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Supreme Court of the ACT |
Last Updated: 8 June 2011
J D L v LIAM CHRISTOPHER O’MAHONY [2011] ACTSC 79 (17 MAY 2011)
APPEAL – appeal from the ACT Childrens Court
CRIMINAL LAW – appeal on the ground that insufficient weight was given to pleas of guilty – sentencing Magistrate erred in linking “credit” for appellant’s guilty pleas to his failure to assist police by identifying co-offenders – upheld
CRIMINAL LAW – appeal on the ground that the sentencing Magistrate failed to state the penalty that would otherwise have been imposed but for the pleas of guilty – upheld
CRIMINAL LAW – appeal on the ground that all available sentencing options were not properly regarded – the sentencing Magistrate concluded, after considering other possible sentences, that the only appropriate sentence for each offence was imprisonment – dismissed
CRIMINAL LAW – appeal on the ground that rehabilitation was not properly regarded – the sentencing Magistrate took into account such evidence as she had of the prospects for the appellant’s rehabilitation in the determination of an appropriate sentence – dismissed
CRIMINAL LAW – appeal on the ground that the sentences were manifestly excessive in all the circumstances – dismissed
Crimes (Sentencing) Act 2005 (ACT), ss 7, 10 (2), 33, 35, 37, 133G
Criminal Code 2002 (ACT), ss 310 (a), 324 (1)
Drugs of Dependence Act 1989 (ACT), s 171 (1)
ON APPEAL FROM THE CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 79 of 2010
Judge: Nield A/J
Supreme Court of the ACT
Date: 17 May 2011
IN THE SUPREME COURT OF THE )
) No. SCA 79 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: J D L
Appellant
AND: LIAM CHRISTOPHER O’MAHONY
Respondent
ON APPEAL FROM THE CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY
ORDER
Judge: Nield A/J
Date: 17 May 2011
Place: Canberra
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The conviction and sentences are confirmed.
As to the appeal of JDL:
1. The appellant is JDL. He was born during 1993. He committed the offence of aggravated robbery on 23 July 2010, and the offences of possessing property, namely ACT motor vehicle registration plates, reasonably suspected of being stolen or otherwise unlawfully obtained and of possessing a prohibited substance, namely, cannabis, on 4 August 2010, when he was aged 17 years six months. He is now aged 18 years four months.
2. The offender is the second of his parents’ two children. He has a brother. Also, he has two younger step-sisters, who are his mother’s partner’s children. He has a good relationship with both his parents, albeit that they separated when he was aged four years. He has an “alright” relationship with his mother’s partner.
3. The appellant’s upbringing is detailed in the pre-sentence report dated
22 September 2010, the updated pre-sentence report dated 25 October 2010, and the Forensic Mental Health report dated 29 September 2010, and need not be recited.
4. The appellant’s education is detailed in the pre-sentence report and need not be recited. Suffice it to say that, although not unintelligent, he was not academically inclined, with the result that he was as much, if not more, absent from school than he was at school.
5. The appellant’s employment since leaving the school is also detailed in the pre-sentence report. Since he was aged 15 years, he has been employed on an on-off basis as a kitchen hand by one or other restaurant about Canberra, but since January 2011 he has been employed as a kitchen hand on a permanent basis by D’Browe’s Restaurant.
6. The appellant had abused alcohol and a variety of prohibited drugs over a couple of years, as revealed by the pre-sentence report, but he claims that he has ceased to drink alcohol and to use prohibited drugs since his arrest, although I do not have any evidence to support his claim.
7. The appellant enjoys good physical health but not good mental health, as revealed by the pre-sentence report and the forensic mental health report. I do not doubt that his life has been shaped by his experiences.
8. The appellant does not have an unblemished character. He has been dealt with for an offence of common assault and an offence of damaging property, both committed on 15 February 2010, and for an offence of aggravated robbery committed on 17 November 2009. I do not refer to his criminal record as an aggravating factor of the subject offences, but because it is relevant to rehabilitation, reoffending and deterrence.
9. As mentioned, on 23 July 2010 the appellant committed the offence of aggravated robbery. The circumstances of the offence are set out in the statement of facts and I will refer to those circumstances in a moment. The offence was the aggravated form of the offence of robbery because it was committed by three offenders, one of whom, not the appellant, being armed with a knife. The offence resulted in cigarettes, tobacco, cigars, alcohol, electrical equipment and money to a total value of $11, 928.10 being stolen. The circumstances of the offence are these. At about 12.20 am on 23 July 2010 Mr Cabrera, the cleaner of the IGA supermarket in Edgar Place, Ainslie, in the ACT, was accosted by three young men, all having their faces covered by clothing, and one carrying a knife with a blade of about 30 centimetres. One of the three young men was the appellant. The other two young men have not been identified. One of the other two young men held the knife. The man holding the knife pointed it towards Mr Cabrera and, after threatening to kill him with it, demanded that he open the door into the supermarket, which he did. After entering the supermarket, the man holding the knife demanded that Mr Cabrera turn off the supermarket’s alarm, which he did. Then the appellant and his co-offenders forced Mr Cabrera behind the supermarket’s service counter and one of them demanded that he “get on the floor,” which he did. Then the appellant and his co-offenders gathered together a quantity of cigarettes, tobacco, alcohol, cigars, alcohol, electrical equipment and money, and they then left the supermarket.
10. Also, as mentioned, on 4 August 2010 the offender committed the offence of possessing property, namely ACT motor vehicle registration plates which had been stolen from the owner on 11 April 2010, and possessing a prohibited substance, namely cannabis. The circumstances of these offences are contained the statement of facts and need not be repeated.
11. On 4 August 2010 the appellant was charged with:
12. On 20 August 2010 the appellant pleaded guilty to the three offences and he consented to the Children’s Court having jurisdiction to impose sentences upon him.
13. On 29 October 2010 Magistrate Walker commenced the sentencing proceedings in relation to the subject offences, which proceedings continued on 1 November 2010. It would appear from the transcript of the proceedings that her Honour was provided with the following documents:
14. The Magistrate imposed the following sentences:
15. In the course of her reasons for sentence, her Honour referred to, albeit not in this order:
co-offenders. Of course, this factor, which may have allowed a discount if the co-offenders had been identified, is a matter which does not aggravate the offences,
16. On 26 November 2010 the appellant filed his Notice of Appeal with grounds that:
17. On 16 January 2011 the appellant’s counsel filed the appellant’s summary of argument.
18. On 17 February 2011 the Crown prosecutor filed the Crown’s summary of argument.
19. On 16 May 2011 I heard the appellant’s appeal.
20. I am now to give my judgment on the appellant’s appeal.
21. The offence of aggravated robbery is an offence contrary to s 310 (a) of the Criminal Code 2002. It is a very serious offence. It carries a penalty of imprisonment for a maximum of 25 years or a fine of a maximum of 2,500 penalty units or both.
22. The offence of possessing stolen property is an offence contrary to s 324 (1) of the Criminal Code 2002, for which the prescribed penalty is imprisonment for a maximum of six months or a fine of a maximum of 50 penalty units or both.
23. The offence of possessing a prohibited substance is an offence contrary to s 171 (1) of the Drugs of Dependence Act 1989.
24. The basis upon which a person aggrieved by a sentence imposed by a magistrate may appeal to the Supreme Court is well known and need not be recited. Suffice it to say that error must be shown, such as failing to take into account a relevant matter, or taking into account an irrelevant matter. Of course, the sentence itself may show error, although an appellant court does not interfere with the sentence imposed by a sentencing judge or magistrate merely because it is of the view that the sentence is excessive or inadequate. It is not a question of what I, at first instance, would have imposed as a sentence for the offence, but whether the magistrate erred in some way in determining the sentences that were imposed.
25. The first ground of appeal is that her Honour erred in failing to give any, or any sufficient, weight to the appellant’s pleas of guilty. As to the appellant’s guilty pleas, the Magistrate said:
“I note that you’ve pleaded guilty after the facts were amended, and I’m going to give you some credit for the fact that you’ve at least owned up, if you like, at some point in this process, to your criminal activity.”
26. The appellant’s counsel noted that the Magistrate then commented on the appellant’s lack of assistance to the authorities.
27. The Crown prosecutor submitted that the Magistrate had noted that the appellant had pleaded guilty to the offences and it was not an error of law in her having failed to specify the discount that she allowed for the guilty pleas.
28. Section 35 of the Crimes (Sentencing) Act 2005 applies when an offender pleads guilty to an offence. If an offender pleads guilty to an offence, the sentencing judge or magistrate is required to consider the matters set out in s 35, subsection (2) to subsection (6) of the Act, in addition to the matters set out in s 33 of the Act in the determination of an appropriate sentence for the offence. If the judge or magistrate imposes a lesser penalty for the offence because of the matters set out in s 35 of the Act, then the judge or magistrate must comply with s 37 of the Act.
29. I do not doubt that her Honour knew that she had to discount the sentences that she considered appropriate on account of the appellant’s guilty pleas and I do not doubt that she allowed the appellant a discount in sentence for his guilty pleas.
30. However, that said, her Honour should not have linked the “credit” for the appellant’s guilty pleas to his failure to assist police by refusing to identify his co-offenders, as, doing so, suggests that she reduced the discount in the sentences allowed for the guilty pleas.
31. I accept that her Honour failed to give the appellant sufficient discount in the sentences for his guilty pleas.
32. The first ground of appeal succeeds.
33. The second ground of appeal is that her Honour failed to state the penalty that would otherwise have been imposed but for the pleas of guilty, as required by the provisions of s 37 of the Crimes (Sentencing) Act 2005.
34. I accept that her Honour failed to comply with s 37 of the Crimes (Sentencing) Act 2005 because she did not state the penalty that she would have imposed for the offence, had the appellant not pleaded guilty to the offences.
35. The second ground of appeal succeeds.
36. The third ground of appeal is that her Honour erred in failing to have regard to all available sentencing options.
37. Section 10 (2) of the Crimes (Sentencing) Act 2005 empowers a judge or magistrate imposing a sentence upon an offender to impose a sentence of imprisonment if the judge or magistrate is satisfied, having considered possible alternatives, that no other penalty is appropriate.
38. Section 133G of the Crimes (Sentencing) Act 2005 applied to the sentencing of the appellant. Subsection (2) of the section provides that a sentence of imprisonment must be a last resort and for the shortest appropriate term, and subsection (3) requires the judge or magistrate to consider making a combination sentence consisting of a sentence of imprisonment and a good behaviour order with a supervision condition.
39. Her Honour considered and rejected as inappropriate a wholly suspended sentence of imprisonment and a community service order and she noted that a periodic detention order was unavailable. Her Honour concluded, after considering other possible sentences, that the only appropriate sentence for each offence was imprisonment.
40. The third ground of appeal fails.
41. The fourth ground of appeal is that Her Honour failed to have any, or any sufficient, regard to rehabilitation. As to the appellant’s prospects to rehabilitation, her Honour said:
“You have the prospects of rehabilitation, to get on and have a normal life without being affected by these drugs and not to hurt yourself and hurt the people around you and the community at large by your behaviour. You have that prospect, but you haven’t made the leap yet. As a young person, the legislature has said, as the courts have long recognised, that I’ve got to look at your particular circumstances, more than I might perhaps for someone who’s older, and I’ve got to look towards your rehabilitation and what would best serve that end.”
42. I accept that her Honour knew that rehabilitation of a juvenile offender was a major, if not the major, factor to be taken into account in the determination of an appropriate sentence to impose upon a juvenile offender for an offence.
43. I am satisfied that her Honour took into account such evidence as she had of the prospects for the appellant’s rehabilitation in the determination of an appropriate sentence to impose upon him for each offence. I note that the only material that her Honour had was that adduced by the Crown prosecutor.
44. The fourth ground of appeal fails.
45. The fifth ground of appeal is that the sentences were manifestly excessive in all of the circumstances.
46. This ground of appeal requires a consideration of all relevant material to assess whether the sentences imposed by her Honour were appropriate.
47. I have already referred to the material provided by the Crown prosecutor to her Honour during the sentencing proceedings. I note, to repeat, that the appellant did not give evidence, or adduce any evidence, to assist her Honour.
48. I am satisfied that her Honour considered all of the material provided to her in the determination of appropriate sentences to impose upon the appellant for the offences.
49. I am satisfied that the sentences imposed upon the appellant for the offences were not excessive.
50. The fifth ground of appeal fails.
51. Having allowed the first and second grounds, I consider whether, in all of the circumstances, a lesser sentence ought to have been imposed upon the appellant than those imposed upon him by her Honour. Having considered all of the material to which I have referred already, I conclude that no lesser sentences should be imposed upon the appellant than those imposed upon him by her Honour.
52. In the result, the appeal fails. Accordingly, the appeal is dismissed. The convictions and sentences are confirmed.
53. The sentence for the aggravated robbery offence is imprisonment in a juvenile detention centre for two years from 5 March 2011 to 4 March 2013, with 12 months, from 5 March 2012 to 4 March 2013, wholly suspended on condition that the appellant enter into a good behaviour order with the conditions as prescribed in the original order, and the sentence for possessing stolen property is imprisonment for one month from 5 March 2011 to 4 April 2011.
I certify that the preceding fifty three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 23 May 2011
Counsel for the appellant: Mr J Sabharwal
Solicitor for the appellant: Legal Aid ACT
Counsel for the respondent: Ms K Weston-Scheuber
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 16 May 2011
Date of judgment: 17 May 2011
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