detention. (b) Stealing 23.2.92 - 3 months' detention concurrent with (a) above. Both sentences cumulative upon 4 above.

6 File 9210494 (a) Drove unlicensed 31.3.92 to 2.4.92 - Fine $200, Victim's Assistance Levy $10, in default 5 days' detention. No time to pay. (b) Drove without helmet 31.3.92 to 2.4.92 - Fine $200, Victim Assistance Levy $10, in default 5 days' detention. No time to pay. (c) Unlawful use of motorcycle 31.3.92 to 2.4.92 - 1 months' detention. (d) Unlawful entry with intent to steal 31.3.92 - 3 months' detention concurrent with (c) above. Sentences (c) and (d) cumulative upon sentence 5. 3. The total of the sentences of detention amounted to nine months twenty-one days. The court ordered that the sentences of detention be suspended on 11 December 1992 upon conditions: (a) that for a period of two years the appellant be of good behaviour upon a recognizance, self, in the sum of $500; (b) the appellant be placed upon probation subject to the supervision of the Minister for Correctional Services and obey all reasonable directions as to reporting, curfew, residence, employment, education and associates. 4. The court also recommended that whilst in custody the appellant receive psychological training. 5. The appellant has appealed against all the sentences except the sentence in relation to file 9120990, and the sentences where fines were imposed. THE APPELLANT'S BACKGROUND 6. The appellant was born on 3 May 1978 at Alice Springs. He was therefore thirteen years of age at the time of each offence, but had turned fourteen at the time of sentence. He is of part-Aboriginal descent. He had lived most of his life in Darwin. He has three elder sisters. His parents separated when he was aged three. His father is still alive, lives at Alice Springs, and maintains occasional contact, but has a drink problem. In 1982, the appellant's mother entered into a defacto relationship with a man who had two sons and a daughter. The joining together of the two families caused jealousy between the various children for the appellant's mother's affections. The appellant's step-father was a violent man, and there was more than a suggestion that he had been cruel in exercising discipline over the children. The records of the Department of Correctional Services confirmed these matters. 7. In 1989, the appellant returned to Alice Springs to live with his father for a short time. In 1989 or 1990 he returned to Darwin. In July 1991 he was found in possession of a BMX bike frame which was the subject of the unlawful possession charge. The charge in that matter was laid on 25 October 1991. However no plea was entered in relation to it until 26 May 1992, and so far as I can tell, this was his first appearance in relation to that offence. 8. On 11 August 1991 and 18 August 1991 the appellant committed four offences as follows: 11 August 1991 (1) Unlawful entry with intent to commit a crime. (2) use of a motor vehicle for longer than forty-eight hours. 18 August 1991 (3) Unlawful entry with intent to commit a crime. (4) Unlawful use of a motor vehicle for longer than forty-eight hours. 9. Those offences related to unlawful entry to the Darwin Golf Club's workshop and unlawful use of motorcycles. Those offences were dealt with on 5 November 1991. The court imposed forty-eight hours community service (without conviction) in respect of each offence - a total of 192 hours' community service. At this time, the appellant was attending his first year of high school. In order to comply with this order, I observe that the appellant would have needed to work a little over thirty-eight hours per week for five weeks - a not inconsiderable task for a thirteen year old high school student. 10. In the meantime, between September 1991 and February 1992, the appellant's mother went interstate, leaving the appellant with an elder sister and her boyfriend. During this period, the appellant apparently had some problems with the boyfriend. The facts are not entirely clear. There are suggestions of violence by the boyfriend towards the appellant and his sister in some of the materials before the Juvenile Court. In any event, the appellant often did not return to his sister's home, preferring instead to stay at a friend's home. The pre-sentence report records that during 1991, his school reports recorded erratic behaviour and poor grades which coincided with his mother's absence interstate. This was to be contrasted with his school report for 1990, his last year of primary school, which showed a consistent, positive year with good grades. He was required to repeat year 8 in 1992. 11. In January 1992, the appellant committed the offences which are the subject of files numbered 9201193 and 9201642. The stealing offence related to his participation, with about twenty other boys, in stealing cases of beer from a lifesaving club. The appellant's participation in this offence was limited to helping to pass the alcohol onto others and to carry the alcohol away from the premises which had been broken into and entered by a number of other youths. As to the offences on 13 January 1992, the appellant, with a group of other young offenders, went to the grounds of a primary school. A co-offender smashed a window to a room to gain entry and let the appellant and another co-offender in. A fire extinguisher was sprayed around the room, and paint powder thrown about, causing damage and cleaning costs to the value of $1,000. 12. In February 1992, the appellant's mother returned to Darwin as one of her step-sons had died in an accident and she wished to attend the funeral. Upon her return, she experienced violence from her defacto husband who had also been interstate at the time of his son's death and had also returned to Darwin in February. A restraining order was obtained. Legal proceedings were commenced in the Supreme Court over who had the right to arrange the deceased's burial. It appears that these proceedings were the same proceedings as those dealt with by Martin J in Calma v Sesar and Ors (unreported, 27/3/92) on 11 and 13 March. The appellant's mother was not a party to those proceedings which involved a highly emotional dispute between the appellant's step-father and the step-father's first defacto wife. It is not clear what role the appellant's mother played in those proceedings. 13. It is not clear where the appellant was staying after February 1992, but I infer he had returned home with his mother for most of the time until about early March. 14. In the meantime, the appellant had made little effort to comply with the Community Service Orders. He was first due to report for work on 16 December 1991 and thereafter on each Wednesday until completion following a notice given on 8 November 1991. Between 8 November 1991 and 27 February 1992, a total of twelve such notices were served, but he performed only two days' (16 hours') service (on 8 and 15 February) and both of those days were after he had been informed (on 4 February) that breach proceedings had been instituted. 15. On 20 March 1992, the appellant appeared in the Juvenile Court in relation to the breach proceedings as well as for the offences committed in January. Those proceedings were adjourned to 31 March and the appellant was granted bail until then. 16. In early March, the appellant appears to have lived with his sister and her boyfriend again for about three weeks. However, on 23 March, he was staying at a friend's home, and on that evening he went with his friend and another youth to another primary school, broke a window to gain entry, and stole two video cassette recorders and a computer. These were the offences the subject of file 9210495. In the meantime, on 27 March, it appears that the appellant made contact with his Juvenile Justice Officer and agreed to perform more work under the Community Service Order. He attended on 28 March and performed one day's unpaid work. This left 168 hours left to perform. 17. The appellant did not answer his bail on 31 March. At about 11.30 pm that evening, in the company with the same friend, the appellant went to the BP service station in Progress Drive Nightcliff. His friend gained entry to the workshop, and opened the roller doors for the appellant to enter. The appellant wheeled out a motorcycle which was then driven out to the Nightcliff and Millner areas. The next day the appellant drove the motorcycle along a beach. On 2 April, the appellant was seen by police driving the motorcycle without a helmet. The police attempted to apprehend him unsuccessfully. He abandoned the motorcycle and made good his escape. He was interviewed by police on 8 April in the presence of his mother but declined to answer any questions. These offences constituted the last group of offences in file 9210494. 18. As the appellant did not answer his bail on 31 March, the Juvenile Court issued a warrant for his arrest, the warrant to lie until 10 April. 19. In the meantime, the appellant's mother, on 3 April 1992, had moved into the Darwin Aboriginal Womens' Shelter to avoid continuing violence from her defacto husband. On 11 April, the appellant's step-father put the appellant on a bus to go to Port Headland to stay with relatives there. This was done without the appellant's mother's knowledge or consent. On 13 April, the appellant's mother contacted the Department to report the fact that her son had been sent to Port Headland without her consent, and sought the Department's assistance to have him brought back. Eventually the appellant made contact with his mother by telephone and he returned to Darwin on 14 May and stayed with his mother. The appellant said that he did not immediately contact the police, although he knew there was a warrant out for his arrest, because he wanted to stay home with his mother for a week first. 20. On 22 May, the appellant appeared voluntarily in the Juvenile Court and was bailed to appear on 26 May. On that date, the appellant appeared in answer to all of the charges, and pleas were entered in relation to some of those charges. Bail was refused and the matter adjourned until 29 May. 21. On 29 May, some of the matters were adjourned to 14 July and others to 2 June and a pre-sentence report and a psychological report ordered. Bail was again refused. On 2 June, pleas were entered on the remaining charges, those matters were adjourned until 19 June for sentence, and bail was again refused. On 9 June bail was granted by the Supreme Court. On 19 June all matters were adjourned again until 14 July 1992. In the meantime, between the appellant's release and bail on 9 June and 14 July 1992, the appellant performed a further 132 hours of community service, leaving thirty-six hours left to be performed. As a condition of his bail, he had been living at home with his mother and attending high school again. It appears that he had failed to complete the last thirty-six hours of community service because he "walked off the project" allotted to him. The reasons for this appear to be related partly to illness but primarily to immaturity. The court adjourned the matters further until 21 July to enable the appellant to complete the last thirty-six hours. 22. When the matter resumed on 21 July, the court was informed that the appellant still had twelve hours to perform. He had performed community service on 15, 16 and 17 July and had attended on Saturday 18 July. However, on that day, according to a Juvenile Justice Officer, "the other boys he was working with were very disruptive and they were sent home and no hours were awarded for that day." On 19 July (Sunday), the appellant was supposed to work four hours but did not attend as he apparently "failed to get up in time." It is to be noted that the failure to complete the remaining twelve hours was largely not the appellant's fault. Even if he had attended on 19 July, he would still have been eight hours short. 23. Very little of the above facts personal to the appellant are referred to by the learned magistrate in his remarks on sentence. It has been necessary for me to collate them (with the assistance of submissions by counsel) from the transcript of the proceedings taken on five separate days and from the exhibits. 24. In Simmonds v Hill [1986] NTSC 1; (1986) 38 NTR 31 at 33 Maurice J emphasised the special regime for juveniles instituted by the Juvenile Justice Act and the way in which the Juvenile Court should approach the sentencing of juveniles, viz,: "In the Juvenile Court the retributive aspect of sentencing is, at best, of secondary importance. Even lower in the scale, if, indeed, it has any place at all, is deterring others. The overwhelming concern is the young offender's development as a law-abiding citizen. The court should be at pains to ensure that its sentences do not alienate its young clients." 25. The preamble to the Act states, inter alia, that it is an Act relating to: " ... the punishment of juvenile offenders ... with the intention that juveniles be dealt with in the criminal law system in a manner consistent with their age and level of maturity (including their being dealt with, where appropriate, by means of admonition and counselling) ..." 26. Section 53 of the Act deals with the powers of the court to dispose of matters before it. The balance of powers include discharge without penalty and without proceeding to a conviction, adjournment of the proceedings for up to six months to see how the offender is behaving, and then discharge without conviction or penalty, unpaid community work orders, probation, suspended sentences of detention, detention for not more than twelve months at a detention centre, orders for the participation by the juvenile in a project or programme provided or approved by the Minister, and in the case of juveniles who have attained the age of fifteen years, suspended sentences of imprisonment and imprisonment. In addition, detention or imprisonment may be ordered to be served continuously or periodically; and an order for detention or imprisonment may be partly suspended. Further, the court may order restitution by way of monetary compensation or performance of service in respect of compensation pursuant to s55. The court can also order the parents of a child who is ordered to be detained to pay an amount towards the costs of the detention in certain circumstances (s55A) and if a juvenile before the court is not receiving adequate care or his welfare is endangered, the court may require the Minister to prepare a report showing what action has been taken by the State to secure the proper care of and attention to a juvenile's welfare: s52. In appropriate cases, where a child is in need of care within the meaning of s4(2) of the Community Welfare Act, the Minister may be called upon to take action under s10 of that Act, but in exercising his powers, the Minister is required by s9 to maintain and develop those family relationships that are, in his opinion, in the best interests of the child. 27. In M v Waldron [1988] NTSC 42; (1988) 56 NTR 1 at 6-7, Kearney J said: " Mr Dowd referred me to the leading case of Hallam v O'Dea (1979) 22 SASR 133, which makes it clear that the principles on which a Juvenile Court should select the most appropriate penalty are fundamentally different from those applied in a Court of Summary Jurisdiction. As was pointed out in R v Homer (1976) 13 SASR 377 at 382-3:'... in the case of a juvenile ... the court is trying to find out what is the best means of turning this delinquent juvenile into a responsible law-abiding adult and that has really got nothing to do with the seriousness of the crime ... and no useful comparison can be made between an order made under a non-punitive system and a sentence imposed on an adult.'

In its difficult task of deciding upon the appropriate disposition I consider that the Juvenile Court should always bear in mind the need to preserve and strengthen the juvenile's relationship with his family (and that it is generally desirable that he remain in his own home) as well as the need to bring home to him a clear understanding that he is required to observe the law. He should be kept in the community wherever that is practicable, if the need to protect the community from him does not require his removal from it." 28. His Honour also observed (at 7) "that only in a bad case could a court properly conclude that a fifteen year old has 'come to the end of the road' so far as non-custodial penalties are concerned." A fortiori in the case of a thirteen year old. The approach of the courts when dealing with juveniles must be cautious, patient and caring, with the interests of the juvenile foremost in mind. Of course, there are some offences which warrant an immediate custodial sentence notwithstanding that the offender is a juvenile and notwithstanding, even, that the juvenile has no prior convictions. But these are for extremely serious crimes, usually, but not always, crimes of violence where it is right that the need to punish and deter is given particular emphasis: see R v Williams (unreported, Mildren J, 9/9/92) at 11. I do not say, of course, that in the case of a persistent offender, where the crimes are not in the extremely serious category, that it is not appropriate to order detention or imprisonment. But even in such cases, detention or imprisonment should only be used as a last resort, where all other options are inappropriate and the need for deterrence and to protect the community must be given special prominence: see, for example, Yovanovic v Pryce (1985) 33 NTR 24. 29. In this case, the learned magistrate said, in response to submissions put to him that a suspended order of detention might be appropriate: "It's just a slap on the wrist. He goes to Electric Dreams and tells his mates: 'I've got a suspended order of detention. I'm not in custody." 30. In Wood v Samuels (1974) 8 SASR 465 at 468 Walters J, after emphatically rejecting the idea that a suspended sentence was virtually no penalty at all, said: "After all, a sentence of imprisonment, followed by a suspension, remains a sentence of imprisonment (R v O'Keefe (1969) 2 QB 29, per Lord Parker LCJ at 32; Kennedy v Spratt (1972) AC 83, per Lord Reid at 91); and an offender dealt with in this way will continue to be at risk, during the period of the suspension, of having his suspended sentence reactivated on reconviction, with the original term unaltered. Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court's clemency. 31. Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided. Apart from the matters which are specifically mentioned in s4(2a) of the Offenders Probation Act and to which a court must necessarily direct its attention before deciding that a sentence of imprisonment ought to be suspended, the considerations governing the choice between a custodial sentence and a suspended sentence cannot be identified by any constant ratio. The factors to be taken into account must invariably be different in the particular circumstances

of each particular case. But, as I see it, the ultimate questions which the court will have to decide are those postulated in the statement of Lord Parker LCJ in R v O'Keefe, supra, where his Lordship said:- 'It seems to this Court that before one gets to a suspended sentence at all, the court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, should be: is immediate imprisonment required, or can a suspended sentence be given?'" 32. Those remarks were made in the context of adult offenders rather than the special regime of juveniles, but, in my opinion they apply also to juvenile offenders. I reject any notion that a suspended order for detention is just "a slap on the wrist." It is not. In Elliot v Harris (No.2) (1976) 13 SASR 516 at 527-8, Bray CJ (with whom Bright and Zelling JJ concurred) said: " According to the affidavit of Mr Noblet, the appellant's counsel in the Court below, he asked the learned magistrate to impose a suspended sentence. In answer to this request he

says that the learned Special Magistrate said, inter alia: 'I agree with the view currently prevailing in England that a suspended sentence is really no punishment at all.' This affidavit was not challenged by the respondent and Mr Bishop agreed that he could not support the remark just quoted. It reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment. This Court has frequently expounded the merits of the suspended sentence in appropriate cases (see, for example, Reg v Weaver (1973) 6 SASR 265; Reg v Locke and Petersen (1973) 6 SASR 298), and it behoves courts of summary jurisdiction to take heed of our pronouncements. I think this error sets the sentence at large for us." 33. Although, in the Northern Territory, a breach of the terms of a bond imposed when suspending a sentence does not automatically call into effect the term of imprisonment fixed by a court (whether by this Court, a Court of Summary Jurisdiction, or the Juvenile Court) - see s6(3)(e) of the Criminal Law (Conditional Release of Offenders) Act and s53(4) - these principles embodied in Wood v Samuels, supra, and Elliot v Harris (No.2), supra, have been applied by this Court on a number of occasions: Ponter v Pryce (unreported, Rice J, 20/9/85); Duthie v Smith (unreported, Mildren J, 16/6/92); Halsey v Haymon (unreported, Mildren J, 10/6/92); and by the Full Federal Court in R v Gillan [1991] FCA 184; (1991) 100 ALR 66 at 71 in respect of the provisions of the Crimes Act 1900 (NSW) in its application to Norfolk Island (which provisions also do not require a person in breach of a bond to automatically serve the term imposed). The remark of the learned magistrate that a wholly suspended sentence is a "slap on the wrist" is sufficient to demonstrate error. 34. However, I consider also that the sentence imposed for the breach of the Community Service Order is clearly manifestly excessive. By the time the appellant was sentenced for the breach, he had but twelve hours community service left to perform. It is true, as the learned magistrate observed, that the appellant had had many chances to complete his work, and there was evidence before him, which he accepted as he was entitled to do, that the Juvenile Justice Officers had had to put in considerable effort to get the appellant to this stage. But in the end, his failure to complete the work by the time of his sentence was frustrated by others, and he had but a small number of hours left to go. The majority of the hours performed (156 out of 180 hours) had been done after he was released on bail by Angel J on 9 June. By this time, he was living with his mother, and the influences on his life between September 1991 and May 1992 due to his mother's absence, the problems with his step-father and his sister and her boyfriend, had apparently come to an end. I do not consider that it was appropriate to order detention in respect of the breach of the bond in all the circumstances. 35. There are other aspects of the sentencing process which I will mention briefly. Firstly, the learned magistrate in his remarks on sentence observed that he had in mind a disposition which would "treat or assist" the appellant, but that he had "a doubt in (his) mind that (the appellant) is being assisted by his family situation at present. The reason for that is that despite chances given to him by the Supreme Court and by me to complete his community service, he hasn't completed it. I'm not sure that he's getting encouragement at home." After referring to the need to protect the community, his Worship observed that he could "see nothing in Kenneth's conduct since he was granted bail by the Supreme Court which will indicate that the community was safe" and his Worship again referred to the failure to complete the Community Service Order. His Worship concluded: "I'm not satisfied that the juvenile's rehabilitation will best be achieved by remaining with his family at this stage. I think his family situation has improved over what it was when he resided with his sister or his sister's boyfriend who I'm told is violent to him. But I'm not sure that it's resolved yet or improved yet to the situation where Kenneth feels confident so that he knows that if he doesn't complete his community work he's doing the right thing. I'm of the view here that the only appropriate disposition is detention and I propose that Kenneth will be detained in a detention centre." 36. The difficulty with this approach is that there had been a material change in the appellant's home life since he had been released on bail, and, apart from the failure to complete the Community Service Order, which was explicable in the circumstances, there was nothing else to cause "a doubt" to be raised about the standard of his mother's care. His Worship had heard from the appellant's mother that she, having finally resolved her problems with her defacto husband (who had returned to Port Headland), had returned to her own home, and that she believed that the appellant's problems were largely due to her leaving her son whilst she was attending to her problems. Even if "a doubt" existed, the appellant was entitled to the benefit of it: see generally, M v Waldron [1988] NTSC 42; (1988) 56 NTR 1 at 5. Having regard to the importance of the need to strengthen the appellant's relationship with his family, and that it was generally desirable that a juvenile remain in his home, it was particularly important that the court not make an adverse finding on this issue without a proper and sound basis for it. 37. In this case, the learned magistrate was dealing with a juvenile who had committed a number of property offences, in circumstances where no restitution had been offered, and it was quite proper for him to consider a period of detention having regard for the need to protect the community from a repeat offender. Further, some of the offences had been committed whilst the appellant was on bail, and it is relevant, even in the case of a juvenile, to take that into consideration, if it bears upon the assessment of the appellant's prospects of rehabilitation: R v Gray [1977] VicRp 27; (1977) VR 225 at 229. But in this case, the appellant had not previously had any convictions recorded, had been dealt with by the court on only one previous occasion, and had not had the benefit of probation. He is only fourteen years old now, and it cannot be said that previous efforts to rehabilitate him have entirely failed, or that having regard to all the circumstances it is purposeless to exercise such powers as release on probation or under a suspended sentence because the court did not have material before it indicating that a rehabilitative scheme offered at least good prospects of success: cf Yovanovic v Pryce, supra, at 27. The author of the pre-sentence report concerning the appellant obviously considered his prospects to be good, as he recommended probation and/or a suspended sentence, and although the learned magistrate was not bound to accept that recommendation, the objective facts which explained his offending suggested that if these factors could be controlled or avoided, the prospects were good. All but one of the offences had been committed whilst in the company of other youths, and whilst the appellant's mother was unable to give her attention to the appellant, and at a time when his home life had been severely disrupted. These factors could be controlled by the use of the court's powers to order probation or as a condition of a suspended sentence, or both. Whilst it may be said of detention centres in the Northern Territory, such as the Don Dale Centre, that they are "rehabilitive units" (to adopt the expression of Muirhead ACJ in Yovanovic v Pryce, supra, at 27),it is in my view clearly inappropriate to order detention as a means of rehabilitation unless there are no other means which can be adopted and the circumstances of the case otherwise justify it, whether because of the seriousness of the criminality or otherwise. In this case, although there was a series of offending which the court had to consider in the context of the need to protect the community, ultimately, the community's best protection lay in the appellant's prospects of rehabilitation, and the appellant had not yet reached the stage where it could be said, as I have already observed, that his prospects were not good unless a custodial sentence was imposed. Accordingly I am satisfied that the sentences imposed are manifestly excessive. 38. The appeals are therefore allowed and the sentences set aside. I shall hear counsel on what sentences I should impose in lieu thereof.