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 an amendment was allowed by consent so that the appeal grounds dealt with in this appeal are as follows:
“1.That the Learned Stipendiary Magistrate erred in imposing a sentence that was manifestly excessive; and
2.That the Learned Stipendiary Magistrate erred in failing to give proper regard when fixing sentence to the requirements of Section 3 of the Young Offenders Act; and
3.That the Learned Stipendiary Magistrate erred in failing to make reference during sentencing to the requirements of Section 3 of the Young Offenders Act...”
The appellant also sought an extension of time which was not contested by the respondent. I allowed the extension.
There were three people involved in the events which took place on 29 and 30 May 2004. At the time of the offences the appellant was a juvenile, his date of birth being 28 July 1986. He was involved in the offences with an adult who was, at the time, aged 18 years and 10 months, and another juvenile approximately six months younger than the appellant.
The major complaint made by the appellant is that the Magistrate apparently dealt with him in the same way that he dealt with the adult offender. He said in his remarks on penalty delivered on 11 November 2004 at [3]:
“I am going to deal with you in the same way that I dealt with Mr Scott, for better or worse I think you all deserve the same penalty.”
Nowhere in his brief sentencing remarks did the learned Magistrate mention either the existence of the Young Offenders Act 1993 (SA), nor any of the principles relevant to sentencing a young offender, nor is it apparent from his reasons that he took these matters into account.
That then means, according to the authorities of AJK v Police [2002] SASC 264, and RJB v Police [2000] SASC 209, that an error has been made.
I set out and adopt with respect the reasons of Wicks J in AJK v Police as follows:
“46. The respondent acknowledges, and I am of the view, that the learned Magistrate's remarks on penalty do not disclose whether or not he has considered the requirements of s3 of the Act or how such requirements have been addressed. This amounts to a miscarriage of the Magistrate's sentencing discretion. The appellant should be sentenced afresh.
47. Counsel for the appellant has referred me to two cases which contemplate the principle that magistrates must make reference to how the requirements of s3 have been addressed. The first case is RJB v Police [2000] SASC 209. In this case, the youth in question was charged with a number of offences and was convicted on his plea of guilty. The magistrate ordered the appellant to serve a period of four months of detention and declined to suspend that period. In this case, at p 4 Debelle J found:
"Although the magistrate has expressly referred to the matters set out in the Young Offenders Act 1993, it is not apparent to which objectives of the Act he has had regard. I acknowledge that these are the ex tempore reasons of a busy magistrate intent upon disposing of a heavy list. However, the reference by the magistrate to the matters set out in the Young Offenders Act does not indicate to which of the matters or the objectives of that Act, as spelled out in s 3 of the Act, the magistrate has had regard ...
But those remarks do not indicate whether the magistrate has considered the policy or objectives of the Act."
48. Debelle J considered this to be a miscarriage of the Magistrate's sentencing discretion and for that reason he set aside the sentence and sentenced the appellant afresh.
49. The other case I have been referred to is KBS v Police [2001] SASC 40. In this case a 17 year old boy who was charged with various offences, including assaulting a police officer, was sentenced to a period of detention and the magistrate declined to suspend the sentence. On appeal it was submitted that the penalty imposed was manifestly excessive and, alternatively, that the sentence imposed should have been suspended. In relation to s3, at p 9 of KBS v Police Gray J stated:
"However the magistrate's remarks on penalty do not disclose an explicit consideration of the requirements of s3 of the Act. Section 3 requires the sentencing court to give effect to a number of statutory policies so far as the circumstances of the individual case allow ...
The magistrate made no express reference to these considerations."
50. I consider that in failing to indicate how the requirements of s3 of the Young Offenders Act were taken into account in the sentencing process, the learned Magistrate was in error and that there has been a miscarriage of justice. I propose to sentence the appellant afresh.”
As indicated, not only does the learned Magistrate fail to refer to the matters set out in the Young Offenders Act which are relevant, he does not refer to the Act at all.
It is clear that the Magistrate is directing his attention to items of personal deterrence which may, on the face of it, indicate that he did have regard to the fact that he could not take general deterrence into account, pursuant to s3(2a) of the Young Offenders Act, but that is by no means clear in his reasons.
It is further pointed out that in the sentencing remarks there is no indication as to what discount the Magistrate allowed for the plea of guilty. If indeed he allowed twenty or twenty-five percent discount, then the starting point for the sentence must have been somewhere in the region of twelve or thirteen months. The appellant had one relevant prior conviction for a similar offence when he was aged fifteen.
Ms Downey, for the respondent, argued that although the Young Offenders Act was not mentioned in the reasons, it was apparent that the Magistrate must have been directing his remarks to personal deterrence, and that therefore he probably did have regard to the Act.
It was submitted to me by counsel for the respondent that clearly a conviction was appropriate because the appellant had not learned from his previous experience, albeit that it was about three years prior to the existing offences.
The first count involved breaking and entering domestic premises, and as always, involved a violation of the personal security of the occupants. Offences of this type have undergone a substantial increase in penalties – see the Full Court decision in R v Delphin [2001] SASR 429 where the court said at [19]:
“This was no doubt intended by Parliament to reflect growing community concern at what are commonly called ‘home invasions’.”
The offence in this case was premeditated, and the appellant was one of three involved in a joint enterprise in which they broke into the victim’s premises, breaking windows and leaving damage behind them. Compact discs were stolen as well as a set of car keys, although the appellant was only charged with possession of the keys and not theft of any of the items.
The appellant showed no initial remorse when apprehended, when all three offenders were asleep inside the victim’s car, moreover alleging to the police that they were friends of the victim and that they had permission to be in his car. They were neither friends, nor had they the victim’s permission.
In relation to the previous offence on 15 May 2002, a conviction was recorded, and the appellant was sentenced to detention for six months, which sentence was suspended when he entered into a bond to be of good behaviour for eighteen months. This offending took place only about six months after the expiry of the bond period in relation to that earlier offence.
The learned Magistrate did not record a conviction. It is somewhat difficult to ascertain from the reasons why, in the absence of any explanation, a custodial sentence was imposed, which, as will be seen I think excessive, but at the same time a conviction was not recorded. However, there is no cross-appeal on this aspect. Ms Downey, for the respondent, invited me to record a conviction despite the absence of a cross-appeal. She relied on the decision of Lander J in Police v Chadwick (unreported, S6548, 13 February 1998). Lander J referred to Police v Cadd (1997) 69 SASR 150 generally in relation to this court’s power to supervise the exercise of sentencing powers by Magistrates. The absence of a cross-appeal has been dealt with by the Full Court in Heal v Police (1999) 75 SASR 331, and by Debelle J in Drohan v Police (2000) 77 SASR 340.
Lander J was a member of the court in Heal. I regard the decision in Heal as applied by Debelle J in Drohan as authority for the proposition that in the absence of a cross-appeal as to the inadequacy of a sentence, the sentence should not be increased. Accordingly, I would not interfere and record a conviction as I was invited to do by Ms Downey.
In my view, the learned Magistrate has erred by not referring to the provision of the Young Offenders Act nor giving any clues in his reasons as to whether, and how, he had taken account of any of the provisions of the Young Offenders Act. Having regard to the fact that in the earlier offence there was a conviction recorded with a custodial sentence of six months, it could be said that the period of ten months imposed by the Magistrate was not excessive. However, because there is no guide as to how the Magistrate took into account the guilty plea, and how he reasoned in relation to the severity of the offence, and particularly because he gave the appellant exactly the same period of detention as the adult co-offender, namely ten months, I am of the view that the ten months, in all of the circumstances, is excessive.
I think the appropriate period of detention, following a reduction for the guilty plea, would have been six months.
In all other respects, the order for community service, and the order for disqualification of the driving licence, remain.
I therefore order that, in my overall discretion, the appellant be re-sentenced, and that the appropriate period of detention is six months, suspended on the same terms and conditions.