B, JL v Police - [2017] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
B, JL v POLICE
[2017] SASC 9
Judgment of The Honourable Justice Stanley
10 February 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
This is an appeal against sentence. The appellant pleaded guilty to a charge of aggravated assault contrary to s 20(3)(b) of the Criminal Law Consolidation Act 1935 (SA), the circumstances of aggravation being that the assault occurred in breach of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
At the time of the offending the appellant was a youth.
A magistrate sitting in the Youth Court proceeded by way of recording a conviction and imposed a 12-month obligation on the appellant to be of good behaviour.
The sole ground of appeal is that the learned magistrate erred in not proceeding to sentence the appellant without recording a conviction.
The appellant seeks orders that the court set aside the conviction and proceed to resentence the appellant or remit the matter to a different magistrate for resentence.
Held, per Stanley J:
1. The learned sentencing magistrate fell into error in failing to have regard to the statutory policy enshrined in s 3 of the Youth Offenders Act 1993 (SA) that there should be no unnecessary interruption of a youth’s employment in dealing with a youth’s offending (at [20]).
2. Allow the appeal (at [25]).
3. Set aside the conviction (at [24]-[25]).
4. Impose a 12-month obligation on the appellant to be of good behaviour in the sum of $250 in his own recognisance. The obligation will commence from 14 October 2016 (at [24]-[25]).
Criminal Law Consolidation Act 1935 (SA) s 20(3)(b); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Young Offenders Act 1993 (SA) s 3(3)(d); Criminal Law (Sentencing) Act 1988 (SA) s 39, referred to.
W, CD v Police; M, BC v Police [2014] SASCFC 72; K v Police [1999] SASC 407; Police v Watson (2016) 125 SASR 212; Popowycz v Police [2016] SASC 126; LO v Police [2008] SASC 324; Wade v Allsopp (1976) 10 ALR 353, considered.

B, JL v POLICE
[2017] SASC 9
Magistrates Appeal: Criminal
STANLEY J:
Introduction

This is an appeal against sentence. The appellant pleaded guilty to a charge of aggravated assault, contrary to s 20(3)(b) of the Criminal Law Consolidation Act 1935 (SA), the circumstance of aggravation being that the assault occurred in breach of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
At the time of the offending the appellant was a youth.
A magistrate sitting in the Youth Court proceeded by way of recording a conviction and imposed a 12-month obligation on the appellant to be of good behaviour.
The sole ground of appeal is that the learned magistrate erred in not proceeding to sentence the appellant without recording a conviction.
The appellant seeks orders that the court set aside the conviction and proceed to resentence the appellant or remit the matter to a different magistrate for resentence.
Circumstances of the offending
The appellant and the complainant were in a domestic relationship. At the time of the offending the complainant was the mother of the appellant’s small child and was pregnant with his second child. There was an argument between the appellant and the complainant. The appellant assaulted the complainant by grabbing her upper arms and squeezing tightly. The complainant attempted to pack up her belongings preparatory to leaving the house and the appellant grabbed her twice again by the arms. The appellant was agitated and shouting. His mother intervened and he verbally abused her. The complainant said she was shaken and intimidated by the appellant’s behaviour and some bruising was caused to her arms but she did not seek any medical treatment. This offending occurred against a background of the appellant being subject to an intervention order not to assault, harass, intimidate or threaten the complainant.
The appellant’s personal circumstances
At the time of the offending the appellant was 17 years of age. He had been in a relationship with the complainant for about 18 months. At the time of the offending they had a seven-month old child. Subsequently a further child has been born. The appellant and the complainant reconciled in February 2016.
The appellant had previously been dealt with by the Youth Court for an assault and property damage relating to the complainant. The matter went to a family conference and he was subject to a diversion program involving counselling with a Mr Doherty from the Northern Area Community and Youth Services. The appellant has subsequently continued to undertake counselling with Mr Doherty on a voluntary basis in order to address anger management issues and to develop responsible parenting and coping skills.
Previously the appellant was in employment for two years. He lost his job when the business closed down. He has since undertaken a course of study and obtained a Certificate in Automotive Mechanics. He has been undertaking some work experience in the mechanical shop of a car dealership.
The appellant has supportive parents. The magistrate heard a submission that since this offending he has developed insight into the impact of the offending on the complainant and his own issues with anger and has taken steps to avoid further offending. By the time the magistrate came to sentence the appellant he had turned 18. The magistrate nonetheless sentenced him on the basis he was a youth.
Sentencing remarks
In sentencing the appellant the magistrate addressed the question of whether to proceed without recording a conviction as follows:[1]
There are a whole lot of factors that have been put to me as to whether a conviction should be recorded or not and I note that I have got a very detailed report from Mr Doherty about the progress that you have made.
It was a relatively short time between the first matter and this matter. You were subject to an Intervention Order and she was pregnant at the time. Your mother intervened and as in all cases we have to look at sentencing as a balancing exercise.
Your lawyer submits that I should order without conviction, saying it is appropriate in this case, particularly given the progress made. I do not doubt that there is progress made. I have heard submissions on that question. Your lawyer submits that a conviction may interfere with prospects for your future, including for example employment. Of course rehabilitation has to be considered here. In my view that is of more prominence in a youth case than it is in an adult case, but specific deterrence is also relevant to be considered in sentencing in the Youth Court. That is clearly set out in the legislation.
As I have said, Exhibit 1 is a report as to progress made after you have been directed to undertake that program. You have been doing that. You have been attending regularly. They also refer to substance abuse issues that are now, it seems to me, to be well and truly under control. So I certainly accept that progress has been made prior to sentencing.
So I have considered all of the material that is before me, including the relevant sentencing principles and submissions that have been made. But I do regard this as an inappropriate case for without conviction and I make that ruling after considering everything that has been put to me, particularly your age at the time, the fact that you were on a court order, the fact your partner was pregnant, that your mother’s intervention led to you stopping the offending. Those matters in my view have to be given significant prominence here. Not to ignore your rehabilitation, I certainly do not propose ordering a period of detention or indeed any such type of penalty here.
[1] Police v [B] MCPAR-16-4600 Remarks on Penalty of Magistrate Little 14 October 2016 at [18] – [22].
Submissions
The appellant submits that the learned magistrate erred in the exercise of her discretion by proceeding to record a conviction. He submits the magistrate erred in considering that the recording of a conviction would serve as a deterrent to the appellant. Second, he submits the magistrate erred in failing to give effect to the objects and statutory policies of the Young Offenders Act 1993 (SA) (YOA) and, in particular, the policy enshrined in s 3(3)(d) that there should be no unnecessary interruption of employment. He submits the recording of a conviction has a real potential to adversely affect his prospects of obtaining employment which would not only be detrimental to him but also to the complainant and their children.
The respondent submits that there is no House v The King error demonstrated in the exercise of the magistrate’s discretion to record a conviction in this case. The gravamen of the appellant’s submissions rises no higher than a complaint about the manner in which the magistrate has exercised her discretion. She was required to undertake a balancing act in sentencing the appellant and the recording of a conviction was a matter well within the bounds of the discretion she was exercising. The magistrate had regard to all relevant considerations and did not have regard to any irrelevant considerations. No error has been demonstrated by a complaint that the sentencing magistrate failed to have adequate regard to any relevant considerations. It was open to the magistrate to consider that the recording of a conviction would serve as a deterrent to the appellant and she expressly had regard to the impact of a conviction on his employment prospects.
Principles relevant to an appeal by a youth against sentence
The appellant was to be sentenced as a youth. The YOA applied. Plainly the learned sentencing magistrate was conscious of the application of the YOA. The principles applicable to the sentencing of young offenders was considered by the Full Court in W, CD v Police; M, BC v Police[2] where Gray J, with whom Peek and Nicholson JJ agreed, said:[3]
[2] [2014] SASCFC 72.
[3] [2014] SASCFC 72 at [14] – [20].
Section 3 of the Young Offenders Act is the cornerstone of the process of sentencing young offenders. It identifies the statutory object and policies to be pursued in the sentencing of young offenders. It aims to secure for youths the care, correction and guidance necessary for their development into responsible and useful members of the community, and the proper realisation of their potential. However, at the same time, young offenders are to be made aware of their obligations under the law and of the consequences of the breach of the law, and the community is to be adequately protected against violent or wrongful acts. An appropriate sentence must allow each of these objectives to be achieved.
It is not necessary for a Youth Court Judge or Magistrate to address each of the factors specified in section 3 of the Young Offenders Act in detail in their sentencing remarks and the failure to do so is not of itself enough to demonstrate error. It is, however, important that the sentencing remarks make plain that the correct sentencing principles have been applied. In A, MC, White J made the following relevant observations:
… 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.
The Criminal Law (Sentencing) Act 1988 (SA) applies to the sentencing of a youth as much as to an adult. However, the principles of the Young Offenders Act are to prevail in the event of any conflict. The application of section 10 of the Sentencing Act must be directed to the fulfilment of the objects and policies of section 3 of the Young Offenders Act.
The need to ensure that the defendant is adequately punished for the offence has less significance in the sentencing of a youth than it does in the sentencing of an adult. However, at least with respect to serious offences, the sentence of a youth should reflect the gravity of the crime.
Section 3 of the Young Offenders Act requires the court to assume that the youth has the potential to be rehabilitated. Much greater emphasis will be given to the youth’s prospects and potential than might usually be the case in sentencing an adult.
Further, general deterrence is not a consideration when sentencing a young offender.
In sentencing a youth, regard should also be had to the deterrent effect of any proposed sanction on the youth.   General deterrence is not a consideration when sentencing a young offender.
The Young Offenders Act imposes limitations on the Youth Court’s power to sentence youths to either imprisonment or detention. In particular, section 23(4) of the Act provides:
A sentence of detention must not be imposed for an offence unless—
(a)     the offender is a recidivist young offender or a serious firearm offender; or
(b)     in any other case—the Court is satisfied that a sentence of a non-custodial nature would be inadequate—
(i)     because of the gravity or circumstances of the offence; or
(ii)    because the offence is part of a pattern of repeated offending.
[Citations omitted].
In K v Police[4] Doyle CJ referred to the need for the Youth Court to balance the competing considerations of securing for a youth appropriate care, protection and guidance against the need to bring home to a youth the consequences of a breach of the law and to consider the protection of the community.[5]
[4] [1999] SASC 407.
[5] [1999] SASC 407.
Consideration
As the magistrate appreciated, the court had power pursuant to s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) to discharge the appellant without conviction on entering into an obligation. That required consideration of whether there was good reason to do so.
The enquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case. It is also erroneous to attempt to find “good reason” by reference to other cases in which a court exercised or declined to exercise the discretion to proceed without recording a conviction. The decision that good reason exists not to record a conviction must be made solely on the facts and circumstances of a particular case.[6]
[6] Police v Watson [2016] SASC 92 at [22], (2016) 125 SASR 212 at 219.
In determining whether to record a conviction the magistrate had to weigh the benefit to the appellant of no conviction being recorded against the public interest in a conviction being recorded. In my view the public’s interest in a conviction being recorded is reduced when a court comes to sentence a youth as opposed to an adult. That is because other policy considerations concerning the need to secure for the youth the care, correction and guidance necessary for their development into responsible and useful members of the community applies. Just as general deterrence is not a consideration when sentencing a young offender, the public interest in knowing of a youth’s criminal offending is diminished. Greater emphasis is given to the youth’s personal circumstances and the effect the recording of a conviction would have upon that individual. By way of contrast, while the recording of a conviction is often important for reasons of general deterrence that is not a consideration when sentencing a young offender.
Offences of violence by men against women are all too prevalent. All too often they result in harm but the deterrence of those offences will not be adequately achieved unless all offences of violence, whether they cause harm or not, are properly addressed.[7]
[7] Popowycz v Police [2016] SASC 126 at [17].
This was not the first descent by the appellant into offending of this kind. The magistrate was correct in recognising the need for specific deterrence. There was no error on the part of the magistrate in proceeding on this principle. Nonetheless, I consider the learned sentencing magistrate did fall into error in failing to have regard to the statutory policy enshrined in s 3 of the YOA that there should be no unnecessary interruption of a youth’s employment in dealing with a youth’s offending.
The respondent submits that the recording of a conviction could not occasion unnecessary interruption to the appellant’s employment as he was not in employment at the time he was sentenced. I do not accept this submission. In W, LO v Police[8] Layton J said:[9]
This Court in O’Hanlon v South Australian Police indicated that although this section, on its face, contemplates the effect of a conviction on a young person’s education or employment at the time of sentencing, a conviction may handicap a young offender in later obtaining employment, particularly with the difficulties in current labour markets.
This interpretation that s 3(3)(b), (c) and (d) have a sense not only of the present but of the future is, in my view, appropriate.
[Citation omitted].
[8] [2008] SASC 324.
[9] [2008] SASC 324 at [31] – [32].
The appellant was actively seeking employment and undertaking appropriate training for the trade of automotive mechanics. I consider that the recording of a conviction for a young man of 18 seeking to gain a foothold in a precarious labour market has the real potential to seriously prejudice his ability to obtain employment. The rate of unemployment amongst young people is distressingly high. It is important to recognise that the process of employing a person generally involves selecting one from a number of applicants for employment which is, on each occasion, an all or nothing affair in which the applicant who suffers some disadvantage in the employment market may each time be wholly unsuccessful.[10] In my view it is highly relevant that if the recording of a conviction prejudices the appellant in the future in obtaining employment, it will not only be the appellant who will potentially suffer. He is now reconciled with the complainant. They have two small children. They will also be prejudiced if the capacity of the appellant to provide and support them is adversely affected.
[10] Wade v Allsopp (1976) 10 ALR 353 at 361.
In my view it is not an answer to submit, as the respondent does, that the conviction could be expunged under the spent convictions legislation after five years. Those five years could be critical to the appellant in securing a trade.
In these circumstances I consider the magistrate erred in proceeding to record a conviction. It follows that the recording of the conviction should be set aside. In my view it is more convenient for this Court to resentence. I would proceed without recording a conviction. I would otherwise not interfere with the sentence imposed by the learned magistrate. It follows that I would impose a 12-month obligation on the appellant to be of good behaviour in the sum of $250 in his own recognisance. The obligation will commence from 14 October 2016.
Conclusion
I would allow the appeal. I would set aside the conviction. I would impose a 12-month obligation on the appellant to be of good behaviour in the sum of $250 in his own recognisance. The obligation will commence from 14 October 2016.