D R E v Police - [2021] SASC 130

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: D R E v Police [2021] SASC 130
Case: [2021] SASC 130
Decision Date: 15 November 2021

CaseChat Overview and Summary

The case of D R E v Police involved an appeal against a sentence imposed on a juvenile offender. The appellant, a young person, challenged the sentence on the grounds that the magistrate had failed to adequately consider certain factors relevant to sentencing juveniles. The appeal was heard in the higher court, which was tasked with determining whether the lower court had erred in its sentencing process. The key issues for the court to decide were whether the magistrate had failed to consider the appropriateness of a non-custodial sentence and whether the sentence imposed was inadequate in light of the relevant statutory provisions.

The court examined the principles and factors that should be considered when sentencing a juvenile, particularly under the Youth Offenders Act. It was noted that the magistrate had not sufficiently addressed the question of whether a non-custodial sentence would be adequate, as required by section 23(4)(b) of the Act. The court emphasised that it is crucial for the sentencing authority to consider the nature and circumstances of the offence, the age of the offender, and other relevant factors. In this case, the magistrate's failure to do so constituted an error in the exercise of the sentencing discretion. The court also considered that the imposition of a custodial sentence was not necessary, and that the appellant should be placed under an obligation to be of good behaviour and to submit to supervision by Youth Justice.

In light of these findings, the court allowed the appeal on the specified grounds. It concluded that the magistrate's failure to adequately consider the appropriateness of a non-custodial sentence was a significant error, and that the sentence imposed was inadequate. The court re-sentenced the appellant to an obligation to be of good behaviour for a period of 12 months, with supervision by Youth Justice. Additionally, the court decided that no convictions would be entered in relation to any of the offences. This decision underscores the importance of carefully considering all relevant factors when sentencing juveniles and highlights the potential consequences of failing to do so.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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