(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)
17 October 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS
Appellant sentenced in the Youth Court to detention for 16 months for two offences of recklessly causing serious harm, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA) - whether sentencing judge applied the principles relevant to the sentencing of a young offender appropriately - whether the sentence was manifestly excessive - whether the judge erred in failing to suspend all or part of the sentence - whether an appropriate reduction in sentence was given on account of the appellant's surrender to police, his cooperation with police and his early pleas of guilty.
Held (majority): sentencing judge erred by failing to apply the principles relevant to the sentencing of a young offender - appellant should be re-sentenced.
Held (Kourakis J): the sentence imposed was manifestly excessive - discussion of the effect of the statutory maximum of three years detention for young offenders in s 23(2) of the Young Offenders Act 1993 (SA).
Held: appeal allowed - sentence set aside - appellant re-sentenced to detention for 46 weeks - appellant to serve 23 weeks of that sentence with the balance of 23 weeks to be suspended, under s 38(2a) of the Criminal Law (Sentencing) Act 1988, on the condition that he enter into an obligation to be of good behaviour for a period of 23 weeks.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
A, MC v Police [2008] SASC 279
Case
[2008] SASC 279
Decision Date
CaseChat Overview and Summary
The appellant, A, MC, appeals against his sentence of 16 months detention imposed by the Youth Court for two offences of recklessly causing serious harm. The appeal was brought pursuant to s 22 of the Youth Court Act 1993, and it is by way of rehearing rather than a de novo hearing. The appeal focuses on whether the sentencing judge appropriately applied the principles relevant to sentencing a young offender, whether the sentence was manifestly excessive, whether the judge erred in failing to suspend all or part of the sentence, and whether an appropriate reduction in sentence was given for the appellant’s surrender, cooperation with police, and early pleas of guilty.
The legal issues primarily revolved around the appropriateness of the sentence given the nature of the offences and the appellant's age. The court examined whether the sentencing judge properly considered the principles relevant to sentencing young offenders, particularly those set out in s 38(2a) of the Criminal Law Consolidation Act 1935 (SA). The court also considered whether the sentence was manifestly excessive and whether the judge should have suspended all or part of the sentence. The appeal argued that the appellant’s actions, including his early surrender, cooperation with police, and pleas of guilty, warranted a more lenient sentence.
The court found that the sentencing judge did not appropriately apply the principles relevant to the sentencing of a young offender. It held that the sentence was manifestly excessive and that the judge erred in not suspending all or part of the sentence. The court noted that the appellant’s surrender, cooperation with police, and early pleas of guilty should have warranted a more lenient sentence. Consequently, the court set aside the original sentence and imposed a new sentence of detention for 46 weeks, with 23 weeks to be served in detention and the remainder suspended on conditions including good behaviour, supervision, participation in a victims' awareness program, and alcohol counselling. The appeal was allowed, and the original sentence was replaced with the new sentence as directed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
KOURAKIS J
In these circumstances, I do think it appropriate to invoke s 38(2a). I would direct that the appellant serve 23 weeks of the sentence of 46 weeks in detention, and would direct that the balance of his sentence (23 weeks) be suspended on condition that he enter into an obligation to take effect on his release from detention. The terms of the obligation should be that the appellant be of good behaviour, be under the supervision of an officer of the Department for Families and Communities, Children, Youth and Family Services or other person nominated by the Chief Executive of the Department for Families and Communities, Children, Youth and Family Services, and that he comply with the reasonable directions of that officer or person, including directions with respect to place of residence, participation in a victims’ awareness program, and counselling with respect to alcohol consumption.Conclusion For the reasons given above, I would allow the appeal. I would set aside the sentence imposed in the Youth Court. I would impose instead a single sentence of detention for a period of 46 weeks, with the period of detention being taken to have commenced on 3 June 2008. Acting under s 38(2a) of the CLSA, I would direct that the appellant serve 23 weeks of that sentence in detention and that the remainder of the sentence be suspended on condition that the appellant enter into an obligation in the sum of $200 to be of good behaviour and to comply with the other conditions of the obligation for a period of 23 weeks. Introduction This is an appeal from a sentence of 16 months detention imposed by a Youth Court Judge on the appellant for two offences of recklessly causing serious harm contrary to s 23(3) of the Criminal Law Consolidation Act1935. The appeal is brought pursuant to s 22 of the Youth Court Act 1993. The appeal is by way of rehearing and is not a hearing de novo.[24] The imposition of a sentence is the product of the exercise of a judicial discretion. The disposition of an appeal against a sentence imposed by the Youth Court therefore turns on whether an error of the kind described by the High Court in House v The King[25] can be identified.[24] Hillier v Minister for Community Welfare (1987) 45 SASR 467 at 469; CLM v SA Police (1995) 178 LSJS 399.[25] (1936) 55 CLR 499.The Offence At about 4 am on Sunday, 1 June 2008, Gary Burke and William O’Reilly were walking home through the streets of Port Augusta after attending the 16th birthday party of a friend’s daughter. Burke and O’Reilly were both aged 40. They walked past a group of youths, one of whom was the appellant. The appellant was the first to attack Burke and the others quickly joined him. There was no reason whatsoever for the attack. Burke was punched, hit with sticks and knocked to the ground where he was kicked about the head. A photograph of Burke taken while he was in hospital and wearing an oxygen mask was received by the Youth Court Judge. The imprint of a runner can be seen on his forehead. Burke suffered severe lacerations to the rear of his head and lost a considerable amount of blood. The blows to his head caused a cerebral haemorrhage and left him with a broken nose. Burke’s ankle was also fractured in the attack. It was initially plastered but he was later readmitted to hospital so that it could be pinned. Notwithstanding his extensive injuries the Youth Court was told by the police prosecutor that Burke was expected to make a full recovery.