Davey v Childs [2011] ACTSC 129 (20 July 2011)

Last Updated: 22 August 2011

ROBERT DAVEY v ASHLEY CHILDS

[2011] ACTSC 129 (20 July 2011)

APPEAL AND NEW TRIAL – appeal – appeal from the Magistrates Court – sentencing of young offenders – principle upon which appeal to be decided.

APPEAL AND NEW TRIAL – appeal – appeal from Magistrates Court – regard to an aggravating circumstance that should have been charged on the indictment – appeal allowed – orders and penalties of the Magistrates Court set aside – new sentence imposed without conviction.

CRIMINAL LAW – sentencing – sentencing principles – young offenders – non conviction order – Crimes (Sentencing) Act 2005 (ACT)

Criminal Code 2002 (ACT), ss 318, 321

Crimes (Sentencing) Act 2005 (ACT), s 17

Magistrates Court Act 1930 (ACT), Div 3.10.2

R v PM [2009] ACTSC 24

R v Smith [1964] Crim LR 70

Cooper v Corvisy (No 2) (2010) 5 ACTLR 151

Moh v Pine [2010] ACTSC 27

The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383

Lumby v Cooper [2008] ACTSC 53

R v P (1991) 53 A Crim R 112

R v Mills [1998] 4 VR 235

R v Mandica (1980) 24 SASR 394

Giles v Barnes [1967] SASR 174

Kent v Arley [2007] ACTSC 66

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 34 of 2011

Judge: Refshauge J

Supreme Court of the ACT

Date: 20 July 2011

IN THE SUPREME COURT OF THE )

) No. SCA 34 of 2011

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ROBERY DAVEY

Appellant

v

ASHLEY CHILDS

Respondent

ORDER

Judge: Refshauge J

Date: 20 July 2011

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders and penalties of the Magistrates Court be set aside.

3. On the charge of ride in motor vehicle without consent, without conviction, Mr Davey sign an undertaking to comply the offender’s good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of twelve months from today.

4. On the charge of theft, without conviction, Mr Davey sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of three months from 20 July 2012.

AND THE COURT DIRECTS THAT:

5. The money paid into the Magistrates Court as compensation be paid out to NRMA Insurance Limited.

1. The sentencing of young offenders, especially first offenders, can be problematic, for the courts have made it clear that ordinary sentencing principles cannot always be applied without modification. See what I said in R v PM [2009] ACTSC 24. Those principles are not limited to offenders under the age of eighteen years. Indeed, the often cited case of R v Smith [1964] Crim LR 70 involved an eighteen year old.

2. The appellant before me appeals against the sentences imposed in the Magistrates Court when convictions and fines were imposed for two offences, namely:

i. that he dishonestly without consent rode in a motor vehicle belonging to another; and

ii. that he dishonestly appropriated property, being two number plates, belonging to another, with the intention of permanently depriving the owner of them.

3. The first offence is an offence under s 318(2) of the Criminal Code 2002 (ACT) (the Criminal Code), attracting a maximum penalty of 500 penalty units (that is, a fine of $55,000) or five years’ imprisonment, or both. The second offence is an offence against s 321 of the Criminal Code, for which Mr Davey is rendered liable of 50 penalty units (that is, a fine of $5,000) or six months’ imprisonment, or both.

4. The circumstances were that the owner of the motor vehicle discovered her car missing. Police came upon it later crashed into a tree in circumstances where it appeared the persons in it had been injured. Showing commendable initiative, the police went to The Canberra Hospital and located the appellant and his co-accused who had sought treatment there.

5. The police also found two number plates on the driver’s side floor well of the car, which had been stolen from another car.

6. The appellant made full admissions of his part in the offences to police when they finally interviewed him.

7. The appellant, apparently, also made admissions about how he entered the motor vehicle using a pair of scissors to unlock the stolen car and also to start it. The appellant, however, was not charged with the theft of the car. The appellant also admitted that he proposed to exchange the number plates with the car, so as to avoid detection from police. Whether or not that would have that effect, I express some doubt.

8. These further matters, however, disclosed other offences with which he was not charged. They give a context to the offending, but a judicial officer needs to be careful not to take such matters inappropriately into account.

9. Counsel who appeared in the Magistrates Court tendered character references. It was noted that the appellant had no prior criminal record, he pleaded guilty at an early time and had made full admissions. Counsel submitted that a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), was appropriate.

10. The sentences imposed by the magistrate were:

i. on the first charge, a fine of $350 with court costs of $65, a victim’s compensation levy of $50 and a victim’s services levy of $10, and reparation payable to the NRMA of $2,400; and

ii. on the second charge, a fine of $250 and a victim’s services levy of $10.

11. The appellant paid the compensation of $2,400 on the day that he was sentenced.

Jurisdiction

12. Appeals against sentencing decisions from the Magistrates Court are regulated by Div 3.10.2 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act).

13. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.

14. The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.

15. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

16. Mr J Sabharwal, who appeared for the appellant on the appeal, submitted that the magistrate had erred in approaching the sentence as if the more serious criminality was involved, as disclosed in the admissions made by the appellant and in the statement of facts that had been tendered to the magistrate, rather than the offences that had actually been charged and the criminality associated with them.

17. He further submitted that the learned magistrate had determined on a path that was more severe than the circumstances warranted and that this had, or had likely, affected the sentence. Mr Sabharwal pointed to the following exchange between his Honour and counsel before the magistrate:

HIS HONOUR: I send the defendant now for a PSR please, for suitability for community service, or periodic detention.

MR GRAY: Your Honour, I was hoping to address you in relation to a discharge under section 17 of the Act.

HIS HONOUR: You can do so once I’ve sent him out for suitability for periodic detention, or community service.

18. I pause to note that periodic detention is a method of serving imprisonment. It would be extraordinary if a young man, a first offender for such offences as this, were even considered for imprisonment, however served.
19. His Honour then proceeded after the assessment had been conducted:

HIS HONOUR: Your client’s unsuitable to perform community service.

MR GRAY: He lives - - -

HIS HONOUR: And apparently he is a university student in Wollongong.

MR GRAY: Yes, he’s currently a fulltime, your Honour. He was in Year 12 last year, when this offence was - - -

HIS HONOUR: Does that mean people who thieve cars and number plates, crash them, causing $2,400 worth of damage, must go to jail because they are not suitable to have that penalty ameliorated by community service or indeed weekend detention?

20. I pause to note that the problem with what his Honour then said was that his reference was to the wrong offence, the wrong facts, and constituted inappropriate remarks on sentence about a possible sentence which could never seriously have been imposed.
21. Ultimately, however, his Honour made brief remarks on sentence. There is no criticism to be made of his Honour in making brief remarks. That is appropriate in Magistrates Courts but, nevertheless, it makes it difficult for appellate courts to understand how difficult questions of sentencing are being resolved. His Honour said:

HIS HONOUR: I decline to exercise my discretion under section 17. The Act when it refers to the matters that Mr Gray has referred to me, yes, he is a person of good character. He was born in 1992, he is thus only 19 years of age. He does not have a sufficient bank of good character to rely upon to have the matter dismissed for that reason.

In my view, the seriousness of the offence, the deceit, planning and the carrying out of this enterprise, which was only stopped because of the inexperience and the incapacity of his friend to drive the motor vehicle safely, leads me to say that I will not exercise my discretion.

22. His Honour then went on to impose the sentences I have referred to.

23. Curiously, in relation to the second offence he made no reference to the plea of guilty, although he did make favourable reference to that in relation to the first offence. I said in Moh v Pine [2010] ACTSC 27 (at [29] – [30]) that:

It is important that a judicial officer in sentencing describes the offences and their criminality with fairness and measured accuracy. It is, when only brief sentencing remarks are made, not easy to discern whether such exaggerated descriptions have infected the sentence by placing the culpability of the offender at a higher level than it deserves.

In my view, I cannot be certain that these remarks did not mean that the Learned Sentencing Magistrate imposed a sentence more severe than was appropriate in all the circumstances.

24. In my view, there is a real risk that this occurred in the present case. For example, the Magistrate referred in his sentencing remarks to the carrying out of “this enterprise” having been “...only stopped because of the inexperience and the incapacity of his friend to drive the motor vehicle safely...” That implies that the enterprise was more than simply the riding in the motor vehicle which had been completed, to all intents and purposes, once he had got in the motor vehicle and it commenced to move. It suggests, however, that his Honour was taking into account the more serious culpability of the theft of the motor vehicle in taking it away permanently to deprive the owner of it. That suggests that there was more culpability taken into account by his Honour than the actual charges that were imposed.

25. This raises a real problem which was identified by the High Court in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 392), where Gibbs CJ said:

... [I]n my opinion... a judge, in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance should be placed on it. He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation, but which do not fall within the definition of that expression in the Code, because they do not render the offender liable to a greater punishment.

26. His Honour then said (at 394):

If an offender has been convicted of robbery, and the indictment charges that he used actual violence to any person, it is obvious that the trial judge, in imposing sentence, may have regard to the actual violence that was used, notwithstanding that that would also constitute personal violence within s 393. On the other hand, if the actual violence used resulted in wounding, the trial judge would not take the wounding into account unless it has been charged in the indictment, for the wounding is purely a circumstance of aggravation and not an element of robbery simpliciter.

27. Thus, in this case, the element of stealing the motor vehicle which would evince greater criminality, particularly if the owner was permanently deprived of it, would be a separate offence and not encompassed in the dishonestly ride motor vehicle offence. Though the penalty for the two offences appears to be the same, there would be a significant increase in the culpability for the theft offence, which would require a more serious response.
28. I also refer to the curious reference his Honour makes to the “bank of good character”. True it is, that a person with many years of crime-free living can draw on that period of crime-free living for his benefit, but good character is good character. The way his Honour worded it, it sounds very much as if a person with more good character, that is, a longer period of crime-free existence, could have committed the same offences and been eligible for consideration under s 17 of the Sentencing Act. In my view that is simply not right. It is true that extensive good character may serve to overcome the seriousness of a particular offence, but in my view his Honour fell into error.
29. In those circumstances, the appellant must be re-sentenced.
30. The prosecution suggested that I should remit the matter to the Magistrates Court for sentence. In my view that is not necessary. I can impose a sentence. This disposes of the appeal at once, and that is better for all concerned.
31. Mr Sabharwal renewed the application for the exercise of a discretion under s 17 of the Sentencing Act. Section 17 has been considered in Lumby v Cooper [2008] ACTSC 53. I accept Penfold J’s consideration of that section set out in those considerations.
32. An important issue is that in this case the appellant is a young man. As was said by Matthews J, with whom Gleeson CJ and Samuels JA agreed, in R v P (1991) 53 A Crim R 112 (at 116):

The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (unreported, Supreme Court, NSW, 15 August 1979), Yeldham J remarked during the course of sentencing of a young offender that “in the case of a youthful offender... considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation”. His Honour relied upon Smith [1964] Crim LR 70, where it was said: “In the case of a young offender there can rarely be any conflict between his interest and the public’s. The public have no greater interest than that he should become a good citizen.” This principle was also adopted by Hunt J in Belavia (unreported, 16 August 1980).

Subsequent decisions of this Court, however, suggest that considerations of general deterrence should not be ignored completely when sentencing young offenders. In Broad (unreported, 30 March 1984), Street CJ referred to “the necessity to deter antisocial conduct... commonly manifested by vandals in this city in current times” but also was “concerned that for a young man of 19 with a clear earlier record and a supportive family background, importing as it does the prospects of real confidence in rehabilitation, a custodial sentence does not reflect the appropriate approach to be taken.

In C, S and T (unreported, Court of Criminal Appeal, NSW Gleeson CJ, Allen and Studdert JJ, 12 October 1989), Gleeson CJ accepted the submission that

In sentencing young people... the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.

See also, R v Mills [1998] 4 VR 235.

33. I had references that had been tendered before the magistrate. One was from the appellant’s teacher and now pastor. He said:

I do not believe it is Robert’s desire to deny either his lack of wisdom or the grief he has caused both his family and his mentors like me. On the contrary, he seems genuinely humbled by the experience and it is certainly my hope that he has learned his lesson.

Outside of this aberration, I generally found him to be a reliable, courteous and gracious young man.

His pastor described him as reliable, courteous and gracious elsewhere in the reference also.

34. I had a reference also from a woman who had a relationship with the appellant’s mother through a professional relationship. She referred to the strong teamwork of the family, their “commitment to each other and serving the community [which] has been a trait of the Davey household”. She described Robert as a “supportive and cooperative member of his family”. She referred to his attainment of a Silver Duke of Edinburgh Award through his school, and that he played rugby and basketball, and in the local community rugby club. She said:

He consistently attended training and games, despite times when the club was experiencing difficult coaching and team issues.

35. She also said:

Robert is also a talented musician and from the time he was able to, contributed his time and skills to the Baptist Church youth band and other social events that required the musicians to perform.

...

He has a strong compassionate side and has helped numerous young people finding it difficult with family issues, study, or life in general. He may simply spend time sitting with them and sharing their stories or offer to help them seek other support services in the community. He does this discretely [sic] and without seeking recognition. Robert enjoys active participation in events and social activities.

36. I also had a reference from a senior officer of a major company who, however, properly noted that he was related by marriage, as Robert is the only nephew of his wife. He described Robert as:

... A thoughtful young man who I believe has a big future ahead of him in whatever career path he ultimately decides to take.

In the time I have known Robert, he has matured from a quiet pleasant boy to an engaging and intelligent young man.

Throughout his school years, Robert has continuously impressed me with the level of energy and creativity he puts into school projects and, in particular, science projects where he has won many awards.

37. He described Robert as, “a caring person”. He said:

[His criminal behaviour]... has come as a complete shock to my wife and me, as we know it has to his parents and sister... [I]t is very apparent that Robert is extremely ashamed and remorseful for what he has done and how this has affected his family and the victim.

I would like to conclude this character reference by saying that Robert James Davey is someone I am proud to know, and someone for whom I would recommend to prospective future employers.

38. These references are evidence of positive good character which, as Jacobs J pointed out in R v Mandica (1980) 24 SASR 394 (at 406) is more than:

merely an absence of previous convictions, compared with affirmative and credible evidence of good reputation and character.

39. The importance of this factor was well described by Bray CJ in Giles v Barnes [1967] SASR 174 (at 180), where his Honour said:

If the Court is told that nothing is known against a man it assumes he possesses a good character in the negative sense, namely that there are no black marks against him, so far as is known. It is, however, generally assumed, and in my view rightly, that where a witness who knows the defendant... gives positive evidence as to his character and reputation, that adds considerably to the weight which the Court attaches to the defendant’s favourable record.

40. I also had a reference from his parents which of course stands in a somewhat different position. It shows, however, that he was active in his schooldays; it shows the shame he has brought on his family and especially his sister, and how he feels that. It shows that he has expressed remorse and it shows that he is developing maturity. No doubt this offence and the associated appearances and legal involvement have probably accelerated that to a significant degree.
41. It did say that his parents expressed genuine confidence in his ability to continue to develop as a responsible adult, and to contribute to society as a caring member of the community.
42. I note, further, that a restorative justice process was proposed and agreed to by the appellant, although it was not completed. He has also paid the compensation, as I have noted. These show that he has not only remorse, but an insight into the accountability that he owes for these offences.
43. In Lumby v Cooper Penfold J said (at [14]) (by reference to a decision of Connolly J in Kent v Arley [2007] ACTSC 66):

I note that if the appellant in Kent was “a person... for whom [s 17] was designed”, the appellant in this case must also be such a person. Like the appellant in Kent, the appellant in this case is a young person of previous good character, and a person who “otherwise presents as a person who is going to go on and make something of [the appellant’s life] and be a valuable member of this community... engaging in worthwhile activities” (Kent (supra) at [9]).

44. That seems to me to cover the situation here.
45. The only issue, then, is the seriousness of the offences, and whether the seriousness of the offences means that the option of taking a course under s 17 of the Crimes Act is such that that seriousness outweighs that option.
46. I can accept that these offences are prevalent and often committed by younger men, and, maybe, as Mr Gray submitted, the appellant was a “thrill seeker” but, nevertheless, the attraction for motor vehicles leads to what I accept is a prevalent offence. Not only does it deprive the owner of the car; often, as in this case, it results in the loss of the car. I accept that compensation which has been paid in this case meets much of that, but it can never fully compensate for the time, effort, loss and personal distress that these crimes cause.
47. The fines, however, were modest. The magistrate, who was initially referring to imprisonment, clearly saw these offences as not very serious offences, having regard to the modest fines that were ultimately imposed.
48. I take into account the plea of guilty made at the earliest opportunity and also the payment of compensation. I take into account the admission of the offences and their criminality to the police. I find that the appellant has significant remorse. I do not consider that there any realistic likelihood that he will reoffend. I consider that he has learned his lesson.
49. I consider that in those circumstances, it is true, as referred to in Kent v Arley, that he otherwise presents as a person who is going to go on and make something of his life and be a valuable member of the community. He has a positive good character, not merely an absence of prior criminal record.
50. Accordingly, I allow the appeal and I set aside the orders and penalties of the Magistrates Court.
51. On the charge of riding the motor vehicle without consent, without conviction, I require Mr Davey to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of twelve months from today.
52. On the charge of theft, without proceeding to a conviction, I require the appellant to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing) Act 2005 for three months from 20 July 2012.
53. That is a total good behaviour order for a period of fifteen months.
54. I direct that the money paid in compensation be paid out to NRMA Insurance Limited.

I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 16 August 2011

Counsel for the appellant: Mr J Sabharwal

Solicitor for the appellant: David Thornton Gray Lawyer

Counsel for the respondent: Mr T Jackson

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 20 July 2011

Date of judgment: 20 July 2011