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…

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.

Continue reading B, JL v Police

Details

AGLC: B, JL v Police [2017] SASC 9
Case: [2017] SASC 9
Decision Date: 10 February 2017

CaseChat Overview and Summary

B, JL v Police is a case concerning the sentencing of a young offender, where the appellant challenged the decision to record a conviction against him. The Court of Appeal in South Australia was tasked with determining whether the magistrate erred in proceeding to record a conviction and, if so, what appropriate sentence should be imposed.

The legal issues before the court were whether the magistrate correctly exercised the discretion to record a conviction against the appellant, and if not, what the appropriate sentence should be. The court needed to consider the statutory policy that emphasises the care, correction, and guidance of youth offenders, and whether the recording of a conviction was necessary to achieve these objectives.

The court found that the magistrate erred in proceeding to record a conviction because the public interest in recording a conviction was reduced when sentencing a youth. The court highlighted that the Youth Court must balance the need for care and correction against the need to address the consequences of a breach of the law. The court also noted that the appellant's employment should not be unnecessarily interrupted in dealing with his offending. Consequently, the court set aside the conviction and imposed a 12-month obligation on the appellant to be of good behaviour in the sum of $250 in his own recognisance, which would commence from 14 October 2016.

The court allowed the appeal, set aside the conviction, and imposed a 12-month obligation on the appellant to be of good behaviour in the sum of $250 in his own recognisance. This outcome reflected the court's consideration of the statutory policy and the need to appropriately address youth offending without unnecessarily interrupting the offender's employment.

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

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.

Ratio Decidendi

Legal Principle Established

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.