GG v Police - [2023] SASCA 38

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
GG v POLICE
[2023] SASCA 38
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
13 April 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY
The appellant entered a plea of guilty for aggravated robbery. In respect of this offending the appellant spent 91 days in custody as well as time on home detention and electronically monitored curfew. When sentencing the respondent, the Magistrate only credited the appellant seven weeks for which he did not provide reasons. On appeal, the appellant contends that he was entitled to at least 91 days credit for time already served and by not doing so or providing sufficient reasons the Magistrate made an error.
Held per the Court, allowing the appeal:
1. The appellant was entitled to be credited for 91 days spent in custody.
2. The appellant is granted an extension of time to appeal.
3. The appellant is resentenced.
Criminal Law Consolidation Act 1935 (SA); Sentencing Act 2017 (SA); Young Offenders Act 1993 (SA); Youth Court Act 1993 (SA), referred to.
A, MC v Police (2008) 102 SASR 151; H, PWJ v Police [2005] SASC 103; House v The King (1936) 55 CLR 499; Kentwell v R (2014) 252 CLR 601; Pateras v The Queen [2021] SASCA 107; R v QTV (2003) 87 SASR 378; R v Tsonis [2018] SASCFC 86; Stock v The Queen [2021] SASCA 116, considered.

GG v POLICE
[2023] SASCA 38
THE COURT: Whilst in the company of others, the appellant robbed the victim. The appellant, a youth at the time of the offending, was sentenced in the Youth Court to one month detention, which was suspended on him agreeing to an eight-month Obligation. The appellant submits on appeal that, inter alia, the sentencing Magistrate did not appropriately account for time he had already spent in custody and the final sentence was therefore manifestly excessive.
Background

On 5 March 2021, the appellant, with three others, stopped the victim, pushed him against a wall and told him to hand over his mobile phone and bag. When the victim questioned why, a member of the group said: “Just do it or you are going to be killed, we have knives”. The group took the victim’s mobile phone and bag, which contained his laptop. The group then forced the victim into a doorway, surrounded him, and charged the victim’s phone using a portable charger. Once charged, the victim was forced to open his mobile banking application. The appellant, and one other, inserted their PayID email addresses and made two $1,000 transfers.
The group walked the victim back to his car, took photos of his driver’s licence, and returned his mobile phone and laptop. Before leaving, the group threatened the victim that he would be killed if he cancelled the transfers.
The appellant was 15 years old when he committed the offending and 16 years old when he was sentenced. He pleaded guilty to aggravated robbery contrary to s 137 of the Criminal Law Consolidation Act 1935 (SA). On 13 May 2022, the appellant was sentenced to one month detention which was suspended upon him entering an eight-month Obligation. A conviction was not recorded.
Sentence
Prior to sentencing the appellant on 13 May 2022, the Magistrate had dealt with the appellant for several other offences. One was a serious breach of bail that involved the appellant absconding to Western Australia for which he was held in custody between 16 December 2021 and 21 February 2022. At the time of sentencing for the aggravated robbery, the Magistrate stated that he made some allowance for time spent in custody. In particular, the Magistrate found some of the time spent in custody between 16 December 2021 and 21 February 2022 to be in respect of the aggravated robbery and was therefore taken into account. The Magistrate also took into account that the appellant had spent time on home detention and electronically monitored curfew.
When sentencing, the Magistrate’s starting point was four months detention. This was reduced by 30 per cent to two months and 24 days to account for the appellant’s plea of guilty. This was reduced by seven weeks to account for the time spent in custody, on home detention bail and on electronically monitored curfew, leaving one month detention. The remaining sentence of one month detention was suspended and the appellant was placed on an eight-month Obligation. The Magistrate did not explain how he arrived at the figure of seven weeks.
Grounds of Appeal
This appeal is against a judgment of a Magistrate in the Youth Court regarding a major indictable offence. Pursuant to s 22(2)(b)(ii) of the Youth Court Act 1993 (SA) the appeal is to be heard by the Court of Appeal. Permission to appeal is not required.
The Grounds of Appeal are:
1.The sentence was manifestly excessive.
2.The sentencing Magistrate erred in imposing a period of detention.
3.The sentencing Magistrate erred in not taking appropriate account of time spent in detention.
4.The sentencing Magistrate erred in not taking appropriate account of time spent on home detention bail and electronically monitored curfew bail.
The appellant requires an extension of time to appeal which the respondent does not oppose.
Legal principles
The Sentencing Act 2017 (SA) (‘the Sentencing Act’) applies when sentencing a youth.[1] By operation of s 6(3), the Sentencing Act applies to a youth in a manner informed by, and read in conjunction with, the Young Offenders Act1993 (SA) (‘Young Offenders Act’).
[1] Sentencing Act 2017 (SA) s 6.
The applicable principles on an appeal against sentence are set out in Pateras v The Queen, namely:[2]
[2]     Pateras v The Queen [2021] SASCA 107 at [15]–[17].
A challenge to a sentencing judge’s discretionary decision can only succeed if the judge:
1.     Made an error of legal principle;
2.     Made a material error of fact;
3.     Took into account some irrelevant matter;
4. Failed to take into account, or gave in gave insufficient weight to some [exceptional] relevant matter; or
5. Arrived at a result so unreasonable or unjust so as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. For an appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted to a failure to properly exercise the discretion actually entrusted to the sentencing court. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.
Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.
It is convenient to deal first with Ground 2.
Ground 2
Counsel for the appellant, Ms Johanson, submitted that the sentencing Magistrate erred in deciding that the appellant should be sentenced to detention. It was common ground that pursuant to s 23(4) of the Young Offenders Act, the sentencing Magistrate could not impose a sentence of detention unless the Magistrate was satisfied that a non-custodial sentence would be inadequate because of the gravity of the circumstances of the offending or because the offence is part of a pattern of repeated offending.[3]
[3] Young Offenders Act 1993 (SA) s 23(4)(b)(i) and (ii).
Ms Johanson submitted that the sentencing Magistrate did not articulate why he departed from the prohibition contained in s 23 nor did he refer to the objectives of the Young Offenders Act under s 3. Ms Johanson submitted that the failure to give reasons for ordering detention is a process error of that recognised in House v The King.
Mr Evans, counsel for the respondent, submitted that the Magistrate in his remarks stated:
Because of the nature of the offence and its aggravating features, with evidence of at least some sort of discussion occurring between the offenders prior to the offence being committed, it is offence that warrants a term of detention.
These remarks, he submitted, made it clear that the sentencing Magistrate, while not using the precise words of s 23(4), was addressing the relevant considerations.
In A, MC v Police, White J, with Doyle CJ agreeing, stated:[4]
…this Court should not too readily accept a submission that a judge or magistrate sitting regularly in the Youth Court has failed to take into account the relevant statutory objects and policies applicable to the sentencing of a youth. Such judges and magistrates work on a daily basis with the [Young Offenders Act] and should be taken to be well familiar with its principles.
[4] (2008) 102 SASR 151 at [36].
We accept the respondent’s submissions on this ground. We consider it is clear that the sentencing Magistrate had regard to the relevant criteria set out in s 23(4)(i) when sentencing. We would dismiss this ground of appeal.
Ground 3
Appellant’s submissions
Ms Johanson submitted that the Magistrate erred in allowing only seven weeks credit for time spent in custody, on home detention and on electronically monitored curfew; she submitted that, at least, the appellant was entitled to be credited for 91 days spent in custody. Thus, the Magistrate made a process error. It was further submitted that the Magistrate fell into error by not providing sufficient reasons to give less than full credit.
Ms Johanson submitted that the 91 days was comprised of three periods of detention served in respect of the aggravated robbery. Namely, the appellant was arrested for the aggravated robbery on 3 April 2021 and granted bail on 6 April 2021 (four days). He was returned to custody and held between 12 August 2021 and 31 August 2021 (19 days) when he was released on bail. He was then held in custody between 16 December 2021 and 21 February 2022 (68 days). Prior to being sentenced for aggravated robbery, none of this time had been credited. The Youth Court Records of Outcome relating to the other relevant sentences supported that submission.
The appellant later spent 31 days on home detention and 42 days on electronically monitored curfew. The Magistrate stated that he made some allowance for these periods of time without specifying any particular amount. Thus, Ms Johanson submitted that the Magistrate must have given less than seven weeks credit for actual time spent in custody.
Ms Johanson accepted that, when considering an appropriate sentence, making allowance for time already served is discretionary.[5] However, she submitted it is usual practice to provide full credit on a day-to-day basis.[6] In the absence of a mathematical error or immaterial rounding down, the Magistrate did not explain why he departed from the standard practice, nor, it was submitted, was there any reason to do so. To refuse the respondent full credit for time spent in custody was simply adding further punishment.[7] Providing full credit is consistent with the objectives of the Young Offenders Act.
[5]     Sentencing Act 2017 (SA) s 44.
[6]     R v Tsonis [2018] SASCFC 86.
[7]     R v Tsonis [2018] SASCFC 86 at [85].
Respondent’s submissions
Mr Evans submitted that the Magistrate had dealt with the appellant previously and was aware of his antecedents and previous sentences, including allowances, if any, for time served. Except for four days, it was submitted that the time spent in custody was in respect of the aggravated robbery and other offences. Therefore, when sentencing the appellant for the aggravated robbery and crediting him for time spent in custody, the Magistrate exercised his discretion pursuant to s 44 of the Sentencing Act. That is, with knowledge from previously dealing with the appellant, he adopted a cautious approach and made an appropriate allowance for time spent in custody in respect of the aggravated robbery.
Discussion
Apart from the sentencing Magistrate’s vague references to time in custody, the respondent was unable to point to where the Magistrate had, on previous occasions, credited the appellant for the 91 days spent in custody. While crediting for time spent in custody is framed as a discretion,[8] the practical result is that, unless there is some unusual feature in the case, it is usual practice to provide full credit on a day-to-day basis.[9]
[8] Sentencing Act 2017 (SA) s 44.
[9] R v Tsonis [2018] SASCFC 86.
The Youth Court’s Records of Outcome support the appellant’s submission that no allowance had been given for those 91 days. In those circumstances, it was incumbent on the Magistrate to explain how the allowance for time in custody had been considered and in particular how he arrived at the allowance of seven weeks. The sentencing Magistrate failed to do so.
In the absence of any other explanation, and having regard to the various Youth Court’s Records of Outcome, we accept that the appellant spent 91 days in custody in respect of the aggravated robbery and, when sentenced, was entitled to full credit for that time. Further, the appellant was entitled to an allowance for the time spent on home detention and electronically monitored curfew. This would be in addition to the 91 days spent in custody.
By not crediting the appellant for at least 91 days or providing sufficient reasons that clearly explain where and why credit has been given or withheld, the Magistrate has made an error recognised in House v The King.
The appellant is granted an extension of time to appeal and the appeal is allowed. We set aside the sentence imposed by the Youth Court on 13 May 2022 and turn to resentence the appellant.
Since we will embark on resentencing the appellant there is no need to consider Grounds 1 and 4.
Resentence
Legal principles
Where this Court identifies an error recognised in House v The King, this Court should exercise an independent sentencing discretion.[10] If a lesser sentence is appropriate having regard to the offender and offence, this Court is to impose a lesser sentence. If it is determined that the same or a greater sentence is to be imposed, this Court is not required to resentence.[11]
[10] Kentwell v R [2014] HCA 37 at [43]; (2014) 252 CLR 601 at 618.
[11] Kentwell v R [2014] HCA 37 at [43]; (2014) 252 CLR 601 at 618; Stock v The Queen [2021] SASCA 116 at [59].
Consideration
We have considered the material before the sentencing Magistrate. The sentencing Magistrate set out clearly the appellant’s personal circumstances. Mr Evans submitted that when considering the question of resentence, this Court should give considerable weight to the assessment made by the sentencing Magistrate who had been dealing with the appellant over a period of time. This is particularly so when this Court is dealing with a sentence from a specialist jurisdiction such as the Youth Court. As Prior, Bleby and Anderson JJ observed in R v QTV:[12]
What is most important is the perceived effect that the particular penalty is likely to have on the youth offender. This can only be based on judgement and experience in dealing with youth offenders. It will always be an inherently difficult task, ideally suited to the judges of the specialist Youth Court established under the Youth Court Act 1993.
[12] (2003) 87 SASR 378 at [50].
Having considered all the material that was before the sentencing Magistrate we would sentence no differently. That is, we would sentence the appellant to detention for four months. However, allowing for the discount for his plea of guilty and further allowing for time spent in custody in relation to this matter we find that he has already served this sentence. In the circumstances, we order that, taking into account time already served, there be no further penalty.
The Magistrate did not convict the appellant. There was no cross appeal on that sentence and, therefore, we cannot consider that issue.[13]
[13] H, PWJ v Police [2005] SASC 103 at [20]–[22].
Orders
1.The appellant is granted an extension of time to appeal.
2.The appeal is allowed.
3.The sentence imposed by the Youth Court on 13 May 2022 is set aside.
4.Taking into account time already spent in custody we order that without conviction there be no further penalty.