximum penalty exceeds 10 years, the Magistrate had no jurisdiction to deal with the matter unless he had sought to proceed under the provisions of s.161 of the Justices Act. We see no reason to conclude that the Supreme Court lacked jurisdiction to deal with any of the offences or that the Magistrate failed to exercise his discretion in relation to the question of committal. Indeed it would appear that, in the absence of consent pursuant to s.161, he had no power to deal with any of the charges.

In our opinion the attack upon the validity of the conviction fails. We pass now to consider the question of sentence.

It is common ground that the details of the appellant's childhood which were before the trial Judge presented a better picture than the true facts would have done. A material consideration is that the appellant was either not quite 16 or just 16 when the offences were committed. We do not overlook that the offence of larceny from a person was committed whilst the appellant was on bail or that he had been convicted on 28 August 1981 of larceny and the proceedings had been adjourned to a date to be fixed not exceeding 12 months and that he was to be of good behaviour during that period. All the offences were committed within a period of about seven weeks at Alice Springs. The offence of larceny in a dwelling house was committed in a motel in the middle of the night; that of larceny from a person involved the snatching of a handbag in a main street of Alice Springs from a woman aged over 70.

Nevertheless the difference between the facts before the trial Judge and those before us is sufficient for the Court to look again at the sentence. The critical factor is that the wrong age of the appellant was provided to the trial Judge when he passed sentence. No useful purpose would be served by setting out the various problems, some of which were very tragic, that the appellant had faced during his childhood. He has served five months in gaol since his conviction and he was in custody for about seven weeks before his trial. He is now on bail. In our opinion, having regard to his age when he committed the offences, the period he has served in gaol is a sufficient custodial sentence. He has been released on bail on his own recognizance in the amount of $1000, operative until the judgment of this Court is given. The only sentence we would alter is that in relation to the conviction for larceny from a person, which we would reduce from four years to two years and six months. We order that, upon or after the delivery of this Court's judgment, the appellant be released upon entering into his own recognizance in the sum of $1000 to be of good behaviour until 30 October, 1983, that he be under the supervision of the Director of Correctional Services or his delegate during that period and that he obey all reasonable directions from the Director or his delegate.

The appeal will be allowed to that extent.