Duncan v Meredith [2001] NTSC 8

PARTIES:	TIMMY BRENTON DUNCAN

	v

	ANDREW JOHN MEREDITH

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	JA71 AND 72 OF 2000

DELIVERED:	28 FEBRUARY 2001

HEARING DATES:	26 FEBRUARY 2001

JUDGMENT OF:	RILEY J

REPRESENTATION:

Counsel:
	Appellant:	A. Beckworth
	Respondent:	R. Wild QC

Solicitors:
	Appellant:	Katherine Regional Aboriginal Legal Aid Service 
	Respondent:	Office of the Director of Public Prosecutions 

Judgment category classification:	B
Judgment ID Number:	ril0102
Number of pages:	5

ril0102

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Duncan v Meredith [2001] NTSC 8
No. JA71 AND 72 OF 2000

	IN THE MATTER OF the Justices Act

	AND IN THE MATTER OF an appeal against sentence handed down in the Juvenile Court at Katherine

	BETWEEN:

	TIMMY BRENTON DUNCAN
	Appellant

	AND:

	ANDREW JOHN MEREDITH
	Respondent

CORAM:	RILEY J

REASONS FOR JUDGMENT

(Delivered 28 February 2001)

[1]	On 13 November 2000 the appellant came before the Juvenile Court for sentence in relation to a number of matters.  At that time he was a juvenile and he was dealt with pursuant to the terms of s53AE of the Juvenile Justice Act.
[2]	Sections 53AE(1), (2) and (3) of the Juvenile Justice Act are in the following terms:
“(1)	In this section, "juvenile" means a juvenile who has attained the age of 15 years. 
(2)	Where - 
(a)	a juvenile who has been found guilty of one or more property offences is before the Court to be sentenced in respect of those offences; and 
(b) 	the Court has on a previous day dealt with the juvenile under section 53(1) in respect of one or more property offences,
the Court must do one of the following: 
(c) 	order the juvenile to participate in a program approved under subsection (3) and adjourn the matter for that purpose; 
(d) 	record a conviction and order the juvenile to serve one period of detention of not less than 28 days in respect of all of the offences referred to in paragraph (a).
(3)	The Minister may, by notice in the Gazette, approve a program for the purposes of subsection (2)(c).”
[3]	The matter proceeded on the basis that there was only one relevant diversionary program available in the circumstances in which the appellant found himself.  That program was described as a victim/offender conferencing program and, as the name suggests, involved the offender and his victim being brought together in a conference setting.  His Worship was invited to direct that the appellant participate in a victim/offender conferencing program in relation to all matters then before the Court.  
[4]	The information made available to the Court at the time of sentencing indicated that, in this case, there was a number of offences and the victims fell into three categories.  The first category was where the victim had been approached and had declined to participate in the diversionary scheme.  The second was where the victim had been approached and had agreed to participate in the scheme.  The third involved victims who could not be contacted and who had not expressed a view either way.  
[5]	The creation of the scheme allowing for diversionary programs was clearly intended to provide relevant young offenders with an alternative to the imprisonment they would otherwise face.  Reference to the Second Reading Speech of the Deputy Chief Minister of Tuesday 1 June 1999 confirms that to be so.  There it was said that “the aim of the diversionary program is to give 15 and 16 year old offenders one last chance before they face certain gaol”.  Subsequently the Juvenile Justice Act has been amended to provide that a child who has not attained the age of 18 years shall be regarded as a juvenile for the purposes of that Act.
[6]	In determining sentence his Worship clearly thought that the participation of the appellant in a diversionary program was desirable. Where he was able to do so, based upon his view of the law, his Worship directed the appellant to participate in such a program.  However he proceeded on the basis that he had no power to direct the participation of the appellant in a victim/offender conferencing program regarding a particular offence in the absence of the consent of the relevant victim to participation in the program. The end result was that the appellant was sentenced to an aggregate sentence of 28 days detention in relation to some property offences and was directed to participate in a diversionary program for the remainder.  The appellant submits that this approach revealed error on the part of his Worship.  I agree.  The learned Director did not seek to contend otherwise.
[7]	Section 53AE(2)(c) does not require the Court to impose a separate order requiring the participation of an offender in a program for each property offence.  The juvenile may be ordered to participate in a program where he has been found guilty of “one or more property offences”.  The entry into the program is required as a response to all such matters then before the Court.  The property offences are not to be treated individually.   It follows that so long as the victim/offender program can be made effective by the participation of at least one victim the program may be ordered.  Whether or not it should be ordered will be a matter for the exercise of a discretion by the presiding Magistrate.  A relevant factor in the exercise of that discretion may be the extent to which victims are prepared to be involved in the program considered in light of the overall offending of the juvenile. However the fact that one or more victims is not prepared to be involved in the scheme does not mean that the option of requiring participation in a diversionary program is not available as a response to all of the property offences then before the Court. 
[8]	In the present circumstances the presiding Magistrate erred by excluding from his consideration of whether to order participation of the appellant in an approved program, those offences where the victim did not agree to participate in the program and those offences where the victim was not available to express a view one way or the other.
[9]	In addition it was submitted by the appellant that the intention of s53AE is clear.  Where, as here, a juvenile meets the criteria found in s53AE(2) of the Act then the Court “must do one of the following” namely order participation in an approved program or, alternatively, require the juvenile to serve a period of detention of not less than 28 days duration.  It was submitted that the Court cannot do both.   To order both would be contrary to the intention of the legislation which is that, where appropriate, juveniles should be diverted from detention.  It is not intended that the juvenile would be required to undergo a diversionary program and also serve a period of detention.  This, it was said, is to defeat the purpose of the diversionary regime. Whether or not subsections(c) and (d) of s53AE(2) are strict alternatives is not something that I need determine at this time.  That can await another day.  
[10]	The learned Magistrate erred in the exercise of his discretion and the appeal must be allowed. All of the orders of his Worship made on 13 November 2000 are set aside.  The matter will be remitted to the Juvenile Court to be dealt with according to law.  
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