£±._@_juvenile) v WALDRON

Supreme Court of the Northern Territory of Australia. Kearney J.
31 May and 3 June 1988 at Darwin.

SENTENCING - Juvenile Court - plea of guilty - Court not accepting version of facts put by defendant's counsel - failure to afford defendant an opportunity to support his version by evidence - whether sentence vitiated by error in ascertaining sentencing facts.

SENTENCING - Juvenile Court - approach to punishment in Juvenile Court - whether fundamentally different from approach in Court of Summary Jurisdiction - objectives of Juvenile Justice Act 1983 (NT).

SENTENCING - circumstance of mitigation - whether assistance to Police a mitigating factor - circum­ stance of aggravation - when lying to Police an aggravating factor.

STATUTORY INTERPRETATION ·· whether 'probation' implies condition of good behaviour - whether sanction pro­ vision  applicable  only when express condition	of probation is breached - Juvenile  Justice  Act 1983 (NT), s.53(1)(f) and (4).

Cases followed:
Hallam v O'Dea (1979) 22 SASR 295
Law v Deed (1970) SASR 374
Newton (1982) 77 Cr App R 13
R v Homer (1976) 13 SASR 377
Simmonds v Hill (1986) 38 NTR 31
R v Vecsey (1962) SASR 127
Wilmott (1977) 1 Crim LJ 216
Godfrey (1967) 51 Cr App R 449
King (1980) 82 er App R 120
R v Golding (1980) 24 SASR 161
R v Hegwood (1969) Crim LR 209
R v Perez-Vargas (1986) 8 NSWLR 559

Cases referred to:
Ahmed (1984) 80 Cr App R 295
Griffiths v R (1977) 137 CLR 293
R v Gardiner (1982) 140 DLR (3d) 612

Counsel for Appellant Solicitor for Appellant

Counsel for Respondent Solicitor for Respondent

C.C.J. Dowd NAALAS

C.F. Jenkins Solicitor for the NT

kea8800S9
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRAL1.A
No.281 of 1988

IN THE MATTER OF
the Juvenile Justice Act
AND IN THE MATTER OF
an appeal from the Juvenile Court at Darwin
BETWEEN:
M (a juvenile)
Appellant

AND:
TONY GLEN WALDRON
Respondent

CORAM:	Kearney J.

REASONS FOR DECISION
(delivered 3 June 1988)

This is an appeal under s.58 of the Juvenile Justice Act against the severity of 2 sentences imposed on the appellant by the Juvenile Court at Darwin on 12 April 1988.

On that day the appellant pleaded guilty before the Court to unlawfully using a motor vehicle on 18 March 1988. That is an offence under s.218 of the Criminal Code and carried a maximum punishment for the 15-year old appellant

of detention or imprisonment for 6 months, under s.53(1)(g)(i) of the Juvenile Justice Act. The Court has wide powers of disposition under s.53; it ordered that he be detained for 2 months to be served cumulatively upon the sentence of 1 month referred to below.

In the course of the proceedings on 12 April the appellant by his Counsel admitted that by virtue of the offence he had committed on 18 March he was in breach of an order made on 24 November 1987 by the Juvenile Court at Darwin, placing him on probation for a period of 12 months. For the breach of probation, the Court sentenced him to 1 month's detention. I deal  first with the appeal against this sentence.

The breach of probation

The order of 24 November 1987 was made under s.53(1)(f) of the Juvenile Justice Act, after the appellant had pleaded guilty to the following 2 charges:-

That on 13 October 1987 he had stolen a tyre and rim to the value of $30.  That is an offence under s.210 of the Criminal Code; he faced a maximum punishment of detention or imprisonment for 6 months.

That on the same day he had trespassed unlawfully on enclosed land. That is an offence under s.5  of  the Tr spass Act and he faced the same maximum punishment as on the first charge.

The order was that the appellant be placed on probation	for
12 months and be subject to the following 3 conditions during that time:-

that he be under the supervision of the Minister's delegate (see condition (iii) in s.53(1)(f), and s.4(1)); and

that he obey all reasonable directions of that delegate as to reporting (see condition (iii) in s.53(1)(f)), and as to his residence, employment and education (see condition (iv) of s.53(1)(f)).

that he perform community service work for 32 hours (see general condition (vi) in s.53(1)(f)).

He duly carried out that worl:. I consider that it is permissible to attach such a condition to a probation order under condition (vi), despite the specific provision for community service work in s.53(1)(e).

Mr	Dowd	submitted	to	the	learned	Magistrate	on
12 April that the offence of 18 March "was not a calculated breach of probation".  It w&s admitted that the appellant had not fully observed the reporting condition imposed on him on 24 November and that he had been warned that if he failed to observe that condition once more he would be charged for breach of the condition.

It is clear that the sole reason the Juvenile Court found on 12 April that the appellant was in breach of the probation order of 24 November was that he had committed an offence on 18 March. For the reasons which follow, I consider that the appellant's commission of that offence did not constitute a breach of the probation order, because it did not constitute a breach of any of the 3 conditions of his probation.

Section 53(4) of the Act is the statutory provision which imposes a sanction for what in the ordinary but loose

use of language is called a breach	of	probation. 53(4) provides:-

Section

"{4) Where the Court makes an order under sub-section (1){d) or (e), under sub-section (1)(f) places the juvenile under probation subject to conditions or under sub-section (3) suspends all or part of a sentence subject to conditions, and the juvenile breaches the order or a condition to which his probation or suspension of sentence is subject, the Court shall not impose on the juvenile, as a result of his so breaching the order or condition, a penalty greater than the maximum penalty it could have imposed on him in respect of the original offence."

Despite	the fact that s.53(4) is expressed negatively
- "... shall not impose     a penalty greater than ...'' -  it is clear, I think, that it provides for a sanction to be imposed when certain situations arise. For example, had it been  a  condition of the probation, under condition (vi) of
s.53(1)(f), that the appellant be of good behaviour for  the
12  months  then  clearly  his  commission of the offence on
18 March would have meant that he had thereby breached that condition of the order, and he would have been exposed to a sanction under s.53(4). The question is, of what was the appellant  placed  in  breach,  in  relation to the order of
24   November, by committing the offence  on  18  March?   The
answer turns upon the proper construction of s.53(4). In my opinion in its application to s.53(1)(f), it reads as follows:-

"Where the Court ... under sub-section (1)(f) places the juvenile under probation subject to conditions and the juvenile breaches a condition to which his probation ... is subject, the Court shall not impose on the juvenile, as a result of his so breaching the
... condition, a penalty greater than the maximum penalty it could have imposed on him in respect of the original offence."

When placed under probation under s.53(1)(f) a juvenile is required to abide by the conditions "one or more" of which must be imposed, and subject to which he is released on probation. The Court's power under s.53(1)(f) is to place him under a conditioned probation. Section 42(4) then

provides	that	a him to a penalty.

breach of one of those conditions exposes That is to say, in its application to	an

order	made	under	s.53(1)(f)	placing	a	juvenile	under
probation, s.53(4) provides for a sanction only when "the juvenile breaches ... a condition to which his probation ... is subject". If the (later) behaviour of the juvenile does not amount to a breach of one of one of the conditions of his probation, it does not affect his probationary status. The  word  "order" in s.53(4) relates only to s.53(1)(d) and
(e) and has no application to s.53(1)(f); a juvenile may be in breach of an order made under s.53(1)(d) or (e), but cannot, per se, be in breach of an order placing him under probation. In other words, there is no implication in the word "probation" in s.53(1) (f)       that he be of good behaviour.

It is obvious that the commission of	the	offence	on
18 March did not involve a breach of any of the 3 conditions of probation (p.3) to which the appellant was subject. Accordingly, the admission made through his Counsel that he was in breach of his probation order was wrongly made; he was not in breach. The admission was made because of a misapprehension of the law. It should not have been accepted. The appellant was wrongly convicted of a breach. The Notice of Appeal is in fact framed as an appeal against conviction. In the circumstances, the appropriate order, which I now make, is that the appeal against conviction is upheld,  the  conviction  of  12 April  1988  for  breach of

probation is quashed and the penalty of 1 month's	detention imposed for that breach is set aside.

This conclusion is reached as a result of statutory construction. As a matter of history, release on probation stems from the old common law practice in which offenders were released on condition that they kept the peace and came up for judgment if called upon; see Griffiths v The Queen (1977) 137 CLR 293 at 321-323 per Jacobs J, and 342-343 per Aickin J. The commission of  a later offence involved a breach of the condition to keep the peace. This perhaps explains the commonly-held view that a person placed under probation pursuant to s.53(1)(f) is required by virtue  of the very fact that he is under probation, to be of good behaviour, so that if he commits an offence during that time he is necessarily in breach of his probation. However, s.53 of the Juvenile Justice Act provides for conditions of probation and sanctions for breach with particularity and precision. Section 53(1)(a) has close connections with the old common law release on condition to keep the peace, while s.53(1)(d) provides for release on a good behaviour bond; commission of a further offence during the period specified attracts a sanction for the original offence under s.53(2) and (4) respectively. The various possible dispositions in s.53(1) and the sanctions for breach in s.53(2) and (4), are specifically and distinctly spelled out.

The sentence for unlawful use

I turn to the appeal against the severity of the sentence of 2 months detention imposed on 12 April 1988 for the unlawful use of a motor vehicle on 18 March.

The facts which the appellant admitted were as follows.

On 18 March he and a person unknown (herein "X") travelled from Darwin to Batchelor in a Holden utility. X drove. The appellant was a passenger. X had taken the vehicle from Batchelor School on 17 March and apparently had driven it to Darwin and hidden it in the bush in the Palmerston area.  He stayed with the appellant that night. It was put to the Court by Mr Dowd, and not sought to be controverted by the Police, that X had told the appellant, who believed him, that the vehicle had been lent to him. On the way to Batchelor, Mr Dowd said, the appellant found out from X how he had in fact acquired the vehicle. The appellant thereafter remained as a passenger in the vehicle and on reaching Batchelor helped X to hide the vehicle in the bushland nearby. It is the fact that the appellant continued to ride to Batchelor as a passenger in the car, after he had learned that X had unlawfully taken the vehicle, that the appellant admits to as constituting his unlawful use of the vehicle.

Not surprisingly, the learned Magistrate viewed part of this account with considerable scepticism; however, he did not indicate that view until he delivered judgment - see the first sentence of the judgment on p.11. Nevertheless, the above account constituted the facts placed before the learned Magistrate for sentencing purposes, as admitted to by the appellant. The Magistrate did not warn Mr Dowd that he was not inclined to accept a part of the appellant's version which was vital to the assessment of the appellant's degree of culpability. In general, where there is a dispute as to the sentencing facts and the defendant's version is not such as to be necessarily rejected, it should be acted on by the Magistrate; see Wilmott (1977) 1 Crim. L.J. 216. But a Magistrate may not be prepared to accept the version of the facts put forward by Counsel for the defendant; in that case, he should inform Counsel accordingly, and indicate that he would require the version to be supported by evidence - see R v Vecsey (1962) SASR 127. If he then hears evidence, and substantial conflict remains which he cannot resolve, he should as far as possible accept the defendant's version since doubt must be resolved in his favour; see Newton (1982) 77 Cr. App. R. 13 and the review of the authorities in R v Gardiner (1982) 140 D.L.R. (3d) 612 at 641-650. At the end of the day it is for  a sentencing Magistrate to decide which version of the facts he accepts, but he is obliged to give the defendant the opportunity to support by evidence the version of the facts

put forward by his Counsel, if he does not accept it; see Law v Deed (1970) SASR 374 at 378, and the illustration provided by Ahmed (1984) 80 Cr. App. R. 295. In this case, the failure to afford the appellant that opportunity was an error which vitiated the sentence imposed.

The appellant was questioned by Police at Batchelor the next day, 19 March, as to the whereabouts of X; he told the Police that he had not seen X for months. The learned Magistrate noted the appellant's right to remain silent when questioned by the Police but treated his admitted lie to the Police as -

"	of	very great moment.	The time soul was when he was spoken to by the first instance" (transcript, 12 April,

to unburden Police	in p. 5) •

his the

As to this observation, it may be noted that providing assistance to the Police is a matter which goes to mitigation of sentence; see R v Perez-Vargas (1986) 8 NSWLR
559 at 562-565, R v Golding (1980) 24 SASR 161 and King (1985) 82 Cr. App. R. 120. Equally, lying to the Police if based on a deliberate defiance of the law may be a material aggravating factor when sentencing; see R v Hagwood (1969) Crim. L.R. 209 and cf. Godfrey (1967) 51 Cr. App. R. 449 at 452.

Later the Police spoke to the appellant again, about the unlawful use of the vehicle; he admitted to having unlawfully used it but declined to answer any questions about the offence. It appears that he then spent some  4 days at Malak House before he was bailed on 22 March.

Mr Dowd put the appellant's background and circumstances with care and in detail to the learned Magistrate. The appellant is currently living with his mother and the man he regards as his stepfather.  His parents separated some 4 years ago when he was 11 years of age and after that and until recently, it is clear, his life was disturbed as he was shuffled around among relatives. He

is now back again with his	mother. school	after	completing Year 10.

He	stopped	going	to In April 1984, when aged

11, he was placed on probation for 12 months for stealing, interfering with a motor vehicle, and breaking entering and stealing. Three and a half years later, in October 1987, he committed the offences for which he was placed on 12 months probation in November. Some 4-5 months later he committed the present offence.

After	the	plea in mitigation, the learned Magistrate delivered judgment extempore, in the following terms:-

"Well, [name], I find it somewhat hard to believe that a person whom you believed had [been] loaned the vehicle would hide it in the bushland and you must be very naive if you really believed that that vehicle

was legally in the possession of your  colleague. Also, I take into account all that has been put to me concerning you but you have quite bluntly come to the end of the road. You were placed on probation. A short time later you offend again.

I will deal first with the probation.  You admitted the breach of that. You are convicted and  sentenced to serve 1 month's detention. On the unlawful use of motor vel1icle, you are convicted and sentenced to serve 2 months detention cumulative and it is recommended that you serve that time at the Wilderness Camp. Is that clear? Sit down there."

As noted earlier the judgment is vitiated by error in its approach to ascertaining the facts upon which the appellant should have been sentenced.  More fundamentally, it appears to me with respect to evince an approach to the punishment of a juvenile which does not accord with the approach required by the Juvenile Justice Act. In  Simmonds v Hill (1986) 38 NTR 31, Maurice J dealt in detail with the special regime which the Act provides. The preamble states that the Act provides for the Court and its procedures -

"  with  the intention that juveniles be dealt with in the criminal law system in a manner consistent with their age and level of maturity " (emphasis mine).

His Honour pointed out at p.33 -

"In the Juvenile Court the retributive aspect of sentencing is, at best, of secondary importance.
The overwhelming concern is the young offender's
development as a law-abiding citizen
Before imposing a particular sentence on a juvenile, a court must ask itself whether it is necessary to go beyond the lesser options."

I respectfully agree. The Juvenile Justice Act sets up a non-punitive treatment system, the object of which is to ensure that the juvenile becomes a responsible, useful and law-abiding member of the community.

Mr Dowd referred me to the leading case of Hallam v O'Dea (1979) 22 SASR 295, which makes it clear that the principles on which a Juvenile Court should select the most appropriate penalty are fundamentally different from those applied in a Court of Summary Jurisdiction. As was pointed out in R v Homer (1976) 13 SASR 377 at pp.382-383:-

''  in the case of a juvenile ... 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 got nothing to do with the seriousness of the crime ... and no useful comparison can be made between an order made under a non-punitive system and a sentence imposed on an adult."

In its difficult task of deciding upon the appropriate disposition I consider that the Juvenile Court should always bear in mind the need to preserve and strengthen the juvenile's relationship with his family (and that it is generally desirable that he remain in his own home) as well as 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.

In this case the learned Magistrate applied the most severe type of disposition (other than imprisonment) of the
7 dispositions provided for by s.53. He adopted this approach because he considered that the appellant had "come to the end of the road", in that he had offended again shortly after being placed on probation. That is a proper and common approach to dealing with adults. It is clear, I think, that only in a bad case could a court properly conclude that a 15-year old juvenile has "come to the end of the road" so far as non-custodial penalties are concerned. One would expect to find a far worse record than that of the appellant and a far higher degree of culpability in the offence charged. Neither the circumstances of his participation in the offence of 18 March, nor his prior record, warranted a sentence of detention being imposed. No doubt the error in the approach to sentencing mentioned earlier led the learned Magistrate to approaching sentence on a basis that the appellant was more culpable than was established by the version of the facts to which he had admitted.

The appeal against severity of sentence must be upheld and the sentence of 2 months detention set aside. In lieu thereof the appellant's conviction is affirmed; he is placed under probation for 12 months subject to the following conditions which will apply during that time:-

that he be under the supervision of the Minister and report to a person nominated by the Minister at the places and times when he is required to do so by that person;

that he obey all lawful directions given to him by that person including any directions as to his
	residence, employment and education;		

3)	
that he perform a total of 40 hours community directed by that person; and	
work	
as	

(4)	
that he be of good behaviour.