Darren Phillip Wilson v SA Police No. SCGRG 94/355 Judgment No. 4533 Number of Pages 9 Criminal Law and Procedure

[1994] SASC 4533

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - young offenders - Appeal against sentence imposed in the Youth Court - appellant required to enter an undertaking to be of good behaviour for 8 months - condition of undertaking that appellant, unless in the company of his mother or adult relative, not associate with certain named persons - named persons known to sentencing magistrate as notorious, persistent offenders - some of the named persons relatives of appellant - argued that condition too stringent and would unduly interfere with appellant's private life and his family relationships - in circumstances magistrate did not err in imposing the condition - observations as to the abolition of bonds by the Young Offenders Act and their replacement by 526 orders and s27 undertakings - failure of magistrate to make a formal order in compliance with s26 - order of magistrate replaced by order under s26. Young Offenders Act ss 3, 26, 27.

HRNG ADELAIDE, 13 April 1994 #DATE 10:5:1994

Counsel for appellant:     Ms P Trezise

Solicitors for appellant:    Aboriginal Legal Rights Movement

Counsel for respondent:     Ms P Barrett

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal allowed.

JUDGE1 OLSSON J This is an appeal against sentence on the ground that certain conditions imposed on a youth pursuant to section 26 of the Youth Court Act, 1993 are too restrictive.

2. The appellant is a young male aboriginal who, when he appeared before the magistrate constituting the Youth Court on 10 February 1994, was almost 17 years of age.

3. At that time he was being dealt with in respect of four separate offences committed in March and May 1993, to which he had pleaded guilty on 30 September 1993. Those offences were:-
    - 24 March 1993 - unlawfully on premises
    - 2 May 1993 - illegal use of a motor vehicle
    - 6 May 1993 - unlawfully on premises
    - 31 May 1993 - break enter and larceny (dwelling house)

4. Upon entry of the pleas the matters were remanded for social background and assessment panel reports. Bail was breached on various occasions and, on one occasion, he was arrested, but later granted fresh bail.

5. At the time at which he appeared for sentence the appellant had a significant prior record. By then he had attracted convictions for break and enter with intent, possessing cannabis, larceny, illegal use and robbery in company. As at March and May 1993 the appellant was already subject to a six month good behaviour bond for the offence of robbery in company.

6. The offence of 24 March 1993 related to an occasion when the appellant was seen with two other persons called Freeman and Deas in the rear yard of premises at 24 Wodonga Street, Beverley. They initially absconded, but the appellant later admitted the offence to police officers and said that they had been looking for cannabis.

7. The charge of illegal use on 2 May 1993 arose from an occasion on which the appellant was a passenger in a vehicle which he knew had been stolen by other offenders. He said that he had needed a lift home from Ottoway and accepted a ride in the vehicle.

8. It was conceded by the appellant that, on 6 May 1993, the appellant and another aboriginal youth called Wanganeen were found lying on a bed in a bedroom of private premises at 11A Ivey Street, Ottoway after having been chased from the backyard of premises at 33 Ivey Street, Ottoway. Once again the appellant said that he had gone to the location in question looking for "dope" plants.

9. The breaking offence concerned an occasion on which the appellant admittedly went to premises at 53 Athol Street, Athol Park to try to locate and steal "dope". He got inside the premises by smashing a kitchen window and then decided to steal a video tape recorder worth $450. The recorder was not subsequently recovered.

10. Both the social background report and the assessment panel report placed before the learned magistrate portrayed a truly dismal picture. The appellant regularly consumed alcohol and was clearly strongly addicted to cannabis. He did not relate well to his father and his mother had found herself unable to control his antisocial behaviour, his consumption of alcohol and his addiction to cannabis. She stated that she wanted him to be "locked up" because he was getting into too much trouble. It appeared that, in November 1992, he had attempted to hang himself, because his girlfriend had been unfaithful to him. The appellant stated, on interview, that he had offended to gain money with which to buy alcohol and/or cannabis, or to take other people's cannabis plants. He expressed an inability to decrease or stop using cannabis.

11. The assessment panel described the appellant as "a very sad, tired and depressed young Aboriginal man", who was not prepared to accept counselling or psychiatric help. He did not care about crime or other people, such as victims, and whether he changes or not; and was not worried about attending court and the possible legal consequences.

12. In its report the panel expressed the view that, because of the current attitude of the appellant, no programmes could be offered to him. It considered that "he will most likely continue this lifestyle (ie commit offences to support his drug habit) into adulthood unless some drastic intervention ... takes place".

13. The final conclusion of the panel was expressed in these terms:-
    "Darren Wilson is a very sad, and emotionally unstable young
    Aboriginal man who requires professional psychiatric
    assessment and help. The majority of his offences relate to
    marijuana use which he will obtain whichever way he can. It
    seems very unlikely that Darren will stop offending as
    currently he gives no indication of being remorseful for his
    actions or that he wants to change his lifestyle."

14. Quite understandably the learned magistrate took a serious view of the situation. She adopted a global view of the offending and both disqualified the appellant from holding or obtaining a driver's licence for 12 months and also required him to enter into an undertaking the substance of which was expressed to be in the following terms:-
    "Child enter undertaking of $499 to be of good behaviour for
    8 months.
    Cond 1. To be under supervision of FACS and obey directions
    to attend projects, programmes and for medical if directed.
    2. To reside with his mother and obey her directions as
    to:-
    (a) times when he is to be at home, initially to be 8.00pm
    to 7.00am unless or until his mother authorises that in
    writing and not to be absent during those hours, except in
    the company of his mother or with her written permission.
    3. Not to associate with any person named by his mother as
    banned and in particular not to associate with, unless he is
    in the company of his mother, or an adult relative, approved
    by her:- Stanford Wanganeen, Malcoln Wanganeen, Frank
    Wanganeen, Greg Smith, Danny Smith, Troy Weetra, Oscar
    Wanganeen, Trevor Weetra, Nathan Weetra, Teddy Campbell and
    Joey Campbell."

15. I pause at this juncture to make the point that, on what has been put to me by counsel in this case, there appears to be some confusion reigning concerning the proper interpretation and application of sections 26 and 27 respectively of the Young Offenders Act, 1993 ("the YOA").

16. The former section expressly abolishes the pre-existing concept of offenders entering into a bond. It envisages that, in lieu, the court is to make a formal order imposing on an offender "an obligation of the kind that might otherwise have been imposed under a bond". The YOA stipulates, in subsection (4) of section 26, that a failure to comply with such an obligation is, itself, an offence, which attracts a Division 7 fine, or detention for not more than 6 months (or both).

17. When such an order is made, no further step need be taken. Certainly no written undertaking by an offender is required, because the order carries with it the sanction to which I have referred.

18. By way of contrast, section 27 envisages the entry by an offender into a formal instrument of undertaking only in the circumstances envisaged by that section, namely where "the guardians of the youth (in question) enter into a supplementary undertaking with the Court" of the type specified in the section.

19. In the present case it seems that, although no section 26 order was made, the appellant was nevertheless required by the learned magistrate to enter into what was entitled a "Form 52" undertaking, in circumstances other than those falling within section 27. Such a procedure is said to be the norm in cases of this type. However, I point out that it does not appear to conform with or be required by the relevant statutory provisions. What was required was the making of a section 26 order, creating the relevant obligations.

20. In the course of a comprehensive report to this court the learned magistrate, inter alia, made these comments:-
    "I recall asking the child about the illegal use. He told
    me that he was waiting at a bus stop when some juvenile
    cousins came by in a car, so he got in. I asked him why on
    earth did he get in the car with them. He agreed he knew
    those particular boys stole cars, that they sometimes did
    ramraids on sports stores, and that in one high speed chase
    some of them were in a car which killed a man, after they
    had been out ram-raiding. The child could not explain why,
    knowing all this, he still jumped in a car with them. I
    ascertained from him that these boys were his cousins.

I formed the view that this child was a follower at risk of
    committing further offences when certain of his cousins are
    released from the terms of detention most of them are
    currently serving, if he were free to associate with them
    under any circumstances, and in particular if he fell in
    with this peer group at times when no responsible older
    aboriginal people were present and curtailing the activities
    of this particular group of juveniles. I recall telling
    Wilson that he knows those boys steal cars, and under no
    circumstances was he to jump in a car with any of those
    boys, ever again, or he would join them in custody. I think
    I said to Wilson that if those boys liked being locked up
    for stealing cars, why did they go over the wall whenever
    they got the chance. I said this realising that as Wilson
    was close enough to this group to get in a car with them, he
    would also have heard about their escapes from juvenile
    detention centres. ... I believe I told Wilson that it was
    about time he started listening to his mother for a change,
    and I believe I told him that if his mother had to come down
    to court because he was playing up, I would have a warrant
    after him so fast that he wouldn't see it coming. I believe
    I told him that to make sure he stayed out of trouble, he
    was going to have to do what his mother told him for a
    change, and that if he played up on her I would be making
    sure she could get police assistance because I was sending a
    copy of the bond to the officer in charge of the police
    patrols in his area so that they would have paperwork they
    could act upon to help his mother if she needed help in
    making him do what he was told. I told him I was sending a
    copy of the conditions to his mother. I told him he was
    also going to have to do what he was told by his supervising
    FACS officer, including getting medical help. ... In view
    of the seriousness of his previous conduct, his mother was
    given court sanctioned power to take steps to prevent
    further offending. If Wilson can convince his mother he can
    behave himself if he is out at night, she can lift the
    initial curfew at any time. He can see his cousins whenever
    he wants, so long as he convinces his mother that there is a
    responsible adult watching out to make sure the boys do not
    get into any trouble. These conditions were structured in a
    way designed to empower his mother to take steps to prevent
    any re-offending. She is better placed than is a court, or
    a social worker, to determine how much freedom he can be
    trusted with at any particular time."

21. I once again pause to record that I am at some disadvantage in dealing with this matter, for several reasons.

22. In the first place the original court file cannot currently be located and I am by no means certain that the copy documents which I have constitute the whole file. Secondly, no transcript or other detailed record of the proceedings before the learned magistrate appears to be extant. At best I am reliant upon a report rendered by the learned magistrate which, in turn, is no more than a reflection of her best memory of what transpired (and does not purport to portray a precise, detailed record of what was said and done), coupled with the memory of counsel for the appellant, as set out in an affidavit tendered on this appeal. I am by no means convinced that such affidavit does other than present a recollection of events which is far from all embracing. This is particularly so as the report of the learned magistrate quite clearly indicates a degree of dialogue far more extensive than that adverted to in the affidavit in question.

23. Inter alia, that affidavit merely deposes that:- "In the course of formulating the terms of the undertaking, a copy of which is annexed hereto and marked 'ACB-5', Her Honour Ms McInnes S.M. enquired of Mrs Brenda Morrison, the appellant's mother, if the appellant ... 'hung around with any Wanganeen's'. She replied ... 'yes he is related to some Wanganeen's'. Her Honour further enquired of Mrs Morrison whether the appellant ... 'knew the Campbell boys'. She replied ... 'yes they are his cousins'. Mrs Morrison did not inform the Magistrate of any specific person that she did not wish the appellant to associate with."

24. It is not clear to me precisely what detailed dialogue took place concerning the individuals referred to in paragraph 3 of the order made (as reflected in paragraph 5 of the "undertaking"). What is obvious, from the whole of the documentation before me, is that the nominated persons were well known to the learned magistrate in the course of sitting in the Port Adelaide magisterial area as notorious, persistent offenders, continued association with whom was highly likely to lead the appellant into further trouble.

25. In essence the complaint now made by the appellant is that the conditions sought to be imposed by the learned magistrate are unduly stringent and are unrealistic in practical terms. It was contended that, to use the language of Bray CJ in Macpherson v Beath (1975) 12 SASR 174 at 181, they savour of excessive paternalism and unduly seek to control or interfere with the private lives of both the appellant and his mother. It is further complained that what was done was in conflict with what fell from me in Temby v Schulze (1991) 57 A Crim R 284 at 288-9 - in that the obligations imposed by the learned magistrate were unusual and because the possibility that they might be imposed should have been intimated to counsel, who ought to have been afforded an opportunity of making submissions as to their appropriateness. This was, it was submitted, the more so in the instant case because of the aboriginal concepts of family and family interaction and relationships and the fact that a number of the persons nominated were cousins of the appellant.

26. As to these criticisms a number of points must be made. The charter by which the learned magistrate was bound to proceed was that enshrined in section 3 of the YOA in these terms:-
    "Objects and statutory policies
    3(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;
    (b) the sanctions imposed against illegal conduct must be
    sufficiently severe to provide an appropriate level of
    deterrence;
    (c) the community, and individual members of it, must be
    adequately protected against violent or wrongful acts.
    (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."

27. There can be no doubt that the learned magistrate was well aware of that charter and expressly set out to find a practical method of applying it to the facts of this very difficult situation.

28. Secondly, although section 26 of the YOA abolishes the familiar concept of requiring an offender to enter into a bond, it nevertheless empowers the Youth Court, by direct order, to "impose an obligation of the kind that might otherwise have been imposed under a bond". Quite clearly this invests in the Court a very wide discretion to fashion stipulations related to the future conduct of an offender as are, in the opinion of the Court, necessary to achieve the aims articulated in section 3. Whilst, no doubt, the concepts embraced by Cox J in Williams v Marsh (1985) 38 SASR 313 are, mutatis mutandis, pertinent to the fashioning of orders pursuant to section 26, it is, in my view, abundantly clear that the statute sets out to equip those judicial officers constituting the Youth Court with the widest possible discretion to tailor strategies - at times quite unique strategies - to meet the obvious aims of the legislation. This court ought to be very slow to interfere with reasonable attempts to do so.

29. In the instant case the learned magistrate was striving to produce a formula which both attempted to preserve and strengthen family relationships by underpinning the stature and parental authority of the appellant's mother and also protected the community - whilst, at the same time, securing the care, correction and guidance of the offender.

30. In imposing the conditions which she did the learned magistrate extended leniency to the maximum extent reasonably possible in balancing the potentially conflicting factors identified in section 3 of the YOA. Such were the antecedent history of this near adult, the gravity of his repeated offending and the patent future threat to the community arising from his attitude and likely future actions (particularly when in the company of a peer group such as that identified by the learned magistrate), that the possible imposition of an immediate custodial sentence was necessarily a matter for serious consideration. Indeed I go so far as to say that, had the learned magistrate opted for such an approach, it would have been very difficult indeed to criticise such a decision.

31. The appellant cannot have it both ways. He is now at the cross roads and faces the very real prospect of spending substantial periods of time in an adult prison in the near future if he does not change his attitude and lifestyle. He must be shown, in the firmest of manners, that the community will not tolerate a continuation of his conduct. If he is to remain out of detention then he must submit himself to the discipline of the types of conditions which have been imposed upon him. In reality the learned magistrate has attempted to give him a final chance and framework within which to cease his antisocial habits. If he fails to avail himself of that opportunity he must suffer the inevitable consequences.

32. In reality, the scheme formulated by the learned magistrate simply requires the appellant not to associate with nominated, known offenders. There is nothing unusual about that. The fact that some of them also happen to be relatives of the appellant seems to me purely coincidental. The plain fact is that, if this appellant wishes to remain out of custody, then he must not consort with persons who are likely to lead him into trouble - be they relatives or not. Indeed the fact that they may be relatives renders it more desirable that they be nominated, because the situation of the mother would otherwise, potentially, become untenable in attempting to discharge her parental responsibilities under the order.

33. It must be stressed that what is contemplated does not, in absolute terms, prohibit association with the nominated persons. It merely requires such association to be in the presence of the mother or some other adult approved by her. This seems to me to be a sensible and practical compromise. True it is that it is to be preferred that conditions of this type ought, desirably, to be preceded by some detailed enquiry and debate which has duly been recorded. Regrettably what actually transpired in the present case is by no means entirely clear.

34. I see no error in the approach which has been attempted. On the contrary, it was well justified. If the appellant desires to remain at liberty then he had best accept the discipline which is necessarily to be imposed upon him. That will readily reveal whether any suggested signs of rehabilitation referred to in the material put to the learned magistrate are real, or merely ephemeral.

35. However, what was done procedurally does not conform with the provisions of section 26 and thus does not give effect to the intention of the learned magistrate in a legally appropriate manner.

36. In the circumstances the appeal must be allowed for the purpose of rectifying that situation. The order appealed against will be set aside. I propose to substitute for it a formal section 26 order imposing obligations broadly similar to the provisions of the abortive "undertaking". However, as I am, in effect, formally re-opening the situation, I am prepared to hear counsel as to what names ought to be included in it.