B v Police - [2009] SASC 235

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
B v POLICE
[2009] SASC 235
Judgment of The Honourable Justice Nyland
14 August 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS
Youth charged with illegal use of motor vehicle, property damage and driving without a licence - appellant and friend went for joyride in country on construction vehicle - substantial property damage - Magistrate considered matter too serious to be dealt with by family conference - without conviction appellant released on obligation to be of good behaviour for 18 months - no error in approach taken by Magistrate but appeal allowed for variation to be made to conditions contained in obligation.
Criminal Law Consolidation Act 1935 ss 65, 85(3), 86A; Motor Vehicles Act 1959 s 74(2); Young Offenders Act 1993 s 3, referred to.

B v POLICE
[2009] SASC 235

NYLAND J: This is an appeal against sentence. The appellant is a youth born on 16 January 1994. He was charged on information with a number of offences committed on 8 January 2009 at Gomersal in the State of South Australia.
Count 1 alleged that he drove a motor vehicle without first obtaining consent of the owner, contrary to the provisions of s 86A Criminal Law Consolidation Act (1935). Counts 2 to 5 were charges of property damage contrary to s 85(3) of the Criminal Law Consolidation Act 1935. Count 6 was a charge of driving a motor vehicle while not being the holder of an appropriate licence, contrary to the provisions of s 74(2) Motor Vehicles Act 1959.
On 30 April 2009 the appellant appeared before a Magistrate sitting in the Youth Court at Tanunda and pleaded guilty to the charges. He was represented by counsel who made submissions on his behalf. A co-accused, C, appeared unrepresented but was accompanied by his parents. Matters relating to C are not the subject of an appeal.
It appears that on the night of 8 June 2009, the appellant and C were staying at a farming property at Gomersal. Each of them consumed a large quantity of alcohol. Some time late in the evening they left the premises. They came upon a front end loader tractor which regrettably had keys left in the ignition. The two boys decided to go for a joy ride on it. Matters however got out of hand. They were completely inexperienced in the handling of such a vehicle and were unable to control it. They ran amok with the machine, which resulted in substantial damage to the tractor as well as fencing on a number of properties. The damage to the tractor amounted to $4,445.50. Eventually, they abandoned the tractor and returned home. The following morning the police attended and the appellant and his co-offender immediately confessed their parts in the incident.
The appellant had previously appeared in the Tanunda Youth Court with respect to these matters on 24 March 2009, at which time a social background report was ordered. That report indicated that the appellant had expressed his shame and embarrassment for his actions and was distressed that he had caused hardship to the people of his community and had let his parents down. Two days after the incident, he contacted and met with all the victims and apologised and offered to assist with the repairs in any way that he could. The appellant’s parents had also taken appropriate steps to discipline him for his actions. The appellant had no prior offending history. He was participating in a TAFE course five days a week and working part time three days a week. He was also involved in soccer training two afternoons per week and match days on the weekend. He was described as deeply remorseful and embarrassed by his behaviour. The report recommended that the appellant would be best served by continuing with his education, employment and social activities already in place and sanctioned by his parents.
Counsel for the appellant relied upon the report in urging the Magistrate to resolve the matter by referral to a family conference, and that course was not opposed by the prosecution. The learned Magistrate indicated however that he regarded the matter as too serious to be resolved by way of a family conference. He considered that it was more appropriate to deal with the matter by imposition of a court order. He discharged the appellant without recording any convictions, but as to Counts 1 to 5 he directed that the appellant enter into an obligation to be of good behaviour for a period of 18 months. The obligation included a requirement that he be under the supervision of an Officer of Community Corrections for a period of nine months and that he obey the lawful directions of that officer, and in particular that he obey directions to attend counselling for victim awareness and personal development. The same penalty was imposed on C, whose parents had indicated that they wished the matter dealt with immediately rather than being referred to a family conference.
In addition, on the charge of illegal use of a vehicle (ie Count 1), the Magistrate ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months, to commence at 12.01 am on 16 January 2010, that being the first date upon which the appellant would be eligible to obtain a licence. The Magistrate also ordered that compensation be paid as follows, namely, $1,000 to the owner of the front end loader referred to in Count 2, $50 to the owner of the fence referred to in Count 3, $25 to the owner of the fence referred to in Count 4 and $300 to the owner of the fence referred to in Count 5. The Magistrate did not fix a date by which those payments should be made as he was aware that neither of the boys had the capacity to pay, but he said:
I intend to order that at least you pay some amounts of compensation and not the full amounts, that you do not have any capacity to pay such amounts now, that those amounts can remain on the court books and arrangements can be made for you to pay compensation when you are older.
Count 6, which was the charge of not being the holder of an appropriate licence was dismissed without conviction or penalty.
The appellant appealed against the sentence imposed by the learned Magistrate on the grounds:
(1) The sentence was manifestly excessive;
(2) The learned Magistrate erred in law;
(3) The learned Magistrate did not take sufficient cognisance of the s 32 report of Families SA Community Justice Program.
The grounds set out in the appeal were:
(1) The learned Magistrate did not take into account the recommendation of the Families SA report in which it was recommended that the appellant would not benefit from supervision by the Community Youth Justice Program for reasons listed in the report attached and labelled Appendix A.
(2) The learned Magistrate erred in law in that he did not take into account s 3(d) of the Young Offenders Act 1993 in that the appellant must attend Families SA in Blair Athol twice weekly for the first six weeks of the obligation for assessment, thus interrupting his full time schooling.
(3) ---
(4) Counsel submitted that the matter would be appropriate for family conferencing as per affidavit of Neil Sills, Barrister and Solicitor.
Mr Sills appeared as counsel for the appellant on the hearing of the appeal and sought an order that the sentence of the learned Magistrate be set aside and that in lieu of the obligation imposed upon the appellant the matter be dealt with by family conference.
The learned Magistrate did not specifically refer to the social background report in his sentencing remarks, but it is evident that he was well aware of its contents and had regard to it. Counsel for the appellant appears to have substantially relied on the contents of that report in the course of his submissions and the learned Magistrate, when sentencing the appellant, referred to such matters included in the report as family constraints, the efforts at reparation, the apologies made and lack of prior record of either of the defendants.
Section 3 of the Young Offenders Act 1993 (“YOA”) sets out the objects of the Act and the statutory policies governing the exercise of powers provided under it. Of particular relevance to the present matter are the provisions contained in s 3(2) that:
(a)a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law; and
(c)the community and individual members of it must be adequately protected against violent or wrongful acts.
The learned Magistrate was clearly mindful of these provisions when concluded that the offending was particularly serious, having been committed in a rural community where farmers trust people in the neighbourhood not to interfere with machinery. Mr Sills submitted that the reference by the Magistrate to the fact that this offending had occurred in a rural community was irrelevant and the Magistrate had thereby treated the appellant more harshly than would have been the case had he resided in an urban community. I reject that submission. The fact that the appellant and his co-offender had committed this offence in a rural community was a relevant circumstance for the learned Magistrate to take into account when he assessed the seriousness of the offending.
In reaching a decision to resolve the matter by the imposition of an obligation, the learned Magistrate took into account that the appellant and his co-accused had pleaded guilty to the charges. He took into account that they had consumed alcohol prior to the offending and he had regard to the amount of damage caused, which was substantial, the distress to all the farmers concerned, especially the owner of the front end loader, the apologies made by the appellant and his co-offender to the owners of the properties who had suffered damage, the fact that each had acknowledged the wrongfulness and foolishness of their actions, the fact that neither of them had been in trouble with the court before, that each were subject to family constraints as a result of the offending, and that each of them was at an age at which he had to start to take responsibility for his behaviour.
Although these are all matters which supported the referral of the case to a family conference, the appellant has failed to demonstrate any error in the approach taken by the learned Magistrate in his decision to deal with the matter by way of imposition of an obligation. The learned Magistrate had regard to all relevant matters and resolved that the matter should be dealt with by court proceedings.
Mr Sills in an affidavit sworn on 8 May 2009 said that the requirement that the appellant be under the supervision of Families SA initially resulted in the need for the appellant to attend at the Blair Athol office of Families SA twice a week for a minimum of six weeks. The appellant however lives in Angaston or thereabouts. The necessity to travel to Blair Athol for such supervision or assessment would interfere with the appellant’s education and work arrangements and would therefore be in breach of s (3) YOA, which provides that so far as circumstances of an individual case allow, a youth should not be withdrawn unnecessarily from his family environment and there should be no unnecessary interruption of his education or employment.
It appears however that subsequent to the lodging of the appeal, Families SA indicated that they would not require the appellant to attend personally at their office and that the supervisory arrangements could be carried out by telephone between the hours of 9.00 am and 5.00 pm. There are nevertheless continuing problems about that arrangement, as those hours tend to coincide with the period during which the appellant is at work or school. In any event, supervision by telephone would not seem to be within the spirit of the order made by the learned Magistrate. There was however a substantial body of information before the learned Magistrate to indicate that the appellant’s parents had taken immediate and responsible steps to emphasise to the appellant the seriousness of his conduct and its impact upon the victims, in addition to which the appellant himself had taken steps to make amends. In those circumstances, the requirement of supervision by Families SA would seem to be an unnecessary condition of the obligation.
Families SA should nevertheless be aware that in other circumstances, more appropriate arrangements should be made to facilitate the supervision of a youth who is residing in a country area.
I propose however to allow the appeal to the extent that conditions 2 and 3 shall be excised from the obligation but the obligation requiring the appellant to be of good behaviour for a period of 18 months shall continue in force.
I should mention that on the hearing of the appeal, counsel indicated that a problem had also arisen with respect to payment of the order for compensation as advice had been received from the Kadina Magistrates Court that payment was required by 11 June 2009 or further penalties would apply.
It is clear however that the learned Magistrate did not contemplate any immediate payment and considered the matter could be deferred until such time as the appellant was in gainful employment. For that reason no date was fixed for the payment of the compensation. I understand however that this matter has since been resolved and it is unnecessary for me to do anything further about it.