K v SA Police No. SCGRG 93/1796 Judgment No. 4427 Number of Pages 3 Criminal Law and Procedure

[1994] SASC 4427

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), BOLLEN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - young offender - sentence of detention for 1 year 11 months - power to order detention limited to 2 years - time in custody before sentence 15 weeks - sentence reduced by one month only for time spent in custody - refusal to make full allowance on ground that Review Board would order early conditional release, wrong in principle - appeal allowed and sentence reduced to 1 year 8 months. Children's Protection and Young Offenders Act, 1979 sections 51 and 64(2). R v Hoare and Easton (1989) 86 ALR 361, discussed.

HRNG ADELAIDE, 21 February 1994 #DATE 21:2:1994

Counsel for appellant:     Ms P Trezise

Solicitors for appellant:    Aboriginal Legal Rights Movement

Counsel for respondent:     Ms A M Vanstone

Solicitors for respondent: DPP

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against a sentence imposed in the Adelaide Children's Court for offences of common assault, assault occasioning actual bodily harm, false imprisonment, robbery in company, threaten life, breach of bail and using a motor vehicle without consent.

2. The learned judge in the Children's Court imposed a period of detention in a Training Centre upon the appellant of one year and 11 months commencing on 15 September 1993. In fixing that term, the judge had regard, to the extent of one month, to a period spent in custody prior to the imposition of sentence.

3. The power to impose detention is limited by s.51 of the Children's Protection and Young Offenders Act 1979 to a term of not more than two years. The appellant was, in fact, taken into custody in relation to the present offences on 3 June 1993. She had been on bail prior to that but was taken into custody for a breach of bail. She, therefore, spent a period of 15 weeks in custody prior to the imposition of sentence on 15 September 1993.

4. It has not been argued before us that the sentence imposed was excessive. The argument before us was that the judge erred in not making allowance for the full period during which the appellant was in custody prior to sentence. His Honor limited the allowance to one month because that was the time that had elapsed between the finding of guilt and the imposition of sentence. He deliberately declined to take into account the earlier period in custody. He gave his reasons for that as follows:
    "In making that order, I am very mindful of the fact that she
    won't serve anything like that. If she makes satisfactory
    progress the review board will no doubt release her earlier
    than that time. It is for that reason that I do not think it
    is appropriate to consider the amount of time that she has
    spent in custody awaiting the trial."

5. The power of the review board, that is to say the Training Centre Review Board, to release a child who is subject to an order for detention in a training centre is contained in s.64(2) of the Children's Protection and Young Offenders Act. That subsection provides that the training centre review board may at any time order the release of a child who has been sentenced to detention in a training centre subject to the following conditions:
    "(A) A condition that the child be under the supervision of
    an officer of the department and the child obey the
    directions of that officer, and (B) Any other condition that
    the board thinks fit."

6. The release of a child prior to the expiration of the period of detention fixed by the court is, therefore, in the discretion of the review board. It is not possible to say with certainty that the review board will release the child at a time earlier than the expiration of the period of detention, nor is it possible to say to what extent any early release will reduce the time which the offender has to spend in detention.

7. The High Court of Australia in the case of R v Hoare and R v Easton (1989) 86 ALR p.361 held that, in the absence of a statutory provision authorising that course, it was an infringement of proper sentencing principles to increase the sentence which would otherwise be imposed to take account of the possibility that the prisoner will receive the benefit of good conduct remissions. One of the reasons put forward by Their Honors for taking that view was the uncertainty as to whether there would be remissions for good conduct and the extent of any such remissions. It seems to me that the same reasoning applies to taking into account the possibility of the review board releasing a child before the expiration of the period of detention.

8. There is no requirement in the Children's Protection and Young Offenders Act for the court to take into account a period spent in custody prior to the imposition of sentence. The court has the power to impose detention for a period of two years. I do not think that the failure of a judge to reduce that period of two years by reason of time spent in custody prior to sentence can be regarded as an infringement of the Act.

9. Nevertheless, any sentencing power must be exercised in accordance with sound sentencing principles and the judicial discretion which is involved in sentencing must be exercised judicially.

10. It is a recognized principle of sentencing that, unless there are adequate countervailing circumstances, a period spent in custody prior to sentence ought to be taken into account in fixing the appropriate sentence. So although I think that there was legal power in the judge to impose a period of detention of up to two years, he ought, unless there were adequate countervailing considerations, to have reduced that term by the period which the appellant had spent in custody prior to the imposition of sentence.

11. The learned judge made a deliberate decision to make only partial allowance for the time spent in custody. It seems to me that the reason which he gave for making only partial allowance cannot be regarded as sound. It cannot be regarded as sound for the reason which was given by the High Court in relation to good conduct remissions, namely that one cannot say with any degree of assurance that the review board will exercise its power to release the child at a time earlier than the expiration of the period of detention to which she was sentenced and it is certainly not possible to predict by what period of time her detention might be reduced by an order of the review board. In those circumstances, I think that the learned judge erred in principle and that this court ought to intervene.

12. The period actually spent in custody between 3 June 1993 and 15 September 1993 is 15 weeks. The judge allowed one month only. I think that it would be appropriate to make an allowance of another three months.

13. In my opinion, therefore, the appeal should be allowed. The period of detention should be reduced to a period of one year and eight calendar months commencing on 15 September 1993.

JUDGE2 BOLLEN J I agree.

JUDGE3 MULLIGHAN J I agree.