H, RJ v Police - [2005] SASC 347

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
H, RJ v POLICE
Judgment of The Honourable Justice White
13 September 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS - RELEVANT PRINCIPLES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS - SENTENCING AS CHILD OR ADULT AND IMPRISONMENT
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 - WHEN GRANTED
Appeal against sentence - appellant pleaded guilty to offences of unlawful interference with motor vehicle, theft of keys and breach of an obligation imposed by the Youth Court - appellant aged 13 years - sentenced by Magistrate in Youth Court to 6 weeks detention - sentence suspended upon imposition of an obligation - sentencing remarks not recorded - consideration of circumstances in which an appeal court may interfere with sentence - whether Magistrate bound to impose detention for subsequent offence of s 86A of Criminal Law Consolidation Act - whether detention appropriate in light of s 23 Young Offenders Act 1993 - whether inconsistency between s 86A Criminal Law Consolidation Act and s 23 Young Offenders Act - consideration of sentencing principles relevant to youth offenders under s 3A Criminal Law (Sentencing) Act 1988 - whether Magistrate has power to reduce penalty to nil under s 17 Criminal Law (Sentencing) Act - consideration of circumstances in favour of reduction to nil - appeal allowed - detention period set aside - appellant re-sentenced .
Criminal Law Consolidation Act 1935 (SA), s 86A, s 134; Youth Court Act 1993 (SA), s 14, s 22, s 26; Criminal Law (Sentencing) Act 1988 s 3A, s 9, s 15, s 17, s 39, s 58; District Court Act 1991 (SA), s 54; Magistrates Court Act 1991 (SA), s 51; Youth Court Rules r 14.02; Supreme Court Act s 131; Young Offenders Act 1993 (SA), s 3, s 23, s 26; Bail Act 1985 (SA), s 17; Children's Protection and Young Offenders Act 1979 (SA), s 71; Juvenile Courts Act 1971 (SA), s 43; Road Traffic Act 1961 (SA), s 53, referred to.
Leech v McCall (1986) 41 SASR 96; L v Police [1998] SASC 6821; (1998) 198 LSJS 481; R v QTV (2003) 87 SASR 378; R v C (1998) 72 SASR 391; Leech v Koko (1991) 51 SASR 131, applied.
Wanganeen v SA Police (SCSA, Prior J, September 1994, Jdg No s 4762, Unreported); Tame v Fingleton (1974) 8 SASR 507; Shrubsole v Rodriguez (1978) 18 SASR 233; Wood v McDonald (1988) 46 SASR 570; Cranssen v The King (1936) 55 CLR 5098; Uznanski v Searle (1981) 26 SASR 388; Goodwin v Phillips (1908) 7 CLR 1; Jones v Dodd (1999) 73 SASR 328; Gray v Police (1998) 73 SASR 58; W v SA Police (1994) 176 LSJS 319; Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Pty Ltd (1993) 176 CLR 332; Ayoub v Lombard Insurance Company (Australia) Pty Ltd (1989) 97 FLR 284; Twenty-First Maylux Pty Ltd v Mercantile Insurance (Australia) Pty Ltd [1990] VR 919, considered.

H, RJ v POLICE
[2005] SASC 347
Youth Court Appeal

WHITE J: On 7 March 2005, when the appellant was aged just over 13 years and one month, he committed three offences. On his plea of guilty in the Youth Court he was sentenced by a Magistrate to detention for a period of six weeks, but that sentence was suspended upon the imposition of an obligation to be of good behaviour for a period of six months and to comply with other conditions. An order was also made that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months commencing on the day the appellant would turn 16, namely, 23 January 2008. This appeal is against that sentence.
The Offences on 7 March 2005
On 7 March 2005 the appellant was living with his mother. In the late evening of 7 March 2005, the appellant and an 18 year old friend went to the home of his Aunt, pushed her unlocked car into the street, took the keys from the ashtray and drove the car away. Their purpose was to obtain money, cigarettes, alcohol and marijuana. After about 10 minutes, the appellant and his friend returned the car, pushing it back into the driveway. However, the appellant retained the keys. In consequence of his conduct, the appellant was charged with the offence of interfering with a motor vehicle without first obtaining the consent of the owner[1] and with the theft of the keys[2]. The appellant’s conduct constituted a breach of an obligation which had been imposed by the Youth Court on 9 February 2005.
[1] CLCA, s 86A.
[2] CLCA, s 134(1)
The offence of unlawful interference with the motor vehicle was a subsequent offence for the purposes of s 86A of the Criminal Law Consolidation Act 1935 (“CLCA”). The penalty prescribed by s 86A for a subsequent offence is imprisonment for not less than three months and not more than four years together with a mandatory period of licence disqualification of 12 months. The maximum penalty for the offence of theft is imprisonment for 10 years.[3] The maximum penalty for a breach of an obligation entered into in the Youth Court is $2,500 or detention for six months, or both.[4] However, as the appellant was being sentenced by a Magistrate in the Youth Court, the maximum period of detention which could be imposed on the appellant was two years.[5]
[3] CLCA, s 134(1).
[4] Youth Court Act 1993, s 26(4).
[5] Youth Court Act1993, s 14(3).
The appellant pleaded guilty at an early stage to each of the offences. The prosecution accepted also that he had been cooperative with the police.
Absence of Sentencing Remarks
Although the Magistrate gave some reasons for his sentence at the time of sentencing, no record of those reasons was available to this Court on the hearing of the appeal. The Magistrate reported that he has not been able to locate any record of his sentencing remarks. He is unable to say whether that was because no record was made at the time of sentencing or whether it is because the notes which were taken have subsequently been lost. The Magistrate informed this Court that he is now unable to recall precisely what he said at the time of sentence. It was submitted by Ms Duong, who initially appeared for the respondent, that I should request the Magistrate to provide a report detailing, as best as he is now able, the matters taken into account by him in sentencing and what he said during the course of sentencing. I accept that I have the power to require such a report[6]. However, given the intimation from the Magistrate that he now has difficulty in recalling what he said, I think it inappropriate to request such a report in the present case. Counsel who appeared for the appellant in the Youth Court did not make any note of the Magistrate’s sentencing remarks. It is usually prudent for counsel to make some note.
[6]Youth Court Act 1993, s 22(3)(c). See also Wanganeen v SA Police (SCSA, Prior J, 6 September 1994, Jdg No S 4762, unreported).
The statutory policy is that a sentencing court should state its reasons for imposing a sentence. Section 9 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) provides:
(1)     A court must, upon sentencing a defendant who is present in court—
(a)     state its reasons for imposing the sentence; and
(b)cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.
(2)     The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
In respect of courts other than the Youth Court, a member of the public is entitled, without the leave of the Court, to inspect or obtain a copy of the transcript of the remarks made by the Court on passing sentence.[7] Whilst the Youth Court Act 1993 does not contain any provision permitting access by the public to the sentencing remarks, r 14.02 of the Youth Court Rules entitles any party to a proceeding to request a copy of any of the court records relating to that proceeding except to the extent that provision of a copy would be contrary to any Act, Rule or order of the Court. Thus, in the ordinary course, it is to be expected that a copy of the record made of the Youth Court’s sentencing remarks will be available to a party. Such access is important in facilitating the exercise of the right of appeal granted by s 22 of the Youth Court Act.[8]
[7]Supreme Court Act 1935, s 131(1)(e); District Court Act 1991, s 54(1)(e); Magistrates Court Act 1991, s 51(1)(e).
[8]Tame v Fingleton (1974) 8 SASR 507 at 509-10, per Walters J; Shrubsole v Rodriguez (1978) 18 SASR 233 at 235-6, per Wells J; Leech v McCall (1986) 41 SASR 96 at 99, per Cox J; Wood v McDonald (1988) 46 SASR 570 at 571, per von Doussa J.
Although there is no explicit requirement that a sentencing court should itself cause a record of the court’s sentencing remarks to be made, it is ordinarily to be expected that some record will be made and kept. This is particularly so where the effect of a sentence is the imposition of a term of imprisonment or detention. The absence of any record of the sentencing remarks creates difficulties on the appeal. The reasons for that are obvious enough. The circumstances in which this Court will interfere on appeal with an exercise of the sentencing discretion are well known. It is not enough that this Court would, if sentencing itself, have imposed a different sentence or that the Court thinks the sentence is overly severe[9]. This Court interferes with a sentence imposed by a Magistrate only if satisfied that the sentencing discretion has miscarried. The exercise of a discretion miscarries if the sentencing court misapprehends the principles upon which the discretion is to be exercised, misunderstands relevant facts, fails to take into account relevant circumstances, or takes into account extraneous considerations or, alternatively, where the discretion is exercised in a manner which no reasonable court would adopt.[10] The absence of any sentencing remarks makes review on the first three bases just outlined quite difficult. An appellant has then to rely on the fourth circumstance, namely, attempting to show that the sentence was so unreasonable that it could not have been imposed by any court acting reasonably.[11] In this way, the right of appeal vested in an appellant pursuant to s 22 of the Youth Court Act 1993[12] is compromised.
[9]        Cranssen v The King (1936) 55 CLR 509 at 519-20, per Dixon, Evatt and McTiernan JJ.
[10]       Uznanski v Searle (1981) 26 SASR 388 at 389, per King CJ.
[11]       See for example Tame v Fingleton (1974) 8 SASR 507 at 510, per Walters J.
[12]       See also Magistrates Court Act 1991, s 42.
A sentence is not to be set aside merely because of the unavailability of the sentencing court’s reasons for sentence. However, as was pointed out by Cox J in Leech v McCall, experience suggests that it is more common for this Court to interfere where there is an absence of reasons.[13]
[13] (1986) 41 SASR 96 at 100.
The Appellant’s Criminal History
For one so young, the appellant has an extensive criminal history, which includes offending of a similar kind to that for which he was being sentenced by the Magistrate. His first offending occurred on 16 July 2003 when the appellant was aged 11 years and six months. He has appeared before the Youth Court on eight separate occasions. His offending includes nine separate offences of theft,[14] one offence of driving a motor vehicle without the consent of the owner,[15] four offences of failing to comply with a bail agreement[16] and three offences of failing to comply with the terms of an obligation imposed by the Youth Court, pursuant to s 26 of the Young Offenders Act 1993 (“YOA”). The appellant has been required by the Youth Court to enter into an obligation pursuant to s 26 on three previous occasions. His offender history shows that he had not complied with the terms of any of those obligations.
[14] CLCA, s 134(1).
[15] CLCA, s 86A.
[16] Bail Act 1985, s 17.
The Appellant’s Personal Circumstances
The appellant has had a particularly unsettled upbringing. A report prepared by Ms Morphett, a clinical psychologist, at the request of the Magistrate, referred to a number of difficulties and described the appellant’s childhood as “unstable and chaotic”. His family life has been dysfunctional. The appellant’s parents are separated and live in country towns some distance apart. The appellant has lived with each from time to time. None of the domestic arrangements have been satisfactory. There have been five confirmed child abuse notifications concerning the appellant since March 1993. Each notification relates to neglect and to physical and verbal abuse. In addition, there have been a number of notifications relating to drug and alcohol abuse by the appellant’s parents and by the appellant himself. It seems that in his family context, the appellant has been a frequent user of alcohol and marijuana. Such education as the appellant has had has been disrupted culminating in his expulsion from school in mid 2004. Ms Morphett reported on difficulties in the appellant’s emotional functioning, including the presence of suicidal ideation with at least one actual attempt at suicide. Psychological assessments of the appellant have revealed his cognitive functioning to be in the “well below average” range, with some skills in the “extremely low” range. His word reading and numerical operation skills were found to be equivalent to a person aged seven years and four months, and his spelling skills equivalent to a person aged six years and eight months.
It seems that attempts at therapeutic intervention in the past have been abandoned, due in part, at least, to an absence of stability and support for the appellant in his family environment.
A similar picture emerges from the pre-sentence report prepared at the Magistrate’s request.
The Appropriateness of the Sentence of Detention
Given that rather bleak history and despite the appellant’s very young age, it might have been thought that the available sentencing options, apart from imposing a period of detention, were limited and that there was little point in imposing on the appellant a further obligation. Nevertheless, s 23 of the YOA specifies that the Youth Court is not to impose a sentence of detention unless satisfied that:
“… because of the gravity or circumstances of the offence, or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.”[17]
A sentence of detention is to be treated as the sentencing option of last resort, being invoked only when the Court is satisfied that no other sentencing option is appropriate.[18] Putting to one side for the moment the question of whether the Magistrate was bound to impose at least some period of detention, it could not reasonably have been concluded, in my opinion, that a sentence of detention, albeit one which was suspended, was the only appropriate sentencing option in this case. I will state my reasons for that conclusion and then turn to consider whether, despite that conclusion, a sentence of detention was mandatory in the present circumstances.
[17] Young Offenders Act 1993, s 23(4).
[18] L v Police [1998] SASC 6821, (1998) 198 LSJS 481 at 491, per Bleby J.
The first matter of relevance is that the offending on 7 March 2005 occurred at a time of particular emotional turmoil for the appellant resulting from what was, in effect, outright rejection by each of his parents. On 4 March 2005 his father, having decided that he no longer wished to care for the appellant, sent him alone by bus to the country town where his mother lived. The mother too declined to care for him and took him, on his arrival, to the Department of Children, Youth and Family Services. As the Department had no placement immediately available, it prevailed on the mother to care for the appellant until 7 March 2005. The turmoil which those circumstances produced in the appellant was conducive to the relapse into criminal conduct which in fact occurred on 7 March 2005. The appellant’s behaviour has to be understood in the light of the dual rejection which immediately preceded it.
The second consideration is the very significant change in the appellant’s life which occurred on 11 March 2005. He was then placed with some experienced foster parents. They are well suited as foster parents for the appellant, and they, like the appellant, are also of Aboriginal background. As it happens, they also have some familial relationship with the appellant. The foster parents are prepared to care for the appellant on a long-term basis. The foster care arrangements have brought some stability and boundaries into the appellant’s life. His circumstances are now much more conducive to the kinds of therapeutic intervention recommended by Ms Morphett and others which have had to be abandoned in the past.
As at the date of the Magistrate’s sentence, the appellant had been in the foster care arrangements for only 11 weeks. That provided a short time only in which to assess the appellant’s progress but improvements in his behaviour had been observed. It remains to be seen whether the appellant will continue to respond positively to his new circumstances. Both the report of the psychologist and the pre-sentence report indicated that some problems were being experienced by the appellant in adjusting to his new circumstances, but each also reported positive developments.
Those two factors, but in particular, the change in the appellant’s circumstances in being placed into foster care on 11 March 2005 mean, in my opinion, that a period of detention could not reasonably have been regarded as the only sentencing option available to the Magistrate. The appellant’s present circumstances are now much more conducive to him complying with the terms of an obligation. His compliance with the obligations imposed on him is being supervised in a meaningful way by his foster parents. The placement of the appellant into foster care, and his response to that care so far, tends to contradict the inference which otherwise arises naturally from the appellant’s history of non-compliance with the terms of obligations imposed by the Youth Court. They suggest that providing him with one more chance to comply with the terms of an obligation rather than facing detention would further the “care, correction and guidance” necessary for the appellant’s development into a responsible and useful member of the community.[19]
[19] Young Offenders Act 1993, s 3(1).
Section 86A and the Youth Court
I turn then to the question of whether the Magistrate was bound, as a matter of law, to impose a sentence of detention (whether it be detention in a training centre or home detention).[20] As already noted, the penalty prescribed by s 86A of the CLCA for a subsequent offence is imprisonment for not less than three months and not more than four years together with a mandatory period of 12 months licence disqualification. Given that this was the appellant’s second s 86A offence, the question of whether the Magistrate was bound to impose a period of detention has to be considered.
[20] Young Offenders Act 1993, s 23(2).
Section 86A of the CLCA provides:
(1)A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
Penalty:
For a first offence—imprisonment for 2 years;
For a subsequent offence—imprisonment for not less than 3 months and not more than 4 years.
(2)Where an adult court finds a person guilty of an offence against this section, the court must (whether or not it convicts the person of the offence and in addition to any other order that it may make in relation to the person) order that the person be disqualified from holding or obtaining a driver's licence for a period of 12 months.
(3)Notwithstanding the Children's Protection and Young Offenders Act 1979 where the Children's Court finds a charge of an offence against this section proved against a child, the Court must (whether or not it convicts the child of the offence and in addition to any other order that it may make in relation to the child) order that the child be disqualified from holding or obtaining a driver's licence for a period of 12 months (commencing, in the case of a child who has not attained the qualifying age for a driver's licence, not earlier than when the child attains that age).
(4)The disqualification prescribed by subsection (2) or (3) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
(5)…
(6)…
(7)…

On one view, s 86A makes mandatory imprisonment for a minimum period of three months in all cases of a subsequent offence - whether committed by an adult or a youth. Section 86A(1) refers simply to “a person” without discriminating between adults and youths. Further, sub-s (2) and sub-s (3) make it plain that Parliament did advert to the possibility of the offence being committed by either an adult or a youth. Having adverted to that possibility, it has not differentiated between adults and youths in specifying a minimum period of imprisonment for a subsequent offence.
On the other hand, s 23 of the YOA also seems to be reasonably explicit. It provides:
(1)     Subject to subsection (6), the Court cannot sentence a youth to imprisonment.
(2)If an offence of which a youth is convicted, or found guilty, is punishable by imprisonment where committed by an adult, the Court may sentence the youth to—
(a)     detention in a training centre for a period not exceeding three years; or
(b)     home detention for a period not exceeding six months, or for periods not exceeding 6 months in aggregate over one year or less; or
(c)     detention in a training centre for a period not exceeding two years to be followed by home detention for a period not exceeding six months or for periods not exceeding 6 months in aggregate over one year or less.
(3)If, however, the maximum term of imprisonment prescribed for the offence is less than three years, the period of detention to which the youth is sentenced cannot exceed that maximum.
(4)A sentence of detention must not be imposed for an offence unless the Court is satisfied that, because of the gravity or circumstances of the offence, or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.
(5)     A sentence of home detention—
(a)     must not be imposed unless the Court is satisfied that the residence the Court proposes to specify in its order is suitable and available for the detention of the youth and that the youth will be properly maintained and cared for while detained in that place; and
(b)     should not be imposed if the Court is not satisfied that adequate resources exist for the proper monitoring of the youth while on home detention by a home detention officer.
(6)If the Court sentences a youth to detention in respect of an offence and does not suspend the sentence—
(a)     where the youth is already in custody in a prison, the youth will serve the detention, or such part of it as the Court may direct, in a prison; or
(b)     where the youth has previously served a sentence of imprisonment or detention in a prison, the Court may direct that the youth serve the detention in a prison.
(7)     The Correctional Services Act 1982 applies to and in relation to a youth serving detention in a prison under subsection (6).
Other than in circumstances which are not presently relevant, the Youth Court is expressly prohibited from sentencing a youth to imprisonment.[21] Further, when the Youth Court sentences a youth for an offence which, when committed by an adult, is punishable by imprisonment the court sentence the youth to detention in a training centre or to home detention.[22] If it was intended that in some circumstances the Youth Court should have no discretion at all about sentencing a youth to detention, it seems unlikely that s 23(2) would have been expressed, as it is, in discretionary terms. Further, s 23(4) provides expressly that a sentence of detention must not be imposed unless, having regard to specified matters, the Youth Court is “satisfied” that a sentence of a non-custodial nature would be inadequate. A statutory prescription of a mandatory minimum period of detention is not specified as one of the matters by which the Court may be satisfied that a sentence of a non-custodial nature would be inadequate. The very use of the word “satisfied” implies that the Court is to form its own judgment, in the circumstances of each case, as to whether a sentence of a non-custodial nature would be inadequate. It is inconsistent with the Court being required as a matter of law to impose a sentence of detention.
[21] Young Offenders Act s 23(1).
[22] Young Offenders Act s 23(2).
Hence, Mr Bennett’s submission was that the statutory requirement for a minimum period of imprisonment to be imposed in respect of a subsequent offence against s 86A was inapplicable in the case of sentencing by the Youth Court. There is an inconsistency between the requirements of s 86A, on the one hand, and the requirements of s 23 on the other. In Mr Bennett’s submission, it is s 23 which should prevail.
Sometimes, issues of inconsistency between provisions in statutes can be resolved by considering which of the two provisions is later in time, it being considered that the enactment of a later provision which is inconsistent with an earlier provision should be regarded as impliedly repealing the former to the extent of the inconsistency.[23] Application of that principle is not really of assistance in this case. Section 86A was incorporated into the Criminal Law Consolidation Act by the Statutes Amendment (Illegal Use of Motor Vehicles) Act 1992. Before that time it was s 44 of the Road Traffic Act 1961 which established the offence of driving, using or interfering with a vehicle without the consent of the owner. Section 44 had provided for a minimum term of three months imprisonment for a subsequent offence ever since it was first enacted in 1961. Prior to that, s 53(1) of the Road Traffic Act 1934 had, since 1941, provided for a minimum term of imprisonment for a subsequent offence of using a motor vehicle without the consent of the owner. On the other hand, the predecessors of the YOA had not permitted the Children’s Court and the Juvenile Court respectively to impose a sentence of imprisonment on persons under the age of 18 years.[24] Given the long history of the respective provisions, it is inappropriate to resolve the present issue by reference to a consideration of which was first in time.
[23] Goodwin v Phillips (1908) 7 CLR 1 at 7, per Griffiths CJ.
[24] Chilren’s Protection and Young Offenders Act 1979, s 71; Juvenile Courts Act 1971, s 43.
Sometimes issues of inconsistency are resolved by application of the principle that a provision dealing specifically with a particular topic is to prevail over a provision which deals only generally with that topic. On one view, application of that principle in the present case would favour s 23 of the YOA having precedence. It is a provision dealing specifically with the penalties which may be imposed on youths, where as s 86A is more general, applying to all offenders. What is more, s 86A is part of an Act which provides generally for criminal offences. However, on the other hand, it might be said that the statutory provisions providing for a mandatory minimum term of imprisonment are quite unusual. In that sense, s 86A is an exceptional provision, containing a specific penalty for the circumstances to which it applies.
There is a long history in this State of young offenders being subject to a different sentencing régime than adult offenders who have committed the same offence. I have already referred to the Juvenile Courts Act 1961 and to the Children’s Protection and Young Offenders Act 1979. That policy is continued in the YOA. It is evident in the statutory object stated in s 3(1):
… 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
It is also evident in s 3(2A)(a) of that Act which provides that in imposing sanctions on a youth for illegal conduct “regard should be had to the deterrent effect any proposed sanction may have on the youth” rather than deterrence more generally.[25] The existence of a different sentencing régime for youths is also confirmed by s 3A of the Criminal Law (Sentencing) Act 1988, sub-ss (1) and (2) which provides:
(1)Subject to any provision of this Act to the contrary, this Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth.
(2)However, in the event of conflict between a provision of this Act and a provision of the Young Offenders Act 1993 or the Youth Court Act 1993, the latter provision prevails to the extent of that conflict.
[25] R v C (1998) 72 SASR 391 at 396; R v QTV (2003) 87 SASR 378 at 388, 389.
Many of the differences between the régime for sentencing of youths on the one hand, and adults on the other, were discussed by the Full Court in R v QTV[26] and by Bleby J in L v Police.[27] It is unnecessary to repeat what was said in those decisions.
[26] (2003) 87 SASR 378 at 387-90.
[27] (1998) 198 LSJS 481.
Having adopted a policy of a different sentencing régime for young offenders, it is reasonable to suppose that the Parliament would have indicated by clear words if that different régime was to give way to a statutory prescription of a minimum penalty applicable to both adult and youth offenders. No such clear words are evident. On the contrary, although Parliament has directed that the mandatory period of disqualification is applicable to both adults and youths, it has not directed, as it could have, that the mandatory period of imprisonment (or detention) is applicable to both adults and children. Further, by s 23(2) it has provided explicitly that it is not mandatory for the Youth Court to impose a sentence of detention for an offence which, when committed by an adult, is punishable by imprisonment.
That conclusion is reinforced by two further considerations. The Second Reading Speech relating to the Statutes Amendment (Illegal Use of Motor Vehicles) Act 1992 indicates that it was intended, when the Bill was first introduced into the House of Assembly, to amend also the Children’s Protection and Young Offenders Act 1979 so as to require a youth charged with a subsequent offence against s 86A to be tried and sentenced in an appropriate adult court. That proposed amendment was not enacted into law. It is to be inferred, therefore, that Parliament intended that offences contrary to s 86A, including subsequent offences, when committed by a youth, should ordinarily continue to be dealt with in the Youth Court, and subject to the sentencing régime applicable in that Court. The second consideration is that a statutory intention that there should be mandatory detention of children is not readily to be supposed. Such a policy would appear inconsistent with several of the covenants in the United Nations Convention of the Rights of the Child, to which Australia is a signatory.[28] Where there is ambiguity, it is appropriate to have regard to the obligations which Australia has accepted under International Law as an aid to construction.[29]
[28]See in this respect the Report dated 23 December 2001 by the Aboriginal and Torres Strait Island Social Justice Commissioner on behalf of the Human Rights and Equal Opportunity Commission to the Attorney-General (Cth).
[29] Jones v Dodd (1999) 73 SASR 328.
In short, my opinion is that the Youth Court was not bound by s 86A(1) to impose detention in this case.
Section 17 of the Criminal Law (Sentencing) Act 1988
In case I am wrong about that, I turn to consider Mr Bennett’s alternative submission. Mr Bennett submitted that if the minimum period of mandatory imprisonment fixed by s 86A was applicable in this case, then it was open to the Magistrate in the Youth Court to reduce that sentence, and, what is more, to reduce the penalty to nil so as, in effect, to extinguish the mandatory penalty.
Section 17 of the Criminal Law (Sentencing) Act1988 permits a sentencing court in some circumstances, to reduce a penalty below a prescribed minimum. Section 17 provides as follows:
Where a special Act fixes a minimum penalty in respect of an offence and the court, having regard to—
(a)     the character, antecedents, age or physical or mental condition of the defendant; or
(b)     the fact that the offence was trifling; or
(c)     any other extenuating circumstances,
is of the opinion that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty.
The power contained in s 17 may be exercised by the Youth Court[30] and may be invoked in respect of the minimum period of imprisonment fixed by s 86A.[31]
[30] Criminal Law (Sentencing) Act 1988, s 3A.
[31] Gray v Police (1998) 73 SASR 58.
The respondent joined with Mr Bennett in submitting that the power in s 17 could be exercised in an appropriate case so as, in effect, to extinguish a prescribed minimum penalty.
The question of whether a statutory power to reduce a penalty or liability can be used to reduce that penalty or liability to nil can give rise to difficult questions of construction.[32] However, in the present case I am satisfied that the submission of the parties as to the nature of the power bestowed by s 17 is correct. A number of considerations indicate that that is so. The word “reduce” is capable of a variety of meanings. It includes the action of bringing down to a lesser size or extent than the original. I see no reason to suppose that the lesser extent may not be a nil amount.
[32]See, for example, some of the decisions in relation to the Insurance Contracts Act 1984 (Cth): Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Pty Ltd (1993) 176 CLR 332; Ayoub v Lombard Insurance Company (Australia) Pty Ltd (1989) 97 FLR 284 at 297-8; Twenty-First Maylux Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd [1990] VR 919 at 927-8.
The second consideration is that a circumstance in which a court may reduce a minimum penalty is the fact that the offence involved was trifling. In such circumstances, it is often appropriate for no penalty at all to be imposed. Section 15 of the Criminal Law (Sentencing) Act provides that where a sentencing court considers an offence so trifling that it is inappropriate to impose any penalty it may dismiss the charge without recording a conviction, or alternatively, upon recording a conviction, discharge the defendant without penalty. Section 15(2) provides specifically that either of those powers may be exercised despite any minimum penalty fixed by a special Act. That, in my opinion, supports the view that the power to reduce a penalty includes a power to reduce it to nil.
A power to reduce a sentence also appears in s 58(4)(a) of the Criminal Law (Sentencing) Act. That provides that where a court revokes the suspension of a sentence of imprisonment, the court may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence. Section 58(4)(a) was considered by Prior J in Leech v Koko.[33] It was submitted in that case that the power in s 58(4)(a) could not be used to reduce the sentence of imprisonment which had previously been suspended to nil. In respect of that submission Prior J said:
The submissions put by the appellant are persuasive but I am not convinced that the power in (4)(a) of s 58 should be confined in the way advocated for.[34]
In the circumstances of that case, Prior J was not satisfied that it was appropriate, on the merits, to reduce the sentence to nil and so did not have to determine the matter finally, but the passage quoted supports the position for which the parties to this appeal contended.
[33] (1991) 51 SASR 131.
[34] Ibid at 134.
Finally, I was informed that it is commonplace in the Youth Court for s 17 to be invoked to reduce a prescribed minimum penalty to nil. The circumstances considered by Olsson J in W v SA Police[35] provide one example.
[35] (1994) 176 LSJS 319.
Accordingly, I am satisfied that it was open to the Magistrate in the present circumstances, even if bound to impose the minimum period of detention specified by s 86A(1), to reduce that penalty and further, to reduce it to nil. For reasons already given, it is not clear whether the Magistrate did regard himself as bound to impose at least some sentence of detention. If he did, then he was in error. In the alternative, if the Magistrate was bound to impose a period of detention, then, having regard to the appellant’s age, the circumstances in which the offences were committed and the appellant’s circumstances, it would have been appropriate for the Magistrate to exercise the power in s 17 of the Sentencing Act, so as to reduce the minimum penalty prescribed in s 86A to nil.
It is appropriate, therefore, for me to re-sentence the appellant.
I take into account that the victim’s car was returned quite quickly and without damage. Although the appellant did not return the keys at that time, he did, when spoken to, take the police to their location quite readily.
I was informed that since being sentenced in the Youth Court, the appellant has recommenced schooling. He is now at school four days a week. On the fifth day he attends a course run by the Metropolitan Aboriginal Youth Team. That Team is an agency funded under the auspices of the Department of Communities and Families. In effect, the appellant is now attending full-time schooling.
In addition to the support of his foster parents, the appellant has the support of a mentor who, again, is supported through the auspices of the Department of Communities and Families. The foster parents report real progress in the appellant’s development. Obviously there are difficulties for the appellant in adapting to his new circumstances but it was not disputed by the respondent that the appellant’s “care, correction and guidance” is now being promoted in a sensible fashion.
The appellant is still subject to the obligations imposed by the Youth Court on 9 June 2004 and 9 February 2005 respectively. On 9 June 2004 an obligation for a period of 18 months was imposed on the appellant requiring him to be of good behaviour for the duration of the obligation and to be under the supervision of a Family and Youth Services worker and to obey all of the directions as to counselling and/or treatment that the Family and Youth Services worker might deem appropriate. Finally, the appellant was also required to carry out 60 hours of community service work. The obligation imposed on 9 February 2005 was for a period of 18 months and was in similar terms. It required the performance of 80 hours of community service. I am informed that the appellant is regarded as having completed satisfactorily all of the community service required of him. As the obligations imposed on 9 June 2004 and 9 February 2005 were each for a period of 18 months, they extended for a longer period than the obligation of six months imposed by the Magistrate on 27 May 2005. In a practical sense, the obligation imposed by the Magistrate did not add to the requirements imposed on the appellant under the existing obligations. That being so, I consider that an imposition of a further obligation for a relatively short period only would be appropriate in the circumstances of this case. The existing obligations will enable the appellant’s conduct to continue to be supervised. Accordingly, in my opinion, the appellant can be sentenced pursuant to s 39 of the Criminal Law (Sentencing) Act appropriately by the recording of convictions, and by the imposition of an obligation in the terms appearing below, and by the imposition of the mandatory period of licence disqualification.
Conclusion
For the reasons which I have given above, this appeal is allowed. The sentence of the Magistrate is set aside. In its place, I make the following orders:
1. The appellant is convicted of the offence of interfering with a motor vehicle without first obtaining the consent of the owner, contrary to s 86A of the Criminal Law Consolidation Act, of the offence of theft committed on 7 March 2005, contrary to s 134(1) of the Criminal Law Consolidation Act and of the offence of failing to comply with an obligation imposed by the Youth Court, contrary to s 26(4) of the Young Offenders Act.
2.     I impose an obligation on the appellant, the terms of which are:
(a)he is to be of good behaviour for a period of six months;
(b)he is to be under the supervision of an officer of the Department for Families and Communities, Children, Youth and Family Services or other person nominated by the Chief Executive of that Department and is to obey the directions, including directions for participation in projects or programs, of that officer or person;
(c)he is to report to the Department for Families and Communities, Children, Youth and Family Services at its Woodville office initially by telephone on or before 4.00 pm on 16 September 2005.
3.     The appellant is disqualified from holding or obtaining a driver’s licence for a period of 12 months commencing at 12.01 am on 23 January 2008.
4.     The appellant is to pay the Victims of Crime Levy of $60.