H.N.B v Police No. Scgrg-00-909

[2000] SASC 394

H.N.B. V POLICE

[2000] SASC 394

Magistrates Appeal (Ex Tempore)

1................ LANDER J....... The appellant B was charged that on 28 April 2000 he entered a non-residential building of the Allendale East Area School as a trespasser with the intention of committing an offence, namely larceny of 15 computers, two computer printers, three video cassette recorders, one stereo unit, one video camera, one television, a quantity of computer software, one piece of carpet and one cardboard box of the value of $23,331 the property of the Allendale East Area School.

1. The appellant came before a Magistrate at Mt Gambier, sitting in the Youth Court, and pleaded guilty. He was sentenced to a period of 15 months detention, which was suspended on him entering into an obligation for a period of two years in the amount of $100 to be of good behaviour, and to perform 320 hours of community service within 12 months of the sentence, being 11 August 2000. He was further ordered to pay compensation in the sum of $2000 and court fees.

2. He has appealed against the sentence on the following grounds:

   “1..... The penalty imposed by the learned Stipendiary Magistrate was manifestly excessive in all the circumstances.

   2.     The length of detention imposed and the number of community service hours imposed were manifestly excessive in all the circumstances.

   3...... The learned Stipendiary Magistrate gave too much weight to the defendant’s lack of cooperation with the police.

   4.     The learned Stipendiary Magistrate erred in principle by increasing the sentence that he would otherwise have imposed on the basis that the defendant failed to cooperate with the police.

   5...... Such other or further grounds as may be recommended by counsel prior to the hearing of the matter.”

3. The first two grounds are, in truth, the same ground; the third and fourth grounds are also the same ground differently expressed; and the fifth ground is no ground at all.

4. The appellant committed this offence in company with others who are thought to be adults. The appellant refused to disclose the identities of his co-offenders.

5. Only about $2,000 worth of stolen goods have been recovered. There is no prospect of recovery of the remaining goods in circumstances where the appellant refuses to disclose the identity of his co-offenders.

6. The appellant is 17 years of age; he was born on 2 February 1983.  He has had only limited involvement with criminal law, having been apprehended for fighting in public. That matter was dealt with by reference to a family conference. The appellant lives with his parents who are both employed who both continue to support him.

7. Since the commission of this offence, the appellant has been on bail which included a curfew term. He has been required for some months to obtain his parents’ permission before he can be absent from home after 8:00 pm  The Magistrate was told that that condition has been rigorously enforced by his parents.

8. The appellant left school at the age of 15 years. He has been in employment most of the time since leaving school, either in his grandfather’s timber mill or stacking timber in the forest for his father. When he appeared before the Court he was not then working, but the likelihood was that he would be re-employed by his father once his sentence had become known.

9. The appellant asked the Magistrate to have regard to his plea of guilty and his personal remorse and the unlikelihood that he would re-offend, which was evidenced by his desire to cease associating with his co-offenders. His counsel, who appeared for him on the second occasion, submitted that the appellant’s unwillingness to name his co-offenders did not detract from his personal remorse for his own actions.

10. It was put to the learned Magistrate that the appellant’s financial circumstances did not allow him to pay compensation in the amount sought, namely $21,000. It was, however, put to the Magistrate that the appellant should pay some compensation, taking into account, in fixing that amount, that he was currently not working but likely to obtain work soon. In the end result, as the grounds of appeal show, there is now no complaint about the compensation which was awarded.

11. Mr Apps, who appeared for the appellant on this appeal, referred to the compensation which was awarded as part of the total sentencing imposed. He did not complain about the amount awarded, but said regard had to be had to that obligation in determining whether the sentence of detention itself was manifestly excessive.

12. The fourth ground of appeal suggests that the Magistrate increased this sentence because of the appellant’s failure to disclose the identity of his co-offenders. I do not believe the Magistrate’s sentencing remarks support that criticism. Clearly enough, the Magistrate took into account the appellant’s failure to disclose his co-offenders’ identities and concluded that the appellant had thereby been uncooperative with the investigating officers. That conclusion, in my opinion, was inevitable on the evidence presented to the Magistrate. The Magistrate was entitled to find that the appellant had been uncooperative with the investigating officers. By the same token, it was appropriate to have regard to the appellant’s plea of guilty as indicating some, albeit a limited, degree of contrition and remorse.

13. Ms Barnett, who appeared for the respondent on this appeal, suggested that little regard could be had to the plea because of the overwhelming case which faced the appellant. She pointed to the evidence which would have led, in her submission, inevitably to a conviction. In those circumstances, she said not too much regard should be had to his plea.

14. I agree with that submission. I think the case which the respondent could mount against the appellant was such that inevitably he would have been convicted. His plea, therefore, has to be understood in that light. That is not to say that it cannot be used as some evidence of contrition and remorse but not too much regard can be had to it, especially in circumstances where he did refuse to disclose the identity of his co-offenders. However, without knowing why it was that the appellant refused to disclose the identity of his co-offenders, it would not have been appropriate to have any further regard to those matters than has been identified. Indeed, in my opinion, I do not believe the Magistrate did.

15. In my opinion, as Ms Barnett has submitted, the learned Magistrate did not err in the principles which he invoked in the sentencing process. The real question, I think, on this appeal is whether or not the sentence for a youth aged 17 was manifestly excessive.

16. I think that the offending called for a sentence of detention which should have been suspended as, in fact, it was.

17. Where I do differ from the Magistrate is the period of detention which was imposed. I believe that for a first offender, which this appellant was, as near as may be, a sentence of detention, for what really was a break and enter, of 15 months was too high. In my opinion, having regard to the powers available for sentencing youths, and in particular that the maximum sentence which can be imposed upon a youth is that of three years detention, I think a sentence of detention of nine months would have been appropriate.

18. I also think, in the circumstances of the case, the period of community service which was ordered was too high. In my view, it would have been appropriate to call upon the appellant to perform 240 hours of community service over the same period of time. That would require him to serve about 20 hours per month.

19. I would, therefore, allow the appeal and set aside the sentence imposed by the learned Magistrate and, in lieu thereof, sentence the appellant to nine months detention, suspended on him entering into an obligation in the same amount and for the same period as the Magistrate required, subject to the conditions that he be of good behaviour and perform 240 hours of community service over a period of one year. I would confirm the order for payment of compensation in the sum of $2,000.

20. There will be an order accordingly.