G, R v Police - [2012] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
G, R v POLICE
[2012] SASC 195
Judgment of The Honourable Justice Gray
26 October 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - REMISSION FOR REHEARING
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - OTHER CASES
Appeal from orders made by a Magistrate in the Youth Court of South Australia following pleas of guilty to offences against the Motor Vehicles Act 1959 (SA) and the Road Traffic Act 1961 (SA) - on sentencing, the Magistrate declined to make an order pursuant to section 17 of the Young Offenders Act 1993 (SA) diverting the proceeding to a family conference - the Magistrate recorded convictions on both counts, imposed a fine of $100.00, ordered the defendant to pay prosecution costs of $100.00 and a victims of crime levy, and disqualified the defendant from obtaining or holding a driver's licence for a period of 12 months - whether the Magistrate had proceeded under a misapprehension of fact about the circumstances of the offending - whether the Magistrate erred in exercising her discretion not to act under section 17 of the Young Offenders Act to defer the matter to a family conference.
Held: Appeal allowed - the Magistrate acted under two material misapprehensions of fact - the Magistrate failed to properly consider the powers available at a family conference, in particular, the use of an undertaking to ensure that the defendant did not drive for a specified period - the Magistrate erred in the exercise of her discretion by failing to recognise or give weight to various considerations of the Young Offenders Act - convictions and further orders of the Magistrate set aside - the subject matter of the charges referred to be dealt with by a family conference - the defendant’s guilt is established by his pleas of guilty in relation to both counts - proceeding remitted to the Youth Court to enable the family conference to take place.
Motor Vehicles Act 1959 (SA) s 74(2); Road Traffic Act 1961 (SA) s 46; Young Offenders Act 1993 (SA) s 3, s 4, s 6, s 7, s 8, s 12 and s 17; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Police [2002] SASC 403; Police v G, PA [2007] SASC 78; Yardley v Betts (1979) 22 SASR 108; Vartzokas v Zanker (1989) 51 SASR 277, considered.

G, R v POLICE
[2012] SASC 195
Magistrates Appeal
GRAY J.

This is an appeal from orders made by a Magistrate in the Youth Court of South Australia following pleas of guilty to offences against the Motor Vehicles Act 1959 (SA) and the Road Traffic Act 1961 (SA).
The defendant, a youth aged 15 years, was charged that on 1 December 2011 he drove a motor vehicle on a road in suburban Adelaide when not authorised to drive such a motor vehicle, contrary to section 74(2) of the Motor Vehicles Act. He was further charged that on the same occasion he drove in a manner dangerous to the public, contrary to section 46 of the Road Traffic Act. He pleaded guilty to both charges.
On 23 July 2012, the defendant was sentenced in the Youth Court. The Magistrate declined to make an order pursuant to section 17 of the Young Offenders Act 1993 (SA) diverting the proceeding to a family conference. The Magistrate recorded convictions on both counts. The Magistrate then exercised her discretion to sentence the defendant pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). She imposed a fine of $100.00 and ordered the defendant to pay prosecution costs of $100.00 as well as a victims of crime levy. The Magistrate disqualified the defendant from obtaining or holding a driver’s licence for a period of 12 months.
On the appeal, the defendant submitted that the Magistrate had proceeded under a misapprehension of fact about the circumstances of the offending. It was further submitted that the Magistrate erred in exercising her discretion not to act under section 17 of the Young Offenders Act to defer the matter to a family conference.
On the hearing of the appeal, affidavits from the prosecutor and from the solicitor for the defendant set out the history of what had occurred in the Youth Court. The prosecutor deposed that he had recounted the facts alleged against the defendant by reference to the police apprehension report. He recalled, in particular, that he had expressed concern about the manner of the defendant’s driving “through a posted 25 kilometre per hour road construction, whilst construction workers were present”. The prosecutor exhibited the apprehension report and a review of that document discloses that the defendant was observed to have “drifted around the corner and collided with some [hay] bales”. Apparently the hay bails were used to keep silt away from the road.
At the time, there were two council workers in the vicinity. One was sitting in the driver’s seat of a council truck and the other was in a worksite caravan. According to the apprehension report, there were no other persons present on the roadway, although it was an area at times frequented by the public, including school children.
According to the apprehension report, there was no suggestion that the vehicle had come into contact with any road sign associated with the road construction works. There was no suggestion that the defendant exceeded the indicated speed restriction.
When sentencing, the Magistrate remarked:
That motor vehicle had been ‘looked after’ by your parents whilst the neighbours were away on a holiday. Without the permission of your parents you accessed the keys to this motor vehicle and decided to ‘go for a drive’. You drove for some 5 minutes but that journey included travelling upon a road that was undergoing some road works. Indeed, the speed limit for that stretch of road had been reduced to 25 km/h because of the gravel surface. There were council workers in the vicinity and a number of road signs indicated the reduction of speed. The motor vehicle driven by you collided with one or more of those road signs. You were seen by council workers and in particular, you were sent to drive your motor vehicle in an erratic manner. The vehicle was also seen to skid along the surface. You turned into Pitt Street and during the course of that manoeuvre you collided with some hay bales.
The Magistrate appears to have acted under two material misapprehensions of fact. The above passage records that the motor vehicle collided with one or more of the road signs, indicating a reduction in speed. This does not accord with the facts apparently advanced by the prosecutor. On the appeal, counsel for the police accepted that the Magistrate had proceeded under this misapprehension of fact.
Further, the Magistrate refers to there being “council workers in the vicinity”. A review of the apprehension report confirms that one council worker was seated in a truck and the other was inside a worksite caravan at the time. It is to be accepted that the council workers were in the vicinity, but it is relevant that neither was on the roadway at the time. Further, it does not appear that there were any other persons on the roadway at the time. Notwithstanding the absence of any person on the roadway, the defendant’s driving still constituted dangerous driving.
The Magistrate proceeded to sentence the defendant on a materially incorrect version of the facts. It follows that the exercise of her sentencing discretion miscarried. For this reason alone, it is necessary for the Court to reconsider the appropriateness of the sentence imposed.
When addressing the possible exercise of the discretion to divert the proceeding to a family conference pursuant to section 17 of the Young Offenders Act, the Magistrate observed:
Counsel says that you will not repeat this type of offending and I assume that what he means by that is that you will not drive whilst not authorised or drive in a manner dangerous to the public. Your counsel has also urged me to consider diversion to a family conference pursuant to Section 17 of the Young Offenders Act.
He has advanced a number of reasons for that and in particular highlighted that you are unlikely to commit this type of offence again and to some extent, to avoid the mandatory 12 month license disqualification imposed by Section 46. The prosecutor, on the other hand, has opposed the application for diversion and has highlighted the nature of the offending.
I remind myself of the principles relevant to diversion and in particular that diversion is not restricted to a ‘minor offence’ and the judicial discretion to divert is broad and unfetted [sic]. I also remind myself of the provisions of Section 3 of the Young Offenders Act. Although diversion may be appropriate in some traffic matters this is not one of those cases. Issues of the protection of the community related to your immature behaviour and personal deterrence through licence disqualification come to the fore and outweigh considerations of future employment and in particular the prospect of obtaining an apprenticeship.
When enacting the Young Offenders Act, Parliament recognised the failings of more traditional methods of punishment for young offenders. It sought to offer the community and young offenders the advantages of a diversionary process. It was thought that the community would be better protected by helping young offenders to recognise their wrongdoing. The community could then assist them to develop into law abiding members of the community by facilitating their rehabilitation and encouraging the realisation of their potential. These objectives are reflected in section 3 which provides:
(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;
(c)the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a)In imposing sanctions on a youth for illegal conduct—
(a)regard should be had to the deterrent effect any proposed sanction may have on the youth; and
(b)if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth’s conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—
(i) the deterrent effect any proposed sanction may have on other youths; and
(ii) the balance to be achieved between—
(A)the protection of the community; and
(B)the need to rehabilitate the youth.
(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.
The Young Offenders Act provides for diversion on two levels. The police have a discretion to divert certain matters away from the traditional court process. Sections 6 and 7 permit diversion to an informal or formal caution or a family conference. The police discretion to divert is restricted to minor offences as defined in section 4 of the Young Offenders Act.[1]
[1] A minor offence is defined by section 4 of the Young Offenders Act1993 (SA) as:
… an offence to which this Act applies that should, in the opinion of the police officer in charge of the investigation of the offence, be dealt with as a minor offence because of—
(a)the limited extent of the harm caused through the commission of the offence; and
(b)the character and antecedents of the alleged offender; and
(c)the improbability of the youth re-offending; and
(d)where relevant—the attitude of the youth’s parents or guardians;
Parliament also recognised that there would be cases where diversion was appropriate although the police had not exercised their discretion to divert. A judicial discretion was incorporated into the legislative scheme. Section 17 provides:
(1)Subject to this Act, the Court will deal with a charge laid before the Court in the same way as the Magistrates Court deals with a charge of a summary offence and, in doing so, has the powers of the Magistrates Court.
(2)The Court may, even though a charge has been laid, refer the subject matter of the charge (after the youth’s guilt has been established either by admission or by the Court’s findings) to be dealt with by a police officer or by a family conference.
(3)If—
(a)the offence with which the youth is charged is a homicide, or an offence consisting of an attempt to commit, or assault with intent to commit homicide; or
(b)the offence with which the youth is charged is an indictable offence and the youth, after obtaining independent legal advice, asks to be dealt with in the same way as an adult; or
(c)the Court or the Supreme Court determines, on the application of the DPP or a police prosecutor, that the youth should be dealt with in the same way as an adult because of the gravity of the offence, or because the offence is part of a pattern of repeated offending,
the Court will conduct a preliminary examination of the charge, and may commit the youth for trial or sentence (as the case requires) to the Supreme Court or the District Court.
This discretion is generally unfettered. The only limitations are those expressly provided for in section 17(3).
Section 17 enables a court to refer the subject matter of a charge to the police for a caution or to a family conference when it considers it appropriate. The court’s power to refer is not limited to minor offences. The legislation contemplates the possibility of diversion by a judicial officer once guilt has been established.
In R v Police, I discussed the extent of the court’s powers under section 17 and there observed:[2]
There is no reason in principle to limit the court’s power to refer only minor offences. There will always be cases that have found their way into the court system that “should never really have got into it.” Section 17 contemplates that a court may conclude that a police caution or family conference may be appropriately used as an alternative to traditional sentencing to further the Act’s purposes and in the interests of the community and the young offender. The expansion and development of diversionary powers also suggest that Cox J’s observation is too narrow.
The objectives and policies embodied in the Young Offenders Act underscore the importance of tailoring a sentencing package to address young offenders’ needs. There is no reason to narrow the breadth or restrict the operation of the power given by section 17. Parliament chose not to limit the judicial discretion to divert in the same way that the police discretion has been restricted. The judicial discretion to divert is a broad, unfettered discretion that creates a legitimate sentencing alternative. It is in the interests of young offenders and the community that the advantages of the diversionary process as enacted by parliament are given their full effect by the courts. A wide interpretation should be given to section 17.
In Police v G, PA,[3] these observations were adopted or approved by the Full Court.
[2] R v Police [2002] SASC 403, [24]-[25].
[3] Police v G, PA [2007] SASC 78, [40].
The defendant’s solicitor deposed that initially the prosecutor did not oppose an order being made pursuant to section 17 diverting the matter to a family conference. However, the Magistrate pointed out that, in that event, there could not be an order made disqualifying the defendant’s driver’s licence. This caused the prosecutor to change his position and to oppose a section 17 diversion order. It is apparent from the Magistrate’s remarks, as extracted above, that her view of the need for a disqualification order was a primary consideration in the decision not to make a section 17 diversion order.
It would appear that the Magistrate may have overlooked the terms of section 12 of the Young Offenders Act, which addresses the powers of the family conference. That section relevantly provides:
(1)A family conference has the following powers:
(a)the conference may administer a formal caution against further offending;
(b)the conference may require the youth to enter into an undertaking to pay compensation to the victim of the offence;
(c)the conference may require the youth to enter into an undertaking to carry out a specified period (not exceeding 300 hours) of community service;
(d)the conference may require the youth to enter into an undertaking to apologise to the victim of the offence or to do anything else that may be appropriate in the circumstances of the case.
(2)In exercising powers under this section, the family conference must have regard to sentences imposed for comparable offences by the Court.
(3)If a formal caution is administered, the caution must be put in writing and acknowledged in writing by the youth.
(4)An undertaking will have a maximum duration of 12 months.
(5)If a youth enters into an undertaking to pay compensation, a copy of the undertaking must be filed with the Registrar and payments of compensation must be made to the Registrar who will disburse the compensation to the victims named in the undertaking.
(6)If a youth enters into an undertaking to carry out community service, a copy of the undertaking must be filed with the Registrar.
(7)If a youth enters into an undertaking under this section to apologise to the victim of the offence, the apology must be made in the presence of an adult person approved by the family conference or a Youth Justice Co-ordinator.
(8)If a youth—
(a)fails to attend at the time appointed for a family conference; or
(b)does not comply with a requirement of the family conference; or
(c)does not comply with an undertaking under this section,
a police officer may lay a charge before the Court for the offence in relation to which the conference was convened.
(9)A charge may be laid under subsection (8) even though a period of limitation relating to the commencement of proceeding for the relevant offence has expired, but the charge must be laid not more than 12 months after the expiration of that period of limitation.
(10)If—
(a)a youth is cautioned, and no further requirements are made of the youth, under this section; or
(b)all requirements made of the youth under this section (including obligations arising from an undertaking given by the youth) are complied with,
the youth is not liable to be prosecuted for the offence.

It is apparent that section 12(1)(d) provides the family conference with the power to require the youth to enter into an undertaking to do anything else that may be appropriate in the circumstances of the case. Such an undertaking could be an undertaking not to drive for a specified period of time. In the event of there being a breach of the undertaking, section 8 would allow a police officer to lay a charge in respect of the initial offending.
In my view, the Magistrate failed to properly consider the powers available at a family conference, in particular, the use of an undertaking to ensure that the defendant did not drive for a specified period.
On the appeal it was further complained that, in the circumstances, convictions should not have been recorded. When discussing the defendant’s antecedents, the Magistrate observed:
You have no offender history whatsoever. I am told that you are currently a year 11 school student and that you have some ambition to apply for an apprenticeship at the end of the year. No doubt your driver’s licence may be important in applying for any apprenticeship. I am further told that you successfully applied for your learners permit in February of this year when you turned 16 and that you have completed approximately 90 days of supervised driving. I am told that only your parents supervise your current driving. I am further told, and I accept, that you have a very sensible approach to your driving and that ‘you have learnt a valuable lesson’ in relation to this matter. I also accept that you are very sorry for what occurred.
In addition to these matters, it is to be observed that the defendant lives at home and is supported by his parents. He attended the hearing of the appeal with his parents. It is evident that they fully support the defendant and it is to be expected that such support will assist in the defendant’s rehabilitation.
The Magistrate, in declining to proceed without recording convictions, remarked:
I also give consideration as to whether a conviction should be recorded. It is well established case law that in respect of social and regulatory offences, the discretion not to record a conviction, pursuant to Section 16 of the Sentencing Act, should be used sparingly. There is no reason in this case to depart from that principle and again I bear in mind the objects in Section 3 in reaching that conclusion. For all those reasons you are convicted.
These observations suggest that the Magistrate saw no difference between the approach to be taken to the adult offender and the youth offender with regard to what she described as “social and regulatory offences”.
The option of proceeding without conviction may be invoked when sentencing young offenders, particularly first offenders. It enables the court to impress upon a young person the seriousness of their actions without exposing them to the long term consequences of a conviction.
In my view, although the offences can be characterised as regulatory, they do remain as significant matters to a young person. They may have an impact on employment. One of the purposes of the Young Offenders Act is to recognise that criminal behaviour may follow from immaturity. It is also recognised that the young offender may well present as a good candidate for rehabilitation. Successful rehabilitation constitutes a community protection. On this topic, King CJ in Yardley v Betts commented:[4]
The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced.
Further, in Vartzokas v Zanker, King CJ observed:[5]
Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person.
[4] Yardley v Betts (1979) 22 SASR 108, 112.
[5] Vartzokas v Zanker (1989) 51 SASR 277, 279.
I consider that the defendant’s rehabilitation will be better assisted without proceeding by conviction by the consideration and undertakings that will enable his rehabilitation. The latter can be best achieved through diversion to a family conference. The defendant is a first offender. A sentence imposed through diversion to a family conference that involves undertakings not to drive for a stipulated time and to commit to a number of hours of community service would assist the defendant in avoiding offending in the future. To use the words of King CJ, I am satisfied that the defendant has presented as a good subject for rehabilitative measures in that he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. I consider that the Magistrate erred in the exercise of her discretion by failing to recognise or give weight to these considerations.
On the hearing of the appeal, both counsel accepted that in the event that the appeal were to be allowed, I should make an order pursuant to section 17 diverting the proceeding to a family conference rather than remitting the matter for reconsideration.
I have reached the conclusion that it is appropriate to allow the appeal, set aside the convictions and make a diversion order pursuant section 17. In reaching this conclusion, it is relevant to record that the defendant, through his counsel, indicated that he would approach the family conference offering an undertaking not to drive for such period, if any, that is determined to be appropriate at the family conference and further, that he would offer to undertake to perform community service for such period as may be determined to be appropriate at such an establishment as the Hamstead Rehabilitation Centre, where he would be able to assist those suffering serious injuries from motor vehicle accidents.
I consider that the defendant’s preparedness to offer these undertakings is a clear indication of his contrition and remorse and that his rehabilitation is well advanced. Whether the family conference requires undertakings and, if so, on what terms, is a matter for that conference.
Conclusion
This appeal is allowed. The convictions recorded by the Magistrate are set aside. The further orders of the Magistrate are set aside. Pursuant to section 17(2) of the Young Offenders Act, I refer the subject matter of the charges to be dealt with by a family conference. In so doing I note that the defendant’s guilt has been established by his pleas of guilty in relation to both counts. The proceeding is remitted to the Youth Court to enable the family conference to take place.