Ja v Goldsmith [2004] ACTSC 112 (15 September 2004)

Last Updated: 29 October 2004

JA v JUDY LEA GOLDSMITH [2004] ACTSC 112 (15 September 2004)

EX TEMPORE JUDGMENT

No. SCA 15 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 15 September 2004

IN THE SUPREME COURT OF THE )

) No. SCA 15 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JA

Applicant

AND: JUDY LEA GOLDSMITH

Respondent

ORDER

Judge: Crispin J

Date: 15 September 2004

Place: Canberra

THE COURT ORDERS THAT:

1. a conviction be recorded;

2. sentence be deferred on condition that the young person enter into a recognizance without security to be of good behaviour for a period of 12 months.

1. The facts of this matter are adequately set out in my judgment of 2 September 2004, and I do not propose to repeat them for the purposes of the present proceeding.

2. It is clear that the conduct of the young person was not only criminal but that it gave rise to a serious risk of somebody being substantially injured, as indeed occurred. On the other hand, there are a number of factors that should be taken into account on the young person's behalf. First and most obviously his behaviour was provoked by what I regard as unprovoked assaults upon him by two adult men who subjected him to what appear to have been wholly gratuitous acts of violence. Second, I am not satisfied that the young person had any actual intent to injure the complainant, though his conduct undoubtedly created a real potential for tragedy. Third, he was born on the 31 May 1986, and accordingly was only 16 at the time of the offence.

3. The law requires me to approach the sentencing of a young person quite differently from the way in which I would be required to approach the sentencing of an adult and, in particular, the Children and Young People Act 1999 (ACT) contains a number of relevant provisions which I am obliged to take into account.

4. Section 10 provides, inter alia, that the objects of the Act include recognition 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.

5. Section 12 provides that in making a decision or taking action under the Act in relation to a child or young person, the general principles to be applied include the proposition that the best interests of the child or young person should be the paramount consideration.

6. There may be thought to be scope for debate about the wisdom of this provision if it were unqualified and applied in the context of the criminal law, where traditionally courts have taken the view that the paramount consideration is the protection of the community from criminal acts. However, this provision must obviously be considered in the context of other provisions in the same Act, including those set out in s 68, which provides inter alia:

(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 . . ..

7. Section 68(f) also provides that:

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.

8. It is clear from these statutory provisions that the best interests of the young person must play a more significant role in the sentencing process than the interests of an adult offender. Whilst even adult offenders may be sentenced to imprisonment only when no other penalty is appropriate, when a child or young person is being sentenced the legislation requires the court to take into account the need for the support of young offenders, the need for opportunities for them to become valuable community members, and perhaps particularly the responsibility of parents and families with community and government support and the role which they have in shaping young offenders' attitudes to life and guiding them in a more productive way.

9. In the present case I have the benefit of a confidential report from the Department of Juvenile Justice in New South Wales, which indicates that the young person had maintained fortnightly contact for some period of time, that he had responded well to all directions of the service and remained in full-time employment throughout his supervision. Indeed, the manager of Juvenile Justice Community Services stated, "Based on the previous supervision, the current recommendation is that supervision by this service is not warranted. However, it is available should the court deem it as appropriate".

10. The young person's actions in this case really reflect his level of immaturity, which was no doubt aggravated by the alcohol that he had consumed on the occasion. As a matter of general principle, the voluntary consumption of alcohol does not offer any excuse at all for violent behaviour and is not normally a substantial factor which may be taken into account in mitigation of penalty. However, as Mr Gill, who appears on his behalf, rightly pointed out, the consumption of alcohol itself reflected the decision of a person who was only 16 years of age and it seems to me that it would be inappropriate to wholly ignore this factor. It had been consumed on an occasion upon which he had travelled to Canberra for the Summernats. He was clearly excited and I suspect in high spirits when he approached this group of young people. It was in this excited and drunken state that he was confronted with a situation that he had not really initiated; an unprovoked attack by two older men.

11. His response to that attack was regrettable. The sensible thing for him to have done was to have simply walked or run away. The use of a broken bottle as a weapon had the effect of causing the situation to escalate from one in which there was likely to have been, at worst, a fistfight to one where somebody was likely to have been seriously injured. Nonetheless, it is important to take into account the context in which that conduct occurred.

12. It is also important to note that the young person has no previous convictions, and whilst not presently available to me, I am informed that evidence has previously been adduced as to his good character. I accept that his conduct on this occasion was out of character.

13. He was subsequently arrested and incarcerated for at least two nights, prior to being released on bail. I have no doubt that this and the subsequent course of proceedings, which required him to return to the ACT on no less than 11 occasions, has brought home to him the potential gravity of the situation that was created by his conduct on this occasion.

14. He has since responded well to directions and supervision, and there is nothing before me to indicate any real likelihood of him committing further acts of violence. In these circumstances Mr Gill has urged me to dismiss the proceedings pursuant to s 98 of the Children and Young People Act. That section applies if the Childrens Court is satisfied that the charge against the young person is proved, but, having regard to the relevant criteria the court is of the opinion it should not proceed to a conviction. This court is not, of course, the Childrens Court but, having upheld an appeal from that court, I now stand in the shoes of that court for the purpose of sentencing the young person.

15. The relevant criteria are set out in s 98(3). They are:

(a) the welfare of the young person;

(b) the facts of the case;

(c) the seriousness of the offence;

(d) the circumstances in which the offence was committed;

(e) the age of the young person;

(f) the apparent maturity of the young person;

(g) the apparent mental capacity of the young person, and

(h) the health of the young person.

16. Having regard to all of these factors, Mr Gill submits that it would be within the ambit of my discretion to approach the matter in the manner he has suggested. On the other hand, Mr Lawton, who appears for the prosecution, submits that the offence was far too serious for that course to be adopted. He has drawn my attention to the gravity of the injury suffered by the complainant and pointed to the general principle that the consumption of alcohol is no excuse. He has also drawn my attention to the opportunity which the young person had to extricate himself from the situation without resort to a broken bottle and, indeed, without returning to the fray at all.

17. I accept Mr Gill's submission that the nature and extent of the injury should be given little, if any, weight in the circumstances of this case where I have not been satisfied that the young person intended to inflict that injury and where his actions were a spontaneous and intemperate response to the assault upon him by two older men. Indeed, had it not been for the fact that, in returning to the fray, the young person had chosen to break a bottle and to present that as a weapon, I would not have hesitated in acceding to Mr Gill's submission.

18. In my opinion, however, the use of a weapon does have the effect of making the offence one which was too serious for the charge to be resolved in that manner. Whilst I accept that the young person may not have anticipated that the men who had just attacked him would react as they did, considered objectively it was very likely that they would respond in such a fashion. They had already physically assaulted him, and to precipitate further interaction with these young men with a broken bottle being used as a weapon was a course that was pregnant with danger.

19. In all the circumstances, I order that a conviction be recorded, but I order that sentence be deferred on condition that the young person enter into a recognizance without security to be of good behaviour for a period of 12 months. Having regard to the recommendation of the Manager of Juvenile Justice Community Services in New South Wales, I do not propose making any order for supervision.

20. Now, JA, what that means is that I have simply deferred sentencing you. If you enter into a bond and you are of good behaviour for 12 months that is the end of it. You will never need to see me again, you will never be sentenced in relation to this offence. On the other hand, if you were to commit any further acts of violence, either here or in New South Wales, then you need to understand that that would be a breach of the recognizance. The consequence of that would be that you would not only face a magistrate or a judge in relation to that offence, but you would also be brought back before me for this offence. I am sure that you did not have the faintest idea how potentially serious this was, but it could have been very serious indeed. If this man had died, for example, even at your age, it would have been virtually impossible to have prevented a lengthy term of imprisonment. It was that close. So learn from the experience and make sure you stay out of trouble.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 25 October 2004

Counsel for the applicant: Mr S Gill

Counsel for the respondent: Mr J Lawton

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 15 September 2004

Date of judgment: 15 September 2004