M, G C v Police - [2012] SASC 73

Supreme Court of South Australia
(Magistrates Appeals: Civil)
M, G C v POLICE
[2012] SASC 73
Judgment of The Honourable Justice Stanley (ex tempore)
4 May 2012
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - CUSTODIAL ORDERS - DETENTION IN TRAINING CENTRE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - GENERAL PRINCIPLES
Appellant youth pleaded guilty to offences of damaging property, being unlawfully on premises and failing to comply with a bail agreement – sentenced to five weeks detention – appeal against sentence – whether the magistrate was in error in imposing sentence of detention – whether magistrate gave insufficient consideration to penalties other than detention – whether sentence manifestly excessive – whether magistrate erred in having regard to appellant's past offending – whether magistrate sentenced on wrong factual basis.
Held: Magistrate sentenced on factual basis open to him – no proper basis to interfere – magistrate had proper regard to the gravity and circumstances of the offence – magistrate had proper regard to appellant's past offending – sentence was not manifestly excessive – magistrate did not err in exercising discretion to impose detention – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 85(3); Summary Offences Act 1953 (SA) s 17(1); Bail Act 1985 (SA) s 17; Young Offenders Act 1993 (SA) s 4(1), s 23(4); Criminal Law (Sentencing) Act 1988 (SA) Part 2, Div 2A, referred to.

M, G C v POLICE
[2012] SASC 73

STANLEY J: This is an appeal against a sentence of five weeks detention which was imposed by the sentencing magistrate in respect of pleas of guilty to offences of damaging property contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA), being unlawfully on premises contrary to s 17(1) of the Summary Offences Act 1953 (SA) and failing to comply with a bail agreement contrary to s 17 of the Bail Act 1985 (SA).
The pleas of guilty were entered on the basis of uncontested facts. Those facts were that the appellant had damaged a box of toilet paper to an extent of $140.67, and in the company of others, had unlawfully entered the premises of the backyard of a nursing home where there had been some interference with the window of the premises.
The learned magistrate considered a submission that was put on behalf of the appellant that he had been on the premises solely for the purpose of retrieving a football. He had rejected that submission and instead concluded that the appellant, in the company of others, had been present in the backyard for the purpose of casing the premises for the purpose of a break-in. The learned sentencing magistrate made that abundantly clear in his sentencing remarks. In doing so, he rejected the submission put on behalf of the appellant that the offending was at the lower end of the scale.
Mr Bastick, counsel for the appellant, submitted that the learned magistrate was in error in approaching the exercise of the imposition of sentence on that basis.
In my view, the factual basis upon which the learned magistrate proceeded to sentence the appellant was open to him and, in my view, there is no proper foundation upon which I should or, indeed, could interfere with the basis upon which the learned magistrate proceeded to sentence. As I said, that basis was open to him and there is no proper basis for interfering with the approach that he took in the absence of a contested facts hearing.
Mr Bastick further submitted, on behalf of the appellant, the learned magistrate was in error, even on that basis, in proceeding to impose a sentence of detention. He pointed to the provisions of s 23(4) of the Young Offenders Act 1993 (SA) (“the Act”) and to the policy that underpins that Act, which the authorities establish, requires courts, in exercising the sentencing discretion, only to impose custodial sentences as a last resort. Section 23(4) provides:
(4)     A sentence of detention must not be imposed for an offence unless—
(a)     the offender is a recidivist young offender; or
(b)    in any other case—the Court is satisfied that a sentence of a non-custodial nature would be inadequate—
(i) because of the gravity or circumstances of the offence; or
(ii) because the offence is part of a pattern of repeated offending.:
Section 4(1) of the Act defines a recidivist young offender as “a youth who is declared under Part 2 Division 2A of the Criminal Law (Sentencing) Act 1988 to be a recidivist young offender.” No declaration has been made in respect of the appellant.
Accordingly, in determining whether or not the magistrate has erred in sentencing, I must have regard to the terms of s (4)(b) of the Act. It provides a sentence of detention is not to be imposed unless the court is satisfied that a non-custodial sentence would be inadequate having regard to two matters, namely, because of the gravity of the circumstances of the offence or because the offence is part of a pattern of repeated offending.
The first limb that is to be considered, as Mr Soetratma, counsel for the respondent, points out, is expressed disjunctively. Therefore the court, in exercising its sentencing discretion, must firstly have regard to both the gravity and the circumstances of the offence. Either consideration might warrant the imposition of a non-custodial sentence.
In this respect I accept, as was put by Mr Bastick, counsel for the appellant, that the gravity of the offending must be seen in its context. The learned magistrate rejected the submission that the gravity of the offending was at the lower end of the scale. He did so for reasons that he explained and which I have referred to earlier.
I accept that clearly there are circumstances that are more serious than the offending here, even having regard to the approach that the learned magistrate took to the circumstances of the offending. But when one has regard to the circumstances of the offending, as the learned magistrate found it to be, then it is plain that he proceeded to sentence on the basis that not only was the appellant unlawfully on premises but he was unlawfully on premises for an unlawful purpose and that is the basis that the learned magistrate sentenced him and that was, as I said, a basis that was open to him in determining an appropriate sentence.
Those are the factors that the learned magistrate had to have regard to in considering the first limb of s 23(4)(b) of the Act. On either basis, the learned magistrate was entitled to find the conditions precedent to the imposition of a custodial sentence had been established.
The second limb was whether it was a pattern of repeated offending and, as Mr Bastick has quite properly conceded, that is a difficult hurdle for the appellant to overcome in this case. He has a very poor history of this kind of offending. His history stretches back to 2007. He has been dealt with by the Youth Court on numerous occasions and other sentencing options have been utilised without success. They have had no deterrent effect.
In the circumstances, the court, in exercising the sentencing options available to it in this case for the care, correction and guidance of the appellant, had to consider what sentence would constitute an effective specific deterrent. In my view there has been no error demonstrated in the manner in which the learned magistrate has exercised that discretion.
In this context, I also reject the submission of Mr Bastick that the learned magistrate sentenced the appellant harshly because of his poor record. The learned magistrate did not err in considering his previous offending and response to previous penalties in fixing an appropriate penalty in this case. On the contrary, he was obliged to do so.
For those reasons the appeal is dismissed.
To the extent I have not made it clear earlier I also grant leave for an urgent application to hear the appeal.