ANNE MARIE QUINN
TITLE OF COURT: Court of Summary Jurisdiction
FILE NO(s): 9905134
DELIVERED ON: 25 February 2005
DELIVERED AT: Darwin
HEARING DATE(s): 2 February 2005
JUDGMENT OF: Jenny Blokland
Proceedings to re-open after sentencing error – Sentencing Act (NT) s 112; Juvenile Justice Act (NT) s 57A; Crimes Act (CW) s 20C; Melville v The Queen  NTSC 56; Siganto v The Queen  159 ALR 94.
Complainant: Ms Curnow
Defendant: Ms McAdam
Complainant: Director of Public Prosecutions
Defendant: MIWATJ Aboriginal Legal Service
Judgment category classification: B
Judgment ID number:  NTMC 010
Number of paragraphs: 15
IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
ANNE MARIE QUINN
REASONS FOR DECISION
(Delivered 25 February 2005)
MS BLOKLAND SM:
Reasons for Decision
1. This is an application pursuant to s 112(1) Sentencing Act NT to re-open these proceedings. On 2 November 2004 sitting as the Court of Summary Jurisdiction, Nhulunbuy I sentenced the defendant Anne Marie Quinn for two offences against s 1347 of the Social Security Act 1991 after her plea of guilty. I convicted Ms Quinn and released her on a recognisance in the sum of $1,000 conditioned she be of good behaviour for one year pursuant to s 20(1)(a) of the Crimes Act (CW).
2. Count one covered offending between 24 February 1998 and 21 April 1998. Count two covered offending between 29 April 1998 and 17 November 1998. Essentially in relation to count one the offending concerned Ms Quinn receiving the full “Youth Training Allowance” and in relation to count two, the “Newstart Allowance”, when she was in receipt of Abstudy. Essentially the defendant was only entitled to part-payment only of those allowances due to her receipt of Abstudy.
3. The amount of over payment due to the defendant’s actions was $4,809.27. Significant matters of mitigation were put by defence counsel, the thrust of the submissions being that I ought not proceed to impose a conviction. Matters drawn to my attention were the difficult circumstances the defendant found herself in at the time of committing the offences; her subsequent rehabilitation in that she is now a fully qualified health worker; the almost total repayment of the moneys; the age of the offences (occurring as they did in 1998) and the age of the defendant. I was told in submissions, (after 2 November), that defence counsel did mention that the defendant was 17 at the commencement of the offending. The defendant’s youth, in a general sense was taken into account and was one of the reasons I imposed a good behaviour bond.
4. It is related to this last factor concerning youth that I re-listed the matter on 3 November 2004 at Nhulunbuy after the defendant had entered the bond the day previously. As I explained to both counsel on 3 November, I had checked orders made on 2 November 2004 and noticed the defendant’s date of birth and calculated that she was 17 and therefore, at least under Northern Territory law was a juvenile for sentencing purposes for the first part of the offending. As I explained to both counsel, I had not appreciated this matter when sentencing Ms Quinn and although I took into account ”youth”, in my mind I had not appreciated she was a juvenile throughout most of the offending covered by count one. (Ms Quinn turned 18 on 9 April 1998). By was of explanation, almost without exception, within the Northern Territory, juveniles are sentenced according to procedures and obtain the benefits of the philosophy of the Juvenile Justices Act.
5. Regrettably, although I ordered the transcript of proceedings for 2 November 2004, the proceedings have not been transcribed and I have been advised there is a defect in the tape and there is no record of that day’s proceedings. In any event, I was concerned that there was no attention drawn to the fact that the defendant was a juvenile (as defined in the Juvenile Justices Act (NT) for much of the offending. I was concerned I may have been in error due to the failure to appreciate that matter. It was certainly not the subject of submissions on 2 November 2004.
6. On 3 November 2004 I explained this difficulty to both counsel. Ms Curnow for the Director of Public Prosecutions (CW) assured me when I re-listed the matter on 3 November 2004, that by virtue of s 20C Crimes Act (CW), the court may sentence either under the provisions of the Crimes Act (CW) or the Juvenile Justice Act (NT). I accept the discretion exists as submitted by Ms Curnow. The existence of the discretion was not adverted to in the hearing on 2 November 2004. Mr Curnow submitted the parallel discretion appears at s 57A Juvenile Justice Act (NT).
7. During the course of submissions on 3 November 2004, in adverting to a possible sentencing error, I suggested Ms McAdam, (who appeared for Ms Quinn) may wish to consider an appeal or request a re-opening of the proceedings under the Sentencing Act (NT).
8. On behalf of Ms Quinn, Ms McAdam filed an application to re-open the proceedings pursuant to s 112 Sentencing Act (NT). The relevant part reads as follows:
“s 112 Court may re-open proceeding to correct sentencing errors
(1) Where a court has in, or in connection with, criminal proceedings (including a proceeding on appeal) –
(a) imposed a sentence that is not in accordance with the law; or
(b) failed to impose a sentence that the court legally should have imposed,
The court (whether or not differently constituted) may re-open the proceedings unless it considers the matter should more appropriately be dealt with by a proceeding on appeal.
(2) Where a court re-opens proceedings, it –
(a) shall give the parties an opportunity to be heard;
(b) may impose a sentence that is in accordance with the law;
(c) may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b).
(3) A court may re-open proceedings -
(a) on its own initiative at any time; or
(b) on the application of a party to the proceedings made not later than –
(i) 28 days after the day the sentence was imposed; or
(ii) such further time as the court allows
9. The question is whether, in the circumstances of this matter, I ought to entertain the application to re-open. The DPP (CW) opposes the application on the grounds that there was no error of the type contemplated by s 112 Sentencing Act (NT). The DPP (CW) argues that the sentence that was imposed was in accordance with law by virtue of s 20C of the Crimes Act 1914 and s 57A of the Juvenile Justices Act effectively allowing the court to hear the matter regardless of the fact that the defendant was a juvenile for part of the offending. Further, the DPP (CW) argues that offences such as those committed by the defendant are serious and can attract imprisonment and that the subjective factors relevant to the defendant were appropriately taken account of. Further, it is argued that pursuant to s 112(1) Sentencing Act I should find that any asserted error should more appropriately be dealt with by a proceeding on appeal. It is argued that as I am functus officio and as the sentence was made according to law, I should not attempt to correct the sentence.
10. Although I appreciate the DPP’s position I reject the arguments for the following reasons. Firstly, although the relevant provisions of the Crimes Act and the Juvenile Justice Act would permit me to sentence Ms Quinn under the Crimes Act for the relevant part of the offending, those procedural provisions say nothing concerning whether sentencing principles concerning juveniles have any relevance beyond the general submissions of “youth”. Although neither s 20C Crimes Act nor s 57A Juvenile Justices Act were agitated at the first hearing on 2 November 2004, I do consider it was appropriate to deal with the defendant pursuant to the Crimes Act, especially given that some of the offending in count one occurred when she was an adult and all of count two occurred when she was an adult. There is, however, a major qualification that I would make. In my view although procedurally the defendant was dealt with under the Crimes Act, the underlying principles applicable to juveniles ought still be applied. The most significant of these principles is that rehabilitation is the primary objective when sentencing juveniles, rather than the more punitive aspects of sentencing such as general deterrence and retribution. I readily acknowledge that general deterrence is a major component of sentencing in Social Security matters for all the sound reasons suggested in relevant decisions. However, those principles must give way to a large degree to rehabilitation when the defendant is a juvenile. I did not advert to that factor in my deliberations when sentencing Ms Quinn.
11. In my view, the failure to advert to such a relevant consideration is an error that resulted in the sentence not “being in accordance with the law” or resulted in me “failing to impose a sentence that the court legally should have imposed”. It is important to realise that s 112 Sentencing Act is not so narrow as to be confined to jurisdictional errors or errors that might have once been the subject of certiorari. Errors in the application of legal principle as determined on particular issues by superior courts are errors capable of enlivening s 112 Sentencing Act. In that regard I note the matter of Melville v The Queen  NTSC 56 where His Honour Justice Kearney re-opened proceedings and corrected a sentence after the High Court in another case Siganto v The Queen  159 ALR 94 declared that as a matter of legal principle the stress and trauma of a witness could not be grounds to aggravate a penalty.
12. The difference here is that the error has been identified by me, rather that another court. In my view this is a matter that could equally be dealt with on appeal or by re-opening. In the interests of transparency, having not appreciated the fact that the defendant was subject to the sentencing principles applicable to juveniles for part of the offending, it is appropriate that I re-open the proceedings as such a sentence is neither in accordance with law, and there has been a failure to impose a sentence that could have been imposed.
13. Having decided to re-open the proceedings, I take into account the following matters:
• offences of this nature generally attract significant penalties, including imprisonment
• the offences cannot be said to be trivial, however, compared to other like offending, these offences are at the moderate end of the scale
• the offending occurred over a nine month period
• the offences are old having occurred in 1998 – it was accepted there was no fault on the part of the defendant resulting in delay
• the defendant was a juvenile for part of the offending and had just attained majority for the remainder
• the defendant has repaid almost all of the money
• the defendant has rehabilitated herself in the intervening period and is now a qualified health worker
• the defendant pleaded guilty at the earliest practicable opportunity
14. In my view these are all compelling reasons, in particular the fact that part of the sentencing should attract that the principles relevant to juveniles, to impose no further penalty other than a short bond to indicate her acknowledgement of the need to continue to undertake to the court her resolve to be of good behaviour. The conviction I had earlier imposed, in these circumstances do not take account of that fact. Even though the defendant attained majority during the offending, the sentencing process was infected by not appreciating she commenced offending as a juvenile and continued for a time into adulthood. On 2 November 2004 the arguments were finely balanced as to whether there should be a conviction. Now that I fully appreciate the fact that she was a juvenile I have no doubt there should not be a conviction.
15. In all the circumstances, I consider it is now inexpedient to inflict any punishment other than, in theory a nominal punishment on the defendant. Pursuant to s 19B (1)(d) of the Crimes Act, I will discharge the defendant without proceeding to conviction.
Orders: The convictions and sentence of 2 November 2004 is quashed.
Pursuant to s 19B (1)(d) on counts 1 & 2, the defendant is discharged without proceeding to conviction and released on a bond to be of good behaviour for 6 months from today.
Dated this 25th day of February 2005.