Stephen John Bohle v Neville John Young [1989] ACTSC 46 (6 October 1989)

SUPREME COURT OF THE ACT

STEPHEN JOHN BOHLE v. NEVILLE JOHN YOUNG
No. S.C.A. 17 of 1989
Children's Court

COURT

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

CATCHWORDS

Children's Court - Detention for First Offences - Appeal against severity - Whether sentence excessive - Convictions not formally recorded - Whether convictions in fact.

Childrens Services Act 1986 (ACT) Ss.41(3), 47 and 49

Griffiths v. The Queen [1977] HCA 44; (1977) 137 CLR 293

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

HEARING

CANBERRA
6:10:1989

Counsel for the Appellant: Mr T. O'Donnell,

Legal Aid Office

Counsel for the Respondent: Mr C. Giles,
Director of Public Prosecutions

ORDER

The appeals be allowed.

The orders made by the learned Magistrate in respect of charges 628 and 633 of 1988 be quashed.

Being satisfied that the said charges have been proved but that it should not proceed to a conviction in respect of either of them, the appellant be placed under the supervision of the Director of Welfare for a period of eighteen months from this day and that during that period he report to a place or places at intervals specified by the Supervisor or Supervisors appointed by the said Director and reside at a place or places as directed by the said Supervisor or Supervisors and undergo such treatment for alcohol abuse as the said Supervisor or Supervisors may reasonably require.

DECISION

Stephen John Bohle, the appellant, was born on 27 March 1973. On 22 July 1988 he was charged with a number of stealing offences. The two with which I am principally concerned related to the theft between 1 February 1988 and 31 May 1988 of five tins of enamel paint valued at $9.90 belonging to GJ Coles & Co trading as K-Mart and the theft between 1 March 1988 and 30 March 1988 of a book belonging to the Commonwealth valued, apparently, at $15.95. Four other charges in respect of a number of thefts referred to below were eventually, it would seem, taken into account. These four charges, although apparently properly taken into account, were dismissed.

2. The charges came on to be dealt with in the Children's Court on 20 September 1988. Senior Constable Neville Young gave evidence that when interviewed in the presence of his parents the appellant stated that he had taken five tins of paint from K-Mart without paying for them and had done the same with eight blank cassette tapes which he had since used for recording. He stated further that he had removed two cassette tapes from a friend's place without permission, that on another occasion, on Saturday, 16 July 1988, he had removed two pairs of ladies underpants from a house belonging to a woman, apparently the mother of a friend of his, that since 1986 he had also removed about 25 other pairs of ladies briefs from that house as well as a pair from the clothes line, that he had stolen another pair of ladies underpants from a clothes line in Kaleen and had also stolen a book entitled "Crack" by removing it from the school library without signing for it. Compensation in an amount of $195.95 was sought. This appears to have been made up as follows:-

The book $15.95
Eight tapes $45.00
Underwear $135.00

3. It appears therefore that the paint must have been recovered since obviously its value was not included in the sum of $195.95.

4. Charges were laid in respect of the theft of all these items except the pair of ladies underpants last referred to.

5. The learned Magistrate considered a report from a psychologist employed by the Child & Adolescent Unit, Mr Alan Jones, and another from a Social Worker, Ms Allison Gray, also employed by that Unit.

6. Ms Gray in her report described the relationship between Stephen and his parents as very bitter and fraught with tension. She noted regular "sniping" about his style of dress, friends, smoking, hurting his parents and his interest in art. The appellant was defensive, surly and resentful when with his parents. When at the LASA Youth Centre, the appellant had shown exemplary behaviour. He had lost no privileges (apparently an unusual thing for a youth staying at that Centre) and had been a co-operative, responsible resident described as "great to have around". Over the six weeks before Ms Gray's report which was apparently made on 16 September 1988, his teachers had noted an improvement in his attitude at the Canberra High School where he had not, during that period, been in trouble. Ms Gray concluded that it would be unwise for the appellant to return home then and recommended that he continue at the LASA Youth Centre with a view to his eventual return home. If such a return were not possible, she thought it might be necessary to look at longer term placement in, for example, Outreach. The appellant had shown, she said, that he could fit into such a programme and would probably do well. She thought that such supported accommodation would allow him to continue his studies if he decided to pursue them.

7. Mr Jones found no indications of severe psychiatric disturbance (eg psychosis). He thought that the appellant presented as an adolescent going through a not uncommon, difficult phase of rebellion against adult conventions and alignment with adolescent culture and that his conflicts with his adoptive parents centered around typical areas, viz how he could dress himself and where and when he could go out. The report expressed concern about his attitude to stealing and to property and to his persistence in applying graffiti art to public buildings. Mr Jones seems not to have been unduly concerned by the theft of the underwear.

8. All in all, it seems that a wide range of behaviour by the appellant was traversed.

9. The learned Magistrate decided that he should place the appellant on bail with a condition that he remain under welfare supervision until 14 March 1988. He indicated that if the compensation were paid by that date it would certainly have a bearing on the question of penalty. He gave no indication as to what course he would adopt in respect of the offences which the appellant had admitted committing.

10. When the matter came before the learned Magistrate on 14 March 1989 it was announced that charge no. 634/88, that relating to the theft of 25 assorted pairs of ladies under garments, ought not to have been instituted because no consent to its institution had been obtained. The charge was therefore void. The learned Magistrate asked whether any charges have been made against the appellant since 20 September 1988 and was told that none had been. The learned Magistrate then said,

"The matter was simply adjourned until today's
date to see if he can keep out of trouble. The
report indicates his inability to do that. I
think there is only one course I can take."

11. Counsel for the appellant interrupted to advise the learned Magistrate that the compensation had been paid on 12 October 1988. The learned Magistrate went on:-
"The report indicates his behaviour as not being good, as it was required to be, when I adjourned the matter. I would have thought that the only proper course is for me to carry out the threat which I issued on 20 September, that he go to an institution for these offences."

12. Apparently the appellant had consumed much more alcohol whan was good for him. He was admitted to a detoxification unit for a week. Thereafter he resided at Outreach where he had been doing well up to the date of the second hearing.

13. The learned Magistrate went on:-

"He might have been doing well there but he got
into the situation where his relationship with
his parents broke down. He consumed vast
quantities of alcohol requiring him to be
admitted to Detoxification. Well, that is he's
incompatible with the warnings that were issued
to him when he was before me on 20 September."

14. The debate between the learned Magistrate and Counsel continued. Counsel pointed out that the problems with alcohol had, on her instructions, been resolved, the appellant having successfully completed his period at Detoxification some three weeks before. He was having regular counselling and was attending meetings of Alcoholics Anonymous.

15. The appellant's father then addressed the learned Magistrate. Towards the end of his remarks His Worship said:-

"He is nearly 16 now and - but the whole point
was - that I am making is that in September of
last year when he was before me I read the riot
act to him and said that if he got - I am giving
him a chance, six months, if he got into trouble
certain consequences follow. Now he went home
with you twice according to the report - on two
occasions. Both times he would not toe the line
and obey the regulations that you set down, and
he has got to answer for it."

16. The appellant's father said:-

"I hope you carry out your act, Your Honour."

17. Counsel for the appellant then said:-

"With regard to Stephen's behaviour at Outreach,
there is an Outreach worker outside if Your
Worship wishes to hear."

18. The learned Magistrate replied:-

"It is too late. He has committed a misbehaviour
between September and now and it is too late just
for him to get his act into gear a couple of days
before the Court starts and everyone says
everything is rosy in the garden. It will not be
for a long time, but he has got to be punished
for the offences that he committed. In fact
early last year I only withheld sentencing him on
those matters to give him a chance to see if he
could behave himself. He has not been able to do
that; he will be sentenced to three months in an
institution. That will be on charge no. 628. On
charge no. 633, larceny of a book belonging to
the Commonwealth, he will be placed on probation
for a period of two years, with conditions
attaching to the probation (the first) to remain
under Welfare supervision, secondly to abstain
from the consumption of alcohol. Thirdly to
undertake treatment and counselling for alcohol
addiction. The other charges will be dismissed
with the exception of that charge where you say
there is no authority to prosecute."

19. The Prosecutor then asked whether the probation was under the Children's Services Ordinance and the learned Magistrate replied, "Yes, Children's Services Ordinance, Section 47 I think it is."

20. The learned Magistrate did not formally record a conviction but it seems to me that it is implicit in what he did and in his reference to Section 47 of the Childrens Services Act 1986 (the Act) that he proceeded on the basis that he was convicting and intended to convict the appellant. In these circumstances it seems to me that despite the lack of a formal record of conviction the appellant was convicted in respect of the two charges. See Griffiths v. The Queen [1977] HCA 44; (1977) 137 CLR 293. At the same time I respectfully point to the dictum of Barwick CJ appearing at page 302 when he said:
"Although it has not been the practice hitherto to do so, it seems to me that it would be prudent in the case where a plea of guilty is accepted, and no question of utilizing s.556A is in contemplation, that the trial judge should expressly indicate that the accused is convicted: and to do so before proceeding to make any order in relation to that conviction."

21. In Hallam v. O'Dea (1979) 22 SASR 133, King CJ giving the judgment of the Full Court of the Supreme Court of South Australia (King CJ, Wells and Legoe JJ) said at p 137

"It would be quite wrong, in my opinion, for a
Judge in the Children's Court to treat detention
as other than the last resort to be resorted to
only when satisfied that the other available
options do not meet the case."

22. What His Honour said does no more, in my opinion, than reflect the legislative intention expressed in s.49 of the Act which, so far as is relevant, says that the Court shall not make an order committing the child to a State Institution or an order committing the child to an institution unless it is satisfied that, in the circumstances, no other order that might be made is appropriate.

23. Having regard to all the material placed before the learned Magistrate, it seems to me that the penalty imposed was manifestly excessive. His concern was with relatively minor thefts by a 15 year old boy. When, as it appears that he did, he made up his mind on 30 September 1988 to sentence the appellant to a term of detention but gave him a chance to prove himself by his good behaviour during the next five and a half months, he must have had in mind the quite serious charge which was eventually withdrawn as improperly brought. As well, some of the matters placed before the learned Magistrate appear to fall outside those matters which the Court might properly consider under Section 41(3) of the Act. The reference to graffiti is one such instance. The difficulties with his parents form another such instance as do the references to his apparent lack of progress at school, a lack of progress which was not the subject of any adequate evidence.

24. The penalty imposed seems to me to be manifestly excessive for what amount to first offences by a 15 year old boy who was not charged with any offences alleged to have been committed between September 1988 and 14 March 1989. It does not seem to me that no other order of less severity than detention would be inappropriate. It follows that the discretion as to sentencing exercised by the learned Magistrate miscarried.

25. I think the appeal should be allowed. I quash the orders made by the learned Magistrate in respect of charges 628 and 633 of 1988. Without proceeding to a conviction, in respect of each of the charges numbered 628 and 633 of 1988 I make a probation order. I will order that the appellant be placed under the supervision of the Director of Welfare for a period of eighteen months from this day and order that during that period he report to a place or places at intervals specified by the Supervisor or Supervisors appointed by the said Director and reside at a place or places as directed by the said Supervisor or Supervisors and undergo such treatment for alcohol abuse as the said Supervisor or Supervisors may reasonably require.