BJY v Police No. Scciv-02-1446

BJY v POLICE
[2002] SASC 410
Magistrates Appeal (Criminal)

BLEBY J: This is an appeal against the recording of convictions against the appellant and against the sentence imposed by a Magistrate sitting as the Youth Court at Maitland.
The appellant was charged with driving an unregistered motor vehicle contrary to s 9 of the Motor Vehicles Act 1959, driving an uninsured motor vehicle contrary to s 102 of the Motor Vehicles Act 1959 and driving without a licence contrary to s 74 of the Motor Vehicles Act 1959. The appellant pleaded guilty to all three offences. He was convicted of all offences. The Magistrate imposed a global fine of $100 pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. In relation to the second count, driving without a licence, the appellant was also disqualified from holding or obtaining a driver’s licence for a period of six months commencing on 17 September 2002. The Magistrate made no recorded remarks as to penalty.
The appellant appeals against the recording of the conviction and the sentence on the following grounds:
1.That the sentence imposed by the Magistrate, and in particular the licence disqualification imposed, was manifestly excessive in all the circumstances;
2.That the Magistrate failed to satisfy himself that the appellant understood the nature of the proceedings, contrary to s 30(1) of the Young Offenders Act 1993; and
3.That the appellant was unrepresented and the Magistrate failed to explain to the appellant in simple language the elements of the offence charged, the nature of the allegations against him and the legal implications of those allegations, contrary to s 30(2) of the Young Offenders Act 1993.
In his notice of appeal the appellant also submits that in all the circumstances the guilty plea entered should be “withdrawn” and that the suspension and fine imposed by the Magistrate should be revoked. He further submits that no caution, formal or otherwise, should be given to the appellant in the light of the Magistrates Court proceedings.
On 16 June 2002, the appellant drove a car from a paddock on the outskirts of Price, a small country town, a relatively short distance along the public roads of Ocean Way and Government Road to a farming property belonging to his aunt. The car driven was a Ford Escort belonging to the appellant. The police arrived at the appellant’s aunt’s property at approximately 11.14 am and witnessed the Ford Escort being driven around a paddock. The police asked the appellant a number of questions in response to which the appellant was cooperative. He acknowledged having driven on a public road, indicated that the car belonged to himself, that it was unregistered and uninsured, and that he was not the holder of a current driver’s licence.
The appellant was born on 17 June 1986. The offence occurred on the eve of his 16th birthday. What follows is based upon affidavits of the appellant and his mother, the substance of which is not contested by the respondent. The police officer told the appellant and the appellant’s parents that the appellant would be most likely to receive a formal warning due to his age. It was unlikely he would have to go to court. They did not therefore seek legal advice.
Approximately six weeks later the appellant received a summons to appear before the Magistrates Court sitting at Maitland on 17 September 2002, in relation to the charges. That was incorrect as s16 of the Young Offenders Act requires that the charge be laid before the Youth Court. The appellant and his parents were strangers to the court system. They did not seek legal representation, as they believed in accordance with what they had been told that the appellant would receive a warning. They otherwise did not know what would happen in the Magistrates Court.
The appellant with his mother appeared before the Magistrate unrepresented by counsel. When asked how he pleaded, he pleaded guilty to all charges. He was asked by the Magistrate why he had committed the offences. The appellant responded that he “was just having some fun with his mates”. I presume he was then referring to their driving on the private property of his aunt. When asked if he had anything else to say the appellant indicated that he did not. The Magistrate then imposed a $100 fine and a licence disqualification of six months. At no stage had the appellant been warned of a possible driver’s licence disqualification either by the police or by the Magistrate.
Section 30 of the Young Offenders Act 1993 sets out a number of obligations under which a court is placed when presented with a youth against whom criminal proceedings have been brought. The section provides as follows:
“(1)A court before which criminal proceedings are brought against a youth must satisfy itself that the youth understands the nature of those proceedings.
(2)    If the youth is not represented by counsel or solicitor, the court -
(a)     must explain to the youth in simple language the elements of the offence charged, the nature of the allegations against the youth and the legal implications of those allegations; and
(b)    must provide the youth with a written statement in the prescribed form of the youth’s rights in respect of legal representation and of the way to proceed in order to obtain legal advice, representation or assistance.
(3)If a youth is sentenced to a fine or ordered to make any other payment of money, the court must give the youth a notice stating in simple language the amount the youth must pay and the time and place at which payment is to be, or may be, made.
(4)Non-compliance with this section does not invalidate a judgment or order of the court.”
In the circumstances it was incumbent upon the Magistrate in this case to satisfy himself that the appellant understood the nature of the proceedings, to explain to the appellant in simple language the elements of the offence, the nature of the allegations and the implications of the allegations, and to provide the appellant with a written statement in the prescribed form of the appellant’s right to legal representation.
The respondent concedes that on the information available the appellant was not afforded those protections. As the Act provides in s 30(4), that does not invalidate the order of the court. However, that does not mean that the judgment is not appealable because there has been a miscarriage of justice by virtue of a failure to comply with the section. In my opinion there has, in the circumstances, been such a miscarriage and the appeal must be allowed. Those statutory protections are built in to prevent the very situation from arising which occurred in this case.
Although it is not an explicit ground of appeal, I also consider that there has been a failure by the Magistrate to consider invoking the provisions of s 17(2) of the Young Offenders Act 1993. That section empowers the Youth Court to refer the subject matter of charges against a youth to be dealt with by a police officer or a family conference. However, a matter should not be referred under that section unless the offence is a “minor offence” as defined in s 4 of the Act. Police v W (1995) 64 SASR 408 at 412 – 413. As Cox J said in that case, s 17(2) of the Young Offenders Act will normally only be invoked where the requirements of the definition of minor offence are met, in cases which appear to be ones that may suitably be handled by a family conference or police officer, and in cases that should never really have found their way into the court system but which should perhaps have followed the procedure contemplated by s 7 of the Young Offenders Act.
There is no indication that the Magistrate considered the option available under s 17(2) of the Act. Indeed the whole procedure adopted by the Magistrate seems to have followed what one might have expected in the Magistrates Court, and in ignorance of the requirements of the Young Offenders Act. I think s 17(2) of the Act should have been considered, and that the failure to do so also constituted an error. For all these reasons the appeal must be allowed and the sentence reconsidered.
It is necessary first to consider whether s 17(2) of the Young Offenders Act should be applied and the matter referred to a family conference or to a police officer. That should only occur where the offences are admitted, as they have been in this case, and where they constitute a minor offence within s 4 of the Act. That section relevantly provides:
“ ‘Minor offence’ means an offence to which this Act applies that should, in the opinion of the police officer in charge of the investigation of the offence, be dealt with as a minor offence because of –
(a)     the limited extent of the harm caused through the commission of the     offence; and
(b)     the character and antecedents of the alleged offender; and
(c)     the improbability of the youth re-offending; and
(d)     where relevant the attitude of the youth’s parents or guardians.”
In the case of the application of s 17(2), the relevant opinion should, of course, be that of the Youth Court or, on appeal, this Court. In this case there was no harm in the sense of loss, damage or injury suffered to anyone. The offending driving was in a rural area for a relatively short distance and was incident free. The only harm caused was the instilling in the mind of the appellant that he could get away with driving an unregistered and uninsured car on a public road and that he could likewise get away with driving on a public road while not holding a current driver’s licence.
So far as the information available to the court is concerned, the appellant is a young person of good character, he is a keen and enthusiastic worker and has an unblemished criminal record. I hope he has now learned his lesson, perhaps the hard way. If this is reinforced it seems unlikely that he will offend again. His parents appear supportive, although no explanation is given as to how the appellant came to own or be permitted to drive his own car on a public road at the age of 15.
I am satisfied that, in all the circumstances, this could properly be regarded as a minor offence, and that the subject matter of the charges should be referred to a family conference under s 17(2) of the Act. I consider that a family conference under the Act is preferable to referring it to a police officer because it may be appropriate to exercise one or more of the powers of a family conference not available to a police officer under the Act.
The appellant must realise that, although he lives in a small country town, there are significant and onerous responsibilities that come with the privilege of owning and driving a motor vehicle, and that the law is there to be obeyed.
A formal caution would be appropriate. It may also be appropriate in the exercise of the powers under s 12(1)(d) of the Act to require some sort of undertaking as to the future use of the car and limiting the circumstances in which the appellant may drive for an appropriate period. Such a conference should involve his parents as well as the appellant, but it will be for the conference to determine what action, if any, should be taken. In doing so it will need to take into account that the appellant has already been precluded from holding or obtaining a driver’s licence for a period of 31 days prior to the disqualification being suspended pending the outcome of this appeal.
While I have no power to direct who should be the youth justice coordinator who should convene the conference, it may be desirable, if it is not too inconvenient administratively, for a youth justice coordinator other than the magistrate who imposed the sentence to convene the conference, but that is a matter for the Youth Court.
The orders I make are therefore as follows:
1.The appeal is allowed.
2. The convictions and sentence imposed by the Magistrate are set aside.
3.In lieu thereof order pursuant to s 17(2) of the Young Offenders Act the subject matter of the charges be referred to be dealt with by a family conference at a time and place to be fixed by a youth justice coordinator.

[2002] SASC 410

5 December 2002