Jackson v Police No. Scgrg-00-1032

[2000] SASC 397

JACKSON  v  POLICE
[2000] SASC 397

Magistrates Appeal (ex tempore)

1................ DUGGAN J....... The appellant is a youth who had just turned 15 years of age at the time of the offences with which he was charged.

1. He was charged before the Youth Court on a complaint alleging that on 4 October 2000 he drove a motor vehicle, without the consent of the owner; that he drove the motor vehicle whilst he was not the holder of an appropriate licence and that he drove the wrong way along a one-way street.

2. The appellant pleaded guilty to the offences. On the count of illegal use of a motor vehicle, the learned magistrate ordered detention for a period of two months.  The detention was suspended upon the appellant entering into an obligation in the sum of $100 to be of good behaviour for twelve months.  The appellant was also disqualified from holding, or obtaining a driver’s licence for a period of twelve months, the disqualification to commence forthwith. Convictions were recorded on the other counts, but without further penalty.

3. The appellant has appealed on the grounds that the sentence on the charge of illegal use was manifestly excessive and that the learned magistrate erred in recording convictions against the appellant.  The respondent has cross-appealed alleging that the learned magistrate erred in law in directing that the licence disqualification commence forthwith.

4. The appellant lives with his sister at Thevenard.  He attends the community area school and is in year 9.  In October this year he came to Adelaide for the school holidays.  Whilst out for a walk, he and his cousin came across a vehicle which they illegally used.  They were apprehended by police.  The appellant was driving the vehicle, and he admitted that he was not the holder of a driver’s licence.  At one stage while driving the vehicle he drove the wrong way along a one-way street.  There is no suggestion that there was a police chase.  It appears that the appellant was detected while he was driving along the one-way street. There was no damage to the vehicle.

5. The appellant has no previous convictions and this was his first time before the Youth Court.  The appellant had been formally cautioned on 16 August 2000 in respect of a larceny or larcenies.  His counsel submitted that no convictions should be recorded against the appellant.

6. The learned magistrate imposed the penalty referred to above and made no mention of the application for an order that no convictions be recorded. Furthermore, there was no reference in his Honour’s sentencing remarks to s 23(4) of the Young Offenders Act 1993 which provides that:

   “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.”

7. There was no suggestion of a pattern of offending by the appellant and, although I do not make light of the offending, I do not regard this incident as sufficiently grave, or of such a nature to justify a departure from the requirement in s 23(4) that a sentence of detention is not to be imposed. In other words, I think there are other ways of dealing with the offender which would be quite adequate in the circumstances of the case. (See the discussion in L v Police (Bleby J, 22 August 1998, unreported).  I should add that a sentence of detention which is suspended is nevertheless a sentence of detention for the purposes of this subsection.

8. I accept that a magistrate is not required to refer to all the sentencing considerations which are relevant to the case before the court and, in the case of an experienced judicial officer such as the learned magistrate in this case, it is often assumed that consideration has been given to various relevant matters although they are not referred to in the sentencing remarks.  Nevertheless, the considerations which would lead to a departure from the policy inherent in s 23 of the Act in this case are far from obvious.  The only indication of his Honour’s view in this respect is the comment referred to by Mr Tonkin, for the appellant, in the course of his submissions that the offending was “serious enough to warrant detention”.  In my opinion the learned magistrate paid insufficient regard to s 23 of the Act.

9. I repeat my view that this episode of offending was not of such a grave nature as to justify a departure from the stipulation in s 23 that detention is a punishment of last resort; nor was there anything in the circumstances of the case generally to justify such an approach.  I should add that no social welfare report was provided to, or ordered by, the court.

10. For these reasons I find that an error in the application of sentencing principle has occurred.  The error to which I refer is sufficient in itself to justify setting aside the sentence imposed by the learned magistrate.

11. In my view the circumstances of the case would be met by imposing an obligation in relation to count 1 in the sum of $100 requiring the appellant to be of good behaviour for a period of twelve months. I have also reached the view that this is a proper case in which to utilise the power conferred by s 16 of the Criminal Law (Sentencing) Act,1988 to order that no conviction be recorded in relation to each count. I have pointed out that the appellant had only just turned 15. He is a student who has not had any previous appearances before the Youth Court. The offence arose out of the one episode. I think it is appropriate on this one occasion to allow the appellant the benefit of an exercise of the discretion under s 16 of the Sentencing Act.  In reaching this conclusion I have not overlooked the caution administered to the appellant in August 2000.

12. As for the cross-appeal, I accept the respondent’s argument that his Honour was in error in directing that the appellant be disqualified from holding a driver’s licence for a period of twelve months from the date on which the sentence was imposed. Section 86A(3) of the Criminal Law Consolidation Act, 1935 provides that an order of this nature which is made in relation to a child who has not attained of the qualifying age for a driver’s licence cannot commence earlier than on the date on which the child attains that age.  The appropriate date is 13 September 2001.  Apparently this section was not brought to his Honour’s attention at the time of sentencing.

13. The orders of the court are:

14. The appeal by the appellant against sentence and the cross-appeal by the respondent are allowed.

15. The sentences imposed by the learned magistrate will be set aside.

16. On the first count, without recording a conviction, the appellant will be required to undertake an obligation in the sum of $100 to be of good behaviour for a period of one year from the date of appearance before the magistrate, 11 October 2000.  The appellant will be disqualified from holding, or obtaining a driver’s licence for a period of twelve months from 13 September 2001.  In relation to the first count there will be court fees of $105.50, a levy of $14.00 and prosecution costs of $10.00, a total of $129.50.

17. On counts 2 and 3 no convictions will be recorded, but there will be a levy of $14.00 on each count, making a total of $28.00.