KBS v Police

[2001] SASC 40

K.B.S. v POLICE
[2001] SASC 40

Youth Court Appeal

1................ GRAY J.......................... This is an appeal against sentence. 

Background

2      The appellant, KBS,  was charged with two offences against the Criminal Law Consolidation Act 1935 (SA) - break and enter a building, larceny and assault. He was further charged with various offences against the Summary Offences Act 1953 (SA) and an offence against the Road Traffic Act 1961 (SA).

3      The Information provided:

“On the 17th day of October 1999 at Elizabeth Downs in the said State, [the appellant] broke and entered a building at the Elizabeth Downs Primary School and committed therein an offence to which this section applies, namely larceny of electronic and computer equipment together of the value of $4,000, the property of the Elizabeth Downs Primary School.
Section 170(1)(a) of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.
On the date of the alleged offence the youth was aged 17 years.”

4      The Complaints were in the following terms:

“On the 10th day of December 1999 at Elizabeth Downs in the said State, [the appellant] assaulted Matthew Spalding. 
Section 39 of the Criminal Law Consolidation Act, 1935.
This is a summary offence.

On the date of the alleged offence the youth was aged 17 years”

and

“On the 14th day of December 1999 at Elizabeth Downs  in the said State, [the appellant]

1. did not truly answer questions put to him by a member of the police force for the purpose of obtaining information which may have lead to the identification of a person who was driving a vehicle namely a motor vehicle number UZL-996 at about 5:30pm on the 14th day of December 1999.
Section 38 of the Road Traffic Act, 1961
This is a Summary Offence.

2.      On the 14th day of December 1999 at Elizabeth Downs in the said state,

used offensive language in a public place namely Barr Street.
Section 7 (1)(c) of the Summary Offences Act, 1953
This is a summary Offence.

3.      On the 14th day of December 1999 at Elizabeth Downs in the said state,

behaved in a disorderly manner in a public place namely Barr Street.
Section 7 (1)(a) of the Summary Offences Act, 1953
This is a Summary Offence

4. On the 14th day of December 1999 at Elizabeth Downs in the said state,
resisted Dennis Robert Taylor a member of the police force in the execution of his duty.
Section 6(2) of the Summary Offences Act, 1953
This is a Summary Offence.

5.      On the 14th day of December 1999 at Elizabeth Downs in the said state,

assaulted Dennis Robert Taylor a member of the police force in the execution of his duty.
Section 6(1) of the Summary Offences Act, 1953
This is a Summary Offence.

On the date of the alleged offence KBS was aged 17 years.”

5      The break and enter and larceny offences occurred at the Elizabeth Primary School.  KBS was accompanied by other persons.  Following detection and arrest, he assisted the police in the recovery of the property.  He made admissions.

6      The case was referred to a Family Conference.  Certain obligations were imposed on KBS by the Family Conference Team.  He failed to comply with these obligations and as a result, the case came before the Youth Court.  A breakdown of communication was partly responsible for this failure.

7      The offences of failing to truly answer questions and resist arrest related to a separate incident.  At the time of this incident, KBS was intoxicated.  However he later co-operated with the police.

8      On the appeal, it was agreed that the common assault was the most serious charge before the Youth Court.  KBS had approached the victim and his girlfriend at a shopping centre at night.  As the victim attempted to close his car door, KBS prevented him from doing so and struck him in the face with a clenched fist.  KBS attempted to deliver more blows and a struggle ensued.  During the course of the struggle, KBS continued hitting the victim around the face and in the vicinity of the mouth.  He tore the victim’s clothing.  The victim suffered minor bruising to his face and considerable distress.  He sought medical treatment.  None of these facts were disputed. 

9      KBS explained his conduct on the following basis: he mistook the victim for another person.  He believed it was someone against whom he had a grievance.  It was accepted before the magistrate that the conduct was abhorrent.

10     At the time of his offending, KBS was seventeen years but on sentencing he had turned eighteen.  He had no history of prior offending.  He was educated to year ten and obtained a bare pass.  He was untrained.  He had no qualifications.  He had no employment history.  He suffered from a sciatic nerve problem which restricted the fields within which he could seek employment.

The Youth Court

11     All matters came before the Youth Court at Elizabeth. KBS pleaded guilty to the charges of break, enter and larceny and common assault.  He also pleaded guilty to the charges of failing to truly answer questions and resist arrest.  The other charges were withdrawn. 

12     The learned sentencing magistrate (“the magistrate”), proceeded to record convictions but otherwise fixed no penalty.  On the offence of common assault, he ordered that KBS be convicted and sentenced to detention for two months.  He declined to suspend the sentence.

13     The magistrate concluded his remarks on penalty as follows:

“I have resolved that I must record convictions on all of these matters.  I am mindful of your age but I need also, and I repeat again, to be mindful of the impact on the victims in all these matters.  Although it is only a victim you assaulted on 10 December 1999, you certainly carried on in a way that caused considerable concern to the victim and his girlfriend.  I make it clear that it is an offence of assaulting Matthew Spalding, an innocent person, a member of the public, going about their lawful duties.

I am taking into account your pleas of guilty, but I want to bring home to you all this offending is totally unacceptable and it must be reflected in a conviction and a sentence of detention of 2 months.

I have resolved in your case, mindful as I am that you are a first offender, and the provisions of the Criminal Law (Sentencing) Act, of suspending that period of detention. The offence of assault of 10 December 1999 is so serious that in the exercise of my discretion I weigh carefully that you are a first offender, and the reform that you have undertaken is commendable, but I am unable to suspend this period of detention which you must serve forthwith. I direct the youth serve this period of detention in a Youth Training Centre.

The other matters are dealt with by way of convictions without penalty.  The levies I impose and direct payment to the Penalty Management Unit.”

14     The magistrate took a very serious view of the charge of common assault. He was justified in doing so.  He explained that mistaken identity does little, if anything, to ameliorate against the seriousness of the assault.

The Young Offenders Act

15     The purpose of the Young Offenders Act 1993 (SA) is to ascertain the best means by which a juvenile delinquent can be turned into a responsible law abiding adult. S. 3 provides:

“3(1)....... The object of this Act is 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.

(2)The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:

(a)... a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;

(b)    (Repealed)

(c)... the community, and individual members of it, must be adequately protected against violent or wrongful acts.

(2a)     In imposing sanctions on a youth for illegal conduct –

(a)    regard should be had to the deterrent effect any proposed     sanction may have on the youth; and

(b)... if the sanctions are imposed by a court on a youth who is being dealt with as an adult, regard should also be had to the deterrent effect any proposed sanction may have on other youths.

(3)....... Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:

(a)... compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;

(b)family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened;

(c)... a youth should not be withdrawn unnecessarily from the youth’s family environment;

(d)there should be no unnecessary interruption of a youth’s education or employment;

(e)... a youth’s sense of racial, ethnic or cultural identity should not be impaired.”

16     As Bleby J observed in L v Police[1]

“The Act contains a wide range of methods of dealing with young offenders not available to courts in respect of adult offenders.  In particular, it provides for a scheme of informal cautions (s6), formal cautions (s8) and family conferences (ss9-12).  It is not possible for a court to sentence a youth to imprisonment (s23), and sentences of detention may include detention either in a training centre or at home (s23).  A court may not require a youth to enter into a bond, but may impose an obligation of a kind that might otherwise be imposed under a bond (s26).”

[1] (1998) 198 LSJS 488 at 489

The Appeal

17     On appeal, KBS complained that “the magistrate erred in failing to suspend the sentence imposed”.

18 It was submitted that that the magistrate’s penalty was extremely harsh and manifestly excessive. Further, that whilst the offence was serious, the period of detention ordered was inappropriate given that this was KBS’s first offence and he was aged seventeen years at the time. In his discretion, the magistrate should have adopted a more lenient approach. He should have recorded a conviction, imposed a community service obligation and utilised alternative sentencing options. Such an option should have addressed KBS’s personal problems. In the alternative, it was argued that pursuant to s. 38 of the Criminal Law (Sentencing) Act 1988 (SA), the magistrate should have suspended the sentence.

19 It was submitted that judicial officers in the Youth Court are obliged to consider what other options are available, apart from custodial penalties. Section 23(4) of the Young Offenders Act provides as follows:

“A sentence of detention must not be imposed for an offence unless the Court is satisfied that, because of the gravity or the 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 inadeqate.”

As King CJ said in Hallam v O’Dea[2] when addressing earlier legislation:

“It would be quite wrong, in my opinion, for a judge in the Children’s Court to treat detention as other than the last resort to be resorted to only when satisfied that the other available options do not meet the case.”

[2] (1979) 22 SASR 133 at 137

20     In L v Police[3] Bleby J  considered that these remarks were applicable to the Young Offenders Act. Other authorities have emphasised that notwithstanding the gravity of the appellant's offending, when sentencing young offenders, the court is required to have regard to the fact that detention is an option of last resort - Ogg v Police[4], R v Police[5], RJB v Police[6] and S v Police[7].

[3] (1998) 198 LSJS 488

[4]      S 5769

[5] (1998) 198 LSJS 481

[6] [2000] SASC 209

[7]      1998 No S709

21     This approach is also of particular relevance when the sentencing court is dealing with fist offenders.  As Bollen J said in Stewart v Collins[8] at (293):

"The courts should strive to find sentences which will keep people out of prison if that be possible. That is particularly so with young first offenders. Of course young first offenders may sometimes have to be sent to prison. But if it be at all possible in the interests of the community and of the offender for something other than imprisonment to be found as an adequate sentence then that should happen. The Sentencing Act says so. It says so in words different than those which I have used but it says the same thing."

[8] (1992) 58 SASR 291

22     In H v Police[9] Olsson J considered that the principles discussed in Stewart v Collins[10]were applicable to the Young Offenders Act.

[9]      S5983

[10] (1992) 58 SASR 291

23     Whilst it was acknowledged that in this case an informal caution was inappropriate and the family conference process had been unsuccessful, counsel for KBS submitted that the magistrate should have ordered community service and a range of other sentencing options.  Those options thought appropriate were anger management counselling, drug and alcohol counselling,  vocational guidance and education and training programs.  It was submitted that they would have provided a more appropriate penalty in all of the circumstances.

24     During the course of the appeal, counsel for KBS took instructions.  He relayed the following information:

25     KBS left home at age fifteen in 1996. He left school half way through year ten and soon after developed an alcohol problem.  This problem was ongoing for two years or more before the offence was committed.  His drinking escalated in June 1999 when he was living with his cousin who was only three years older.  He drank beer and spirits on a daily basis to the point of becoming intoxicated.  At the time of his offending, he was affected by alcohol.  He later returned home to live and made a conscious decision to stop drinking.  He realised he could not afford the alcohol and that drinking was going to cause him to re-offend.  KBS says he now has his drinking under control and that he only drinks approximately once a week in a moderate and mature fashion.  He said he rarely becomes intoxicated.  KBS turned eighteen in August 2000 but prior to this, found it difficult to access the work for the dole scheme because of his age.  He has been told that work through social security will not be available until February 2001.  Whilst he has had some short-lived labouring jobs, he  is actively seeking work and is considering his future vocational path.

26     The Crown submitted that when determining sanctions, magistrates must not focus solely on young offenders and their rehabilitation requirements.  The Act makes it clear that the community also has to be protected and young offenders must be held accountable for their behaviour.  They must accept responsibility for the consequences of not complying with the law.

27     The Crown recognised that the sentence imposed by the magistrate was “unusually harsh”.  Initially, it was submitted that the magistrate was an experienced judicial officer, sitting in a specialist jurisdiction.  Although the sentence was unusual, it was nevertheless an option available to him and open in the circumstances.  It was submitted that the magistrate was not in error in failing to articulate exactly which other options he had canvassed.  He was not obliged to identify every option in order to demonstrate that his sentencing discretion had not miscarried. 

28     The magistrate clearly considered alternative options:

“…you have a sciatic back which would prohibit you doing community service…I have resolved that I must record conviction on all of these matters.” 

However, he decided that given the very serious nature of the assault, detention was the most appropriate penalty.  

29     It was submitted by the Crown that there was little evidence which justified suspending the sentence.  It was open for the magistrate to find that KBS needed structure and direction in his life and that this could only be achieved by a period of detention.

30              The reason for KBS’s non-compliance with the Family Conference undertakings is unclear.  The Crown concedes that the non-compliance was partly due to an administrative error.  KBS’s father also suggested he was partly to blame. Whilst the legislation places importance on responsibility and accountability of both parents and young offenders, the ultimate responsibility for completing the undertaking rested with KBS.  However, I am uncertain whether the magistrate was aware of these facts at the time of sentencing.  Accordingly, the inadequacy of the information before the magistrate may have permeated the sentencing process.

The Social Background Report

31     The magistrate had not, in his discretion, ordered a social back-ground report.  Counsel for KBS submitted that the lack of information before the magistrate about KBS’s personal circumstances and family background was of concern.  There was little evidence as to the extent of his alcohol problem, or his claimed rehabilitation.  These were important considerations given the seriousness of KBS’s alcohol problem at the time of his offending. The magistrate should have explored these issues and taken them into account.  His primary focus was the gravity of the offence and the need for personal deterrence.  He failed to give sufficient weight to other matters.

The Young Offenders Act provides:

"S 32(1)    The Chief Executive must, at the request of a court by which a youth is to be sentenced, have a report prepared on the social background and personal circumstances of the youth.

(2)    Such a report may not contain any recommendation about sentence."

32     Both counsel accepted that the circumstances of this case required that a social-background report be obtained for use by this court.  Accordingly, I directed that a report looking specifically at KBS’s background, his family situation and his alcohol problem be prepared.

33     Following receipt of the social background report I heard further submissions.  Counsel for the Crown accepted that the magistrate erred in not ordering a social background report.  It was accepted that this was of particular importance as the court was dealing with a first offender.  The Crown also accepted that the report did not support the imposition of a term of detention, immediate or suspended.

34     The magistrate considered the assault to be particularly serious.  Accordingly, he approached the sentencing process by putting a custodial sentence at the forefront of the sentencing options.  He correctly placed great emphasis on the protection of innocent members of the public. 

35     However the magistrate's remarks on penalty do not disclose an explicit consideration of the requirements of s 3 of the Act.  Section 3 requires the sentencing court to give effect to a number of statutory policies so far as the circumstances of the individual case allow.  As earlier observed, two of those policies are of particular relevance: 

“(3) Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:

…

(b). family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened;

(c)a youth should not be withdrawn unnecessarily from the youth’s family environment;”

The magistrate made no express reference to these considerations.  He made no reference to KBS's strong parental support.  His parents are prepared for him to live with them in their home, along with his two younger siblings. 

36     The recent Australian Institute of Criminology Research and public policy paper Alcohol, Young Persons and Violence[11] is supportive of these policies:

"Intervention programs in the area of drugs are most effective when undertaken in the family setting.  Young people's involvement in drug and alcohol use usually results from peer influences.  However, research demonstrates that the most influential means of determining drug and alcohol use involves intervention in the family. The most effective programs focus on the family dynamics and entail improving parenting skills early in a child's life.  Preventative programs first improve the parent-child relationship and then focus on developing skills in family communication, parental monitoring and discipline."

[11]             Australian Institute of Criminology Research and Public Policy Series No. 35, edited by Paul Williams, 2001 at 224.

37     The social background report sets out the family background in some detail and records the parents' commitment to assisting KBS in his rehabilitation.  Although the magistrate had some information before him about the family support, he did not have the advantage of all the relevant information contained in the social background report.  I consider he gave insufficient weight to these factors when considering s 3 of The Young Offenders Act.

38     The social background report provides an assessment of the personal problems of KBS.  The report includes the following information:

"Worker Assessment

Kevin presented as a young man with a complexity of different personal and emotional issues that he and his parents need to address.

Kevin presents as withdrawn, with indicators of depression and possible early stages of alcoholism and mental health issues.

Kevin's past consumption and dependency of substances has clearly had a negative impact upon himself, his family and that of the wider community.

Areas of concern in relation to Kevin's ability to cope or address situations without negative overtones were addressed with Kevin and his parents.

Kevin would clearly benefit from medical, psychological or psychiatric intervention to assess and assist with his social, emotional and health.

Kevin's attendance at counselling intervention to address anger management, conflict resolution, self esteem, motivational level and drug and alcohol dependency would be seen as most beneficial.

Kevin and his parents have been informed of services available within their local district and they have been urged to seek the services of medical and mental health services to best support Kevin.

Kevin's current apathy, lack of motivation and withdrawal from outside influences are of concern to the writer.

Kevin needs to actively seek and accept services and assistance, which are available to address the problems and issues affecting him.

Kevin's parents present as committed and concerned for the welfare and future directions for their son.

Kevin is aware that as he is eighteen years of age, if he continues to act inappropriately or continue to offend, then he will be dealt with quite differently within the adult system.

Kevin has been encouraged to seek assistance to address the problems addressed within this report for the benefit of himself, his family and that of the wider community.

Failure on Kevin's part to acknowledge that he has a number of problems that need to be addressed with professional interventions may well continue to negatively impact upon his future choices and own well being."

39 I also consider that the magistrate had insufficient regard to s 23(4) of the Young Offenders Act.  He was obliged not to impose a sentence of detention unless satisfied that there was no other alterative.  This was particularly important, as KBS was a first offender. 

40     The magistrate’s decision not to order a social background report left him with inadequate information about the personal problems of KBS and the relationship between those problems and his offending behaviour.  The magistrate was also left without independent professional advice as to how KBS may be assisted in overcoming his problems.   I consider this to be important for KBS and the community.

41     I consider the exercise of the magistrate's discretion not to suspend the order for detention miscarried.

42     In my view, this appeal should be allowed.  I set aside the orders of made by the magistrate.  I propose to resentence KBS.  I do not consider it appropriate to order any period of immediate or suspended detention.  I record convictions for all offences.  For the offence of common assault I order a short term of community service and release KBS under an obligation to be of good behaviour and to observe conditions specifically designed to assist his rehabilitation.   On the other offences no penalty is imposed.  In order to address the various needs of young offenders, rehabilitation programs should focus on the individual and their interaction with their family, peers, school and the community.  "Multi-systematic" programs have demonstrated a reduction in the likelihood of re-offending.[12]  I consider that this is the most appropriate way to address the interests of KBS and the community.

Orders

[12]             Australian Institute of Criminology Research and Public Policy Series No. 35, edited by Paul Williams, 2001 at 226.

43     The orders of the court are:

1      Appeal allowed.

2      Sentence imposed by the Elizabeth Magistrates Court set aside

3That the convictions recorded by the Elizabeth Youth Court stand

4That the appellant perform community service

5That the appellant be released on an obligation to be of good behaviour for a period of twelve months on the following conditions:

1...... That the appellant be of good behaviour, and comply with all of the conditions of this obligation.

2...... That the appellant shall be under the supervision of a community corrections officer of the Department for Family and Community Services or such other person nominated by the Chief Executive Officer of that Department and obey the lawful directions of such officer or person for the period of the obligation.

3...... That the appellant shall undertake such courses, counselling and programs for anger management as he may be directed by the community corrections officer designated to supervise him.

4...... That the appellant shall undertake such courses, counselling, treatment and programs for alcohol and drug dependency as may be directed by the community corrections officer designated to supervise him, which can include either outpatient or inpatient treatment as provided by the Woolshed Program, Elura Clinic or the Lyall McEwin Hospital Outreach Service.

5...... That the appellant undertake such assessment, counselling and treatment from a psychologist and/or psychiatrist as may be directed by the community corrections officer designated to supervise him.

6...... That the appellant participate in such community service work for periods totalling one hundred and four hours, to be completed within the period of this obligation as directed by the supervising officer of the Department of Human Services, Family and Youth Services.

7...... That the appellant shall report to the Court Liaison Unit of the Department for Family and Youth Services at 96 Gouger Street, Adelaide by no later than 4.30 pm of the day upon which this obligation is signed.

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1 (1998) 198 LSJS 488 at 489

2 (1979) 22 SASR 133 at 137

3 (1998) 198 LSJS 488

4      S 5769

5 (1998) 198 LSJS 481

6 [2000] SASC 209

7      1998 No S709

8 (1992) 58 SASR 291

9      S5983

10 (1992) 58 SASR 291

11Australian Institute of Criminology Research and Public Policy Series No. 35,  edited by Paul Williams, 2001 at 224.

12Australian Institute of Criminology Research and Public Policy Series No. 35, edited by Paul Williams, 2001 at 226.