ZXY v Tasmania Police
[2008] TASSC 55
•19 September 2008
[2008] TASSC 55
CITATION: ZXY v Tasmania Police [2008] TASSC 55
PARTIES: ZXY
v
TASMANIA POLICE
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 596/2008
DELIVERED ON: 19 September 2008
DELIVERED AT: Hobart
HEARING DATE: 26 August 2008
JUDGMENT OF: Porter J
CATCHWORDS:
Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Juvenile offenders – Relevant principles – Offender aged 10 – Series of offences of dishonesty and damage to property – Whether recording of convictions appropriate – Effect of orders.
Youth Justice Act 1997 (Tas), s49.
Aust Dig Criminal Law [855]
REPRESENTATION:
Counsel:
Applicant: P Morgan
Respondent: S Nicholson
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 55
Number of paragraphs: 43
Serial No 55/2008
File No LCA 596/2008
ZXY v TASMANIA POLICE
REASONS FOR JUDGMENT PORTER J
19 September 2008
The issue
On 17 June 2008, the applicant (who I have called ZXY) appeared in the Youth Justice Division of the Magistrates Court and pleaded guilty to a number of offences of dishonesty and damage to property. These offences were committed between 15 September 2007 and 27 April 2008 when the applicant was 10 years old. The applicant had just turned 11 at the time he appeared. The offences consisted of four counts of aggravated burglary, three of burglary and five of stealing, together with two counts of trespass and five counts of destroy property/injure property.
The offences of dishonesty and damage to property involved the entry of community buildings, schools and a church, business premises and private residences. The applicant was responsible for quite a serious rampage of theft and destruction of property.
Having considered a plea in mitigation put on behalf of the applicant, and a pre-sentence report, the magistrate recorded convictions "in relation to each of the offences of dishonesty". The formal record shows that convictions were recorded for all of the 19 counts noted above. The magistrate went on to make a probation order pursuant to the Youth Justice Act 1997 ("the Act"), s47(1)(f), by which the applicant was to be under the supervision of the youth justice officer for a period of six months, with a number of special conditions as had been recommended in a pre-sentence report.
Section 49(2) of the Act provides that in the event of a sentence under s47(1)(f), the Court may order that a conviction is or is not to be recorded. The applicant has moved to review the order of the learned magistrate by which the convictions were recorded.
The notice to review contains one ground as follows:
"1[The magistrate] erred in fact or in law in recording convictions against the applicant in circumstances where:
a) the applicant was aged 10 years old at the time of the offences and 11 years of age at the time of the sentence; and the learned Magistrate failed give to due regard to section 49 of the Youth Justice Act 1997
b) the applicant had no prior Court convictions, and was appearing before a Court for sentence for the first time, and the Learned [sic] Magistrate failed to give due regard to section 49 of the Youth Justice Act 1997."
The sole issue therefore is whether the magistrate erred in the exercise of the discretion to record convictions or not.
A preliminary matter
At the commencement of the hearing of this motion, I raised with counsel the correct name of the respondent, which was shown on the notice to review as "Tasmania Police".
"Tasmania Police" is not a juristic person. It is a label or brand name for the Tasmanian "Police Service". The Police Service Act 2003, s4, creates the Police Service. Schedule 3, cl 15 provides that any "reference in any document to the police force, police force of Tasmania, Tasmania police force, Tasmania Police or the Police Service is … to be read as a reference to the Police Service".
In turn, the Police Service is a division of the Department of Police and Emergency Management ("DPEM"). A department is merely a unit of organisation of a government.
It was the DPEM which was named as the complainant in this case, and not Tasmania Police or the Police Service, although a senior constable of police had signed as "complainant", presumably pursuant to the Justices Rules 2003, r6. (Rule 6(3)(b) enables a complaint to be made by a "public officer" (which includes a police officer), "in the name of, and on behalf of an agency, Department or instrumentality in which the public officer is employed".)
Counsel were content for the respondent to remain named as appeared in the notice to review. Given the provisions of the Police Service Act, and that it is the Crown in right of the State of Tasmania which is behind the DPEM, I could see no difficulty with that course being adopted, at least for the time being. (It is possible that difficulties may arise in relation to consequential orders.)
In the course of the discussion I raised with counsel whether a government department could, by virtue of the Justices Act 1959, s27, be properly named as a complainant. It seems to me that there may well be issues as to whether a government department is a "person" who can make a complaint within the meaning of that section, and as to the proper construction of the Justices Rules 2003, r6(3).
However, as the applicant did not object to any irregularity before the magistrate, (see the Justices Act, s120 and Ashlin v Coulson (1932) 27 Tas LR 5), these issues do not presently arise for determination.
The facts
The total amount of damage caused to school and business premises, and vehicles, was in the order of $5,500. Examples of the applicant's conduct are that he:
·smashed two exhaust fans and the grille of a heat pump unit;
·painted black and red paint on a vehicle bonnet with a roller;
·(in company with a friend), smashed the tail lights of a trailer;
·spread pink ink over a loading bay.
The majority of damage in dollar terms related to the painted motor vehicle, the balance being confined to one school. Jewellery, goods and cash to the value of approximately $1,000 was stolen. The bulk of that amount was represented by two rings stolen from a private residence, which have not been recovered. In the main, relatively small amounts of cash were taken, together with lollies and soft drinks.
The prosecutor tendered a record of two prior matters. The applicant had been formally cautioned in April 2007 for driving without a licence. This apparently related to the use of a mini bike. In July 2007, he was formally cautioned for possessing a dangerous article in a public place. That matter involved the carrying of a pocket knife.
In a plea in mitigation to the magistrate, counsel for the applicant made the following points:
· the applicant's offending could be said to demonstrate a failure on his part to consider those who were affected by his acts;
· that he recognised the court's authority and appreciated the seriousness of the occasion;
· that the applicant was influenced by older people in his immediate area and in his immediate family, his older brother and older sister both being rebellious and having come to the attention of the courts;
· that the older people in his immediate neighbourhood had at times not only "entertained" the applicant, but at times when his mother had been looking for him, attempted to deflect her from finding him;
· that in the main the offences were "thrill type vandalism offences" from the perspective of a young boy;
· the applicant explained his behaviour to police on the basis that he was bored or angry, it being submitted that the offences could have been committed out of a sense of frustration "in relation to the aspects of his life that he doesn't feel all that comfortable with …".
In anticipation of the plea of guilty on 17 June 2008, a pre-sentence report had been prepared and was before the magistrate. It recommended that there be a probation order with a number of special conditions. That report, dated 14 May 2008, revealed that while initially the applicant had reluctantly answered a limited number of straightforward questions about his family, he was not willing to discuss the offences with the youth justice worker, "was disrespectful and hostile, and despite encouragement … soon refused to participate in the interview at all".
The report documented a complicated familial and relationship structure, some prominent features in which were an affair between the applicant's father and his aunt, with his father serving a prison sentence for a serious assault on the aunt's 2-year old son, witnessed by the applicant.
Some concerns were noted as to the applicant's uncontrolled behaviour, violence, aggressiveness, absconding from home and school, marijuana use and smoking as early as January 2006. The applicant's mother, however, was said to be committed to finding solutions to address the applicant's behaviour.
As it was felt that the applicant would benefit from close monitoring and the support afforded by active supervision, the youth justice worker recommended that there be a probation order made pursuant to the Act, s47(1)(f), with a number of conditions. The included requirements for schooling, educational and other programs, and medical and psychiatric treatment as directed, and a curfew.
In the proceedings before the magistrate, the youth justice worker addressed the court, saying that since the preparation of the report, his understanding was that the applicant had taken the court matters seriously and that as a positive sign, it was understood that the applicant had been working with Anglicare and social workers who had managed to attain a level of rapport.
The applicant's mother also addressed the magistrate, saying that she continued to have difficulties with the applicant, but was attempting to find programs and the like in which to involve the applicant, and that efforts were being made to ensure his attendance at school.
The magistrate's comments
The magistrate addressed the applicant at length. The following are the relevant parts of her Honour's comments:
"[ZXY], you are before the court today on a series of very serious offences. It has appeared that you haven't really taken any of this very seriously, certainly that was the case when the report was prepared about you. I understand from what your counsel says and from what your mother says, that the penny is just starting to drop, that these are not minor matters. These are really serious matters. ... The offences that you have admitted to are very serious. You've broken into homes where people live. … You've broken into a school; you've broken into a community centre; you've broken into a bus and even a church and you've taken a money box out of the church. … From what I'm hearing, it's just been for something to do and I really think you need to consider this that it may be something for you to do but it makes other people's lives an absolute misery and does not reflect well on you …
…
I have had the benefit of a Youth Justice pre-sentence report and I'm having to read through the lines a little bit here, … because you didn't really co-operate in the making of this report and you wouldn't explain anything about why you'd done what you'd done and you didn't really want to talk about that at all or take responsibility for it but I'm hearing that your attitude has changed a little bit …
…
I'm not going to impose a period of detention, suspended or otherwise, on this occasion but I can tell you that had you been a little bit older than you are now that would have been a serious prospect and that would not have been pleasant thing and it would have been the very last resort but that's the seriousness of which I regard this. However, I do take on board the things that the Youth Justice Office has said. I will mark the seriousness of the offences by recording convictions in relation to each of the offences of dishonesty."
This motion to review
Pursuant to the Criminal Code, s18(1), no act or omission done or made by a person under 10 years of age was an offence. It was pointed out that these offences were committed when the applicant was barely of an age to make him criminally responsible for his acts.
Counsel for the applicant also referred to the Act, s5(1), which relevantly provides as follows:
"5 — General principles of youth justice
(1) The powers conferred by this Act are to be directed towards the objectives mentioned in section 4 with proper regard to the following principles:
(a)…
(b)…
(c)…
(d)…
(e)…
(f)…
(g)…
(h)punishment of a youth is to be designed so as to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
(i)punishment of a youth is to be appropriate to the age, maturity and cultural identity of the youth;
(j)punishment of a youth is to be appropriate to the previous offending history of the youth."
The Act, s4, sets out the "main objectives" of the Act. Three of those objectives are as follows:
"(d) to ensure that a youth who has committed an offence is made aware of his or her rights and obligations under the law and of the consequences of contravening the law; and
(e)to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation; and
…
(h)to ensure that, whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that takes into account the youth's social and family background and that enhances the youth's capacity to accept personal responsibility for his or her behaviour."
Those matters establish the guidelines in accordance with which a particular case coming before the Youth Justice Division should be determined.
Section 49(4) of the Act was the main focus of the applicant's submissions. That section relevantly provides:
"49 — Recording conviction
(1) If the Court imposes a sentence under subsection (1) of section 47 that does not include a sentence under paragraph (e), (f), (g), (h) or (i) of that subsection, a conviction is not to be recorded.
(2) If the Court imposes a sentence under section 47(1)(e), (f), (g) or (i), the Court may order that a conviction is or is not to be recorded.
(3) …
(4) In determining whether or not to record a conviction, the Court must have regard to all the circumstances of the case, including —
(a)the nature of the offence; and
(b)the youth's age; and
(c)any sentences or sanctions previously imposed on the youth by any court or community conference and any formal cautions previously administered to the youth; and
(d)the impact the recording of a conviction will have on the youth's chances of rehabilitation generally or finding or retaining employment.
…".
Counsel for the applicant pointed to the magistrate's acceptance that the offences were not committed for personal gain and that the applicant had little appreciation for the seriousness of what he had done. The magistrate also accepted, it was said, that the applicant was showing some improvement in his attitude and making attempts to resume his education.
It was submitted however, that the magistrate made no comment in relation to the applicant's age when deciding to record convictions against him and that generally, given the applicant's age and lack of prior court history, the magistrate erred in recording convictions. This was so, particularly having regard to the matters set out in the Act, s49(4).
The Act, s49(4), specifically directs the court to have regard to the circumstances of the case, including the youth's age (subs(4)(b)) and the impact the recording of a conviction will have on the youth's chances of rehabilitation generally or finding or obtaining employment — subs(4)(d).
The comments of the magistrate give no indication that her Honour, in considering whether or not to record convictions, considered anything other than the seriousness of the offences. No reference was made to the objectives of the Act, nor, in particular, the considerations prescribed by the Act, s49(4). But that of course does not necessarily mean that no regard was had to these factors.
A provision not dissimilar to the Act, s49(4), appears in the Sentencing Act 1997, s9. That section provides as follows:
"9 — Conviction or non-conviction
In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including —
(a) the nature and circumstances of the offence; and
(b) the offender's antecedents and character; and
(c) the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects."
In R v Browne, ex parte Attorney-General [1994] 2 Qd R 182, a provision in Queensland legislation to the same effect as s9 was considered. McCrossan CJ said, at 185, that the certain specified matters were not exhaustive of all relevant circumstances. His Honour continued:
"In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight."
In the same case, Lee J noted that a purpose of the formal recording of a conviction was in itself no element of punishment of the offender and may encourage him or her not to engage in further criminal activity, noting that "conceivably it could act as some deterrence to others if it becomes known … and is a permanent mark against his character".
In Attorney-General v Smith [2002] TASSC 10, the court was considering the dismissal of a charge without recording a conviction pursuant to the Sentencing Act, s7(h). Crawford J (as he then was) said at par[26]:
"When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. … If the offence is of a relatively serious nature, the Court may feel compelled to record a conviction. In addition to public interest questions, it is proper that the Court have regard to whether the victim of such an offence might reasonably not feel vindicated by the failure to record a conviction."
There is no reason why all of these statements of general principle should not be applied to the Act, s49(4), bearing in mind however, the constraints set up by the Act, s4, and that the age of the offender can only vary from 10 years to less than 18 years at the time when the offence(s) occurred; see the definition of "youth" in s3.
A conviction can have adverse consequences for a person for a long time in the future and in various ways. Apart from the particular aspect of employment which is noted in s49(4)(d), a conviction can constitute a bar or hurdle, in some cases indefinitely, to the person attaining public office, or obtaining rights and licences. It may prevent travel abroad.
As is said in Warner, Sentencing in Tasmania, 2nd ed at 186 par7.214, "… the status of being a convicted person can have long term repercussions well beyond the period of any sentence imposed and in this way can constitute a barrier to the person's integration into the community". It is in that sense that the recording of a conviction may impact on the youth's chances of rehabilitation generally, within the meaning of the Act, s49(4)(d).
The offences with which the magistrate was dealing were undoubtedly serious, but they were committed by a person who was just of an age to make him criminally responsible for those acts. Although wanton and destructive, the motivation for the applicant's conduct seems to be boredom and frustration, and possibly attention seeking. There were some prospects of an improvement in the applicant's attitude and of his rehabilitation generally. The proceedings themselves seemed to have had a salutary effect on him.
Those matters, together with the long term consequences of recorded convictions, and having regard to the objectives set out in the Act, s4, ought to have significantly outweighed the need for any orders having a deterrent effect. The rehabilitation of the offender should be pursued to the extent that it is consistent with the primary concern of community protection; Yardley v Betts (1979) 22 SASR 108 at 112 – 113, Kovacevic v Mills (2000) 76 SASR 404 at 420 par[79]. That statement would apply with greater force to matters under the Act, and should be applied with even greater force to a person of the applicant's age.
In my view, error has been demonstrated in the recording of convictions against the applicant. In all of the circumstances, the discretion was unreasonably exercised. I allow the motion. Pursuant to the Justices Act, s110(2)(b), I will simply quash the order of the magistrate made on 17 June 2008 by which convictions were recorded. That leaves the probation order unaffected.
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