Conroy v S [2005] TASSC 101

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Purpose of sentence - Relevant principles - Balancing retribution, deterrence and rehabilitation - Legislative acceptance of removal from community - Magistrate's orders quashed.

Lahey v Sanderson [1959] Tas SR 17, considered.

Judgment Number: [2005] TASSC 101

SIMON MATTHEW CONROY, SALLY ELIZABETH COTTRELL,

1 The appellants, public officers, seek review of an order made in the Magistrates Court (Youth Justice Division) sentencing the respondent to three months' detention wholly suspended. The suspension was conditional on the respondent being of good behaviour for two years. During the hearing of the motion to review, the parties agreed that the order made was flawed in that the period of the conditions imposed as terms of the suspension exceeded the maximum permitted by the Youth Justice Act 1997 ("the Act"), s91(2)(a), namely 12 months. For this reason alone the motion to review ground 4 ought be upheld.

2 The respondent was aged 14 at the time of the making of the order. She has an abysmal record for crimes and offences, mostly of dishonesty, violence and varying forms of antisocial conduct, commencing at least in June 2001. Despite cautions, probation, psychological assessments and treatment and diversionary programmes, she remained, as of the date of the order, dysfunctional and not amenable to either control or assistance, manifested by some 53 entries of committal offences or breaches of statutory notices, comprising 20 for dishonesty, 16 for violence and 17 for breaches of orders or restrictive notices. On 23 May 2005, the respondent pleaded guilty to 29 offences or crimes stated in 11 complaints, consisting of 15 acts of dishonesty, 8 of violence and the remainder of breaches of court orders, committed between November 2004 and 11 May 2005. The court ordered the provision of a pre-sentence report in accordance with the Act, s33. On the resumption of the sentencing hearing, the court was provided with a psychological assessment prepared in August 2003 for earlier proceedings and a pre-sentence report prepared by a Youth Justice worker dated 20 May 2005.

3 The Youth Justice worker assessed the respondent as presenting "as High Risk with High Needs requiring High Supervision" and

"... respectfully recommended that Your Worship consider a disposition pursuant to Section 47 (2) (a) of the Youth Justice Act, namely a suspended detention order, with special conditions regarding psychological assistance and attendance of educational programs. If Your Worship deems such an order appropriate, Youth Justice will provide assistance and support for [J] to achieve her newly stated goals."

and further indicated that the respondent had "been assessed as suitable to perform community service".

4 The learned magistrate gave full effect to the terms of the report and recommendation. He ordered that:

(1) the respondent be subject to a detention order for three months;

(2) suspension of the order on condition to be of good behaviour for two years;

(3) the respondent be subject to a probation order for a like period; and

(4) the undertaking of 49 hours of community service.

The global order was one without the recording of any convictions.

5 The notice to review claims error on the grounds that:

"1 The learned magistrate erred in fact and/or in law in exercising a discretion to suspend the said period of detention;

2 The learned magistrate erred in fact and/or in law in failing to have regard, or sufficient regard, to all of the circumstances of the case, in particular the nature of the said offences and sentences previously imposed upon the respondent;

3 The learned magistrate erred in fact and/or in law in that the said sentence was manifestly inadequate in all the circumstances.

4 The learned magistrate erred in law in failing to have regard to s91(2)(a) of the Youth Justice Act when he ordered that suspension of the detention order was for a period of two years."

6 The learned magistrate did not disclose his reason for declining to record convictions and his attention was not drawn to the provisions of the Act, s91(2)(a), which restricts the period permitted for the suspension of the operation of a detention order. The amended ground of appeal in part contradicts the thrust of the appellants' contention that the penalty was inadequate, but is an appropriate vehicle for consideration of the approach taken by the Youth Justice Court. It constituted error which permits this Court to quash the order and substitute its own assessment of disposition. For the purpose of upholding this appeal, the decision of the learned magistrate not to impose any conviction is regarded in itself as manifesting error as claimed in the notice of review, ground 2.

7 However, the issues raised by the appeal are of wider import. Those issues, as identified during the course of the hearing, can be stated as:

(1) Whether the Executive, acting through the public officers who made the complaints or the Director of Public Prosecutions as an instrument of the Executive, generally ought successfully claim error when a judicial officer has acted in accordance with the recommendation of a public officer responsible for the welfare of a child brought before the Youth Justice Division of a court.

(2) The standard by which an order made against a child ought be measured in determining inadequacy.

(3) What factors, other than the interests of a child, govern disposition?

8 The objectives of the legislation are broadly stated and include:

"4 Objectives of Act

The main objectives of this Act are -

(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

(f) to enhance and reinforce the roles of guardians, families and communities in -

(ii) punishing and managing youths who have committed offences; and

(iii) rehabilitating youths who have committed offences and directing them towards the goal of becoming responsible citizens; 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."

9 The tensions between the stated aims of rehabilitation, punishment, retribution and subjective deterrence are not confined to youth justice and the efficacy of differing models of response remain the subject of academic inquiry, judicial comment and community discourse. The objects stated in the Act are weighted, but not subsumed by, the needs of treatment, acceptance of responsibility, future control, protection and maturation. They reflect an understanding, simply expressed, that historically in many instances, detention within an institution can be counter-productive and further fracture personality (see Lahey v Sanderson [1959] Tas SR 17). But the objectives retain acceptance of "removal from the community". The general principles, started in the Act, s5, are more problematic. The section provides:

(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) that the youth is to be dealt with, either formally or informally, in a way that encourages the youth to accept responsibility for his or her behaviour;

(b) that the youth is not to be treated more severely than an adult would be;

(c) that the community is to be protected from illegal behaviour;

(d) that the victim of the offence is to be given the opportunity to participate in the process of dealing with the youth as allowed by this Act;

(e) guardians are to be encouraged to fulfil their responsibility for the care and supervision of the youth and should be supported in their efforts to fulfil this responsibility;

(f) guardians should be involved in determining the appropriate sanction as allowed by this Act;

(g) detaining a youth in custody should only be used as a last resort and should only be for as short a time as is necessary;

(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.

(2) Effect is to be given to the following principles so far as the circumstances of the individual case allow:

(a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;

(b) family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;

(c) a youth should not be withdrawn unnecessarily from his or her family environment;

(d) there should be no unnecessary interruption of a youth's education or employment;

(e) a youth's sense of racial, ethnic or cultural identity should not be impaired."

10 Some of those general principles are self-evident, but cumulatively they state, but do not resolve, the tensions of differing purposes. Courts, in resolving or giving regard to differing principles, are reliant on the advice of trained public officers as to those characteristics specific to the child, especially as to the effect of sanction in relation to principles (g), (h), (i) and (j). Accepting that custody ought be a last resort, the advice of a youth justice worker that immediate custody not be imposed is highly significant in the determination of any claim of error on behalf of the judicial officer. (See Australian Law Reform Commission, Report No 84, 1997, statistical analysis at 45, generally, Ch19, Influence of Pre-Sentence Reports on Sentencing in a District Court in New Zealand, Deane (2000) 33 Aust & N Z Journal of Criminology 91.) Whilst it is clear that a judicial officer is not constrained to accept the advice of a reporting officer, it is ordinarily the case that it is the defendant who challenges an order made contrary to that advice or recommendation (see Allpass v R (1994) 72 A Crim R 561). In cases such as R v Dowie [1989] TASSC 44; [1989] Tas R 167 and Everett & Phillips v R [1994] HCA 49; (1994) 181 CLR 295, the courts have applied constraints on the upholding of Crown or prosecution appeals because of principles of public policy, double jeopardy or general unfairness. (See York v R [2005] HCA 60.) Nevertheless, here the acceptance by the learned magistrate of the recommendation was erroneous. The report itself did not identify two of the complaints which comprise 11 charges of dishonesty and breach of bail committed between 31 March and 10 May 2005. Between the date on which the presentence report was ordered (19 April 2005) and the sentencing hearing (23 May 2005), the respondent had committed four separate acts of motor vehicle stealing, three of theft or attempted theft and of breach of bail. Accepting that the reporting officer was unaware of that conduct, it nevertheless belied the tenor of the report which included the following:

"[J] is very concerned at the outcome of these proceedings. She genuinely does not wish to return to Ashley. From past history the likelihood of her behaviour changing is minimal and the likelihood of [J] repeating her offending behaviour is high without some firm support in place. This has placed the department in a difficult situation as [J] has refused in the past to engage in any form of support offered to her. [J] states that she is trying to change her attitude and actions toward herself and others for the better. [J] states that she has come to the realization that she is allowing the abuse and trauma she has experienced in the past to still affect her life today. [J] states that if she does not do something about this, the past will continue to affect her future in a negative way. It appears that [J] has been thinking a great deal about her life while being remanded as her attitude appears to have changed for the better."

11 The learned magistrate was made aware that at the time of the sentencing hearing the respondent was in detention. The report itself was inaccurate and regrettably unhelpful. It noted that the respondent had failed to participate at the expected level in a comprehensive programme tailored to her specific needs yet, inherent to the eventual recommendation, inferred a favourable outcome might be obtained by return to home, when it stated:

"[J] had been living with her mother for about eight months prior to going to Ashley and states that if released she will return back to her mother's home. Her mother, Jennie, would be happy to have [J] in her care although at times she does find [J] difficult to handle. Jennie tries very hard to encourage [J] to do the right thing and return back to school, she has been very supportive of her and Youth Justice."

12 The learned magistrate attempted to give effect to the scheme of the legislation and the recommendation of the youth justice worker favourable to the respondent and provided advice and explanation to the child during his remarks in imposing sentence. I suspect that his words had minimal effect on a troubled child who was doubtless out of control. She had convictions for attempted armed robbery, aggravated assault, resisting arrest, motor vehicle stealing in order to commit burglary, street violence, taking property with menaces and, aggravated robbery before the 29 charges which were the subject of the sentencing hearing. The problem confronting the court was not one of punishment but of protection, both for the child and the community. Despite the limitations of juvenile institutions, they can provide a place of security. This was not a situation of a naïve child being exposed to the influence of others and "learning bad ways". She had already done that. This was not an appropriate case to return a damaged child to the community. (Carney, Young Offenders and State Intervention: Issues of Control and Support for Parents and Young People, (1989) 22 Aust and N Z Journal of Criminology 22; Muncie and Coventry, Punishment in the Community and the Victorian Youth Attendance Order: A look into the Future, (1989) 22 Aust and N Z Journal of Criminology 179.) Family support, whilst necessary for long term change, had not been sufficient (Farrington, Family Based Prevention of Offending, (2003) 36 Aust and N Z Journal of Criminology 127). Return to an institution was required, not through reason of punishment or retribution, but as a form of control and the provision of a stable environment, at least in the short term (Harris and Timms, The Lost Key: Secure Accommodation and Juvenile Crime: an English and Welsh Perspective (1993) 26 Aust and N Z Journal of Criminology 219). The prognosis for the child was already poor and detention might have provided some form of stability, albeit if the child equated detention with punishment, which may have enabled a slight opportunity for maturation (Fagan and Weston, Escalation and Deceleration of Offending Behaviours from Adolescence to Early Adulthood (2005) 38 Aust and N Z Journal of Criminology 59). At worst, an immediate detention order denied, for a period, further opportunity for antisocial conduct and removal of the offender from the general community.

13 Whilst an appellate court ought be reluctant to intervene at the behest of the State in a case where effect has been given to the recommendation of a probation or case management officer, or where the State acknowledges that it has obtained a considerable benefit from the co-operation of an offender (see York v R (supra)), the ultimate responsibility for sanction or protective orders remains with the judicial officer.

15 The Court states its appreciation to counsel for the appellant, Ms Hartnett and counsel for the respondent, Ms Morgan, for their competent presentation of their respective cases and their assistance to the Court.

16 The parties have, appropriately, suggested that in the event the appeal is upheld, the Court not remit the matter back to the Youth Justice Court. The recommendation made by the Youth Justice worker has been belied by subsequent conduct. On 19 August 2005, the respondent again appeared in court and pleaded guilty to a further 109 offences, the majority of which comprised acts of motor vehicle stealing, burglary, theft and unlawfully setting fire to property, committed in April/May 2005, with 27 occurring after her release on 23 May. On 19 August, she was made subject to a further detention order of 14 months, dated as and from 27 June. Account is taken of that order and period of detention (Attorney-General v Maynard [2001] TASSC 26) in the formulation of this sentence. The original order was manifestly inadequate by reason of both its length and total suspension. Consistent with the tenor of the Act, s33, regard is had to the existing pre-sentence report, although little weight is given to it. The respondent had been subject to 79 days of detention at different periods, pending the disposition of the varying complaints. The learned magistrate was doubtless influenced by the time spent in detention when he formulated a wholly suspended sentence. Effect is given to the period and the order of six months' detention is reduced to that of four months. Given the principle of totality and that the outcome intended is detention to permit stability and maturation, rather than punishment, an order of four months' cumulative detention will be re-imposed, none of which will be suspended. This period of detention will be cumulative to the order made on 19 August 2005, in accordance with the Act, s85. Convictions will be recorded. No order for the performance of community service will be made and they will be replaced by an increase of one month's detention, additional to the three months originally ordered.

(1) That the motion to review be upheld and the orders made on 23 May 2005 quashed.

(a) the respondent be convicted of the offences stated in complaints 23394, 23817, 23818, 23928, 24013 of 2004 and 898, 3917, 5342, 7771, 7780 and 7923 of 2005;

(b) the respondent be subject to a period of four months' detention, such to be cumulative to that imposed on 19 August 2005;

(c) that the respondent be subject to a probation order for a period of two years.