B, NJ v Police

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
B, NJ v POLICE
[2013] SASCFC 152
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Blue)
23 December 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
This is an appeal against sentence. The defendant and appellant was sentenced by a Judge of the Youth Court for the offences of aggravated causing serious harm with intent to cause serious harm, aggravated causing harm with intent to cause harm and aggravated assault causing harm. The Judge imposed the one sentence of 20 months’ detention for all offences. The Judge made a reduction of four months on account of the defendant’s contrition and remorse as evidenced by her guilty pleas. The Judge declined to exercise his discretion to suspend the sentence.
Whether the Judge had adequate regard to the pleas of guilty when sentencing. Whether the Judge proceeded on a misunderstanding of fact. Whether the Judge failed to properly consider section 3 of the Young Offenders Act 1993 (SA). Whether the sentence imposed was manifestly excessive.
Held per Gray J (Anderson and Blue JJ agreeing) allowing the appeal:
(1) The Judge did not err as a matter of discretion in making the reduction on account of the pleas of guilty (at [19]).
(2) The suggestion that the Judge proceeded to sentence on a misapprehension of fact concerning a dispute over whether the defendant was punched by one of the victims prior to offending is rejected (at [18]).
(3) The decision of the Judge to impose an order of immediate detention was within his sentencing discretion. The gravity of the defendant’s conduct required a sentence of immediate detention to be imposed (at [21]).
(4) The sentence imposed was manifestly excessive (at [39]-[41]).
(5) Sentence imposed in the Youth Court set aside and the defendant resentenced to 12 months' detention backdated to commence on 21 June 2013 (at [45]).
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Young Offenders Act 1993 (SA) s 3 and s 32, referred to.

B, NJ v POLICE
[2013] SASCFC 152
Full Court: Gray, Anderson and Blue JJ
GRAY J.

This is an appeal against sentence.
Introduction
On 21 June 2013, following pleas of guilty, the defendant and appellant was sentenced by a Judge of the Youth Court for the offences of aggravated causing serious harm with intent to cause serious harm to Rex William Wilton, aggravated causing harm with intent to cause harm to David James Rowen and aggravated assault causing harm to Paul Buczko. The Judge imposed, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), the one sentence of 20 months’ detention. The Judge made a reduction of four months on account of the defendant’s contrition and remorse as evidenced by her guilty pleas. The Judge declined to exercise his discretion to suspend the sentence.
The defendant on appeal complained that the Judge, when sentencing, did not have adequate regard to the pleas of guilty, proceeded on a misunderstanding of fact, failed to properly consider section 3 of the Young Offenders Act 1993 (SA) and, finally, imposed a sentence that was manifestly excessive.
The Offending Conduct
On 19 August 2012, the defendant, then aged 16 years, met with a friend, Paul King. At lunch, Mr King received about $400.00 from a poker machine. They spent the afternoon visiting hotels and both consumed a substantial quantity of alcohol. At or about 9.00 pm, they were drinking at the Exchange Hotel in Gawler.
The three victims of the defendant’s offending, Mr Wilton, Mr Rowen and Mr Buczko, had that afternoon been inspecting Mr Buczko’s new home. They then attended at several hotels in the Gawler area and attended at the Exchange Hotel from about 6.00 pm. Each of the men had consumed a quantity of alcohol and acknowledged that they were affected to some degree by that consumption.
Shortly after 9.00 pm, Mr Wilton, Mr Rowen and Mr Buczko decided to leave the hotel. Just before they left, Mr Wilton approached the defendant at the bar and gave her a “high five”. CCTV footage in the hotel showed that there followed a short conversation between the defendant’s friend Mr King and Mr Wilton, at which time, Mr Wilton left the hotel. It had been agreed that Mr Rowen and Mr Buczko would meet with Mr Wilton at a nearby hotel. The defendant and Mr King followed Mr Wilton as he left the hotel. The events outside the hotel were partly captured by CCTV. The defendant was behaving aggressively. She lunged at Mr Wilton and he backed away. The defendant pursued and kicked at Mr Wilton. Mr Wilton moved away from the defendant and onto the street. The defendant followed and shortly thereafter fell to the ground. The defendant recovered her footing and both she and Mr King rushed at Mr Wilton. While Mr Wilton was grappling with Mr King, the defendant produced a knife and stabbed Mr Wilton in the abdomen. At about this time, Mr Rowen emerged from the hotel and ran to assist Mr Wilton, who was trying to move away from the defendant. As Mr Rowen attempted to push the defendant away, Mr King intervened and punched Mr Rowen so that he fell to the ground. The defendant then stabbed Mr Rowen above the left knee. As Mr Rowen sought to protect himself, the defendant stabbed him again. Mr Buczko ran to help Mr Rowen. He pushed the defendant to the ground. The defendant then cut him on the left thumb. Mr Rowen told Mr King to stop the defendant and he did so by placing her in a bear hug.
The defendant has asserted from the time of her arrest that she has no memory of the incident. The defendant said that she carried a knife with her that day for self-protection. Earlier that evening, Mr King had produced another knife, which the defendant had then taken from him and put in her pocket. However, it was accepted that she had used her own knife in committing the offences. The defendant had been sexually assaulted some years earlier and her sister had recently been the victim of a sexual assault. It appears that the defendant considered that the police did not properly address the complaints that she and her sister made of the respective sexual assaults on them. She provided this as an explanation for why she carried a knife. She claimed she did not feel safe, explaining, “particularly knowing the cops didn’t do anything and I didn’t want to walk around without something to protect myself”.
Mr Wilton was treated at the Royal Adelaide Hospital. He had been stabbed eight times by the defendant. He suffered injuries, including a laceration to the colon, three stab wounds to his back, one stab wound to his right shoulder and two stab wounds to his left forearm. The abdominal wound was life threatening if not treated immediately. Mr Wilton’s injuries led to extensive scarring.
Mr Rowen was taken to the Lyell McEwin Hospital where he was observed to have suffered two stab wounds to the left leg and a slash wound to the left wrist. The wounds required suturing. Mr Rowen has been left with a total loss of feeling between the left hip and the left knee.
Mr Buczko sustained a deep laceration to the left thumb, requiring suturing. The thumb now has a different appearance. Victim impact statements from the three victims make it plain that they have all suffered as a result of the defendant’s criminal conduct. All have been left with ongoing physical and psychological sequelae.
The Defendant’s Antecedents
The defendant’s personal antecedents disclose a troubled childhood. She was born on 4 January 1996 and was aged 16 years and 8 months at the time of the offending, and 17 years and 6 months at the time of sentence. The defendant was born in Sydney and came to live between Strathalbyn and Ashbourne on a dairy farm when aged about two years. The family later moved to Strathalbyn. She attended a primary school at Ashbourne where she did well and commenced high school at Strathalbyn High. At this time, the defendant underwent a major change, both academically and socially. When aged about 10 years, she commenced consuming alcohol and engaging in binge drinking. She also smoked marijuana and during her early teenage years became a heavy user. She dropped out of high school by about the middle of year 9. The defendant was the subject of a sexual assault when aged about 13 years.
The defendant has no criminal antecedents. It appears that for the period of about three years before her offending, the defendant had been drifting. She had effectively withdrawn from school, saying that she could not put up with the “crap” from teachers. Her general behaviour at this time deteriorated. She was associating with a negative peer group. When aged about 16 years, she met Mr King. He is ten years her senior. He has had a double lung transplant as a result of suffering from cystic fibrosis.
A psychiatric report before the Court described the defendant as engaging in oppositional behaviour and possibly having suffered from a conduct disorder in her early teens. The defendant gave a history of anxiety following the sexual attack and a later sexual attack on her sister. In the view of the psychiatrist, there was no clear evidence that the defendant suffered from any formal psychiatric disorder. No evidence was found of any underlying personality disorder. The psychiatrist considered that the defendant’s abuse of alcohol appeared to be a significant factor in relation to her offending. The defendant’s reported lack of memory about the incident was consistent with a state of intoxication. The psychiatrist did not consider that any specific treatment was appropriate. The psychiatrist considered that the defendant needed practical support in anger management, and in improving her memory and concentration skills, in education and in obtaining employment. Further, it was said that she would benefit by participation in an alcohol rehabilitation program and considered that her rehabilitation would be best assisted by addressing her substance abuse problems and by helping her obtain appropriate employment.
The Sentencing Remarks
The Judge described the defendant’s offending as being within the most serious category of offending. He described the defendant’s behaviour as both unprovoked and shocking. The Judge considered the offences to be very grave and concluded that those circumstances warranted the making of a custodial order. He placed emphasis on the use of a weapon and the fact that the defendant and Mr King pursued Mr Wilton.
The Judge considered the defendant’s improved behaviour since her arrest and noted that she had undergone a rapid transformation in her behaviour and, in particular, had been cooperative in regard to her rehabilitation. However, the Judge reached the conclusion that it would be inappropriate to direct that the sentence be suspended.
In arriving at the sentence of 20 months’ detention, the Judge had specific regard to time spent in custody on home detention and to the pleas of guilty. In this respect, the Judge remarked:
… In fixing penalty I have had specific regard to the amount of time that you have spent in custody and on home detention. Having regard to all of those matters, I direct that you stand convicted of these three charges and that you be sentenced to 20 months detention. Were it not for your plea of guilty I would have imposed a sentence of 24 months.
The Court record discloses that the defendant was in custody for the period from 10 August 2012 to 22 August 2012. She was then released on home detention bail with electronic monitoring. It appears that the terms of bail were amended on 10 December 2012 and the requirement for electronic monitoring was removed. However, the defendant remained subject to strict conditions on home detention. Hours of curfew were specified. As noted earlier, the defendant was sentenced on 21 June 2013 and, as a consequence, spent 10 months on home detention bail.
An analysis of this aspect of the Judge’s remarks reveals that his notional starting sentence was likely to have been in the order of 28 to 30 months. The Judge did not disclose what reduction he made on account of time in custody on home detention bail, but in the circumstances, an allowance in the order of four to six months could be expected. On the appeal, the defendant complained of the length of the sentence before reductions of 24 months against the maximum of 36 months. However, when regard is had to time in custody and on home detention bail, it would appear that the Judge commenced with a sentence before reductions in the order of 28 to 30 months.
The Appeal
Misapprehension of Fact
During sentencing submissions, the defendant claimed that Mr Wilton had punched her in the face, causing her to fall to the ground. This claim was based on what was said to be clearly observable in the CCTV footage. The prosecution disagreed, contending that the footage revealed an aggressive approach by the defendant to Mr Wilton with some body contact before the defendant fell to the ground. The Judge reviewed the footage and was unable to resolve the dispute. Insofar as it was asserted that the claimed punch was mitigatory, the defendant carried the onus of establishing the fact on the balance of probabilities. She failed to do so before the Judge. A review of the materials confirms that the Judge’s conclusions on this topic were open to him. The suggestion that the Judge proceeded to sentence on a misapprehension of fact in this respect is rejected.
Reduction for Pleas
In the course of submissions, the defendant submitted that an inadequate reduction was made on account of the pleas of guilty. It was pointed out that the pleas followed negotiations and abandonment by the police of the charge of attempted murder. The pleas of guilty followed promptly on the laying of a fresh Information. The reduction of four months represented a reduction of about 17 per cent. I consider this reduction in the circumstances to be at the lower end of the range that might be expected. Ultimately, the question of the extent of the reduction is in the discretion of a sentencing judge. I am not prepared to conclude that the Judge erred as a matter of discretion in making the earlier referred to reduction.
Failure to Suspend
The defendant submitted that the Judge erred in not exercising his discretion to suspend the sentence. It was claimed that the defendant’s progress in regard to rehabilitation provided strong grounds for such an order to be made.
The defendant’s offending was very serious. She attacked three innocent victims with a knife, causing serious injuries. The defendant faced a maximum term of detention of three years. It is to be accepted that the offending occurred in the one ongoing incident. I consider that the decision of the Judge to impose an order of immediate detention was within his sentencing discretion. In my view, the gravity of the defendant’s conduct required a sentence of immediate detention to be imposed. In reaching this conclusion, I have had regard to the statutory direction that a sentence of detention must not be imposed for an offence unless the court is satisfied that a sentence of a non-custodial nature would be inadequate because of the gravity or circumstances of the offence. I have reached this conclusion notwithstanding the steps that the defendant has taken towards rehabilitation.
Manifestly Excessive
Counsel for the defendant submitted that the sentence imposed was manifestly excessive. It was said that the Judge failed to properly consider that the defendant had set about a significant course of rehabilitation and was no longer a risk to the community. It was emphasised that the defendant had both promised to make changes to her life and demonstrated through her actions a desire to increase her educational and vocational pursuits, and had actively pursued those goals.
Counsel went so far as to submit that the Judge failed to have proper regard to the objects and policies set out in section 3 of the Young Offenders Act. Those objects and policies are 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;
(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.
In the course of the sentencing remarks, the Judge twice referred to section 3. It is to be accepted that explicit reference was not made to the objects and policies, however I am satisfied that the Judge was well aware of the terms of section 3.
Counsel submitted that the absence of a psychiatric condition was a factor which should have given the court comfort in determining whether the defendant was likely to reoffend. Similarly, the defendant had no prior convictions. Counsel highlighted the likely accentuation of the defendant’s difficult behaviour resulting from a sexual assault which the defendant suffered when she was aged 13 years. Dr Raeside noted the defendant’s difficulty in tolerating exploration of her past traumatic experience. It was pointed out that the defendant had psychological counselling and continued therapy to the time of sentence.
Counsel further contended that the defendant received a very positive presentence report where the authors indicated that the defendant demonstrated a genuine understanding of the severity of her offending. It was submitted that this is a significant factor in the defendant’s rehabilitation. The report indicated that the defendant had a supportive family and engaged positively with her flexible learning option program where she had undertaken a number of TAFE courses and had shown she was determined to fulfil her goals. The authors had witnessed positive change.

Counsel pointed out that the defendant was reported to be polite, cooperative and to have demonstrated great resilience and motivation. She was described as self-aware and self-motivated. Further, positive changes were noted by character witnesses and those who know her well.
It was submitted by counsel for the defendant that, in combination, the psychological help and other positive changes evidenced the defendant’s desire to change. It was submitted that, in the circumstances, the Judge failed to balance those factors in determining whether the sentence should be suspended and whether the defendant posed a continued risk to the community.
Counsel for the police contended that the sentence imposed was well within the sentencing Judge’s discretion. Emphasis was placed on the gravity of the defendant’s conduct and, in particular, the injuries suffered by the three victims and the ongoing effects of those injuries. It was said that the Judge had regard to the steps taken by the defendant towards rehabilitation and that notwithstanding this progress, the defendant’s conduct still called for a substantial period of immediate detention.
In accordance with the terms of section 3 of the Young Offenders Act as earlier extracted, the sentence to be imposed was not to reflect the need for general deterrence. However, the need for personal deterrence remained an important issue to be addressed. When assessing the need for personal deterrence, close analysis of the material relevant to that topic is necessary.
There was a substantial body of material before the Court addressing the defendant’s progress towards rehabilitation. This material included a psychiatric report, psychological reports, a presentence report, a progress report from the Youth Justice Department and several impressive references.
Dr Raeside conducted a psychiatric review of the defendant and concluded:
I do not believe [the defendant] requires any specific psychiatric treatment. Psychological therapy has basically been unhelpful so far. I think she would do badly with an exploratory type of therapy attempting to look at past traumatic experiences. Rather, she needs practical support in terms of her anger management, memory and concentration skills, and education and employment.
Further, [the defendant] would be benefitted by participation in an alcohol rehabilitation program.
Addressing [the defendant’s] ongoing substance abuse, as well as assisting her in terms of appropriate employment would be most beneficial in reducing her risk of further offending in the future.
In a psychological report of May 2013, a clinical psychologist concluded:
With assistance from her general practitioner to monitor her medication and a psychologist to assist her toward a more positive life path she has the potential to achieve the goals she has envisioned for herself. [The defendant] would require a supportive and nurturing parenting environment in which to begin to process her emotional difficulties.
At the same time as the clinical psychologist was conducting her review, another clinical psychologist and their colleague were conducting therapy sessions with the defendant. It was noted that the defendant had commenced working in a shop and that, prior to being sentenced, she was exploring her options for further education.
A detailed presentence report was before the sentencing Judge.[1] It was provided by both the case manager and her supervisor. The report contains a detailed review of the defendant’s attitude towards the offences, family circumstances, health considerations, a detailed discussion of education, employment, and recreation and leisure, and a summary of her current situation. Then followed a summary of recommendations. It is convenient to extract this section of the report in full:
[The defendant] is a seveteen [sic] year old female with no prior offending history who became embroiled in an altercation with her victims and was subsequently charged with the follwing [sic] offences: Cause Serious Harm To Another- Aggravated Offence- Other, Cause Serious Harm To Another- Aggravated Offence-Other and Commit Assault Causing Harm Aggravated Other Weapon Used.
[The defendant] has openly admitted that she has experienced difficulty remembering the actual circumstances surrounding her involvement in the subject offences. It is evident from reports compiled by [the defendant’s] Psychologists that [the defendant] had experienced a previous traumatic assault and as a result had suffered a loss of memory and associated Post Traumatic Stress Disorder [sic] This accumulative stress and the impact upon [the defendant’s] general wellbeing may have been a contributing factor in the commision [sic] of these offences.
[The defendant] has some identified protective factors, she has a supportive family network, stable accommodation and has demonstrated an ability with respect to education and training. Despite her circumstances she has displayed resilience and has a positive future outlook.
[The defendant] is currently accessing support services, however it is the writer’s assessment based on the reports compiled by her therapists that [the defendant] may benefit from ongoing psychological intervention and counselling to better equip her with strategies for dealing with stress and anxiety and to assist her to deal with previous trauma.
The writer acknowledges the seriousness of the pending offences, in light of this and considering [the defendant’s] positive community engagement it may be questionable given [the defendant] has no prior offending to consider the benefits of imposing conditions of supervision. Given [the defendant] has several identified protective factors and a supportive and positive family, it is the writer’s assessment this in combination with [the defendant’s] current Psychological therapy and engagement in positive activities can continue without statutory assistance.
[1] Section 32 of the Young OffendersAct 1993 (SA) relevantly provides:
(1)The Chief Executive must, at the request of a court by which a youth is to be sentenced, have a report prepared on the social background and personal circumstances of the youth.
(2)Such a report may not contain any recommendation about sentence.
…
A case manager of the Home Detention Program at the Department for Communities and Social Inclusion provided a report concerning the defendant’s progress under home detention supervision. The summaries and conclusions of that report are as follows:
Whilst subject to Home Detention Bail, compliant behaviour and a respectful attitude have been recorded with [the defendant] engaging well with Home Detention Program staff and other agency professionals.
[The defendant’s] current family based placement is deemed to be both supportive and stable with parents maintaining a strong level of commitment to successful adherence of conditions of Bail.
Despite unforeseen external circumstances impacting on progress, [the defendant] has maintained her motivation to pursue her long term training objectives. With time frames now dictating her goals, she has been proactive in the pursuit of shorter term opportunities within the local area.
The references put before the Court included references from case managers of Re-Engage Youth Services. In the course of one reference, one case worker summarised the position as follows:
At time time of [the defendant’s] arrest, I had secured another position of employment within our organization, Community Partnerships @ Work. I requested to continue to case manage [the defendant] for a few months following her arrest even though my current job role is not one of case management.
The reason I did this was that I believe [the defendant] trusted me as her case manager and that I felt that she was a young person who deserved to have my support and assistance through this difficult time in her life. [The defendant] has always treated me with the utmost respect and has shown a determination to improve her education and skills. Since my hand-over of case management in December of 2012, she has continued to develop her skills through completing courses, working part-time jobs and contributing to the community.
Two other case managers from Re-Engage Youth Services reported favourably concerning the defendant’s progress. Personal references were provided by the defendant’s mother and a family acquaintance. Both provided information that would suggest that the defendant has good prospects of rehabilitation.
This substantial body of material provides clear evidence that the defendant wishes to rehabilitate and to become a law abiding and contributing member of the community.
Earlier in these reasons, I have referred to the notional starting point selected by the Youth Court Judge when determining sentence. As noted, the defendant had spent some 12 days in detention before being released on home detention bail. The terms of bail were strict. For some months, the defendant was subjected to electronic monitoring. Her home detention bail continued for 10 months and throughout that time, strict curfew conditions were in place. I would expect a reduction to be made in the order of four to six months when determining an appropriate sentence. It follows that the notional starting point must have been in the order of 30 months against a maximum custodial term of 36 months. I consider this to be manifestly excessive for a 16 year old first offender.
I have also reached the conclusion that the Judge failed to give adequate weight to the body of material concerning the defendant’s rehabilitation and, in particular, the reports referred to above and the conclusions that have been extracted. It is troubling that the Judge only made brief reference to this material and, in particular, did not appear to consider the impact of that material on the need for personal deterrence. As earlier discussed, the reports concerning rehabilitation allow the conclusion that the defendant has good prospects to return to the community as a law abiding and contributing citizen.
Having regard to the foregoing, I have reached the conclusion that the appeal should be allowed, the sentence imposed in the Youth Court should be set aside and the defendant resentenced.
Resentencing
When determining an appropriate sentence, regard is to be had to the gravity of the defendant’s conduct as earlier set out. This was serious criminal conduct, causing injuries to the victims with long term consequences. To my mind, the defendant should be sentenced to an immediate term of detention. The gravity of the offending precludes any other order.
As noted above, the defendant was a first offender. It is to be accepted that she had troubled teenage years. Her behaviour was much affected by the abuse of drugs, including alcohol. There is no doubt that alcohol played a part in her offending.
As a first offender with good prospects of rehabilitation, I consider an order of detention of 12 months would be appropriate. I have arrived at the period of 12 months following the making of two reductions; one of four months on account of her contrition, remorse and pleas of guilty, and a further five months on account of time spent in custody and on home detention bail.
For these reasons, I would allow this appeal. I would set aside the orders made by the Youth Court. I would order that the defendant be detained for a period of 12 months, backdated to commence on 21 June 2013.
ANDERSON J. I agree with the orders proposed by Gray J for the reasons he gives.
BLUE J. I agree with Gray J.

[2013] SASCFC 152

23 December 2013

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