H, T v Police

[2005] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

H, T v POLICE

Judgment of The Honourable Justice Sulan

14 April 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

The appellant pleaded guilty to assaulting her three year old son, contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA) – the appellant was assessed for eligibility to participate in the Magistrates Court Diversion Program – the appellant was not eligible for participation as provided in the guidelines for acceptance, due to the nature of the offending – whether a magistrate is bound by administrative guidelines when making a decision as to whether a person is eligible for the Magistrates Court Diversion Program – whether the magistrate failed to exercise his discretion in refusing to admit the appellant into the program - whether the magistrate failed to consider penalties other than a custodial sentence – appeal allowed and sentence set aside.

Criminal Law Consolidation Act 1935 (SA) s 39(1); Criminal Law (Sentencing) Act 1988 (SA) s 11, referred to.
R v McMillan (2002) 81 SASR 540; The Queen v Weaver (1973) 6 SASR 265; Vartzokas v Zanker (1988-89) 51 SASR 277, considered.

H, T v POLICE
[2005] SASC 143

Magistrates Appeal

1. SULAN J: This is an appeal against a sentence imposed in the Magistrates Court on 25 November 2004. The appellant pleaded guilty to assaulting her son, contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA). On 12 April 2004, I allowed the appeal and I now publish my reasons.

   Introduction

2. The appeal deals with the eligibility criteria for the Magistrates Court Diversion Program (“the Diversion Program”).  It raises the question as to whether a magistrate is bound by administrative guidelines when making a decision about a defendant’s eligibility for the Diversion Program.  It also raises the question of whether the magistrate failed to consider penalties other than a custodial penalty.

   Background to the appeal

3. The victim is the three-year-old son of the appellant.  On 7 April 2004 the appellant was residing with her son at Hackham West.  Whilst the appellant was outside, her son was alone inside the premises.  He soiled himself and spread faeces over the toilet and bathroom walls.  When the appellant discovered what her son had done, she lost her temper and hit him several times about the head and body.  About one hour later, she noticed bruising.  The appellant was very upset and remorseful.  She took the child to her parents’ house the following day.  The appellant’s parents took the child to the Flinders Medical Centre on 10 April 2004.  An examination revealed that the child had sustained extensive bruising to his right cheek, temple, right ear, right upper arm, right thigh, lower back, right upper shoulder and left thigh.

4. On 25 April 2004, the appellant was interviewed by police and admitted assaulting her son.  The appellant had sought counselling in relation to her behaviour.  It was not disputed that she had taken a number of steps towards ensuring that there would not be repetition of her conduct.  She had demonstrated genuine contrition.

5. After a plea of guilty to the charge was intimated, the appellant made an application to be assessed for eligibility to participate in the Diversion Program.  The application was made on the basis that the offending was related to a lack of support in the appellant’s life, which could be addressed with participation in the program.  It was submitted that the intervention of the support services would be beneficial not only to the appellant, but also to her son. 

6. On 27 September 2004, the appellant was assessed by a clinical advisor.  The clinical advisor concluded that she was not eligible for participation in the program, due to the nature of offending.  Her report stated:

   With regard to mental health, Ms H reported that her circumstances had stabilised somewhat in recent months.  From her reports, it would appear that she had initiated contact with various professional supports since the time of the current alleged offence.  She reportedly received professional support from Noarlunga Health Services, and was evidently living in supported accommodation at Coolock House (Young Women’s and Children’s Support Services) where she evidently received assistance with parenting and life skills.

   However, the nature of Ms H’s current alleged offence deemed her inappropriate for the Diversion Program.  Specifically, the victim of her alleged Common Assault On Member Of Own Family was evidently her 3-year-old son.  At present, the Diversion Program does not accept clients charged with offences against children.

7. The appellant’s solicitors contacted the Acting Senior Clinical Advisor of the Diversion Program who informed her that the appellant could not be accepted into the program because there could be no exceptions to the “Guidelines for Acceptance”, which stipulate exclusion from the program for offences which include “Child abuse where there has been injury to a child under the age of 16 years”.  The appellant’s solicitors suggested that the appellant was an ideal candidate for admission to the program, as she had sought assistance in regard to her offending.  The child was in the appellant’s care, and a period of supervision under the program was a desirable outcome.  The Acting Senior Clinical Advisor was sympathetic to the appellant’s situation, but made it clear that there could be no exceptions to the “Guidelines for Acceptance”. 

8. On 8 October 2004, the appellant appeared before the Magistrate’s Court Diversion Court.  Her application for participation in the Diversion Program was formally rejected on the basis of the “Guidelines for Acceptance Policy”.  The endorsement on the file states, “Defendant not accepted onto Mental Health Diversion Program”.

9. Counsel for both the appellant and respondent agree that the magistrate relied upon the report of the Clinical Advisor Magistrates Court Diversion Program that the Diversion Program does not accept persons charged with offences against children. 

10. The appellant entered a plea of guilty to the charge. Following the plea, the magistrate ordered a social background report.  The report confirmed that the appellant was genuinely remorseful, and that she had undertaken counselling to assist her to cope in the future.  She had an insight into her conduct, and was taking steps to ensure it would not occur again.  A pre-sentence report was not ordered. 

11. Counsel for the appellant submitted to the magistrate that the appellant was extremely ashamed of her behaviour, and was very apologetic to her son.  She had become very depressed when her son had been taken away from her.  She had attempted to commit suicide as a result of the depression, resulting from the removal of her son from her care.  The appellant had voluntarily participated in a counselling and parenting course and had demonstrated significant steps towards rehabilitation, including a desire to return to further study to make a better future for herself and her son.  Her son had then been returned to her care.  She had received support at Coolock House, where she was residing.  She had attended a domestic violence course.  The possibility of adjourning the sentencing, with conditions as to supervision so that the court could monitor the appellant’s progress for some months before finally sentencing the appellant (“Griffith remand”), was put to the magistrate.

12. The magistrate sentenced the appellant to imprisonment for five months, after allowing a twenty per cent reduction for the appellant’s plea of guilty.  He suspended the sentence of imprisonment upon the appellant entering into a bond to be of good behaviour for a period of three years.  A condition of the bond is that the appellant be under the supervision of a community corrections officer for a period of six months and that she obey all lawful directions given to her by the officer.  The appellant was further ordered to participate in assessment and/or treatment for any anger management or behavioural problems from which she may be regarded as suffering.

13. As to the Diversion Program, the magistrate said:

    I, on 8 October last, also removed the defendant from the Mental Health Diversion Programme because the report of 27 September 2004 from the clinical advisor to the programme indicated that the nature of the offence denied her appropriate participation rights in respect of the programme, the victim being her three year old son.

14. Alternative sentencing options, such as a Griffith remand, were not discussed in the sentencing remarks.

    Appellant’s submissions:  appropriate sentence other than imprisonment

15. Counsel for the appellant submits that the magistrate erred in failing to consider penalties other than imprisonment, pursuant to s 11 of the Criminal Law (Sentencing) Act 1988(SA) (“the Act”).  She submits that the magistrate failed to consider whether a sentence other than imprisonment should be imposed for the charge.  Counsel further complains that the magistrate failed to formally reject the alternative of a “Griffith remand”.

16. Section 11 of the Act provides that a period of imprisonment may only be imposed if in the opinion of the court:

    (i)    the defendant has shown a tendency to violence towards other persons;  or

    (ii)    the defendant is likely to commit a serious offence if allowed to go at large;  or

    …

    (iv)     any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.

17. The magistrate, in his sentencing remarks, stated that the sentence imposed must reflect the seriousness of the offending and provide the requisite deterrents.  He also referred to the defendant’s offender history, which reveals a previous offence in the Youth Court of assault occasioning actual bodily harm as being an offence of the same or similar nature.  This, the magistrate said, meant that “the court is constrained to ensure that the defendant honours her assertion that she will cause no further harm to her son, or indeed any other person”.

18. Counsel also submits that the magistrate failed to give sufficient weight to the circumstances of the offending and the personal circumstances of the appellant.  The social background report outlined the personal circumstances of the appellant.  The report referred to an attempted suicide by the appellant in 2003.  The report was in error.  The appellant attempted suicide after the offence had been committed, at a time when her child had been removed from her custody.  At that time, she was distressed at the prospect of losing custody of her child.

19. The magistrate referred to the fact that the child had been returned to the custody of the appellant.  He had regard to the appellant’s previous appearances before the courts.  She had appeared in the Youth Court on 6 September 2001, charged with assault occasioning actual bodily harm.  She was released without conviction, and a condition of her release was that she be under supervision.  In August 2002, she appeared in the Youth Court charged with offences of fighting, resisting police and offensive language.  She was required to perform community service.  The magistrate was concerned that, having regard to her previous appearances in court, her assertions that she would not offend again should be viewed with some doubt. 

20. The appeal was argued before me on 20 January 2005.  During the hearing, a question arose about the operation of the Diversion Program.  I adjourned the appeal in order to obtain further information about the operation of the Diversion Program.  Material to which I refer later in these reasons was provided on 4 March 2005.  The hearing was adjourned to 12 April 2005 to facilitate counsel for the respondent making further inquiries about the procedures which were followed by the magistrate in declining the application to admit the appellant into the program. 

21. On 12 April 2005, counsel for the respondent conceded that the magistrate had not turned his mind to whether he could exercise his discretion into accepting the appellant into the Diversion Program.  He accepted that, because the appellant did not satisfy the guidelines for acceptance to the Diversion Court, that the appellant was not a suitable candidate for the program.  Counsel agreed that, in so doing, the magistrate was in error and that the appeal should be allowed.

    The mental health diversion program

22. The Magistrates Court has developed a number of programs to provide alternative methods of dealing with offenders who may benefit from participation in those programs.  It has been recognised that the traditional method of dealing with offenders is not necessarily the most effective way of achieving successful outcomes in respect of some offenders.  The programs are in their early stages.  Nevertheless, there is anecdotal evidence which suggests that they are proving to be effective in the case of a number of offenders.

23. Each program fulfils different needs.  As to the Drug Court program, a person must have a drug problem in order to be eligible to participate.  In order to qualify for the family violence program, there must be a history of violence within the family.  There must be mental impairment issues for a person to participate in the Diversion Program

24. The programs supplement the powers of the court to impose bonds with supervision.  They have been supported by the community, and funding has been received from the government to support them.  The programs are to be encouraged, as they successfully provide alternative methods of dealing with certain types of offenders to achieve an outcome whereby the offenders may be treated in order to avoid the risk of their re-offending.  The community benefits in that, if the program is successful, it will result in a decline in the number of offenders who re-offend.

25. There are cases where it is beneficial to assess a person’s response to psychiatric or psychological treatment, and for that person to be returned to the court from time to time to monitor their progress.  Ultimately, when the court finally sentences the person, regard can be had as to how the individual has responded during the remand period.

26. The Diversion Program was established in June 1999 as a pilot project, under the judicial supervision of a magistrate.  The program aims to meet the needs of persons who appear in the Magistrates Court, who have committed summary offences and who have an impaired intellectual or mental functioning arising from mental illness, intellectual disability, a personality disorder, acquired brain damage or a neurological disorder, including dementia. 

27. In R v McMillan[1], Gray J discussed the concept of sentencing and diversion.  He said:

    The concept of diversion involves a realisation that traditional criminal sanctions are not effectively reducing the criminal activities of certain persons within the community.  The aim is to divert or channel those persons out of the court process into programs with a rehabilitative treatment focus.  This is with a view to their long-term rehabilitation and the prevention of further offending.  The conventional criminal process will usually be stayed on the condition that the person enter an appropriate, approved treatment program.  If satisfactory progress is made then the “criminal proceedings” may be discontinued or alternatively a lesser penalty may be imposed than would otherwise have been after the period of treatment has been effectively undertaken.

    The coordination of diversionary programs requires a range of expertise.  The programs are undertaken in conjunction with government agencies and non-government professionals.  Ideally all involved work together towards a common purpose – to address the specific needs of the individual and achieve a result which benefits not only them but provides protection for the community from further offending.

    Specialist “courts” and assessment panels have been developed to facilitate this restorative and rehabilitative philosophy.  Such courts are not “courts” in the traditional sense but rather the forum through which treatment services and rehabilitation programs are coordinated, implemented and individual outcomes monitored.

    Other informal diversionary processes have been developed in South Australia to deal with those charged with family violence and those who are said to have offended while suffering from mental illness.[2]

    [1] (2002) 81 SASR 540

    [2] Ibid at 553

28. Gray J referred to anecdotal evidence that the diversionary programs have been successful.

29. The Diversion Program operates by referral.  Any party with a genuine interest in a person’s welfare can institute a referral.  The final decision on whether a person is to be referred is made by a magistrate.

30. In order to be referred to the program, the court needs to be informed that the matter is not under dispute or likely to be contested.  The person seeking to be referred into the program must consent to the referral.  Once that consent is given, the person undergoes a preliminary assessment by a clinical advisor employed by the court specifically to make preliminary psychological assessments.  A preliminary report containing recommendations with regard to eligibility and mental health or disability needs is then given to the magistrate, who determines whether to adjourn any court proceedings for a period that will allow the person to enter into an assessment and treatment program.  The person’s involvement and progress through the treatment program is then reported back to the court on a regular basis.  At the final hearing, the magistrate makes a determination, taking into account the participant’s involvement in the program.  In some cases, the charges are withdrawn.  In other cases, the magistrate sentences the person. 

31. If the preliminary assessment does not indicate a current mental impairment, or the magistrate deems that the person should not be dealt with through the program, the person will be returned to the normal court process.  The preliminary assessment is conducted for the purpose of identifying whether the individual has a mental impairment, and to outline his or her treatment needs.  At the final hearing, program staff provide a written report which describes the participant’s involvement and progress throughout their time with the program.

32. The program aims to assist a person with a mental impairment by providing that person with early assessment and intervention, facilitation of treatment, and a reduction of future offending behaviour.  The program recognises that there must be an interrelationship between health and justice issues, and it facilitates bringing together the health and justice systems at an early stage to facilitate dealing with offenders who require intervention by health professionals to assist them with coping, and to assist them to avoid further contact with the criminal justice system. 

33. A steering committee was established to monitor the operation of the Diversion Program.  That committee consists of judicial officers, representatives of the Courts Administration Authority, the Police Prosecution Service, the Aboriginal Legal Rights Movement, the Attorney-General’s Department, the Department of Human Services, the Public Advocate, the Forensic Mental Health Services, the Legal Services Commission the Department of Human Services, the Department of Corrections and the Victims’ Support Service.  The steering committee’s role and function includes the exchange of information between Government and non-Government agencies, the evaluation of the program, operational policies, promotion of the program, the identification of problems with the implementation and effectiveness of the program, and ensuring the best outcomes for participants in the program.  One of the functions of the committee is to set the criteria for eligibility for entry into the program.  By consent, a policy document entitled, “Program Eligibility Criteria”, which was applicable at the time that the appellant appeared before the Court, was provided to me.  The steering committee had declared a policy to exclude offences where there has been child abuse and injury to a child under the age of sixteen years.

1. One of the issues in this appeal is a consideration of the role of the steering committee, and the binding effect of any policy recommended by that committee. 

   The status of the steering committee

2. The steering committee reports to government which has provided funding for the operations of the Diversion Program.  In August 2001, the program received recurrent funding to enable it to expand to suburban and regional Magistrates Courts in South Australia.  The committee is an administrative body which evaluates the program, determines matters of policy and prepares reports of its evaluation. 

3. The role of the committee cannot fetter a magistrate’s decision in respect of any individual who appears before the court seeking an adjournment so that they may be admitted to the Diversion Program.  The final decision as to whether to grant an adjournment and admit a person to the program rests with the magistrate. 

   The appellant’s application for referral to the program

4. The appellant was referred for assessment on 15 July 2004.  She attended for assessment on 27 September 2004, accompanied by an officer of the Young Women’s and Children’s Support Services.  The clinical advisor to the Diversion Program considered reports from professional officers of the Noarlunga Health Services.  It was reported that the appellant’s mental health appeared to have stabilised. 

5. The clinical advisor reported that the nature of the appellant’s current alleged offence deemed her inappropriate for the diversion program, as the program did not accept persons charged with offences against children and it was, therefore, recommended that the appellant not be accepted for participation in the program.  It does not appear that any other criteria in relation to the appellant was examined by the clinical advisor.  On 8 October 2004, she was formally refused admittance to the program on the basis of the “Guidelines for Acceptance” policy. 

6. At the hearing of the appeal, I requested a report to clarify the position.  The clinical advisor to the Diversion Program reported that the appellant did not meet the program eligibility guidelines and she was, therefore, rejected.  No psychological assessment was conducted, as it was considered that any such assessment would be inconsequential to the outcome of the appellant’s acceptance into the program.

7. The magistrate accepted the recommendations of the clinical advisor, and refused the appellant’s admittance into the program without considering further whether she might meet other criteria and be eligible for admittance to the program. 

8. In so doing, the magistrate erred.  The role of the magistrate is to consider all relevant factors in determining whether a person is eligible for entry into the program.  The fact that a steering committee has issued policy guidelines, including guidelines for eligibility as to entry into the program, cannot be binding upon a magistrate who must determine eligibility.  The decision of the steering committee to exclude certain types of offences from the program can only act as a guideline to a magistrate.  Each individual application must be considered on its merits. There may be cases where a person satisfies all criteria for eligibility to the program, other than the nature of the offence committed by that offender.  A magistrate may determine that, even though an offender does not meet the eligibility criteria as determined by the steering committee, nevertheless, the offender ought to be admitted to the program, given the personal circumstances of that offender when considered against the background of his or her offending. 

9. The eligibility criteria, as set by the steering committee, is but one factor to which a magistrate may have regard when considering a person’s eligibility.  There are other factors personal to the offender and relevant to the offending which must also be considered in making the decision whether or not to admit a defendant to the program.

10. The magistrate erred in not giving those factors consideration.  The factors  may include the nature of the offending, whether the applicant suffers from a mental illness, intellectual disability, personal disorder, or other brain injury or neurological disorder.  It also includes whether the applicant is a suitable person for treatment and monitoring and, if admitted to the program, whether the applicant is likely to respond.  It also includes whether, as a consequence, the applicant is less likely to offend in the future.  In so determining, the magistrate will have regard to psychological and psychiatric assessments made by the mental health experts whose task is to assist the court in the assessment of a person’s suitability to enter the Diversion Program. 

11. The magistrate did not exercise his discretion in respect of the appellant’s application.  He accepted that, because the eligibility criteria set by the steering committee had not been met, that was sufficient to disqualify the appellant from entry into the program.  The magistrate did not consider the appellant’s application beyond determining that she did not meet the eligibility criteria.  In that regard, the magistrate erred.  The appeal is allowed, and the sentence imposed by the magistrate is set aside. 

12. The question remains whether or not to remit the matter for sentence by a magistrate.   Counsel for the appellant submits that I should proceed to re‑sentence the appellant.  Counsel for the respondent did not oppose that course.

13. Almost five months has passed since the date of sentence.  The child has been returned to the appellant’s custody.  She has been residing in Housing Trust accommodation with the victim.  Throughout the past months, the appellant has continued to be supervised.  She has complied with the conditions of the bond into which she entered.

14. I am informed that the appellant proposes to undertake further study, with a view to undertaking a course in nursing.  The appellant has no previous convictions, although she has previously appeared in the Youth Court.  I conclude there were extenuating circumstances in this case.  The appellant was nineteen years of age.  She was attempting to bring up a young child with little support.   The offence was not premeditated, and occurred in circumstances which caused the appellant momentarily to lose control.  The appellant has responded to assistance that has now been offered to her by Southern Junction Support Services.  She has both financial and personal support.  Counsel for the appellant urged me to release the appellant on a bond, without conviction.  Counsel for the respondent made no submissions.

15. Although the principle of general deterrence is an important factor, the appellant’s personal circumstances and her progress towards rehabilitation have satisfied me that it is appropriate to release the appellant on a bond, pursuant to s 39 of the Criminal Law (Sentencing) Act 1988, to be of good behaviour for twelve months, and to come up for sentence if so required during the period of the bond. 

16. In deciding whether good reason exists not to record a conviction, the court will have regard to all the factors which are relevant to deciding the appropriate sentence.  When a young person appears in an adult court for the first time, rehabilitation is a prominent consideration in delivering the sentence.[3]  In Vartzokas v Zanker[4], King CJ said:

    Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen.  It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background.  It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing.  The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community.[5]

    [3] The Queen v Weaver (1973) 6 SASR 265 at 267

    [4] (1988-89) 51 SASR 277

    [5] Ibid at 279

17. In considering whether to record a conviction, I have considered the nature of the offending, as well as the personal circumstances of the appellant.  The appellant was young when her offending occurred.  She now intends to further her education and to become a nurse.  I am satisfied she cares deeply for her son, and that she is unlikely to offend in the future.  I am satisfied it will assist in her rehabilitation if a conviction is not recorded.  If the appellant does not comply with the conditions of her recognizance, then the court can record a conviction and sentence her for the offence.  I am satisfied good reason exists not to record a conviction.  The appellant has agreed to enter into the bond.

18. The order of the court is that the appeal is allowed, the sentence of the magistrate is set aside. Pursuant to s 39 of the Criminal Law (Sentencing) Act 1988, the appellant is required to enter into a bond in the sum of $50, to be of good behaviour for twelve months, to be under the supervision of a Community Officer as to her place of residence, and she is required to obey any lawful direction of the Community Officer as to any psychological or anger management treatment.