F, Ma v Police - [2015] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
F, MA v POLICE
[2015] SASC 10
Judgment of The Honourable Justice Vanstone
3 February 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES
Appeal against penalty imposed in the Youth Court - appellant charged with two counts of aggravated assault arising from the same incident - appellant pleaded guilty to count 1 and was sentenced by the first magistrate - count 2 came before a different magistrate for trial - appellant pleaded guilty to count 2 during trial - whether magistrate erred by refusing to refer the matter back to the first magistrate - whether sentence manifestly excessive.
Held: appeal dismissed.
Young Offenders Act 1993 (SA) s 3, s 23(4), s 32; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
R v QVT (2003) 87 SASR 378; A, MC v Police (2008) 102 SASR 151; R v McInerney (1986) 42 SASR 111, considered.

F, MA v POLICE
[2015] SASC 10
Magistrates Appeal: Criminal

VANSTONE J: This is an appeal against a sentence imposed in the Youth Court.
The appellant was charged with two counts of aggravated assault. They were aggravated by the fact that they were committed in company with one or more other persons. She was 12 years and 10 months old at the time of the offending.
The appellant pleaded guilty to the first count, as well as to eight unrelated offences, and was sentenced in October 2014 by a magistrate (the first magistrate). A suspended term of detention was imposed.
The appellant contested count 2 and it came before a different magistrate for trial during the following month. The appellant pleaded guilty during the first day of trial. The magistrate imposed a sentence of detention for one month, which was suspended upon the appellant entering into a bond to be of good behaviour for nine months. No conviction was recorded. The penalty imposed for count 2 is the subject of this appeal. The appellant argues that the magistrate erred in three respects, namely by failing to refer count 2 back to the first magistrate for sentence, by remanding the appellant in custody for one night prior to sentence and by imposing a (suspended) term of detention, which is said to be a manifestly excessive penalty.
The incident giving rise to the charges occurred on a street in Davoren Park in February 2013. The appellant and her co-offender assaulted a girl who was known to them. The girl fell to the ground, where the assault on her continued. It included kicks to her body and head. Indeed, the appellant was described as kicking the girl’s head “like a soccer ball”. This was the subject of count 1. The appellant and her co-offender then assaulted a woman who came to the aid of the girl: count 2. The agreed factual basis for the plea to count 2 was that the appellant pulled the woman’s hair to remove her from the fight, inadvertently hitting her in the face. The woman suffered injuries to her face.
In relation to count 1, the appellant intimated a plea of guilty at a relatively early stage. She was dealt with for that offence and unrelated subsequent offending on 7 October 2014. No conviction was recorded. However, a penalty of six weeks detention was imposed in relation to one of the other offences (a different assault) which was suspended upon the appellant entering into an obligation to be of good behaviour under supervision for six months. For the additional offending, including count 1, no further penalty was imposed.
The appellant pleaded guilty to count 2 on 10 November 2014 after the trial had commenced. The plea followed negotiations between her counsel and the prosecution. The victim had already given her evidence. The appellant’s counsel tendered two reports which had also been before the first magistrate. One was a comprehensive social background report prepared pursuant to s 32 of the Young Offenders Act 1993 (SA). The author spoke of the appellant’s difficulties with anger management. The appellant told the author of experiencing a sense of exhilaration when committing some of the offences. The appellant had no prior convictions; although the later offending was not irrelevant: R v McInerney (1986) 42 SASR 111. The author spoke of the appellant being “at a crossroads” in her life. The author also pointed to many positive features in the appellant’s personality and makeup. The appellant was remanded in custody overnight.
On the following day, the appellant’s counsel applied for the matter to be referred back to the first magistrate. That application was refused. The magistrate heard submissions in mitigation and then imposed penalty. He remarked upon the seriousness of the assault upon the “Good Samaritan” who had intervened in an attempt to defuse a violent situation.
Although the grounds of appeal are framed as three separate grounds, grounds 2 and 3 are essentially the same and attack the penalty as being manifestly excessive.
Ground 1 asserts that the magistrate erred in refusing to refer the matter back to the first magistrate who, it is asserted, was part-heard.
This ground is without merit. The first magistrate was not, in fact, seized of count 2. Before that magistrate a plea of not guilty had been entered and the appellant had been remanded for trial. The real complaint of the appellant is that the second magistrate refused, as a matter of discretion, to refer the matter back to the first magistrate. In my view to have done so would have been rather odd. The second magistrate was seized of the matter. He had heard the evidence of the victim of count 2 and was in a position to make factual findings based on her evidence, notwithstanding that the plea was entered on a narrow and rather strained basis. The second magistrate had no right to refer the matter back to the first. It could only have been done by arrangement. In my view there was no obligation upon the second magistrate to explore such a possibility.
Indeed, in my opinion, the rather unfortunate situation which developed, wherein two different magistrates were to impose penalty for two aspects of the same incident, really resulted from the preparedness of the first magistrate to sentence for count 1. In my view it would have been better had that magistrate declined to deal with count 1, pending an outcome on count 2. No doubt the first magistrate did so because she was led to believe that the police would likely not proceed with count 2. But count 2 amounted to a serious assault and I do not consider that the decision of prosecuting authorities to proceed with it could be seen as surprising. In any event, the second magistrate cannot be criticised for proceeding to impose penalty on count 2.
As a prelude to his argument in support of grounds 2 and 3, Mr Katsaras, for the appellant, submitted that, even prior to imposing penalty, the second magistrate committed an error of approach when he remanded the appellant in custody for sentence for one night. Mr Katsaras argued that the policy demonstrated in s 23(4) of the Young Offenders Act is that sentences of detention are penalties of last resort and, by parity of reasoning, it was inappropriate for the appellant to be remanded in custody. The second magistrate explained his reasoning when he came to sentence. He said he remanded the appellant overnight to give her a “taste” of what she might expect if behaviour of this sort continued. As mentioned, by the time he took this decision the magistrate had seen the two reports which had been prepared prior to the first magistrate’s sentence and had seen the quite serious sequence of offending during 2013 and into the early part of 2014 which resulted in the appellant’s appearances in the Youth Court.
I have no doubt that the magistrate thought carefully about the remand in custody of a fourteen and a half year old girl pending sentence. It seems from the papers before me that the magistrate originally had in mind a longer remand, but was persuaded to reduce it to the one night. I would not like to think that such a course would be taken either lightly or as a matter of practice. However, I would be slow to criticise a magistrate for employing such a tool in circumstances where he considered that it was appropriate. In any event, the decision to remand the appellant is not, of itself, under appeal.
In support of his main argument that the penalty is manifestly excessive Mr Katsaras referred again to s 23(4). I set out that provision:
(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.
Mr Katsaras also referred to the objects of the Young Offenders Act as set out in s 3 of that Act. That provision is well known.
Counsel argued that nowhere in the remarks on penalty was it made clear that the magistrate had considered dispositions other than detention. He referred to R v QTV (2003) 87 SASR 378 and A, MC v Police (2008) 102 SASR 151 for the propositions that s 10 of the Criminal Law (Sentencing) Act 1988 must be directed to the fulfilment of the objects and policies of s 3 of the Young Offenders Act. Deterrence to other persons has no role to play. In A, MC White J indicated that as a general rule, the remarks on penalty should indicate how the object and policies of the Young Offenders Act were applied, at least where a young offender was to be sentenced to detention. However, his Honour also observed that magistrates have considerable flexibility in the content of their remarks upon sentence.
Mr Katsaras submitted that having regard to the fact that the appellant had already been placed on a suspended term of detention, in part in relation to count 1, it was inappropriate to impose another term. He argued that at the time when this offence was committed the appellant had no prior convictions and no further penalty was required, irrespective of the seriousness of the offence.
In my opinion the disposition settled upon by the magistrate was within the range of dispositions available to him. As I have already observed, it is perhaps unfortunate that the two counts, which were essentially part of one dual-faceted incident, were dealt with by different magistrates. However, blame may be apportioned on all sides for that eventuality. Nonetheless, the magistrate made plain from his remarks on penalty that he took a very dim view of the offence with which he was dealing. He remarked that the appellant “and another girl were attacking a third girl on the ground” and that the victim of count 2 “tried to stop the incident … tried to pull the appellant off the girl on the ground, whereupon [the appellant] and the other girl turned on her.” He went on to say that the victim suffered some “quite severe injuries” which were attributable to the incident, though not directly to the appellant. Elsewhere he described the incident as involving “violent behaviour not acceptable to the community” and he referred to the appellant’s behaviour as “negative and destructive”. All these observations were open to him. This was, indeed, a serious incident.
Although it is true to say that count 1 had been disposed of, there was no ascertainable penalty fixed in relation to it. In addition, although the appellant would have received significant credit in relation to her plea for count 1, she would have earned very limited credit for the later plea, entered as it was during the trial and after the victim had given evidence. The fact that the second magistrate had seen and heard the victim give evidence no doubt had the effect of impressing upon him the disturbing behaviour of the appellant and the seriousness of the offence. That the appellant had already entered into a bond in association with a suspended detention order for a subsequent offence was no bar to the second magistrate also imposing a suspended detention order.
Section 23(4) entitles a court to impose a sentence of detention where the court, having regard to the gravity or circumstances of the offence, is satisfied that a non-custodial disposition would be inadequate. It is implicit in the magistrate’s remarks that he reached that conclusion. It was a conclusion which was open to him. Although I acknowledge that there are some unsatisfactory features of the way in which the appellant’s case as a whole was dealt with in the Youth Court – features for which all those involved must bear responsibility – I cannot say that the second magistrate was in error in imposing penalty.
I would dismiss the appeal.