A, MC v Police
[2008] SASC 279
•17 October 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
A, MC v POLICE
[2008] SASC 279
Judgment of The Full Court
(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.
Criminal Law Consolidation Act 1935 (SA) ss 5AA, 23; Youth Court Act 1993 (SA) ss 14, 22; Criminal Law (Sentencing) Act 1988 (SA) ss 3A, 9, 10, 18A, 19, 31, 38; Young Offenders Act 1993 (SA) ss 3, 17, 22, 23, 26, 29, 41; Children's Protection & Young Offenders Act 1979 (SA) s 7, referred to.
Hillier v Minister for Community Welfare (1987) 45 SASR 467; CLM v SA Police (1995) 178 LSJS 399; Hallam v O'Dea (1979) 22 SASR 133; R v QTV (2003) 87 SASR 378; R v J (1998) 102 A Crim R 157; S, JC v Police (2007) 96 SASR 432; L v Police (1998) 198 LSJS 481; RJB v Police [2000] SASC 209; House v The King (1936) 55 CLR 499; O, C v Police [2007] SASC 346; Bechara v SA Police (Unreported, Supreme Court of South Australia, Lander J, 31 March 1995, Judgment No 79/1995); R v Wacyk (1976) 66 SASR 350; Germain v Police [2006] SASC 340; Possingham v Police (1997) 69 SASR 1; Corack v Police [2006] SASC 172; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; R v Sewell & Walsh (1981) 29 SASR 12; R v Olbrich (1999) 199 CLR 270; Markarian v The Queen (2005) 228 CLR 357; Wong v The Queen (2001) 207 CLR 584, applied.
KBS v Police (2001) 212 LSJS 429; AJK v Police (2002) 135 A Crim R 1; H, PWJ v Police [2005] SASC 103; R v Reiner (1974) 8 SASR 104; L v Police (2004) 144 A Crim R 157; R v Proom (2003) 85 SASR 120; Cox v Button [1949] SASR 244, discussed.
Nixon v The Queen (1993) 66 A Crim R 83; Williams v The Queen (1995) 183 LSJS 404; R v Power (2001) 214 LSJS 58; Roberts v SA Police (Unreported, Supreme Court of South Australia, Olsson J, 10 May 1994, Judgment No 4534); R v McDonnell [2001] SASC 162; Director of Public Prosecutions (Cth) v AB (2006) 94 SASR 316, considered.
A, MC v POLICE
[2008] SASC 279Full Court: Doyle CJ, White and Kourakis JJ
DOYLE CJ: I would allow the appeal against sentence. I agree with the orders proposed by White J. I agree also with his reasons for allowing the appeal and making those orders.
I prefer not to express a view on the meaning and operation of s 23(2)(a) of the Young Offenders Act 1993 (SA), as the matter was touched on only briefly in submission in this Court.
WHITE J: The appellant was sentenced by a judge in the Youth Court to detention for 16 months for two offences of recklessly causing serious harm.[1] The principal grounds of appeal against that sentence are that the judge failed to apply appropriately the principles relevant to the sentencing of a young offender, that the sentence was manifestly excessive, and that the judge erred in not suspending the sentence. There is also a subsidiary ground complaining that the judge did not allow an appropriate reduction in the sentence on account of the appellant’s surrender of himself to the police, his co-operation with the police, and his early pleas of guilty.
[1] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 23(3).
Circumstances of the Offending
The appellant was aged 17 years and 10 months at the time of the offending. Both offences were committed in the course of one episode which occurred in the early hours of Sunday 1 June 2008 on a street in Port Augusta. The appellant was a member of a group of four, comprising an adult aged 23 years, two youths aged 17 years, and one aged 14 years.
During the evening of Saturday 31 May 2008, and in the early hours of Sunday 1 June 2008, the appellant had attended a number of parties in Port Augusta at which he had consumed a large amount of alcohol. At some stage he and the 14 year old met the other two members of the group. The appellant described himself as being heavily intoxicated.
The two victims were walking along the street and passed the appellant’s group. Neither of the victims did anything to provoke or antagonise the appellant’s group. After the two victims had passed the group, one stopped to urinate. The appellant then accosted and assaulted the first victim. He did so by punching him and kicking him, and by knocking him to the ground where he was further beaten by the appellant and others in the group. One of the group members used a piece of concrete to inflict further blows. The second victim came to the aid of the first. He was then struck and wrestled to the ground where he was kicked. However, by threatening the group with a piece of wood he was able to fend them off.
The first victim sustained very serious injuries, including a cerebral haemorrhage, severe bruising to his face, a broken nose, severe lacerations to the back of his head, and a fractured ankle. The injuries to his head caused a loss of consciousness. A photograph of the first victim’s face taken shortly after his admission to hospital shows clearly the imprint of the sole of a shoe on his forehead. This indicates that at some stage one of the group had stomped, or at least trod, on his forehead.
After the assault, the first victim had an initial period of hospitalisation including an operation for the repair of the fractured ankle. Shortly after discharge he was readmitted for a further operation in which the fractured bones in the ankle were to be pinned. At the time of sentencing (just over three weeks after the offences) it was expected that the first victim would be unable to work for another eight weeks. The sentencing judge was told that a full recovery was expected and apparently accepted that that was so for the purposes of sentencing.
The assault on the first victim comprised the first offence of recklessly causing serious harm.
The second victim suffered a fractured right wrist, some lacerations and some soft tissue injuries. He too was expected to be unable to work for approximately three months. The sentencing judge was not given any prognosis about his recovery. The assault on the second victim constituted the second offence of recklessly causing serious harm.
The sentencing judge did not have victim impact statements. The victims were preoccupied with receiving treatment for their injuries.
The appellant acknowledges that the assaults were entirely unprovoked. He also acknowledges that while the group was acting in concert, he was one of the initiators of the assaults. He realises that he must accept responsibility, as a member of the joint enterprise, for all of the conduct of the group in the assaults.
In summary, the two victims were subjected to a violent assault of some ferocity in the hours of darkness. The assault was entirely unprovoked and occurred in circumstances in which the victims were outnumbered. Both offences were aggravated offences because the appellant was in company with others[2] and because the members of the group had an offensive weapon in the form of a piece of concrete in their possession.[3]
[2] CLCA s 5AA(1)(h).
[3] CLCA s 5AA(1)(b).
The Appellant’s Subsequent Conduct
After the assault, the appellant and his fellows decamped. The police attended but were unable to identify, let alone apprehend, the offenders.
The appellant went to his home where he slept off his intoxication. On Monday, 2 June 2008, he became aware of the hospitalisation of the first victim and of the effects of his conduct. He was mortified by his reflection on what he had done.
On Tuesday, 3 June 2008 the appellant, acting independently of his fellow offenders, went alone to the Port Augusta Police Station and made full admissions about his conduct. He also identified his co-offenders to the police. On the appeal, the respondent accepted that at the time the appellant surrendered himself to the police, they (the police) did not know the identity of the offenders and further, that the appellant had no reason to suppose at that time that the police had identified him as a suspect.
The appellant was immediately arrested, taken into custody, and then transported to Adelaide. He appeared in the Youth Court in Adelaide on 4 June 2008 and entered guilty pleas to both charges. Sentencing submissions were then adjourned while a Social Background Report was prepared. The sentencing submissions were completed on 23 June 2008 and the appellant sentenced later that same day.
Approach of the Sentencing Judge
The maximum penalty for each of the offences committed by the appellant is imprisonment for 19 years[4] but the maximum sentence which could be imposed by the judge was an order of detention of three years.[5]
[4] CLCA s 23(3).
[5] Young Offenders Act 1993 (SA) s 23.
The judge noted the severity of the injuries and the circumstances of the offending outlined above. He specifically rejected a characterisation of the circumstances as being a “fight”. The judge commended the appellant on his mature conduct in surrendering himself to the police, saying:
You heard about this matter from others and after it would seem a day or so of being puzzled and wondering what had occurred, you went to the police station at Port Augusta. One can’t emphasise enough how important that decision was from your point of view; it was an extremely appropriate, but difficult, decision. It was also a very honourable decision. You went to the police and you provided the police with an account of what had occurred. It would seem that as a result of that account, that at least one other arrest, and perhaps one other report, has been made… The information that you have provided is obviously of assistance in the matter. You attended at the police station by yourself, you were under no compulsion to attend and you were under no compulsion to provide information to the police. No doubt in the usual way, you would have been asked whether you wanted a friend or a family member to be present, to be present at any interview, you declined that right, you provided information to the police and unremarkably you were remanded in custody. All of that occurred on 3 June.
The judge accepted that the explanation for the appellant’s offending lay in his intoxication. He accepted that the appellant did not have any record of offences of violence. The judge identified a number of matters which he said should be reflected in the sentence in the following passage of his remarks:
In my view an appropriate sentence here should reflect a number of things; firstly, the extreme injuries associated with the matter, the long and lasting hurt and harm for the victims and the unprovoked nature of what occurred. This has the hallmarks of an alcohol-fuelled frenzy for which you now are very deeply ashamed and very deeply remorseful.
The second important thing, as I said earlier to you, is that on coming to realise the extent of the issues that you needed to confront, you did that in a mature way; you went to the police and you provided them properly with all the assistance that you could.
In fixing a sentence, full weight should be given to that second approach, the fact that you approached the police and have been of assistance to them.
The judge invoked s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) so as to impose a single sentence for both offences. He took as a starting point a sentence of detention for two years and reduced that to 16 months on account of the appellant’s co-operation with the police and his early guilty pleas.
The judge did not specifically address the appellant’s counsel’s submission that the sentence should be suspended, but did not, in any event, suspend the sentence. The judge had however earlier rejected a submission that a sentence of detention for less than 12 months should be imposed, and that part of that sentence should be suspended.
Principles Concerning the Sentencing of Young Offenders
The appellant submitted that the passage quoted above in which the judge articulated the matters to be reflected in the sentence indicated an inappropriate approach to sentencing. Those remarks indicated, it was submitted, that the principal factors in the judge’s fixation of sentence were the severity and significance of the victims’ injuries, the absence of any provocation by the victims, the ferocity of the assault, the influence of alcohol, the appellant’s remorse, and his cooperation with the police. These were relevant matters, but not, it was submitted, the only relevant matters.
Section 3 of the Young Offenders Act 1993 (SA) (YOA) states the statutory object and policies to be pursued in the sentencing of young offenders. Subsections 3(1) and (2) provide:
(1)The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.
(2)The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:
(a) a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;
(c) the community, and individual members of it, must be adequately protected against violent or wrongful acts.
Subsections 3(1) and (2) make securing the necessary care, correction and guidance for young offenders’ development into responsible and useful members of the community, and for the proper realisation of their potential, a fundamental consideration in their sentencing. But at the same time, young offenders are to be made aware of their obligations under the law and of the consequences of a breach of the law, and the community is to be adequately protected against violent or wrongful acts. An appropriate sentence must allow each of those objectives to be achieved.
The effect of s 3(2a) in the present case is that personal deterrence of the appellant, but not general deterrence, is a relevant sentencing consideration. Section 3(3) then provides:
(3)Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
(a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b) family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened;
(c) a youth should not be withdrawn unnecessarily from the youth’s family environment;
(d) there should be no unnecessary interruption of a youth’s education or employment;
(e) a youth’s sense of racial, ethnic or cultural identity should not be impaired.
Section 3 has been described as the cornerstone of the process of sentencing young offenders.[6] Although the CLSA applies to the sentencing of a youth as much as to an adult, the principles of the YOA and the Youth Court Act1993 (SA) are to prevail in the event of any conflict.[7] This means that the sentencing considerations listed in s 10 of the CLSA, while relevant to the sentencing of youths, must be applied in a manner which is directed to the fulfilment of the object and policies stated in s 3 of the YOA.[8] In particular, the need “to ensure that the defendant is adequately punished for the offence”[9] has less significance in the sentencing of a youth than it does in the case of an adult.[10] This does not mean that retribution has no place in the sentencing of young offenders and, at least with respect to serious offences, the sentence of a youth should reflect the gravity of the crime.[11]
[6] R v QTV [2003] SASC 424 at [47], (2003) 87 SASR 378 at 388.
[7] CLSA s 3A.
[8] R v QTV [2003] SASC 424 at [48], (2003) 87 SASR 378 at 388.
[9] CLSA s 10(1)(k).
[10] R v QTV [2003] SASC 424 at [48], (2003) 87 SASR 378 at 388.
[11] R v J (1998) 102 A Crim R 157 at 164.
In relation to the similar but not identical provision in s 7 of the Children’s Protection and Young Offenders Act 1979 (SA), King CJ in Hallam v O’Dea[12] said:
The purpose of the Court therefore must be to “seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and his development into a responsible and useful member of the community”, and it is in doing that that it is to take into account the enumerated factors. The Court should therefore, if detention is indicated, impose on the child the period of detention which “will best lead to the proper development of his personality and to his development into a responsible and useful member of the community”, taking into consideration the enumerated factors or such of them as may be relevant and appropriate. The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender.[13]
[12] (1979) 22 SASR 133.
[13] Ibid at 136.
These remarks are also applicable to sentencing under the YOA.[14]
[14] S, JC v Police [2007] SASC 27 at [46]; (2007) 96 SASR 432 at 439; L v Police (1998) 198 LSJS 481.
Section 23(4) of the YOA was also relevant to the sentencing of the appellant. It provides:
A sentence of detention must not be imposed for an offence unless the Court is satisfied that, because of the gravity or circumstances of the offence, or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.
The effect of s 23(4) is to make a sentence of deterrence the option of last resort in the sentencing of youth offenders.[15]
[15] Hallam v O’Dea (1979) 22 SASR 133 at 137; RJB v Police [2000] SASC 209 at [15].
The Application of the Principles
In the present case, the judge did not make any explicit reference to s 3 of the YOA, or to the statutory object and policies contained in it. The appellant submitted that this by itself amounted to sentencing error, asserting that proper sentencing practice requires a sentencing judge or magistrate to refer expressly to the s 3 object and policies. In support of this submission, the appellant referred to RJB v Police,[16] KBS v Police,[17] AJK v Police,[18] and H, PWJ v Police.[19]
[16] [2000] SASC 209.
[17] [2001] SASC 40; (2001) 212 LSJS 429.
[18] [2002] SASC 264; (2002) 135 A Crim R 1.
[19] [2005] SASC 103.
In RJB v Police, the magistrate had referred expressly to the matters set out in s 3, but Debelle J considered that the sentencing remarks were deficient as they had not indicated how those matters had been applied in the particular circumstances of that case. A similar approach was adopted by Gray J and by Wicks J respectively in KBS and in AJK. In H, PWJ v Police, Anderson J endorsed the approach taken by Wicks J in AJK.
On my reading, none of these authorities stand for the proposition for which the appellant contends, namely, that the reasons of a judge or magistrate sentencing young offenders should refer specifically to s 3 of the YOA or, at least, to the object and policies contained within it. What the authorities do indicate is that, at least in those cases in which a young offender is sentenced to detention, the sentencing remarks should indicate how the object and policies of the YOA were applied. Sentencing remarks can satisfy this requirement without any explicit reference to s 3 or to its object and policies at all.
Sentencing judges and magistrates have considerable flexibility in the content of the sentencing remarks. They can satisfy the obligation to give adequate reasons for sentence[20] in a variety of ways. What is adequate will vary according to the circumstances of the individual case. When a young offender is to be sentenced to detention, the very severity of such a sentence and the fact that it is a sentence of last resort, indicate that adequate sentencing reasons should explain, at the least, why the Court regarded such a sentence as being appropriate, and should address the principal matters put in mitigation.[21] That may be done by express reference to the object and policies within s 3, but that is not the only way. The sentencing remarks will be sufficient if they indicate how the object and policies of s 3 were applied. This may be done by express reference. Alternatively, it may be discernible from the manner of explanation of the sentence that those object and policies, even though not specifically mentioned, were considered and applied.
[20] CLSA s 9.
[21] S, JC v Police [2007] SASC 27 at [59]; (2007) 96 SASR 432 at 442; O, C v Police [2007] SASC 346 at [44].
In my opinion, this court should not accept too readily a submission that a judge or magistrate sitting regularly in the Youth Court has failed to take into account the relevant statutory objects and policies applicable to the sentencing of a youth. Such judges and magistrates work on a daily basis with the YOA and should be taken to be well familiar with its principles. Nevertheless, as I have said, at least in those cases in which a sentence of detention is imposed, there must be discernible in the sentencing remarks, an indication of how the object and policies specified in s 3 were applied in the circumstances of the individual offender.
In the present case, the judge did not refer expressly to s 3 or to its provisions. It is also difficult to discern, except possibly by a process of rationalisation of the sentence ultimately imposed, any indication that the judge applied the factors specified in s 3 in the circumstances of this case. The judge did not give any explanation of how the features of the offending which he had emphasised linked with the s 3 considerations. Further, his emphasis on these matters rather suggests that the judge was giving prominence to the punitive aspects of sentencing.
It is plain that the sentence had to take account of the severe injuries and harm inflicted to the victims, the lack of provocation, and the effect which the appellant’s alcohol consumption had in explaining an unprovoked ferocious attack. The very nature of the appellant’s offences meant that the statutory policies in sub-s 3(2) of protection for the community, and ensuring that the appellant was aware of the consequences of his breaches of the law, had to be prominent in the sentencing decision. The same could be said about the importance of personal deterrence. But, at the same time, the appellant’s conduct in presenting himself to the police, his cooperation with their investigation, and his pleas of guilty provided promise that, with appropriate assistance, he would develop into a responsible and useful member of the community.
As I have said, this Court should not readily infer that judges of the Youth Court have not applied sentencing principles with which they must work daily. However, in this case, the absence of any discernible application of the object and principles contained in s 3, and the judge’s apparent emphasis on the punitive aspects of sentencing, lead me to conclude that the appellant’s submission should be accepted. That is to say, I am satisfied that the appellant has made good the submission that an error in sentencing did occur by reason of the judge’s failure to apply the principles relevant to the sentencing of a young offender and that the error is likely to have affected the sentence which was ultimately imposed.
This means that the appeal should be allowed and the appellant re-sentenced. It also means that it is unnecessary to consider the remaining grounds of appeal.
Appellant’s Personal Circumstances
The appellant left school after completing Year 11 in 2007. At that time (and at the time of his offences) he was living with his father in Port Augusta. Previously he had lived with his mother and younger siblings in Alice Springs. The appellant’s father’s employment in 2007 and 2008 took him away from Port Augusta for three weeks in every four. During these times the appellant was left without any parental supervision or contact. The appellant, and his family, agree that it is desirable for him to return to live with his mother so that he may have more regular contact with, and supervision by, a parent. The Social Background Report provided to the judge indicated that Families SA also support this plan.
During the first part of 2008, the appellant was engaged in TAFE studies. The judge had conflicting information as to whether the appellant was still engaged in those studies at the time of the offences. He was, in any event, seeking work through an employment agency. The employment consultant provided a reference which spoke well of the appellant. It is also relevant to note that the appellant was, before his detention, a regular player for one of the Port Augusta football teams.
Re-Sentence
As indicated earlier, the severity of the assaults means that protection of the community is an important consideration in sentencing in this case. The fact that the appellant had initiated an unprovoked and unpremeditated assault under the influence of alcohol indicates that this was so. Similarly, an appropriate sentence has to bring home to the appellant the seriousness of his conduct and the consequences for him of failing to comply with the law. Despite the absence of any prior record of offences of violence, and the appellant’s mature response to his offending, these factors make a sentence of detention inevitable. So much was conceded by the appellant’s counsel in the Youth Court, and no contrary submission was made in this Court.
On the other hand, the appellant’s own reaction to his offending, and his conduct following that reaction, suggest that the period of detention required for these purposes is not as long as it might otherwise have been. They also suggest that a sentence should be structured so as to provide appropriately both the direction and the guidance necessary for the appellant’s future.
Like the judge, I consider it appropriate to invoke s 18A of the CLSA so as to impose a single sentence for both offences. Both offences occurred as part of the one episode. I would take as a starting point a sentence of detention of 16 months. A substantial reduction from that starting point should be allowed on account of the appellant’s pleas of guilty, cooperation with the police, and contrition. I add that the genuineness of that contrition is confirmed by the appellant’s responses to the senior social worker who prepared a Social Background Report at the request of the judge.
The judge allowed a reduction of one third on account of these matters. The appellant submitted that a greater reduction should have been allowed. I do not agree and, exercising the discretion afresh, would allow the same reduction. There is no fixed tariff of reductions which should be allowed for pleas of guilty, contrition and cooperation with the police. Sentencing judges have considerable discretion in this area. However, reductions of 25 percent are common when there has been an early guilty plea associated with genuine contrition and remorse.[22] There have been cases in which reductions of more than one third have been allowed, but these tend to be of a quite unusual kind or to involve elements not present in this case.[23] There are special features about this case, but I am unable to conclude that a reduction of more than one third is appropriate. Accordingly, I would reduce the starting point of 16 months to 46 weeks. It is appropriate that this sentence be taken to have commenced on 3 June 2008 which was the day the appellant was taken into custody.
[22] Nixon v The Queen (1993) 66 A Crim R 83 at 90; Williams v The Queen (1995) 183 LSJS 404 at 405-6.
[23] See for example R v Power [2001] SASC 157; (2001) 214 LSJS 58; R v McDonnell [2001] SASC 162 at [21]; Director of Public Prosecutions (Cth) v AB [2006] SASC 84; (2006) 94 SASR 316.
The appellant submitted that the sentence of detention should be wholly suspended or, at least, that s 38(2a) of the CLSA should be invoked. The former is no longer an option as the appellant has already served part of the sentence in detention. Subsections 38(2a) and (2b) provide:
(2a)However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order ––
(a) direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b) suspend the remainder on the condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.
(2b)The term of a bond under subsection (2a) cannot be extended beyond the period of the suspended imprisonment.
The sentencing object and principles in s 3 of the YOA are as relevant to the exercise of the discretion under s 38(2a) as they are to the determination of the sentence. In considering whether there is “good reason” to make an order under sub-s (2a), the Court must consider whether it is necessary for the achievement of the objects of the sentence of detention that the appellant serve the whole of the sentence in custody. Were it not for the appellant’s conduct on and since 3 June, and the maturity of his response, I may not have been satisfied that such good reason did exist. However, the appellant’s acceptance of personal responsibility, and the action taken by him following that acceptance, are favourable indicators for a good rehabilitation. Moreover, the appellant has now had the experience of a prolonged period of detention. This too must have brought home to him already the consequences of his conduct.
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.
KOURAKIS J.
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.
O’Reilly was intercepted by the appellant when he ran back to assist Burke. The appellant hit O’Reilly and wrestled him to the ground. The appellant’s companions then joined in the assault on O’Reilly. The appellant returned to Burke and kicked him as he lay on the ground. The attack only came to an end when O’Reilly managed to pick up a stick and scare the offenders away.
O’Reilly suffered lacerations, soft tissue injuries and a fracture of his right hand that was set in plaster. The prosecutor informed the Youth Court Judge that O’Reilly too was expected to make a full recovery.
Burke, who was a carpenter, and O’Reilly, who was a traindriver, both lost time from their employment as a result of the injuries.
The appellant gave himself up to the police at Port Augusta on Tuesday 3 June 2008 because of his concern about the fate of his victims and his growing remorse. He confessed his crimes. At that time he had not been identified as one of the assailants. Nor did he have any reason to think that he was under suspicion. He told the police who the other members of the group were. Two were youths and another a 23 year old. One of the youths and the adult were his cousins, the other youth was a friend.
The appellant was taken into custody. He was charged with two counts of aggravated recklessly causing serious harm contrary to s 23(3) of the Criminal Law Consolidation Act1935. The maximum penalty for that offence is 19 years imprisonment.[26]
[26] Section 23(3) Criminal Law Consolidation Act 1935.
The appellant was born on 15 July 1990 and was therefore very nearly 18 at the time of the offending. He is one of four children. In 2007 he completed Year 11 at Port Augusta. The appellant studied business studies and Aboriginal studies at TAFE for at least some time during 2008. He hoped to obtain employment in the mining industry but it was unlikely that he would be employed before he turned 18.
In 2008 the appellant was playing football for the West Augusta Football Club in the under 18’s and for their adult B grade team. Unfortunately no references from any senior members of the club were provided to the Youth Court.
The only other offences alleged against the appellant were one of driving an unregistered and uninsured motor vehicle on 15 March 2008 and one of failing to truly answer questions asked by police in January 2007.
The appellant pleaded guilty on his first appearance on 4 June 2008 and was sentenced to 16 months detention on 23 June 2008. The Youth Court Judge remarked that but for the appellant’s early guilty plea and the assistance he had provided to the police the appropriate sentence would have been two years. The sentence was ordered to operate from 3 June 2008.
Sentencing in the Youth Court
The Criminal Law (Sentencing) Act 1988 (the CLSA) and common law sentencing principles only apply to the sentencing of young offenders insofar as they are not inconsistent with the Young Offenders Act 1993 (the Act). Section 10 of the CLSA applies on its terms to the Youth Court but s 3A of the CLSA expressly provides that in the event of any inconsistency between the CLSA and the Act, the Act prevails.[27]
[27] Section 3A Criminal Law (Sentencing) Act 1988.
Subject to any express provision to the contrary the Youth Court has the same powers to sentence a youth for an indictable offence as the District Court.[28] Important qualifications of those powers include the imposition of detention instead of imprisonment and obligations instead of bonds.[29] Additionally, s 31(4) of the CLSA proscribes the accumulation of sentences of detention on young offenders dealt with as such. However, the Youth Court may suspend a period of detention pursuant to s 38 of the CLSA[30] and may order the release of a young offender after he or she has partially served an order of detention that is for a period less than 12 months.[31]
[28] Section 22 Young Offenders Act 1993.
[29] Section 3A Criminal Law (Sentencing) Act 1988.
[30] Bechara v SA Police Lander J, 31 March 1995, Jud Nos 5013, unreported BC 9503159.
[31] Section 38(2)(a) Criminal Law (Sentencing) Act 1988.
The maximum penalty that can be imposed by a Youth Court Judge is an order for detention for three years.[32] A Youth Court Magistrate cannot impose a period of detention of more than two years.[33] Only a Youth Court Judge can deal with major indictable offences.[34] A youth may be committed for trial to the Supreme Court or the District Court if on an application by the Director of Public Prosecutions or a police prosecutor the court determines that the youth should be dealt with in the same way as an adult because of the gravity of the offence or because the offence is part of a pattern of repeated offending.[35] If the youth is subsequently convicted of an offence, the Supreme Court or District Court may sentence the youth as an adult or as a child. Alternatively, it may remit the matter to the Youth Court.[36] The distinction between sentencing a youth as an adult or a child is referred to further below.
[32] Section 23(2)(a) Young Offenders Act 1993.
[33] Section 14(3) Youth Court Act 1993.
[34] Section 14(2) Youth Court Act 1993.
[35] Section 17 Young Offenders Act 1993.
[36] Section 29(1) Young Offenders Act 1993.
The principles that control the exercise of the sentencing powers to which I have referred are largely found in s 3 of the Act. It provides:
3—Objects and statutory policies
(1)The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.
(2)The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:
(a) a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;
(c) the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a) In imposing sanctions on a youth for illegal conduct—
(a) regard should be had to the deterrent effect any proposed sanction may have on the youth; and
(b) if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth's conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—
(i)the deterrent effect any proposed sanction may have on other youths; and
(ii) the balance to be achieved between—
(A) the protection of the community; and
(B) the need to rehabilitate the youth.
(3)Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
(a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b) family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;
(c) a youth should not be withdrawn unnecessarily from the youth's family environment;
(d) there should be no unnecessary interruption of a youth's education or employment;
(e) a youth's sense of racial, ethnic or cultural identity should not be impaired.
Additionally s 23(4) of the Act provides that a sentence of detention must not be imposed on a youth unless the court is satisfied that, because of the gravity or circumstances of the offence or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.[37]
[37] Section 23(4) Young Offenders Act 1993.
The special sentencing provisions of the Act dictate an approach to the sentencing of children that is radically different to the way in which the sentencing discretion is exercised over adult offenders. Care, correction and guidance, and not punishment, are the primary objects that govern the sentencing of young offenders. A sentence imposed by the Youth Court may be punitive, but only as an incidental or collateral consequence of its operation as an order that is necessary to achieve the purposes of correction and community protection prescribed by s 3 of the Act.
The following remarks of King CJ in Hallam v O’Dea are equally applicable to the sentencing of young offenders under the Act:
The Court should therefore, if detention is indicated, impose on the child the period of detention which "will best lead to the proper development of his personality and to his development into a responsible and useful member of the community", taking into consideration the enumerated factors or such of them as may be relevant and appropriate. The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender. In the case of an adult offender, the starting point will generally be the observance of a proper proportion between the gravity of the crime and the severity of the punishment. This fundamental principle of adult sentencing obviously has no place in fixing the period of detention under the Children's Protection and Young Offenders Act, even where the protection of the community becomes the dominant consideration. The proper approach for the Children's Court, where a sentence of detention must be imposed, is to consider what period of detention, within the statutory limit of two years, will best achieve the objects proposed to the Court by s 7. This approach is inconsistent with reserving the maximum period of detention for the most serious type of crime and of relating periods of detention for less serious offences to the maximum.
It was argued that the learned Judge approached the task of sentencing on a wrong principle because, it was said, he imposed the sentence of two years detention on the basis that the crime would have merited more than two years imprisonment if the offender had been an adult. If this were the approach of the learned Judge, it would be plainly wrong. As was stated in the passage quoted above from Homer's case, there is no valid comparison between a sentence of imprisonment on an adult and the measures prescribed by the juvenile justice legislation. The Act prescribes methods of dealing with juvenile offenders which differ radically in nature and object from the methods used in relation to adult offenders. It would be meaningless to ask what sentence of imprisonment would be appropriate to a seventeen year old who is within the purview of the young offenders legislation, if he were not a seventeen year old but an eighteen year old adult subject to the ordinary sanctions of the criminal law.[38]
[38] Hallam v O’Dea (1979) 22 SASR 133 at 136-7.
Additionally, a negative implication, apparent from the structure of s 3 of the Act, precludes a court sentencing a youth as such from pursuing the object of general deterrence. That is so because s 3(2a)(a) of the Act expressly requires the sentencing court to have regard to the personal deterrent effect of a sanction on a youth whereas, by way of contrast, s 3(2a)(b)(i) of the Act requires a court to have regard to the deterrent effect on other youths only when sentencing a young offender who is being dealt with as an adult pursuant to s 29 of the Act.
The effect of the maximum period of detention of three years imposed by s 23(2)(a) of the Act must be understood in the context of the special sentencing provisions of the Act to which I have referred. It is, I think, unlikely that Parliament contemplated that the special sentencing principles that the Act applied to young offenders might in some cases result in a sentence of detention for more than three years, but that it would nonetheless cap the period of detention that could be imposed at three years. If that were the intention then the logical consequence would be a disproportionate accumulation of sentences, that would otherwise have been imposed for various periods exceeding three years, at or close to the three year maximum. The actual practice of, and distribution of sentences in, the Youth Court does not reflect such an approach. If that approach were to be adopted the imposition of the same sentence of three years on offenders who required much greater than that for the purposes of correction would leave those young offenders who required no more than, and were sentenced to, three years for the purpose of their correction with a legitimate sense of grievance. More importantly that approach would necessarily imply that Parliament appreciated that sentences of greater than three years detention may be necessary for the purposes of the correction and guidance of some young offenders but nonetheless decided to deny the Youth Court the power to do what was necessary for their correction. In my view that approach to the statutory maximum is self contradictory and anomalous.
The preferable approach is to read the statutory maximum and the special sentencing principles of the Act together and coherently. The proscription of sentences of greater than three years detention should therefore be taken as a declaration by Parliament that three years is the maximum detention that should ever be necessary for the purpose of correction if the sentencing principles it has prescribed are properly applied to a youth who is being sentenced as such.[39] The approach that I prefer does not render the maximum penalty that would otherwise be applicable for the particular offence charged irrelevant in the case of a young offender sentenced as such. The youth must still be taught the consequences of his conduct and those consequences will vary depending on the offence and the maximum penalty for that offence. The maximum penalty prescribed by the statutory provision creating the offence is therefore a guide, but no more than a guide, to the proportion of three year maximum that may be required for the correction and guidance of a youth who has been convicted of that offence.
[39] The statutory maximum applicable to the Youth Court is not analogous to the maximum applied to the Magistrates Court by s 19 of the Criminal Law (Sentencing) Act 1988. The exceptional sentencing principles applied by the Youth Court do not apply in the Magistrates Court. The Magistrates Court can remand an offender to appear in the District Court whenever the court is of the opinion that a sentence should be imposed that exceeds the prescribed limit: Section 19(5) Criminal Law (Sentencing) Act 1988.
Although care, correction and guidance remain the primary objects of sentencing when the Supreme Court or the District Court deals with a youth as an adult, pursuant to s 29 of the Act there are at least two important differences in the applicable sentencing provisions.
First, the statutory maximum only limits the power of the Youth Court[40] and not the District Court and the Supreme Court. It follows that the outer limit on what may be necessary for the correction and guidance of a youth who is being dealt with as an adult is the maximum penalty applicable to the offence for which he or she is being sentenced. Secondly, the deterrence of other youths becomes a relevant factor in the sentencing of a youth as an adult. The District Court and the Supreme Court must, necessarily, balance the object of general deterrence against the rehabilitative objects of the sentencing of young offenders.[41]
[40] Section 23 Young Offenders Act 1993.
[41] Section 3(b)(ii) Young Offenders Act 1993.
The Appeal
The appellant appeals the order of detention made by the Youth Court Judge on the grounds that:
1. The sentence is manifestly excessive.
2.The learned Judge erred in calculating [the] discount on sentence for a plea of guilty.
3.The learned Judge erred in not suspending all or part of the sentence of imprisonment.
4.The learned Judge erred in that he did not refer to and take into account the principles relevant to sentencing a young offender and in particular did not make reference to and apply s 3 of the Young Offenders Act1993 in the course of sentencing the appellant.
I would allow the appeal on the first ground only. Before turning to that ground it is convenient that I first explain why I would hold the appellant has failed to make good the other grounds.
The discount was not inadequate.
The reduction, made by the Youth Court Judge, of one third of the appellant’s sentence was high. Discounts of between 40 and 50 per cent have been allowed in cases where drug offenders have co-operated with police in a way that has led to the arrest and conviction of others involved in the organised drug trade.[42] The reasons for the particularly high discounts allowed in those cases are obvious. The difficulties in penetrating the organised drug trade and the risks to informers who assist police to do so are notorious. As creditworthy as the appellant’s conduct in this case is, his co-operation in the administration of justice by informing on his co-offenders does not match the assistance given in the organised crime cases.
[42] R v Golding (1980) 24 SASR 161; DPP v AB (2006) 94 SASR 316.
The discretion to suspend did not miscarry.
Section 38 of the CLSA confers a wide discretion.[43] The sentencing court may, if it thinks that “good reason” exists for doing so, suspend the sentence. Where no express error is made in a judge’s sentencing remarks an appeal court can only find that the discretion has miscarried where there is such manifest incongruity between the sentencing order and the relevant sentencing circumstances that the sentence can only be described as unreasonable or plainly unjust.[44] That cannot be said to be the case here.
[43] R v Wacyk (1976) 66 SASR 350.
[44] House v The King (1936) 55 CLR 499 at 505.
However, the appellant contends that the failure of the Youth Court Judge to refer to and apply the principles relevant to the sentencing of young offenders set out in the Act demonstrates express error. It is true that the Youth Court Judge did not expressly refer to ss 3 and 23 of the Act in his remarks on penalty. Mr Niarchos, counsel for the appellant, correctly accepted that a sentencing judge or magistrate is not bound to endlessly recite the sections of the Act that he or she applies many times daily.
In this respect it is appropriate to recall the reproof given by Wells J in R v Reiner[45] where he said:
A trial judge, when imposing a sentence, directs his remarks to the prisoner first, and to other people next. They do not constitute a written judgment (they are not "Reasons for Sentence"); they do not purport to represent an exhaustive inventory of the facts and matters taken into account; they are not published as a monograph on the judicial art of sentencing. Speaking for myself, I sometimes omit on purpose certain matters that I have taken into account, because I deem it inadvisable, in the prisoner's interests (for example, in the interests of his ultimate rehabilitation), to mention them. I sometimes wish to stress certain matters, and accordingly mention them alone; it would be wrong to suppose that I have considered nothing more. I sometimes refer to a principle of sentencing; it would be unfortunate if the inference were to be drawn that I knew of no other. I am sometimes conscious that the words I have used would not necessarily be the words I would have chosen if I had been able to devote mature consideration to their selection. But often as I listen in this Court to arguments based upon an adverse criticism of what the trial judge has said, I am moved to wonder whether, by a process of forensic attrition, remarks on sentencing have not been brought imperceptibly to a state where they are construed contra proferentem.[46] (underlining added)
[45] (1974) 8 SASR 104.
[46] R v Reiner (1974) 8 SASR 104 at 114-5 per Wells J.
In some, probably rare, cases a conclusion that a relevant matter was ignored may be supported by the exceptional nature of the matter that is not expressly mentioned, the course of the proceedings or the content of the remarks that are made.
I accept that a failure to refer to a factual circumstance or sentencing principle may in some cases lead to the conclusion that reasons have not been given for the sentence imposed in accordance with s 9 of the CLSA. A failure to give adequate reasons is an error of law that allows the appeal court to re-sentence.[47]
[47] The cases that follow are cited only as authority for the stated proposition of law. Whether or not the reasons given in a particular case are adequate must necessarily depend on the reasons given in, and all of the circumstances of, each case. Germain v Police [2006] SASC 340; Possingham v Police (1997) 69 SASR 1, 5c; Corak v Police (2006) SASC 172; cf AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250.
The failure of the Youth Court Judge in this case to expressly refer to the obvious and well known principles applicable to the sentencing of young offenders in his court is certainly not enough to demonstrate either form of error.
In sentencing the appellant the Youth Court Judge did not make any reference to his power to suspend the period of detention entirely. He did, however, refer to his power to partially suspend the period of detention pursuant to s 38(2a) of the CLSA. The power to suspend conferred by s 38 is well known. The Youth Court Judge was expressly asked to exercise it by the appellant’s counsel. In those circumstances it is fanciful to suggest that the Youth Court Judge forgot all about it when he came to sentence the appellant just a few hours later. Furthermore it is clear that in addressing the seriousness of the offending at pages 6 and 7 of his remarks the Youth Court Judge was explaining why, in the circumstances of this particular case, an unsuspended sentence of detention had to be imposed notwithstanding the well known sentencing principles that apply to young offenders. The Youth Court Judge’s failure to mention suspension of the whole of the sentence and his express reference to s 38(2a) of the CLSA are explicable on the basis that he had decided that the sentence could not be wholly suspended, because it was necessary that the appellant serve more time in detention than the three weeks already served, and that he thought it appropriate to explain that he could not order early release because of the length of the period of detention that he had fixed.
The appellant also complains that the Youth Court Judge placed undue weight on personal deterrence and insufficient weight on the appellant’s prospects for rehabilitation. The Youth Court Judge referred to the potential of the appellant to contribute to the community. He mentioned his interest in furthering his education and otherwise advancing himself. The Youth Court Judge acknowledged the appellant’s reputation as a well respected member of the community and his participation in sport. The Youth Court Judge described these matters as remarkably good features of the appellant’s personality. The Youth Court Judge emphasised the maturity and responsibility shown by the appellant’s voluntary decision to go to the police. In the light of those references, it is impossible to find that the remarks themselves disclose that the Youth Court Judge did not give the competing sentencing considerations that arose in this matter their proper weight.
It is also contended that the remarks of the Youth Court Judge show that he gave no or insufficient weight to the appellant’s intoxication. Again, the Youth Court Judge referred to intoxication at quite some length in his remarks. The Youth Court Judge referred to the offending as having “the hallmarks of an alcohol fuelled frenzy for which you are now very deeply ashamed and very deeply remorseful”. Insofar as the appellant contends that the Youth Court Judge should have, but did not, treat the appellant’s degree of intoxication as a matter in mitigation, the premise that in this case it was in fact a matter of mitigation should not be accepted. In R v Sewell and Walsh[48] Zelling J explained the proper approach to intoxication in this way:
At the common law the taking of drink was an aggravation both in relation to mens rea and as to penalty. The motto of the common law was qui peccat ebrius luat sobrius. We have moved away from that concept as far as mens rea is concerned, but there are still many offences in which drink is an aggravation in relation to penalty. There are others in which it is not. For example, a person under the influence of liquor, who is otherwise of a blameless character, may do something which is quite out of character and the liquor may be both an explanation and a factor in mitigation, but in other cases it may swing the penalty towards deterrence. In crimes of violence one may have some hope of putting rational arguments to deter a sober would-be assailant. That chance is much diminished if the assailant is under the influence of drink or drugs. Certainly an assault by a person under such influence is more frightening to the average person.[49]
[48] (1981) 29 SASR 12.
[49] R v Sewell and Walsh (1981) 29 SASR 12 at 15. See also Roberts v SA Police [1994] SASC 4534 [7].
Intoxication is plainly a “relevant” sentencing circumstance but although it may have the “capacity to be a factor in mitigation”[50] it will not always have that effect and may in some cases be a matter of aggravation.[51] Where an adult is being sentenced for a drunken assault, his or her intoxication will often be a matter of aggravation because of the need to deter others from placing themselves in situations where they may act in a similar way. Leaving aside the purpose of general deterrence, as courts must in sentencing a youth as a youth, to the extent that intoxication shows that an offence was not planned and coldly executed then the moral culpability of the offender may be reduced by his or her intoxication. If the court is also satisfied[52] that the circumstances that led to the intoxication or the offending are unlikely to be repeated, then the intoxication may operate in mitigation of penalty. Conversely, if the prosecution proves beyond reasonable doubt that the offender is often drunk and prone to behave aggressively when drunk, the intoxication will be an aggravating factor. In this case, where the Youth Court could not be satisfied one way or the other on the material before it, the appellant’s intoxication was neither an aggravating nor a mitigating factor. Moreover, in the absence of material capable of assuring the Youth Court that the circumstances would not be repeated, the mere fact of intoxication left the objects of correction, personal deterrence and community protection as important in the case of the serious assault committed by the appellant as they would be in the case of a sober offender.
[50] L v Police (2004) 144 ACrimR 157 at 159 [10] per Gray J.
[51] R v Proom (2003) 85 SASR 120 at 126-130 [34] – [51] per Doyle CJ.
[52] Matters of mitigation must be proved by the offender on the balance of probabilities. See R v Olbrich (1999) 199 CLR 270.
Although I have dealt with the grounds that insufficient weight was placed on the matters just mentioned on their own terms, there is an underlying matter of principle that should be mentioned. The particulars given in support of the appellant’s grounds of appeal, like those appearing in many other sentencing appeals, complain that the Youth Court Judge “did not give sufficient regard to” certain matters or “placed too much” weight on others. Grounds pleaded in that way appear to misconceive the nature of an appeal against an exercise of the sentencing discretion. It is in the very nature of a discretion that different judges will place more or less weight on different matters and yet the different sentences that result are nonetheless all proper exercises of the sentencing discretion. It is a fruitless task to dissect sentencing remarks for the purpose of contending that the way in which the competing sentencing considerations were expressed shows that “too much” or “not enough” weight was placed on one or other of them. The hallowed statement of the test for appealable error in the exercise of a judicial discretion taken from House v The King[53] makes no reference to “taking into account some material consideration” but failing to give it sufficient weight. Error in the balancing of material considerations can only be demonstrated by reference to the resulting order. A sentence will be “unreasonable or plainly unjust” if it lacks any reasonable proportion to the facts and circumstances of the offence and the offender. When it appears that the exercise of the discretion has produced a result that is unreasonable, it might be possible to retrospectively attribute the error to a particular aspect of the weighing process. However a comment to that effect can be no more than a collateral, and unnecessary, observation that follows from a finding that the sentence itself was unreasonable and plainly unjust. Similarly in my view a conclusion that a relevant principle, which the court has expressly, or would undoubtedly have taken into account, has not been applied can only be supported by a finding that the sentence itself is plainly unjust or unreasonable and not from an examination of the sentencing remarks alone.
[53] (1936) 55 CLR 499 at 505.
The sentence is manifestly excessive
An appeal ground that the sentence is manifestly excessive is a convenient alternative expression of the complaint that the sentence is by reason of its severity unreasonable or plainly unjust. Where a sentence is appealed on this ground, it is not uncommon for the submissions to degenerate to assertion and counter assertion that the sentence is or is not manifestly excessive. In a sense that is not surprising because sentencing is discretionary. The essential difference between a discretionary judgment and other judgments is that a number, perhaps even many, different orders, and on some occasions very different orders, can all still be described as right or correct. Mayo J put it in this way in Cox v Button[54]
The discretion as to penalty, however, is, and is intended to be, the individual and personal discretion of the tribunal. The exercise may, therefore, be expected to vary where different persons constitute a court. The variation may, indeed, be considerable according to age, experience, viewpoint, and so on. Opinions are liable to differ greatly on topics, and notwithstanding such diversity none will necessarily be unreasonable.
I do not think a standard should be resorted to in a manner that will preclude the real exercise of the judicial discretion. A discretion which the legislature has left at large is not to be fettered by restrictions arbitrarily imposed. The exercise will only be subject to review if there be reliance upon wrong principles or some form of order has been adopted, that is plainly approaching what is absurd or extravagant. The latter error will usually be apparent at a glance upon an impartial scrutiny by a mind undisturbed by emotion. But it is not sufficient that the appellate tribunal would exercise the discretion differently. Such conclusion affords no ground whatever for interference.[55]
[54] [1949] SASR 244 at 249-250.
[55] Passage cited by Zelling J in R v Sewell and Walsh (1981) 29 SASR 12 at 14.
The descriptions “absurd” or “extravagant” used by Mayo J as the mark of an erroneous exercise of discretion should be understood as meaning the same as the phrase “unreasonable or plainly unjust” used by the High Court in House v The King[56] to which I have already referred.
[56] (1936) 55 CLR 499 at 505.
Notwithstanding the nature of discretionary judgments, and the consequence that the results of such judgments may vary widely, the process is not entirely, or even predominantly, subjective.
The debate, mostly semantic,[57] about whether sentencing is a process of “instinctive synthesis” or whether it might be approached in a “sequential” or “tiered” way, was largely settled by the High Court in Markarian v The Queen.[58] It is clear that sentencing involves finding a point of balance between competing objectives that are not strictly commensurable.[59] For that reason sentencing cannot be approached by adding or subtracting units of aggravation and mitigation respectively.[60]
[57] Markarian v The Queen (2005) 228 CLR 357 at 373 [36] per Gleeson CJ, Gummow, Hayne and Callinan JJ; at 378 [52] per McHugh J, at 405 [132] per Kirby J.
[58] (2005) 228 CLR 357.
[59] Markarian v The Queen (2005) 228 CLR 357 at 373 [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ; at 387 [73] per McHugh J; at 405 [133] per Kirby J.
[60] Markarian v The Queen (2005) 228 CLR 357 at 373-5 [37] – [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ; at 377 [51] – [52] per McHugh J; at 405 [133] per Kirby J.
However, acceptance of the proposition that sentencing is a difficult weighing process does not mean that a court cannot identify the extent to which a particularly significant circumstance has moved the point of equilibrium. The nature of the sentencing process is such that there are not many such factors, but a plea of guilty and co-operation with the police are certainly two of them.[61]
[61] Markarian v The Queen (2005) 228 CLR 357 at 375 [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ; at 387 [74] per McHugh J; at 406 [134] per Kirby J.
Notwithstanding the impossibility of achieving arithmetic precision there are two basic, objective standards against which an individual sentence can be fixed.
The first is the statutory, or very occasionally the common law, maximum penalty.[62] The maximum penalty serves a much more important purpose than merely delineating the outer boundary of the sentencing power. The maximum is a yardstick that invites comparison between the worst possible case and the case before the court.[63] It is meaningless to speak of fixing a sentence that is proportionate to the gravity of the crime in the absence of a maximum penalty.
[62] Markarian v The Queen (2005) 228 CLR 357 at 372 [30] – [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ, at 389 [80] per McHugh J.
[63] Markarian v The Queen (2005) 228 CLR 357 at 372 [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Hallam v O’Dea (1979) 22 SASR 133 at 136-7 per King CJ.
The next reference point is the principle that like cases should be treated in a like manner. In Wong v The Queen Gleeson CJ explained:
All discretionary decision–making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.[64]
[64] Wong v The Queen (2001) 207 CLR 584 at 591 [6].
The principle of consistency requires a consideration of comparable cases.[65]
[65] Markarian v The Queen (2005) 228 CLR 357 at 388-9 [78] – [79] per McHugh J.
Consistency has a place in the sentencing of young offenders, although for the reasons that I have already given it operates very differently than it does in the sentencing of adults. There is very little, if any, room for the application of tariffs in sentencing young offenders. Nonetheless, in addition to the personal antecedents of a young offender there is an objective element in the process of determining what is necessary for the purposes of his or her correction. That objective element is governed by the gravity of the particular crime for which he or she is being sentenced. In the case of children it will also be necessary to consider whether the sentence under consideration is proportionate having regard to the maximum period of detention that the Act implies should ever be necessary for the correction and guidance of young offenders who are being sentenced as such.
The objective standards to which I have referred cannot be applied with engineering like precision.[66] When they are properly applied, along with all other sentencing principles and provisions, to the facts and circumstances of a particular offender, the best that can be hoped for is a range of sentences that the majority of experienced judges would agree were appropriate.[67] The individual judges comprising that notional majority may well select different sentencing points within that range according to their view of the relative weight that must be given to the competing sentencing objectives in the particular circumstances of the case before them.
[66] Markarian v The Queen (2005) 228 CLR 357 at 405 [133] per Kirby J.
[67] Markarian v The Queen (2005) 228 CLR 357 at 371 [27] – [28] per Gleeson CJ, Gummow, Hayne and Callinan JJ, at 405 [133] per Kirby J.
Applying the sentencing principles that I have discussed to this case the following matters may be observed. First, the starting point adopted by the Youth Court Judge of two years is very close to the maximum period of detention that the Youth Court can impose. It is difficult to accept that such a high proportion of the maximum that can be imposed for the correction and guidance of a young offender was necessary in this case. The penalty imposed leaves very little room for the sentencing of young offenders for more serious cases who may be in much greater need of correction than the appellant. It is possible to imagine many cases where, even though the gravity of the offence and the antecedents of the offender are not such as to require that the youth be sentenced as an adult, substantially longer sentences of detention than the one imposed on the appellant would be required for the purposes of correction. Young offenders with antecedents that offer very little prospect of rehabilitation and who have been convicted of much more serious aggravated assaults, rape and armed robbery are some obvious examples. In such cases correction, personal deterrence and the protection of the community will demand significantly higher periods of detention than could reasonably be thought to be needed in the case of the appellant.
Secondly, there is not much difference between the starting point chosen by the Youth Court Judge and some sentences imposed on adults for offences of causing serious harm in broadly similar circumstances.[68] King CJ emphasised in Hallam v O’Dea that it was largely meaningless, when sentencing a youth, to start by asking what sentence of imprisonment would have been appropriate if the youth had committed the offence when he was 18. Nonetheless, the fact that a sentence imposed on a youth approaches or is within the range of sentences imposed for similar offences on adults may be indicative of error.[69] It suggests that the special sentencing principles applicable to young offenders have not been reflected fully in the sentence imposed.
[68] See sentences imposed in the District Court in the following matters: Ian David Gray, 7 May 2008 starting point of three years for aggravated offence of unlawfully causing serious harm by attacking a victim with a solid piece of wood resulting in a fractured skull, and leaving residual disabilities; Josef Patterson, 19 February 2008 sentence of three years suspended for drunken fight punching someone to the ground and around the head fracturing right and left orbit and nasal bones; Tallen Douglas Kilpatrick, 8 August 2008, attack outside of a hotel, punches causing serious injury to the face around the eye and requiring lifelong plates to be inserted, starting point nine months reduced to six months and suspended; cf Michael Adam King, 27 May 2008, smashing car window leaving victim with serious injury to eye then protracted assault by punching and biting a bystander who came to the rescue of the first victim causing him a broken nose, thumb and bruised ribs and bite wounds, starting point seven years imprisonment; Mark Alan Roberts, 9 July 2008, sentence of five years and six months for offences of assault and wounding with intent to do grievous bodily harm involving the infliction of serious injuries with the use of a knife.
[69] R v QTV (2003) 87 SASR 378 at 389-390, [54].
Thirdly, some sentences imposed in the Youth Court on other young offenders for causing serious harm are significantly lower.[70]
[70] In the matter of RA sentence, 26 October 2007, use of knife in fight suspended five months detention; In the matter of JJD sentence, 7 March 2008, drunken attack outside a party with a bottle causing laceration to the right eyebrow blood nose, fractured right eye socket, bruising to the brain and subsequent headaches and vomiting, six months detention suspended.
Fourthly, a sentence of two years and two months was recently imposed by a judge of this court on a young offender who was sentenced as an adult for causing serious harm with an intention to do so.[71] The offence in that case was more serious than here in that it involved the use of weapons. The offender in that case pleaded guilty on the first day of trial. Although the offender was younger, his antecedents were much more worrying than the appellant’s. The fact that the starting point adopted by the Youth Court Judge in this case was so close to the sentence imposed on the youth who was being sentenced as an adult, is also indicative of error.
[71] Sentencing Remarks R v PL 18 September 2008.
Fifthly, the length of the sentence imposed would seriously disrupt the appellant’s very real prospects of obtaining employment in 2009. [72]
[72] Section 3(3)(d) Young Offenders Act 1993.
Finally there is my own assessment of the length of the detention that is necessary for the care, correction and guidance of the appellant. My assessment is only relevant to the identification of the range of sentences that a majority of judges would consider appropriate in the circumstances of this case. A small difference between the sentence appealed against and the sentence that the appellate tribunal would have imposed is logically incapable of demonstrating that the sentence is plainly unjust or unreasonable. The precept against appellate tinkering is not a product of inter-curial comity. It is a corollary of the principle stated in House v The King.
There are a number of striking aspects of the appellant’s character that demonstrate unusually strong prospects of successful rehabilitation. The fact that the appellant voluntarily gave himself up to police when the police had no idea who the assailants were and the appellant had no reason whatsoever to believe that he was under suspicion shows exceptional responsibility and remorse. The fact that he identified his co-offenders notwithstanding the very adverse personal consequences that action would have on his relationship with his peer group is also of great weight. The appellant’s previous good behaviour, his achievements in completing Year 11 and attending TAFE also strongly indicate that he has the capacity to turn his back on offending. Those matters suggest that a sentence of detention at the lower end of the permissible three years range would be sufficient for the purposes of correction. True it is that the offences were extremely serious because of the savagery of the attack on Mr Burke and Mr O’Reilly. However, given the more limited object of imposing penalties on youths prescribed by s 3 of the Act, the effect of that circumstance is significantly reduced. Ultimately my assessment is that the sentence imposed by the Youth Court Judge is much longer than that which is necessary for the purposes of correction, personal deterrence and protection of the community.
For the above reasons I am persuaded that the sentence imposed by the Youth Court Judge is manifestly excessive.
Re-sentencing
The task of re-sentencing the appellant must proceed from a realistic assessment of all of the circumstances. His educational, sporting and social achievements are extremely creditworthy. However, they should not be allowed to obscure the fact that there is an aspect of the appellant’s character that led him to commit the extremely serious and life threatening offences of which he has been convicted. The only sanction that is capable of achieving the necessary correction of that aspect of the appellant’s character and of providing future guidance is a period of actual detention. The positive aspects of the appellant’s antecedents and his willingness to facilitate the administration of justice persuade me that a sentence of 46 weeks detention will serve those purposes.
I cannot find, in the circumstances of this case, any good reason to suspend the entire period of detention. In particular, to do so would not provide the appellant with the correction and guidance that is demanded by his commission of these offences. I am satisfied however that there is good reason to order the appellant’s release pursuant to s 38(2a) of the CLSA after he has served a period detention of 23 weeks. An order for early release after that time would reduce the disruption of his prospects of obtaining employment, and of otherwise pursuing his advancement, in 2009 without unduly detracting from the corrective effect of the detention order. The period of 23 weeks is also consistent with the minimum proportion of a sentence of 12 months or more that must be served before a youth is eligible for conditional release pursuant to s 41 of the Act.
Conclusion
I join in the orders proposed by White J.
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