John Alexander Marlow v Ross Cleveland Stranger [1987] ACTSC 17 (19 March 1987)

SUPREME COURT OF THE ACT

JOHN ALEXANDER MARLOW v. ROSS CLEVELAND STRANGER
S.C. No. 975 of 1986
Appeal - Sentencing

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Appeal - severity of sentence of 12 months detention - specification of location of institution - whether within power.

Sentencing - taking account of probable remissions.

Sentencing - relevant factors including rehabilitation.

Child Welfare Ordinance 1957

The Queen v. Superintendent of the Belconnen Remand Centre; Ex parte Diamond (unreported, 15 August 1986)

R. v. Paivinen [1985] HCA 39; (1985) 158 CLR 489

Kovac v. The Queen (1977) 15 ALR 637

Cranssen v. The Queen [1936] HCA 42; (1936) 55 CLR 509

House v. The Queen [1936] HCA 40; (1936) 55 CLR 499

R. v. Weaver (1973) 6 SASR 265

Hallam v. O'Dea (1979) 22 SASR 133

R. v. Sloane (1973) 1 NSWLR 202

R. v. Breasley (1974) 1 NSWLR 736

HEARING

CANBERRA
19:3:1987

ORDER

The appeal be dismissed.

DECISION

This is an appeal against a sentence of detention for a period of 12 months imposed upon the appellant by Magistrate Ward, sitting as the Children's Court, Canberra, on 23 June 1986. Although the notice of appeal purports to be an appeal against conviction and sentence, the appeal was confined to sentence only.

2. The appeal is brought pursuant to s.15 of the Child Welfare Ordinance 1957 which provides that an appeal lies to this Court from a determination, finding of guilt or order of the Court by the persons and in the manner provided by Part XI of the Court of Petty Sessions Ordinance 1930-1953, the title of which was amended by the Magistrates Court Ordinance 1985 (No. 67 of 1985). The powers of this Court on appeal are prescribed by s.218(1) of the Magistrates Court Ordinance, which reads:

"218. (1) On an appeal to which this Division

applies, the Supreme Court may -
(a) affirm, reverse or vary the conviction,
order, sentence, penalty or decision appealed
from;
(b) give such judgment, or make such order, as,
in all the circumstances, it thinks fit, or
refuse to make an order; or
(c) set aside the conviction, order, sentence,
penalty or decision appealed from, in whole
or in part, and remit the proceedings to the
Magistrates Court for further hearing and
determination, subject to such directions as
the Supreme Court thinks fit."

3. It is necessary to trace the history of this matter before the learned Magistrate. The appellant appeared before the Magistrate on 12 May 1986 charged with three offences against s.102(1) of the Crimes Act 1900 in its application to the Australian Capital Territory of entering a building as a trespasser with intent to steal in the building. On that day the appellant admitted the offences and the hearing thereof was adjourned to 2 June 1986 in order that a welfare report could be prepared. On 2 June 1986 the matters were further adjourned to 23 June 1986. On 23 June 1986 a fourth charge of a similar nature in relation to the Dickson Newsagency was preferred against the appellant. He admitted that offence also and adhered to his admissions in relation to the other three offences.

4. After hearing evidence relating to the facts of the offences, a verbal report from a welfare officer and submissions on behalf of the appellant, the Magistrate sentenced the appellant in the following terms:

"The defendant aged 16 has pleaded guilty to
various charges of breaking, entering and stealing in
March and April of this year. On one such occasion he
punched a person who saw him breaking into a
restaurant. The property stolen not recovered from
all of these breaks and is alleged to be a total of in
excess of $1000. On 12 May 1986, the defendant
appeared before me and pleaded guilty to these
charges. He admitted previous convictions as follows.
Three charges of stealing in March 1983 on which
occasion he was required to be of good behaviour for a
period of 12 months.

Three months later before the court again on a
great number of charges including breaking, entering
and stealing. These charges numbered more than 20. He
was then placed upon a suspended sentence to be
committed to an institution and required to be of good
behaviour for a period of two years. On 8 October
1985, he was fined $150 for stealing. Perhaps most
significantly, the day after he pleaded guilty before
me and was released on bail for a pre-sentence report
he broke and entered the Dickson Newsagency and stole
$233.

It would appear that the defendant is contemptuous
of the law and will only learn his lesson the hard way
and I am afraid that I would be doing less than my duty
unless I sentenced him to a term in an institution and
I do that. I realise that he will not have to serve
the full period or anything like it but he will be
sentenced to a detention for a period of 12 months."

The following exchange is then recorded in the transcript as having taken place:

MR PILKINTON: Excuse me, your Worship. Do you mean
that to be in the ACT or in New South Wales.
HIS WORSHIP: That will have to be in New South Wales.
I understand the ACT institution is full. That
sentence will be imposed upon the - - -
MR PILKINTON: Your Worship, there is in fact one
position available.
HIS WORSHIP: One?
MR PILKINTON: Yes.
HIS WORSHIP: Well, I am reluctant to - well, if there
is one position I do not see why he should not be
the one to fill it.
MR PILKINTON: Your Worship, as things stand there
would be no remission from that sentence.
HIS WORSHIP: No. Well, as I understand, I had worked
on the assumption that the ACT institution was
full and that he would get remissions in the NSW
institution and that will be the appropriate
institution to which he will be sentenced so that
he can get those remissions. That will be on the
charge of breaking and entering on 13 May 1986 at
the Dickson Newsagency and the other charges will
be simply conviction recorded and dismissed -
otherwise dismissed."

5. On the hearing of the appeal against the severity of the sentence, a number of submissions were put on behalf of the appellant. First, it was submitted that the Magistrate had no power to specify the location of the institution where the period of detention was to be served. Secondly, it was submitted that the Magistrate was wrong in law in fixing upon a sentence which took account of remissions which the appellant might earn on the sentence imposed. Thirdly, it was submitted, in taking account of such remissions the Magistrate had erred in the exercise of his sentencing discretion because he had acted upon a wrong principle and taken account of an extraneous consideration. Lastly, it was submitted that the period of 12 months detention was excessive in the circumstances.

6. It is necessary to review the facts of the four offences before the Magistrate which were admitted by the appellant on the hearing of the appeal. It is convenient to deal with the facts relating to the Dickson Newsagency first.

Dickson Newsagency

7. Between 7.30 and 8.00 pm on Tuesday, 13 May 1986 the appellant went to the Dickson shops. He pushed himself up on a meter box and then climbed on to the roof at the eastern end of the shops. He walked along the roof until he reached the Newsagency. He removed several roof tiles with his hands and entered the premises through the roof. He walked along the rafters and through a manhole into the Newsagency premises. Once inside he removed approximately $200 in coins from two tills and a counter beneath the till area. He also removed four cartons of cigarettes. He placed the items in a garbage bag which he took from the rear of the store and left the Newsagency by unlocking the front glass sliding door, which he left open. He subsequently stated that the reason for committing the offence was that he needed the money for food. The value of the property stolen was $233.60.

Peppers Restaurant

8. At 1.20 am on Friday, 28 March 1986 the appellant, in company with another person, left the Canberra Workers' Club, went to Peppers Restaurant and threw a rock, smashing the glass in the front door. They then went across the other side of Alinga Street and waited approximately 10 minutes. They then returned to the restaurant and gained entry. While inside the premises they removed a cash box and when leaving were seen by a male person who persuaded the appellant to accompany him to a Canberra Post Office telephone. The male person called the police. The appellant assaulted that male person by punching him in the left eye. The two offenders then went to a taxi rank outside the Centre Cinema and took a taxi to an area in Belconnen where they were taken into custody by the police. The cash taken was approximately $100, $88 of which was recovered. Compensation claimed for the door and cash box was $230.

Bradman Pavilion, Manuka Oval

9. On 12 April 1986 the appellant, in the company of two other persons, scaled the fence at Manuka Oval and one of his companions removed two louvres from a window above the entrance of a changeroom of the Bradman Pavilion. The companion climbed through the window and opened the door. The other two, including the appellant, then entered the premises where, in a kitchen off the main area, they found a glass containing a number of keys. With the use of one of the keys they gained entry to an office. With the use of another of the keys they gained entry to the coin box of a telephone, from which they removed $48. The appellant was found to have in his possession $17.90 and told investigating police that he had already spent $4.
Diamonds Snack Bar

10. About 1.00 am on Sunday, 30 March 1986 the appellant broke the top window of Diamonds Snack Bar, Tasman House, Hobart Place, Canberra City, reached inside, unlocked the door and gained entry to the premises. He removed two cartons of cigarettes and a cloth bag containing $42 in coins of various denominations. He was apprehended by the police about 4.30 am and found to be in possession of the stolen property.

11. The sentence of 12 months' detention was imposed pursuant to s. 57(1)(d) of the Child Welfare Ordinance 1957, which provides that the Children's Court may:

"(d) commit the child or young person to an
institution, either generally or for a specified
term (whether expiring before or after the date on
which the child or young person attains the age of
eighteen years) not exceeding three years; or"

12. In relation to the first submission on behalf of the appellant that the Magistrate had no power to specify that the period of detention be served in the State of New South Wales, counsel for the appellant relied upon the language of s. 57(1)(d) and s. 68 of the said Ordinance which provides that this Court, in directing that a child or young person be committed to or detained in an institution, shall not specify a particular institution, but may recommend that the child or young person be sent to an institution of a particular class.

13. The submission springs from some comments made by Miles CJ in The Queen v. Superintendent of the Belconnen Remand Centre; Ex parte Diamond (unreported decision of 15 August 1986, No. SC 1243 of 1986). That case concerned the return of an order nisi directed to the Superintendent of the Belconnen Remand Centre to show cause why a writ of habeas corpus should not issue directed to the Superintendent to produce to the Court the person of the applicant, who was then held in custody at the Belconnen Remand Centre.

14. At an earlier hearing of the return of the order nisi, I expressed the view that in so far as the order for detention in that matter had expressed that it be served "within the ACT", the order was beyond power. I adjourned the proceedings and directed that my observations be brought to the attention of the learned Magistrate concerned with an invitation that he amend the order so as to delete the words "within the ACT". It appears from the judgment of Miles CJ (p. 5) that my directions were complied with but the Magistrates (sic) declined to amend the orders. Miles CJ proceeded on the assumption that the orders were valid by regarding the words "within the ACT" as severable from the rest of the order. Without deciding the extent of the Magistrate's powers, he went on to say:

"Nevertheless, I must state that I hold very strong
doubts as to the powers of a Children's Court to order
that a child or young person be detained in a
particular institution or class of institutions. For
reasons which appear below, I am of the view that it is
the function of the Minister to decide at which
institution or institutions children and young persons
should be detained."

15. I adhere to the view expressed earlier by myself that as there is no express power to specify the location of the institution where a sentence of detention is to be served, it is beyond power for a Magistrate to do so under the Child Welfare Ordinance. However, so far as the present appeal is concerned, the transcript clearly reveals that the Magistrate imposed a sentence of detention for a period of 12 months without specifying whether the sentence was to be served in New South Wales or in the Australian Capital Territory. It was only at the invitation of counsel for the appellant that he added an intimation that the sentence would be served in New South Wales because he understood that no vacancies existed in the institution in the Australian Capital Territory and, further, that it was appropriate for the sentence to be served in New South Wales because in that State the appellant would get the benefit of remissions on the sentence imposed, whereas he would not get any such remission if the sentence were served in the institution in the Australian Capital Territory.

16. It is to be noted, however, that the indorsement on the Bench Sheet, which I have examined with the consent of counsel for both parties, reads:

"23-6-86

17. Committed to an institution for 12 months in A.C.T. (deleted) N.S.W.

(Initials)"

For what it is worth, it appears that the deletion of "A.C.T." and the addition of the letters "N.S.W." has been made with a different pen to the other words in the indorsement. Notwithstanding that the specification of the location of the institution is, in my opinion, beyond power, that specification is severable and the Magistrate's order should be interpreted as a committal of the appellant to an institution for a specified term of 12 months. So construed, the sentence was clearly within power.

18. The second submission on behalf of the appellant was that the Magistrate was wrong in specifying a period of detention which took account of the fact that he would earn remissions. If it is the fact that the Magistrate increased the length of the appellant's committal to an institution in order to take account of any such remission, the sentencing discretion clearly miscarried. It is now clear law that a sentencing court should impose the appropriate sentence for the crime and should not impose a longer sentence merely because the offender may probably earn remissions for good conduct or be released on parole. The authorities are set out in the judgment of the High Court in R. v. Paivinen [1985] HCA 39; (1985) 158 CLR 489 at 158 (per Gibbs CJ, Mason, Brennan Deane and Dawson JJ).

19. It is by no means apparent from the transcript that the Magistrate increased the length of the appellant's committal to an institution to take account of probable remissions if the period of detention was to be served in New South Wales. The most that could be deduced from the Magistrate's comments is that he realised that the appellant would probably earn remissions in a New South Wales institution. He imposed the sentence of detention for a period of 12 months, apparently in the belief that the institution in the Australian Capital Territory was "full". When he was told that there was in fact one position available he intimated that he could see no reason why the appellant should not serve the period of detention in the institution in the Australian Capital Territory.

20. That should have been the end of the matter. But counsel for the appellant then pursued the appropriateness of the sentence imposed by reminding the Magistrate that there would be no remission on that sentence if it were served in the Australian Capital Territory. The Magistrate then re-iterated that he had assumed that the institution in the Australian Capital Territory was "full" and then, almost as a side observation, that the appellant would get remissions in the New South Wales institution. In the circumstances I am not persuaded that the Magistrate increased the length of the appellant's detention in order to take account of any such remissions. It would have been better if he had ignored counsel's reminder that there would be no remission on a sentence served in the Australian Capital Territory.

21. I turn to the last submission that the sentencing discretion miscarried. When hearing appeals against sentence the appellate court should not interfere unless it is satisfied that the discretion exercised by the court imposing the sentence miscarried or was unsound or unreasonable in its exercise (see Kovac v. The Queen (1977) 15 ALR 637 where the Federal Court adopted the principles laid down by the High Court in Cranssen v. The Queen [1936] HCA 42; (1936) 55 CLR 509 and House v. The Queen [1936] HCA 40; (1936) 55 CLR 499).

22. In his remarks on passing sentence the Magistrate referred to the appellant's prior criminal record, the details of which were placed before this Court on the hearing of the appeal. I set out that record.

23. On 29 March 1983 the appellant was found guilty in the Court of Petty Sessions, Bateman's Bay, of three offences of stealing. In respect of each offence he was released on probation to be of good behaviour for a period of 12 months. On 14 June 1983 in the A.C.T. Children's Court he was found guilty of seven charges of larceny, three charges of break and enter with intent, one charge of malicious injury, one charge of being unlawfully in a building, 12 charges of break, enter and steal and one charge of sacrilege. In respect of all those offences he was committed to an institution generally and that committal was suspended on his entering into a recognisance self in the sum of $200 to be of good behaviour for a period of two years, to accept welfare supervision for that period and to pay compensation in the sum of $416.61. On 8 October 1985 in the A.C.T. Children's Court he was found guilty of larceny and was ordered to pay a penalty of $150 in default six days' detention. A number of other charges, including two of burglary allegedly committed on 1 December 1986, have been preferred against the appellant and they are listed for hearing in the Children's Court, Canberra, on 14 April 1987.

24. It was urged on behalf of the appellant that the Magistrate did not give sufficient weight to the rehabilitation of the appellant in the exercise of his sentencing discretion. Counsel for the appellant relied upon R. v. Weaver (1973) 6 SASR 265 and Hallam v. O'Dea (1979) 22 SASR 133. Those decisions of the Supreme Court of South Australia in Banco lay down the principles upon which a court should act in imposing a sentence of detention upon a young offender pursuant to the Children's Protection and Young Offenders Act 1979 (S.A.) and, in particular, that the rehabilitation of a youthful accused should be a prominent consideration in fixing a sentence. Section 7 of that Act provides that any court, inter alia, in the exercise of its powers in relation to a child shall seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and to his development into a responsible and useful member of the community and, in so doing, shall consider certain enumerated factors. Because those decisions lay down the principles which should guide a court in applying s. 7 of the Act, they are of limited application in the Australian Capital Territory.

25. Nevertheless, it is clear that the rehabilitation of a young person is a factor which a court should take into account in reaching an appropriate sentence in all the circumstances. The following dicta of the Supreme Court of South Australia in The Queen v. Weaver, supra, is an adequate statement of the principle to be applied in the Australian Capital Territory:

"Whenever a young person is before the court,
particularly upon his first appearance as an adult, it
seems to us that his rehabilitation should be a
prominent consideration in fixing the sentence."

26. It was further submitted that in imposing a sentence of 12 months detention when the maximum period prescribed is three years (s. 57(1)(d) of the Child Welfare Ordinance) upon a young person who has never served time in an institution before and who has complied with the terms of a two year bond imposed upon him on 14 June 1983, the Magistrate failed to exercise his sentencing discretion in a proper way. The result was, so the submission ran, that the principle of graduation of penalty referred to in R. v. Sloane (1973) 1 NSWLR 202, modified by the decision in R. v. Breasley (1974) 1 NSWLR 736, should have been applied.

27. I am not satisfied that the sentence imposed was unsound or unreasonable. The Magistrate has not acted upon any wrong principle of law or misapprehended the facts. Nor is the sentence on its face manifestly excessive when considered as a sentence imposed in relation to all four serious offences and taking account of the appellant's past record. I accept the submission put on behalf of the respondent that in effect the Magistrate merged the offences relating to Peppers Restaurant, the Bradman Pavilion and Diamonds Snack Bar with the offence in relation to the Dickson Newsagency and exercised his sentencing discretion accordingly. Even if the Magistrate did take account of the remissions which the appellant would earn in the State of New South Wales, about which I am not persuaded, the sentence was well within the range of appropriate sentences for the offences committed.

28. I need only refer to the phraseology of the Magistrate's order dismissing the three offences upon which no penalty was imposed. The Magistrate recorded a conviction in respect of each one of them and said that they were otherwise dismissed. As was pointed out by counsel for the respondent, it was not appropriate to record convictions because s. 110 of the Child Welfare Ordinance provides that the word "conviction" shall not be used in relation to a child or young person dealt with summarily. The Magistrate should have made a finding of guilt, but his choice of words is mere terminology. The intention and content of his orders are clear enough.

29. Furthermore, it was not appropriate for him to dispose of the charges in respect of which a finding of guilt was recorded in terms that they be "otherwise dismissed". Section 59 of the Child Welfare Ordinance provides for a Children's Court to dismiss a charge without proceeding to a finding of guilt. The Magistrate was clearly not intending to make an order under s. 59. There was no doubt that what he was intending to do was to state that findings of guilt should be recorded in relation to the three charges, but that he deemed it inexpedient to inflict any further penalty in relation to those charges. So understood, his disposal of those charges was inadequately expressed but nothing turns on the language used.

30. The appeal is dismissed.