Ingram v Littman; Ingram v Verity [2009] NTSC 70

[1] On 15 September 2009 the appellant, who was then aged 17 years, was dealt with in the Youth Justice Court. In relation to an offence of unlawfully having used a motor vehicle on 29 January 2008 he was sentenced to detention for the period of one month commencing on 23 August 2009. At the same time he was sentenced to detention for the period of one month commencing on 23 September 2009 in relation to an offence of having unlawfully used a motor vehicle on 9 March 2009.

[2] The appellant appeals against the sentences on the grounds that the learned magistrate erred: (a) in the application of the provisions of the Youth Justice Act; (b) in not providing sufficient reasons for the sentence imposed; and (c) in that the sentence imposed was manifestly excessive.

[3] The offending which occurred on 29 January 2008 involved the appellant and some co-offenders. The co-offenders, in the absence of the appellant, together agreed to unlawfully enter homes in the Malak area and steal property. The co-offenders entered a property and stole items. They also stole a motor vehicle. A short time later, whilst in the stolen vehicle, they approached the appellant and asked him to go for a drive. He entered the vehicle as a passenger and travelled with the co-offenders for some hours. Eventually the driver of the motor vehicle lost control causing the vehicle to crash. The offenders were attempting to restart the vehicle when a marked police van approached and they all fled the area. The appellant was arrested on 4 February 2008 and participated in a record of interview in which he made admissions. In his record of interview he said that one of his co-offenders had threatened violence against him if he did not join them.

[4] The offending which occurred on 9 March 2009 also involved co-offenders. At about 9:30 pm on that night the co-offenders, in the absence of the appellant, entered a car yard and stole a number of vehicles including a Toyota Camry station wagon. Some time later the appellant was given the keys to the Toyota Camry and he drove the car from Malak to Karama and back again before abandoning it in Malak. Police attended at his residence where he was arrested for the offence. He provided the keys to the stolen vehicle to police.

[5] The matter came before the Youth Justice Court on 1 May 2009 when the appellant was sentenced to 60 hours community service on each of the offences giving a total of 120 hours community service. The appellant appeared before the court again on 29 July 2009 for having breached the community work orders. The breaches were admitted. The appellant was also before the court in relation to another matter and was remanded in custody to appear on 16 October 2009 for an oral committal. The breaches came before the court on 15 September 2009 by which time the appellant had completed only six hours of the 120 hours ordered. The sentences of detention were then imposed.

[6] The appellant appeals on three grounds.

Ground 1: The learned magistrate erred in the application of sections 69, 81 and 121(6) of the Youth Justice Act when imposing sentence.

[7] It is agreed that the learned magistrate dealt with the breaches pursuant to s121(6) of the Youth Justice Act. The section provides that, where a court is satisfied that a youth has breached an order, the court may revoke the order and deal with the youth under s 83 as if it had just found him or her guilty of the relevant offence or offences. In so proceeding the court is required to take into account the extent to which the youth had complied with the order before the application was made.

[8] When proceeding to deal with a youth in such circumstances consideration must be had to the provisions of the Youth Justice Act including the general principles set out in s 4 and the principles and considerations to be applied pursuant to s 81 of the Act. Section 81(2) provides that the court must consider any information about the youth or the offence that may assist the court to decide how to dispose of the matter and requires particular consideration to be given to:

(b) any history of offences previously committed by the youth; and

(e) any previous order in relation to an offence that still applies to the youth, and any further order that is liable to be imposed if the youth has not complied with the terms of the previous order; and

(f) the extent to which any person was affected as a victim of the offence.

[9] Section 69 of the Youth Justice Act imposes an obligation upon a court, if it is considering imposing a sentence of detention, to ensure that the court is informed as to the circumstances of the youth. Those circumstances would include information relevant to the considerations spelled out in s 81(2) referred to above. Section 69 provides that the court must require the provision of a pre-sentence report unless it is satisfied that it has the information necessary to determine an appropriate sentence. It is to be noted that the primary obligation to ensure that the necessary information is provided rests with the court rather than with the youth or his or her counsel.

[10] In the present case the appellant acknowledges that the learned magistrate was in receipt of some of the necessary information in that his Honour had been informed of the age of the appellant at the relevant time and provided with particulars of his antecedents. However, his Honour did not have information as to the background and personal circumstances of the appellant or any explanation of the appellant's reasons for breaching the community work order. Such information was necessary in order to determine an appropriate sentence.

[11] It was submitted on behalf of the respondent that the learned magistrate had access to the original file along with any remarks or notes provided by the original sentencing magistrate. There is nothing in the transcript to suggest that his Honour referred to any such remarks or notes. It is not apparent from a review of the material before this court that the necessary information was available from the original file and, in any event, such information would not include relevant events and developments occurring subsequent to 1 May 2009.

[12] In my opinion, his Honour erred in failing to obtain the relevant information through counsel appearing on behalf of the appellant or, alternatively, by ordering a pre-sentence report.

Ground 2: The learned magistrate erred in not providing sufficient reasons for the sentence imposed.

[13] When considering ex tempore reasons for sentence delivered by magistrates in busy courts it is usually the case that an appellate court is entitled to assume that the magistrate has considered all matters which are necessarily implicit in the conclusion reached. It is to be assumed that magistrates are well aware of the sentencing options open to them. It should not be inferred that a magistrate did not consider all of the relevant material merely because the magistrate failed to specifically mention a particular sentencing option or a particular submission in the course of ex tempore sentencing remarks[1]. However, in the present case, it is apparent that the relevant material was not placed before the court and could not have been considered by the court.

[14] It is unnecessary to consider this ground of appeal in light of the conclusions I have reached above.

[15] The appeal is allowed. The sentence is set aside. The matter is referred to the Youth Justice Court for further consideration.

[1] Kuiper v Brennan [2006] NTSC 54 at [33]; Simon v Garner [2007] NTSC 33 at [12]; Henda v Cahill [2009] NTSC 63 at [10]