Y v F
[2002] VSC 166
•10 May 2002
| Not Restricted | |
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
No. 8734 of 2001
In the Matter of an Appeal under s. 200 of the Children and Young Persons Act 1989
BETWEEN:
| “Y” (a child by his litigation guardian, “Y”) | Appellant |
| v | |
| “F” | Respondent |
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JUDGE: | McDonald J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 May 2002 | |
DATE OF JUDGMENT: | 10 May 2002 | |
CASE MAY BE CITED AS: | Y v F | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 166 | |
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Appeal from decision of Criminal Division of Children’s Court: appeal on a question of law from sentencing order: final order: error made as to construction of statute relevant to exercise of sentence discretion: matter taken into account on sentence which ought not to have been taken into account and which was irrelevant; errors of law in exercise of sentencing discretion: appeal from sentencing order not restricted to appeal under s. 197 of Children and Young Persons Act 1989: sentencing order set aside: matter remitted to Children’s Court for rehearing by way of re-sentencing.
Children and Young Persons Act 1989 ss. 137(1)(a)-(d), 138, 140-148, 197, 200.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr D. Neal | Victoria Legal Aid |
| For the Defendant | Mr G. Silbert | Office of Public Prosecutions |
HIS HONOUR:
The proceeding before the Court is an appeal from an order of the Criminal Division of the Children’s Court of Victoria at Frankston on 15 November 2001 pursuant to which the Court, without convicting the appellant adjourned the proceeding then before the Court until 10.00 am, 14 May 2002 at the Frankston Children’s Court and released the appellant upon him entering into a good behaviour bond in the amount of $50.00 and to be of good behaviour during the period of that bond. The appeal is brought pursuant to s. 200(1) of the Children and Young Persons Act 1989 pursuant to which it is provided:
“(1)A party to a proceeding (other than a committal proceeding) before the Criminal Division may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.”
On 15 November 2001 the appellant, who was born on 15 June 1988 and who then was aged 13 years, was charged before the Children’s Court at Frankston that on 9 October 2001 he stole a padlock and bike-lock being the property of Safeways Pty Ltd and valued at $16.00. The appellant was legally represented before the Court.
The offence with which the appellant was charged is an indictable offence – s. 74 Crimes Act 1958. Through his legal representative the appellant consented to the charge being heard and determined summarily and again through his legal representative he entered a plea of guilty to the offence charged.
The prosecuting officer gave to the Court a summary of the facts and circumstances constituting the criminal offence which was accepted by the appellant’s legal representative. Such facts and circumstances were as follows: on 9 October 2001 at about 4.00 pm the appellant attended at the Safeway Supermarket at Karingal Park Shopping Centre. He was in the company of another unknown male. The two went to the hardware section of the store. The unknown male took a chain lock from a package and placed the chain lock in his pocket while the appellant kept watch. The appellant then removed a padlock from a shelf and put it up the sleeve of his jumper. The appellant and the other person then walked through the register without attempting to pay for the goods taken. The appellant was approached by a store officer and taken back into an office. Police attended, the appellant was arrested and later interviewed. The appellant made a full admission. The value of the stolen items was $16.00.
At the conclusion of that summary being given to the Magistrate and the appellant’s legal representative informing the Magistrate that she accepted the same the Magistrate stated that he found “the matter proved”. The Magistrate then asked whether there was “anything known” to which the prosecuting officer responded – “nothing alleged”. The appellant’s legal representative then made a plea to the Court informing the Court of the circumstances in which the offence was committed and informing the Court of the appellant’s family circumstances and his progress at school. The appellant’s legal representative concluded by stating:
“Your Worship, in all the circumstances with this being Brian’s first time appearing at court I would urge you to consider proving and dismissing a charge perhaps with a short undertaking to be of good behaviour.”
The presiding Magistrate then said – “Alright. I’m prepared to put Brian on a bond.” To that the appellant’s legal representative stated that it was the appellant’s first time in court to which the Magistrate responded, “Well I understand that he has probably had a warning before he has come here”. The appellant’s legal representative replied, “But that goes for everyone here so when would there ever be an undertaking in that situation”. The presiding Magistrate then said that it was a very difficult issue, the issue of undertakings, to which the appellant’s legal representative responded by drawing to the attention of the Magistrate to the provisions of s. 139 of the Children and Young Persons Act stating that she thought that the presiding Magistrate had to consider why “a lower order would not be appropriate”. (I understand that this reference was probably meant to be to s. 138.) The presiding Magistrate then said, “Well it’s a theft which is a serious offence, an indictable offence. My view is that it would take something quite extraordinary to dismiss, find a charge proved and dismissed where it’s a theft. I can’t immediately think of circumstances where one might dismiss a theft… as being suitable for that disposition where one might find that theft as suitable for that disposition”. During a further short exchange between the presiding Magistrate and the appellant’s legal representative the presiding Magistrate said, “I can only say that that’s my view. It’s been my view since I first saw the Act”. This statement in my view can only have reference to that previously said by the Magistrate with reference to the impositions of sentencing orders under s. 137(1) of the Act and being in lower order than, without conviction, placing a child on a good behaviour bond. Thereafter, as required, the presiding Magistrate addressed the appellant informing him, inter alia, that it was his first time in court and that he proposed to put him on a good behaviour bond. He explained to the appellant the effect of the good behaviour bond and what would be the consequences if it was breached.
On 30 January 2002 Habersberger J on hearing an appeal from a Master stated a number of questions of law to be referred to a Judge for determination on this appeal. Among other orders his Honour further ordered that subject to there being filed an affidavit of service on the respondent and the Registrar of the Children’s Court at Frankston, for the Magistrate, the documents referred, to that the orders of the Magistrate may on 15 November 2001 be stayed until the determination of the appeal.
As provided by s. 200 of the Act a party to a proceeding before the Criminal Division of the Children’s Court may appeal to this Court, on a question of law from a final order of the Court in that proceeding. It was conceded on behalf of the respondent that the order of the Magistrate made on 15 November 2001 wherein, having found the offence proved, he ordered that without conviction the matter be adjourned to 14 May 2001 and released the defendant upon him entering into a good behaviour bond, was and is a “final order” for the purpose of s. 200 of the Act. In Chu v Henham[1] I held that where a Magistrates’ Court by order made a finding of guilt against an accused person and exercised its sentencing discretion as vested in it under s. 75 of the Sentencing Act 1991, such order was a final order for the purpose of s. 92 of the Magistrates’ Court Act 1989. Section 200(1) of the Children’s and Young Persons Act 1989 is in like terms to s. 92(1) of the Magistrates’ Court Act 1989. A sentencing disposition as effected by a court pursuant to s. 75 of the Sentencing Act 1991 is to like effect as to the sentencing disposition as effected in this case pursuant to s. 137(d) of the Children and Young Persons Act 1989 where it was ordered by the Magistrate that, without conviction, the appellant was placed on a good behaviour bond pursuant to s. 144 of that Act and where by virtue of the provisions of s. 145 of that Act if on the further hearing of the adjourned proceeding the Court is satisfied that the child has observed the conditions of the bond the Court must dismiss the charge. The concession made on behalf of the respondent as to this matter was properly made. The order of the Magistrates’ Court, made on 15 November 2001 and being the subject of this appeal, was and is a final order of the Criminal Division of the Children’s Court under s. 200(1) the Children and Young Persons Act 1989.
[1]Unreported [1999] VSC 139.
On behalf of the respondent it was submitted that the questions as identified by the order of Habersberger J on 30 January 2002 as being “questions of law”, to “be referred to a judge for determination” on this appeal, did not constitute questions of law on which the appellant could bring an appeal to this Court from the final order of the Criminal Division of the Children’s Court, pursuant to s. 200 of the Children and Young Persons Act 1989. Counsel for the respondent submitted that the order of the Court sought to be appealed from by the appellant was an order in the nature of a sentencing order made in exercise of the sentencing discretion, vested in the Court, and even if it could be demonstrated that there was error in the exercise of such discretion and/or it could be shown that the discretion vested in the Court had miscarried, such error or miscarriage could not give rise to an error of law as to found an appeal to this Court pursuant to s. 200 of the Act. Counsel for the respondents submitted that a person such as the appellant could only appeal against a sentencing order made by the Criminal Division of the Children’s Court pursuant to s. 197 of the Children and Young Persons Act 1989. Section 197(1), (2) and (3) provide:
“(1)A person may appeal to the County Court or, if the Court was constituted by the President, to the Trial Division of the Supreme Court against any sentencing order made against that person by the Children’s Court in a proceeding in the Criminal Division.
(2)If a person appeals under this Act to the Supreme Court on a question of law, that person is deemed to have abandoned finally and conclusively any right under this or any other Act to appeal to the County Court or any right under this section to appeal to the Trial Division of the Supreme Court.
(3)The Director of Public Prosecutions may appeal to the County Court or, if the Court was constituted by the President, to the Trial Division of the Supreme Court against any sentencing order made by the Children’s Court in a proceeding in the Criminal Division if satisfied that an appeal should be brought in the public interest.”
Pursuant to s. 3 of the Children and Young Persons Act “sentencing order” is defined to mean:
“Any order made by the Criminal Division following a finding of guilt and includes –
(a)any order made under Division 7 of Part 4 (other than an order granting bail made under s. 194(1)); and
(b)the recording of a conviction.”
It is to be noted that pursuant to s. 200(2) of the Children and Young Persons Act that if an informant who is a member of the police force wishes to appeal under sub-s. (1) of that section, that is, to bring an appeal to this Court “on a question of law from a final order” of the Court, the appeal must be brought by the Director of Public Prosecutions on behalf of the informant.
On behalf of the respondent it was submitted that the order from which the appellant seeks to appeal was a “sentencing order” and, accordingly, the only means by which he is able to appeal against that order is pursuant to s. 197(1) of the Act. If such submission were correct it would mean that s. 197(2) of the Children and Young Persons Act would have no function to perform as a person such as the appellant in this case could not appeal to this Court on a question of law from a final order of the Court which constitutes a sentencing order which, in my view, is an order of the nature from which the appellant seeks to appeal in this case. I do not accept these submissions made on behalf of the respondent. There may well be appeals to this Court on a question of law from a final order of the Criminal Division of the Children’s Court which constitutes a “sentencing order” which entitles a party to the proceeding in which the order was made to appeal pursuant to s. 200(1) of the Children and Young Persons Act rather than proceeding by way of the appeal process provided by s. 197(1) of that Act.
On behalf of the appellant it was submitted that the sentencing process as engaged in by the presiding Magistrate, in this case, involved the Court undertaking an exercise of the sentencing discretion vested in the Court pursuant to s. 137 of the Children and Young Persons Act. It was submitted that if, on an appeal from the Criminal Division of the Children’s Court, it was sought to demonstrate that the sentencing Magistrate had, in exercise of his or her sentencing discretion, fallen into error, for example, by acting on a wrong principle of law or there was a mistake in facts relied on, that which would be sought to be established would be that the sentencing discretion had been vitiated constituting an error of law and that an appeal relating to such matter would be an appeal “on a question of law” from the order imposing the sentence.
In Stratton v Bestaburgh Pty Ltd[2] the proceeding before the Court was an appeal from an order of the Magistrates’ Court on grounds, including, whether the penalty imposed by the Magistrate was manifestly inadequate. As appears from his Honour’s judgment it was common ground on that appeal between counsel that “the ground of manifest inadequacy of penalty does raise a question of law within the meaning of s. 92(1) of the Magistrates’ Court Act. At p. 2-3 his Honour referred to the judgment of Gowans J in R v Dole[3] where in turn Gowans J referred to that set out by the High Court in House v R[4] and that said by Kitto J in Australian Coal and Shoal Employees’ Federation v The Commonwealth[5] concerning the principles on which a discretionary judgment may be reviewed. After referring to those authorities Hansen J said at p. 3 of his judgment:
“… there is no doubt that under s. 92 a party to a criminal proceeding can appeal from the Magistrates’ Court to the Supreme Court on a question of sentence or penalty as long as it raises a question of law and manifest inadequacy of penalty does raise such a question.”
It is to be noted that Hansen J made reference to Bakker v Stuart; Wilson v Kerr[6] and in particular that said by Lush J at p. 24 where his Honour said:
“For my part I make no secret of the fact that I think it is undesirable that this Court should be called upon to review sentence matters upon order nisi to review, and I do not think that it should review the sentences of Magistrates’ Court in the same way as the Full Court reviews sentences imposed by County Court or by single judges of this Court. Whatever powers, if any, this Court has in the matter they should be reserved for cases which can be regarded as extreme.”
[2]Unreported, VSC, Hansen J, 9 September 1994.
[3][1975] VR 754 at 760.
[4](1936) 55 CLR 499 at 404-505.
[5](1953) 94 CLR 621 at 627.
[6][1980] VR 17.
In Instrumatic Ltd v Supabarse Ltd[7] the official referee had made an order dismissing the action for want of prosecution. The plaintiff sought to appeal to the Court of Appeal against such order, however, the defendants took a preliminary point that there was no “point of law” raised on the appeal. The defendants submitted that the official referee exercised his discretion and the manner of its exercise was not a point of law. Lord Denning MR at p. 521 said:
“There are many tribunals which an appeal lies only on a ‘point of law’: and we always interpret the provision widely and liberally. In most of the cases the tribunal finds the primary facts (which cannot be challenged on appeal): and the question at issue is what is the proper inference from those facts. In such cases, if a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law, and its decision can be reviewed by the courts…. In other cases the question is whether, given the primary facts, the tribunal rightly exercised its discretion. In such cases, if the tribunal exercises it discretion in a way which is plainly wrong, it errs in point of law and its decision can be reviewed by the courts.”
[7][1969] 1 WLR 519.
In Madalaine Textile Manufacturing Co Pty Ltd v Merrylands Bus Co Pty Ltd[8] which was an appeal to the Court of Appeal of New South Wales from a decision of a judge of the District Court as to the apportionment of liability in a case where contributory negligence had been established, Jacobs JA with whose judgment Wallace P and Mason JA agreed after citing Instrumatic as authority for the proposition that “the exercise of a discretion in an incorrect manner is an error of law” said:
“It is true that at times the apportionment of damages or of blame under the apportionment legislation has been described as an exercise of discretion, and it is by combination of this categorisation and the decision to which I have referred that Mr Parker has submitted that in the present case the evidence shows a wrong exercise of the apportionment power and a consequent power of this Court to intervene. I do not think that the argument can be accepted. For some purposes it may be able to be said as was recently said in the case to which I have referred that the wrong exercise of a discretion where facts are clear is a question of law. I do not think that there is a question of law where under the apportionment legislation a decision on a question of fact is given by the trial judge even though it has been described as involving an exercise of discretion.”
[8][1969] 2 NSW 573.
His Honour although distinguishing Instrumatic did not resile from the proposition that the wrong exercise of a discretion where the facts are clear is a question of law. In Tasmanian Pulp and Forrest Holdings v Woodfall[9] the question that arose for decision was whether an appeal from the exercise of judicial discretion was an appeal on a “question of law” for the purpose of s. 8 of the Appeal Costs Fund Act 1968 (TAS). At p. 44 Burbury CJ said:
“An appeal can be said to succeed on a “question of law” for the purposes of appellant jurisdiction in any case where the appellate court holds that the decision of the court below is vitiated by some error in law, as distinct from an error of fact alone. This is not to say that it may not be difficult to say whether an error found by the appellate court should be characterised as an error of law or fact. In the words of Windeyer J in Da Costa v The Queen (1968) 11 8 CLR 816 at p. 194 –
‘The distinction between questions of fact and questions of law, like the different but in some ways similar distinction between mistakes of fact and mistakes of law, has been productive of a multitude of cases and of numerous judicial statement which, especially in the field of taxation are not all easily reconciled.’
But it is at least clear that for the purpose of the exercise of the appellate jurisdiction a ‘question of law’ is not equated to a definitive rule of the general law.”
[9][1972] Tas SR 41.
At p. 47 Crawford J with whose judgment Bradbury CJ and Neasey J agreed said:
“For the purposes of legislation providing that an appeal may lie to an appellate court on a point of law or a question of law, this, certainly, would have been an appeal on a point of law. An appeal from the exercise of a discretion to order a new trial ‘if he shall think just’ is an appeal on a question of law: Brown v. Dean [1910] AC 373 at p.375; Murtagh v Barry (1890) 24 Q.B.D. 632; Grimshaw v. Dunbar [1953] 1 Q.B. 408, and so is an appeal from the exercise of a discretion to dismiss an action for wan to of prosecution: Instrumatic Ltd. v. Supabrase Ltd. [1969] 2 All E.R. 131, although that was a case, as Phillimore L.J. pointed out [1969] 2 All ER 131 at p.134, [1969] 1 WLR 519 at p.524, where 'There was absolutely no dispute as to the facts on which he had to exercise his discretion'. In this case, too, there was no dispute as to the facts on which the orders of Nettlefold J. or of the Full Court turned. The meaning of 'point of law' or 'question of law' was well settled when the Act was passed. All the decisions on legislation similar to the Appeal Costs Fund Act 1968 are to the same effect, namely that an appeal from the exercise of a discretion is an appeal on a question of law: Onions v. Government Insurance Office of New South Wales (1956) 73 WN (NSW) 279; Evatt v. New South Wales Bar Association [1968] 3 NSWR 573 at p.574, 88 WN (Pt. 1); Jansen v. Dewhurst [1969] VR 421 at p.427; Barry v. Shoobridge [1971] Tas. SR 265.”
The authorities to which I have referred support the submission that an appeal from a final order of the Criminal Division of the Children’s Court, which is the product of the exercise by the Court of its discretion in sentencing a child before the Court under s. 137 of the Act, is an appeal on a “question of law” pursuant to s. 200(1) of the Act.
In S. v Crimes Compensation Tribunal[10] Phillips JA addressed the distinction between a question of fact and a question of law. At p. 88 to 89 his Honour set out three propositions which he suggested may be best employed when seeking to ascertain if a question of law is involved though the complaint stems from the handling of facts by a Court or tribunal from whom an order is appealed. Those propositions were:
[10](1998) 1 VR 83.
“1.What is the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant’s success or failure is a question of law.
2.Once the task of construction is over the question whether the claimants particular circumstances fall within the relevant statutory description is essentially a question of fact.
3.Nevertheless if in determining whether the particular circumstances of the claimant are such to fall within the relevant statutory description, the fact-finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question whether it arrived at a conclusion which was not open to it is a question of law.”
His Honour at p. 88-9 said:
“It cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, but ordinarily it will not be so unless it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it. In so referring to a ‘finding’ I use the term not only to include a finding of fact derived from the acceptance of direct evidence to that effect; I include also an inference of fact drawn by the tribunal from other facts found by it. If the finding (be it a finding on direct evidence or inference) was not open to the tribunal that may bespeak a relevant error of law.”
It is not necessary for me in these proceedings to conclude whether a mistake of fact taken into account in the exercise of a statutory discretion, which vitiates the discretion so exercised, and an appeal is had from the order the product of the exercise of that discretion whether that appeal is an appeal on a question of fact or a question of law.
Pursuant to s. 1371(a)-(d) of the Children and Young Persons Act 1989, which are the relevant provisions of that section for the purpose of this appeal, it is provided:
“(1)If the Court finds a child guilty of an offence whether indictable or summary, the Court may –
(a)without conviction, dismiss the charge; or
(b)without conviction, dismiss the charge and order the giving of an undertaking under s. 140; or
(c)without conviction, dismiss the charge and order the giving of an accountable undertaking under s. 142; or
(d)without conviction, place the child on a good behaviour bond under s. 144;”
It is provided, pursuant to ss. 140 and 141 of the Act, that if the Court finds a child guilty of an offence, “whether indictable or summary” the Court may, without conviction, dismiss the charge and order the child, or if required the child’s parent, give an undertaking to do or refrain from doing the act or acts specified in the undertaking. It is provided that the period of such undertaking shall not exceed six months or in exceptional circumstances 12 months, but in no case can the undertaking be extended beyond the child’s 18th birthday. It is provided specifically by s. 141 that if an undertaking under s. 140 is breached the Court “must not take any action”.
If the Court finds a child guilty of an offence whether indictably or summary and in the exercise of its sentencing discretion, pursuant to s. 137(1)(c) of the Act and without conviction, it dismisses the charge, but orders the giving of an accountable undertaking under s. 144 of the Act and if it appears to the Court that the child has failed to comply with the undertaking and the Court is satisfied of that fact, the Court may cancel the undertaking or continue or vary the undertaking but not extend it beyond the period of the undertaking or revoke the order dismissing the charge and impose a fine not exceeding one penalty unit.
It is provided by s. 138 of the Act:
“The Court must not impose a sentence referred to in any of the paragraphs of s. 137(1) unless it is satisfied that it is not appropriate to impose a sentence referred to in any preceding paragraph of that section.”
Accordingly, before imposing the sentence that the Court imposed on the appellant in this case, that is, on finding that he was guilty of the offence charged and without conviction placed him on a good behaviour bond the Court was obliged to be satisfied that it was not appropriate to impose a sentence referred to in s. 137(1) (c) (b) or (a), which I list in descending order of severity.
Three of the questions referred to the Court for determination of the order of Habersberger J on 30 January 2002 are:
“(a)Did the Magistrate contravene s. 138 of the Children and Young Persons Act 1989 when he took into account the fact that the offence was an indictable offence?
…
(c)Did the Magistrate contravene s. 138 of the Children and Young Persons Act 1989 when he took into account the fact that the offence was theft?
(e)Did the Magistrate contravene s. 138 of the Children and Young Persons Act 1989 when he rejected the sentencing options set out in s. 137(1)(a), (b) and (c) on the basis that ‘it would take something quite extraordinary to dismiss, find charge proved and dismissed where its a theft’.”
These questions relate directly to that said by the presiding Magistrate after he said that he was prepared to put the appellant on a bond, which was clearly a reference by him to the exercise of his sentencing discretion where he had found the charge proved and had decided to order, without conviction, that the appellant be placed on a good behaviour bond under s. 144 of the Act and thereby to not, in the exercise of his sentencing discretion, impose a penalty which may have been imposed pursuant to s. 137(1)(a)(b) or (c) of the Act. This was said by the Magistrate after the appellant’s legal representative had urged that the Magistrate to consider, on finding the charge proved, to dismiss the charge with “perhaps a short undertaking to be of good behaviour”. In that respect the appellant’s legal representative was submitting that the appropriate disposition, in exercise of the Court’s sentencing discretion, would have been to impose a penalty which was available to be imposed pursuant to s. 137(1)(a), (b) or (c) of the Act, each of which involved the Court then dismissing the charge. It was following this that in the further exchange between the presiding Magistrate and the appellant’s legal representative that the Magistrate said:
“Well, it’s a theft, which is a serious offence, an indictable offence. My view is that it would take something quite extraordinary to dismiss, find a charge proved and dismissed where it’s a theft. I can’t immediately think of circumstances where one might dismiss a theft… as being suitable for that disposition.”
And further said:
“I can only say that’s my view. It’s been my view since I first saw the Act.”
In these statements the presiding Magistrate in my view gave expression to the reasoning process pursuant to which he had determined in exercise of his sentencing discretion, not to make an order as may have been made by him pursuant to s. 137(1)(a), (b) or (c) of the Act.
Notwithstanding that s. 137 of the Act provides for sentencing orders that may be made pursuant to sub-s. (1)(a), (b) or (c) of the Act if the Court finds a child guilty of an indictable offence, which would include the offence of theft, pursuant to s. 137(1)(a) of the Act it is provided that a Magistrate in exercise of his sentencing discretion may on finding a child guilty of theft dismiss the charge. The presiding Magistrate said that it was his view that it would take something ‘quite extraordinary’ for him in the exercise of his sentencing discretion in such a case to make a sentencing order which may be made pursuant to s. 137(1)(a), (b) or (c) of the Act.
The presiding Magistrate further said that that had been his view since he first saw the Act. By saying that the presiding Magistrate clearly makes reference to the Children and Young Persons Act 1989. In stating this, in my view, the presiding Magistrate demonstrated that it was his interpretation of the Act, that before a Criminal Division of the Children’s Court could sentence a child who had been found guilty of theft by making an order under s. 137(1)(a), (b) or (c) there would need to exist “something quite extraordinary”, that being there would need to exist some fact or matter which could be regarded as “quite extraordinary”. To this extent and by so construing the provisions of s. 137(1)(a), (b) or (c) of the Act the presiding Magistrate qualified the capacity of the Court, in the exercise of its sentencing discretion, where a child had been found guilty of a theft and in substance so construed the Act that such sentencing dispositions would not be available to the Court in such a case unless there was “something quite extraordinary”. Such construction of the provisions of s. 137(1)(a), (b) or (c) is not open on the clear language of s. 137 of the Act. In so construing those provisions the presiding Magistrate made an error of law. Further, I conclude that by reason of the presiding Magistrate wrongly so construing those statutory provisions, he did not have regard to the mandatory statutory direction as provided by s. 138 of the Act for in his reasoning as disclosed by his exchange with the appellant’s legal representative, the presiding Magistrate could not have been satisfied whether it was appropriate to impose a sentence referred to in s. 137(1)(c), (b) or (a) of the Act because to do so on his construction of the Act there would need to exist a relevant matter or fact which was classified by him as “something quite extraordinary”.
In my view in so construing the provisions of s. 137(1)(a), (b) and (c) of the Act, in the manner in which he did, it had the effect of the presiding Magistrate concluding that in the absence of “something quite extraordinary”, which he must have found did not exist in this case, that the sentencing dispositions otherwise available to him pursuant to s. 137(1)(a), (b) or (c) of the Act were not available in this case when sentencing the appellant. In so construing these provisions of the Act in the course of exercising his sentencing discretion in this case the presiding Magistrate made an error of law.
What was the proper meaning and construction of these statutory provisions was and is a question of law. The appeal of the appellant as it relates to these three questions is an appeal on a question of law. This error of the presiding Magistrate vitiated the sentencing discretion exercised by the presiding Magistrate and the order made, insofar as it was ordered that without conviction the proceeding be adjourned to 10.00 am on 14 May 2002 at Frankston’s Children’s Court that the appellant be released on entering a good behaviour bond in the amount of $50.00 and that the appellant be of good behaviour during the period of the good behaviour bond, must be set aside.
I have reached this conclusion independently of it being conceded by counsel for the respondent that this Court was entitled to conclude that the Magistrate in this case found that having regard to the offence found to be proved against the appellant being the indictable offence of theft, that he was not entitled to apply the sentencing options otherwise available to him under s. 137(1)(a), (b) or (c) of the Act and that if that was concluded, the Court was entitled to find that the sentencing discretion of the Magistrate had miscarried and must be re-exercised.
Two further questions were referred to this Court for determination on this appeal by order of Habersberger J they were:
“(g)Did the Magistrate err in law in finding that the appellant had probably had a caution in the absence of any evidence?
(h)Did the Magistrate err in law in determining the fact of a caution would disentitle the appellant of a disposition under s. 137(1)(a), (b) and (c)?
These questions are directed to the circumstances where at the conclusion of the plea made by the appellant’s legal representative on his behalf, the presiding Magistrate said that he was prepared to put the appellant “on a Bond” to which the appellant’s legal representative replied, “It’s his first time in court, Your Worship” to which the presiding Magistrate said, “Well I understand, but he’s probably had a warning before he’s come here” to which the appellant’s legal representative said, “But that goes for everyone here so when would there ever be an undertaking in that situation”. That exchange as between the Magistrate and the appellant’s legal representative took place after the presiding Magistrate had stated that he found “the matter proved” and enquired from the prosecuting officer whether there was “anything known?” to which the prosecuting officer responded “nothing’s alleged”. This exchange between the presiding Magistrate and the appellant’s legal representative again, in my view, discloses part of the reasoning process undertaken by the presiding Magistrate in concluding, in exercise of his sentencing discretion, that he would make a sentencing order as available under s. 137(1)(d) of the Act and that although nothing was alleged against the appellant he had “probably had a warning before he’s come here”.
Pursuant to the Victoria Police Manual, part of which was provided to me by counsel for the appellant which, was updated to 14 January 2002, there exists a “Police Cautioning Programme”. It is stated in paragraph 7.8.5.1 that the programme applies to all offences by children. Pursuant to paragraph 7.8.5.2, the criteria for application of the programme, which is to give a caution to a child, is required, inter alia, that there must be sufficient admissible evidence to establish the offence and the offender must admit the offence. It would appear from the fact that the presiding Magistrate said that the appellant had “probably had a warning before he has come here” that notwithstanding that nothing was alleged by the prosecuting officer and it was said by the appellant’s legal representative that it was the appellant’s first time in court which was not contested, that in exercising his sentencing discretion the presiding Magistrate took into account the fact that as a probability the appellant would have had a warning by police relevant to some matter with respect to which the police had sufficient admissible evidence to establish another offence. Whether or not this was so, and there was no evidence before the Magistrate to establish that it was so. On the case as presented before the presiding Magistrate, the conclusion reached by him, that probably the appellant had had a warning on some other occasion before coming before the Court on that day as charged, was completely irrelevant. In taking such matter and fact into account the exercise of the presiding Magistrate’s sentencing discretion was also vitiated. In taking this matter into account, the presiding Magistrate made an error of law as, in exercising his discretion, he took account of a matter which was irrelevant and ought not to have been taken into account or considered. The appeal from the order, the subject of this appeal, with respect to this matter is an appeal on a question of law. Again this gives ground why the order made by the Criminal Division of the Children’s Court at Frankston on 15 November 2001 with respect to the appellant must be set aside.
Counsel for the appellant submitted further that, in the event of the appeal being upheld and the Court ordering that the orders made on 15 November 2001, set aside, this Court should, in the exercise of its discretion, as provided by s. 200(7) and (8) of the Children and Young Persons Act, make an order sentencing the appellant and in particular it should make an order under s. 137(1)(a) of the Act, that, without conviction, the charge be dismissed. Section 200(7)(8) provides:
“(7)After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate including an order remitting the case for rehearing to the Court with or without any direction in law.
(8)An order made by the Supreme Court on an appeal under sub-section (1), other than an order remitting the case for rehearing to the Court may be enforced as an order of the Supreme Court.”
In my view it is not appropriate for this Court on ordering that the order of the Court made on 15 November 2001, be set aside that it should make a sentencing order with respect to the appellant for the offence that the Magistrate has found to be proved. Rather the matter should be remitted to the Criminal Division of the Children’s Court at Frankston for re-hearing, by way of re-sentencing the appellant. In exercising its discretion on the re-hearing, the Court, in accordance with the provisions of s. 138 of the Act, must not impose a sentence on the appellant, without conviction such as that imposed on 15 November 2001, unless satisfied in descending order that it is not appropriate to impose a sentence on him as available to the Court under s. 137(1)(c)(b)(a) of the Act. On the re-hearing, by way of re-sentencing the Court must do so according to law and have regard to this judgment.
For the above reasons it is ordered:
1. That the appeal of the appellant be upheld.
2.That the sentence imposed on the appellant by the Criminal Division of the Children’s Court at Frankston on 15 November 2001, be set aside.
3.That the proceeding be remitted to the Criminal Division of the Children’s Court at Frankston for rehearing, by way of re-sentencing the appellant in accordance with law.
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