D R E v Police
[2021] SASC 130
•15 November 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
D R E v POLICE
[2021] SASC 130
Judgment of the Honourable Justice Stanley
15 November 2021
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - GENERAL PRINCIPLES
This is an appeal against sentence. After pleading guilty to a number of offences which were alleged to have occurred between 20 March 2020 and 30 June 2021, the appellant was sentenced as a youth to whom the Young Offenders Act 1993 (SA) (YOA) applied. At the time of sentence he was 15 years and nine months of age and had an extensive antecedent offending history.
The magistrate utilised s 26 of the Sentencing Act 2017 (SA) to impose a single sentence of six months detention. The period of detention was suspended upon the appellant entering into an obligation to be of good behaviour for a period of 12 months. As part of the obligation the appellant was ordered to be under the supervision of Youth Justice. The sentence was imposed without convictions being recorded on any of the charges.
The appellant argued eight grounds of appeal as follows:
• Ground 1: failing to apply the sentencing principles prescribed in the YOA;
• Ground 2: failing to have regard to submissions of the parties to impose an obligation with supervision;
• Ground 3: imposing a term of detention;
• Ground 4: failing to give credit for the appellant’s guilty pleas;
• Ground 5: failing to give credit for time spent in detention and on electronic monitoring bail;
• Ground 6: failing to apply the totality principle;
• Ground 7: Imposing a sentence that was manifestly excessive; and
• Ground 8: failing to give adequate reasons.
Held (allowing the appeal on grounds 1 and 3);
1. The magistrate failed to address the critical question of whether a sentence of a non-custodial nature would be inadequate as prescribed by s 23(4)(b) of the YOA thereby demonstrating an error in the exercise of the sentencing discretion.
2. The Court should have placed the appellant under an obligation to be of good behaviour for a substantial period and to submit to supervision by Youth Justice without imposing a custodial sentence.
3. Given the appeal was allowed on grounds 1 and 3, although considered, whether permission to appeal is granted on other grounds is moot and/or unnecessary.
4. Appeal allowed. The appellant is re-sentenced to an obligation to be of good behaviour for a period of 12 months. During that time he is to be supervised by Youth Justice. No convictions will be entered in relation to any of the offences.
Young Offenders Act 1993 (SA) ss 3, 17, 22, 23, 26; Criminal Law Consolidation Act 1935 (SA) ss 5(2)(ba), 5(2)(c), 5AA(1)(ka), 20(3), 85(2), 134, 170(1); Bail Act 1985 (SA) s 17(1); Summary Offences Act 1953 (SA) ss 6(2), 17(1), 51(2)(a); Sentencing Act 2017 (SA) ss 26, 39, 44(2); Criminal Law Consolidation (General) Regulations 2021 (SA) reg 4(1), referred to.
R v Q T V [2003] SASC 424; Hallam v O’Dea (1979) 22 SASR 133; S, J C v Police [2007] SASC 27; R J B v Police [2000] SASC 209; R v N L [2001] SASC 427; Jackson v Police [2000] SASC 397; Barbaro v The Queen [2014] HCA 2; G A S v The Queen (2004) 217 CLR 198; R v Harris & Simmonds (1992) 59 SASR 300; Seagrim v R [1994] SASC 4888; R v Tsonis [2018] SASCFC 86; Y v Police (2002) 219 LSJS 400, considered.
D R E v POLICE
[2021] SASC 130Single Judge (Magistrates) Appeal
STANLEY J:
Introduction
This is an appeal against sentence. The appellant was sentenced as a youth to whom the Young Offenders Act 1993 (SA) (YOA) applied. At the time of sentence he was 15 years and nine months of age.
The appellant appeared before a magistrate in the Adelaide Youth Court in relation to 14 files. He pleaded guilty to the following offences:
(i)Eight counts of damage property contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA);
(ii)Four counts of theft contrary to s 134 of the CLCA;
(iii)Seven counts of failing to comply with a bail agreement contrary to s 17(1) of the Bail Act 1985 (SA) (Bail Act);
(iv)Two counts of being unlawfully on premises contrary to s 17(1) of the Summary Offences Act 1953 (SA) (SOA);
(v)One count of throwing a missile to annoy, frighten or injure contrary to s 51(2)(a) of the SOA;
(vi)One count of hinder police contrary to s 6(2) of the SOA;
(vii)One count of aggravated assault contrary to s 20(3) of the CLCA; and
(viii)One count of serious criminal trespass (residential) contrary to s 170(1) of the CLCA.
These offences were alleged to have occurred over a period from 20 March 2020 to 30 June 2021.
The parties were agreed that the appellant was to be sentenced for the offence of aggravated assault on the basis that the assault consisted of a verbal threat.[1]
[1] Affidavit of Jane Elizabeth Anderson sworn on 30 September 2021 at [4].
The sentencing magistrate had received a s 32 Social Background and Personal Circumstances of the Youth report dated 23 July 2021.[2] The magistrate also had an email update from Youth Justice dated 4 August 2021.[3]
[2] AB 29.
[3] AB 40.
The relevant maximum penalties for these offences are:
(i)Damaging property: imprisonment for two years;[4]
[4] Each offence of damaging property is a summary offence as it involves damage of $2,500 or less, Criminal Procedure Act 1921 (SA) s 5(2)(ba).
(ii)Theft: imprisonment for two years;[5]
(iii)Failing to comply with a bail agreement: fine of up to $10,000 or imprisonment for two years;
(iv)Being unlawfully on premises: fine of up to $2,500 or imprisonment for six months[6] or, if the unlawful purpose was the commission of an offence where the maximum penalty is a term of imprisonment for two years or more: imprisonment for two years;[7]
(v)Throwing a missile to annoy, frighten or injure: imprisonment for one year;
(vi)Hinder police: fine of up to $2,500 or imprisonment for six months;
(vii)Aggravated assault: imprisonment for five years.[8]
(viii)Serious criminal trespass (residential): imprisonment for three years.
[5] Each offence of theft is a summary offence as it involves goods to the value of less than $2,500 or less, Criminal Procedure Act 1921 (SA) s 5(2)(c).
[6] In respect of MCPAR-21-6262 only as the unlawful purpose was the commission of an offence where the maximum penalty was a term of imprisonment of less than two years.
[7] In respect of file ACC-21-827 as the unlawful purpose was the commission of an offence where the maximum penalty was a term of imprisonment of two years or more.
[8] The aggravating feature on the Information was pleaded as the victim being a prescribed employee at the time of the offence. The victim was at the time a senior youth worker, this occupation is not identified as being a prescribed occupation, s 5AA(1)(ka) of the CLCA and Regulation 4(1) of the Criminal Law Consolidation (General) Regulations 2021 (SA). The maximum penalty for a basic offence is imprisonment for two years if it is aggravated by other features set out in s 5AA, imprisonment for three years, or aggravated by the use of a weapon, imprisonment for four years.
The appellant was entitled to a discount of up to 30 per cent on each charge on account of his guilty pleas.
The appellant had an extensive antecedent history as follows:
Hearing Date Offence Offence Date Outcome 15/05/2020 Fail to Comply with Bail Agreement 14/05/2020 Formal caution 22/05/2020 Fail to Comply with Bail Agreement 15/05/2020 Formal caution 25/05/2020 Unlawfully on Premises 23/05/2020 Dismissed without penalty given time spent in custody Fail to Comply with Bail Agreement 22/05/2020 26/06/2020 Fail to Comply with Bail Agreement 15/06/2020 Dismissed without penalty given time spent in custody Fail to Comply with Bail Agreement 22/06/2020 29/06/2020 Fail to Comply with Bail Agreement 26/06/2020 Dismissed without penalty given time spent in custody 10/08/2020 Fail to Comply with Bail Agreement 07/08/2020 Dismissed without penalty given time spent in custody 28/09/2020 Damage Property 25/09/2020 Dismissed without penalty given time spent in custody 30/10/2020 Theft 02/01/2020 Dismissed without penalty Disorderly Behaviour 30/03/2020 Fail to Comply with Bail Agreement 02/04/2020 Damage Property 13/04/2020 Theft 13/04/2020 Fail to Comply with Bail Agreement 1/05/2020 Fail to Comply with Bail Agreement 12/06/2020 Fail to Comply with Bail Agreement 29/06/2020 Fail to Comply with Bail Agreement 06/07/2020 Fail to Comply with Bail Agreement 10/08/2020 Theft 19/08/2020 Unlawfully on Premises 05/09/2020 Damage Property 05/09/2020 Theft 23/09/2020 Fail to Comply with Bail Agreement 07/10/2020 Theft 2/01/2020 Disorderly Behaviour 30/03/2020 Serious Criminal Trespass – non-residential 09/03/2020 Diverted to Family Conference Theft 09/03/2020 26/07/2021 Damage Property 23/07/2021 Discharged without penalty
The magistrate utilised s 26 of the Sentencing Act 2017 (SA) to impose a single sentence. He sentenced the appellant to six months detention. The period of detention was suspended upon the appellant entering into an obligation to be of good behaviour for a period of 12 months. As part of the obligation the appellant was ordered to be under the supervision of Youth Justice. The sentence was imposed without convictions being recorded on any of the charges.
The appellant contends that the sentencing magistrate erred in:
Ground 1: failing to apply the sentencing principles prescribed in the Young Offenders Act 1993 (SA);
Ground 2:failing to have regard to submissions of the parties to impose an obligation with supervision;
Ground 3:imposing a term of detention;
Ground 4:failing to give credit for the appellant’s guilty pleas;
Ground 5:failing to give credit for time spent in detention and on electronic monitoring bail;
Ground 6:failing to apply the totality principle;
Ground 7: imposing a sentence that was manifestly excessive; and
Ground 8:failing to give adequate reasons.
Sentencing remarks
In imposing sentence the magistrate made the following sentencing remarks:
I have taken on board, the allegations with respect to the offending and there are some serious allegations with respect to the offending. Looking at the breach of bail offences, indicate that he does not take bail conditions seriously given his history of failure to comply with bail conditions. The other offending, the property damage of the placements where he is at and also attacking the carers, those are quite serious and there seems to be an element of recklessness, namely that he does not really care about the damage that he is causing to those placements, which is shown in the actual report itself that “it does not matter what we do with him he is going to continue with the offending”. He has no empathy, the report says, into his offending behaviour, he has no empathy about the impact that the damage has on his victims.
I do take into account the fact that he is still young, at only 15 years and nine months, but he appears to be a street wise kid. He has come from a very dysfunctional household, a dysfunctional upbringing, and I take all that into account. There is very little support to get him on the straight and narrow from his family. He has no structure at the moment in his life, he does not engage in any structural activities according to the report. He was playing soccer with a soccer team for a little while, but he does not want to get involved in that anymore. It is generally well known that involvement in some sort of structured activity, especially team sports can assist in character building. But he seems not to want to get involved in any structured recreational activities. He has indicated he has no intention of gaining any employment in the foreseeable future, has not identified any particular fields that he wants to be involved in and the thing that really concerns me is the peer network that he has. It is stated that he regards himself as the ringleader of this large peer group and discussed having “a reputation to uphold” within the community and commits these types of offences to uphold that sort of reputation. That is of concern. If he continues with this sort of behaviour, the offending is likely to escalate. He is in the Youth jurisdiction at the moment but when he gets to the adult jurisdiction, he is likely to be spending a considerable amount of time in gaol and that is not something to be laughed at, that is going to lead to serious consequences.
There have been various attempts to help him, to counsel him, to get psychological assessments done, he has refused all those attempts. Unless he turns it around and begins to accept some of the help that he has been offered from Youth Justice et cetera I do not see any hope for him, he is going to continue a totally dysfunctional lifestyle and he is likely to spiral out of control and commit more and more offending and spending most of his life in and out of detention and gaol. What is concerning also is that as a 15 year old, who has had very little schooling and is probably illiterate or partly illiterate, his options in life are limited without some sort of education. Education is all important these days. If you do not have an education, if you are not literate, then you are going to be so far behind the eight ball that it is not funny and that is what really concerns me and should concern you as well and your family that you are going to continue with a very dysfunctional lifestyle and you are likely to spiral out of control. Your life is going to be a mess unless you decide to do something about it and if you want to continue with that attitude of “I am a ring leader and I am going to upkeep this reputation of being a rebel”, well that is going to be deflated very very quickly because you are very likely to end up in prison and that is not something to be joked about.
I take into consideration section 3 of the Young Offenders Act and of course I am aware that general deterrence is not something that is of primary consideration in this jurisdiction, however the court should still have regard to the safety of the community and personal deterrence. He must understand that he cannot continue to offend in this way and that if he does, there are going to be consequences. I consider that he has spent over a month in detention and I honestly believe he should be spending a lot more because of the seriousness of the offending.
Taking into account all the background information and all the submissions that have been made and the fact that the prosecution is not opposed to giving him another chance in the community, pursuant to section 26 of the Sentencing Act, I will impose the one penalty. It will be without conviction on all counts but I order a six month detention, which will be suspended on him entering into an obligation to be of good behaviour for a period of 12 months, to be under supervision of an Officer of Youth Justice or other person nominated for the period of the obligation; to participate in such projects or programs as the Chief Executive of the Department of Human Services may require; to report within two working days, either personally or by telephone; agree not to consume any alcohol and to submit to any breath test and to comply with the requirement of the testing procedures; agree not to consumer any drugs which are not medically prescribed or otherwise legally available and then also to submit to the required testing procedures.
Now, D, you have an obligation or a bond of 12 months to be of good behaviour with six months detention hanging over your head. You commit any offences or breach that obligation and you are likely to go straight back to detention, do you understand that? It is really up to you in future. I do not want to see you back here, but it is up to you. If you want to remain in the community then you better start behaving in a normal matter and you better comply with the supervision provisions of the obligation. You cannot blame anyone else but yourself if you will return to detention.
I take the applications for compensation on board but what is the point of making an order for compensation, when he has no income or no resources. I decline to make an order in those cases.
It is convenient to address some of the grounds of appeal together.
Ground 1: failing to apply the sentencing principles in the Young Offenders Act 1993 (SA); Ground 2: failing to have regard to the submissions of both defence and prosecution that the matter should be resolved by an obligation and supervision by Youth Justice; Ground 3: sentencing the appellant to a term of detention; Ground 7: imposing a sentence that was manifestly excessive
Grounds 1 to 3 and 7, when reduced to their essence, complain first that the magistrate erred in sentencing the appellant to a term of detention and second, in fixing a term of detention of six months.
Section 3 of the YOA prescribes the objects and statutory policies enshrined in that Act in the following terms:
(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 regard should be had to the deterrent effect any proposed sanction may have on 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;
(ab) compensation and restitution should also be provided, where appropriate, for persons who have suffered loss or damage as a result 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.
(4) This section does not apply to a court imposing sanctions 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, including, for example, the gravity of the illegal conduct (and the laws applying in relation to the sentencing of an adult apply to such a youth).
Section 23 of the YOA is a provision of limitation concerning custodial sentences. It provides:
(1) Subject to subsection (6), the Court cannot sentence a youth to imprisonment.
(2) If an offence of which a youth is convicted, or found guilty, is punishable by imprisonment where committed by an adult, the Court may sentence the youth to—
(a) detention in a training centre for a period not exceeding three years; or
(b) home detention for a period not exceeding 12 months, or for periods not exceeding 12 months in aggregate over 2 years or less; or
(c) detention in a training centre for a period not exceeding 2 years to be followed by home detention for a period not exceeding 12 months.
(3) If, however, the maximum term of imprisonment prescribed for the offence is less than three years, the period of detention to which the youth is sentenced cannot exceed that maximum.
(4) A sentence of detention must not be imposed for an offence unless—
(a) the offender is a recidivist young offender or a serious firearm offender; or
(b) in any other case—the Court is satisfied that a sentence of a non-custodial nature would be inadequate—
(i) because of the gravity or circumstances of the offence; or
(ii) because the offence is part of a pattern of repeated offending.
(5) A sentence of home detention—
(a) must not be imposed unless the Court is satisfied that the residence the Court proposes to specify in its order is suitable and available for the detention of the youth and that the youth will be properly maintained and cared for while detained in that place; and
(b) should not be imposed if the Court 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 Court sentences a youth to detention in respect of an offence and does not suspend the sentence, the following provisions apply:
(a) where the youth is already in custody in a prison, the youth will serve the detention, or such part of it as the Court may direct, in a prison;
(b) where the youth has previously served a sentence of imprisonment or detention in a prison, the Court must, unless satisfied that there are exceptional circumstances for not doing so, direct that the youth serve the detention in a prison;
(c) where the sentence of detention will extend past the youth's 21st birthday, the Court must, unless satisfied that there are exceptional circumstances for not doing so, direct that any period of the detention that is to be served by the youth after he or she reaches 21 years of age is to be served in a prison rather than in a training centre.
(7) The Correctional Services Act 1982 applies to and in relation to a youth serving detention in a prison under subsection (6).
Section 26 of the YOA is a provision of limitation concerning the Court’s power to require a bond. It provides:
(1) The Court may not, in the exercise of its power to sentence a youth for an offence, require the youth to enter into a bond.
(2) The Court may, however, by order of the Court, impose an obligation of the kind that might otherwise have been imposed under a bond.
(3) The obligations imposed under subsection (2) may, for example, include the following:
(a) an obligation to submit to supervision as ordered by the Court;
(b) an obligation to participate in a specified programme, or to attend a specified activity centre;
(ba) an obligation to carry out specified work (whether for the benefit of a victim of the offence, a person who has suffered loss or damage or for any other person or body);
(c) an obligation to reside where directed by the Court.
(4) A person who fails to comply with an obligation imposed under this section is guilty of an offence. Maximum penalty: $2 500 or detention for 6 months (or both).
(5) If an order has been made under this section imposing an obligation that a person be supervised for a period that will extend past the person's 21st birthday, the Court may, on application by the person or the Chief Executive, direct that, after the person reaches 21 years of age, the person be supervised by a community corrections officer rather than by a community youth justice officer.
(6) In subsection (5)—
community corrections officer means a community corrections officer under the Correctional Services Act 1982
Section 3 of the YOA is the section which forms the cornerstone of the process of sentencing a youth to whom the Act applies.[9] Section 3(1) requires the Court to assume that the youth has potential that can be realised.[10]
[9] R v Q T V [2003] SASC 424 at [47].
[10] R v Q T V [2003] SASC 424 at [49].
A sentence of detention is an option of last resort when sentencing young offenders.[11] It is implicit in the concept of detention as a sentence of last resort that it should only be imposed if the Court is satisfied that the other available sentencing options would be inadequate.[12]
[11] Hallam v O’Dea (1979) 22 SASR 133 at 137; S, J C v Police [2007] SASC 27 at [46]; R J B v Police [2000] SASC 209 at [16].
[12] R v N L [2001] SASC 427 at [22].
In Jackson v Police[13] Duggan J explained that a sentence of detention which is suspended is nevertheless a sentence of detention for the purposes of s 23(4).
[13] [2000] SASC 397 at [8].
In this case the appellant has a significant antecedent history albeit one which is compressed into a period of around 14 months. While the offences for which he fell to be sentenced are not trifling by any means, they do not represent incursions into serious criminal offending. A common element to most of them was that they were committed in circumstances of the appellant being under the guardianship of the Chief Executive of the Department for Child Protection. He is subject to guardianship because of his dysfunctional upbringing. The offences occurred in relation to the circumstances of his care.[14] Nonetheless the offending is concerning in its nature, number and frequency. The magistrate was also justified in being alarmed at the attitude expressed by the appellant that he committed these offences because he has a reputation to uphold amongst his peers and is prepared to continue to offend if this will assist in maintaining his reputation.
[14] AB 32. The appellant was placed into care on 14 September 2017.
Nonetheless, the fact is that the appellant had not previously been subject to an obligation, and by the time he fell to be sentenced, had been in detention for a period of one month and 11 days and on home detention bail for one month and five days. During that latter period he had demonstrated positive engagement with Youth Justice. Further, there are positive supports available in the community to assist him.
While the magistrate’s obvious sense of frustration is understandable, I consider that he erred in imposing a sentence of detention, even a suspended sentence. He did not address whether there were other sentencing options adequate to the appellant’s need for care, correction and guidance. He did not find that a non-custodial sentence would be inadequate either because of the gravity or circumstances of the offending for which the appellant fell to be sentenced or because the offence was part of a pattern of repeated offending.
The magistrate could not have made the former finding on the evidence. While it can be accepted that this offending was part of a repeated pattern, that fact merely enlivens the sentencing discretion permitting the imposition of a custodial sentence. It does not mandate it. While the magistrate said he took into account all the submissions that had been made, there is an express failure to address the critical question of whether a sentence of a non-custodial nature would be inadequate. That demonstrates an error in the exercise of the sentencing discretion. I am satisfied that serious though the position is, it had not reached the point where on either of the limbs prescribed by s 23(4)(b) of the YOA it could be said that a sentence of a non-custodial nature would be inadequate. I do not consider that the last resort had been reached. I am not satisfied that imposing an obligation to be of good behaviour for a substantial period, say 12 months, and to submit to supervision by Youth Justice would be inadequate for his care, correction and guidance. It was worth trying. The Court should have placed the appellant under an obligation without imposing a custodial sentence.
That conclusion renders it unnecessary to consider whether a term of detention of six months is manifestly excessive as raised by ground 7.
I would allow the appeal on grounds 1 and 3.
However, before leaving these grounds I should say something in relation to ground 2. The fact that the appellant submitted that supervision by Youth Justice would be the most appropriate penalty, and the prosecutor told the magistrate that the police were not opposed to the imposition of an obligation, did not require the magistrate to order the imposition of an obligation. The fixing of a sentence is a discretionary exercise subject to statutory provisions and relevant case law.[15] The decision as to sentence is a matter for the Court. It is not bound to accept the submissions made even where the parties are agreed as to the sentence they consider appropriate. The Court remains obliged to reach its own conclusion as to sentence.[16]
[15] Barbaro v The Queen [2014] HCA 2 at [23].
[16] G A S v The Queen (2004) 217 CLR 198 at [30]; Barbaro v The Queen [2014] HCA 2 at [47] and [62].
Ground 4: failing to give credit for early guilty pleas
The Youth Court deals with summary offences in the same way as the Magistrates Court and has the same powers as the Magistrates Court.[17] The Court also exercises the same sentencing powers as the Magistrates Court and District Court[18] and therefore the sentencing discounts set out in s 39 of the Sentencing Act 2017 (SA) are applicable in sentencing a youth.
[17] Section 17 of the YOA.
[18] Section 22 of the YOA.
Accordingly the sentencing magistrate should have identified the amount of reduction given for the guilty pleas.[19] His failure to do so leaves this Court in a position where it is unable to identify whether the appropriate discount was applied or whether a discount was applied at all.[20]
[19] R v Harris & Simmonds (1992) 59 SASR 300 at 302.
[20] Seagrim v R [1994] SASC 4888 at [17]-[20].
The respondent conceded that the magistrate fell into error by failing to identify the discount which applied. The concession is appropriate.
The appellant was entitled to a sentencing discount of up to 30 per cent for all the offences to which he pleaded guilty. In order to arrive at a sentence of detention of six months the starting point, if the full discount of 30 per cent was applied, must have been eight months and 17 days. This seems unlikely. Alternatively the magistrate gave a lesser discount than 30 per cent. Again, it seems unlikely he would have adopted that course without saying so expressly. Rather, the more likely explanation is that the magistrate overlooked the need to give an appropriate discount for the guilty pleas.
In my view the magistrate failed to give any discount for the guilty pleas. In the circumstances of this case the magistrate erred in failing to do so.
I would also allow the appeal on ground 4. However, as the appeal must be allowed on grounds 1 and 3 with the result that the custodial sentence must be set aside, ground 4 is rendered moot.
Ground 5: failing to give credit for time in detention and on home detention bail
The magistrate was aware that the appellant had spent over a month in detention. He said so expressly. The precise period was one month and 11 days. Presumably the magistrate was also aware he had been on home detention bail for a period of one month and five days. He was certainly informed that this was the case.
Section 44(2) of the Sentencing Act empowers the Court to reduce a sentence for time spent in custody. The almost universal practice is to give full credit for time in custody.[21] Time in custody and time spent on home detention bail should be taken into account in sentencing young persons under the YOA.[22]
[21] R v Tsonis [2018] SASCFC 86 at [69].
[22] Y v Police (2002) 219 LSJS 400 at [40]-[41].
The magistrate in his sentencing remarks did not say expressly that he was giving any credit for time spent in detention or on home detention bail. Again, it seems likely that he did not do so. The magistrate erred in failing to give credit for time spent in detention. While he should have taken into account the time spent on home detention bail he was not obliged to reduce the sentence of detention on that basis. It was not an error to fail to reduce the sentence of detention on account of the time spent on home detention bail.
Nonetheless, the appeal must be allowed because of the failure to give credit for the time in detention. I would allow the appeal on ground 5. Again, like the appeal on ground 4, the appeal on ground 5 is moot.
Ground 6 – failing to apply the totality principle; Ground 8 – failing to give adequate reasons
In the circumstances where the appeal is to be allowed on other grounds, it is unnecessary to consider these grounds.
For these reasons I am satisfied that the sentence imposed by the magistrate was infected with both process and outcome errors. The exercise of the sentencing discretion was vitiated by those errors. Accordingly, the appeal should be allowed and the sentence set aside. As a result, it is necessary to consider whether on a proper exercise of the discretion a different sentence should be imposed. In the case of an outcome error, it is implicit that the Court has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.[23] It is therefore necessary for the Court to exercise its own independent discretion and determine the appropriate sentence for the appellant.
[23] R v Horstmann [2010] SASC 103 at [37]-[38].
Resentencing
The principal error made by the magistrate was the imposition of a period of detention. The other errors made by the magistrate relate to that principal error. In re‑sentencing the appellant without imposing a period of detention, the Court avoids repeating those other errors.
In the circumstances, I would re‑sentence the appellant by ordering that he enter into an obligation to be of good behaviour for a period of 12 months. During that time he is to be supervised by Youth Justice. I would not enter convictions in relation to any of the offences.
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