AJK v Police

AJK v POLICE
[2002] SASC 264
Magistrates Appeal
WICKS J

This is an appeal against conviction and sentence.
On 14 September 2001 the appellant was charged on complaint with being on premises without lawful excuse and assaulting a member of the police force in the execution of his duty contrary to s 17(1) and s 6(1) respectively of the Summary Offences Act 1953.
The background to the offences was that on the evening of 14 September 2001 the appellant and some friends had been walking from one friend’s house to another in Whyalla. They had cut through the grounds of the Greek Orthodox Church and while doing so, one of them rang the church bell. While crossing the grounds of the church they were seen by a nearby resident, who, when the bell had been rung, contacted the police. They were apprehended in Gowrie Avenue, not far from the Church. The youths were held while the Orthodox Church and its grounds were checked. No damage to property was caused.
The appellant was arrested for being unlawfully on premises. None of the other youths were arrested. The appellant felt aggrieved. He argued further with the police. He demanded of one of the officers concerned that he give him his number. The police officer refuse to do so and turned from the appellant so that it was difficult to read the number. The appellant grasped the officer’s shirt and jumper endeavouring to turn them so that he could read the number. In the process the epaulet was removed from the left shoulder. It was secured by Velcro. It came off. The police recovered the epaulet.
On 19 December 2001, the appellant pleaded guilty to both counts, namely being on premises without lawful excuse and assaulting a member of the police force whilst acting in the execution of his duty. The appellant was convicted on both offences and pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the learned Magistrate fixed one penalty in respect of both offences. An order was made placing the appellant on an obligation in the sum of $200 for a period of twelve months and on the following conditions:
To report to FAYS Whyalla within two working days.
To be of good behaviour.
To be under the supervision of a probation and parole officer.
To attend such projects and programmes as directed, particularly those with regard to cognitive and life skills.
To attend such psychological counselling as directed to deal with self-esteem issues and behaviour modification interventions to temper his impulsive behaviours.
To attend such social work interventions where the consequences of potential re-offending can be reinforced and counselling in regard to unresolved issues such as social and emotional immaturity.
“FAYS” is the Department of Family and Youth Services.
The personal circumstances of the appellant are that he is a student at the Edward John Eyre High School. He was 16 years of age and in Year 11 at the time the offences were committed. He lives at home with his mother and stepfather, both of whom are in full-time employment. He actively participates in sporting events, playing soccer, football and volleyball. After he was arrested for the offences, he was released on bail, a term of which being that he was subject to a curfew. This meant that he was to be at home between 7.00 pm and 8.30 am. He could not attend sporting practices as a result.
The appellant had committed several prior offences. He appeared in the Youth Court at Port Augusta in February 2001 on charges of being unlawfully on premises with intent to steal, larceny by finding and failing to comply with a bail agreement. No conviction was recorded in relation to those charges.
In relation to being unlawfully on premises with intent to steal, it was submitted that the circumstances of that offence were that the appellant and a number of youths were walking past the Mitre 10 store which is located near the Westlands Shopping Centre in Whyalla. It was at an appropriate time of night. The owner of the Mitre 10 store had forgotten to secure the garden section which is attached to the store. It is a large section which has large wire gates which are in part covered by shade cloth. Inside was a garden section. The gate had been left open. The youths noticing this went in for a look. It was a spur of the moment decision. A total of five small garden gnomes were eventually taken by the youths. Other than that, the garden centre was left without any loss or damage.
There was a prior offence of larceny by finding. That related to the appellant finding a part of a computer in a laneway. The computer equipment had been stolen and, it would appear, stripped. The part of the computer that was recovered by him was not operational nor of any value.
According to his counsel, the appellant was genuinely contrite and sorry about the offences of being on premises without lawful excuse and assaulting a police officer whilst acting in the execution of his duty, the subject of these proceedings. He had demonstrated that contrition and remorse by entering a plea of guilty at the first available opportunity. He has learned from his experience.
All of these facts were before the Magistrate at the time of making his decision to record a conviction.
Time within which to lodge notice of appeal
This appeal was instituted pursuant to s 22 of the Youth Court Act 1993 and r 96D.02(1) of the Supreme Court Rules. Twenty-eight days is the period in which on appeal under the Youth Court Act may be instituted. In the present case, the appeal was commenced within the time allowed.
Section 3 of the Young Offenders Act
Section 3 of the Young Offenders Act 1993 deals with the objects and statutory policies of the act. It reads as follows:
"(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;
(b)[Repealed]
(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, regard should also be had to the deterrent effect any proposed sanction may have on other youths.
(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."
The Grounds of Appeal
The first ground of appeal is that the sentence imposed by the learned Magistrate was manifestly excessive in all the circumstances.
The second ground of appeal is that the learned Magistrate failed to give proper regard to and structure the sentence in accordance with the requirements of s 3 of the Young Offenders Act.
The third ground of appeal is that the learned Magistrate allowed considerations of general deterrence to be taken into account contrary to the requirements of s 3(2a) of the Young Offenders Act.
The fourth ground of appeal is that the learned Magistrate did not make reference during the sentencing remarks to how the relevant requirements of s 3 Young Offenders Act had been addressed.
Was the sentence imposed by the learned Magistrate manifestly excessive?
I have found some difficulty here. The Criminal Law (Sentencing) Act defines a sentence as follows:
"3. (1) In this Act, unless the contrary intention appears –
…
‘sentence’ means –
(a) the imposition of a penalty; or
(b)the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)…
(d)the making of any other order or direction affecting penalty;"
In the case of a juvenile, s 26 of the Young Offenders Act provides that a Court may not require him or her to enter into a bond but, by order, may impose an obligation to the kind that may otherwise have been imposed under a bond. As I see it, in this matter there is no complaint about the obligation intended to be imposed. It is not suggested that the terms of the obligation concerned are unduly onerous. What is complained of is the fact that a conviction has been recorded against the appellant in relation to the offences concerned. The recording of a conviction is not the imposition of a sentence. The first ground of appeal asked whether the sentence imposed by the learned Magistrate was manifestly excessive. The sentence in question is referred to earlier in these reasons. It was an order placing the appellant on an obligation in the sum of $200 for a period of twelve months and on certain conditions referred to above.
When considering whether or not to record a conviction, regard must be had to s 39 of the Criminal Law (Sentencing) Act which reads as follows:
"39(1)         Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond -
(a)     to be of good behaviour; and
(ab)   to comply with other conditions (if any) included in the bond; and
(b)     ...
(1a)   ...
(2)..."
Section 16 of the Criminal Law (Sentencing) Act which covers much the same ground as s 39 of that Act, would appear to be applicable only where the court proposes to impose a fine or sentence of community service or both. That section would appear to have no application to the present case which is not concerned with either a fine or community service.
Section 3A of the Criminal Law (Sentencing) Act provides that subject to the provisions of that Act to the contrary, the Criminal Law (Sentencing) Act applies to the sentencing of a youth and the enforcement of a sentence against a youth. Section 39(1) of the Criminal Law (Sentencing) Act would appear to be applicable to an obligation in the nature of a bond and would appear to be applicable to juveniles.
It appears from the affidavit of Mr Peter Duffy on behalf of the appellant sworn on 18 February 2002 that a submission was put by Mr Duffy to the Magistrates Court that although the appellant had two prior convictions, it was appropriate to deal with him without imposing a conviction.
The circumstances of this case have been briefly outlined above. The appellant was charged with two offences. It appears from the learned Magistrate’s reasons that he viewed the offence of assaulting a police officer to be the more serious of the two. In his reasons, he said:
"Police officers in the community are not there to be abused, assaulted or in any way dealt with in other than a courteous manner if they are lawfully going about their duties. I accept the best possible version put to me by learned counsel and I add with some reservation, that I do accept that version under the authority of Law v Deed (1970) SASR 374 with regard to the fact that what the defendant wanted to do was ascertain the number of the police officer."
It is clear that the learned Magistrate accepted the version of events most favourable to the appellant and realised that what occurred was probably the result of a spontaneous and rather foolish act on the part of the appellant.
Counsel for the appellant has submitted that a conviction should not have been recorded and the sentence imposed by the learned Magistrate was manifestly excessive.
The maximum penalty available for the offence of assaulting a police officer is a fine of $10,000 or imprisonment for two years. The maximum penalty available for being on premises without lawful excuse is a fine of $2,500 or imprisonment for six months.
Had the appellant been an adult it would be have been safe to say that the penalty imposed by the learned Magistrate was a very light one. However, it is clear that in sentencing a juvenile, the Criminal Law (Sentencing) Act must be read subject to the Young Offenders Act and in particular, s 3 of that Act. This was observed by King CJ in Hallam v O’Dea (1979) 22 SASR 133 in relation to previous legislation dealing with young offenders: At p 136 he said:
"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."
These observations are equally applicable to the approach to sentencing under the current Young Offenders Act: see L v Police (Unreported Judgment No S6821 dated 27 August 1998).
An appellate court should not interfere with the exercise of a Magistrate’s sentencing discretion unless the sentence was unreasonable, clearly unjust or there are grounds for saying that it arose from an error of fact or law or failure to take into account any material consideration or from giving undue weight to any circumstances or matter: House v The King (1936) 55 CLR 499 at p 504. At p 505, Dixon, Evatt and McTiernan JJ in a joint judgment said:
"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
See also Uznanski v Searle (1981) 26 SASR 388, per King CJ at p 389.
The incident involving the church bell is trivial. The incident involving the assault on a police officer while carrying out his duties is more serious, although I believe that there were some extenuating circumstances. It is difficult to see why the appellant should be singled out by the police for special treatment. This is not the first time I have come across a case where a police officer has been reluctant to divulge his number to a member of the public who has been detained or arrested. The conduct of the officer concerned on this occasion was provocative. In saying that, I do not condone the appellant’s conduct. However, I am conscious of the fact that the appellant was only 16 at the time and that his conduct was, as I have said earlier in these reasons, spontaneous and foolish. The objectives of the Young Offenders Act clearly contemplate a measure of tolerance on the part of the adult community to the shortcomings of young persons and young offenders in particular.
In the present case, the learned Magistrate in his reasons made no reference to s 39 of the Criminal Law (Sentencing) Act although it was of particular relevance to this case where a young person was being convicted and sentenced. In doing so he failed to take into account a material consideration. This court is now entitled to exercise its own discretion in the matter in substitution for that of the learned Magistrate.
In adult terms such a sentence would be regarded as light. However, as we are dealing with a juvenile, s 3 of the Young Offenders Act must be taken into account. In that section the object of the 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”. In order for this objective to be realised a very different approach to sentencing is required from that which prevails in the adult courts. The deterrent effect which a penalty imposed on other youths must not be considered.
Having regard to the objectives of the Young Offenders Act, the sentence imposed by the learned Magistrate was not manifestly excessive.
In my opinion, the conviction recorded by the learned Magistrate should be set aside.
Did the Magistrate fail to have proper regard to the requirements of s 3 Young Offenders Act?
Counsel for the appellant has submitted that the learned Magistrate failed to have proper regard to and failed to structure the sentence imposed in accordance with the requirements of s 3 of the Young Offenders Act. In particular, I have been referred to s 3(3)(d) of that Act which is to the effect that so far as the circumstances of the individual case allow “there should be no unnecessary interruption of a youth’s education or employment”.
It was submitted by counsel for the appellant that the appellant has expressed a desire to apply to enter the army and that a criminal conviction may impede his entry. Counsel did not have any instructions in relation to this issue at the time of the hearing before the learned Magistrate, and it has been raised for the first time before me. Presumably this information was not before the learned Magistrate as the appellant, having been at school this year has only recently turned his mind to his possible career options.
In O’Hanlon v South Australian Police (1994) 62 SASR 553 Bollen J indicated that s 3(3)(d) is aimed at any employment or education that young offenders may be engaged in at the time matters proceed before a magistrate. He said:
"I am inclined to think that s 3(3)(d) of the Young Offenders Act does contemplate a youthful person being educated at school or university or in employment at the time that the court is considering the matter …"
I agree. Based on this reasoning, the learned Magistrate was not entitled to take into account any future employment which the appellant may have wished to apply for but only the fact that he was in Year 11 at the time the matter was before the court.
I do not place much weight on the appellant’s desire to join the army and do not believe that it would necessarily have changed the learned Magistrate’s decision to record a conviction. Although it is true that gaining employment in the army is an area where it would be particularly important for the appellant to be able to state that he had no prior convictions, the same could be said for almost any occupation for which the appellant may wish to apply. The learned Magistrate would have been aware of this when deciding to reject the submissions of counsel for the appellant and record a conviction. He was aware of all of the circumstances of the offence and of the personal circumstances of the appellant.
In having proper regard to the requirements of s 3 of the Young Offenders Act, the learned Magistrate should also have had regard to the objects and powers and also the statutory policies as set out in that section. Nothing has been said by the learned Magistrate to suggest that he has taken into account any of the above matters.
Were considerations of general deterrence taken into account?

Section 3(2a) of the Young Offenders Act states that in imposing sanctions:
"(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, regard should also be had to the deterrent effect any proposed sanction may have on other youths."
The appellant is not being dealt with as an adult and therefore s 3(2a)(b) does not apply. Section 3(2a)(a) refers only to the deterrent effect that a proposed sanction may have “on the youth” and is therefore consistent with the well established principle that when sentencing a youth, the court must consider questions of personal deterrence only: Schulze v Schulze (1995) 180 LSJS 371.
It has been submitted by counsel for the appellant that the learned Magistrate allowed considerations of general deterrence to be taken into account when imposing the sentence. Counsel for the appellant submits that in stating that “Police officers in the community are not there to be abused, assaulted or in any way dealt with in other than a courteous manner if they are lawfully going about their duties” the learned Magistrate was making a comment directed towards general and not personal deterrence. Counsel for the respondent argues that there is nothing in the learned Magistrate’s remarks on penalty to suggest that he allowed considerations of general deterrence to be taken into account. I accept that argument.
Did the Magistrate fail to make reference to how the requirements of section 3 had been addressed?
The respondent acknowledges, and I am of the view, that the learned Magistrate’s remarks on penalty do not disclose whether or not he has considered the requirements of s 3 of the Act or how such requirements have been addressed. This amounts to a miscarriage of the Magistrate’s sentencing discretion. The appellant should be sentenced afresh.
Counsel for the appellant has referred me to two cases which contemplate the principle that magistrates must make reference to how the requirements of s 3 have been addressed. The first case is RJB v Police [2000] SASC 209. In this case, the youth in question was charged with a number of offences and was convicted on his plea of guilty. The magistrate ordered the appellant to serve a period of four months of detention and declined to suspend that period. In this case, at p 4 Debelle J found:
" Although the magistrate has expressly referred to the matters set out in the Young Offenders Act 1993, it is not apparent to which objectives of the Act he has had regard. I acknowledge that these are the ex tempore reasons of a busy magistrate intent upon disposing of a heavy list. However, the reference by the magistrate to the matters set out in the Young Offenders Act does not indicate to which of the matters or the objectives of that Act, as spelled out in s 3 of the Act, the magistrate has had regard ...
But those remarks do not indicate whether the magistrate has considered the policy or objectives of the Act."
Debelle J considered this to be a miscarriage of the Magistrate’s sentencing discretion and for that reason he set aside the sentence and sentenced the appellant afresh.
The other case I have been referred to is KBS v Police [2001] SASC 40. In this case a 17 year old boy who was charged with various offences, including assaulting a police officer, was sentenced to a period of detention and the magistrate declined to suspend the sentence. On appeal it was submitted that the penalty imposed was manifestly excessive and, alternatively, that the sentence imposed should have been suspended. In relation to s 3, at p 9 of KBS v Police Gray J stated:
" However the magistrate's remarks on penalty do not disclose an explicit consideration of the requirements of s 3 of the Act. Section 3 requires the sentencing court to give effect to a number of statutory policies so far as the circumstances of the individual case allow ...
The magistrate made no express reference to these considerations."
I consider that in failing to indicate how the requirements of s 3 of the Young Offenders Act were taken into account in the sentencing process, the learned Magistrate was in error and that there has been a miscarriage of justice. I propose to sentence the appellant afresh.
The orders of the Court are therefore:
(1) I allow the appeal for the purpose of setting aside the convictions only.
(2)The convictions recorded by the Magistrates Court sitting at Whyalla be set aside;
(3) The sentence imposed by the Magistrates Court sitting at Whyalla stand.

[2002] SASC 264

7 August 2002