C v Gokel [1999] NTSC 93

PARTIES:	C (A Juvenile)

	v

	GOKEL, NOEL JOHN

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	JA 26/99 (9903342)

DELIVERED:	2 September 1999

HEARING DATES:	3 August 1999

JUDGMENT OF:	MARTIN CJ

CATCHWORDS:

APPEAL AGAINST SENTENCE – JUSTICES APPEAL – JUVENILE 
OFFENDER

Whether sentence manifestly excessive – whether the imposition of 
maximum statutory jurisdictional limit of detention is manifestly 
excessive – whether likelihood of breach conditions suspending detention 
relevant.

Juvenile Justice Act 1983 (NT), s 53(1)(g)

Simmons v Hill (1986) 38 NTR 31 at 33, considered
M v Waldron (1988) 90 FLR 355 at 360, applied
P v Hill (1992) 110 FLR 42, applied
Nelson v Chute (1994) 77 A Crim R 85, applied
Hansford v His Honour Judge Neesham (1995) 2 VR 233 at 236, applied

REPRESENTATION:

Counsel:
	Appellant:	Mr Phillip Strickland
	Respondent:	Mr Jack Karczewski

Solicitors:
	Appellant:	NAALAS
	Respondent:	DPP

Judgment category classification:	
Judgment ID Number:	mar99027
Number of pages:	10

Mar99027

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
C v Gokel [1999] NTSC 93
No. JA 26 of 1999

	BETWEEN:

	C (A Juvenile)
	Appellant

	AND:

	NOEL JOHN GOKEL
	Respondent

CORAM:	MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 2 September 1999)

[1]	Appeal against sentence.  On 27 April 1999 Mr Wallace, sitting as a Magistrate in the Juvenile Court at Darwin, convicted the appellant, a juvenile, upon her pleas of guilty to 14 charges.  They can be conveniently broken up into six separate episodes of offending.  A summary of the charges, the sentence imposed in respect of each, and the maximum penalty prescribed by the Criminal Code 1983 (NT) are as follows:
No.	Charges	Date	Offences	Sentence	Max/
Penalty	
1	6	3.12.98	Stealing	3 months	7 years	
2	4	20.12.98	Unlawful use of motor vehicle	3 months	2 years	
No	Charges	Date	Offences	Sentence	Max/
Penalty	
3	1,2&3	22/23.12.98	Aggravated unlawful entry of dwelling house
Stealing
Unlawful use of motor vehicle
	12 months

3 months
3 months
	10 years

7 years
2 years
	
4	13&14	26.12.98	Unlawful damage
Stealing	1 month
6 months	2 years
7 years	
5	7,8&9	3.1.99	Aggravated unlawful entry of dwelling house
Unlawful damage
Stealing	12 months

1 month
3 months	20 years

2 years
7 years	
	10&11	3.1.99	Aggravated unlawful entry of dwelling house
Stealing	12 months

3 months	10 years

7 years	
6	17&18	26.1.99	Attempt unlawful entry
Aggravated unlawful damage	3 months
3 months	3½ years
7 years	

[2]	The period of 12 months is the maximum period for which an order for detention of the juvenile may be made in these circumstances (Juvenile Justice Act 1983 (NT), s 53 (1)(g)).  The sentences are to be served concurrently, there being no power under that Act to order sentences to be served cumulatively (Bynder v Gokel (1998) 8 NTLR 91).  
[3]	The learned Magistrate proceeded to wholly suspend the sentence upon conditions that the appellant:
•	enter into a recognizance  in the sum of $1,000 to be of good behaviour for two years and that during that period she will –
(a)	not drink alcohol;
(b)	not use any dangerous drug as defined in the Misuse of Drugs Act 1990 (NT);
(c)	provide samples of her breath, blood or urine upon request by police or an officer of the Correctional Services Department;
(d)	obey all directions of a delegate of the Minister as to residence, reporting, associates, education and employment.
[4]	It was conceded upon the appeal that it was open to his Worship to impose a sentence to detention which was suspended, but it was contended that the length of the sentence was manifestly excessive.  Reliance was placed upon the circumstances of the appellant’s age, background and her pleas of guilty.  It was also put that there was a real risk of her breaching a condition of the suspended sentence, as was acknowledged by his Worship, and that she therefore faced a real prospect of having to serve the term of actual detention.
[5]	The circumstances of the offences do not need to be detailed.  They were fairly typical of their kind, entry into houses and stealing cash, jewellery, alcohol and other goods.  Those offences committed at night carried the maximum penalty of 20 years imprisonment.  On one occasion, the appellant stole a keycard from her aunt and proceeded to withdraw $290 in six different transactions from her aunt’s account.  The money was spent on alcohol, cannabis, clothing and jewellery.  The motor vehicles were taken for joy riding and none of them were damaged.  On most, if not all occasions these offences were committed, the appellant was accompanied by another or others.  The value of cash and goods stolen and damage caused to premises seemed to have totalled about $11,000.
[6]	The appellant was but 14 years old when this offending took place.  Counsel before his Worship said that, except on one occasion, the appellant was under the influence of alcohol.  Surprising as that may appear to be for one so young, it is explicable by reference to her personal circumstances which can properly be described as tragic and which are evocative of considerable sympathy.  Again it is not necessary to go into detail.  The exhibits before his Worship, being reports under the Community Welfare Act 1983 (NT) and Juvenile Justice Act, recount a long history of abuse, neglect and rejection, lack of care by parents, moving from house to house, all from about the age of 10.  She was suspended from school for misbehaviour which became evident in 1994.  
[7]	Her criminal record commenced in March 1997, and, as might be expected, a variety of sentencing options were employed.  On the first occasion she was charged with trespass, no conviction was recorded, but a “No further trouble” order made.  Similarly, in May of that year when the charges were for unlawful entry, stealing and criminal damage.  During the term of that order she offended again on four occasions by stealing and was ordered to perform 48 hours of community service work.  In August 1998 the offence was assault and a breach of the Community Service Order was also dealt with.  She was released upon a bond to be of good behaviour for 18 months under supervision.  The bond does not expire until February 2000 and the first of this series of offences was committed only four months after she entered into it.
[8]	Her response to supervision has been poor, breaking appointments for counselling and moving from place to place without notifying the authorities.  It was put that the death of her grandfather in October 1998 precipitated this most recent bout of offending.  When the reports were prepared in March this year, it appeared that the appellant had been abusing alcohol and marijuana to a significant degree, especially for someone of her age.  The author of the Correctional Services’ report was of the opinion that community service was not a sentencing option, and noted her past failure to comply with the requirements of a supervised good behaviour bond.  The prospective benefits of detention were canvassed.
[9]	At the time of sentencing the appellant was under the care of a Family Support Worker from the Aboriginal Child Care Agency.  It was reported that she had shown considerable improvement, expressing a desire to continue her education and had started turning up for her appointments sober.  However, she was still drinking and had not accepted opportunities for alcohol and drug counselling and anger management.
[10]	This was a case clearly calling for the exercise of judicial discretion in a most sensitive way, bearing in mind that the appellant was to be dealt with in the criminal law system in a manner consistent with her age and level of maturity.  (See the preamble to the Juvenile Justice Act).
[11]	The law to be applied when sentencing a juvenile (subject to any specific statutory direction) has been consistently stated in this jurisdiction and is well understood.  The overwhelming concern is the young offender’s development as “a law abiding citizen” per Maurice J in Simmons v Hill (1986) 38 NTR 31 at 33.  In M v Waldron (1988) 90 FLR 355 at 360 Kearney J. adopted what was said in R v Homer (1976) 13 SASR 377 at 382:
“The court is trying to find out what is the best means of turning this delinquent juvenile into a responsible law abiding adult and that has really nothing to do with the seriousness of the crime”
but recognising the need 
“to bring home to him a clear understanding that he is required to observe the law.  He should be kept in the community wherever that is practicable, if the need to protect the community from him does not require his removal from it.”  
(See also the remarks of Bailey J. in Yanovich v Gokel, Supreme Court, unreported, 3 February 1999).
[12]	The approach of the courts must be “cautious, patient and caring” per Mildren J in P v Hill (1992) 110 FLR 42.
[13]	Such an approach to the sentencing task does not mean that juveniles will always escape custodial sentences, suspended or not.  The mandatory sentencing regime does not apply to the appellant, she being under the age of 15.  But it would be open to the court to impose a sentence which required an order that she be detained at a detention centre for a term.  There will be cases where the offender has “come to the end of the road” per Kearney J in M v Waldron.
[14]	It was submitted that his Worship must have erred by imposing the maximum period of detention permitted when the appellant had entered guilty pleas to all charges.  Given that pleas of guilty usually lead to mitigation of penalty, the submission, if upheld, would mean that a sentence of 12 months could never be imposed in those circumstances, or indeed wherever there was an circumstance which could be taken into account in the offender’s favour.  I do not accept that proposition.
[15]	In Nelson v Chute (1994) 77 A Crim R 85 it was held, following Sultan v Svikart (1989) 42 A Crim R 15, that the restriction on the period for which a juvenile could be sentenced to detention or prison by the Juvenile Court did not mean that the maximum penalty that might be imposed is reduced from that prescribed for the offence to 12 months.  The sentence was related to the maximum sentence which could be imposed under the Code.  Provisions like s 53(1)(g) leave the statutory maximum penalty untouched, but impose on the particular sentencing court a jurisdictional limit “It imposes its own maximum not by reference to the nature of the offence and its gravity in relation to other offences, but by reference to the status of the sentencing court”, Hansford v His Honour Judge Neesham (1995) 2 VR 233 at 236.  The restriction is upon the term that the juvenile may be ordered to be detained.  It does not restrict the court in its consideration of the factors which go to aggravate the nature of the offence and increase the sentence or mitigate the penalty so as to reduce it.  In my opinion a sentencer considering that an appropriate sentence, without giving effect of mitigation, should be in excess of 12 months, might order detention for 12 months or less after taking into account the mitigating circumstances.  A sentence might also be partly or wholly suspended in recognition of the value of the plea.
[16]	The main complaint raised on behalf of the appellant is that if she fails in abiding by the term of the bond she will be at risk of having the order for suspension revoked and obliged to actually serve a sentence of detention.  That is so, but it does not inevitably follow from a breach.  The provisions of s 53(4A)(4B) (4C) and (4D) rightly repose wide discretionary powers in those responsible for the juvenile and the court.
[17]	I accept the proposition that his Worship would have erred had he picked upon the 12 month term of detention because he proposed to suspend it, but I am not satisfied that that is what his Worship did.
[18]	His Worship’s sentencing remarks were very extensive.  He noted the pleas of guilty, the appellant’s age, and the contents of the two reports detailing her most unsatisfactory life history.  He referred to the objective circumstances of the offending in some detail, especially the unlawful entry and stealing activities, including the impact upon occupiers.  He correctly regarded the offending as serious, paid regard to the maximum penalty of 20 years prescribed and the number of offences.  He mentioned the appellant’s prior record as being not “all that bad”.  Plainly his Worship was sympathetically impressed by the appellant’s personal circumstances.  Consideration was given to the options his Worship considered to be realistically available, and he weighed up the relative advantages and disadvantages of suspending the sentence of detention which he proposed.  He determined, on balance, to implement the course adopted.  In selecting the period of 12 months, his Worship said it was the most he could do, indicating that if he had had jurisdiction, he might have imposed a longer term.
[19]	As can be seen, the conditions attaching to the bond are stern.  They require the appellant to submit to strict supervision and direction, but are plainly purposed upon reform and rehabilitation in the community under a regime of care which was already in place and which had held out some hope of success.  If obedience to the conditions was secured, the community would in all likelihood be protected for the period of the bond and beyond.
[20]	This was a most difficult sentencing task.  On the one hand serious crimes, on the other, almost incredible personal circumstances in urban society, the need for strong personal deterrence was plain, but the principles attaching to the sentencing of juveniles could not be disregarded.
[21]	I am not persuaded that the sentence was manifestly excessive.  To some it may indeed appear to be lenient.  To my mind it was the best his Worship could do in the interests of this girl and the community.  Any failure on her part to take the opportunity offered ought to be able to be quickly discovered and dealt with by whatever is the appropriate means.
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