M v Hibble [2003] TASSC 13

Whittle v McIntyre [1967] Tas SR (NC 6); Jones v Fleming [1957] Tas SR 1, applied.

Judgment ID Number: [2003] TASSC 13

1 The applicant has applied to review sentences imposed against him in the Magistrate's Court (Youth Justice Division). His grounds are the same with respect to each of the motions to review. The first ground is that the learned magistrate failed to give due weight to the applicant's personal circumstances, including his intellectual disability, youth, lack of prior convictions and lack of subsequent offending. The second ground is that the sentence was manifestly excessive in all the circumstances. There was no dispute at the hearing that unless I am persuaded that the respective sentences were manifestly excessive, having regard in particular to the factors specified in the first ground, the motions must fail.

2 On complaint 27326/01 the applicant pleaded guilty to and was sentenced for three counts of aggravated burglary, seven counts of burglary, 10 counts of stealing associated respectively with the aggravated burglaries and burglaries, one count of stealing by finding and one count of receiving stolen property. Details of the offences, in their likely chronological order, are:

1 On the night of 31 December 1999 the applicant and Patrick Simon Bailey entered as trespassers a Scottsdale house with intent to steal. They walked a short distance from Bailey's residence to do so. They gained entry through an unlocked window and once inside stole property worth about $2,370, that included two mobile phones, a baby monitor, a video cassette recorder and cassette, a CD stereo, a Game Boy console and games and a telescope. They returned to Bailey's residence where the property was hidden in bushland at the rear.

2 On about 15 January 2000 the applicant found a BMX bicycle worth about $200 and decided to keep it for himself. He later repainted the bicycle in an attempt to disguise its appearance.

3 Sometime between January and March 2000 Bailey gave to the applicant two Army-style life jackets, informing him that they had been stolen in a George Town burglary committed by Bailey. The applicant was instructed by Bailey to take the items to the rear of Bailey's residence and hide them in the bush.

4 On about 20 May 2000 the applicant and Bailey walked a short distance from Bailey's residence at Scottsdale to some maintenance and machinery sheds. A Ford panel van was entered by smashing its window and an angle grinder, circular saw, cordless drill and ammunition were stolen to a value of about $500. A nearby maintenance and machinery shed was entered through an open door and they stole a forklift battery and battery charger worth about $600. They returned to Bailey's residence where the property was hidden in bushland at the rear.

5 In June 2000 the applicant and one Christopher Billings entered a house at Scottsdale through an unlocked lounge room window. They searched the house and an external shed and stole a stereo player, table lamp, angle grinder and torch worth about $380. The applicant shared in a division of that property.

6 On about 8 July 2000 the applicant and Bailey travelled to George Town in Bailey's vehicle. The applicant acted as a lookout while Bailey gained entrance to a dwelling by forcing a garage door. Once inside, Bailey cut a chain to a gun locker and removed a firearm. The applicant helped him load the firearm into the boot of the vehicle and it was subsequently hidden in bushland behind Bailey's residence. I am not aware of the value of the firearm. The complaint alleges that three firearms were stolen and that the total value stolen was $2,120 approximately.

7 On about 18 September 2000 the applicant and Bailey walked a short distance from Bailey's residence to machinery and maintenance sheds at Scottsdale. They gained entry, using a key that was hidden nearby. Once inside they stole two chainsaws, two chain breakers, a quantity of joiners and chain links, a spade and three rolls of chainsaw chain to a total value of $2,513. The property was hidden in bushland at the rear of Bailey's premises.

8 On about the same date they walked to machinery and maintenance sheds at another address at Scottsdale and gained entry to a storeroom inside a shed by breaking a door lock. Once inside they stole a pair of bolt cutters, a chainsaw, two firearms and a hunting knife to a total value of about $2,790. They hid the property in bushland at the rear of Bailey's premises.

9 Between 26 and 28 October 2000, the applicant and Bailey walked a short distance from Bailey's residence to machinery and maintenance sheds at Scottsdale. They gained entry through an unlocked door and once inside stole a chainsaw, chain breaker and repair equipment, 25 feet of chainsaw chain, five harvester bars and an electric fence unit to a total value of about $2,600. They hid the property in bushland at the rear of Bailey's premises.

10 On about 31 October 2000 the applicant and Bailey walked a short distance from Bailey's residence to machinery and maintenance sheds at the same address as that referred to in paragraph 7 above. A padlock to the front gate was cut and the door of a storeroom inside a shed was kicked open. Once inside they stole two chainsaws and a four-wheel drive motor bike to a total value of about $12,400. The applicant carried the chainsaws while Bailey drove the four-wheel drive motor bike. Once again, the property was hidden in bushland at the rear of Bailey's premises.

11 On about 1 November 2000 the applicant walked a short distance from Bailey's residence to a shed outside a dwelling at Scottsdale. He gained entry to the shed and stole three antique rabbit traps, a quantity of fire crackers, a torch, spotlight clips, a pair of binoculars, a quantity of batteries and light globes, to a total value of about $240. He stored the property in an area known as Tuckers Creek.

3 I was informed that the total value of property stolen was approximately $26,713 and that the value of property recovered was $12,296.

4 On 14 November 2002 the learned magistrate convicted the applicant of all the above counts and made a detention order for one month on each. However, by making some of the orders concurrent, the net effect of the orders was that detention was ordered for a total of seven months. All of the detention was suspended on condition that the applicant commit no offence or crimes involving an element of dishonesty for a period of two years. The sentence is the subject of the motion to review in file LCA 28/2002.

5 As a consequence of his offences the applicant was taken into custody, and on 9 November 2000, he was released on bail subject to a condition that he reside at his home at 11 Smith Street, Scottsdale and remain there between the hours of 9pm and 8am each night. On complaint 27392/2001 he was charged with four offences under the Bail Act 1994, s5(4), arising out of his contravention of the terms of his bail on four consecutive nights on 6, 7, 8 and 9 December 2000. He pleaded guilty to those four offences. He had taken himself to George Town and stayed there. On 14 November 2002 the learned magistrate dismissed the charges with a reprimand.

6 On 14 May 2001 police went to the applicant's residence and spoke to him in the presence of his mother. He was in possession of cannabis located in a film container on the kitchen table. He claimed that it belonged to his friends. Charged with possessing a prohibited substance under the Poisons Act 1971, s55(1)(c), he pleaded guilty and on 14 November 2002 the learned magistrate convicted him and made a probation order for two years. The sentence is the subject of the motion to review in file LCA 29/2002.

7 I will first deal with the motion to review attacking the sentence for possessing a prohibited substance. Counsel for the applicant accepted that the making of a probation order was reasonable but submitted that the learned magistrate should not have convicted the applicant, having particular regard to the fact that at the time of the offence he was 18 years of age and that he had no record for committing drug offences. I find the submission a surprising one having regard to the facts that the applicant had offended in a considerable number of ways over an 11 month period during the course of the previous year and that pre-sentence reports made it clear that the applicant's possession of cannabis on the day of the offence was not an isolated one. A pre-sentence report presented by Youth Justice Service officers in May 2001 disclosed that he was using cannabis and alcohol on a regular basis. His use was described as amounting to drug and alcohol abuse. A later pre-sentence report prepared in May 2002 explained that his drug usage had increased and his behaviour at home had become intolerable and volatile. He was using cannabis on a daily basis and became aggressive and difficult to manage when he did not have access to it. He had agreed to attend a drug and alcohol rehabilitation program at Missiondale but shortly before his scheduled admission, he refused to attend. He was persuaded to give the program a chance and he joined the Missiondale program on 13 May 2002. A final pre-sentence report prepared in September 2002, explained that he was suspended from the program shortly after commencing it because of his use of a prohibited substance. He was later readmitted to the program but was asked to leave because of using unapproved medication. Missiondale had determined not to permit him to attend again unless and until he addressed issues pertaining to anger management. I conclude that the applicant's claim that the recording of a conviction and imposition of a probation order, with its consequent benefit of supervision, was a manifestly excessive penalty has no sound basis. The sentence was plainly within the reasonable exercise of the sentencing discretion. It was a light penalty.

8 I next deal with the sentence that was effectively one of seven months' detention, all of which was suspended for two years on condition that the applicant commit no offence or crime involving an element of dishonesty.

9 The 22 offences were committed over an 11 month period when the applicant was aged 17 years. He was 19 years old when sentenced. Counsel informed the learned magistrate that the applicant had an intellectual disability and when he left school aged 15 years he had limited numeracy skills and could not read. After leaving school he worked for a few months tree planting. Apart from that he had earned extra money by raising chickens and ducks and selling eggs. He received a disability support pension of $260 per fortnight and lived with his parents and younger sister. Between May 1999 and September 2000 he was friendly with Bailey and had committed most of the offences with Bailey. Counsel said that Bailey sold much of the stolen property and supplied the applicant with small quantities of marijuana and cash. Bailey was older than the applicant and known to the police. There was no record of the applicant having committed further offences since he had been found in possession of cannabis on 14 May 2001, a period of 18 months until the imposition of the sentence.

10 The applicant maintained to youth justice workers that the offences committed in Bailey's company were Bailey's idea, and he had participated because of promises of money and because he was bored. He had realised at the time that he was breaking the law, that he should not be doing so and that he could get into trouble if he was caught. The youth justice workers reported in May 2001, that from a discussion with the applicant's parents, it appeared that he had been an easy target for an experienced offender, who saw it as an opportunity to enlist an intellectually disabled young man in the offending. The officers accepted that the applicant might not be as capable as many young people of similar age, due to his intellectual disability. It was considered that there was a significant risk that the applicant would reoffend, given his apparent susceptibility to exploitation by older and more experienced individuals. He was regarded as an unsuitable candidate for a community service order. The youth justice officers acknowledged that given the seriousness of the offences, a sentence of detention may well be ordered, and they recommended that if so, a probation order also be made.

11 When sentencing the applicant, the learned magistrate said that he took into account counsel's submissions and the various reports. His Worship accepted that most of the offences were committed as a result of the applicant falling into bad company and he acknowledged that the applicant had obviously experienced difficulties in his life. His Worship also acknowledged that there was no record of further offending for almost two years and said that "in all the circumstances I can provide for your rehabilitation". His Worship demonstrated that he had decided, in the light of those matters, that all of the detention he proposed to order and which he considered to be appropriate for the offences, should be suspended.

12 Intellectual disability alone is not a mitigating factor, but it is if it reduces culpability. The learned magistrate accepted that to be so. In addition to that factor, counsel for the applicant relied heavily on the fact that it took two years from the commission of the last of the offences of dishonesty before sentence was imposed. Delay alone is not a mitigating factor either, although it can be if it causes stress and anxiety. The applicant's counsel suggested to me that was the case here, but no material was put before me establishing that it was a factor raised for the consideration of the learned magistrate. Delay which is not the fault of the applicant, may also advantage him or her if it can be shown that during the relatively long period of time represented by it, the offender has demonstrated rehabilitation. While it could not be said that the applicant had demonstrated comprehensively that he had reformed, it was nevertheless to his credit that there was no evidence that he had offended dishonestly in the two years prior to sentencing. That was a factor that tended to support the imposition of a sentence aimed at achieving, or at least encouraging, rehabilitation. The sentence imposed, a wholly suspended detention order and a probation order, clearly had rehabilitation as its objective.

13 Counsel for the applicant also submitted that because the applicant is liable to be easily led into crime if he keeps bad company, there is a much greater risk with him, than with many other offenders, that he will reoffend. Consequently, so it was submitted, two years' suspension of the detention was manifestly excessive and harsh. Acceptance of that logic would I think, require acceptance of the validity of the proposition that suspended sentences for those who are less likely to reoffend should be for longer periods than for those who are more likely to do so. I reject it.

14 It needs to be said at the time of many sentencing appeals, that a sentencing magistrate has a very wide discretion to exercise. An applicant is not entitled to ask this Court to substitute its opinion for that of the magistrate. It must only do so if it plainly appears that the learned magistrate made some error in the exercise of the discretion. Whittle v McIntyre [1967] Tas SR (NC 6); Jones v Fleming [1957] Tas SR 1. In this case the asserted error is that the sentencing order was so harsh as to be manifestly excessive. The offences of the applicant were bad ones. Property of considerable value was involved. Residences and other buildings were broken into on nine different occasions over an 11 month period, and other offences were committed. The residents of Scottsdale had every right to demand actual and substantial punishment. The sentence of seven months' detention suspended for two years, and a probation order, were more designed for the rehabilitation of the youthful offender than for punishment. A requirement that he not similarly offend for two years was not harsh. In my opinion, the sentence was well within the appropriate sentencing range for a 17 year old offender and it has not been demonstrated that the learned magistrate erred.