PARTIES:	RODDENBY, Daniel

		v

		MURPHY, Raymond Michael
					MATERNA, Robert Bruce
					CARLON, Neale

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE 			NORTHERN TERRITORY 				EXERCISING TERRITORY 			JURISDICTION

FILE NO:	JA 29, 30, 31 & 32 of 1997

DELIVERED:	18 July 1997

HEARING DATES:	6 May 1997

JUDGMENT OF:	MARTIN CJ

CATCHWORDS:

Criminal law - Appeal against sentence - Application to reduce sentence - Juvenile offender - Extensive criminal record - Previous breaches of bonds and undertakings - Magistrate referred to what had heard around town about offender and siblings but information not applied in such a way as to impose an inappropriate sentence - Applicant displayed continuing disobedience to the law and lawful instruction - No miscarriage of discretion -

Juvenile Justice Act (NT) 1983, ss53(1)(g), 53(4B)&(4C) & 58
Criminal Code (NT) 1983, s210
Trespass Act (NT) 1987, s5.

REPRESENTATION:

Counsel:

	Appellant:	Mr Conidi
	Respondent:	Mr Adams

Solicitors:

	Appellant:	NTLAC
	Respondent:	DPP

Judgment category classification:	C
Judgment ID Number:	mar97031
Number of pages:	9

mar97031

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. JA 29, 30, 31 & 32 of 1997

		BETWEEN:

		DANIEL RODDENBY
			Appellant

		AND:

		RAYMOND MICHAEL MURPHY
					ROBERT BRUCE MATERNA
					NEALE CARLON
			Respondents

CORAM:	MARTIN CJ.

REASONS FOR JUDGMENT

(Delivered 18 July 1997)

	This is an appeal against orders committing the appellant to detention pursuant to provisions of the Juvenile Justice Act (NT) 1983 (leave to appeal is not required - s58).  

	At about 10am on 10 December 1996, the appellant went to the Katherine South Primary School, entered the grounds, removed a bicycle and rode it to the low level crossing.  He was seen, positively identified, and the police being notified, apprehended him at the crossing.  In his father’s presence he declined to participate in any interview with the police.  The bicycle was recovered undamaged.

	He pleaded guilty before the Juvenile Court sitting at Katherine on 26 February 1997 to having trespassed unlawfully on enclosed premises, namely the grounds of a school, contrary to s5 of the Trespass Act (NT) 1987 and to having stolen the bicycle, contrary to s210 of the Criminal Code (NT) 1983.  The maximum penalty for the former offence being $2,000 and imprisonment for six months, and for the latter, imprisonment for twelve months (s53(1)(g) Juvenile Justice Act).  For that he was convicted and sentenced to an aggregate sentence of four months detention (not prison as some of the records indicate).  Bearing in mind that at the time the offender was but thirteen years old (born 26 March 1983) the sentence appears to be excessive, but, as might be expected, that was not the whole story.  

	Notwithstanding his age, the appellant’s criminal record was extensive.  On 29 October 1993 (aged ten) he had been found guilty of stealing, but the Court did not proceed to conviction.  By 11 November 1994 (aged eleven) he had offended on eight further occasions involving stealing, unlawful entry into premises and causing criminal damage.  For that he was sentenced to a total of 104 hours community service and sundry terms of detention of one month each, suspended upon his entering into a bond to be of good behaviour for nine months.  The brief information available as to those sentences include a notation indicating that during the period of the bond he was to be subject to the supervision of the Director of Correctional Services and under a “curfew 9pm to 7am”.  There was no indication that he did not abide by the conditions of the Community Service Order or bond.  Just when he reoffended again is not known to this Court, but on 2 July 1996 (aged thirteen) he went before the Court again for stealing, unlawful entry, unlawful possession (two counts).  Again, the offences were found proved, but without conviction, he was ordered to be of good behaviour for a period of eighteen months and was released, those orders being made in respect of three of the offences.  The conditions of the bond are set out hereunder.  The stealing charge was found proved, but no conviction recorded.

	By November of that year he had stolen property again, for which he was convicted and ordered to perform forty hours of community service.  The breach of the bond entered into in July was found proved, but no consequential order was made.  However, the records show “warned”.  It was less than a month after being dealt with on that occasion that the appellant committed the instant offences.  There was also before the learned Magistrate on this occasion a detailed report concerning the appellant’s breaches of the terms of the good behaviour bond undertaken in July 1996.  It relevantly contained conditions that he accept supervision of the Director or his delegate, obey all reasonable directions about residence, education, associates, reporting, curfew and counselling, and that until otherwise directed, he continue to attend counselling at Family Link, an organisation at Katherine.  That organisation provided to the appellant a list of appointment times and telephone numbers to ring to make appointments if he was not available, but as of the end of July 1996 he had not attended any counselling sessions nor had he contacted the organisation.  He was then given the counsellor’s telephone number and directed to contact Family Link as soon as possible.  By 14 August he had not responded, and he was directed to attend there immediately to make an appointment.  He responded on that occasion.  In mid September he stated that he had not attended counselling sessions as he kept forgetting, and the organisation arranged to meet him at school, but as at 10 December he had attended only three counselling sessions despite numerous directions to attend.  In summary, the report from Family Link asserted that throughout the year he had failed to keep appointments.  To improve his attendance rate, appointments were scheduled at school, but he attended only three sessions and others were missed.  On 19 November 1996, the appellant was placed under a curfew by his supervising officer which required him to be at his parents house between the hours of 9.30pm and 6am, except on Fridays, when the curfew commenced at 11pm, unless in the company of one of his parents or an adult approved by them.  He had breached the curfew on a number of occasions when found at large in the streets of Katherine during the curfew hours.  During that period of time oral and written warnings were of little avail.  There is no indication that his parents took any interest in ensuring his compliance with the undertakings and the bond, although he remained living with them and his siblings in Katherine.  

	The breaches of bond, as alleged, were admitted by counsel on the appellant’s behalf and reasons given for some of them.  There is no record that his Worship expressly revoked the order that the appellant be of good behaviour, but given the orders he made, it must be implied that he did so, and that he had found that the appellant had failed without reasonable excuse to comply with the orders.  He proceeded to deal with the offences in respect of which the previous orders had been made as if the Court had just found him guilty of them (s53(4B)& (4C)).  Without proceeding to conviction, it was ordered that the appellant be detained at a detention centre for a total of two months and fourteen days to run from the date of the order, that is, concurrently with the order for detention for four months for the trespass and bicycle stealing.  One of the offences was for being in possession of a bicycle reasonably suspected of having been stolen, another for unlawful entry of a building with intent to steal, and stealing a television set and refrigerator, valued at $1,000 (in the company of others) and the other for having in his possession fishing rods, reels and a tackle box reasonably suspected of having been stolen.

	It is important to note that he had been released on his undertaking to be of good behaviour for eighteen months in July 1996.  By November he had breached that bond and had been given warning which clearly did not impress itself upon him because it was only about a month later that he entered the school yard and took the bicycle which brought him back before the Court in February.

	Prior to sentencing on 27 February, his Worship had before him a report from a senior caseworker at the Northern Territory Correctional Services at Katherine who confirmed that he had recently completed community service orders, but “nevertheless, Daniel has given no indication whatsoever that he has any personal commitment or interest in abiding by orders of the Court, directions of this Service, his parents or any other authority figure”.  The appellant was assessed as being unsuitable for a supervised order, but suitable for community service work and it appears that such work was available.

	At the commencement of the submissions on the plea, his Worship indicated that given the recency of the warning prior to the stealing of the bicycle, he was considering a custodial sentence, but indicated that if arrangements could be made for the appellant to be placed at a boarding school he would not proceed in that manner.  (Although not stated, it seems that the Child Welfare authorities would pay the cost).  The appellant’s counsel emphasised the objectives behind the Juvenile Justice Act with particular reference to rehabilitation, and his Worship noted the effect which confinement to a detention centre may have, “There’re not much different from boarding schools - in many respects”.  I note, in passing, that s64 of the Juvenile Justice Act provides that the superintendent of a detention centre shall promote programmes to assist and organise activities of detainees to enhance their well being; encourage social development and improvement of the welfare of detainees and supervise their health.  At the instance of counsel for the appellant, his Worship noted a report provided to the Court, prepared in May 1996, which referred to the extensive involvement of Family, Youth and Children’s Services with the Roddenby family generally, comprising the appellant’s parents and four other children.  For reasons noted in the report, the ability of the accused’s parents to “apply appropriate boundaries to their children’s behaviour” was impaired.  Notwithstanding the unsatisfactory family background, the author of the report said that the appellant presented as an extremely independent thirteen year old, quite capable at school when he put his mind to it, but that he did not display an understanding of the offences that he had committed.  He suggested the police were “picking on him”.  As to the circumstances of the present offences, it was put on behalf of the appellant that on the day in question he was out with a couple of friends, his own bicycle was out of action, they were off to have a swim and he was doubling up on one of his friend’s bicycles.  As they passed the school yard the idea came into his head to go and take the bicycle for his own use.  According to the appellant, he had in mind to take the bicycle back after he had had his swim.

	Despite the poor family background, there is nothing to suggest that any of the accused’s criminal activities had been driven by need for sustenance or shelter.  

	His Worship disclosed that he was aware from things said to him outside Court that concerns had been expressed about the appellant and other members of his family.  His Worship remarked that after all Katherine was a “small town” (on latest count about 11,000 people), and this Court is entitled to take notice of the fact that his Worship had been permanently resident as the Magistrate in that town for a significant time and would undoubtedly be told things or have things mentioned in his presence which might be thought would possibly affect his impartiality.  On this occasion he disclosed the things he had heard, and counsel for the appellant quite specifically said that he was not asking his Worship to disqualify himself.  His Worship said that of course he must put comments like that out of his mind.  There is no reason to suggest he did not.  

	His counsel submitted that there were signs that the appellant was maturing and there were positive signs for his future in the fact that he had made an effort to take himself off to school on occasions, and that he had recently found an outlet in boxing in which he was doing quite well.  In summary, the submission was that the appellant had not reached the stage where his offending should be visited with detention.  A further order that he undertake community service would be appropriate.  

	His Worship’s remarks on sentencing deal with most of the matters already mentioned.  His Worship did, however, refer again to what he had heard around the town about “those Roddenby children”, but in their context it cannot be found that his Worship applied the information which he had received outside Court in such a way as to impose an inappropriate sentence.  He spoke more in the manner of somebody chiding a child for developing a bad reputation and not doing anything to overcome it.  He decried the fact that the appropriate arrangements could not have been made to have the appellant placed in boarding school, but it is not indicated that his sentence of the appellant to a period of detention was by way of substitution for that.  It was something which was deserved, bearing in mind the appellant’s history of offending, breach of bonds and the failure to heed the warning recently given.

	I have gone into this matter in some detail, because it is undoubtedly a serious thing to order that a person of the appellant’s age be detained in custody.  But, occasionally, as his Worship thought here, such action is necessary with a view to impressing upon the juvenile the fact that continual offending and failure to respond to leniency will ultimately be dealt with by the most serious sanction.  Successive orders that the appellant undertake community service had not operated as a deterrent and his undertakings upon entering into a bond of good behaviour had been breached.  He had been given numerous opportunities to comply with the directions which he had been given, none of which it is complained were unreasonable.  He displayed a continuing disobedience to the law and lawful instruction.  The appellant was saved the significant adverse effect which a recorded conviction would have had upon his future.  It is plain that there was no offset against the punishment which the Court felt obliged to impose by reason of any imposed by his parents.  The punishment imposed was undoubtedly designed with personal deterrence in mind.  The appellant had had the benefit of incentives to be of good behaviour, but to no avail.  I do not accept the submission made upon appeal that the previous experiences of the appellant in the Juvenile Justice system were unlikely to have impressed themselves upon him as a real warning and deterrent.  There was no evidence to support that proposition.

	I am not persuaded that his Worship’s discretion miscarried.  These are the reasons for the order dismissing the appeal.
-----------------------------------------------------------