Simmonds v Hill [1986] NTSC 1; 38 NTR 31 - NTSC 1986 case summary — Zoe

Simmonds v Hill [1986] NTSC 1; 38 NTR 31 - NTSC 1986 case summary — Zoe

conviction quashed - appellant admonished - Juvenile Justice Act s.53. HRNG DARWIN #DATE 19:2:1986 Counsel for the Appellant: M.R. Jones Solicitors for the Appellant: ALAO Counsel for the Respondent: R.J. Wallace Solicitors for the Respondent: J.B. O'Rourke, Crown Solicitor for the Northern Territory of Australia. ORDER The conviction and fine are quashed. The appellant is admonished for his conduct and counselled against any future misconduct which may place his career prospects in jeopardy. He is also warned that leniency of this kind may only be extended once. On this occasion he is discharged without conviction. JUDGE1 The appellant is a 15 year old schoolboy. On 28 August 1985 he was found to have in his schoolbag some small cannabis plants weighing 23.5 grams. The plants had been purchased by the appellant from another student earlier that day. He was charged with possession of the plants under s.66(1) of the Poisons and Dangerous Drugs Act. When his case came before the Juvenile Court he pleaded guilty, but through his counsel asked that the matter be adjourned for six months with a view to his being discharged without conviction if in the meantime he did not commit a further offence. It is apparent from his comments at the time that the learned magistrate did not treat this request seriously; instead he convicted the appellant and fined him $50.00. On this appeal it is sought to have the conviction reversed upon the ground that in adopting the course which he did, the learned magistrate failed to take into account the appellant's age, his antecedents, the circumstances of the offence and the possible implications of a conviction for his proposed career. 2. The facts as I have stated them constitute the entirety of the information put by the prosecutor to the Court to enable it to deal with this young offender. 3. Without objection the appellant's counsel said that her client had never used cannabis himself, nor had he formed any real intention to do so. She said that he had told her that "a lot of people" were using cannabis, by which I assume was meant a lot of high school students. The appellant's explanation to his counsel had suggested that in buying the plants he was "acting big" in response to "peer group pressure". 4. The appellant has not been in trouble before. He is a good student with aspirations of qualifying as a pilot in the armed forces. He is the Northern Territory junior shooting champion and has represented the Territory in interstate shooting contests. He supplements his pocket money by doing babysitting work. 5. The Juvenile Court was told that the appellant was punished by his parents for the offence: his pocket money was substantially reduced for three months and he was barred from attending any social activities for that period. The fact that he had been disciplined at home in this way should have been of considerable importance in deciding how to deal with him. 6. The matter of principal concern to the appellant, and no doubt to his family as well, was having a conviction for a drug offence against his name. Such concern is understandable, not the least because it is a question commonly asked of job applicants: "Have you ever been convicted of a criminal offence?". For many young persons it is a heavy burden indeed to have the mark of such a conviction on them for the rest of their lives. It is apparent from the learned magistrate's remarks that he was alive to this, but considered the scale of the punishment not disproportionate to the offence even in the case of so young an offender with the appellant's background. "(Y)ou have just shot your chances of entering the forces", he observed. If he thought this, then the course he took was remarkably harsh in the circumstances. It is clear that he was determined to make an example of the appellant; he said: "(Y)ou tell the rest of the mob at your school that you're going to be treated like adults if you're going to play with stuff that really is not in a children's world". No established incorrigibility on the appellant's part justified remarks like this, the sentencing approach being aimed essentially at others. 7. The preamble to the Juvenile Justice Act tells us that it is an act relating to, amongst other things, "... 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 them being dealt with, where appropriate, by means of admonition and counselling) ...". An adult first offender convicted of simple possession of cannabis might expect a fine of the order of that imposed on the appellant. It seems to me that in the appellant's case no real allowance was made for his age and level of maturity when he committed the offence. 8. Section 53 of the Act empowers the Juvenile Court to dispose of cases coming before it in a number of ways including, where it finds a charge proven against a juvenile, to discharge him without proceeding to a conviction either immediately or after adjourning the matter for up to six months to see how the juvenile behaves in the meantime. It is possible that there are other options open to it without proceeding to a conviction, such as placing the juvenile under probation; but whether this is right or not I need not decide in this case. That question remains open because having first omitted any power to dispose of juvenile cases without recording a conviction, the Legislature in the amendment to s.53(1) by the Statute Law Revision Act (No. 28 of 1984) appears on the face of things to have gone to the opposite extreme of permitting fines, even imprisonment, without proceeding to a conviction. 9. 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. Particularly is this so in the case of a first offender. Here there is a real risk that an incentive to good behaviour has been removed, namely the desirability of a clean record in what for young people just leaving school is a very difficult labour market indeed. Despite the learned magistrate's observations, cannabis has a real presence in our schools and probably the majority of our young people will have some contact with it. 10. Before imposing a particular sentence on a juvenile, a court must ask itself whether it is necessary to go beyond the lesser options. Section 53 offers discharge without conviction, either immediately or following adjournment, as the first option. Admonition and, where appropriate, counselling would normally accompany such an approach. In the Juvenile Court it should be an option much more readily adopted than in the Court of Summary Jurisdiction. It should not be reserved for special or unusual cases. 11. In my opinion this was classically a case for admonition and discharge without conviction. Patently it was not given serious consideration and I can only assume that this was because the learned magistrate misapprehended the appropriateness of such a course on a charge involving cannabis. More importantly, the stress has been upon punishment and deterring others, an altogether wrong emphasis in my view. 12. The conviction and fine are quashed. The appellant is admonished for his conduct and counselled against any future misconduct which may place his career prospects in jeopardy. He is also warned that leniency of this kind may only be extended once. On this occasion he is discharged without conviction.