Donald George Smith v R No. SCCRM 94/189 Judgment No. 4725 Number of Pages 3 Infants and Children (1994) 74 a Crim R 309

[1994] SASC 4725

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Infants and children - Youth Court ordered sentence of detention in a training centre - subsequent order transferring the youth to prison - application for the fixing of a non-parole period - held that there was no power to fix a non-parole period as the youth was not "serving a sentence of imprisonment" within the meaning of s32(3) of the Criminal Law (Sentencing)Act (1988) - however, the Parole Board was obliged to review the circumstances of the youth under s63(8) of the Young Offenders Act 1993 and could order his release at any time. Young Offenders Act 1993s4, s23, s63(4), (7) and (8); Criminal Law (Sentencing) Act (1988) s32(3) and Correctional Services Act 1982 s24(1).

HRNG ADELAIDE, 21 July 1994 #DATE 9:8:1994

Counsel for applicant:     Ms P Trezise

Solicitors for applicant:    Aboriginal Legal Rights
   Movement Inc

Counsel for respondent:     Ms G Davison

Solicitors for respondent: DPP (SA)

ORDER
Application dismissed.

JUDGE1 PERRY J The applicant, Donald George Smith, applies for an order pursuant to s.32(3) of the Criminal Law (Sentencing) Act 1988, fixing a non-parole period.

2. He was sentenced in the Youth Court of South Australia on 13 January 1994 on a number of charges to which he had pleaded guilty. Those charges included two offences of illegal use of a motor vehicle, receiving, and a charge of escaping custody while in a detention centre. The learned Senior Judge of the Youth Court imposed cumulative periods of detention totalling eighteen months.

3. Upon the making of the orders for detention, the applicant became liable to serve out the term of the detention in a training centre as defined by the Young Offenders Act (1993) (see ss.4 and 23).

4. By application dated 28 April 1994, the Director General of Family and Community Services applied, pursuant to s.63(4) of the Young Offenders Act, for an order directing that the applicant, who was then detained at Cavan Training Centre, be transferred to a prison for the remainder of his period of detention.

5. The grounds upon which that order was sought included the allegation that the applicant was involved on that day in a major disturbance in the Training Centre.

6. On 29 April 1994, the learned Youth Court Senior Judge made an order in terms of the application. In accordance with that order, the applicant was transferred to Yatala Labour Prison.

7. Division II of the Criminal Law (Sentencing) Act (1988) sets out provisions dealing with the fixation and implementation of non-parole periods. Within that Division s.32(3) provides:
    "Where a prisoner is serving a sentence of imprisonment but
    is not subject to an existing non-parole period, the
    sentencing court may subject to ss.(5) fix a non-parole
    period on application by the prisoner or Chairman of the
    Parole Board."

8. The question posed by the application is whether or not it can be said that the applicant is a "prisoner ... serving a sentence of imprisonment" within the meaning of that section.

9. It must be noted at the outset that the sentence imposed by the learned Youth Court Judge on 13 January 1994 was not a sentence of imprisonment. On the contrary, it was a sentence of detention. The distinction is fundamental to the process of sentencing youths. S.23(1) of the Young Offenders Act provides:
    "The court cannot sentence a youth to imprisonment."

10. The question becomes one of determining whether the effect of the order made on 29 April 1994 transferring the applicant to prison for the remainder of the period of his detention had the effect of changing the nature of the sentence which he was serving to one of imprisonment.

11. Ms Trezise relies on s.63(7) of the Young Offenders Act. This provides:
    "(7) If the person is held in custody in a prison by order
    under this section, the Correctional Services Act 1982
    applies to and in relation to that youth."

12. Ms Trezise contends that if the Correctional Services Act applies, the whole Act applies so as in some way to convert the sentence to one of imprisonment.

13. In my opinion, that argument is not sound.

14. The effect of s.63(7) of the Young Offenders Act is to apply to the applicant, following the making of the order transferring him to prison, those provisions of the Correctional Services Act as apply to a prisoner. The immediate result is that his custody is transferred to the Chief Executive Officer (Correctional Services Act s.24(1)), and there is imposed upon him the regime of prison management and control set out in the Correctional ServicesAct. But to say that he becomes a prisoner subject to that regime does not mean that he is a prisoner serving a sentence of imprisonment. On the contrary, he is a prisoner serving out a term of detention imposed under the Young Offenders Act. S.32(3) of the Criminal Law (Sentencing) Act (1988) is, therefore, not of application. It follows that there is no power to fix a non-parole period.

15. This does not mean that the applicant must now serve out the term of the detention without any possibility of early release. On the contrary, this aspect of the matter has been expressly provided for in the legislation.

16. S.63(8) of the Young Offenders Act provides:
    "The Parole Board must review the circumstances of any
    person transferred to prison under this Act, and may, for
    any proper reason, order the release of any such person."

17. While the applicant was detained in a training institution, his ongoing detention was subject to periodic review by the Training Centre Review Board (see Young Offenders Acts.38) which has the ability to order conditional release from detention (see s.41). Upon the transfer of a youth to prison, the power to order early release shifts to the Parole Board.

18. No doubt the applicant can apply to the Parole Board to review his circumstances with a view to ordering his release at an appropriate time. For the reasons which I have given, there is no jurisdiction which he can invoke to fix a non-parole period.

19. The application should be dismissed.