JM v Police No. Scciv-02-1443

JM v POLICE
[2002] SASC 402
Magistrates Appeal (Criminal)

BLEBY J: (Ex tempore) This is an appeal against a sentence imposed by a Magistrate sitting in the Youth Court at Port Adelaide. The appellant was charged with the following offences:
(1) Driving an unregistered motor vehicle, contrary to s 9 of the Motor Vehicles Act 1959;
(2) Driving an uninsured motor vehicle contrary to s 102 of the Motor Vehicles Act 1959;
(3) Driving without a licence contrary to s 74 of the Motor Vehicles Act 1959; and
(4) Being the driver of a vehicle involved in a motor vehicle accident, failing to provide his particulars to any other driver involved in the accident, contrary to Rule 287 of the Australian Road Rules.
The appellant pleaded guilty to all the offences. In respects of counts 1, 2 and 4, the Magistrate imposed a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. The appellant was ordered to enter into a $100 obligation to be of good behaviour for 18 months. The obligation contained a number of conditions, to some of which I will refer in a moment.
The appellant was disqualified from holding or obtaining a driver’s licence for a period of six months, commencing on 10 October 2002. There was no penalty imposed in relation to the third count, that is driving without a licence, in respect of which a conviction was nevertheless recorded. Convictions were also recorded on counts 1, 2 and 4.
The grounds of appeal are that the sentence is unreasonable, given the personal circumstances of the appellant. The appellant also submits that the matter should have been dealt with by way of family conference rather than being dealt with in the Youth Court.
The appellant was not represented by counsel either in the Youth Court or before me. In this Court the appellant’s father sought leave to represent him, as he had also assisted the appellant in the Youth Court. Representation of a party by a non-legal practitioner is not a right and is not always desirable, however I am satisfied that the Court has a discretion in certain limited circumstances to allow such a representation to occur: Galladin Pty Ltd v Aimnorth Pty Ltd (1992) 60 SASR 145 and McGregor-Day v South Australian College of Advanced Education and Bell (unreported) 10 October 1994, Judgment No. S4406.
The appellant is a juvenile. He is presently aged 16.
He was aged 15 at the time of the offences. He is said to have the comprehension and reading ability of a nine year old. In the circumstances I considered that it was appropriate that he be represented by an adult in the person of his father. The pre-eminent consideration in deciding whether to grant leave to a lay person to represent another must be fairness to the party concerned. The appellant would have been placed at a distinct and unfair disadvantage if I did not grant him leave to be represented by an adult close relative.
The incident, the subject of the charges, occurred at approximately 2.05 pm on 26 May 2002. The appellant was driving in a southerly direction along Military Road at Semaphore Park when his vehicle collided with the rear of a vehicle that had slowed to negotiate a roundabout. Damage caused by the collision was approximately $600.
At the time of the accident, the appellant was 15 years old. He therefore did not hold a driver’s licence. The registration of the vehicle he was driving had expired on 5 March 2002. The vehicle was uninsured. The appellant then failed to give his name and address to the driver of the other vehicle involved in the accident.
The information given by the police prosecutor to the Magistrate was that he gave a false name and address. However in his affidavit filed in these appeal proceedings, the prosecutor indicated that in fact, when attempting to provide his particulars after the accident, the appellant appeared uncertain as to how to spell his name and was unsure of his telephone number.
The other driver was suspicious that the appellant was not providing his correct details, because of his demeanour and his statement that he did not have any identification with him. However, none of this was revealed to the Magistrate. The appellant’s demeanour at the scene may well have been explained by the evidence now before me, that he has the comprehension and reading ability of a nine year old child. However, none of that was put to the Magistrate.
The sentencing remarks of the Magistrate indicate that he apprehended that the appellant’s father knew that the appellant had a vehicle and was aware that the appellant was driving it, implying that it was within his power to have prevented the incident over which the appellant was charged.
The appellant has no prior convictions, however the prosecution alleged before the Magistrate - and this is acknowledged by the appellant - that on 30 September 1999 a charge of arson against the appellant was dealt with by way of family conference, where the appellant entered into a two month undertaking, and on 13 August 1999, five counts of larceny were also dealt with by way of family conference, with the appellant entering into a six month undertaking.
There are a number of aspects of the hearing before the Magistrate in the Youth Court which cause me some concern. The appellant, as I said, was not represented by a legal practitioner at the hearing. He was assisted by his father who now complains that he did not have a full opportunity to present what could have been presented on behalf of the appellant.
The father had with him a guidance summary report from an Education Department guidance officer which set out in some detail the learning and comprehension difficulties suffered by the appellant. It was relevant to a consideration of what the magistrate should do. The report was not submitted because the appellant’s father considered that he was cut off by the Magistrate in what he wanted to say. Had it been received, it would have gone a long way to explain at least one aspect of the offending. In that regard I consider that there has been a miscarriage of the sentencing process.
The Magistrate in directing that the appellant enter into an obligation, imposed two conditions that the appellant:
“(3)Attend such projects and programs as directed, particularly those with regard to cognitive and life skills.
(4)Attend such psychological or psychiatric counselling as directed, to deal with self-esteem issues and behaviour modification interventions, to temper impulsive behaviours and such social work interventions where the consequences of re-offending are addressed.”
Those conditions appear to have been imposed without reference to or knowledge of the appellant’s cognitive and learning difficulties. They seem to reflect a belief on the part of the magistrate that the appellant had been guilty of previous anti-social behaviour of the type which was acknowledged before the Magistrate and had given a false name and address at the accident scene. They do not reflect an understanding of the special education treatment that the appellant is receiving through his school.
The respondent concedes that the police prosecutor erred in advising the Magistrate that the appellant had provided a false name and address to the driver of the other vehicle involved in the accident, when the appellant in fact merely failed to provide his name and address. Counsel for the respondent, in his written outline of submissions, submits that this error made no material difference to the sentence imposed. I disagree. There is a major difference between providing a false name and address and merely failing to give a name and address in circumstances where there may well be an explanation for the person’s failure to do so. That is another reason why I consider that there has been a miscarriage of the sentencing process. However, that does not necessarily mean that the sentence is wrong, it means that it must be reconsidered.
The Magistrate expressed surprise at the failure of the appellant’s father to exercise any control over the use of the car. The appellant’s father has now explained to me what he says he was not given an opportunity to explain to the Magistrate, namely that the car was garaged at the time at the appellant’s mother’s house where the appellant was then living. Since the events giving rise to these proceedings, the appellant has been and now is living with his father. The car, although acquired by the appellant without the father’s approval, is now garaged at his father’s house and the father has removed the distributor from the vehicle for the purpose of disabling it. All those details were not before the Magistrate.
Section 7 of the Young Offenders Act 1993 provides that in the case of a “minor offence”, which is admitted by the offender, a police officer may notify a youth justice co-ordinator so that a family conference can deal with the matter instead of it coming before a court. For the purposes of the Act, s 4 defines a minor offence as meaning:
“An offence to which this Act applies, 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.”
Counsel for the respondent concedes that it is possible that a court could find that the offences in this case came within the definition of “minor offence”. He also concedes that in deciding to refer the matter to the attention of the Youth Court, the prosecuting authority acted on the mistaken belief that the appellant had previous convictions of a like nature. He concedes that were it not for this mistaken belief, the matter may have been referred to a youth justice co-ordinator to be dealt with by way of family conference, pursuant to s 7 and s 9 – s 12 inclusive of the Young Offenders Act.
Section 17(2) of the Young Offenders Act also empowers the Youth Court to refer the subject matter of charges against a youth to be dealt with by a family conference. A matter should not be referred to a family conference unless the offence is a minor offence as defined in s 4 of the Act: South Australian Police v W (1995) 64 SASR 408 at 412 - 413. As Cox J said in that case, s 17(2) of the Young Offenders Act will normally only be invoked where the paragraphed requirements of the definition are met, and in cases which appear to be ones that may suitably be handled by a family conference, and for cases that should never really have got into the court system.
There is no indication that the Magistrate considered the option available under s17(2) of the Act. Perhaps that is not surprising, given the misleading information he had received about the alleged false name and address, coupled with the previous reported behaviour and the inadequate information he had about the appellant’s cognitive ability. I think s 17(2) of the Act should have been considered, and that the failure to do so also constituted an error.
For all these reasons it is appropriate to reconsider the sentence afresh. I first consider therefore, whether s 17(2) of the Young Offenders Act should be applied and the matter referred to a family conference. It is first necessary to consider whether this was a minor offence within the definition that I have quoted.
In relation to the extent of the harm caused through the commission of the offence, that harm was by way of damage to motor vehicles to a limited extent, although $600 is not insignificant.
In relation to the second element, the character and antecedents of the alleged offender, that must include the fact of the previous arson and larceny offences which were the subject of family conference determinations. Although the appellant has cognitive and reading deficiencies, there is nothing to suggest that he does not appreciate the difference between right and wrong and that past offending would perhaps militate against a family conference.
With regard to the third requirement, the improbability of the youth’s re-offending, I accept that the appellant’s father has attempted to take some remedial steps now that the appellant is living with him, by removal of the distributor from the vehicle concerned to ensure that it cannot be driven. However, that is a part which can easily be replaced, the appellant still has the keys of the car and it is his car. I cannot say that it is improbable that the appellant will re-offend, so long as the car remains accessible to him.
The fourth element is, where relevant, the attitude of the youth’s parents or guardians. The appellant’s father’s attitude is supportive of some form of discipline and he has said he will accept whatever process I consider to be appropriate.
Taking all those matters together, I cannot consider the offence to be properly described as a minor offence as defined in the Act and therefore I will not refer the matter to a family conference. In addition, I consider that some higher level of discipline than a family conference can achieve is necessary in the circumstances. The powers of a family conference are somewhat limited: Section 12(1) of the Act provides that their powers are as follows:
“(a)that a conference may administer a formal caution against further offending;
(b)the conference may require the youth to enter into an undertaking to pay compensation to the victim of the offence;
(c)the conference may require the youth to enter into an undertaking to carry out a specified period (not exceeding 300 hours) of community service;
(d)the conference may require the youth to enter into an undertaking to apologise to the victim of the offence or to do anything else that may be appropriate in the circumstances of the case.”
The appellant must realise that there are heavy responsibilities associated with owning and driving a motor vehicle. One of those is that he himself must be duly licensed to drive. Another is that he must obey the laws as to registration and insurance of motor vehicles. Yet another of course, is that he must obey the road rules and drive responsibly. However, I consider that in the circumstances of this case, the convictions imposed by the Magistrate on all four charges were inappropriate, that the obligation imposed by the Magistrate was too long and that one of the conditions was inappropriate.
I therefore propose to allow the appeal for the purpose of quashing the convictions and requiring that the appellant enter into a revised obligation to be of good behaviour for a period of 12 months. I consider that the appellant must appreciate the obligations that attend the driving of motor vehicles. I think that the six month licence suspension is appropriate. I do not propose to interfere with that.
The orders of the Court will therefore be:
(1) That the appeal is allowed.
(2) That the convictions entered in the Youth Court on 10 October 2002 are set aside.
(3) That the obligation directed by the Magistrate be set aside and that there be substituted in respect of counts 1, 2 and 4 an order that the appellant enter into a fresh obligation to be of good behaviour for a period of 12 months from 10 October 2002, the amount of the obligation being $100, the conditions of the obligation being as follows:
(1)That the appellant be of good behaviour and comply with all the conditions of the obligation.
(2)That he appear before a court for conviction and sentence on the offences if any of the conditions of the obligation are disobeyed.
(3)That he be under the supervision of an officer of the Department of Human Services (Family & Community Services) or other person nominated by the Chief Executive of the Department of Human Services (Family & Community Services) and obey the directions of that officer or person.
(4)That he participate in such projects or programs as the Chief Executive of the Department of Human Services (Family & Community Services) may require.
(4) In all other respects, the order of the Youth Court is confirmed, including the order of disqualification from holding or obtaining a driver’s licence for the period of six months from 10 October 2002.

[2002] SASC 402

21 November 2002