F, MD v Police - [2006] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
F, MD v POLICE
Judgment of The Full Court (ex tempore)
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Layton)
10 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence imposed in the Youth Court of SA - appellant charged with one count of robbery and one count of theft - appellant convicted of robbery - the charge of theft was discharged without conviction or penalty - sentenced to four months detention, suspended upon entering an obligation to be of good behaviour for twelve months - at the time of sentencing the appellant had already spent five months in detention - whether the sentence was manifestly excessive - whether the Judge failed to consider whether a sentence of detention was appropriate given all the circumstances of the offence - whether the Judge failed to give consideration to the time the appellant had already spent in detention - whether the sentencing remarks were inadequate - appeal dismissed.
Young Offencers Act 1993 s 3, s 23(4), s 23(2), s 24, referred to.
C, TE v Police [2006] SASC 43; KBS v Police (2001) 122 A Crim R 477, considered.

F, MD v POLICE
[2006] SASC 173
Full Court: Sulan, Layton and Anderson JJ

SULAN J: This is an appeal against sentence. The appellant MF was a youth at the time of the offence. He was charged with robbery of TK in order to commit theft by taking a skateboard from him. The appellant grabbed TK from behind and threatened to bash him. He was also charged with theft. He stole a bicycle belonging to JD.
The appellant pleaded not guilty to both offences. He was found guilty in the Youth Court on both counts, and sentenced to detention for four months, suspended upon him entering into an obligation to be of good behaviour for a period of 12 months for the offence of robbery. The charge of theft was discharged without conviction and without penalty.
On 8 August 2004 the appellant went to Noarlunga Downs with a group of friends. They had gone there to meet and spend time with a girl called CD. They spent time at her house and outside her house on the street.
The victim, TK was 14 years old when he gave evidence. He said that he was with a group of friends skating on a path at Noarlunga Downs. He skated past a group of about seven young people on their way home. After they had passed the group, a friend of TK’s, named WLS, said to TK that someone was chasing him. According to TK someone then jumped on his back and grabbed him around the neck. The attacker took TK’s skateboard, held it over his head and said ‘I’ll bash you’. TK then left.
As to the second charge of theft it was alleged that MF was riding a bicycle that belonged to CD’s brother, JD. CD gave evidence that the appellant rode away on the bicycle, returned for a short time and then rode away again. The second time he rode away he did not return. The bicycle was never recovered.
At the time of sentencing the appellant had already served five months in detention. The appellant submitted that the sentencing Judge erred in failing to find the time already served in detention was sufficient penalty. The appellant pointed to the Judge’s remark that:
I’m going to give you a suspended sentence because I’ll take into account the time you’ve already spent in custody.[1]
[1] Sentencing Remarks, Senior Judge Moss, 8 March 2005, 1.
Section 23(4) of the Young Offenders Act1993 (“the Act”) states:
A sentence of detention must not be imposed for an offence unless the court is satisfied that because of the gravity or circumstances of the offence or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.
It was submitted that the Judge failed to consider whether a sentence of detention was appropriate given all the circumstances of the offence, including that the offending was “extremely childish”, it was a one-off episode, and the appellant had been in detention for over five months. It was submitted that the offending was at the lower end of the scale for this offence. It was submitted that the period of detention already served ought to have been found to be sufficient punishment for the crime, and that the Judge erred in failing to take into account the period already served in detention. I do not agree that the offending can be characterised as childish. This was serious offending which traumatised the victim.
Counsel for the appellant submitted that the Judge failed to give consideration to the time the appellant had spent in detention when determining the sentence. Although the Judge was not explicit in his remarks, he appears to have taken account of the time in custody, both when setting the detention and in considering suspension. Section 23(2) of the Act specifies that:
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;…
The appellant submitted that detention was not the appropriate remedy. I do not agree. The Offender History Report reveals numerous previous appearances in the Adelaide Children’s Court beginning when the appellant was 12 years old. These include offences of violence, damage to property, larceny and the charges of robbery and theft which are the subject of this appeal. The appellant has, in the past, had the benefit of family conferences, suspended sentences, sentence obligations and detention. The appellant has not responded to these opportunities to reform his behaviour.
This offence followed closely after his release from a period of detention for five months in relation to an assault. On that occasion he was also before the court for an offence of dishonesty. These appearances had followed two earlier appearances in which the appellant had entered into obligations for six months and 12 months respectively. On both of those occasions he was before the court on charges of assault. The appellant has appeared before the Children’s Court on numerous occasions since the year 2000. The offence of robbery is a very serious charge. The victim impact statement of TK reveals how he has been scared to go back on his own to the path where the robbery occurred. He is frightened of groups of people and avoids having to pass them by taking another route.
I am satisfied that a non-custodial sentence would have been inadequate. In accordance with the stated objects and statutory policies of the Young Offenders Act 1993, I am satisfied that detention was necessary to ensure that the appellant was made aware of his obligations under the law and the consequences of his breach of the law.[2] Previous punishments have failed to do so.
[2] Young Offenders Act 1993 s 3(2)(a).
Although a sentence of detention must be the option of last resort,[3] given the appellant’s history I am satisfied that the Judge considered the sentence necessary because of the gravity or circumstances of the offence and because the offence was part of a pattern of repeated offending.[4] The Judge gave consideration to the fact that the appellant had already served time in detention. Given that the Judge suspended the sentence, he must have considered it necessary to impose a sentence of detention in order to adequately protect the community against wrongful or violent acts.[5] Given that the appellant had already served five months detention, the Judge must have determined that good reason existed to suspend the sentence.
[3] KBS v Police (2001) 122 A Crim R 477, 485.
[4] Young Offenders Act 1993 s 23(4).
[5] Young Offenders Act 1993 s 3(2)(c).
The Judge did not articulate his reasons for finding that a sentence of a further four months detention was appropriate. This is unfortunate. In C, TE v Police[6] this Court had cause to refer to the obligations of a sentencing judge to state reasons for imposing a sentence. In this case the reasons are minimal. The Judge did not refer to the components which govern the sentencing of youths in s 3(3) of the Act. As this Court has said before, transparency of the sentencing process is necessary. In that regard I take note of the submissions of counsel for the appellant that the sentencing remarks have some force. However it cannot be said that the Judge failed to have regard to all relevant factors in arriving at his conclusion.
[6] [2006] SASC 43.
The Judge is an experienced Youth Court judge in a specialist area who knows the appellant from prior occasions. He said that he was aware of the appellant’s personal circumstances, he was aware of the appellant’s antecedents and he was aware that the appellant had already served time in detention. I am satisfied that the Judge was better placed to determine what would have been an appropriate sentence for the appellant given his knowledge of the appellant and the appellant’s history. Robbery is a very serious offence. In my view the sentence cannot be said to have been manifestly excessive. I would dismiss the appeal.
ANDERSON J: I would also dismiss the appeal and I agree with the reasons delivered by Sulan J.
LAYTON J: I concur and I agree with the reasons given by Sulan J.