CH v Healey [2008] ACTSC 65 (12 June 2008)

Last Updated: 28 July 2008

CH v SUZANNE HEALEY

[2008] ACTSC 65 (12 JUNE 2008)

EDITED EX TEMPORE JUDGMENT

ON APPEAL FROM THE ACT CHILDRENS COURT

No. SCA 116 of 2007

Judge: Gray J

Supreme Court of the ACT

Date: 12 June 2008

IN THE SUPREME COURT OF THE )

) No. SCA 116 of 2008

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ACT CHILDRENS COURT

BETWEEN: CH

Appellant

AND: SUZANNE HEALEY

Respondent

ORDER

Judge: Gray J

Date: 12 June 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The appellant be committed to detention for a period of nine months and 19 days commencing on 24 August 2007 and ending on 12 June 2008.

3. A probation order be made for a period of 18 months, on conditions.

1. 1. This is an appeal from the ACT Childrens Court. The appellant, a young person, was convicted and the magistrate ordered that he be committed to an institution for what was, in effect, in total, 22 months for 12 burglaries and 11 associated thefts. The value of the property stolen was just under $40,000.00. In respect of an additional charge of intentional damage to property, the magistrate made a probation order for 18 months to commence at the end of the order for committal.

2. The burglaries and thefts extended over a period commencing on 5 December 2006 and ending on 17 August 2007. The burglaries and thefts were grouped by the magistrate according to the dates upon which they were committed and it appears that she engaged in a progressive escalation based on this grouping of the period of committal to an institution in the Australian Capital Territory. She determined that there be a period of six months in respect of the first six charges before her, then nine months in respect of the next two, ten months in respect of the next two, 12 months in respect of the next one, 15 months in respect of the next two, 18 months in respect of the next six, 20 months in respect of the next two and 22 months in respect of the last two. There is no provision under the Children and Young People Act, 1999 (ACT) for making consecutive orders for committal but the progressive way in which the magistrate framed her order seems designed to achieve the same effect.

3. Although the criminal activity involved with respect to this young person is alarming and calls for a significant denunciation, it still must be dealt with in terms of general sentencing principles as well as the special requirements to which the Children and Young People Act, 1999 requires regard to be had.

4. In the result, the magistrate imposed a sentence of detention only two months short of the maximum available under the Act in respect of two of the offences. That cannot be justified by application of the ordinary sentencing principles of proportionality and parsimony. Nor can the approach and reasoning for making the orders be satisfactorily reconciled with the principles for sentencing young offenders that are set out in s 68 of the Act. That section provides:

68 Principles

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) regard must be had to the best interests of the young person or young offender;

(c) 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;

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

(e) 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;

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

(g) 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.

5. Having regard to the way that the magistrate approached the matter, the prosecution conceded at the outset that the penalty imposed was manifestly excessive and that the magistrate's approach failed to give effect to the principles set out in s 68 of the Act, in particular paragraphs (c) and (f) of that section.

6. I consider that the concession was properly made and as a consequence I made the orders which follow. I said:

7. I formally uphold the appeal. In relation to the charges before the Childrens Court set out in the table of the submissions on behalf of the respondent, I think I probably need to read them all out in this regard and so that this is formally recorded, in respect of the following charges -

07/1176, a burglary at Melba on 5 December 2006;

07/1177, a theft of $2330.00 on 5 December 2006;

07/1239, a burglary at Melba on 5 December 2006;

07/1240, a theft of $2150.00 on 5 December 2006;

07/1241, a burglary at Melba on 15 December 2006;

07/1242, a theft of $1000.00 on 15 December 2006;

07/1178, a burglary at Narrabundah on 21 June 2007;

07/1179, a theft of $8400.00 on 21 June 2007;

07/1243, a burglary at Red Hill on 6 July 2007;

07/1244, a theft of $2000.00 on 6 July 2007;

07/1180, a burglary at Calwell, on 15 July 2007;

07/1245, a burglary at Flynn, on 30 July 2007;

07/1246, a theft of $600.00 on 30 July 2007;

07/1159, a burglary at Flynn, on 12 August 2007;

07/1160, a theft of $879.79 on 13 August 2007;

07/1170, a theft of $1829.00 on 14 August 2007;

07/1077, a burglary at Melba, on 14 August 2007;

07/1078, a theft of $5359.00 on 14 August 2007;

07/1161, a burglary at Melba, on 14 August 2007;

I order that the young person be committed to detention for a period of nine months and 19 days to commence on 24 August 2007 and to end on 12 June 2008. In so doing, I take into account the fact that had that period of committal been ordered in the first instance, it would have amounted to some 14 and a half months and that by fixing the period that I have, I have taken into account the remissions that may have been earned on that period.

8. In respect of offence number 07/1181 of intentional damage to property at Calwell on 15 July 2007, offence number 07/1163, a burglary at Evatt, on 16 August 2007, matter number 07/1164, a theft of $7479.00 on 16 August 2007, in respect of matter number 07/1079, a burglary at Melba on 17 August 2007, and in respect of matter 07/1080, a theft of $7100.00 on 17 August 2007, I make a probation order for a period of 18 months, on condition that the young person be subject to the supervision of the Chief Executive for the office of Children, Youth and Family Services, or the Chief Executive's delegate; that he obey all reasonable directions of the Chief Executive or the Chief Executive's delegate, including directions given by Youth Justice workers and Care and Protection workers and including reporting as directed by Youth Justice or Care and Protection workers; residing as directed by Youth Justice or Care and Protection workers and complying with and participating fully in the case plan dated 3 June 2008, to be attached to this order and as amended from time to time. It is also a condition that the young person proceed in the company of Cathy Seaman and Leroy Johnson and report forthwith to the Youth Justice Department at Moore Street, Canberra City. It is understood that the place of residence in terms of the case plan is to Narrabundah House, for the present time.

9. I went on to say:

10. I do not think that this is a suitable vehicle to make any wider statement of principle. The matter has not been fully argued so as to put me into a position to give reasons concerning the two aspects that are of concern. I would encourage the prosecutor to take up my concerns with the authorities.

11. The first of these concerns is the issue of imposing committals for detention individually in relation to offences. I have not done so in this case, because I think that a global imposition is probably the advisable way of dealing with this particular matter, but I would prefer to at least reserve the issue of whether that is generally the appropriate way of dealing with such matters. I will do so when there is a suitable case for me to fully consider the matter. At this stage, I would ask the prosecution to consider in respect of submissions that the prosecution makes to magistrates in cases like the present that there does not necessarily appear to be utility or justification for imposing separate committals for detention on separate offences. That is particularly so when the sentencer is not concerned with a penalty of imprisonment as far as those offences are concerned.

12. The second issue is whether young persons who appeal decisions should be treated in terms where they are not, administratively, given remissions in relation to the committal for detention. In circumstances where they have appealed, I cannot see what the justification is for not giving remissions. I say that because I do not think the practise that appertains in relation to sentences of imprisonment and the distinction between prisoners under sentence and prisoners on remand is an appropriate matter to incorporate into the juvenile justice system.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 10 July 2008

Counsel for the appellant: Ms T Warwick

Solicitor for the appellant: Legal Aid Office

Counsel for the respondent: Mr S Drumgold

Solicitor for the respondent: Director of Public Prosecutions ACT

Date of hearing: 12 June 2008

Date of judgment: 12 June 2008