Tdj and Ta v Carter [2001] ACTSC 38 (4 May 2001)

Last Updated: 29 January 2002

TDJ and TA v BRONWYN CARTER [2001] ACTSC 38 (4 MAY 2001)

CATCHWORDS

SENTENCING - young offenders - whether the introduction of the Children and Young People Act 1999 has affected the decisions in R v Boudelah & Charleston and R v AM - no analogy with parity principle where principals in separate offences - no error of principle - sentences not manifestly excessive.

Crimes Act 1900, ss 92D(1), 556B

Children and Young People Act 1999, ss 10(e), 12, 13, 68, 96

Children's Services Act 1986, ss 5

R v Boudelah & Charleston [1991] FCA 124; (1991) 28 FCR 176

R v AM (1996) 134 FLR 361

R v Roberts [1982] 1 All ER 609

R v Sharpe (unreported, Miles CJ, ACTSC, 24 November 2000)

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

No. SCA 30 & 33 of 2001

Judge: Gray J

Supreme Court of the ACT

Date: 4 May 2001

IN THE SUPREME COURT OF THE )

) No. SCA 30 & 33 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDRENS COURT

BETWEEN: TDJ

Appellant

AND: TA

Appellant

AND: BRONWYN CARTER

Respondent

ORDER

Judge: Gray J

Date: 4 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeals be dismissed.

1. This is an appeal against orders made by the Children's Court Magistrate in respect of the appellants after the Children's Court Magistrate had convicted the appellants of an offence of sexual intercourse without consent (s 92D(1) of the Crimes Act 1900) with the same victim. The appellant TA was born on 19 August 1985. The appellant TDJ was born on 25 November 1985. The victim was born on 2 January 1985.

2. On 6 April 2001, pursuant to s 96(l) of the Children and Young People Act 1999, the Magistrate ordered the committal of both the appellants to an institution in the Australian Capital Territory for a period of nine months to date from 19 March 2001 (the date that they were taken into custody) and to be released on probation for 12 months on conditions as to supervision by Youth Justice.

3. The appellants had been charged with a number of sexual offences that were alleged to have been committed by them at the Canberra Show on 25 February 2000. One offence against each appellant was found proved against the victim separately although the victim had alleged a number of other sexual acts that had been committed upon her by the appellants separately and jointly.

4. The offences occurred in the boys' tent at the showgrounds after they had assisted the victim to the tent because she was too drunk to be able to get home, or find her friends. The Magistrate made the specific finding that the appellants acted in full knowledge that the victim was incapable of consenting to their separate acts of intercourse by reason of her excessive consumption of intoxicating liquor.

5. On the part of the appellant TDJ, it was put that the Magistrate failed to properly follow the objects and principles of the Children and Young People Act 1999 and imposed a sentence which was, in all the circumstances, manifestly excessive. For the appellant TA, it was put that the period of detention should not have been imposed or, if it was proper to impose a period of detention, the period of nine months was manifestly excessive.

6. In support of his argument that the Magistrate had failed to properly follow the objects and principles of the Children and Young People Act 1999 Mr Corr, for the appellant TDJ, argued that the enactment of the Children and Young People Act 1999 in the place of the Children's Services Act 1986 changed the approach that the Children's Magistrate should have taken. In particular he argued that the sentencing approach adopted by the Full Federal Court in R v Boudelah & Charleston [1991] FCA 124; (1991) 28 FCR 176 not be given effect. That case makes it clear that in sentencing juveniles under the Children's Services Act 1986, regard may, and should, be had to the requirements of personal and general deterrence and retribution while still giving great weight to the matters provided in that Act on sentencing (see also R v AM (1996) 134 FLR 361 at 366).

7. In making that submission, Mr Corr referred specifically to s 10(e) of the Children and Young People Act 1999,

"The objects of this Act include -

...

(e) to recognise that the support of young offenders, and the provision of positive opportunities to allow them to become valuable community members, is the responsibility of parents and families with community and government support;"

8. He also referred to s 12 which provides for the general principles in making a decision or taking action under the Children and Young People Act 1999 as well as s 13 which expounds on the application of the "best interests principle" in the case of a child or young person.

9. The decision in R v Boudelah & Charleston (supra) was made in the context of s 5 of the Children's Services Act 1986. That section then provided in 1991,

"(1) In any proceedings in a court having jurisdiction in the Territory, whether the proceedings are under this Ordinance [as it once was] or under some other law, being proceedings against or concerning or affecting a child, the court shall, in the exercise of its discretion or powers, seek to procure for the child such care, protection, control or guidance as will best lead to the proper development of the personality of the child and to the child's becoming a responsible and useful member of the community.

(2) In the exercise of a power, whether under this Ordinance or under some other law of the Territory, by a body, authority or person, being a power the exercise of which affects or concerns a child, the body, authority or person shall seek to procure for the child the matters referred to in sub-section (1).

(3) For the purposes of sub-sections (1) and (2), the court, body, authority or person shall have regard to such matters as seem to it or the person to be appropriate and, in particular, to such of the following as are appropriate:

(a) the need to strengthen and preserve the relationship between the child and his or her parents and other members of his or her family;

(b) the desirability of leaving the child in his or her own home;

(c) the desirability of allowing the education, training or lawful employment of the child to be continued without interruption or disturbance;

(d) the desirability of ensuring that the child is aware that he or she must bear responsibility for anything that he or she does that is contrary to law; and

(e) the need to protect the community or a particular person from the violent or other unlawful acts of the child."

10. The matters referred to in s 5(3) find some form of counterpart generally in the provisions of the Children and Young People Act 1999 that Mr Corr has referred to. The fact that the sentencing notions of deterrence and retribution do not feature in the provisions of the Children and Young People Act 1999, which replaces s 5, is therefore not surprising as those notions do not find direct expression in s 5. I am unable to see how it can be said that the legislature may have intended and in fact has, by the enactment of the Children and Young People Act 1999, affected the decision in R v Boudelah & Charleston.

11. In addition, s 68 of the Children and Young People Act 1999, specifically sets out the principles to be applied with respect to young offenders. That section provides,

"If a decision is to be made under this Part in relation to a young person or young offender, the decision-maker must make the decision in accordance with the following principles:

(a) if a young person does anything that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable;

(b) the young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways;

(c) a young person may only be detained in custody for an offence (whether on arrest, in remand or under sentence) as a last resort;

(d) young offenders should be dealt with in the criminal law system in a manner consistent with their age and maturity and have the same rights and protection before the law as would adults in similar circumstances;

(e) on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community;

(f) a balanced approach must be taken between the needs of the young offender, the rights of any victim of the action that constituted the young offender's offence and the interests of the community."

12. It may be observed that the provision in s 5(3)(e) of the Children's Services Act 1986 concurring the need to protect the community, is not replicated in the Children and Young People Act 1999 but s 68(f) of that Act could well include that notion as well as notions of deterrence and retribution in the compendious expression "interests of the community".

13. I am unable to see how the enactment by way of replacement of the Children and Young People Act 1999 for the Children's Services Act 1986 has affected the authority of R v Boudelah & Charleston in the approach that should be taken to sentencing young offenders. That view is supported by the comment in the Explanatory Memorandum that accompanied the Bill to enact the Children and Young People Act 1999. The memorandum commented,

"The Bill does not attempt to reform the law relating to young offenders other than in a few minor areas and for the purposes of bringing terminology in that arena of the law up to date or into line with other usage in the Territory."

14. In the reasons for decision dated 6 April 2001, the Children's Magistrate set out the sentencing principles that he followed in imposing the sentences in this case. He concluded,

"The dominant aim in the sentencing process for children must be the rehabilitation of the child but that is not to say there is no role for the application of general deterrents [sic] and retribution. The Court is required to strike a balance between punishment and such issues as care, correction, control or guidance so as to best ensure the proper development of the child's personality and to his ultimate development into a responsible, useful and worthy member of the community."

15. No error can be demonstrated in approaching the matter in this way. He also looked to the seriousness with which the law viewed the offence of sexual intercourse without consent. He cited a passage from Lord Lane CJ in R v Roberts [1982] 1 All ER 609 at 610 and remarked,

"I do not consider a suspended sentence for a crime so grave as this form of sexual assault is appropriate. It would be lenient in the extreme and unlikely to act as a deterrent.".

16. That comment was criticised by both Mr Corr and Mr Doig, for the appellant TA, as indicating some error. There is a degree of ambiguity in the reference to a suspended sentence having regard to the fact that it was not an option open to him (s 556B of the Crimes Act 1900 is directed to the suspension of sentences of imprisonment). However, I understand the comment to relate in the general sense to the non-imposition of an immediate custodial sentence. Nor do I regard his comment as precluding the exercise of his sentencing discretion in an appropriate case.

17. Mr Doig also referred to R v Sharpe (unreported, Miles CJ, ACTSC, 24 November 2000) as demonstrating that there are situations where even a heinous offence does not require immediate custody. I do not take the Magistrate's remarks as denying this possibility or as categorising the nature of the offence with which he was dealing as requiring immediate custody in all circumstances. It should also be born in mind that the Magistrate was considering detention rather than imprisonment as the form of custody to be imposed.

18. The Magistrate went on to apply both R v Boudelah & Charleston and R v AM in carrying out his sentencing task. As I have said the authority of both those cases is unaffected by the enactment of the Children and Young People Act 1999 and no error can be demonstrated in the Magistrate's application of those cases.

19. Counsel for both appellants strenuously contended that the orders made were manifestly excessive. Mr Corr in particular stressed the age of his client as a particular feature. Mr Doig cited Higgins J in R v AM when he pointed out that a "child's perception of time into the future is also much more limited". The Magistrate expressly had regard to the age of the appellants and was at pains to frame his sentence accordingly. He said,

"The sentence will make full regard to their age, their personal circumstances, all the evidence taken over a 7 day hearing, education and employment issues, prospects of rehabilitation not only specifically in relation to the Juvenile Sexual Offenders Programme but also such other courses or programmes that will assist their development to maturity and become good citizens."

20. The appellants have not demonstrated any error of principle on the part of the Magistrate or shown that the orders made are so outside the sentencing discretion exercised by the Magistrate so as to indicate error. I am not able to say that the sentences are manifestly excessive.

21. On behalf of the appellant TDJ, Mr Corr argued that there had been a miscarriage of justice arising from the disparity in sentence between his client and the other appellant. He sought to rely on the parity principle of sentencing that there not be a marked disparity between sentences imposed upon co-offenders which give rise to a justifiable sense of grievance (see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 and Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606). I do not consider any analogy with that principle to be apt in relation to the sentencing process undertaken here where the offenders received the same sentence as principal offenders in respect of separate offences. I do not regard the matters referred to by Mr Corr as distinguishing his client's conduct and circumstances from the findings of the Magistrate and facts found which relate to the equivalent responsibility that the appellants must take for their offences. Although the Magistrate regarded TA as the instigator of the event, each appellant separately committed the offence. I do not see any justification for treating them differently and the Magistrate was alive to any subjective differences between them. I am not able to say that the Magistrate erred in this regard.

22. I dismiss the appeals.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 4 May 2001

Counsel for the Appellant TDJ: Mr G Corr

Solicitor for the Appellant TDJ: S E Aboriginal Legal Service

Counsel for the Appellant TA: Mr A Doig

Solicitor for the Appellant TA: Baker, Deane & Nutt

Counsel for the Crown: Mr S Whybrow

Solicitor for the Crown: Director of Public Prosecutions ACT

Date of hearing : 19 April 2001

Date of judgment : 4 May 2001