Jl v Morfoot [2005] ACTSC 77 (1 August 2005)

Last Updated: 11 August 2005

JL v GREGORY CHARLES MORFOOT [2005]

ACTSC 77 (1 August 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE CHILDREN'S COURT

No SCA 38 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 1 August 2005

IN THE SUPREME COURT OF THE )

) No SCA 38 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDREN'S COURT

BETWEEN: JL

Appellant

AND: GREGORY CHARLES MORFOOT

Respondent

ORDER

Judge: Crispin J

Date: 1 August 2005

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed.

1. On 10 May 2005 in the ACT Children's Court, Magistrate Dingwall sentenced the appellant for three offences. In relation to an offence of assault occasioning actual bodily harm, he ordered that she be committed to a New South Wales institution for a period of eight months less a period of 42 days already served. In relation to an offence of contravening a probation order, he ordered that she be committed to an institution for three months less the same period of 42 days already served. In relation to an offence of contravening a community service order, he also ordered that she be committed to an institution for a period of three months less the period already mentioned of 42 days already served. His Worship (to use the then current form of address) ordered that they be served concurrently and that she be convicted of each such offence.

2. The appellant now appeals only from the sentence imposed in relation to the offence of assault occasioning actual bodily harm.

3. It is appropriate to begin by referring to the nature of that assault and the circumstances in which it occurred. The appellant had pleaded guilty in the proceedings before the Children's Court and the facts were revealed by means of a document headed, appropriately enough, "Statement of Facts" provided by the Australian Federal Police. Those facts were as follows:

About 1.00 pm on Saturday the 19 February 2005 JL, the young person now before the court was in the City Markets complex near the entrance of the Target department store in the Canberra Centre in the Australian Capital Territory. The young person was in the company of three other people.

Near the car park ticket machine, about 20 metres from the entrance to Target the young person and three other people approached Hailey CORDINA, the victim, while she was seated on a bench sending a text message on her mobile phone. The young person has yelled at Mrs CORDINA "What are you looking at you white slut?"

Mrs CORDINA replied that she wasn't looking. The young person then said, "Stand up so I can kick the white cunt out of you."

The young person and another juvenile female have then walked right up to where Mrs CORDINA was seated. The juvenile female has punched Mrs CORDINA in the right side of the face. Mrs CORDINA has gone to stand up when the young person has punched Mrs CORDINA in the face with a clenched fist.

The young person, the juvenile female and a male who was also with the group have then dragged Mrs CORDINA to the ground. While Mrs CORDINA was on the ground the young person has kicked her in the stomach and back. The other juvenile female has also kicked Mrs CORDINA as she lay on the ground.

Mrs CORDINA was screaming for help at this time and trying to cover her face as the young person continued to punch and kick her.

Canberra Centre security personnel have witnessed the incident and run over to where Mrs CORDINA was lying. Security personnel have pulled the young person and the juvenile female away from Mrs CORDINA. The young person and the rest of the group have then run from the scene."

4. Assault occasioning actual bodily harm is a serious offence and one for which a maximum penalty of five years' imprisonment is prescribed, though of course the sentencing power of the Children's Court is limited to the imposition of an order committing a young person to an institution for a period not exceeding two years (see s 96 of the Children and Young People Act 1999 (ACT)).

5. On this occasion, the offence appears to have been substantially unprovoked, carried out with some degree of viciousness, and in company. Nonetheless, the learned Magistrate, in dealing with the matter, was obliged to have regard not only to the severity of the offence, but also to the subjective circumstances of the appellant and sadly those circumstances are quite tragic.

6. The appellant was born on 31 May 1989 and was 16 years of age when the offence occurred in February this year. Regrettably, she has a very bad criminal record for one so young and has previously been convicted of a number of offences involving violence and dishonesty. Of particular significance is the young person's conviction in June 2002 of an offence of robbery involving use of force upon a person.

7. A report from a case manager at the Quamby Youth Detention Centre, however, provides some context for this behaviour and highlights perhaps some explanation for the offence. The report reveals that the appellant has five brothers and two sisters ranging from 11 to 19 years of age. She had reported having a closer relationship with her father than her mother and, regrettably, was removed from her mother's care when she was only about six years of age due to community concern regarding neglect and alcohol issues. Ms Munz from the Care and Protection Indigenous Unit expressed the opinion that the appellant and her other siblings may ultimately benefit from mediation counselling concerning this particular incident as the appellant is apparently still unaware of the full circumstances surrounding her removal from the family and has not had any formal counselling in relation to it.

8. After being removed from her family, the appellant had numerous placements with other families, including members of her extended family, foster parents, and accommodation in refuges and residential programs including Life Without Barriers in Nowra. These placements have apparently continually broken down due to the appellant's volatile behaviour, non-compliance with directions, lack of engagement and absconding. The appellant herself claimed that the placements had been largely unsuccessful due to the influence of her associates and her not liking the location of the placement, or in some cases, the people with whom she had been placed.

9. A number of reports from relevant experts have indicated that the appellant has suffered from a number of difficulties such as Foetal Alcohol Syndrome, below average range of intellectual functioning with suggestions of what is described as a conduct disorder.

10. In a most recent psychological assessment conducted by Ms Anne Robilliard in February of this year, Ms Robilliard explained:

Foetal Alcohol Syndrome typically presents as attention, memory and learning problems. Behavioural problems are also associated, such as a failure to consider consequences of action, lack of initiative, lack of response to social cues, uninhibited and impulsive behaviours, premature departure from school, alcohol and drug abuse problems, unemployment, homelessness, trouble with the law and mental health problems.

11. In the light of this history and Ms Robilliard's report, Mr Brown, the case manager with Quamby Youth Detention Centre, identified a number of concerns in relation to the appellant's offending behaviour.

12. First, he was concerned that the current charges had related to conduct which occurred within four days of her being released from Quamby Youth Detention Centre after a period of remand. He said, not surprisingly, that the appellant appeared to fail to understand or recognise the seriousness of the current offences, and added that her involvement and history with the Children's Court and Youth Justice (which commenced in March 2001) had involved consistent reports of breaches and contraventions of court orders, along with incidents of aggressive behaviour whilst on community based orders.

13. Secondly, Mr Brown indicated that, whilst Care and Protection had made a number of attempts to provide her with stable long-term accommodation, her behaviour has had a negative impact on these placements.

14. Thirdly, he noted that the appellant had not received formal counselling in relation to her removal from her family, and the possible impact that this may have had on her behaviour.

15. Fourthly, Mr Brown referred to the appellant's use of alcohol when angry or when upset about her situation or history.

16. Fifthly, he observed that despite attempts to provide her with options for education, the appellant had been reluctant to engage in or participate in programs of this kind on a consistent level.

17. Faced with this situation, the learned Magistrate was obviously concerned that the appellant have every chance at rehabilitation, and on 29 March 2005 adjourned the sentencing for a period of three months to allow the appellant time to attend a rehabilitation program at Premier Youth Works.

18. She was released on bail two days later to facilitate her attendance at that program, but regrettably absconded the following day.

19. Accordingly, in the course of his sentencing remarks on 10 May 2005, the learned Magistrate referred to breaches of the probation order and a breach of the community service order. He commented that the appellant had shown that she simply could not respond to supervision whilst on non-custodial orders, and noted that she had not attended as required or participated in the program she was required to undertake. He concluded that she was not willing to pay any heed to attempts to assist her in rehabilitation, and he went on to say that, having regard to the failure of the most recent attempt to assist her to rehabilitate herself, he was satisfied that the only possible prospect of rehabilitation was by means of a custodial sentence.

20. His Worship said that he hoped that programs could be put in place that would enable her to rehabilitate herself before she turned 18. He noted that that would occur on 31 March next year and warned that she would then become amenable to the jurisdiction of an adult court. He said, and I quote; "I fear for her future if she does commence to offend or continue to offend when she becomes an adult".

21. It was in these circumstances that he proceeded to impose the sentences to which I have referred.

22. As Mr Ryan, who appears for the young person, has quite properly conceded, the principles upon which an appellant court would review a discretionary judgment by a sentencing court were well established in the decision of the High Court in House v The King (1936) 55 CLR 499 at 504-505 where, in the course of a majority judgment, their Honours said:

. . . the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The matter in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

23. In the subsequent case of R v Tait and Bartley (1979) 46 FLR 386 at 388 a Full Court of the Federal Court explained that:

An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error . . .

24. It was this latter statement principle that was relied upon by Mr Ryan in support of his submissions. He maintained that, whilst no error of principle or of fact appeared in the learned Magistrate's reasons for judgment, nonetheless, the sentence itself was so excessive as to manifest error.

25. Regrettably, I am unable to accept this submission. Having regard to the circumstances with which the learned Magistrate was confronted it was, I think, inescapable that a custodial sentence be imposed. The learned Magistrate indicated that he would have imposed a sentence requiring the appellant to be committed to an institution for a period of 12 months had it not been for the fact that the legislation in this Territory providing for remissions would not apply to such a term served in New South Wales. Accordingly, he took the view that the period should be reduced by one third. I make no observation as to whether or not it was appropriate to proceed in that manner other than to say that that approach was, at the very least, fair to the appellant.

26. In my opinion, this sentence has not been shown to be manifestly excessive, despite the circumstances revealed in this case and, in particular, the quite tragic background of this young appellant.

27. Accordingly, I have been unable to find any appealable error and the appeal must be dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 10 August 2005

Counsel for the appellant: Mr M Ryan

Solicitor for the appellant: South Eastern Aboriginal Legal Service

Counsel for the respondent: Mr J Lawton

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing 1 August 2005

Date of judgment 1 August 2005