Verity v SB

Case [2011] NTSC 26

Verity v SB [2011] NTSC 26

PARTIES:   BRETT JUSTIN VERITY

v

SB

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:   JA 3 of 2011 (21031838)

DELIVERED:   1 April 2011

HEARING DATE:   3 March 2011

JUDGMENT OF:   BARR J

CATCHWORDS:

CRIMINAL LAW – Sentencing – Youth Justice Act – Crown appeal against sentence – discretion not to record a conviction against youth – whether failure to record a conviction resulted in a manifestly inadequate sentence – differences between youth sentencing and adult sentencing with respect to recording of convictions – appeal dismissed

Criminal Code s 188, s 379(3)

Criminal Records (Spent Convictions) Act s 7(3)

Sentencing Act s 7, s 8

Youth Justice Act s 4, s 4(a), s 4(g), s 83, 83(1), s 83(1)(f), s 144

Carnese v The Queen [2009] NTCCA 8; House v R (1936) 55 CLR 499; R v Lange [2007] NTCCA 3, followed

Briese (1997) A Crim R 75; R v McInerney (1986) 42 SASR 125, applied

R v Bernath [1997] 1 VR 271; DD v Cahill [2009] NTSC 62; DPP v Castro [2006] VSCA 197; Everett v The Queen (1994) 181 CLR 295; Ford v Nicholas [2010] NTSC 53; Hales v Adams [2005] NTSC 86; Hesseen v Burgoyne [2003] NTSC 47; R v Osenkowski (1992) 30 SASR 212; R v Riley (2006) 161 A Crim R 414; Wild v Balchin [2009] NTSC 35, considered

REPRESENTATION:

Counsel:

Appellant:   D Dalrymple

Respondent:   P Maley

Solicitors:

Appellant:   Office of the Director of Public Prosecutions

Respondent:   Maleys

Judgment category classification:    B

Judgment ID Number:   Bar1103

Number of pages:   17

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

Verity v SB [2011] NTSC 26

No JA 3 of 2011 (21031838)

BETWEEN:

BRETT JUSTIN VERITY

Appellant:

AND:

SB

Respondent:

CORAM:     BARR J

REASONS FOR JUDGMENT

(Delivered 1 April 2010)

Prosecution appeal against sentence

  1. On 10 December 2010 the respondent pleaded guilty in the Youth Justice Court to a charge of aggravated assault contrary to s 188 of the Criminal Code.  The aggravating circumstance set out in the charge was that the victim had suffered harm.  The maximum penalty for this offence under the statute was five years imprisonment, but the Youth Justice Court was restricted in the case of the respondent to a maximum of two years detention or imprisonment.

  2. The sentencing magistrate dealt with the respondent in this way: without recording a conviction, she released him on a 12-month good behaviour bond on his own recognizance in the sum of $500, and made an order that there be no publication of his name. The order for release on a bond is a sentencing option specifically authorised under s 83(1)(f) Youth Justice Act.

  3. The appellant has appealed to this Court pursuant to s 144 Youth Justice Act on the ground that the learned magistrate erred in law, arguing that…

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Verity v SB [2011] NTSC 26
Case
[2011] NTSC 26
Decision Date

CaseChat Overview and Summary

In the case of Verity v SB, the appellant, Verity, contested the sentencing decision made by the magistrate in relation to the respondent, SB. The central issue in this appeal was whether the magistrate's decision not to record a conviction, despite imposing a 12-month good behaviour bond on SB, rendered the sentence manifestly inadequate. The appellant argued that the magistrate placed undue emphasis on rehabilitation and insufficient emphasis on the rights of the victim and the interests of the community, thereby failing to achieve the balance required by the Youth Justice Act. The appeal further argued that the lack of a conviction failed to hold SB accountable and encourage him to accept responsibility for his actions.

The legal issues before the court were whether the magistrate's decision not to record a conviction constituted a failure to properly exercise the sentencing discretion, and if the sentence could be considered manifestly inadequate in the absence of such a conviction. The court had to carefully consider the principles of sentencing discretion and whether the magistrate's decision was influenced by an incorrect principle, irrelevant factors, or failed to account for relevant considerations. The court also needed to determine whether the sentence was so manifestly inadequate that it demonstrated a clear error of principle.

The court found that the magistrate's decision not to record a conviction was within the proper exercise of judicial discretion. It highlighted that the decision not to convict did not reflect a lesser view of the seriousness of the offence. The court emphasised the distinction between youth sentencing and adult sentencing, noting that a conviction is not always necessary to achieve the goals of sentencing. The court concluded that the sentence imposed was appropriate given the circumstances, and the appellant failed to demonstrate that the sentence was manifestly inadequate. The appeal was dismissed, and the order for the respondent to be released on a 12-month good behaviour bond was upheld.

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

However, in exercising its sentencing discretion, the Court should be alive at all times to the differences between youth sentencing and adult sentencing with respect to the recording of convictions. The question always has to be asked whether a conviction, “a significant act of legal and social censure” and “a formal and solemn act marking the court’s and society’s disapproval of wrongdoing”, is required in addition to the wide range of sentencing options, some severe, which are available without conviction under the Youth Justice Act. Conclusion In light of the foregoing discussion, I do not interpret the magistrate’s decision not to convict as any indication that the offending was not serious. SB was a first offender, and the matters referred to in par [11] to par [13] above establish proper grounds for the exercise of the magistrate’s discretion not to record a conviction. The appellant has failed to establish that the sentence was manifestly inadequate on account of the magistrate’s decision not to record a conviction. There is no appeal against the magistrate’s order that the respondent be released on a 12 month good behaviour bond. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

The arguments put on behalf of the appellant are summarized in the following extracts from the appellant’s written submission:- “… the learned sentencing magistrate placed too great an emphasis on the issue of rehabilitation and too little emphasis on the rights of the victim and the interests of the community, thereby failing to achieve the balance required under s 4(g) of the Youth Justice Act.” “… the learned sentencing magistrate’s decision not to record a conviction resulted in a sentence that was manifestly inadequate not just in terms of its failure to achieve an appropriate balance between rehabilitation and other important sentencing considerations but also in terms of its failure to effectively hold the respondent accountable and encourage him to accept responsibility for his behaviour (s 4(a) of the Youth Justice Act).” [2]Consideration of the issues arising on appeal The decision in the present case as to whether or not to record a conviction was a decision involving the exercise of a judicial discretion by the sentencing magistrate. This Court will only interfere with the exercise of a sentencing discretion on the basis explained by the High Court in the well-known authority of House v R (1936) 55 CLR 499 at 504:-“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” Where the ground of appeal is that a sentencing Judge failed to give due weight to a particular factor or, alternatively, gave undue weight to other factors, in contrast to a ground asserting that the sentencing Judge disregarded a factor altogether or took an irrelevant factor into consideration, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error.[3] There are special considerations in relation to a Crown appeal against sentence, explained by the Court of Criminal Appeal in R v Lange[4]: - “On a Crown appeal against the adequacy of a sentence, it is not enough that the Appeal Court is of the view that the sentence is too light. In the absence of a specific error by the sentencing Judge, the sentence must be so manifestly inadequate as to demonstrate that error of principle must have occurred. To put it another way, the sentence must be so low as to “shock the public conscience”: R v Osenkowski (1992) 30 SASR 212 per King CJ at 213. The principles governing Crown appeals were discussed by this Court in R v Riley (2006) 161 A Crim R 414 at 419 [18] - [20] and 421 – 422 [34] and it is unnecessary to repeat that discussion.”[5]