Bronte John Lamshed v Lincoln Steven McInnes No. SCGRG 93/1206 Judgment No. 4284 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 4284

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MOHR(1) LEGOE(2) AND BOLLEN(3) JJ

CWDS
Criminal law and procedure - particular offences - offences against decency and morality - respondent child found guilty in Childrens Court of crime of rape - discharged without conviction being recorded with a good behaviour bond - whether conviction should now be recorded - given the length of time since the offence was committed no good purpose would be served by recording a conviction against the respondent despite his failure to take responsibility for the offence - appeal dismissed. Children's Protection and Young Offenders Act (SA) 1979 s 7.

HRNG ADELAIDE, 15 November 1993 #DATE 15:11:1993
Counsel for appellant:     Mr B J Jennings QC
   with Mr J A Powell
Solicitors for appellant:    Director of Public
   Prosecutions (SA)
Counsel for respondent:     Mr Y F Chin
Solicitors for respondent: Andersons Barker Gosling

ORDER
Appeal dismissed.

JUDGE1 MOHR J This is an appeal by the prosecution complaining of the fact that the respondent, on being found guilty of a crime of rape, was discharged without a conviction being recorded, and a bond to be of good behaviour, on certain conditions, being imposed. 2. The appeal so far has proceeded on the basis that we should consider whether or not a conviction should have been recorded. 3. The respondent was born on 10 December 1976, and the offence alleged against him was rape, on 17 January 1992. He was, therefore, just over 15 years of age at the time that the offence was committed. 4. The matter did not proceed with any undue haste. The hearing of the trial of the matter proceeded on 14 August 1992, and, from there on, there appears to have been little movement, apart from some reports from the Department of Family and Community Services, until finally the learned special magistrate addressed the question of penalty on 16 June 1993. To all intents and purposes, that was nearly 18 months after the offence had been committed. 5. In the interim, the respondent had undertaken studies at a Technical and Further Education institute, with a view to becoming a plumber, and, at the time the learned special magistrate considered the question of what course he should adopt, was making, from all accounts, good progress with that course of study. He had removed himself from Murray Bridge, where the offence took place, and was living at Brooklyn Park. 6. Although both the reports from the Family and Community Services Department speak of the fact that the plaintiff has failed to accept full responsibility for his actions. On being referred to the SOTAP (Sexual Offenders Treatment Assessment Programme) organisation in Adelaide, the department was advised by that organisation that the counselling session that was undertaken was a complete failure, and that the respondent was denying any fault or responsibility in regards to the offence of rape, and that further counselling would be of no benefit to the respondent due to his defiance. 7. That information, of course, was all before the learned special magistrate. As Mr Jennings, who appears for the appellant, has pointed out to us, the learned special magistrate had need to refer and give due consideration to the factors set out in s.7 of the Children's Protection and Young Offenders Act of 1979. 8. The only factor there which would be of relevance at this stage is the need to ensure that the child was aware of his or her responsibility, and to bear the consequences of any action against the law, s.7(1)(d). 9. Whilst I think myself there may have been a good deal of force in recording a conviction at the time the charge was found proved, for the purpose of bringing home to the respondent his responsibility, despite his denial, of the consequences of him being found guilty of the crime of rape, it seems to me that, this distance from the offence, it now being November 1993, coming up after two years, no good purpose would be served by saddling this young man with a conviction. 10. The plain fact of the matter is that if he commits any offences in the future his antecedent report will record that he has been found guilty of the crime of rape and to add to that the formality of conviction would, in my opinion, serve no useful purpose. 11. It is not without some importance that it may be that his responsibility was in some measure brought home to him by the fact that as well as imposing the bond which the magistrate did, he was ordered to pay $250 towards the cost of the prosecution. 12. In all the circumstances I would dismiss the appeal.

JUDGE2 LEGOE J: I agree, for the reasons expressed by my brother Mohr J, that the appeal should be dismissed. 2. I merely add the comment that I notice that the charge was actually found proved on 23 October 1992 as recorded on the endorsement on the back sheet of the summons (p.4 of the appeal book) and that was after submissions had been made by counsel. The matter was then adjourned until, according to endorsements on the back sheet, 16 December 1992 for a report and penalty, but in fact the order of the court in respect to this appeal which has been brought was not fixed until 16 June 1993. 3. I also note that the terms of that order as endorsed on the proceedings was "child released on entering into bond to be of good behaviour for 12 months" in the child's own undertaking in the sum of $300. It was a condition of the bond that the child be under the supervision of an officer from FACS and to obey that officer's directions, particularly in respect to medical assessment, treatment and counselling. 4. It seems to me, to some extent anyway, accepting as I do the degree of inadequacy of consideration that may have been given to these matters at the appropriate time, as referred to by my brother Mohr J, there is some room for taking into account the provisions of s.7(1)(d) of the Act to ensure that the child is aware of his or her responsibilities and bear the consequences of any action under the law. 5. I certainly agree it may not at the time have been the most effective way of doing it, but in view of delays, as has already been pointed out, I think it is better to leave the order as it stands, bearing in mind the provisions of the Act and the circumstances generally. 6. I too would dismiss the appeal.

JUDGE3 BOLLEN J I agree with each and everything that each of my brothers have said.