LRH v Police No. Scciv-03-278

[2003] SASC 107

LRH v POLICE
[2003] SASC 107

Magistrates Appeal:  Criminal

1. PERRY J. (ex tempore) The appellant appeals against a penalty imposed upon him in the Youth Court sitting at Maitland, following his plea of guilty to a charge that on 17 November 2002 at Ardrossan he hindered a police officer in the execution of his duty, contrary to s 6(2) of the Summary Offences Act 1953.

2. The appellant is a youth aged 16 years. He appeared unrepresented in the court below, but with his father in attendance. Without entering a conviction the appellant was discharged upon entering into an obligation in the amount of $200 for a period 12 months, on conditions to be of good behaviour and to reappear for conviction and sentence in the event of a breach.

3. He complains in his notice of appeal that the penalty imposed was “too severe a sentence for a first offence”.

4. It appears from the affidavit which has been filed in this Court by the police officer who was responsible for conducting the case for the prosecution in the Youth Court that the offence occurred in the early hours of the morning of Sunday 17 November 2002, when police officers attended outside the Royal House Hotel in Fifth Street, Ardrossan. The appellant was standing outside of the hotel and intervened when police officers attempted to arrest another male person, and it is that conduct which has given rise to the charge.

5. It appears that the appellant’s father is the publican who was managing the Royal House Hotel at the time. He had requested his son, the appellant, to stand in front of the hotel until closing time to prevent youths from congregating and from making a noise. The appellant was following that instruction at the time when the incident in question occurred.

6. The appellant has completed secondary school at the end of 2002, and has commenced a TAFE course at Kadina Campus.

7. Very properly, Mr Nguyen who appeared as counsel for the respondent, has conceded the appeal on the basis that the learned sentencing magistrate erred in various respects. In particular, Mr Nguyen concedes that given that at the hearing the appellant was unrepresented, it would have been preferable for the sentencing magistrate to refer to the objects and purposes of the Young Offenders Act 1993, and to advise the appellant of the diversionary avenues which are available under s 17 of the Act, more particularly to have the matter dealt with by a police officer or by a family conference.

8. In making that concession, I think that Mr Nguyen is right, and that the magistrate should have taken the course which is suggested.

9. Rather than refer the matter back to be dealt with again in the Youth Court, I will accept the submission made by Mr Nguyen that I should substitute what seems to me to be the appropriate penalty.

10. I quash the sentence under appeal and I re-sentence the appellant by ordering that the matter be dealt with by family conference.

11. I make no order as to costs.

12. Do you understand what I have ordered, Mr H?

13. MR H SENIOR:     Yes.

14. MR H JUNIOR:     Yes.

15. HIS HONOUR:      I have in effect done away with the order that was made and substituted an order that the matter be dealt with by way of family conference. You heard Mr Nguyen explain that that is arranged from the Youth Court here in Adelaide. You will be advised of that appointment. I urge you to make sure you go to it and co-operate, because you may not have another chance like that if you get into any further trouble.

16. But I am confident you are not going to get into any further trouble and I think that you have probably learnt your lesson.

17. Heed my words, make sure you go to the family conference and make sure that you keep out of trouble. All right?

18. MR H JUNIOR:     Yes.