C, S M v Police - [2016] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
C, S M v POLICE
[2016] SASC 167
Judgment of The Honourable Justice Stanley
4 November 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN MANNER DANGEROUS TO PUBLIC - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - CUSTODIAL ORDERS - GENERALLY
This is an appeal against conviction and sentence.
The appellant was charged with the following offences, all alleged to have been committed on 21 December 2015:
1. drove a vehicle in a manner dangerous to any person contrary to s 46 of the Road Traffic Act 1961 (SA) (RTA);
2. assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (CLCA);
3. aggravated assault contrary to s 20(3) of the CLCA; and
4. resist police contrary to s 6(2) of the Summary Offences Act 1953 (SA).
The appellant pleaded guilty to aggravated assault and resist police at the pre-trial conference held on 31 March 2016. The appellant’s trial commenced before a magistrate in the Christies Beach Youth Court on 30 May 2016. She pleaded guilty to the offence of assault causing harm part way through the trial and was found guilty of the offence of driving in a manner dangerous to any person by the court.
The magistrate remanded the appellant in custody overnight before imposing sentence on 31 May 2016.
The magistrate recorded convictions for all offences. The magistrate imposed a fine of $50 and a licence disqualification of two years which was to commence forthwith for the offence of driving a vehicle in a manner dangerous. For the remaining offences the magistrate imposed a period of 16 weeks detention, suspended upon the appellant entering into an obligation to be of good behaviour for a period of three years in the amount of $100.
The appellant appeals against the guilty verdict on the charge of driving in a manner dangerous and the sentence imposed for all offences.
The appellant appeals against the guilty verdict on the charge of driving in a manner dangerous on five grounds. They are:
1. that the magistrate was distracted by the behaviour of the appellant in the non-contested charges such that he failed to properly analyse the elements of the offence of driving in a manner dangerous;
2. that the magistrate was wrong to cut short the cross-examination of the victim with regards to the distance between the two vehicles at each commencement of forward movement after the traffic light had turned green;
3. that the magistrate was wrong to find that the other driver, who collided with the rear of the appellant’s vehicle, bore no responsibility to maintain a sufficient distance to the rear so that he could safely stop to avoid a collision;
4. that the other driver involved in the collision did not have an inherent right to proceed through the intersection so close to the rear of the appellant’s vehicle because he had a green light and there were other cars behind him; and
5. that the magistrate was wrong to conclude that the charge of driving in a manner dangerous can be established on the basis that “every accident is inherently dangerous”.
The appellant appeals against the sentence imposed on five grounds. They are:
1. that the magistrate erred in recording convictions for the offences to which she pleaded guilty by failing to have regard to the appellant’s youth, her excellent work history and lack of any criminal antecedents;
2. the magistrate erred in his application of s 23(4)(b) of the Young Offenders Act 1993 (SA) (YOA) by finding that a sentence of a non-custodial nature would be inadequate because of the gravity of the offending;
3. that the magistrate erred in imposing an obligation for the maximum period of three years;
4. that the magistrate erred in remanding the appellant in custody overnight to give her a taste of detention; and
5. the magistrate erred in imposing an immediate licence disqualification having been told that an appeal would be lodged, and should have stayed the suspension of her licence until the determination of the appeal.
Held (per Stanley J):
1. The magistrate was correct to find that the appellant drove in a manner dangerous to a person (at [18]).
2. Dismiss the appeal against conviction regarding the offence of drive in a manner dangerous to a person (at [19]).
3. The imposition of a sentence of detention was within the magistrate’s sentencing discretion. The magistrate considered the properly available sentencing options and concluded that the imposition of a term of detention was the only appropriate sentence (at [27] - [30]).
4. There was no error demonstrated in the magistrate imposing an obligation for the maximum period (at [32]).
5. The period of licence disqualification imposed upon the appellant was within the magistrate’s sentencing discretion. The magistrate was not bound to grant the application made by the appellant to suspend the commencement of the operation of the licence disqualification pending a possible appeal. It was open to the appellant to make an application for suspension to a Judge of this Court pursuant to s 173(2) of the Road Traffic Act 1961 (SA) (at [33] and [36].
6. There was no error in the magistrate remanding the appellant in custody overnight pending the passing of sentence (at [38]).
7. The magistrate erred in not considering the option to proceed without recording convictions for the offences to which the appellant pleaded guilty (at [41]).
8. Allow the appeal for the sole purpose of setting aside the convictions recorded for the offences of assault causing harm, aggravated assault and resist police. The other orders made by the magistrate are to remain untouched (at [43]).
Road Traffic Act 1961 (SA) s 46, s 173(2); Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20(4); Summary Offences Act 1953 (SA) s 6(2); Criminal Law (Sentencing) Act 1988 (SA) s 3A, s 40; Young Offenders Act 1993 (SA) s 23(4), s 26, referred to.
Police v C [2016] SAYC 1; Pope v Hall (1982) 30 SASR 78; Taylor v Police [1998] SASC 6540; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Kreutzer (2013) 118 SASR 211; W, CD v Police; M, BC v Police [2014] SASCFC 72; K v Police [1999] SASC 407; Police v Chilton (2014) 120 SASR 32; R v Thach (2010) 203 A Crim R 510; Buttigieg v Police (1999) 74 SASR 229; McBride v The Queen (1966) 115 CLR 44; Carter v Symonds (1990) 11 MVR 109, considered.

C, S M v POLICE
[2016] SASC 167
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal against conviction and sentence.
The appellant was charged with the following offences, all alleged to have been committed on 21 December 2015:
1.drove a vehicle in a manner dangerous to any person contrary to s 46 of the Road Traffic Act 1961 (SA) (RTA);
2.assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (CLCA);
3.aggravated assault contrary to s 20(3) of the CLCA; and
4.resist police contrary to s 6(2) of the Summary Offences Act 1953 (SA) (SOA).
The appellant pleaded guilty to aggravated assault and resist police at the pre-trial conference held on 31 March 2016. The appellant’s trial commenced before a magistrate in the Christies Beach Youth Court on 30 May 2016. She pleaded guilty to the offence of assault causing harm part way through the trial and was found guilty of the offence of driving in a manner dangerous to any person by the court.
The magistrate remanded the appellant in custody overnight before imposing sentence on 31 May 2016.
The magistrate recorded convictions for all offences. The magistrate imposed a fine of $50 and a licence disqualification of two years which was to commence forthwith for the offence of driving a vehicle in a manner dangerous. For the remaining offences the magistrate imposed a period of 16 weeks detention, suspended upon the appellant entering into an obligation to be of good behaviour for a period of three years in the amount of $100.
The appellant appeals against the guilty verdict on the charge of driving in a manner dangerous on five grounds. They are:
1.that the magistrate was distracted by the behaviour of the appellant in the non-contested charges such that he failed to properly analyse the elements of the offence of driving in a manner dangerous;
2.that the magistrate was wrong to cut short the cross-examination of the victim with regards to the distance between the two vehicles at each commencement of forward movement after the traffic light had turned green;
3.that the magistrate was wrong to find that the other driver, who collided with the rear of the appellant’s vehicle, bore no responsibility to maintain a sufficient distance to the rear so that he could safely stop to avoid a collision;
4.that the other driver involved in the collision did not have an inherent right to proceed through the intersection so close to the rear of the appellant’s vehicle because he had a green light and there were other cars behind him; and
5.that the magistrate was wrong to conclude that the charge of driving in a manner dangerous can be established on the basis that “every accident is inherently dangerous”.
The appellant appeals against the sentence imposed on five grounds. They are:
1.that the magistrate erred in recording convictions for the offences to which she pleaded guilty by failing to have regard to the appellant’s youth, her excellent work history and lack of any criminal antecedents;
2.the magistrate erred in his application of s 23(4)(b) of the Young Offenders Act 1993 (SA) (YOA) by finding that a sentence of a non-custodial nature would be inadequate because of the gravity of the offending;
3.that the magistrate erred in imposing an obligation for the maximum period of three years;
4.that the magistrate erred in remanding the appellant in custody overnight to give her a taste of detention; and
5.the magistrate erred in imposing an immediate licence disqualification having been told that an appeal would be lodged, and should have stayed the suspension of her licence until the determination of the appeal.
I commence with consideration of the conviction appeal.
The magistrate’s reasons for the verdict of guilty of driving in a manner dangerous
The magistrate found that the appellant was driving south on Dyson Road at Christies Downs approaching the intersection with Beach Road. Dyson Road was a two-lane carriage way in each direction at this point. The vehicle driven by the appellant was in the inside lane. At the same time, a utility driven by a Mr Goldsworthy, was travelling in the same direction along Dyson Road but in the outside lane. The utility was towing a trailer. It contained a heavy load of steel beams and other material. The magistrate found that at the last minute, the appellant swerved from the inside lane into the outside lane immediately in front of Mr Goldsworthy’s vehicle. The magistrate found that the appellant was travelling so fast Mr Goldsworthy thought she was going to collide with the vehicle ahead of her until she swerved in front of him no more than one metre in front of his vehicle. At that point the appellant’s vehicle came to a halt. Mr Goldsworthy was forced to brake heavily. The traffic lights at the Beach Road intersection were indicating red. This driving was not the subject of the charge of driving a vehicle in a manner dangerous to any person. This driving was the prelude to the driving the subject of the charge. After coming to a halt, Mr Goldsworthy gestured towards the appellant to indicate the load he was carrying in the trailer. The appellant responded with a gesture colloquially described as giving the finger.[1] The driving the subject of the charge followed immediately thereafter. When the traffic lights at the Beach Road intersection turned green the magistrate found the appellant moved her vehicle forward and suddenly slammed on the brakes bringing the vehicle to an abrupt stop. The magistrate found that there was no justifiable reason for the appellant to brake suddenly. On the contrary, he found that she did so for the sole reason of venting her anger, aggression and contempt towards Mr Goldsworthy. The driving forced him to brake, bringing his vehicle to a stop less than half a metre from the rear of the appellant’s vehicle. The appellant again accelerated and moved forward only a very short distance when the appellant again slammed on her brakes. Mr Goldsworthy had proceeded forward and was again forced to brake, causing his vehicle to come into contact with the rear bumper bar of the appellant’s vehicle.
[1] An offensive gesture of some antiquity having been practiced at least as long ago as the fourth century BC by the ancient Greeks.
The magistrate rejected a submission that Mr Goldsworthy was contravening any Australian Road Rules by travelling too close to the rear of the appellant’s vehicle. The magistrate heard evidence from the appellant and her boyfriend, Mr Stead, who was in the passenger seat of her vehicle. He was unimpressed by their evidence. He did not find the evidence of either of them to be a reliable basis upon which to make findings of fact.
The magistrate said:[2]
In my view the accused’s driving was clearly in a dangerous manner. After all, looking at the relevant section, section 46(2) of the Road Traffic Act, the court must have regard to the amount of traffic on the road at that time. Clearly, there were numerous vehicles about.
The amount of traffic which might reasonably be expected to enter Dyson Road from other roads and places (subsection (2)(c)) was substantial, given that it is a major intersection where there would have been vehicles on both sides of the intersection, which is an intersection of some importance and significance. It is not like a laneway, where it would not matter so much if the two vehicles concerned were only moving at a very slow speed.
I must also have regard to the nature, condition and use of the road (subsection (2)(a)). As I have noted, the road is used as a busy thoroughfare in this area.
The fact is that Mr Goldsworthy’s vehicle was carrying considerable weight and hauling a trailer. Even though the speeds were slow, the momentum would have been great. Further, any collision between vehicles is inherently dangerous. The accused’s own witness, Mr Stead, used the word ‘whiplash’, and, although he later reneged on this, the defence cannot have it both ways.
Verdict
I therefore find the accused guilty of driving in a manner dangerous, and the submission that the offence was ‘trifling’ is a laughable one which I reject outright. I have no confidence in the accused’s evidence, not one iota of it and, in any event, as I have found, it is not trifling.
[2] [2016] SAYC 1 at [19] – [23].
Driving in a manner dangerous
The appellant submits the magistrate erred in finding her guilty of driving in a manner dangerous. Mr Lang, counsel for the appellant, did not challenge any of the underlying findings of fact made by the magistrate nor did he press any of the other grounds of appeal against the verdict of guilty.
The appellant submits that her driving was not dangerous because at the speeds involved there was not likely to be any serious damage or harm occasioned by that driving.
The appellant relies upon an analysis of the elements of the offence, as it then was, in Pope v Hall[3] where Wells J said:[4]
It is now well settled that if driving in a manner, or (where appropriate) at a speed, which was dangerous to the public is to be proved, it must be demonstrated that, in all the circumstances, the impeached driving passed beyond the point where it represented a mere departure-and nothing more serious-from the rules of the ordinary highway code, and became so serious a departure from those rules that the manner or speed of the driving (as the case may be) created a wholly unreasonable and unwarranted danger to the life, or limb, or both, of other road users.
To speak of the degree of danger created by any given act or course of conduct comprehends, in my opinion, two factors: the degree of risk that something untoward will happen, and the degree of risk that, if something untoward does happen, the damage caused will be more, rather than less, serious. If one were directing a jury one would say: Ask yourselves how likely it was, in the circumstances, that an accident of some sort would occur, and, at the same time, assuming that an accident did occur, how serious it would be; it will be by weighing both those factors together that you will be able to determine the degree of risk created by the situation-in other words, how dangerous the defendant's driving was.
[3] (1982) 30 SASR 78.
[4] (1982) 30 SASR 78 at 79 – 80.
In my view there was no error in the magistrate’s verdict.
The appellant was not driving at high speed or at a dangerous speed. Driving in a manner dangerous to any person may or may not involve speed. It may involve many other features of driving[5] including driving of the kind found to have occurred in this case.
[5] Taylor v Police [1998] SASC 6540.
In McBride v The Queen[6] Barwick CJ discussed the old offence of driving at a speed or in a manner dangerous to the public. He said:
This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. …
This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, … Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public within the meaning of the section.
This concept is in sharp contrast to the concept of negligence. The concept with which the sections deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others.
[6] (1966) 115 CLR 44 at 49 – 50.
This was an instance of what the magistrate described as road rage. That characterisation of course does not answer the question of whether the driving was in a manner dangerous to any person. However, in my view the magistrate was correct to find that the appellant drove in a manner dangerous to a person. It was the appellant’s driving which created the risk of injury to a person. The vehicle driven by Mr Goldsworthy carried a heavy load. This was a busy intersection. The magistrate found there were numerous vehicles in the vicinity. There was the real risk of the load being dislodged by the sudden, unexpected and abrupt braking movements caused by the appellant’s driving. That is the effect of the magistrate’s finding. If the load dislodged, there was a real risk of serious injury occurring to Mr Goldsworthy or other road users, including the appellant and Mr Stead. The driving was deliberate and unnecessary. This was not a case of the “undeliberate, careless driving” of the kind described by Cox J in Carter v Symonds.[7] Rather it is driving of a character that Cox J described as typical dangerous driving which is committed by a defendant who drives dangerously, and who knows that he or she is driving dangerously, or at least intends to drive in a way that a court later characterises as dangerous. Mr Lang submits that the risk of the load dislodging was low. Undoubtedly, the load did not dislodge but that does not detract from the proposition that the risk was real. If it had dislodged, the potential for serious injury to be caused was obvious. A finding that the driving created a real risk of harm to a person, that was potentially serious, is sufficient for proof of the charge.
[7] (1990) 11 MVR 109 per Cox J at 113 – 114.

I would dismiss the appeal against conviction. Accordingly, I turn to consider the sentence appeal.
Magistrate’s reasons for penalty
The magistrate delivered ex tempore reasons for the verdict of guilty and remanded the appellant in custody overnight to await sentencing. In his sentencing remarks the magistrate described the circumstances of the offending for the charge of driving in a manner dangerous. He referred to the circumstances of the offending for the charge of assault causing harm. The victim of this charge was Mr Goldsworthy. Following the collision, the appellant and Mr Goldsworthy alighted from their vehicles, as did Mr Stead. The appellant struck Mr Goldsworthy a forceful blow to the face causing injury, resulting in bleeding and a permanent scar. He sunk to the ground. The appellant then kicked him with what he thought was a steel-capped boot. At this point a stranger intervened. The appellant went to the Christies Beach police station which was nearby. Upon her arrival she was physically aggressive and verbally abusive as a result of which she was arrested and it required five police officers to subdue her. This conduct was the subject of the charge of resist police. The appellant kicked a female police officer. This conduct was the subject of the charge of aggravated assault. The circumstances of the aggravation being that the victim of the assault was a police officer. The magistrate said:[8]
[8] Police v C, Remarks on Penalty of Magistrate Davis, 31 May 2016 at [8] – [23].
Your offending was serious and disgraceful. Mr Goldsworthy was publicly humiliated and injured. As he put it, he was just doing his job (as a courier). He was aged about 46 at the time. He felt that, because you were a young female, he could not fight back, showing the restraint that you unfortunately did not. Yours was a vicious, cowardly and unprovoked attack causing the injuries to his face and his hand depicted in the photographs, (P2).
You maintained a senseless plea of ‘not guilty’ until your position was completely untenable with respect to count 2. You had asserted that Mr Goldsworthy was the initiator and aggressor, both of the driving and also the assault, and that he had suddenly backhanded you (although you had no visible injuries). You therefore claimed that you were acting in self-defence by kicking him, as you said (remarkably stupidly) to prevent a further attack from him.
At the police station you were swearing and yelling loudly at office staff, who were merely there to do their work assisting members of the public with genuine concerns, unlike yours. You were told to stop yelling and swearing. You were cautioned. You were arrested. You got up from your seat and attempted to move past three police officers. Police attempted to restrain you and you violently resisted. Two other police intervened, making five. You were handcuffed to the rear and stopped resisting while you were brought to a standing position. You looked at Police Officer Phillips and kicked her once to the left thigh, causing her to move backwards. You were again restrained but continued to kick out trying to break away from police. You were taken to the charge counter and continued to yell loudly and abuse police.
You claimed in your record of interview that it was Mr Goldsworthy who deliberately rammed your vehicle, that he punched you, and you acted in self-defence; that he drove off without making a report but you then realised that he was going to the police station. You admitted kicking him. You stated to your brother, who had phoned you whilst you were participating in the record of interview ‘I got him good. I made him bleed, so I don’t care’. You ridiculously claim that you kicked Mr Goldsworthy in the face (which was consistent with his evidence that you connected with his hand which was protecting his face), because he was ‘Gunna try to keep attacking me’. You admitted kicking the police officer. I will read some relevant portions of your record of interview:
‘Q: Would you say some ten, ten – fifteen seconds after you were arrested to once you were stood up you then kicked out at a female police officer that was standing along side you?
A: Oh, are you talking about that, yeah. I kicked out cos like what the fuck like, yep. I just done it. I didn’t mean to kick her even though she’s a bloody immigrant.’
I read further on:
‘Q: When you kicked out at the police officer was she wearing a uniform?
A: Ah, fuck, was she wearing a uniform?
Q: Was she wearing a police uniform?
A: I don’t know.
Q: Did you identify her as a police officer?
A: No, I identified her as an ugly immigrant bitch.
Q: Did you see her with a police uniform on?
A: Not that I can remember.
Q: Okay, did you know she was a police officer?
A: I didn’t really care if she was or wasn’t.
Q: That’s not what I asked. Did you think she was a police officer?
A: Well I know she came out with you guys so she obviously was.’
In terms of your personal circumstances you are only 18 and were only 17 at the time of your offending. You have no antecedents, that is, you are a first offender. You have family support, as shown by the presence of your mother in court, both yesterday and today, and you have a supportive boyfriend who gave evidence on your behalf. You have enjoyed a good upbringing and education and you have an excellent work ethic and history. You are currently in the second year of your apprenticeship as a carpenter and have won the prestigious South Australian Apprentice of the Year Award. Your prospects of rehabilitation are clearly very good.
Mr Colthorpe has submitted, on your behalf, that it cannot be said, that given all of these factors and the relevant sentencing considerations, detention is the only option for the court. The applicable section is Section 22 of the Young Offenders Act which provides:
‘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 offending’.
He also pointed, by implication, to authorities such as Yardley v Betts and submitted that it cannot be said that a sentence of detention is the only alternative.
I disagree. Your offending was hostile, belligerent, unprovoked and aggressive. Despite the letter of support, which I disregard given my findings, I am not satisfied either by your pleas of guilty or your crying in the dock today that you are actually contrite or remorseful. You assaulted Mr Goldsworthy, in public, very close to a police station. You showed no respect for the police, lashing out and kicking the female police officer. You then made racist, derogatory and inflammatory remarks.
I now deal with you as follows:
On the charge of driving in a dangerous manner you are convicted and fined $50. You are also disqualified from holding or obtaining a driver’s licence for a period of two years.
I then impose a Section 18A penalty on the other offences. But for your late pleas I would have sentenced you to 20 weeks detention. I reduce this to 16 weeks, giving you more credit than you are due for your pleas of guilty. I record convictions.
I now turn to the question of suspension and revisit and again consider all of the above factors. Despite your youth; employment; family support; lack of prior history; prospects of rehabilitation and the effect of detention upon you, in rare cases the offending is just so serious that it overwhelms other positive features. I also take into account that Mr Goldsworthy deserved to be able to go about his business without being attacked in such an appalling fashion. He now carries scars to remind him of his humiliation. Similarly, the police officers deserved to be respected by you and certainly not to be assaulted.
Weighing up everything, it is a close call but I am going to suspend your sentence of detention. I am going to give you a chance. Leaving your offending aside (and I think I have made it plain what I think of that and why) the rest of your life has been blameless. You have a great job and have a mother who is here to support you, so I am going to give you a chance, but it was a close call. I do not know what caused your ‘brain fade’ but, if you think about it, one minute you were driving down the road and then, within five or ten minutes, you were attacking someone. Just do not do that again.
The period of detention will be suspended upon you entering into an Obligation to be of good behaviour for three years. The amount of the Obligation is $100.
I expect you to keep your nose clean and stay out of trouble, not just for the next three years, but forever. You have had a taste of detention. You know how horrible it is. Take the chip off your shoulder and get on with your life.
Principles relevant to an appeal by a youth against sentence
It is well established that an appellate court will not interfere with the discretionary finding of a magistrate unless the appellant establishes that the magistrate acted on some wrong sentencing principle, took into account an irrelevant matter, failed to have regard to a relevant matter or where no patent error is identifiable, the sentence is so unreasonable that it cannot be regarded as a proper exercise of the sentencing discretion.[9]
[9] House v The King (1936) 55 CLR 499 at 504 – 505; Markarian v The Queen (2005) 228 CLR 357 at 370 – 371.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[10] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer[11] by Kourakis CJ, if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[10] (1936) 55 CLR 499.
[11] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
The appellant was to be sentenced as a youth. The YOA applied. The principles applicable to the sentencing of young offenders was considered by the Full Court in W, CD v Police; M, BC v Police,[12] where Gray J, with whom Peek and Nicholson JJ agreed, said:[13]
[12] [2014] SASCFC 72.
[13] [2014] SASCFC 72 at [14] – [20].
Section 3 of the Young Offenders Act is the cornerstone of the process of sentencing young offenders.[14] It identifies the statutory object and policies to be pursued in the sentencing of young offenders. It aims to secure for youths the care, correction and guidance necessary for their development into responsible and useful members of the community, and the proper realisation of their potential. However, at the same time, young offenders are to be made aware of their obligations under the law and of the consequences of the breach of the law, and the community is to be adequately protected against violent or wrongful acts. An appropriate sentence must allow each of these objectives to be achieved.[15]
[14] R v QTV (2003) 87 SASR 378, 388.
[15] A,MC v Police (2008) 102 SASR 151, [25].
It is not necessary for a Youth Court Judge or Magistrate to address each of the factors specified in section 3 of the Young Offenders Act in detail in their sentencing remarks and the failure to do so is not of itself enough to demonstrate error.[16] It is, however, important that the sentencing remarks make plain that the correct sentencing principles have been applied. In A, MC, White J made the following relevant observations:[17]
[16] M, MA v Police [2013] SASFC 140; R v P, NJY [2014] SASFC 10; A, MC v Police (2008) 102 SASR 151.
[17] A, MC v Police (2008) 102 SASR 151, [34].
… What the authorities do indicate is that, at least in those cases in which a young offender is sentenced to detention, the sentencing remarks should indicate how the object and policies of the YOA were applied. Sentencing remarks can satisfy this requirement without any explicit reference to s 3 or to its object and policies at all.
The Criminal Law (Sentencing) Act 1988 (SA) applies to the sentencing of a youth as much as to an adult.[18] However, the principles of the Young Offenders Act are to prevail in the event of any conflict. The application of section 10 of the Sentencing Act must be directed to the fulfilment of the objects and policies of section 3 of the Young Offenders Act.[19]
[18] Criminal Law (Sentencing) Act 1988 (SA) section 3A.
[19] R v QTV (2003) 87 SASR 378, [48]; A,MC v Police (2008) 102 SASR 151, [27].
The need to ensure that the defendant is adequately punished for the offence has less significance in the sentencing of a youth than it does in the sentencing of an adult.[20] However, at least with respect to serious offences, the sentence of a youth should reflect the gravity of the crime.[21]
[20] R v QTV (2003) 87 SASR 378, [49].
[21] A,MC v Police (2008) 102 SASR 151, [27]; cited with approval in R v A,D (2011) 109 SASR 197, [57].
Section 3 of the Young Offenders Act requires the court to assume that the youth has the potential to be rehabilitated. Much greater emphasis will be given to the youth’s prospects and potential than might usually be the case in sentencing an adult.
Further, general deterrence is not a consideration when sentencing a young offender.[22]
[22] R v P, A [2013] SASCFC 3.
In sentencing a youth, regard should also be had to the deterrent effect of any proposed sanction on the youth.   General deterrence is not a consideration when sentencing a young offender.
The Young Offenders Act imposes limitations on the Youth Court’s power to sentence youths to either imprisonment or detention. In particular, section 23(4) of the Act provides:
A sentence of detention must not be imposed for an offence unless—
(a)     the offender is a recidivist young offender or a serious firearm offender; or
(b)     in any other case—the Court is satisfied that a sentence of a non-custodial nature would be inadequate—
(i)     because of the gravity or circumstances of the offence; or
(ii)    because the offence is part of a pattern of repeated offending.
In K v Police[23] 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.[24]
[23] [1999] SASC 407.
[24] [1999] SASC 407 at [18].
Application of those principles to this appeal
The appellant was born on 4 April 1998. Accordingly she was 17 years of age at the time of the offending. She is a first offender. The offending is out of character in the sense that she has no history of prior offending. She is employed in the building trade as an apprentice carpenter. She had previously been awarded the title of South Australian Apprentice of the Year. She enjoys the support of her family. Her prospects of rehabilitation are favourable. These were all matters to be weighed by the magistrate in exercising the sentencing discretion. Plainly he had regard to them. A submission that he failed to have sufficient regard to a relevant consideration is not a basis for appellate intervention in the exercise of a discretionary judgment.[25]
[25] Police v Chilton [2014] SASCFC 76 at [18], (2014) 120 SASR 32 at 38.
Section 23(4) of the YOA entitles a court to impose a sentence of detention where the court, having regard to the gravity or circumstances of the offence, is satisfied that a non-custodial sentence would be inadequate. I accept that it is implicit in the magistrate’s sentencing remarks that he reached that conclusion. It was a conclusion open to him given the circumstances of the offending. The sentencing remarks make specific reference to s 23(4) of the YOA and make it clear that the magistrate rejected the alternative sentencing options which were available and which had been referred to by the appellant’s counsel.[26] The imposition of a sentence of detention was within the magistrate’s sentencing discretion.
[26] The remarks erroneously refer to s 22 but it is clear from the remarks that the magistrate is referring to s 23(4)(b).
It is not an error in the exercise of the sentencing discretion for a judge or magistrate to appear to focus almost solely on one form of sentence over another. While it is an error not to consider all of the properly available sentencing options, a judicial officer’s failure to mention them all does not, of itself, make out that error.[27] In this case, subject to one matter I will come to later in these reasons, the magistrate did consider the properly available sentencing options and concluded that the imposition of a term of detention was the only appropriate sentence.
[27] Police v Chilton [2014] SASCFC 76 at [20], (2014) 120 SASR 32 at 38.
The magistrate was correct to characterise the appellant’s offending as appalling. It cannot be characterised as a momentary and impulsive lapse of self-control. There were a series of offences committed over a period of time. The appellant had the opportunity to reflect on her conduct and desist. She did not.
The continuing nature of the offending and the appellant’s subsequent description of the circumstances of the offence of assault causing harm where she said to her brother, ‘I got him good. I made him bleed’, is indicative of an attitude on the part of the appellant that does her no credit. It was a countervailing factor the magistrate was entitled to consider and weigh against a submission that her lack of prior offending evidenced her good character. In approaching the exercise of his sentencing discretion, and having regard to the corrective objects of the YOA, the magistrate was entitled to take into account the evident lack of respect the appellant demonstrated for Mr Goldsworthy and the police.
It was open to the magistrate to form the view that the consequences of such breaches of the law needed to be brought home to the appellant; that the public needed protection from the appellant; and that consequently the imposition of a period of detention was the appropriate sentencing option. In reaching this conclusion the magistrate did not have regard to an irrelevant consideration or fail to have regard to a relevant consideration. As the imposition of a period of detention was within the magistrate’s sentencing discretion, no error has been demonstrated in the exercise of that discretion.
This is offending that involved driving in a manner dangerous, and two separate crimes of violence, one of which is an aggravated offence. This is serious offending by someone who is almost an adult, not a 12 or 14 year old. To recognise that is not to overlook the fact that unfortunately from time to time the Youth Court deals with more serious offending.
I do not overlook the further ground that the length of the obligation imposed was the maximum permissible.[28] The imposition of an obligation of that period was within the magistrate’s discretion. In this context it is important to recognise that the Youth Court is a specialist court and is usually better placed than this court to assess what is appropriate.[29] No error has been demonstrated.
[28] Section 40 of the Criminal Law (Sentencing) Act 1988 (SA) provides that the terms of a bond under that Act may not exceed three years. Section 3A provides for the application of the Act to use. Section 3A(3)(f) provides that in applying a provision of the Sentencing Act to a youth who is being or has been dealt with as a youth – a reference to a bond or to entering into a bond, is to be read as a reference to an order under s 26 of the YOA, or to becoming subject to such an order. Section 26 of the YOA prohibits the court from requiring a youth to enter into a bond but permits the court to impose an obligation of the kind that might otherwise have been imposed under a bond.
[29] K v Police [1999] SASC 407 at [23].

Likewise, the period of licence disqualification imposed upon the appellant was within the magistrate’s sentencing discretion. The minimum term of disqualification is 12 months and no maximum term is prescribed.[30]
[30] Section 46(3)(a) of the RTA.
In R v Thach[31] Gray J noted that the minimum term of licence disqualification should be reserved for those cases at the least serious end of the scale for the relevant offending. The magistrate was entitled to consider on the facts found that the offence of driving in a manner dangerous committed by the appellant was not at the least serious end of the scale for the relevant offending. In any event, given that it was open to the magistrate to impose a disqualification for life, a two-year period of disqualification is at the lower end of the range. The submission that the court should have imposed a disqualification for the minimum period having regard to the hardship a licence disqualification would occasion does not demonstrate error of the kind that justifies appellate intervention. Reasonable minds can differ as to the appropriateness of the length of a period of disqualification imposed. It cannot be said that a two-year disqualification is so lengthy as to be counterproductive to the intended effect of bringing home to the appellant the unlawfulness of her conduct.
[31] [2010] SASCFC 16 at [84], (2010) 203 A Crim R 510 at 532.
For these reasons I reject the appellant’s submission that the imposition of a two-year licence disqualification was manifestly excessive and inconsistent with the YOA’s focus on the rehabilitation of offenders.
Further, the magistrate was not bound to grant the application made by the appellant to suspend the commencement of the operation of the licence disqualification pending a possible appeal. In any event, it was open to the appellant to make an application for suspension to a Judge of this Court pursuant to s 173(2) of the RTA. She did not do so.
The appellant complains that the magistrate erred in remanding her in custody overnight pending the passing of sentence.
It is apparent from the sentencing remarks that the magistrate did so for the purposes of giving the appellant a taste of detention. He did so for reasons of personal deterrence. In my view there was no error in doing so.
The practice of remanding in custody was considered in Buttigieg v Police[32] where Martin J (as he then was) said:[33]
The practice of remanding in custody arose for consideration in Ex parte Rundle (1982) 30 SASR 282. The appellants in that matter were remanded for sentence by a magistrate and bail was refused. They applied to the Supreme Court for bail. In view of the number of matters that had come before him from the same magistrate, Cox J considered the principles upon which a court of summary jurisdiction should or should not act in taking a plea of guilty from a defendant and then remanding the defendant in custody for sentence. In the course of that consideration, his Honour said (p 287):
"More importantly, whether or not the books expressly say so, I have no doubt that judges commonly remand a defendant for sentence in custody, not because they expect to give him a prison sentence at the end of the remand period but because they expect not to. There are many cases in which the best thing to do, in a difficult case, is to let a defendant have a brief experience of what he is, by way of sentence, narrowly missing, and then to release him on a bond in the hope that he will not offend again. To deny such a power to the courts is to reduce the sentencing options available and, in a borderline case, possibly tip the scales in favour of a sentence of imprisonment. Obviously that would be regrettable."
(Emphasis added.)
I respectfully agree with his Honour's observations. It is to be noted, however, that his Honour was referring to difficult or borderline cases in which letting a defendant have a brief experience of incarceration would prevent the scales from tipping in favour of requiring that a sentence of imprisonment be served. In my opinion this was not such a case. Importantly, Cox J went on to observe that, as with all sentencing principles, this principle must be applied humanely and circumspectly. Having observed it was not possible to enunciate a rule of thumb that would cover all cases, his Honour said:
"Plainly, if the circumstances make any loss of liberty inappropriate, the defendant should not be remanded in custody ... The test would always be, for the magistrate as for this court on review, whether the remanding in custody was a just order to make in all the circumstances."
[32] (1999) 74 SASR 229.
[33] (1999) 74 SASR 229 at 232.
It is remembered that this course was adopted by the magistrate after he had found the appellant guilty of the offence of driving in a manner dangerous. In circumstances where the magistrate was weighing whether a sentence of detention for the offences of violence would or would not be suspended, this was a case that fell within the “borderline” category described in Buttigieg. The course adopted by the magistrate is a legitimate sentencing option. I am not persuaded that it was unjust of the magistrate to have proceeded in this way.
The one concern I have is that the magistrate did not refer to the availability of proceeding without recording convictions. While it was open to the magistrate to impose convictions on the matters before him, including for the offences to which the appellant had pleaded guilty, he was not bound to do so. It is not apparent to me that he did give consideration to this. Certainly in relation to those offences to which she pleaded guilty it could be said that the magistrate might have considered that it would be consistent with the statutory objective of developing young offenders into responsible and useful members of the community, to have proceeded without recording convictions for those offences. The recording of convictions can have adverse effects on a person’s subsequent life and career. In circumstances where there was some measure of contrition and recognition on the appellant’s part of her wrongdoing reflected in the pleas of guilty, and given the favourable prospects of her rehabilitation, I consider the magistrate erred in not considering this option. I would allow the appeal on this basis. On the other hand, I do not consider there was any error in recording a conviction for the offence of driving in a manner dangerous given the plea of not guilty which demonstrated a lack of contrition, remorse and insight into her unlawful conduct.
I would set aside the convictions for the offences of assault causing harm, aggravated assault and resist police. I would otherwise leave in place the orders made by the magistrate.
Conclusion
I would allow the appeal for the sole purpose of setting aside the convictions recorded for the offences of assault causing harm, aggravated assault and resist police. I would otherwise leave the orders made by the magistrate untouched.