AJK v Police - [2002] SASC 264

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: AJK v Police [2002] SASC 264
Case: [2002] SASC 264
Decision Date: 7 August 2002

CaseChat Overview and Summary

The appellant, AJK, was before the court contesting a sentencing decision made by the Magistrate in the Magistrates Court of South Australia. The primary dispute revolves around whether the Magistrate appropriately considered the statutory requirements and objects under the Young Offenders Act when imposing a sentence on AJK. The appellant argues that the Magistrate failed to properly apply the statutory provisions, leading to an incorrect sentencing process.

The legal issues before the court involved whether the Magistrate appropriately considered the statutory requirements and objects under the Young Offenders Act when sentencing AJK. Specifically, the court needed to determine whether the Magistrate took into account the personal deterrent effect on AJK as required by the Act and if the Magistrate adequately referenced how the statutory requirements were addressed. Furthermore, the court had to consider whether the Magistrate inadvertently allowed considerations of general deterrence, which is not applicable in this context.

In resolving these issues, the court found that the Magistrate did not appropriately consider the statutory requirements and objects of the Young Offenders Act. The Magistrate’s comments did not indicate any consideration of personal deterrence, which is a key requirement under section 3(2a) of the Act. Additionally, the Magistrate’s remarks did not clearly show how the statutory requirements had been addressed, leading the court to conclude that there was a miscarriage of the Magistrate’s sentencing discretion. Therefore, the court ordered that AJK should be re-sentenced by a different Magistrate.

The final orders of the court were that AJK should be re-sentenced by a different Magistrate, ensuring that the statutory requirements and objects under the Young Offenders Act are properly considered and referenced in the sentencing process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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."