H v Police No. Scgrg-98-488 Judgment No. S6800

H v POLICE
[1998] SASC 6800

Magistrates Appeal
Nyland J

This is an appeal against sentence. The appellant was charged on complaint that on 17 February 1998, he assaulted Dorothy H, contrary to the provisions of s39(1) of the Criminal Law Consolidation Act 1935. The appellant was aged 16 years at the time of the offence and the victim was his mother. The matter came on for hearing before a stipendiary magistrate in the Youth Court at Adelaide on 20 March 1998. At that time the appellant was represented by Ms Telfer of counsel. He pleaded guilty to the charge.
Thereafter Ms Telfer made an application pursuant to s17(2) of the Young Offenders Act 1993, to have the matter diverted from the court to a family conference. That application was rejected by the magistrate. He proceeded to record a conviction against the appellant and imposed an obligation to be of good behaviour for a period of 12 months. The conditions of the obligation were that the appellant be under the supervision of an officer of Family Community Services; to reside where directed by that officer; to participate in programs and projects as directed and to attend all appointments with his medical advisers and take all prescribed medication.
Ms Telfer also appeared as counsel on the hearing of the appeal. She did not take issue with the imposition of the obligation or any of the conditions thereof, but submitted that the learned stipendiary magistrate had erred in refusing to divert the matter to be dealt with out of court at a family group conference or by a formal police caution as provided for under s17(2) of the Young Offenders Act 1993, and had further erred by not exercising his discretion to refrain from recording a conviction.
The circumstances of the appellant’s offence are set out in the affidavit of David Westover, police prosecutor, sworn on 29 April 1998. In paragraph 3 of that affidavit, he said that although he could not now recall exactly what he said, he believed he would have said the following:
“Your Honour, the victim in this matter is Dorothy H, the mother of the defendant. She states that at about 9.10 am on Tuesday, the 17th day of February 1998, the defendant and her (she) were returning to their home address after checking to see if the defendant had been paid his unemployment benefit at his bank. The defendant’s benefits had not been deposited into his account and he was very angry about having no money.
While returning to the home address, the defendant asked to borrow money from his mother. The victim refused to lend money and the defendant started getting very angry towards the victim. The defendant lent over and grabbed the steering wheel of the vehicle the victim was driving, pulling the wheel towards him. The defendant also attempted to apply the handbrake while the victim was driving the vehicle.
Once the defendant and the victim arrived at their home address, the defendant continued to yell at the victim and her daughter, Fiona H, who was present at the home address. The defendant walked into the kitchen while the victim and her daughter remained adjacent in the family room. The defendant then picked up the stove grill top from the oven and threw it in the direction of the victim. The defendant then picked up knives from the kitchen bench and began throwing them and other cutlery in the direction of the victim and her daughter. The victim feared for her and her daughter’s safety and felt in physical danger from the defendant. The victim also feared that she was unable to control her son.
At about 9.30 am on Tuesday, the 17th February, police attended. On arrival, police spoke to the defendant. Police also spoke with the victim and the witness. The defendant was arrested for assault and conveyed to Christies Beach Police Station where he was interviewed on video in the presence of FACS worker, Marija Adriana from Noarlunga Adolescent and Family Team.
The defendant admitted to pulling the steering wheel and attempting to apply the handbrake in his mother’s vehicle while she was driving. The defendant also admitted to throwing knives in the kitchen. The defendant stated that he was not trying to hurt anyone but realised that someone could be injured by his actions. He said his actions were because he was angry and he was trying to make his mother angry.”
Mr Westover said that he thereafter informed the Court of the defendant’s offender history. He informed the Court that the defendant had no prior court appearances, but had one prior appearance in a family conference on charges of illegal use and driving unlicensed. He also said that these charges arose out of similar circumstances as the matter currently before the Court. He further advised the Court that there was a history of the defendant having behavioural problems since the age of three years.
The submissions made by Ms Telfer on behalf of the appellant are concisely set out in paragraph 5 of her affidavit, sworn on 23 April 1998 as follows:
“At that time I made the following submissions in mitigation of penalty -
(a) That no battery was alleged as constituting the assault.
(b)... That the victim of the offence was the appellant’s mother, and that the offence occurred in the family home during a period of family crisis.
(c)... That the appellant is a 16 year old boy who, at the time of the offence, was distressed by his father’s recent decision to leave the family home.
(d)... That the appellant’s father had indicated that the appellant’s behaviour in the home was among the reasons for leaving and that he now refused to contact the appellant and refused to allow the appellant to contact him.
(e)... That the appellant had longstanding behavioural problems, however the recent family crisis had led to a dramatic downturn in his behaviour.
(f)... That in relation to the offence itself the appellant had grabbed the cutlery which was drying on a sink drainer, and which included butter knives, forks and spoons. He had thrown this cutlery in the direction of his mother, not intending that it hit her, but intending to frighten her.
(g)... That there was no specific selection of knives, but that butter knives were among the items thrown towards the victim.
(h)... That in relation to the throwing of the stove top, that the appellant had not thrown it towards the victim, but had thrown it to the floor in anger.
(i)... That following the incident the appellant spent three nights in secure care at Magill Training Centre while an alternative residential placement was arranged for him.
(j)... That the appellant and his mother now have substantial assistance from agencies such s Family and Community Services to assist them to resolve their family problems and address anger within the family.
(k)... That the appellant at the time of the offence suffered from Attention Deficit Disorder or Hyperactivity and was not receiving medication for this disorder.
(l)... That since this incident the appellant has been seeing a psychiatrist for the disorder and taking dexamphetamine. That since he began taking this drug he is feeling more settled and able to control his anger.
(m). That the appellant has not been in court for any offending before, including offending outside the home.
(n)... That the appellant had previously had the benefit of one family conference on a charge of illegal use of a motor vehicle which arose from his use of his father’s car without permission.”
Part 2 of the Young Offenders Act 1993 is entitled “Minor Offences” and provides a procedure whereby such offences may be dealt with by way of police caution or family conference. A “minor offence” is defined in s4 as:
“an offence ... that should, in the opinion of the police officer in charge of the investigation of the offence, be dealt with as a minor offence because of -
(a)... the limited extent of the harm caused through the commission of the offence; and
(b)... the character and antecedents of the alleged offender; and
(c)... the improbability of the youth re-offending; and
(d)... where relevant - the attitude of the youth’s parents or guardians.”
Accordingly there is a procedure which enables a minor offence to bedealt with by other than formal court proceedings. If a charge is laid, s17(2) also enables the court to “refer the subject matter of the charge (after the youth’s guilt has been established either by admission or by the Court’s findings) to be dealt with by a police officer or by a family conference.”
A court exercising power pursuant to s17(2) would, however, still be required to find that the offence was “minor” in accordance with the provisions of s4.
The circumstances in which it would be appropriate for the magistrate to refer such an offence to a family conference were discussed by Cox J in Police v W[1] (at 412):
“Section 17 apart, a matter cannot get to a family conference unless it meets the requirements of the definition of a minor offence in s4, including the police officer’s holding the requisite opinion, and unless the offender admits the commission of the offence. The typical occasion for the use by a court of subs (2) of s17 will arise where the particular wrongdoing answers the requirements of pars (a) to (d) of the ‘minor offence’ definition but the question whether the matter should be referred to a family conference never arose at the normal stage because, say, the youth did not admit his guilt or he preferred to be dealt with by the court. Where his guilt is established either by his subsequent admission or by the court’s finding, s17 enables the court to do what it judges that the police officer in charge would probably have done in the first place had he been able to do so, namely, refer the matter to a family conference. It is true that s17 does not refer in terms to a minor offence; it could hardly do so, because it is unlikely in the nature of things that the police officer, faced with an unco-operative offender, formed and recorded the opinion that is needed to make an offence a minor offence within the meaning of s4. One would expect, however, that a court would generally confine the application of s17 to cases that answer the paragraphed requirements of the definition and also appear to be cases that may suitably be handled by a family conference. In other words, the section provides an opportunity for retrieving from the court system a case that should really never have got into it. It is not intended, in my opinion, simply to provide an additional sentencing option for a court that is hearing a charge against a youth.”
[1] (1995) 64 SASR 408
In this case, the magistrate indicated that he refused to divert the matter as the allegations were too serious to regard the offence as minor.
On the hearing of the appeal, Ms Telfer described the offence as a spur of the moment episode of rage in which the appellant had tried to frighten his mother. This had occurred against the background of having been diagnosed with, but not treated for, attention deficit disorder and hyperactivity. The offence had also occurred at a time when the family was in crisis following the departure of the appellant’s father from the family. Since the offence occurred, and subsequent to the police involvement in the matter, the appellant commenced treatment for his condition, in addition to which there had been some respite from the family crisis. Accordingly, she submitted that it was open to the magistrate to have regard to the changed circumstances of the appellant and the effect thereof on the probability of him re-offending.
Ms Telfer further submitted that the power pursuant to s17(2) should be exercised in pursuance of the object set out in s3 of the Act:
“... 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.”
The magistrate was provided with a report from the Management Assessment Panel for Behaviourally Disordered Persons dated 25 February 1998 and a report of Dr Peter Thomas, psychologist, dated 6 June 1996 which referred to the appellant’s problems. Dr Thomas indicated in his report that he had interviewed the appellant’s parents. There does not seem to be any information provided to the court as to their attitude to the possibility of the matter being dealt with outside the court system although it seems that the appellant’s mother was in court at the time of sentencing.
Ms Rugless, who appeared for the respondent on the appeal, pointed out, however, that the appellant’s mother had been the person to contact the police which indicated that she had been placed in fear and that she apparently had felt that the only course available to her was the intervention of the police. Further, there were factors in the reports which related to the appellant’s temperament and violent and aggressive behaviour which indicated that the offending could not be characterised as minor.
Ms Telfer presented a detailed and persuasive argument to support her argument that the matter should have been diverted to a family conference. If I had been the sentencing judge I may well have been persuaded to adopt that course. That is not, however, the test. This was a complex set of circumstances. Taking into account all of the relevant submissions I have finally concluded that there is no error demonstrated on the part of the magistrate reaching a conclusion that this was not a minor offence and therefore not suitable for diversion out of the court system.
It is now necessary to turn to the second ground of appeal, namely, whether the magistrate erred in not exercising his discretion to refrain from recording a conviction.
Section 16 of the Criminal Law (Sentencing) Act 1988 provides for the circumstances in which a court may impose a penalty without conviction. It permits the court to impose a penalty without recording a conviction if the court is of the opinion -
“(a)   that the defendant is unlikely to commit such an offence again; and
(b)   that, having regard to -
(i).... the character, antecedents, age or physical or mental condition of the defendant; or
(ii)    the fact that the offence was trifling; or
(iii)   any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.”
This section must be read in conjunction with s3 of the Young Offenders Act 1993 (supra). As the Chief Justice recently said in R v N & P[2] (at 3-4):
“As is well known, the Act establishes a special regime for young offenders. There is a special regime procedurally. Young offenders are dealt with usually by the Youth Court. There is a special regime substantively. The sentencing of young offenders is not dealt with in the same way as is the sentencing of adults. In particular, the Youth Court does not sentence a youth to imprisonment, but to detention in a training centre. The maximum period of detention is three years; section 23(2). ...
It is necessary to bear in mind the object of the Act. The object of the Act is to secure for young offenders the ‘... care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential:’ section 3(1).
Powers under the Act are to be exercised on that basis, and with regard to certain specific statutory policies. They include making a youth ‘aware of his or her obligations under the law and of the consequences of breach of the law’, and protection of the community against ‘violent or wrongful acts’: section 3(2). In punishing a youth for illegal conduct, the Court ordinarily has regard only to the deterrent effect on the youth in question, and not to general deterrence. The deterrent effect of the punishment on other youths may be considered if a youth is dealt with as an adult: section 3(2a).
It follows that the sentencing of a youth proceeds on principles established by the Act. These principles are not the same as those that apply to an adult. The principles established by the Act apply even if a youth is sentenced as an adult.”
[2] (Doyle CJ, 26 February 1998, S6565, unreported)
The magistrate obviously considered the offence so serious that he was minded to impose a period of detention. The appellant was aged 16 at the time of the offence. He was endeavouring to cope with particularly distressing family circumstances. His arrest following the commission of this offence appears to have brought the family problems to a head. As a result assistance was obtained from various organisations designed to address the circumstances in which the offending occurred. The appellant had received a taste of secure care as a result of having spent three nights in the Magill Training Centre awaiting an alternative placement as his mother was unable to continue to have him at home. At the time he appeared before the court he had commenced treatment for longstanding psychiatric difficulties all of which augur well for rehabilitation, support Ms Telfer’s argument that there is a real prospect that the appellant will not re-offend.
I think therefore that the magistrate, in describing the offence as serious, failed to give sufficient weight to the extenuating circumstances which provided good reason not to record a conviction. I therefore consider the appeal should be allowed to the extent that the conviction should be quashed. The obligation, will however continue to be in force.

[1998] SASC 6800

19 August 1998