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…

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 347
Decision Date: 13 September 2005

CaseChat Overview and Summary

The appeal in H, RJ v Police concerned the sentencing of a juvenile offender, RJ, who had pleaded guilty to multiple offences including unlawful interference with a motor vehicle, theft of keys, and breach of an obligation imposed by the Youth Court. The case was heard in the Supreme Court of South Australia where the appellant challenged the sentence imposed by the Magistrate in the Youth Court. RJ, who was 13 years old at the time of sentencing, was given a sentence of six weeks detention, which was then suspended in favour of an obligation. The sentencing remarks were not recorded, and RJ appealed against the sentence.

The legal issues before the court included whether the Magistrate was bound to impose detention for a subsequent offence under section 86A of the Criminal Law Consolidation Act, whether detention was appropriate in light of section 23 of the Young Offenders Act 1993, and whether there was an inconsistency between section 86A of the Criminal Law Consolidation Act and section 23 of the Young Offenders Act. The court also considered the sentencing principles relevant to youth offenders under section 3A of the Criminal Law (Sentencing) Act 1988 and whether the Magistrate had the power to reduce the penalty to nil under section 17 of the Criminal Law (Sentencing) Act.

The court found that the sentencing remarks were inadequate to understand the basis of the sentence and that the imposition of detention was not mandatory. It was also noted that the sentencing principles for youth offenders emphasised rehabilitation and reintegration rather than punitive measures. Given that RJ had already been subject to obligations with community service, the court concluded that a further obligation for a short period was appropriate. The court allowed the appeal, set aside the sentence of the Magistrate, and re-sentenced RJ by recording convictions, imposing an obligation, and disqualifying him from holding a driver’s licence for a period of 12 months.

The final orders of the court were to convict RJ of the specified offences, impose an obligation for a period of six months, disqualify him from holding or obtaining a driver’s licence for 12 months, and require him to pay the Victims of Crime Levy. This decision underscored the court's focus on rehabilitation and the appropriate use of sentencing options for juvenile offenders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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