C, TL v Police - [2010] SASC 115

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
C, TL v POLICE
[2010] SASC 115
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kelly)
27 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS
Appellant youth pleaded guilty to rape - sentenced to 15 months detention - appeal against sentence - whether sentence manifestly excessive - whether Judge properly considered the factors relevant to the sentencing of young offenders and the objects in s 3 Young Offenders Act 1993 - whether Judge erred in failing to suspend the sentence - whether the Judge failed to give adequate reasons.
Held: Judge had proper regard to the circumstances of the offender and the seriousness of the offence - brevity of sentencing remarks not indicative of error - Judge had appropriate regard to the objects in s 3 Young Offenders Act 1993 - failure to suspend the sentence not an error - sentence was not manifestly excessive - appeal dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - TO ADMIT NEW EVIDENCE
Appellant applied to adduce fresh evidence of events occurring after sentence at the hearing of the appeal - whether appeal Court should have regard to material not before sentencing Jugde - whether fresh evidence was admissible - observations as to principles applicable to reception of fresh evidence on appeal against sentence.
Held (per Kelly J, White J concurring): a clear distinction is to be made between fresh evidence that sheds light on matters before the sentencing Judge and evidence as to events occurring after sentence - the evidence sought to be admitted at the appeal did not shed new light on the material before sentencing Judge - the material was not admissible as fresh evidence.
Per Gray J: psychiatric report in relation to appellant threw new light on the appellant's circumstances at the time of sentencing - evidence was admissible and should be received.

CRIMINAL LAW - PROCEDURE - BAIL - AFTER CONVICTION - GENERALLY
Appellant granted bail pending appeal against sentence – observations on principles which apply in respect of applications for bail pending outcome of appeals against sentence.
Young Offenders Act 1993 ss 3, 23(4), 41; Criminal Law Consolidation Act 1935 ss 353, 359; Mental Health Act 1993 (SA); Children's Protection and Young Offenders Act 1979 s 7; Criminal Law (Sentencing) Act 1988 s 3A, 31A, 38(2a); Youth Court Act 1993 (SA); Bail Act 1985 ss 5, 10, referred to.
R v C (2004) SASR 270; R v Smith (1987) 44 SASR 587; R v O'Shea (1982) 31 SASR 129, applied.
Beshara and Kleut v Paphitis (1987) 136 LSJS 16; R v Flanigan (unreported judgment, Supreme Court of South Australia, Debelle J, 25 November 1996, S5937); R v Giordano (1982) 31 SASR 241, discussed.
Jones v Police [2009] SASC 137; O,C v Police [2007] SASC 346; R v Sladic (2005) 92 SASR 36; R v Penno (2004) 236 LSJS 457; R v McIntee (1985) 38 SASR 432; CDJ v VAJ (No 1) (1998) 197 CLR 172; Police v Dorrizzi (2002) 84 SASR 416; A, MC v Police (2008) 102 SASR 151; R v Abdulla [2010] SASC 52; R v QTV (2003) 87 SASR 378; Hallam v O'Dea (1979) 22 SASR 133; S,JC v Police (2007) 96 SASR 432; L v Police (1998) 198 LSJS 481; RJB v Police [2000] SASC 209; R v Smith (1994) 74 A Crim R 309; WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147; R v Brain (1999) 74 SASR 92; Aplin v Police [1999] SASC 273; R v Baker [2000] SASC 281; R v Blayney [2002] SASC 184; R v Kostaras [2002] SASC 231; R v McKelliff [2003] SASC 357; R v Frederick [2004] SASC 304; McLeod v Fauser (1986) 42 SASR 356; R v McInereney (1986) 42 SASR 111; Jackson v Police [2000] SASC 397, considered.

C, TL v POLICE
[2010] SASC 115
Full Court Gray, White and Kelly JJ
GRAY J:

This is an appeal against sentence.
The defendant and appellant pleaded guilty to the offence of rape before a Judge of the Youth Court. On 23 September 2009 he was sentenced to a term of 15 months immediate detention.
The offence occurred following a party of adolescents without adult supervision. At the time of the offence the defendant was aged 17 years and seven months and the complainant 15 years of age. Both resided at a northern mining town and were known to each other. It is apparent that the defendant was affected by alcohol at the time of the offence. Notwithstanding the complainant’s rejection of the advances of the defendant on several occasions, the defendant proceeded to commit the offence over the active protests, resistance and struggles of the complainant. The complainant was terrified by what was occurring, sustained bruising as a consequence of the force applied and has suffered considerably as a result.
The Youth Court Judge took a serious view of the offending. He was right to do so. It was a serious crime. It is evident that the Judge considered that the gravity of the offending called for an immediate term of detention. He fixed that term at 15 months. When sentencing the Judge remarked:
In connection with the charge of rape, I make it clear to you that I sit as a Judge of the Youth Court. As a consequence I remind myself of the principles of s.13 [sic] of the Young Offenders Act and I remind myself [of] the maximum penalty that is available in the Youth Court.
On 22 July this year you pleaded guilty to rape. On 23 November last year you raped [the complainant]…; she was 15 years old, you were 17 years and seven months. You had known her for about 10 years. Your respective families had been friends. This offence has fractured those friendships and has had had [sic] a severe impact on your victim.
You entered your plea on the date set for trial. Your plea should be understood as an example of bowing to the inevitable, even though you deserve some credit for your plea. It is also consistent with the admissions you made to the victim’s sister and her companion within 12 hours of the rape.
You admit that before the crime you consumed some 24 standard drinks in the previous 24 hours. You entered three rooms in which your victim was attempting to sleep. You asked her for sex, she refused. She moved rooms twice after this. You entered her room when she was asleep, you pinned her body, you removed her clothing and you vaginally raped her.
Your counsel submits that you were reckless in thinking that she might consent to have sex with you. The prosecution accepts that this was a function of your intoxication.
You completed year 11. In January this year you began an electrical apprenticeship which will be terminated if you are sentenced to detention. You have had the loving support of your parents and others. I take into account the contents of the social background report. I take into account the provisions of s.3 of the Young Offenders Act.
Were it not for your plea of guilty I would have imposed a sentence of two years. In the circumstances here I direct that you stand convicted, you are sentenced to 15 months detention. It is necessary that I consider whether all or any part of the sentence should be suspended. Having regard to the seriousness of the offence and noting your persistence in seeking sex from the victim, despite her refusals shown by her words to you and your conduct in moving rooms as I have described and having regard to your personal and other circumstances I decline to suspend any part or the whole of the sentence.
On the hearing of the appeal, it was complained that these remarks were inadequate. It was submitted in particular that the Judge needed to expressly identify and address the objects set out in section 3 of the Young Offenders Act 1993 (SA). It is convenient to deal immediately with this complaint.
Section 3 of the Young Offenders Act provides:
(1)     The object of this Act is to 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.
(2)     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 violent or wrongful acts.
(2a)   In imposing sanctions on a youth for illegal conduct—
(a)regard should be had to the deterrent effect any proposed sanction may have on the youth; and
(b)if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth's conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—
(i)the deterrent effect any proposed sanction may have on other youths; and
(ii)the balance to be achieved between—
(A)    the protection of the community; and
(B)     the need to rehabilitate the youth.
(3)     Effect is to be given to the following statutory policies 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, the 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.
It is evident that the Judge considered that the gravity of the offending called for an immediate sentence of detention. As can be identified in the sentencing remarks excerpted, the Judge twice referred to section 3 of the Young Offenders Act. Although it may have been preferable for the Judge to expressly address the principles and objects contained in section 3, his remarks confirm that he had regard to those matters. The sentencing remarks also disclose that the Judge had regard specifically to the defendant’s employment and the matters contained in the social background report. I do not consider there to be any inadequacy in the Judge’s remarks. They were sufficient to enable the defendant to develop the complaints advanced on the appeal and sufficient to enable this Court to perform its appellate function.[1] In this respect, the following observations of Layton J in O,C are apposite:[2]
It is well established that an appellate court should not interfere with the sentence ordered in the court below unless an error can be identified or unless it can be demonstrated that the sentence was manifestly excessive. Where there is room for a reasonable difference of opinion, it is inappropriate for this Court to interfere. It is inappropriate for an appellate court to meddle and tinker with sentences. Furthermore, the Youth Court is a specialist court which sentences youths on a regular basis. As a consequence, it is usually better placed than this Court to assess what is an appropriate sentence. The Youth Court is also a very busy jurisdiction and accordingly, due allowance should be made for the ex tempore reasons and the circumstances in which the Judge imposed the sentence.
[Footnotes omitted]
In my view, there is no substance to the defendant’s complaint as to adequacy of reasons.
[1] See discussion in Jones v Police [2009] SASC 137 at [22]-[42].
[2] O,C v Police [2007] SASC 346 at [16].
It is appropriate to next address the defendant’s application that further evidence be received by this Court.
Pursuant to section 353 of the Criminal Law Consolidation Act 1935 (SA), this Court has the power to set aside a sentence on appeal and to re-sentence the offender. Section 353(4) provides:
Subject to subsection (5), on an appeal against sentence, the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and in any other case shall dismiss the appeal.
In the exercise of its powers under section 353(4), the Court has power to admit evidence on the hearing of the appeal. The source of this power is to be found in section 359, which relevantly provides:[3]
[3] This power has been discussed in a number of authorities: see eg, R v Sladic (2005) 92 SASR 36 at [41]-[47]; R v Penno (2004) 236 LSJS 457 at [36]-[42].
For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice —
…
(b)order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Supreme Court or before any officer of the Supreme Court or justice of the peace or other person appointed by the Full Court for the purpose, and allow the admission of any depositions so taken as evidence before the Full Court; and
(c)receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with such consent; and
…
(f)exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters; and ….
It is well established that the power to receive further evidence on appeal must be exercised with caution.[4] The receipt of further evidence on the hearing of an appeal against sentence has been considered by this Court in C.[5] Doyle CJ adopted the approach of King CJ in Smith,[6] that fresh evidence may be admitted when it shows the true significance of matters that existed at the time of sentence and, by implication, matters that were material to the passing of sentence. Doyle CJ referred with approval to the following observations of King CJ in Smith:[7]
The task of the Court of Criminal Appeal, speaking generally, is to see whether the trial judge went wrong on the material before him: R v Dorning (1981) 27 SASR 481 at 488. There is power to receive fresh evidence subject to certain conditions which are summarised in Dorning’s case at 485. The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O’Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.
While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant’s condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence. In R v Green (1918) 13 Cr App R 200 evidence was admitted on appeal to show the true character and value of information given by the appellant to the police before sentence, as disclosed by subsequent events. In R v Ferrua (1919) 14 Cr App R 39 the evidence admitted on the appeal revealed how serious the appellant’s state of health had been when he was sentenced. I think that the events occurring since sentence are admissible to show the extent and implications of the condition of health which the appellant was in when he was sentenced. …
[Emphasis added]
[4]    See for example R v Smith (1987) 44 SASR 587; R v C (2004) 89 SASR 270.
[5]    R v C (2004) 89 SASR 270.
[6]    R v Smith (1987) 44 SASR 587.
[7]    R v C (2004) 89 SASR 270 at [14] referring to R v Smith (1987) 44 SASR 587 at 588-589.
The Director accepted that the proper purpose of fresh evidence is to bring before the court facts which were in existence at the time of the imposition of sentence, but which were not known to the sentencing Judge, or to explain facts which were before the sentencing Judge so as to put them in a new light.[8] In this respect the Director referred to the judgment of this Court in Sladic:[9]
Fresh evidence may be admitted on an appeal when it sheds new light on the material before the sentencing judge, or when there was a relevant fact or relevant facts in existence at the time of sentencing which had not been brought to the attention of the sentencing judge and a satisfactory explanation has been proffered for the failure to have informed the sentencing judge of the facts.
[Footnotes omitted]
[8] R v Smith (1987) 44 SASR 587 at 588-589; R v Sladic (2005) 92 SASR 36 at [44].
[9] R v Sladic (2005) 92 SASR 36 at [44].
The Director also referred to the following observations of King CJ in McIntee: [10]
The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand. …
[Emphasis added]
[10] R v McIntee (1985) 38 SASR 432 at 435.
In CDJ v VAJ[11] the High Court expressed a similar view when considering the nature of an appeal by way of rehearing. The Court acknowledged that a provision conferring jurisdiction of this nature on a court should be construed liberally, and noted that the statutory power to receive fresh evidence exists to serve the interests of justice. McHugh, Gummow and Callinan JJ went on to say in their joint judgment:[12]
Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original. In Attorney-General v Sillem, Lord Westbury LC pointed out that "[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below". Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a "trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence". Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
[Emphasis added]
[11] CDJ v VAJ(No 1) (1998) 197 CLR 172.
[12] CDJ v VAJ(No 1) (1998) 197 CLR 172 at [111]. The observations of the High Court have been applied by this Court in Police v Dorrizzi (2002) 84 SASR 416 at [28] (Duggan, Debelle & Williams JJ).

The evidence sought to be adduced in this Court was exhibited to an affidavit from the defendant’s solicitor and included a detailed psychiatric report prepared by Dr Raeside, and a letter from the defendant’s employer confirming his exceptional performance as an apprentice electrician and indicating that further detention would result in the cancellation of his contract of training. This evidence referred to events and circumstances occurring since sentencing that were said by the defendant to show the true significance of matters existing at the time of sentence. In particular, the evidence was said to disclose matters relevant to the defendant’s mental state.
Following the sentencing of the defendant, he spent two months on detention before being released on bail pending appeal. Thereafter, he encountered considerable personal difficulties leading to attempted suicide and detention under the Mental Health Act 1993 (SA). The defendant sought to put before this Court a detailed account of these matters which formed part of the history referred to and relied upon in the psychiatric opinion of Dr Raeside.
Dr Raeside expressed the opinion that the defendant had suffered a major depressive episode apparently triggered by stress associated with legal processes, the possibility of re-incarceration and the breakup of a long-standing relationship with a girlfriend. These stressors and this episode led the defendant to return to his “previous pattern of problematic drinking in a rather self destructive way”. Dr Raeside’s report records that the defendant had commenced alcohol consumption at the age of 13 years and thereafter developed a binge-drinking problem where he would regularly as he described it “wipe myself out”. According to Dr Raeside, this pattern of alcohol abuse would in all probability act to impair judgment and cause disinhibition. In Dr Raeside’s opinion, the defendant requires treatment for his alcohol abuse and the risk of him reoffending is closely related to ongoing alcohol consumption. Dr Raeside also considered that the defendant is in need of intensive psychiatric treatment and that ideally this treatment would be provided as an inpatient with associated antidepressant medication. However, Dr Raeside concluded that there was no evidence of the defendant suffering from a psychiatric disorder prior to or at the time of the offence.
In my view, Dr Raeside’s report relevantly throws new and significant light on the defendant’s circumstances, including his mental state and his alcohol abuse, existing prior to and at the time of sentencing. Dr Raeside’s opinion provides a detailed analysis of the defendant’s antecedents and demonstrates that he has long-standing personality problems associated in particular with alcohol abuse. It is of particular relevance that his mental disposition was such that the earlier referred to stressors led to attempted suicide, psychiatric illness and the need for intensive inpatient treatment and detention under the Mental Health Act. It is self-evident that the sentencing Judge was not aware that the defendant was vulnerable to such a mental breakdown.
It is to be accepted that the defendant’s psychiatric disorder developed subsequent to sentencing. However, the report of Dr Raeside provides insight into the underlying mental state of the defendant existing at the time of sentencing. In light of the further evidence, it is plain that the defendant is a vulnerable adolescent in need of treatment and support. Dr Raeside’s report discloses the latent long-term problems faced by the defendant. This evidence is of such a nature, that it could lead to a different approach being taken to sentencing. As a consequence, the report of Dr Raeside should be received as further evidence by this Court.
A report from Families SA was tendered before the sentencing Judge. This report made limited reference to the defendant’s misuse of alcohol. However that report did not address the full extent of the defendant’s abuse of alcohol. As a consequence, the full explanation and true significance of the defendant’s binge alcoholism was not before the sentencing Judge. Dr Raeside’s report provides that further explanation. The evidence from Dr Raeside provides significant insight into the defendant’s long-standing problems associated with alcohol abuse and the need for ongoing treatment and support.
Although evidence of the defendant’s employment was before the sentencing Judge, the particularly high achievements of the defendant in his apprenticeship, a matter existing at the time of sentencing and relevant to the sentencing process, was not a matter apparent at the time of sentencing. In the earlier letter regarding the defendant’s employment, the author had not personally observed or supervised the defendant. The author of the letter sought to tendered before this Court was able to speak personally about the defendant’s high achievements in his apprenticeship.
Whether the further evidence leads to a different sentencing outcome is a separate question to whether it is capable of leading to a different outcome. Although the material may not lead to the imposition of a different sentence, that material maintains relevance in relation to the treatment of the defendant whilst in detention and the eligibility of the defendant for the home detention conditions under section 41 of the Young Offenders Act. That material is particularly relevant when consideration is given to the possible use of the wide powers provided in that section for release on home detention.
In light of the foregoing, the material sought to be tendered is necessarily admissible and relevant and should be received by this Court on the appeal.
The Appeal
It is to be understood that the legislature, through the Young Offenders Act, has provided a statutory regime to govern the sentencing of young offenders. The salient features of that scheme have been the subject of comment by this Court on a number of occasions[13] and it is convenient to make brief reference to the relevant guiding principles.
[13] See O’C v Police [2007] SASC 346 (Layton J); see also A, MC v Police (2008) 102 SASR 151; See also the discussion of the statutory scheme undertaken in R v Abdulla [2010] SASC 52 (Gray J).
Section 3 of the Young Offenders Act as earlier extracted, provides the statutory object and policies to be pursued in the sentencing of young offenders and has been described as the “cornerstone of the process of sentencing a youth”.[14]
[14] R v QTV (2003) 87 SASR 378 at 388.
Importantly, section 3(1) identifies as a fundamental consideration in sentencing, the need to 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. However section 3(2) specifies that youths are to be made aware of their obligations under the law and of the consequences of a breach of the law, and that the community is to be adequately protected against violent or wrongful acts. These matters must all be taken into account when sentencing a youth. It is relevant to note that when sentencing youths, only personal deterrence rather than general deterrence is a relevant sentencing consideration.[15]
[15] S, JC v Police (2007) 96 SASR 432 at 437 (White J); see section 3(2a) of the Young Offenders Act 1993 (SA).
The other matters of relevance outlined in section 3(3) include the need for provision of compensation and restitution to the victims of offences, the emphasis on preserving and strengthening the youths’ family relationships and not withdrawing a youth unnecessarily from their family environment, the focus on not unnecessarily interrupting a youth’s education or employment and the recognition of the importance of a youth’s sense of racial, ethnic or cultural identity.
The matters identified in section 3 of the Young Offenders Act distinguish the sentencing process utilised for youths from that engaged in when sentencing adult offenders. As was observed by King CJ in Hallam v O’Dea[16] when addressing the operation of a similar provision in the Children’s Protection and Young Offenders Act 1979 (SA):[17]
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 to 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. …
These remarks are also applicable to sentencing under the Young Offenders Act.[18]
[16] Hallam v O’Dea (1979) 22 SASR 133 at 136.
[17] See section 7 of the Children’s Protection and Young Offenders Act 1979 (SA).
[18] S, JC v Police (2007) 96 SASR 432 at 439; L v Police (1998) 198 LSJS 481.
It is of particular relevance to further note that when sentencing youths, the maximum sentence of detention available is a period of three years. Further, a sentence of detention is an option of last resort, as such a sentence 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.[19]
[19] See section 23(4) of the Young Offenders Act 1993 (SA); see discussion in Hallam v O’Dea (1979) 22 SASR 133 at 137; RJB v Police [2000] SASC 209 at [15].
It is to be observed that although the matters outlined in section 10 of the Criminal Law (Sentencing) Act 1988 (SA) apply in the sentencing of a youth, those matters are subordinate to the principles of the Young Offenders Act.[20] One important consequence of this was emphasised in A,MC where White J observed:[21]
…In particular, 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 case of an adult. This does not mean that retribution has no place in the sentencing of young offenders and, at least with respect to serious offences, the sentence of a youth should reflect the gravity of the crime.
[Footnotes omitted]
[20] Section 3A of the Criminal Law (Sentencing) Act 1988 (SA) mandates that the principles of the Young Offenders Act 1993 (SA) and the Youth Court Act1993 (SA) are to prevail in the event of any conflict.
[21] A, MCv Police [2008] SASC 279 at [27] (White J, with whom Doyle CJ agreed).
The Young Offenders Act focuses on rehabilitation and recognises that a young offender is different from an adult offender and ought to attract different sentencing principles in most circumstances. The matters outlined in the Young Offenders Act and in the relevant authorities, clearly demonstrate that a more merciful approach may be undertaken when sentencing youths, but that ultimately the gravity of the crime maintains central relevance in the sentencing process.
The substance of the defendant’s complaint on appeal was that in the circumstances the sentence imposed was manifestly excessive. In particular it was said that the sentence should have been suspended, or a lesser head sentence imposed and a partial suspension ordered. As it is my view that the further evidence should be received, it is appropriate that there be a reconsideration of the entire sentence having regard to that evidence, together with all other information before the sentencing Judge. I consider that the further evidence demonstrates that there is a need for the community to be protected. The defendant’s problems arising from and associated with alcohol abuse need to be addressed. As Dr Raeside points out, if those problems are not addressed, the risk of re-offending increases.
It was the defendant’s submission that as a consequence of his intoxicated state at the time of the offence, he did not appreciate that the complainant was resisting. This was said to be a matter of mitigation. The history of alcohol abuse suggests that the defendant’s alcohol consumption on the night of the offending is not mitigatory. This offending did not arise from a one-off alcoholic binge by a person inexperienced with alcohol consumption. In this case, the alcohol abuse provides an explanation but no excuse. It is not a mitigating factor. It is one of the circumstances surrounding the offence.
It is much to the credit of the defendant that he has done well with his apprenticeship. Although his return to detention may lead to the cancellation of his present contract of training, it does not follow, given his excellent performance thus far, that he would not be able to continue his apprenticeship on his release.
It is to be borne in mind that the Young Offenders Act provides for conditional release from detention after at least two thirds of the period of detention has been completed.[22] It is further to be borne in mind that under section 41 of the Young Offenders Act[23] there is a discretion in the Training Centre Review Board to release the defendant on conditions equivalent to home detention. On the hearing of the appeal, the Director submitted that the powers under section 41(5) are available to be exercised at any time during the period of detention if thought appropriate by the Board. In my view this submission should be accepted. Release on such conditions would no doubt facilitate the return of the defendant to an apprenticeship. It is also relevant that the defendant’s family have provided him with ongoing and consistent support and are likely to continue doing so.
[22] Section 41(2) of the Young Offenders Act 1993 (SA) which provides:
(2)If the Training Centre Review Board is satisfied that the behaviour of a youth during a period of detention in a training centre has been satisfactory and that there is no undue risk that the youth would, if released under this section, re-offend, the Board may, at any time after a youth has completed at least two-thirds of the period of detention in a training centre to which he or she has been sentenced, order the release of the youth, subject to the following conditions:
(a)a condition that the youth be under the supervision of an officer of the Department and that the youth obey the directions of that officer; and
(b)any other condition that the Board thinks fit.
(3)Subsection (2) does not apply—
(a)to a youth who has been dealt with as an adult and is serving a sentence or part of a sentence of imprisonment in a training centre; or
(b)to a youth who is serving a sentence of detention of less than 2 months.
(4)The Training Centre Review Board may, for any proper reason, vary or revoke a condition under subsection (2).
(5)Subject to subsection (5a), the conditions on which a youth is released from a training centre under this section are binding on the youth for the unexpired period of the detention order.
[23] The powers to order conditional release of a young offender are provided in section 41 of the Young Offenders Act 1993 (SA) which in this respect relevantly provides:
(5a) The Training Centre Review Board may release a youth on condition that the youth remain at a   residence specified by the Board for the remainder of the unexpired balance of the term of detention or such shorter period as the Board may specify and, if a youth is released on such a condition, the provisions of Division 2A (except for subsections (4), (5) and (6) of section 37C and section 37D(1)) apply as if—
(a)      the order of the Board were a sentence of home detention imposed by the Court; and
(b)      a reference to the Court were a reference to the Board.
(5b) The Training Centre Review Board—
(a)must not release a youth on home detention unless it is satisfied that accommodation is available at the residence it proposes to specify; and
(b)should not release a youth on home detention if it is not satisfied that adequate resources exist for the proper monitoring of the youth while on home detention by a home detention officer.
(6)If the Minister considers that a youth has failed to observe any condition imposed by the Training Centre Review Board under this section, the Minister may apply to the Board for an order that the youth be returned to a training centre.
In considering the appropriate sentence to impose in the circumstances it is necessary to have regard to the seriousness of the offence. As earlier mentioned, the complainant persistently resisted the defendant’s advances. The defendant first propositioned the complainant but was rejected. The complainant fell asleep and awoke to the defendant indecently assaulting her. That assault commenced whilst the complainant was sleeping and following the previous rejection of the defendant’s advances. The complainant went to another bedroom to remove herself from the defendant. After the defendant followed her into that room, the complainant went to a third bedroom where she fell asleep. The complainant was again woken by the defendant indecently assaulting her. The defendant then forcibly raped the complainant, holding her down as she struggled and causing her bruising both in the thigh area and on her arm and causing her significant pain in the groin and vaginal area. In addition to the immediate impact of the trauma and distress associated with being the victim of the violent rape described, the complainant has suffered ongoing sequelae and has subsequently moved away from her home town as a result of the offending.
This was an offence of significant gravity, accompanied by a reckless indifference to whether the complainant consented to the defendant’s advances. The defendant’s persistence distinguishes the offence from an offence committed on the spur of the moment and immediately regretted. Although the matters relevant to sentencing young offenders are of central importance, the sentence of the defendant should also reflect the gravity of the crime.
Having regard to the foregoing and in particular the gravity of the offending conduct and its impact on the complainant, I do not consider that there is any basis to interfere with the sentence of 15 months detention imposed.
As earlier discussed, the report of Dr Raeside provides a particular insight into the defendant’s mental state and his susceptibility to mental illness. These are matters that will no doubt be drawn to the attention of the relevant authorities. It is important that the defendant receives the treatment recommended by Dr Raeside and that if possible he be able to continue with an apprenticeship at an appropriate time. There are ample powers under the Young Offenders Act to enable these matters to be addressed.
Conclusion
I would dismiss the appeal.
WHITE J: I would dismiss the appeal. I agree with the reasons of Kelly J.
KELLY J:
Introduction
This is an appeal against a sentence imposed in the Youth Court on 23 September 2009.
The appellant pleaded guilty to one count of rape and was sentenced to 15 months immediate detention.
There are four grounds of appeal: first, that the sentence of 15 months detention is manifestly excessive; second, that the sentencing Judge erred in failing to suspend the sentence whether in whole or in part; third, that the sentencing Judge failed to apply the principles relevant to the sentencing of a young offender; and fourth, that the sentencing Judge failed to give adequate reasons.

At one stage during the appeal hearing the appellant raised the failure of the Judge to fix a non‑parole period. However, that matter was not persisted with in light of s 31A of the Criminal Law (Sentencing) Act 1988 and the decision of Perry J in R v Smith (1994) 74 A Crim R 309.
There was also a further application at the hearing of the appeal to adduce fresh evidence as to events that occurred after sentencing on 23 September 2009.
Background
The offence was committed on 23 November 2008. The appellant was aged 17 years and seven months. The victim was 15 years old. Both the appellant and the victim resided in a country town and knew one another.
On the evening of the offence both the appellant and the victim had been at a party with other friends in the country town where they lived. The appellant had been drinking heavily and was observed by others to be affected by alcohol.
The appellant initially made a sexual advance on the victim while they were watching a movie together. The victim refused the appellant’s advances. Later, after she fell asleep in the same room she awoke to find the appellant touching her breasts. The appellant then touched her vagina. The victim again resisted his advances and went to another bedroom. After the appellant followed her into the second bedroom, the victim left that room and went to sleep in a third bedroom. She fell asleep and awoke to find that her skirt had been pulled down and her top was being removed. The appellant then proceeded to forcibly rape the victim, throughout which the victim was crying and resisting through both her words and actions.
The victim sustained bruising as a result of the rape. The victim impact statements before the sentencing Judge revealed that the consequences of the rape had been devastating for the victim. At the date of sentencing, the victim had had to move away from the country town.
The appellant first appeared in the Youth Court on 21 January 2009. On 19 May 2009 the case was listed for trial to commence on 22 July 2009. Approximately one week before the trial the Court was advised that a guilty plea was to be entered and that plea was entered on the date for trial 22 July 2009.
The appellant’s personal circumstances
At the date of sentencing, the appellant was 18 years and five months. There was no history of violence or sexual offending. The appellant had entered into two previous undertakings in the Youth Court in relation to offences involving a motor vehicle, however, he had never previously been subject to a period of detention.
A social background report before the sentencing Judge showed that the appellant had strong family support, together with the support of his then girlfriend who had encouraged him to reduce his alcohol consumption. It was plain from that report that the appellant developed a drinking problem around the age of 15 years in respect of which he had at one stage sought counselling from a youth worker. The appellant told the author of the social background report that he believed that the sexual intercourse with the victim was consensual, and that he may have misinterpreted her signals.
There were some positive aspects in the social background report, in particular that the appellant appeared to have had some insight into the impact of alcohol upon his decision making and into the impact of the offending upon the victim and the wider community in which both the appellant and victim lived. The appellant had been employed as an electrical apprentice since January 2009 and subject to him receiving a non‑custodial sentence would have been able to continue with his apprenticeship. A letter from the appellant’s employer to that effect was placed before the sentencing Judge.
The Judge’s approach to sentencing
The Judge appears to have accepted that the appellant’s plea of guilty was entered on the basis of reckless indifference. His sentencing remarks were quite brief. The Judge determined an appropriate starting point was detention for a period of 2 years. After taking into account the plea of guilty, which he noted was entered on the date set for trial, he imposed a sentence of detention for a period of 15 months.
On two occasions the Judge referred to the objects and policies in s 3 of the Young Offenders Act 1993, first, in the context of reminding himself of the maximum penalty available in the Youth Court and later in the context of the appellant’s personal circumstances.
After imposing the sentence of 15 months his Honour went on to consider whether all or any part of the sentence should be suspended. It was common ground on the hearing of the appeal that the only issue for the sentencing Judge in relation to suspension was whether the whole of the sentence ought to be suspended. Under s 38(2a) of the Criminal Law (Sentencing) Act 1988, the option of partial suspension is not available in relation to a sentence of 12 months or more.
Nevertheless, his Honour did consider the issue and declined to suspend the sentence. He took the view that the seriousness of the offence and the particular circumstances of the offence made suspension inappropriate.
Fresh evidence
At the outset of the hearing there was an application by the appellant to adduce fresh evidence concerning events which occurred after the date of sentencing. It is necessary to deal with that application as a preliminary matter.
An appeal notice was filed on 9 October 2009. On 2 November 2009 an amended notice of appeal containing four grounds of appeal was filed. On 20 November 2009 the Youth Court Judge granted the appellant bail pending the hearing of the appeal.
The appellant seeks to tender as fresh evidence an affidavit of the appellant’s solicitor dated 1 April 2010. That affidavit contains details of events which occurred after the granting of bail.
The affidavit of the appellant’s solicitor annexes a number of exhibits, including a letter from a senior youth worker dated 18 November 2009 concerning the appellant’s exemplary behaviour while in custody, a report from a psychiatrist Dr Craig Raeside dated 5 March 2010, and a letter from the appellant’s employer dated 22 March 2010 to the effect that if the appellant is not released from custody, his contract will be cancelled.
It appears from the material that after release from custody on 20 November 2009, the appellant returned to his employment and his progress was uneventful until late January or early February 2010 when his relationship with his girlfriend ended. A few weeks later the appellant cut his left wrist, as a result of which was detained under the Mental Health Act 1993 and taken to Glenside. Dr Raeside, the psychiatrist who interviewed the appellant on 2 March 2010 expressed the opinion that the appellant is currently suffering from a major depressive episode brought on by the stress of his impending appeal, and the break up of his relationship with his girlfriend. Since the breakup the appellant has returned to his previous pattern of alcohol intake. Subsequent to these events the police applied to revoke the appellant’s bail. That application was later withdrawn.
In his report, Dr Raeside expressed the opinion that whether in custody or not, the appellant will require ongoing mental health treatment with anti‑depressant medication and regular psychiatric review.
I turn now to the principles governing the admission of fresh evidence on an appeal against sentence.
An appellate court will receive fresh evidence if it can be clearly shown that a failure to receive such evidence might have the result that an unjust sentence is permitted to stand: R v McIntee (1985) 38 SASR 432 per King CJ at 435.
The proper purpose of admitting fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of the sentence but were not known to the sentencing Judge: R v Smith (1987) 44 SASR 587 per King CJ at 588.
There is room for some flexibility with respect to the principles relating to fresh evidence where necessary to do justice in a particular case: WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147 per Duggan J at 155.
There is a clear distinction between fresh evidence as to events that had occurred before sentence and evidence as to events occurring after sentence. It is not open to the Court of Criminal Appeal to intervene on the basis of events which have occurred since the imposition of sentence: R v Smith (supra) per King CJ at 588; R v O’Shea (1982) 31 SASR 129.
However, evidence establishing the occurrence of events after the passing of sentence may be received for the purpose of showing the true significance of facts which were in existence at the time of sentence: R v Smith (supra); R v Sladic (2005) 92 SASR 36 per Gray, Sulan and Layton JJ at 45 ‑ 46.
If the court accepts the fresh evidence, one approach is to reconsider the sentence imposed in light of all the circumstances including the fresh evidence. However, the precise basis upon which the court acts has not been clearly decided: R v Brain (1999) 74 SASR 92 per Doyle CJ at 105 – 107; R v C (2004) 89 SASR 270 per Doyle CJ at 279.
Here the evidence sought to be admitted, with the exception of the letter from the appellant’s employer, relates entirely to events which occurred after the appellant was sentenced.
As I have already noted, the letter from the senior youth worker dated 18 November 2009 refers to the appellant’s exemplary behaviour while in custody after sentence on 23 September 2009. The affidavit of the appellant’s solicitor relates to events which occurred after the appellant’s release on bail on 20 November 2009. The report of Dr Raeside relates entirely to events which occurred after the appellant’s release on bail.
In support of the application to admit as fresh evidence the report of Dr Raeside, counsel for the appellant relied on Aplin v Police [1999] SASC 273. It was submitted that the facts of that case were relevantly similar to the facts which arise here.
In Aplin the Magistrate had sentenced Mr Aplin for a number of offences involving violence. At the time of sentencing the Magistrate had a detailed report from the psychologist as to Mr Aplin’s mental state. It revealed that he had experienced a violent dysfunctional upbringing, had limited education, and had significant drug and alcohol abuse problems continuing up until the time of the offending. After he was sentenced to an immediate term of imprisonment, he made a serious attempt on his life, as a result of which he suffered brain damage which affected his behaviour and mental state. In a further report prepared for the purpose of the appeal, the psychologist expressed the opinion that there was a real risk of further suicide attempts as a result of imprisonment.
In the course of delivering an ex tempore judgment, Doyle CJ repeatedly emphasised that Mr Aplin’s case, both before the Magistrate and again on appeal was finely balanced. His Honour reiterated the need for caution in allowing an offender’s ill‑health to influence the sentencing process, all the more so when the issue is the impact on the offender of the punishment.
He concluded with the following remarks at [23] – [25]:
Weighing everything up, I consider that all of the circumstances, in combination, require that Mr Aplin be given one further chance and that the sentence be suspended.
I am satisfied that if all of these facts had been before the magistrate, that is the course that he should have taken. I emphasise that I make this decision not just because of what has happened since sentence was passed. I make it on the basis of all the facts, including the matters that were before the magistrate when he sentenced Mr Aplin.
I said earlier that the case was finely balanced. It was a finely balanced case as it was before the magistrate. The recent events are sufficient to tilt the scales in favour of the last chance, when those recent events are taken together with the circumstances of the offence, Mr Aplin's age, and the prospects of rehabilitation.
When those remarks are understood in their full context I do not accept that Aplin supports the appellant’s submission in this case. I do not understand the remarks of the Chief Justice in Aplin to go so far as to suggest that every time an offender suffers a depressive reaction to being sentenced to an immediate term of imprisonment an appellate court should admit as fresh evidence a psychological report about the impact on the offender’s state of mind of the sentence of imprisonment. Aplin was a decision which turns on its own facts.
In any event, the facts in the case of this appellant do not establish that anything dealt with in the subsequent report of Dr Raeside sheds any new light on facts which were in existence at the time when the Youth Court Judge sentenced him.
It is of significance that Dr Raeside found no evidence of any pre‑existing psychiatric disorder prior to sentence or even up to the point where the appellant was released on bail. He found that the major depressive episode suffered by the appellant was precipitated by the stress of this appeal and the ending of the relationship between the appellant and his girlfriend.
The references in Dr Raeside’s report to the appellant’s family context and the previous alcohol abuse were all matters put before the sentencing Judge and taken into account by him.
Moreover, unlike Aplin, this was not a borderline case, a fact which is underscored by the quite proper and realistic concession made by counsel who appeared for the appellant before the Magistrate, that given the serious nature of the offending in this case, a sentence of detention was inevitable.
The material sought to be relied on by the appellant does not shed new light on the material which was considered by the sentencing Judge. At most, some of it reinforces material which was taken into account by the sentencing Judge. In addition, in my view, some of the material relating to the appellant’s relapse into alcohol abuse tends to reinforce the need for personal deterrence in the case of this appellant.
I consider that all of the material now sought to be tendered by the appellant as fresh evidence, properly understood, is not admissible. I would refuse permission to adduce it.
Grant of bail pending appeal
Before departing from the events which occurred after the Judge sentenced the appellant, I would add the following observations. The appellant spent approximately two months in detention before being granted bail in the Youth Court on 20 November 2009. The report to which I have already referred from the senior youth worker at the centre where the youth was detained, demonstrated that he was making good progress whilst in detention.
The Youth Court, as one of the bail authorities constituted for the purposes of the Bail Act 1985, had an unfettered discretion as to whether the appellant, having been convicted and sentenced, should be released on bail pending the outcome of the appeal: s 5(1)(c) and s 10(2) of the Bail Act 1985. However, in the light of the events which have unfolded since the date on which the appellant was granted bail, I consider it useful to revisit some observations of various Judges of this Court about the considerations which are relevant when an application is made for bail pending appeal.
In Beshara and Kleut v Paphitis (1987) 136 LSJS 16, Cox J at 18 – 19 made the following observations with specific reference to the discretion to be exercised under s 10(2):
… A convicted person who is seeking bail pending his appeal has the task of satisfying the bail authority that his is a proper case for the grant of bail. In considering that application, all the general matters that were referred to by the learned Chief Justice in Giordano, some of them important matters of policy, will have to be taken into account, as well as those matters that may be urged in a particular defendant’s favour …
The strength of the considerations referred to by the Chief Justice in Giordano, and earlier by members of the High Court in The Queen v Hayes (1974) 48 A.L.J.R. 455 and Chamberlain v The Queen (No. 1) (1983) 153 C.L.R. 514, is such that the task of any defendant who applies for bail pending an appeal is never likely to be easy. That is not because a presumption, legal or factual or of some less precise kind, against the grant of bail in such a case. It is a conclusion that necessarily follows from the very circumstances inherent in any such application. These circumstances have not changed with the enactment of the Bail Act. There is nothing in the Bail Act that requires the courts to ignore them or to give them less weight than they were formerly given. That does not mean that the courts should never grant bail pending appeal. Each application must be dealt with on its own merits. However, it would seem correct to say that the grant of bail pending appeal will continue to be exceptional.
Some ten years later Debelle J in R v Flanigan (unreported judgment, Supreme Court of South Australia, Debelle J, 25 November 1996, S5937) referring to the remarks of Cox J in Beshara said:
…The discretion is, of course, to be exercised judicially, having regard to all relevant factors. In his reasons for decision, Cox J has emphasised that fact and, rather than restrict the exercise of the discretion, has pointed to the fact that a grant of bail pending appeal will never be easy and if regard is had to all relevant factors, it might at the end of the day result in the grant of bail being an exceptional event. …
It is important continually to bear in mind that, in every such application, regard must be had to all relevant factors. Some of the factors to which regard should be had are noted in Giordano and also in Beshara v Paphitis.
In addition to addressing the question of principle involved, King CJ in R v Giordano (1982) 31 SASR 241 at 242 identified a number of factual reasons why courts should exercise “extreme caution” about the grant of bail pending appeal against sentence. King CJ said:
There are practical reasons, moreover, why courts should exercise extreme caution about the grant of bail pending appeal. An appellate court does not sentence afresh in the light of circumstances which have changed since sentence was passed. It should not be placed in the invidious position, particularly on an appeal against sentence, of the dismissal of the appeal having the effect of returning to prison a person whose circumstances may have changed greatly during a period of liberty on bail pending appeal. There is a serious risk of availability of bail leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice. Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leaving the future to take care of itself. Appeals would be launched, irrespective of the prospects of success, simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison.
To these matters could be added the potential for the appeal not to be prosecuted expeditiously. Whether or not that has been a factor in the present appeal is not known, but I note that nearly seven months elapsed between the time of sentence and the hearing of the appeal, and nearly five months between the grant of bail and the hearing of the appeal.
The considerations referred to by King CJ in Giordano and Cox J in Beshara have been acknowledged and applied consistently by this Court when considering applications for bail pending appeal: R v Baker [2000] SASC 281; R v Blayney [2002] SASC 184; R v Kostaras [2002] SASC 231; R v McKelliff [2003] SASC 357; R v Frederick [2004] SASC 304.
While the position might be somewhat different in cases involving appeals in the Magistrates Court where there is a much less restrictive approach to the question of bail pending appeal (see McLeod v Fauser (1986) 42 SASR 356), where as here the offence in respect of which the appellant was convicted was a major indictable offence carrying, in the case of an adult, a maximum penalty of life imprisonment, those same considerations do not apply.

Here the appeal notice was filed on 9 October 2009 followed by an amended notice on 2 November 2009 containing the grounds which were ultimately argued on appeal.
It appears, perhaps with the wisdom of hindsight, that it may have been more beneficial for the appellant if the appeal had been proceeded with as expeditiously as the application for bail. The appellant was doing well in detention and as Dr Raeside noted in his report, regular psychiatric review as well as nursing and general medical care is available to the appellant while he is in detention. There is no apparent reason why this appeal could not have been listed for hearing at a much earlier time than it was.
The appeal
I turn now to consider the grounds of appeal.
It was argued that the sentence of 15 months’ detention is manifestly excessive. In addition, it was contended that the Judge’s failure to give adequate reasons itself led to a failure to properly apply the principles relevant to the sentencing of the young offender and in particular led to a failure to suspend the sentence either in whole or in part. As previously noted, it was common ground on the appeal that once the sentence of 15 months detention was imposed, the only issue for the Judge to consider was whether the whole of that sentence should be suspended.
The appellant pointed to the brevity of the sentencing remarks. In particular it was submitted that the Judge failed to adequately take into account the appellant’s intoxication. It was also submitted that the remarks do not reveal whether the Judge properly weighed up the matters he was required to under s 3 of the Young Offenders Act 1993. This led his Honour to conclude that detention was the only available option in the circumstances of the case. It was said that these failures in combination led the Judge to impose a sentence which was manifestly excessive and cause the discretion to suspend to miscarry.
In considering the appellant’s complaints about the Judge’s sentencing remarks A, MC v Police (2008) 102 SASR 151 provides a convenient starting point. After summarising the statutory requirements in the Young Offenders Act 1993 relevant to the sentencing of a youth, White J (with whom Doyle CJ agreed) said at 159:
Sentencing judges and magistrates have considerable flexibility in the content of the sentencing remarks. They can satisfy the obligation to give adequate reasons for sentence in a variety of ways. What is adequate will vary according to the circumstances of the individual case. When a young offender is to be sentenced to detention, the very severity of such a sentence and the fact that it is a sentence of last resort indicate that adequate sentencing reasons should explain, at the least, why the court regarded such a sentence as being appropriate, and should address the principal matters put in mitigation. That may be done by express reference to the object and policies within s 3, but that is not the only way. The sentencing remarks will be sufficient if they indicate how the object and policies of s 3 were applied. This may be done by express reference. Alternatively, it may be discernible from the manner of explanation of the sentence that those object and policies, even though not specifically mentioned, were considered and applied.
In my opinion, this Court should not accept too readily a submission that a judge or magistrate sitting regularly in the Youth Court has failed to take into account the relevant statutory objects and policies applicable to the sentencing of a youth. Such judges and magistrates work on a daily basis with the YOA and should be taken to be well familiar with its principles. Nevertheless, as I have said, at least in those cases in which a sentence of detention is imposed, there must be discernible in the sentencing remarks an indication of how the object and policies specified in s 3 were applied in the circumstances of the individual offender.
[Footnotes omitted]
Here it is true that the sentencing remarks of the learned Judge were elliptical. His Honour did refer to the principles set out in s 3 of the Young Offenders Act 1993, but without enunciating any of them or elaborating as to how those provisions might be of relevance in the case of the appellant. He did not refer at all to the provisions s 23(4) of the Young Offenders Act 1993 which stipulates that detention must not be imposed 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.
However, the Judge did refer to a number of factual matters of particular relevance to these considerations. The Judge had, for the purpose of sentencing, a comprehensive social background report in relation to the appellant’s circumstances. He referred to this report and in particular that the appellant had the support of a loving family and that he stood to lose his employment and therefore his apprenticeship if sentenced to detention. These are all matters that the sentencing Judge was required to have regard to by virtue of s 3(3)(b), (c) and (d) of the Young Offenders Act 1993.
Some other aspects of the social background report were also favourable to the appellant, and some were not. For example, when the author of the social background report interviewed the appellant in August 2009, after he had entered a plea of guilty to rape on 22 July 2009, the appellant was still maintaining that he believed that he had had consensual sex with the victim and must have misinterpreted signals coming from her. As White J observed in passing during the course of the appeal, that state of mind would be inconsistent with a plea of guilty to rape. However, what it might have demonstrated was that in the circumstances of this case there was a particular need to ensure that the sentence imposed on the youth made him fully aware of his obligations under the law, the consequences of the breach of that law and to deter him from future offending.
It appears from the submissions made before the Judge that his Honour accepted that the plea of guilty was entered on the basis of recklessness primarily on account of the appellant’s intoxication. In the light of the victim’s statement that she repeatedly resisted the advances of the appellant and was crying and yelling before and during the rape, it might be thought that the view the Judge took was very favourable to the appellant.
On the same day as the appellant was sentenced for this offence, indeed a few moments before, the Judge sitting as a Magistrate sentenced the appellant for an offence of assault which was committed on 11 April 2009 after the appellant had turned 18. While committed subsequent to the rape, this offence was nevertheless part of the personal circumstances of the appellant which the Judge was entitled to take into account when sentencing for the rape. That assault, for which he was ultimately fined, occurred in the context of an incident when the appellant endeavoured to dissuade a witness who had given a statement in relation to the rape, to withdraw his statement.
In these circumstances, the nature of the subsequent offence of assault and the circumstances in which it was committed, may have suggested that a greater degree of personal deterrence than what otherwise had been contemplated was required: R v McInerney (1986) 42 SASR 111 at 113 per King CJ.
While none of these matters were explicitly referred to by the sentencing Judge, they were all matters he was entitled to take into account when determining an appropriate sentence.
As I have previously noted, the circumstances of the offence of rape were very serious. The impact of the offending on the victim was devastating. The commission of the offence was aggravated by the force with which it was committed and the fact that the victim repeatedly asked the appellant to desist. These were matters referred to by the sentencing Judge and although he did not explicitly refer to s 23(4) in the context of those remarks, they were plainly relevant to the matters he was required to consider under that section.
I bear in mind matters referred to by the Court in A, MC (supra) at 159, in particular, that when dealing with an experienced judge in a specialist court, this Court can often assume that consideration has been given to the relevant matters even though they are not explicitly referred to in the sentencing remarks (see also Jackson v Police [2000] SASC 397).
Even though the Judge might have said more, I consider his remarks as a whole are sufficient for this Court to be satisfied that his Honour did address his mind to the critical matters he was required to consider. Moreover, even though the period of detention ultimately imposed by his Honour was substantial I do not consider it to be manifestly excessive.
When considering whether the sentence should be suspended, his Honour explicitly referred to the seriousness of the offence and the appellant’s personal circumstances. For the reasons which I have already given I consider it was open to the Judge to decline to suspend the sentence. Although his Honour was in error in believing it was open to him to partly suspend the sentence, I do not consider that that error could have caused any prejudice to the appellant. Moreover, his Honour correctly directed himself to the relevant considerations when considering that issue
For these reasons I would dismiss this appeal.