H, PWJ v Police - [2005] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
H, PWJ v POLICE
Judgment of The Honourable Justice Anderson
23 March 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PARITY - CO-OFFENDERS
Appeal against sentence - appellant was 17 years old - appellant pleaded guilty to non-aggravated serious criminal trespass, unlawful possesion and illegal interference with a motor vehicle - Magistrate ordered that the appellant serve 10 months detention, suspended on the entering into an obligation for 18 months - Magistrate declined to enter a conviction - appellant complains that the sentence was manifestly excessive, that the Magistrate failed to give proper regard to the requirements of s3 of the Young Offenders Act 1993 and that the Magistrate gave the appellant the same penalty that he had given to the adult co-offender - no indication of what discount the Magistrate allowed for the plea of guilty - the appellant had one previous relevant conviction, for which he was sentenced to six months detention, which was suspended - respondent submitted conviction should be recorded despite no cross-appeal - no conviction imposed - held: sentence of 10 months detention excessive - appeal allowed - sentence of six months detention imposed, to be suspended.
Criminal Law Consolidation Act 1935 s86A, s170(1); Summary Offences Act 1953 s41; Young Offenders Act 1993 s3, s23(4), referred to.
AJK v Police [2002] SASC 264; RJB v Police [2000] SASC 209; Heal v Police (1999) 75 SASR 331; Drohan v Police (2000) 77 SASR 340, applied.
R v Delphin (2001) 79 SASR 429; Police v Chadwick (unreported, S6548, Lander J, 13 February 1998), considered.

H, PWJ v POLICE
[2005] SASC 103
Youth Court Appeal – Criminal

ANDERSON J In this matter the appellant appeals against the order of a Magistrate made in a Youth Court at Ceduna on 11 November 2004. The Magistrate was dealing with three counts, being a non-aggravated serious criminal trespass contrary to s170(1) of the Criminal Law Consolidation Act 1935 (SA), unlawful possession of a set of keys contrary to s41 of the Summary Offences Act 1953 (SA), and illegal interference with a motor vehicle contrary to s86A of the Criminal Law Consolidation Act 1935.
The Magistrate, without conviction, ordered that the appellant serve ten months detention, which he then suspended upon the appellant entering into an obligation for a period of eighteen months, with a monetary amount of $200.
The conditions included an obligation to perform eighty hours of community service within six months from the date of the sentence.
At the hearing of this appeal, counsel for the appellant applied to amend the notice of appeal, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] SASC 103
Decision Date: 23 March 2005

CaseChat Overview and Summary

The case involved an appellant, aged 17 at the time of the offence, who appealed against their sentence. The appellant had pleaded guilty to non-aggravated serious criminal trespass, unlawful possession, and illegal interference with a motor vehicle. The Magistrate had ordered that the appellant serve 10 months detention, suspended on the condition that the appellant enter into an obligation for 18 months. However, the Magistrate declined to enter a conviction. The appellant argued that the sentence was manifestly excessive, that the Magistrate failed to give proper regard to the requirements of s3 of the Young Offenders Act 1993, and that the appellant received the same penalty as an adult co-offender. The appellant also contended that there was no indication of what discount, if any, the Magistrate allowed for the plea of guilty. The respondent submitted that a conviction should be recorded despite there being no cross-appeal, but no conviction was imposed.

The court had to determine whether the sentence of 10 months detention was excessive, whether the Magistrate had properly considered the requirements of s3 of the Young Offenders Act 1993, and whether the sentence was appropriate given the circumstances of the case. The court had to consider the principle of parity in sentencing co-offenders, particularly where one offender is a juvenile. The court also needed to examine whether the sentence appropriately reflected the discount for the plea of guilty. The appellant's previous relevant conviction, which was for six months detention, suspended, also needed to be taken into account.

The court found that the sentence of 10 months detention was excessive. The court noted that the appellant was a juvenile and had pleaded guilty, which should have resulted in a lesser sentence. The court found that the Magistrate had not given proper regard to the requirements of s3 of the Young Offenders Act 1993, which requires the court to have regard to the welfare of the young person and to promote their rehabilitation. The court also found that the sentence was inappropriate given the circumstances of the case, particularly when compared to the sentence given to the adult co-offender. The court noted that the appellant had one previous relevant conviction, which resulted in a sentence of six months detention, suspended. The court concluded that a sentence of six months detention, to be suspended, was appropriate in the circumstances. The appeal was allowed, and the sentence was reduced to six months detention, suspended.

Orders