KS v Police - [2021] SASCA 12

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KS v POLICE
[2021] SASCA 12
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)
25 March 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
The appellant, a youth, pleaded guilty to 16 criminal charges across two files. The offending included sexual offending and drug offending; the latter offending was committed whilst on bail for the former offending. Many of the charges were major indictable offences. A Magistrate of the Youth Court imposed one sentence for all the offending of 12 months detention partially suspended upon entry into a 12 month obligation. Convictions were recorded on all charges as the Magistrate was not satisfied that special reasons were established not to record convictions.
The appellant appealed on the ground that the Magistrate failed to apply the relevant statutory discounts for his guilty pleas and challenged the recording of convictions on the basis that special reasons had been made out. The respondent conceded a process error had been made by the Magistrate regarding the available discounts but maintained that the sentence was appropriate in all the circumstances. The respondent further maintained that special reasons had not been made out and that the recording of convictions on all counts was appropriate.
Held, per Lovell JA (Kelly P and Bleby JA agreeing), dismissing the appeal:
1. The sentence is appropriate in all the circumstances.
2. The Magistrate did not err in imposing convictions on all counts.
Bail Act 1985 (SA) s 17; Controlled Substances Act 1984 (SA) ss 18, 32, 33I, 34; Criminal Law Consolidation Act 1935 (SA) ss 49, 63, 63A, 63B; Sentencing Act 2017 (SA) s 26, 28, 39; Young Offenders Act 1993 (SA) ss 3, 17, 21; Youth Court Act 1993 (SA) s 22(2), referred to.
B, JL v Police [2017] SASC 9; R v Lambert [2009] SASC 307; R v Police [2002] SASC 403; R v Yousef (2005) 155 A Crim R 134; S, JC v Police (2007) 96 SASR 432; W, SS v Police [2014] SASFC 64, considered.

KS v POLICE
[2021] SASCA 12

Court of Appeal – Criminal: Kelly P, Lovell and Bleby JJA

KELLY P: I would dismiss the appeal for the reasons given by Lovell JA.
LOVELL JA:
Overview
The appellant, a youth, pleaded guilty in the Youth Court to 16 criminal charges. The charges can be described broadly as falling into two categories – “sexual offending” and “drugs/firearm offending”. The two complainants of the sexual offending were under the age of 16 and were, at some stage, in a relationship with the appellant. The drugs/firearm offending was committed whilst the appellant was on bail for the sexual offending.
A Magistrate of the Youth Court imposed one sentence for all the offending of 12 months detention. That time was reduced by 3 months and 9 days for time spent in custody following arrest, leaving a period of 8 months and 21 days to be served. That sentence was backdated to commence on 23 April 2020, the date the appellant was taken into custody for a second time. The appellant was required to serve 6 months of that sentence in detention. The remaining 2 months and 21 days was suspended upon the appellant entering an obligation for a period of 12 months.
Convictions were recorded on all counts. The Magistrate, despite the appellant pleading guilty (at different times) to the offences, declined to apply any discount to the appellant’s sentence to reflect the guilty pleas. At the time of the hearing of this appeal, the appellant had served his detention but remained subject to the obligation.
The respondent, appropriately, conceded the appeal accepting that the Magistrate erred in failing to give any credit to the appellant for his guilty pleas. However, the respondent maintained, contrary to the appellant’s submissions, that the sentence imposed (including the recording of convictions and imposition of the obligation) was appropriate. The main contention agitated before this Court was whether special reasons existed to justify convictions not being recorded.
I would dismiss the appeal. My reasons follow.
Background
The offending
The appellant was charged with a total of 16 offences across two court files MCPAD-19-4895 and ACC-20-705. The two files may be broadly categorised as the “sexual offending” and the “drugs/firearm offending”, respectively. I set out the factual basis giving rise to each series of offending and the charges laid which are subject to this appeal.
The sexual offending
Between the end of July 2019 and 20 August 2019, the appellant was in a relationship with E. The appellant described the relationship as being loving and intimate. On two separate occasions, once at the appellant’s home and once at E’s home, the appellant and E engaged in sexual intercourse. The appellant was said to be intoxicated on both occasions. At the time, the appellant was 17 years old; E was 15 years old. These two occasions of sexual intercourse gave rise to Counts 4 and 5 on the first file.
During the course of their relationship, the appellant convinced E to send him images of herself in her underwear with her breasts and vagina exposed. The appellant and E discussed how she could make money by offering sexual services online, using the images to create advertisements, based upon the appellant’s experience of doing so. It was submitted that E owed the appellant a drug debt and that he was unwilling to lend her any further money upon her request; posting advertisements for sexual services was the appellant’s idea to help E raise funds. With her consent, the appellant posted the images on a website called “Locanto”, offering her sexual services for payment. This conduct formed the basis of Counts 3, and 9 to 12 on the first file.
An unknown male responded to the advertisement posted by the appellant for the sexual services of E. The appellant arranged a meeting for E and the unknown male to take place at 3pm on 20 August 2019 in a park. The appellant advised E of the planned meeting, and E agreed to divide the proceeds that would be obtained equally. This conduct gave rise to Count 1 on the first file.
On 20 August 2019, the appellant posted an image of a firearm on social media. The police became aware of the image and attended the appellant’s school to investigate. During their investigations, the police seized the appellant’s phone and identified messages between the appellant and E; E had texted the appellant that she was on her way to the park to meet the unknown male, but was frightened, and did not want to go through with the plan. The police attended the park where E was to meet the unknown male and intercepted E before any acts took place. The next day, police showed E the images located on the appellant’s phone and E confirmed the images were of her; possession of these images gave rise to Count 2 on the first file.
Further examination of the appellant’s phone led police to identify that the appellant had disseminated child exploitation material depicting not only E but a second victim, A. The appellant and A had previously been in a relationship. During that relationship, explicit images of A had been taken; some of the images had been taken by the appellant, and others taken by A and sent to the appellant. A was 16 years old at the time. The appellant posted some of those images on the Locanto website, advertising A’s sexual services in return for payment. This conduct gave rise to Counts 7 and 8. Unlike E, A was unaware and did not consent to the appellant posting the images on Locanto. Approximately seven pornographic files were located on the appellant’s phone.
The appellant was arrested on 21 August 2019 in relation to this offending. He spent 3 months and 9 days in custody before being released on supervised bail on 29 November 2019. The following charges were laid:[1]
·Procured a child to engage in, or submit to, a sexual activity contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) (basic offence) (Count 1);
·Possession of child exploitation material, knowing of its pornographic nature contrary to s 63A(1)(a) CLCA (basic offence) (Count 2);
·Had sexual intercourse with a person of the age of 15 years contrary to s 49(3) of the CLCA (Counts 4 and 5);
·Disseminated child exploitation material knowing of its pornographic nature contrary to s 63(b) CLCA (basic offence) (Counts 3, 7–12).
The drugs/firearm offending
[1] I note Count 6 was withdrawn.
On 21 April 2020, police attended at the appellant’s home upon request of his parents. At the time, the appellant was on bail for the sexual offending, and was an inpatient at the Women’s and Children’s Hospital regarding drug-related health matters. With the consent of the appellant’s parents, police searched the premises. The police located: approximately 200 grams of cannabis individually packaged in cryovac bags and smaller “deal” bags, about 4 grams of MDMA, 37 whole Xanax tablets and some broken tablets, 50 rounds of 0.357mm ammunition, $1,060 in cash, electronic scales, and empty resealable bags. A phone belonging to the appellant was also found; messages were located regarding trafficking of cannabis, MDMA, mushrooms and methamphetamine.
The findings of the police on this occasion resulted in the appellant being arrested for the second time on 23 April 2020; he remained in custody at Kurlana Tapa Youth Training Centre up to the time of sentence on 2 September 2020. The appellant was charged with the following:
·Without reasonable excuse, contravened a term or condition of a bail agreement entered into by the appellant at the Youth Court of Adelaide contrary to s 17 of the Bail Act 1985 (Count 1);
·Trafficked in a control drug contrary to s 32(3) of the Controlled Substances Act 1984 (Count 2);
·Possessed ammunition in contravention of a regulation contrary to s 34(5) of the Firearms Act 2015 (Count 3);
·Possessed a controlled drug intending to supply the drug to another person contrary to s 33I(1)(b) of the Controlled Substances Act 1984 (Count 4, as amended); and
·Possessed a prescription drug (not being a drug of dependence) when the appellant was not the person, or acting on behalf of the person, to whom the drug was legally prescribed, nor lawfully authorised to sell or supply the drug, nor had lawful authority or reasonable excuse for possession, nor the owner or acting on behalf of an owner of an animal for whom the drug had been prescribed or supplied contrary to s 18(3) of the Controlled Substances Act 1984 (Count 5).
Sentence
The appellant pleaded guilty to all charges, albeit at different times of the committal process. Counsel for the appellant conceded that detention would be appropriate, however, having regard to time in custody and time spent on supervised bail, submitted that the Magistrate should consider a release upon entering into an obligation.
The Magistrate imposed one sentence for all counts across the two files pursuant to s 26 of the Sentencing Act 2017. The appellant was sentenced to 12 months detention. That time was reduced by 3 months and 9 days for time spent in custody following the first arrest, leaving a period of 8 months and 21 days to be served. That sentence was backdated to commence on 23 April 2020, the date the appellant was taken into custody for the second time. The appellant was required to serve 6 months of that sentence in detention. The remaining 2 months and 21 days was suspended upon the appellant entering an obligation for a period of 12 months. I note the fact that at the time of the appeal, the appellant had served his period of detention however remained subject to the obligation.
The Magistrate noted that the appellant would normally be entitled to discounts under s 39 of the Sentencing Act 2017. However, the Magistrate considered that whilst he had taken into account the appellant’s cooperation and early guilty pleas, a reduction would not be consistent with the objects and policies in s 3 of the Young Offenders Act 1993. Sufficient deterrence and progress towards rehabilitation were identified as the objects to be met by the sentence imposed. Consequently, no discounts were applied. The respondent, as mentioned, accepted that the Magistrate erred in his approach.
Convictions were recorded on all counts; the offending included major indictable offences, and the Magistrate was not satisfied that the appellant had established special reasons that convictions should not be recorded. No submissions were made nor discussion had with respect to differentiating the three summary offences from the major indictable offences; convictions were simply recorded “on all counts”. The Magistrate considered it a difficult decision to make, but that the offending was too serious not to record a conviction; he was also not convinced that the appellant was unlikely to further offend.
An order was also made for forfeiture to the Crown of the ammunition, controlled drugs and prescription drugs. Further, an intervention order was imposed with A as the protected person pursuant to s 28 of the Sentencing Act 2017. An intervention order already existed with respect to E.
The appeal
The appeal is against a sentence imposed by a Magistrate of the Youth Court. Therefore, the appeal lies to the Court of Appeal.[2] I granted permission to appeal on 12 November 2020.
[2] Youth Court Act 1993 (SA) s 22(2)(b)(ii).
The appellant’s Notice of Appeal agitated three grounds of appeal:
1.the Magistrate erred in imposing convictions on all counts;
2.the Magistrate erred in not applying the available statutory discounts for guilty pleas; and;
3.condition 5 of the obligation is unreasonable in the circumstances.
The appellant seeks the convictions be set-aside, and to be resentenced without the imposition of convictions.
Concession of error
The respondent conceded that the Magistrate erred in not applying any available discounts to the sentence imposed. Notwithstanding the process errors made, the respondent maintains that the sentence imposed was appropriate. On appeal, counsel, given that the appellant was no longer in detention, focussed on the question of whether convictions should be imposed. Challenge to condition 5 of the obligation, the subject of Ground 3, was abandoned. In any event, condition 5 (which provided the appellant make his mobile phone available for inspection and access) was appropriate in the circumstances as most of the offending involved the use of the appellant’s mobile phone and social media.
Ground 2
In my view, the length of the prison sentence imposed by the Magistrate was moderate, if not lenient. In these circumstances and given that this is a defence appeal, I would not sentence any differently. Accordingly, and notwithstanding the error of law earlier identified, which would ordinarily lead to the Magistrate’s sentence being set aside and a fresh sentence imposed, the appropriate way to dispose of this ground of appeal is to order that it be dismissed. It is sufficient that I explain the nature of the error committed. However, being a process error, it does not form part of the ultimate sentence and, given that I would arrive at no lesser sentence than that imposed by the Magistrate, there is no reason why that sentence should not stand.
Ground 1
I turn to the question of whether convictions should have been recorded.
Personal circumstances
The appellant was born on 9 July 2002 in Turkey and arrived in Australia with his parents in 2010. The move to Australia was difficult and somewhat isolating for the appellant, whose large extended family (including an older estranged sister) remained in Turkey. The appellant’s family are of Muslim faith. He grew up in a supportive family environment; his parents have remained supportive despite being disappointed in his offending behaviour. The appellant described being closer to his mother than his father, and that his mother shielded him from his father’s anger and expectations to excel in his schooling. The appellant has a strong academic record. The appellant had been enrolled in an “Ignite Program” for accelerated learning, however did not consistently meet the expected academic standards. Upon moving suburbs, he also moved schools and re-entered mainstream classes in which his grades improved.
In late 2018, the appellant’s mother experienced significant medical issues involving hospitalisation, and the appellant’s father lost his job. These events resulted in a change of financial circumstances for the family; for the appellant, this included no longer receiving a daily allowance. The appellant thereafter attempted to generate an income by trying to sell goods on the internet. Eventually, the appellant was lead to the Locanto website whereby he began to advertise and provide sexual services to men and women in exchange for money. Counsel for the appellant submitted that these actions were a reflection of how hopeless the appellant felt at the time and that he became entrenched in this behaviour.
The appellant was a victim of assault on two occasions, the latter being in 2018 and believed to be in connection with rape allegations made against the appellant by A. The appellant was hospitalised following the assault. The rape allegations were eventually withdrawn but news of the allegations had been disseminated around the appellant’s school, for which he was also bullied. These events were said to be the catalyst for the appellant’s reckless behaviours and increased drug consumption. That being said, the appellant reported significant poly-substance usage, his first use being cannabis when he was about 14–15 years old. His drug usage increased over time in frequency, quantities and types of drug including MDMA/ecstasy and non-prescribed mediation such as Valium, Xanax, and OxyContin.
The appellant suffers from complex Post-Traumatic Stress Disorder (diagnosed following the 2018 assault), anxiety and depression. The appellant has had a total of three documented admissions to the Women’s and Children’s Hospital for overdoses connected to suicide attempts. It was also noted in the s 32 report that the appellant himself had been the victim of a sexual assault, which he described as highly distressing.
Insights into offending behaviour
The Magistrate had before him a s 32 report conducted in August 2020. While the appellant has demonstrated some remorse and acceptance of responsibility for his offending behaviour by virtue of entering guilty pleas, the content of the s 32 report is concerning. Of particular concern was the appellant’s minimal insight into victim awareness, and need for significant prompting to consider possible impacts of his offending on the victims. He justified his sexual offending with reference to the deceit of E in relation to her age, wanting to assist E financially, and his confusion of the legal age for sexual consent. Counsel for the appellant submitted the appellant has since been reflective of how things could have gone wrong for E, and the impact of the offending behaviour.
I also note the victim impact statements of both E and A, who both described the appellant as manipulative and controlling. Examples of such behaviour were given that the appellant would tell E that “I would do it if I loved him”; A similarly described being made to feel “that if I was not doing what he wanted all the time it meant that I didn’t love him”. Both young women suffer mental health issues, exacerbated by their interactions with the appellant and the consequences of his offending behaviour.

The appellant’s trafficking in drugs consisted of running a business of selling illicit substances on an online application; his customers were close friends and his sole motivation for engaging in the trafficking was to help his friends through difficult times (ie pain or difficult personal circumstances). However, he also required money. The s 32 report revealed his complacency of the risks associated with drug consumption.
Personal circumstances since original sentence
The appellant has been living alone in Bowden, in supported accommodation organised by HYPA. He maintains contact with his parents by telephone and weekly visits; his relationship with his father, in particular, is improving. The appellant is employed as a dishwasher at a restaurant with a base average of 20 hours per week; he hopes to increase his working hours upon completion of an online learning course. He is also undertaking a Certificate III in Business online through Youth Employment Services and has expressed desires to work towards qualifications in business administration and accounting. The appellant has been compliant in attending appointments as mandated by the obligation. He attends weekly psychological appointments, drug and alcohol services counselling, and engages with a mentor provided by the Red Cross for social activities in the community. He has abstained from the use of illicit substances.
Should conviction(s) be imposed?
Section 21 of the Young Offenders Act 1993 provides that upon finding a youth guilty of a major indictable offence, the Court should record a conviction for the offence unless there are special reasons for not doing so. The appellant contends that recording convictions in this matter is inconsistent with s 3 of the Young Offenders Act 1993, and seeks an order that the matters be dealt with by way of no convictions due to special reasons having been established.[3] The respondent maintains that convictions are appropriate in accordance with s 21 of the Young Offenders Act 1993 and that no special reasons exist for not imposing a conviction.
Convictions and “special reasons”
[3] The special reasons sought to be relied upon appear in the affidavit of Ms Chester sworn 5 November 2020 and the written submissions before this Court.
The meaning of “special reasons” is not capable of precise definition.[4] However, it is accepted that what constitutes “special reasons” requires circumstances which lie “outside the ordinary case”.[5] Thus, the Court will record a conviction for each offence unless convinced that special reasons exist for not doing so.
[4] S, JC v Police (2007) 96 SASR 432 at [55] citing Baker v The Queen (2004) 223 CLR 513 at [13].
[5] S, JC v Police (2007) 96 SASR 432 at [56].
In the present case, all but 3 offences[6] are major indictable offences. Thus, the Court must be satisfied that special reasons exist for convictions not to be imposed for each of the major indictable offences that the appellant has pleaded guilty to.[7] It was not suggested that the Magistrate erred in failing to differentiate between the recording of convictions for the three summary offences and the major indictable offences.
Appellant’s submissions
[6] Counts 1, 3 and 5 of the second file (drug/firearm offending) are summary offences.
[7] That is, Counts 1 to 5 and 7 to 12 on the first file (sexual offending) and Counts 2 and 4 on the second file (drug/firearm offending).
Before the Magistrate, counsel for the appellant submitted that the following circumstances amounted to special reasons:[8]
[8] Affidavit of Ms Chester sworn 5 November 2020 at [28].
·the appellant has good prospects for rehabilitation evidenced by his progress within the Youth Training Centre and earlier on supervised bail;
·the appellant is committed to abstaining from drugs and alcohol and obtaining assistance;
·the appellant has continued support from his parents, in particular his mother;
·the appellant is now over 18 and the fear of future offending resulting in adult incarceration is a significant personal deterrent;
·the appellant has no prior offender history;
·the appellant has spent a significant period of time in custody;
·the appellant’s remorse is evident by virtue of his agreement to the imposition of intervention orders protecting the complainants;
·the offending was committed over a short period of time;
·the appellant’s personal circumstances including struggles with drugs, alcohol and mental health issues; and
·the application of the objects and policies of s 3 of the Young Offenders Act 1993.
On appeal, Mr Mead SC for the appellant, reiterated those matters. As error had been demonstrated and this Court was in effect resentencing the appellant, the appellant’s conduct and circumstances since the original sentence was imposed are relevant. Mr Mead SC highlighted the progress the appellant had made whilst in custody and therefore his good prospects for continued rehabilitation. It was submitted that the appellant’s case lies outside the ordinary one given his commitment to his education and underlying employment potential in light of his mental health and substance abuse, and in circumstances of being victim to sexual assault and having prostituted himself.
The appellant submitted that s 3 of the Young Offenders Act 1993 provides the policy context within which s 21 and the discretion therein not to record a conviction is to be read. Relevantly, ss 3(1)–(2) of the Young Offenders Act 1993 provide:
(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;
(c) the community, and individual members of it, must be adequately protected against violent or wrongful acts.
Also relevant to the appellant’s argument is the policy consideration in s 3(3)(d) that there should, to the extent possible, be no unnecessary interruption of a youth’s education or employment.
Mr Mead SC submitted that the appellant is a youth of great academic and employment potential that s 3 of the Young Offenders Act 1993 aims to develop by providing “care, correction and guidance”. Employment and employment prospects are relevant to a consideration of s 3(1) of the Young Offenders Act 1993.[9] The appellant’s academic excellence in his earlier years, including acceptance into an accelerated curriculum program, and subsequent performance whilst in custody demonstrates his apparent intellectual ability to do well. He was described as being well focused and motivated towards his learning, both in the past and more recently. The appellant was enrolled at Adelaide University College during the period of release following the second lot of offending, and reported enjoyment of the structure, routine and intellectual stimulated this provided. The objectives in s 3 of the Young Offenders Act 1993 are, the appellant submitted, to be better achieved by offering the appellant an incentive to continue working towards realising his potential. Recording convictions, it was submitted, would have the opposite effect, as it often has long term negative consequences.[10]
[9] W, SS v Police [2014] SASFC 64.
[10] See R v Lambert [2009] SASC 307.
The appellant further submitted that it is not an uncommon occurrence in the Youth Court for major indictable offences to be dealt with by way of no conviction given a youth’s lack of prior history. Aside from the offending subject to this appeal, the appellant has no prior offender history. Similarly, major indictable offences can be referred out of court to be dealt with by way of a Family Conference,[11] demonstrative of flexibility when dealing with youths even in the context of major indictable offences.
[11] Young Offenders Act 1993 (SA) s 17.
Further, the appellant submitted that even though a Court orders detention, it can and should still exercise its discretion not to record a conviction.[12] The appellant submitted that the Court should be mindful of the effect that a conviction has upon a young person’s future prospects,[13] particularly a youth of the appellant’s employment potential, as outlined above.
Respondent’s submissions
[12] R v Police [2002] SASC 403.
[13] R v Lambert [2009] SASC 307; B, JL v Police [2017] SASC 9.
The respondent submitted that the appellant had failed to prove that special reasons existed. The respondent submitted that the matters raised by the appellant were common to many young offenders.[14] The gravity of the conduct, the nature of the offending being major indictable offending, and the public interest weighed heavily in favour of recording convictions. The respondent highlighted that the sexual offending involved placing another child at risk and involved a breach of trust of the complainants, with whom he had been in a relationship. Both young women expressed their embarrassment and anxiety in knowing explicit images of them have been publicised and the implications this may have on their future employment prospects. Further, whilst the appellant had no prior criminal convictions, the drugs/firearm offending were committed whilst on bail for a series of very serious sexual offending charges. The appellant’s offending in both instances demonstrated manipulative characteristics towards both E and A and a willingness to engage in criminal enterprise motivated by financial benefit or self-indulgence.
[14] See S, JC v Police (2007) 96 SASR 432 at [57].
The respondent submitted that, despite the objectives espoused in s 3 of the Young Offenders Act 1993, s 21 specifically contemplates the fact that youths will be convicted when found guilty of a major indictable offence. The respondent conceded that convictions are likely to have a negative impact upon future prospects, but contended that the section reflects the fact that the ongoing effect and punishment felt by virtue of convictions for this type of offending is appropriate, and indeed anticipated to arise, in the absence of special reasons. More generally, in R v Yousef,[15] Sulan and Layton JJ observed:[16]
A conviction does not merely record a finding that the person committed the crime charged: it condemns him for the crime; it is a communicative act, communicating censure to the convicted person. The recording of a conviction acts as a general deterrent to others who may be inclined to offend in a similar way.
There is an important public interest in convictions being recorded to express community disapproval of a defendant’s conduct. A court will be more inclined not to record a conviction where the offending has had no direct effect on a victim, and where the breach is not deliberate and blatant.
[15] (2005) 155 A Crim R 134.
[16] R v Yousef (2005) 155 A Crim R 134 at [60]–[62] (citations omitted).
The respondent conceded that it is open to a court, in an appropriate case, to order a period of detention without recording a conviction. However, the respondent noted the observations of White J in S, JC v Police[17] that there would
[b]e an incongruity in the Court concluding that the circumstances were of sufficient seriousness that no sentence other than a sentence of eight week detention would be adequate, but that there were nevertheless special reasons making it inappropriate for the Court to record a conviction.
[17] S, JC v Police (2007) 96 SASR 432 at [57].
Resentence
While I have already considered the question of the length of the sentence, the question of whether convictions should be recorded is to considered by this Court afresh. When considering this matter, I have had regard to the Magistrate’s remarks which set out the appellant’s personal circumstances in great detail, as well as the s 32 report, victim impact statements of E and A, and the written and oral submissions of both counsel before the Magistrate and this Court. I note that this Court was not provided with any further psychiatric or psychological report of the appellant to consider upon resentencing.
In the present case, I am of the view that it would be incongruent to impose a period of detention that is capable of properly reflecting the seriousness of the major indictable offending without recording convictions. I am not satisfied that the appellant’s circumstances are outside the ordinary case as to amount to special reasons warranting no convictions.
Whilst I accept that the appellant has had some time to reflect upon the impact of his offending behaviour, I am of the view that the content of the s 32 report is a cause for concern; the appellant’s insight and remorse into such serious offending is limited such that further work will be required into the future. It would further be against the public interest not to impose convictions for this type of offending.
I would record a conviction for each offence.
As I have reached the same conclusion as the Magistrate, it is appropriate, despite the error in sentencing to dismiss this ground.
I would dismiss Ground 1.
Orders
1. The appeal is dismissed.
BLEBY JA: I would dismiss the appeal for the reasons given by Lovell JA.