Brown v Lyons [2017] NTSC 9

Youth Justice Act (NT) s 4(r), s 6(2), s 52(1), s 52(2), s 56B, s 57(2), s 65B, s 69

Appellant: Central Australian Aboriginal Legal Aid Service

Brown v Lyons [2017] NTSC 9

[1] The appellant was charged in the Youth Justice Court with aggravated assault, engaging in violent conduct and with two counts of breach of bail. He pleaded guilty to each count. At the time of the offending he was 17 years and 6 months of age. At the time of sentence, he was 18 years and 3 days old. In relation to the counts, the following sentences were imposed:

1. Aggravated assault: convicted and sentenced to imprisonment for 6 months.
2. Engaging in violent conduct: convicted and sentenced to imprisonment for 2 months.
3. On each of the breach of bail counts, he was convicted and fined $50 with a $50 victim's levy.

No order was made making the sentences of imprisonment cumulative. It is apparent that the learned judge intended that they be served concurrently. His Honour suspended the sentences forthwith on conditions and fixed an operational period of 6 months.

1. The learned sentencing Judge erred by sentencing the appellant, Hudson Brown, a youth, alongside two adult co-offenders in the Local Court, rather than in the Youth Justice Court;
2. The learned sentencing Judge erred in his application of the Youth Justice Act and relevant sentencing principles; and
3. That these errors resulted in a sentence that was manifestly excessive.

[3] The appellant and his co-offenders (Imran Johnson, aged 21; Xavier Nelson, aged 18 and Shaquille Heinz, aged 18) were members of a group calling themselves "The Bad Boys". Eric Ward (aged 27) and Michael Ward (aged 32) were part of a group called "The East Side Regulators". On 4 February 2016, the members of both groups had consumed alcohol in Tennant Creek and became intoxicated.

[4] At approximately 8:45 pm, the appellant and his co-offenders walked past the Tennant Creek Hotel. They were loud and boisterous, shouting "Bad Boys". The Wards walked up behind the appellant and his co-offenders. Eric Ward stepped closer to Heinz and made aggressive remarks. Heinz told Eric Ward to "fuck off". Johnson told Eric Ward that he had "ten seconds to get out of here." Eric Ward then punched Heinz in the face. Heinz then punched Eric Ward once to the face.

[5] The appellant and the co-offenders fell into two groups. Johnson and Nelson kicked Eric Ward numerous times to the head and the body. Johnson kneeled down and picked up Eric Ward's head and slammed his face into the footpath.

[6] At the same time, the appellant and Heinz engaged Michael Ward in a fist fight, each taking turns to step forward and exchange punches with Michael Ward. Michael Ward tripped and fell to the ground. The appellant and Heinz kicked Michael Ward to the head and body numerous times.

[7] Nearby bystanders became fearful. Some approached the two groups. The appellant and his co-offenders ran off shouting "You've got knocked the fuck out." An ambulance arrived and conveyed both of the Wards to the Tennant Creek Hospital.

[8] Eric Ward was transferred to the Alice Springs Hospital. He received cuts and bruises to his face and swelling to his head. He was discharged the next day. Michael Ward suffered bruising and minor lacerations to his face. He was discharged after a couple of hours. There were no permanent injuries and the Crown conceded before the learned Judge that there was no harm which interfered with health.

[9] The appellant was arrested on 18 February and participated in an electronic interview the next day when he made full admissions.

[10] As to the breach of bail matters, the first breach occurred on 3 July 2016 when he was not at home during a curfew period. The second breach occurred on 27 July 2016 when he was again not at home during a curfew period. In both cases the police had called at the appellant's home shortly after 7 pm when the curfew period commenced, and the appellant was not there as he should have been.

[11] The appellant had no prior convictions for violent offences. The appellant's criminal record, although it was before the learned Judge, was tendered but not exhibited. There were also some photographs, a victim impact statement and a report relating to the appellant's suitability for supervision which were also tendered or made available to the court, but not exhibited. As a consequence, those documents were not required to be forwarded to this Court as contemplated by s 175 of the Local Court (Criminal Procedure) Act.

[12] It is important for Judges of the Local Court to ensure that all documents tendered or made available to the Court are properly exhibited in case there is an appeal to this Court. However, in this case, no harm has been done. I was told by counsel, without objection, that the appellant had only 2 prior breaches of bail dealt with on 4 April 2016. The Court found these proved but ordered that the appellant be discharged. Apart from that, he had also been dealt with under the youth diversion provisions of the Youth Justice Act for property offences allegedly committed in 2015.

[13] As noted earlier, the charges against the appellant were brought in the Youth Justice Court. He was not jointly charged with his co-offenders and it is plain that, in relation to summary offences at least, he could not be jointly charged with adult offenders. It is not in contention that when the learned Judge heard the pleas and submissions on sentence in relation to the appellant, he was sitting as the Youth Justice Court. Although the appellant had by then turned 18 by some four days, ss 52(1) and (2) of the Youth Justice Act ("The Act") make it very clear that, notwithstanding that a youth has turned 18 subsequent to the date of his offending, upon a plea of guilty he must be dealt with in the Youth Justice Court unless the matter is referred to the Supreme Court for sentencing pursuant to s 57(2) of the Act. The Local Court has no jurisdiction to deal with youths, and no jurisdiction to deal with youths and adults at the same time, except where there is a joint preliminary examination by a Local Court Judge under s 56B, in which case the Judge sits as the Local Court and the Youth Justice Court simultaneously: see s 56B(2). In this case, therefore, at the time of sentence, the learned Judge was required to sit as the Youth Justice Court.

[14] However, what happened is that the learned Judge, sitting as the Local Court, had on the same day heard pleas, facts and submissions relating to the co-offenders Heinz and Nelson. The offender Johnson had been dealt with previously by a different Judge sitting as the Local Court. When his Honour came to sentence the appellant, he did so at the same time as he sentenced Heinz and Nelson and without formally opening the Youth Justice Court. This was no mere formality which could be over-looked. First, s 4 (r) of the Act specifically required his Honour to conduct the proceedings against the youth offender separately from proceedings in relation to the adult offenders "as far as practicable". There is nothing to indicate that there were any practical reasons why this could not have been done. Second, his Honour had no jurisdiction to impose sentence when sitting as the Local Court. Third, by imposing a suspended sentence, his Honour seems to have overlooked the fact that there are very different procedures (and consequences) for dealing with breaches of suspended sentences imposed by the Youth Justice Court than in the case of suspended sentences imposed by the Local Court under the provisions of the Sentencing Act. Although his Honour specifically referred to the different sentencing provisions which apply to youths under the Youth Justice Act, his Honour then said, after referring to the fact that the appellant was now an adult, that he found for the purpose of sentencing that his behaviour was "adult-like behaviour in the group of adults and I do not think that I should greatly distinguish him", and that "I was about to impose a period of actual imprisonment because of the effect of the Sentencing Act" (relating to mandatory minimum sentences for adult offenders who commit violent offences but which do not apply to youths). His Honour also expressed concerns about parity. This all indicates that his Honour failed to properly distinguish the quite different sentencing regime relating to youths.

[15] Moreover, although his Honour had ordered a report to see if the appellant and his co-offenders were suitable for supervision (which in each case was favourable), his Honour did not order a pre-sentence report in relation to the appellant. Section 69 of the Act provides:

(1) If a youth has been found guilty of an offence and the Court is considering imposing a sentence of detention or imprisonment, the Court must ensure that it is informed as to the circumstances of the youth.

(2) In order to be informed, the Court must require a pre-sentence report to be provided to it.

(3) However, if the Court is satisfied that it has the information necessary to determine an appropriate sentence, the Court may dispense with the need for a report.

(4) The Court may require the report to address specific matters in relation to the youth that the Court wishes to be informed about.

[16] Clearly s 69 of the Act applies whether or not the sentence is wholly suspended. The definition of "youth" in s 6(2) of the Act includes a person who committed an offence as a youth but has since turned 18 years of age, if the context requires it. In my opinion, the context did require the word "youth" in s 69 of the Act to include the appellant. On a plain reading of s 69(2) the Court does not have a discretion; the Court "must" require a report to be prepared. Section 69(3) confers a power to dispense with that requirement, but it is a power the exercise of which is discretionary. Whilst I would not ordinarily reach the conclusion that the failure to mention something of significance during a sentencing hearing in a busy Court, especially one being conducted outside of the main centres such as in Tennant Creek, meant that the requirement was overlooked, in the circumstances of this case, I think it was overlooked. No mention of s 69 was made by the learned Judge, nor by counsel. Nor did his Honour specifically say that he had the information necessary to determine an appropriate sentence and that he proposed to dispense with the need for a report. Bearing in mind the importance of pre-sentence reports, particularly when a prison sentence or detention is being contemplated, in my opinion the learned Judge did need to specifically turn his mind to that question and, if he was of the opinion that a report was not needed, he ought to have specifically ruled that the need for a report was dispensed with. Otherwise, how can one know whether or not the power, and the discretion conferred by the power, has been exercised? I have some sympathy for the learned Judge who was trying to deal with this matter expeditiously late in the day. No doubt the problem of having to reconvene the Court weeks later when a pre-sentence report became available is something he might well have wished to avoid, particularly as I understand that his Honour was not the only Judge who sat in Tennant Creek from time to time. But none of this excuses the failure to properly comply with the Act.

[17] A number of matters were put in plea of mitigation. First, that the offending was started by Eric Ward who approached Heinz and made "aggressive remarks". It was Eric Ward who started the fight when he punched Heinz. The appellant had no previous convictions. The behaviour was out of character for him. He was born in Alice Springs and attended Hampton Primary School in Adelaide and then Ross Smith High School. Whilst in Adelaide, he often stayed with relatives. He struggled at school. He was frustrated watching his friends succeed, which led to behavioural issues. As a result he undertook anger management counselling sessions after school for approximately two years, and at the time of sentencing he was much more calm and responsible. He was married with a newborn child. He did not normally drink, except on special occasions. Members of his group engaged in petrol-sniffing, but he did not do so. He was the youngest member of the group and still a youth at the time of the offending. In the future, he intended to relocate to Adelaide with his wife and child and pursue further study in the area of mechanics and engineering. He was the first of the group to walk away from the fighting. It was submitted on his behalf that an appropriate disposition would be a community work order, and that convictions should not be recorded.

[18] Counsel for the respondent conceded that the penalties imposed were manifestly excessive. The learned judge imposed the same sentences for each of the offenders and his remarks indicated that he was concerned with parity. However, as Mr Robson conceded, it is difficult to apply considerations of parity when dealing with a youth in circumstances such as this. Further, Mr Robson conceded that his Honour erred in imposing convictions. No consideration was given to whether or not it was inappropriate to impose convictions on the appellant, apparently because the learned Judge was of the view that the appellant's offending was "adult-like" and that he should not differentiate between the offenders. Mr. Robson conceded that a suspended sentence, without recording a conviction, would have been punishment enough. It is difficult to understand why his Honour imposed a conviction for the breach of bail matters which were relatively minor.

[19] In my opinion each of the grounds of appeal are made out. I have already announced that the appeal is allowed, and that I would publish my reasons for doing so at a later time, and these are those reasons. In the circumstances, it is necessary for me to re-sentence the appellant. I do not consider that I should dispense with the need for a pre-sentence report[1], and accordingly I have ordered one. The further hearing of the appeal is adjourned to a date to be fixed, pending receipt of the pre-sentence report.

[1] The definition of "Court" in s 5 includes the Supreme Court when exercising jurisdiction under the Youth Justice Act. When re-sentencing the appellant, I will be exercising the jurisdiction of the Supreme Court under that Act.