G v GEOFFREY BOURNE

Supreme Court of the Northern Territory of Australia Angel J
27, 28, 30 August and 4 October 1991 at Darwin

NATURAL JUSTICE - Sentencing - magistrate rejecting plea of contrition based on defendant's demeanour extent of magistrate's obligation to accord natural justice

SENTENCING - Appeal - Juvenile Court - approach to punishment in Juvenile Court - Juvenile Justice Act 1983 (NT)

SENTENCING - Appeal against severity of sentence Court 15 year old first  offender  -  unlawful steal - six month suspended sentence - whether excessive

- Juvenile entry and manifestly

SENTENCING - Juvenile Court - plea of guilty - magistrate rejecting contrition based on defendant's demeanour - failure to give counsel for defendant opportunity to support with evidence - extent of magistrate's obligation to accord natural justice

SENTENCING	- Appeal - Juvenile Court - plea in mitigation defendant's demeanour not an irrelevant consideration

Cases Considered
Heppner v R unreported, McGarvie J, Victorian Supreme Court, 7/10/1980
Worden v Leviton (1974) 7 S.A.S.R. 20

Cases Doubted
Halden v R (1983) 9 A.Crim.R. 30

Cases Followed
Cranssen v R (1936) 55 C.L.R. 509
House v R (1936) 55 C.L.R. 499
Law v Deed [1970] S.A.S.R. 374
M v Waldron (1988) 56 N.T.R. 1
Pryce v Ashfield (1986) N.T.J. 704
R v Lester (1975) 63 er.App.Rep. 144
Ross v Svikart (1989) 99 F.L.R. 134
Simmonds v Hill (1986) 38 N.T.R. 31

Cases Referred to
Attorney-General v Wurrabadlumba (1990) 74 N.T.R. 5
Georgeff v Samuels (1976) 14 S.A.S.R. 384
R v Golding (1980) 24 S.A.S.R. 161
Scott Pools v McCarthy (1974) 8 S.A.S.R. 539
Stead	v	State	Government	Insurance	Commission	(1986)	161
C.L.R. 141
Weaver v Samuels [1971] S.A.S.R. 116

Counsel for the Appellant Solicitors for the Appellant

J Blokland Withnall Cavanagh

Counsel for the Respondent Solicitors for the Respondent

P Murphy Director	of Prosecutions

Public

ang910032
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 236/1991

BETWEEN:

Appellant

AND:

GEOFFREY BOURNE
Respondent

CORAM:	ANGEL J

REASONS FOR JUDGMENT
(Delivered 4 October 1991)

On 28 May 1991, the appellant was convicted by the Juvenile Court at Darwin of three counts of unlawful entry of a dwelling-house with intent to steal, and three counts of stealing contrary to s.213(2) and s.210 of the Criminal Code.	The maximum penalty for unlawful entry of a dwelling­ house with intent to steal is ten years, s.213(4) of the Criminal Code.	The maximum penalty for stealing is seven years, s.210 of the Criminal Code.

The facts of the offences are relatively

straightforward.		On 25 May 1990, the appellant entered premises situated at 73 Curlew Circuit, Wulagi, by pushing in a flyscreen.	On leaving the premises he took with him a pair of running shoes, a pair of boots and a sports bag.
The value of the property totalled $207.00.

On 3 June 1990, he entered premises at
15 Plover Street, Wulagi, by cutting through a rear screen window.	On leaving the premises he took with him a camera, a pair of binoculars and two pairs of trousers.	The value of the property totalled $450.00.

On an unknown date in June 1990, the appellant went to Lot 6, Wygood Road, Howard Springs.	He entered the premises through an unlocked front sliding door.	On leaving the premises he took with him two firearms which he subsequently sold.	Those firearms were ultimately recovered by the police.			Their enquires led them to question the appellant on 23 January 1991.	At the time of the interview the police were unaware that the appellant had been involved in any other similar offences.	They asked him if he had ever done anything of this nature before and he replied in the negative; however, the next day he returned to the police station and admitted the two earlier offences detailed above.		It was this admission which resulted in charges pertaining to those offences being laid.

In all of the offences the appellant acted alone.	The

property was disposed of by selling it or giving it away to various friends.	Only the two firearms and the sports bag were recovered, and in circumstances to which I will return later in these reasons.

On the unlawful entry charge where the firearms were stolen, the appellant was sentenced to six months with hard labour, the sentence to be suspended upon him entering into a good behaviour bond for 12 months and paying $500 recognisance.	The terms of the bond were that he was to be under the supervision of a delegate of the Director of Correctional Services and obey all reasonable directions as to employment, residence, associates and reporting for a period of six months.	On the charge of stealing the firearms, he was sentenced to imprisonment for one month with hard labour to be concurrent with the sentence of six months for the unlawful entry.	This sentence was also suspended.	On the charge of unlawful entry on 25 May, he was ordered to perform 80 hours of community service.	The associated charge of stealing resulted in a sentence of another 32 hours of community service.	On the unlawful entry charge of 3 June 1990, he received a further 80 hours community service, and on the associated stealing charge, a further 40 hours community service.	A total of 232 hours of community service.	In addition, restitution of $690.00 was ordered.

At the hearing before me, the sentence in respect to

the earlier four offences was not challenged.	The sentences challenged relate to the offences involving the theft of the firearms.		Counsel for the appellant argued two grounds of appeal.	First, it was submitted that the sentences were manifestly excessive.	It is convenient to set out counsel's second submission in full as it appears in the Further Grounds of Appeal:

"The learned Magistrate erred in law in that he failed to accord procedural fairness to the appellant by not giving the appellant a reasonable opportunity to make submissions or present evidence in relation to the Magistrate's adverse findings based on the appellant's posture and facial expression in circumstances where:
such an adverse finding amounted to rejecting the uncontested submissions in evidence put by the appellant's counsel as to contrition, good character or rehabilitation or all of these.
In the alternative:
such an adverse finding was an irrelevant consideration in sentencing the appellant and should not have been taken into account."

The principles upon which an appellate court will interfere with a discretionary sentence are well settled by the High Court decisions in House v R (1936) 55 C.L.R. 499 and Cranssen v R (1936) 55 C.L.R. 509.	It is not sufficient that the appellate court would itself have imposed a different sentence to the primary judge.			It may be that a specific error is apparent but even in the absence of a readily discernible error, a sentence may be overturned "if upon the facts it is unreasonable or plainly unjust" -	per Evatt and McTiernan JJ	in House at 505.		In such a case the appellate court infers that the sentencing discretion has not been properly exercised.

on the facts of this case I am satisfied that the sentences imposed by the learned magistrate were manifestly excessive given the circumstances.	The learned magistrate was sitting as the Juvenile Court, not the Court of Summary Jurisdiction.	The fundamentally different nature of the two sentencing regimes has been recognised in a number of judgments of this court.	See Pryce v Ashfield {1986) N.T.J. 704 per Nader J at p.711, where, after highlighting some of the differences, his Honour states, "The whole thrust of the Juvenile Justices Act is to provide for an environment emphasising care and reform rather than punishment."	In Simmonds v Hill {1986) 38 N.T.R. 31, Maurice J having
pointed out (at 32) that the preamble to the Juvenile
I
Justice Act states the legislator's intention that juveniles be dealt with "in a manner consistent with their age and level of maturity", said at 33:

"In the Juvenile Court the retributive aspect of sentencing is, at best, of secondary importance. Even lower in the scale, if indeed, it has any place at all, is deterring others.	The overwhelming concern is the young offender's development as a law-abiding citizen.	The Court should be at pains to ensure that its sentences do not alienate its young clients.	Particularly is this so in the case of a first offender.

Before imposing a particular sentence on a juvenile, a court must ask itself whether it is necessary to go beyond the lesser options."

These comments were cited with approval by Kearney Jin	M v Waldron (1988) 56 N.T.R. 1 at 6.

In this case, the appellant was 15 years old at the time of the offences.	They were his first offences.	He had had no prior trouble with the police.	The evidence was he had previously been of good character.		The offences were committed within a period of a few weeks.	The appellant had co-operated fully with the police to the extent of admitting prior offences of which the police were unaware.	Before the learned magistrate, counsel for the appellant submitted that the appellant was contrite and this was established by his offering restitution and apologising to one of the victims, albeit at counsel's urging.	On the other hand, the learned magistrate had adjourned the proceedings to enable the appellant to attempt to recover the property.	Perhaps not surprisingly, in view of the fact almost 12 months had elapsed since commission of the offences, the attempt was largely unsuccessful.	A solitary item, the sports bag was recovered.	The appellant refused to divulge the names of the persons to whom he had disposed of the property.	In the words of counsel, he did not wish to "dob in his mates".

The policy of the law is to encourage informing -
R v Golding (1980) 24 S.A.S.R. 161, but the method of encouragement is to allow a "discount" on the sentence that would otherwise be imposed.	It is not to increase an otherwise appropriate sentence.	In this case the learned magistrate seems to have found the appellant's refusal to be inconsistent with his claim to contrition.

In addition, there was the learned magistrate's own conclusions concerning the demeanour of the appellant.	This is a factor which his Worship was entitled to have regard to in sentencing.	However, I shall elaborate on this point later.

In view of the policy of the Juvenile Justices Act as stated in the preamble and elucidated in the decisions of this court, and the fact that this was a 15 year old offender of previously good character on what might be termed a "spree", I conclude that the sentences imposed were manifestly excessive.

Turning to the second submission advanced by the appellant with respect to Ground 2(a), it seems that the essence of the question for consideration is to determine the extent of any obligation on a sentencing judge to accord natural justice, where the view he or she takes of the sentencing facts is contrary to that advanced by counsel in the course of the plea in mitigation.

At first I perceived some difficulty with the proposition advanced by counsel for the appellant because of the well-known principle that summary conclusions of fact should not be advanced by a primary judge in the course of a trial.	In Worden v Leviton (1974) 7 S.A.S.R. 20 at 24-25, Hogarth J said:

"It is no doubt proper that a judge or magistrate should point to aspects of difficulty in a case and discuss them with the parties and invite their consideration of whether, in view of the difficulty, it may not be to their best interests to reach some terms of settlement.	But in my view he should do no more than discuss the matter with them in this way, and not attempt to come to summary conclusions of fact, or to lead the parties to believe that they are faced with a prospect of adverse findings of fact should the case proceed, which makes it desirable for them to agree reluctantly to some suggested compromise."

This was cited with approval by Mitchell Jin	Scott Pools v McCarthy (1974) 8 S.A.S.R. 539 at 544.	The reason for the prohibition is easily understood.	Counsel may be dissuaded from putting all their submissions with natural vigour in the face of indications from the trial judge that such
submissions will be fruitless.	A party may thus in effect	, be denied natural justice.	An example in a different vein
is afforded by Stead v State Government Insurance Commission (1986) 161 C.L.R. 141.

The breach that the appellant alleges here is that the learned magistrate formed an unfavourable view of the appellant and on the basis of that view rejected submissions as to the contrition of the appellant, without indicating to counsel his opinion.	Counsel were thus denied the opportunity to call evidence from the appellant or others supporting his claim to contrition.

The basis for this submission is the decision of
Bray CJ in Law v Deed [1970] S.A.S.R. 374, where his Honour points out that normally the facts supporting a plea in

mitigation are within the knowledge of the defendant alone.

He said (at 378):

"Normally that version is put forward by the defendant's counsel if he is represented or, if he is not, by himself without his being sworn.	The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think it ought to take this course without giving the defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call.	Some stories which might appear incredible when related in oratio obligua by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination."

Counsel for the Respondent referred me to Heppner v R, an unreported decision of McGarvie J, Victorian Supreme Court, 7 October 1980.	The report he referred me to is contained in "Sentencing.	State and Federal Law in Victoria'' by Fox and Frieberg, Oxford University Press, 1985 at 54.	As relevant, it recites:

"In Weaver v Samuels [1971] S.A.S.R. 116 at 119, Bray CJ stated:	'··· if the defendant alleges circumstances of mitigation peculiarly within his knowledge which the prosecution is not in a position to negative, ... his version must be accepted within the bounds of reasonable possibility ....'	That evidentiary approach to mitigating circumstances does not seem to me to be a practical one ....	In my opinion, when for the purpose of sentencing a convicted person relies on a mitigating circumstance, the Court is to treat that mitigating circumstance as present only when reasonably satisfied upon the preponderance of probability of its existence.	I take the view that principles of the burden of proof, which are wholly desirable upon the issue of guilt, are not necessarily appropriate to the process of sentencing."

As appears, the only real difference between the two approaches is the degree of satisfaction that the court must have.	The decision or limited part to which I was referred does not negate the obligation of the sentencing judge to give the offender an opportunity to put into evidence his version of the relevant facts.

Counsel for the respondent relied upon the following words of Murphy Jin	Halden v R (1983) 9 A.Crim.R. 30 at 42:
"But I know of no rule of law that can be laid down to the effect that a judge must or should inform counsel if he is disinclined to accept a version of the facts proposed by counsel from the bar table, but unsupported by the evidence."

To the extent that statement conflicts with the view of Bray CJ in Law v Deed, supra, and Weaver v Samuels, supra, I am unable, with respect, to accept it.	Even if I were not in agreement with Bray CJ on this question, I would nevertheless follow the principle established in those cases as they have been cited with approval by this court in M v Waldron, supra, at 5; Ross v Svikart (1989) 99·F.L.R. 134 at
138 per Rice J citing Georgeff v Samuels (1976) 14 S.A.S.R.
384 at 386 - see Attorney-General (NT) v Wurrabadlumba (1990) 74 N.T.R. 5 at 8, per Asche CJ.	Further support for this view comes from R v Lester (1975) 63 er.App.Rep. 144 at
146 per Bridge LJ:

"If the Trial Judge, in the face of what had been said on this appellant's behalf by Mr Shand in mitigation, was minded to draw such an inference adverse to the appellant, then at the least, in the judgment of this court, the appropriate course

for the learned Judge to have taken would have been to indicate to counsel for the appellant what was provisionally in his mind, to point out the basis of the suggested inference, and most important of all, to offer counsel the opportunity, if he was so minded, to call his client to give evidence about this matter, as to which of course he would have been open to cross­ examination by the Crown."

I conclude that in the present case the appellant was denied natural justice in not being afforded an opportunity both to give and call evidence as to contrition, good character and other matters relevant to rehabilitation.

The appeal is allowed and the sentences imposed by the learned magistrate are quashed.	The convictions should stand.	I direct that the appellant be released on a bond to be of good behaviour for a period of two years, recognisance in the sum of $500.	It is to be hoped that the appellant, having done the community service in compliance with the orders not challenged and having complied with the bond hereby imposed, will realise the error of his dishonest ways and never return to them again.