K v Police

K v POLICE
[1999] SASC 407

Full Court: Doyle CJ, Mullighan and Wicks JJ

DOYLE CJ. This is an appeal against a sentence imposed by a Judge of the Youth Court.
The appellant pleaded guilty in the Youth Court to two offences.
The first offence was larceny of a bicycle valued at $500. The second offence was armed robbery, involving the taking of $1,000.
The Judge sentenced the appellant to detention for 12 months for the second offence. For the first offence, she convicted the appellant without any further penalty. It is submitted that the penalty imposed for the second offence is excessive.
The offences were committed in October 1998. The appellant had just turned 17 years of age at the time of the offences.
I begin with the armed robbery. The Judge sentenced the appellant on the basis that he committed the armed robbery at the urging of his girlfriend, who was somewhat older than him. It appears that the appellant had been in a relationship with her for some time, and was under her influence to a considerable degree. The relationship was important to him. The Judge accepted this. The appellant and his girlfriend were both regular users of heroin. She urged the appellant to commit the offence, so that she could obtain heroin.
The end result was that the appellant went to a pharmacy, wielding a machete, and demanded money. He was handed $1,000. A number of people were in the pharmacy at the time. The victim impact statements provided by these people indicate that they have suffered a noticeable adverse reaction to what must have been a frightening incident.
The offence was carried out in an amateurish fashion, in the sense that the appellant was located a relatively short time afterwards at a unit at which he lived. The appellant immediately admitted his guilt, and at the same time admitted to the theft of the bicycle.
In my opinion the offence can only be regarded as very serious. The fact that the appellant was quickly located and arrested, does not detract from that. There is no reason to think that the victims of the offence, while it was taking place, had any reason to think that the appellant was other than serious in his intent. The offence would not have seemed amateurish to the victims.
The appellant has a number of convictions, including convictions for assault, breaking and entering, larceny and minor drug offences. On previous occasions when he has appeared before the Youth Court, he has been granted appropriate leniency. He has been offered assistance and guidance from various sources. On 27 February 1997 he entered into a bond, as a result of another offence, to be of good behaviour for 18 months. Within about two weeks of that he broke and entered premises and breached the bond.
The appellant has had what the Judge described as a “difficult, unstable and damaging childhood.” I fully agree. It is not necessary to repeat the sad details. It suffices to say that the appellant’s childhood was such that one can hardly be surprised that he has broken the law at a relatively young age. During his childhood he has been exposed to a number of bad influences and, perhaps more importantly, has not had the sort of care and guidance that a child needs. The appellant is clearly in need of considerable guidance and encouragement, before he will learn how to conduct himself as a member of society.
The appellant has had a very limited education. This is a further obstacle to his development. The appellant has abused alcohol and other drugs.
Over the years, since coming into contact with the law, the appellant has had contact with a number of people and agencies who have tried to help him, and to assist him in adopting an appropriate pattern of behaviour. Not surprisingly, given his background, these efforts have not been successful.
The picture for the appellant is not completely bleak, although it is not promising. The appellant has recently had a period employment, and has made attempts to improve his education. Prior to the commission of this offence he had kept out of trouble for about a year.
The material before the Judge of the Youth Court indicates that the appellant lacks an understanding of the effect of his conduct on others. He tends to behave impulsively. He has not yet learned how to behave in a responsible manner.
As the Judge said, although the appellant has shown some signs of wanting to change for the better, and may well have the ability to do so, with appropriate help and guidance, it cannot be said at this stage that the appellant has decided to make that change, and that the appellant is unlikely to offend again.
A court is always reluctant to send a young person to prison for the first time, and is particularly reluctant to sentence a youth to detention. However, at 17 years of age, the appellant is at an age at which he must begin to face the consequences of his behaviour. As I have already said, the armed robbery is a very serious offence. The Judge was entitled to take the view that the appellant needs something that will bring home to him that he cannot continue the pattern of offending that he has developed.
In sentencing young offenders the Youth Court must bear in mind the statutory object of securing for a youth appropriate care, protection and guidance. However, the Youth Court must also consider the need to bring home to a youth the consequences of a breach of the law, and must also consider the protection of the community.
In my opinion the appellant has demonstrated that the last two matters referred to are of particular relevance to him. That is, the point has been reached at which he does need to be made aware of the consequences of breaking the law. The Judge was entitled to take the view that the appellant had not yet faced up to this, and that a period of detention was the appropriate way to bring it home to him. There is also the aspect of the protection of the community. In view of the sort of offence that the appellant committed, that was a relevant matter. As well, the appellant must somehow be deterred from this sort of conduct. Sadly, as other means have not worked, the Judge was entitled to take the view that the time has arrived for harsher treatment.
In sentencing the appellant the Judge was not permitted to consider general deterrence, but she was required to have regard to the deterrent effect of the sentence upon the appellant. For the reasons that I have indicated, the Judge was entitled to take the view that a sentence of detention was warranted to deter the appellant from further offending. She was also entitled to take the view that the protection of the community required that approach.
For all those reasons, I consider that it was open to the Judge to decide that a non-custodial sentence would be inadequate because of the gravity of the offence: see s 23(4) of the Young Offenders Act. The need for personal deterrence also supports that conclusion.
An order for detention was appropriate.
That leaves the question of whether the period of detention was excessive. The crime was a very serious one. The appellant has a poor record, and has been given both leniency and assistance before. At 17 years of age he is no child. The Court would interfere with the period of detention only if satisfied that it is excessive. The Court must recognise that the Youth Court is a specialist court, and is usually better placed than this Court to assess what is appropriate. As well, a Judge or Magistrate in the Youth Court has the benefit of seeing the offender in person. To my mind, nothing has been identified to suggest that the sentence imposed was not within the appropriate range. Nothing has been identified that would have required the Judge to impose a shorter sentence, assuming that a sentence of detention was appropriate. For those reasons, I consider that no error has been demonstrated.
It was for those reasons that, on the hearing of the appeal, I considered that the appeal should be dismissed.
MULLIGHAN J. I agree.
WICKS J. I agree.

[1999] SASC 407

24 September 1999