C, Te v Police - [2006] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
C, TE v POLICE
Judgment of The Full Court
(The Honourable Justice Besanko, The Honourable Justice Anderson and The Honourable Justice Layton)
17 February 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence imposed in Youth Court of South Australia – 13 year old appellant sentenced to 18 months’ detention – whether judge gave adequate reasons for sentence – whether sentence manifestly excessive – held, judge had regard to relevant matters – sentence not manifestly excessive – appeal dismissed.
Youth Court Act 1993 s 22; Supreme Court Rules 1987 r 96D; Young Offenders Act 1993 ss 3, 23, 38, 39, 41; Criminal Law (Sentencing) Act 1988 ss 3A, 9; Children's Protection and Young Offenders Act 1979 (repealed) s 7, referred to.
House v The King (1936) 55 CLR 499; K v Police (1999) 205 LSJS 4; Hallam v O'Dea (1979) 22 SASR 133; L v Police (1998) 198 LSJS 481; S v Police (Unreported, Supreme Court of South Australia, Mullighan J, 22 December 1998, Judgment No S7019); Papps v Police (2000) 77 SASR 210; AJK v Police (2002) 135 A Crim R 1; RJB v Police (SA) [2000] SASC 209, considered.

C, TE v POLICE
[2006] SASC 43
Full Court: Besanko, Anderson and Layton JJ

BESANKO J: This is an appeal as of right from a decision of a judge of the Youth Court of South Australia: Youth Court Act 1993, s 22. The appeal was instituted out of time (see Supreme Court Rules 1987, r 96D), but there is an adequate explanation for the delay and the respondent does not oppose an extension of time. In my opinion, it is an appropriate case for an extension of time within which to institute the appeal.
The offences committed by the appellant, the sentences imposed by the judge, and the facts are set out in the reasons for judgment of Layton J.
The judge’s sentencing remarks are brief. He said:
[...] you’re 13 now, you’ve been appearing in the Youth Court since you were 10 and I have been afraid for some time that this day would come. I have told you and the other judges and magistrates of the court have told you numerous times that if you stole cars and drove them, there was a danger that you would end up injuring somebody and that happened. You stole a man’s car, he followed you and approached you and I accept that you then panicked and drove out into the intersection against the red light, hit a man on a bike and hurt him terribly. He’s still suffering and his family are suffering. It’s a very, very bad case.
I think it deserves a sentence of 18 months detention and I’ll tell you why. The public have to be protected from stupid little boys who do what you have done, and you have to be deterred from doing such a thing in the future. But the time in detention I consider will also greatly assist you. I’m going to take into account the time that you have already been in custody and so the total sentence will be 13 months.
On the two housebreaks you’ll be given six months in each case and on the illegal interference given three months, they will all be concurrent. So there’s a total head sentence of 13 months that will not of course be suspended. So […] can be taken to the cells, thank you.
The appellant was taken into custody on 4 February 2005 and he was sentenced on 15 June 2005. The sentence of 13 months in detention imposed on 15 June 2005 meant that the appellant would spend a little under 18 months in detention.
The grounds of appeal are as follows:
The sentence imposed by the learned sentencing judge was manifestly excessive.
Particulars
1.1The learned sentencing judge erred by improperly sentencing the youth on the factual basis that the youth was a prolific driver of stolen motor vehicles whereas he had never been found to have driven a motor vehicle on any occasion ever.
1.2The learned sentencing judge erred by failing to give sufficient weight to the very young age of the youth.
1.3The learned sentencing judge erred by placing too much weight on the need to personally deter the youth from offending.
In relation to the particular in paragraph 1.1, whatever the judge meant by the statement “I have told you and other judges and magistrates of the court have told you numerous times that if you stole cars and drove them, there was a danger that you would end up injuring somebody and that happened”, I do not think he sentenced the appellant on the basis that he was a prolific driver of stolen motor vehicles. It seems that on a number of previous occasions the appellant had been found guilty of the illegal use of, or interference with, a motor vehicle, but, said his counsel, that was on the basis that he was a passenger and not the driver of the motor vehicle. During the sentencing submissions immediately prior to the passing of sentence, the judge was reminded by counsel that the appellant had no prior convictions for driving stolen vehicles and I do not think he made an error that influenced the sentence which he imposed.
In relation to the particulars in paragraphs 1.2 and 1.3, it must be said at the outset that questions of insufficient weight or too much weight are unlikely to satisfy the test for intervention by an appellate court: House v The King (1936) 55 CLR 499 at 504-505. It must also be borne in mind that it was not in dispute here or in the court below that a substantial custodial sentence was called for in the circumstances of this case. Furthermore, this is an appeal from a specialist court that is called upon on a regular basis to sentence youths and, in the course of doing so, to have regard to the object of the Young Offenders Act 1993 (“YOA”) and the statutory policies referred to in s 3. The Court must recognise that the Youth Court is usually better placed than this Court to assess what is appropriate: K v Police [1999] SASC 407 at [23] per Doyle CJ (with whom Mullighan and Wicks JJ agreed). It is also to be noted that the judge who imposed the sentence is a member of the Training Centre Review Board (see YOA, s 38), which has extensive powers in terms of reviewing the progress and circumstances of a youth at a training centre (see, for example, YOA, ss 39 and 41).
As the argument before this Court developed, it became apparent that, although not expressly mentioned in the grounds of appeal, a principal submission of the appellant was that the judge had not delivered adequate reasons for the sentences he imposed. In particular, it was said that he had not explained how he had determined that a period of 18 months in detention was appropriate.
The judge had an obligation to state his reasons for imposing the sentence which he imposed. That obligation arises at common law and under statute: Criminal Law (Sentencing) Act 1988, ss 3A and 9.
In his sentencing remarks, the judge identifies the following matters:
1The circumstances of the offending, which he described as “a very, very bad case” and the effect on the injured victim.
2The need to protect the public. This is a relevant matter: s 3(2)(c).
3The need for personal deterrence. This is a relevant matter: s 3(2)(a).
4The fact that time in custody will, to use the judge’s words, “greatly assist” the appellant. I think that in making this observation, the judge had in mind two reports which were put before him, a social background report dated 14 June 2005 and a psychological report of the same date. I think that in having regard to these reports the judge was directing his mind to the question of the care, correction and guidance of the appellant as required by s 3(1) of the YOA.
The appellant has a history of offending. The appellant did not dispute the respondent’s description of this history. The appellant first came into contact with the criminal justice system as an offender in September 2002 at the age of 11 years, and since that time he has been found guilty of, or pleaded guilty to, more than 70 offences involving more than 35 separate incursions into criminality. His offending has included larceny on nine occasions, the illegal use of, or interference with, a motor vehicle on 11 occasions, aggravated serious criminal trespass on two occasions, non-aggravated serious criminal trespass on one occasion and being unlawfully on premises on two occasions, carrying an offensive weapon on three occasions, hindering police on three occasions, resisting police on four occasions and escaping custody on two occasions. The appellant has never actually served a period of detention. The appellant has breached various bail agreements on in excess of 20 occasions. The financial penalties by way of the victim of crime levies have failed to deter him. He has failed to respond to leniency in that on seven occasions he has been charged with the breach of an obligation.
The appellant has been in custody at the Magill Training Centre since 4 February 2005. A social worker at the centre, Ms Karen Schulz, prepared the social background report to which I have previously referred. The report sets out in detail the programmes provided to the appellant since he went into custody, his response to those programmes, and the treatment proposed for the appellant in the future. It seems clear that the appellant’s behaviour has improved since he has been in custody and that he is receiving treatment which addresses a number of his problems. In my opinion, the social background report and the psychological report provided a sound basis for an assessment of what will secure the care, correction and guidance of the appellant as required by s 3(1) of the YOA.
It was not suggested by the appellant that the judge should have sought further information before he sentenced the appellant. In other words, the relevant information was before him. The judge had regard to the psychological and social background reports, which addressed the appellant’s needs, including his educational needs. His reference to that matter in his sentencing remarks was brief (ie, time in detention will “greatly assist you”) but I do not think that it can be said that he failed to have regard to it. This is not a case where the absence or paucity of reasons might more readily support an inference that a relevant matter was not taken into account or an irrelevant matter was taken into account. Clearly, it is not a case in which the absence or paucity of reasons indicates that the sentencing process has fundamentally miscarried. In my opinion, the judge’s reasons in this case were adequate. He had regard to the relevant matters and, ultimately, he had to determine an appropriate sentence after balancing a number of relevant considerations. There is nothing to suggest that he did not do that.
That leaves for consideration the complaint that the sentence is manifestly excessive. For the reasons I have already given, none of the grounds of appeal are made out and, in my opinion, the sentence imposed of 18 months’ detention is not manifestly excessive.
Conclusion
I would extend the time for instituting the appeal up to and including 20 October 2005. However, I would dismiss the appeal.
ANDERSON J I have had the opportunity of reading the reasons in draft of both Besanko and Layton JJ.
It is my view that the appeal should be dismissed for the reasons given by Besanko J.
In particular, I am persuaded that it would be inappropriate in the circumstances of this case to interfere with the decision of the Youth Court which exercises a specialist jurisdiction.
I agree with Besanko J that the Youth Court is usually better placed than this court to determine the appropriate course in dealing with young offenders.
Like Besanko J I would extend the time for instituting the appeal up to and including 20 October 2005. I would also dismiss the appeal.
LAYTON J: This is an appeal pursuant to s 22(2)(d) of the Youth Court Act 1993 against a sentence imposed by a judge of the Youth Court. The appellant pleaded guilty to a number of charges, the most serious of which was causing grievous bodily harm by dangerous driving. The other charges included two counts of non-aggravated serious criminal trespass (place of residence); two counts of dishonestly taking property without the owner’s consent; driving or using a motor vehicle without consent; interfering with a motor vehicle without consent; and being an unauthorised person driving a motor vehicle on a road. In addition there were also charges of failing to stop before reaching the stop line at a red traffic light; failing to stop after an accident in which a person is injured; failing to stop and give particulars to persons at a crash scene; and failing to truly answer.
The sentencing judge imposed a sentence of 13 months detention for the offence of causing grievous bodily harm, reduced from 18 months on account of time already spent in detention. Sentences of six months detention for each of the two criminal trespass offences, and of three months for the illegal interference offence were also imposed, to be served concurrently. The appellant was disqualified from holding a driver’s licence for a period of five years to commence on his sixteenth birthday. On all other charges a conviction was recorded without penalty.
The appellant
The appellant is an Aboriginal boy and was 13 years old at the time of sentencing. His earliest recorded offence was committed when he was 10 years old. He has, since then, pleaded guilty to, or been found guilty of, more than 70 offences. His prior offending includes larceny, illegal use or interference with a motor vehicle, criminal trespass and carrying an offensive weapon. Importantly he has never previously served a period of detention, although he has apparently spent time in the Magill Training Centre for short periods in the past. A pre-sentence psychological report obtained in June 2005 indicates that the appellant has a speech impairment, is illiterate, and may have Attention Deficit Hyperactivity Disorder, although this diagnosis is ‘clouded by his low level of intellectual functioning and history of inadequate parental care’. The report also recorded that at that time the appellant had been at the Magill Training Centre for some months, and that there had been considerable improvement in his behaviour over that period.
Circumstances of the offending
The circumstances of the most serious charge of causing grievous bodily harm by dangerous driving are that a Mr Johnston, who had earlier reported his car stolen, saw his car being driven by the appellant along Prospect Road. The appellant was sitting on pillows to enable him to see over the dashboard. Mr Johnston hailed a taxi and in that taxi followed his car through some side streets and on to Churchill Road. When the cars became stationary at a red traffic light Mr Johnston got out of the taxi, approached his car on foot and called out to the appellant. The appellant responded by accelerating rapidly and swerving between two lanes of traffic. The car driven by the appellant collided with another vehicle and then entered the intersection against the light and collided with a cyclist. The cyclist was thrown on to the bonnet of the car and smashed the window. The appellant did not stop.
The cyclist suffered injuries including right shoulder dislocation, right scapular fracture, open fracture/dislocation of the left tibia/fibula, left thumb fracture, fractures of two areas in the cervical spine and laceration of the abdominal wall.
The appeal
The appellant submitted that the sentence imposed was manifestly excessive in that the sentencing judge erred in the following ways:
1By improperly sentencing the youth on the factual basis that the youth was a prolific driver of stolen motor vehicles;
2By failing to give sufficient weight to the very young age of the youth;
3By placing too much weight on the need to personally deter the youth from offending.
In addition, the appellant’s outline of argument raised the failure of the sentencing judge to state a discount for the guilty pleas. The appellant sought, and the respondent did not oppose, an extension of time.
In argument counsel for the appellant, Mr Gaite, did not suggest that a sentence of detention was inappropriate but submitted that what was effectively a sentence of 18 months detention was too long for such a young offender. Mr Gaite argued that if the appellant’s memories began at the age of about five or six, 18 months would represent approximately a fifth of his cognitive lifespan. This, it was argued, is too long a period for a developing child to be thinking about where he went wrong.
Mr Gaite also submitted that the sentencing judge fell into error in making the following remarks:
I have told you and the other judges and magistrates of the court have told you numerous times that if you stole cars and drove them, there was a danger that you would end up injuring somebody…
It was submitted that these comments indicated that the judge might have formed the view that the appellant was a prolific driver of stolen motor vehicles. Although there are numerous offences for which the appellant had been sentenced involving motor vehicles, it was submitted that the appellant has never previously been sentenced in relation to illegally driving a motor vehicle. Mr Gaite argued that there was no proper basis for these comments, and that particularly in the context of sentencing remarks that were unfortunately very brief, they constituted an error.
Counsel for the respondent, Mr Hinton, invited the Court to rely upon the expertise of the sentencing judge who sits in a specialist court. Mr Hinton submitted that the penalty imposed by the judge would address the appellant’s educational needs and his aggressive behaviour, and that some success in this regard had already been demonstrated by the report of his improved behaviour since being at the Magill Training Centre. Mr Hinton submitted that were this Court to sentence the appellant afresh, we would arrive at the same conclusion as that reached by the sentencing judge. Mr Hinton also acknowledged that the brevity of the judge’s reasons could itself be a ground of appeal.
Sentencing under the Young Offenders Act 1993
While the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) applies to the sentencing of a youth, in the event of conflict between a provision of that Act and a provision of the Young Offenders Act 1993, s 3A(2) of the Sentencing Act provides that the Young Offenders Act prevails. A penalty imposed on a youth must accord with the object of the Young Offenders Act (“the Act”). Section 3(1) of the Act sets out the Act’s object:
[t]o 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.
Section 3(2) of the Act states that:
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 violence or wrongful acts.
Section 3(2a)(a) provides for regard to be had to the deterrent effect on the youth of any proposed sanction. Section 3(3) sets out the following statutory policies, to which effect is to be given when sentencing a youth, 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, a 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.

Section 23(4) of the Act provides that:
A sentence of detention must not be imposed for an offence unless the Court is satisfied that, because of the gravity or circumstances of the offence, or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.
In Hallam v O’Dea,[1] the Full Court considered the equivalent sections of the earlier Children’s Protection and Young Offenders Act 1979. After setting out s 7 of the old Act, which lists factors akin to the statutory policies in s 3 of the current Act, King CJ stated that:
The purpose of the Court therefore must be to “seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and his development into a responsible and useful member of the community”, and it is in doing that that it is to take into account the enumerated factors. The Court should therefore, if detention is indicated, impose on the child the period of detention which “will best lead to the proper development of his personality and his development into a responsible and useful member of the community”, taking into consideration the enumerated factors or such of them as may be relevant and appropriate. The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender. In the case of an adult offender, the starting point will generally be the observance of the proper proportion between the gravity of the crime and the severity of the punishment. This fundamental principle of adult sentencing obviously has no place in fixing the period of detention under the Children’s Protection and Young Offenders Act, even where the protection of the community becomes the dominant consideration. The proper approach for the Children’s Court, where a sentence of detention must be imposed, is to consider what period of detention, within the statutory limit…will best achieve the objects proposed to the court by s 7.[2]
These comments have been held to apply equally to the current Act in L v Police[3] and S v Police.[4]
[1] (1979) 22 SASR 133.
[2] (1979) 22 SASR 133, 136.
[3] (1998) 198 LSJS 481, 491 (per Bleby J).
[4] (Unreported, Supreme Court of South Australia, Mullighan J, 22 December 1998, Judgment No S7019) [22].
In this case it is difficult to determine from the ex tempore reasons of the judge the extent to which he had regard to any of the statutory policies and other considerations set out above. The relevant part of the judge’s comments I set out in full:
[…] you’re 13 now, and you’ve been appearing in the Youth Court since you were 10 and I have been afraid for some time that this day would come. I have told you and the other judges and magistrates of the court have told you numerous times that if you stole cars and drove them, there was a danger that you would end up injuring someone and that happened. You stole a man’s car, he followed you and approached you and I accept that you then panicked and drove into the intersection against the red light, hit a man on a bike and hurt him terribly. He’s still suffering and his family are suffering. It’s a very, very bad case.
I think it deserves a sentence of 18 months detention and I’ll tell you why. The public have to be protected from stupid little boys who do what you have done, and you have to be deterred from doing such a thing in the future. But the time in detention I consider will also greatly assist you. I’m going to take into account the time that you have already been in custody and so the total sentence will be 13 months.
On the housebreaks you’ll be given six months in each case and on the illegal interference given three months, they will all be concurrent. So there’s a total head sentence of 13 months that will not of course be suspended.
These reasons indicate that the judge has expressly had regard, in particular, to the protection of the public, the gravity of the offence and personal deterrence. The judge’s comment that the period of detention will greatly assist the appellant I interpret as a reference to the object of securing ‘care, correction and guidance necessary for [the youth’s] development’ under s 3(1) of the Act.
Mr Gaite submitted the judge had erred in that he had sentenced the appellant on the basis that he was a prolific driver of stolen motor vehicles. This submission was based on the judge’s comment that he, and other judges and magistrates of the Youth Court, had told the appellant ‘numerous times that if [he] stole cars and drove them, there was a danger that [he] would end up injuring someone’. In sentencing submissions the police prosecutor had said that:
it’s not the first time that he’s done this and it’s not the first time that he has driven in this particular manner from memory.
Mr McCarthy, for the appellant, then interjected and the following exchange took place:
Mr McCarthy:     He’s never been charged with that.
APP Westover:     I’ll withdraw that.
Mr McCarthy:     I believe there’s no priors for any driving offences. We can check from the record.
APP Westover:     There’s a number of illegal use matters.
Mr McCarthy:     Yes, as passenger but no driving.
These submissions were made less than half an hour prior to the sentence being imposed and in that context I consider that it is unlikely that the sentencing judge was under any misapprehension on this issue.
Mr Hinton submitted that if this Court were to re-sentence the appellant, we would arrive at the same conclusion as the sentencing judge. What is absent from the judge’s reasons, however, is any indication of why the period of 18 months is the appropriate period of detention in the circumstances of this case. The proper approach to imposing a period of detention, as articulated by King CJ in Hallam v O’Dea, is to ‘consider what period of detention…will best achieve the objects proposed to the court [by the legislation]’.[5] The judge’s reasons suggest that in choosing a period of 18 months detention, his Honour was influenced by the gravity of the crime. This factor is relevant to whether or not a sentence of detention may be imposed under s 23(4) of the Act, but was held to have ‘no place in fixing the period of detention [for a youth]…even where the protection of the community becomes the dominant consideration’.[6]
[5] (1979) 22 SASR 133, 136.
[6] Hallam v O’Dea (1979) 22 SASR 133, 136.
In my view the reasons of the sentencing judge are too brief to enable an appeal court to determine whether the sentence imposed was appropriate, having regard to the policy considerations set out in the Act. In Papps v Police,[7] the Full Court held that the failure to give adequate reasons may be an error of law, depending on the circumstances of the case. Gray J, with whom Wicks and Olsson JJ agreed, held that:
reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud…
"The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done…[8]
[7] (2000) 77 SASR 210.
[8] (2000) 77 SASR 210, 219 [34].
Although adequacy of reasons is a more significant issue where a finding of guilt, rather than the determination of an appropriate sentence, is concerned, there will still be circumstances where sentencing remarks will be so brief as to constitute an error. In this case the judge was sentencing a 13 year old Aboriginal boy to serve a period of detention for the first time. The period of detention imposed was substantial, particularly having regard to the age of the appellant. In AJK v Police[9] Gray J held that the failure of the magistrate to disclose, in his remarks, ‘whether or not he has considered the requirements of s 3 of the Act or how such requirements have been addressed’ amounted to a miscarriage of the magistrate’s sentencing discretion, and that the appellant in that case ought to be sentenced afresh.[10] Gray J then went on to cite the following passage from the reasons of Debelle J in RJB v Police (SA):[11]
Although the magistrate has expressly referred to the matters set out in the Young Offenders Act, it is not apparent to which objectives of the Act he has had regard. I acknowledge that these are the ex tempore reasons of a busy magistrate intent upon disposing of a heavy list. However, the reference by the magistrate to the matters set out in the Young Offenders Act does not indicate to which of the matters or the objectives of that Act, as spelled out in s 3 of the Act, the magistrate has had regard…[12]
Debelle J also considered this to be a miscarriage of the magistrate’s sentencing discretion and sentenced the appellant afresh. Applying those principles to the situation in this case, I consider that in failing to identify in his remarks the reasoning that led his Honour to determine the particular period of detention, and in failing to address any of the statutory policies set out s 3(3) of the Act, the judge fell into error.
[9] (2002) 135 A Crim R 1.
[10] (2002) 135 A Crim R 1, 8-9.
[11] [2000] SASC 209.
[12] [2000] SASC 209, [16].
In particular, I am concerned that the length of this sentence of detention may have adverse effects on him by reason of his Aboriginality, and may also result in the appellant being released from detention part way through a school term, in circumstances where his attendance at school has been a significant problem in the past. This is likely to cause considerable disruption to his education. Section 3(3)(e) of the Act requires that his ‘sense of racial, ethnic or cultural identity should not be impaired’ and s 3(3)(d) provides that ‘there should be no unnecessary interruption of a youth’s education’. These statutory policies seem to me to require specific consideration where the Aboriginal youth to be sentenced is as young as the appellant and has had significant problems with school attendance, as well as a low level of intellectual functioning and a possible diagnosis of Attention Deficit Hyperactivity Disorder.
Conclusion
Under s 22(3) of the Youth Court Act 1993 this Court has the power to ‘confirm, vary or quash’ the sentence, if it thinks ‘the interests of justice so require’. It may also remit the matter for hearing or further hearing. Bearing in mind that the Youth Court is a specialist court, I consider it is preferable for the matter to be remitted to the Youth Court and that the appellant be re-sentenced with regard to the matters discussed above. It is unfortunate that so much time has passed since the appellant was sentenced, but that factor does not persuade me that this Court should substitute a sentence. I would allow the appeal, quash the sentence and order that the matter be remitted to the Youth Court and that the appellant be re-sentenced.