M, MA v Police
[2013] SASCFC 140
•18 December 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
M, MA v POLICE
[2013] SASCFC 140
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Blue)
18 December 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
This is an appeal against sentence. The defendant and appellant pleaded guilty in the Youth Court to two counts of aggravated robbery. On 3 September 2012, the defendant and his adult co-accused committed robbery at a post office. An employee and a customer of the post office were threatened with knives during the robbery. Monies were taken from the money drawer and from the customer. The defendant was aged 17 years at the time of the offending. The offending occurred in breach of the terms of an obligation imposed on the defendant in the Youth Court in respect of earlier offending. The defendant was sentenced in respect of all of the offending to a term of detention of 18 months. The Judge ordered that he be eligible for conditional release after 12 months.
Whether the sentence imposed was manifestly excessive. Whether the Judge erred in failing to suspend the sentence of detention. Whether the Judge’s reasons paid sufficient regard to the object and policies of the Young Offenders Act 1993 (SA). Whether the Youth Court has the power to backdate a sentence of detention.
Held per the Court (dismissing the appeal):
1. The sentence imposed was appropriate having regard to the defendant’s criminal culpability and the need for personal deterrence (at [17]).
2. It would have been preferable for the Judge to emphasise the special provisions relating to the sentencing of young offenders, but the Judge did not overlook those provisions (at [18]).
3. Section 3A and section 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) enable the Youth Court to backdate a sentence of detention (at [21]).
Young Offenders Act 1993 (SA) s 3 and s 23(4); Criminal Law (Sentencing) Act 1988 (SA) s 3A and s 30(2), referred to.
A, MC v Police [2008] SASC 279; Edwards v South Australia Police (1995) 180 LSJS 215, considered.
M, MA v POLICE
[2013] SASCFC 140Full Court: Gray, Anderson and Blue JJ
THE COURT.
This is an appeal against a sentence imposed in the Youth Court.
The defendant and appellant, following his pleas of guilty, was convicted of two counts of aggravated robbery committed on 3 September 2012. At the time of the offending, the defendant was under an obligation imposed in the Youth Court on 22 June 2012. That obligation related to the offences of aggravated serious non-residential criminal trespass, damage building not graffiti and dishonestly take property without owner’s consent. The terms of the obligation required the defendant to be of good behaviour, to be under supervision and to participate in educational or vocational training as directed. The term of the obligation was for six months. The defendant pleaded guilty to breaching the obligation.
The defendant was sentenced in respect of all of the above offending to a term of detention of 18 months, the Judge having made a reduction of six months on account of the guilty pleas. The Judge noted that the defendant would become eligible for conditional release at the expiration of two thirds of his sentence; that is, after a period of 12 months. The sentence was backdated to commence on 12 February 2013. The Judge declined to suspend the sentence of detention.
On appeal, the defendant contended that the sentence of detention of 18 months was manifestly excessive. The defendant further contended that the Judge erred in failing to suspend the sentence of detention.
It was the submission of the Police that the sentence imposed was an appropriate sentence having regard to the defendant’s antecedents and to the fact that the offences occurred within three months of the defendant being released on the obligation. Counsel for the Police pointed out that at the time of the hearing of the appeal, the defendant had served almost nine months of the order for detention and would be eligible for conditional release in about three months.
It was the prosecution case that on 3 September 2012, the defendant and his adult co-accused, Benjamin Donald Allan, attended a Post Office at Para Hills. The defendant was then aged 17 years and 9 months and Allan was aged 18 years. An employee of the Post Office described seeing two men dressed in overalls and wearing balaclavas enter the store just before midday. Both were carrying large knives. At that time, the employee was at the eastern end of the service counter. Upon seeing the defendant running towards him, the employee moved towards the other end of the service counter. The defendant then jumped the counter where the employee had been standing and went to the money drawer which had been left closed but unlocked. The employee was unable to recall whether anything was taken from the money drawer at that time. The defendant then moved towards the employee, yelling and confronting the employee with the knife carried in an aggressive manner. The employee pushed a cabinet towards the defendant in an effort to scare him away.
The employee then saw Allan standing in front of a customer. Allan threatened the customer and demanded his wallet. Allan was holding a knife in front of the customer’s stomach. The customer put his wallet on the counter and Allan took it and left through the exit. The customer also reported that Allan took $800.00 cash that the customer had placed on the counter. The defendant then jumped back over the counter at the western end and left the store.
Later that day, the police attended at a nearby house where clothing, including balaclavas and overalls, had been left in the front yard. DNA testing on the overalls indicated matches with both the defendant and Allan. The defendant was arrested on 31 December 2012. He did not answer questions during his police interview, but when charged said “Why am I being charged with two? It was only one.” After being told that one of the counts related to the robbing of the customer, the defendant said, “Look, I will admit robbing the post office but not a customer.”
The principles relevant to the sentencing of young offenders are outlined by the Young Offenders Act 1993 (SA). The object and policies to be taken into account when sentencing young offenders are addressed by section 3 as follows:
(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.
(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 (whether because the youth's conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—
(i)the deterrent effect any proposed sanction may have on other youths; and
(ii) the balance to be achieved between—
(A) the protection of the community; and
(B) the need to rehabilitate the youth.
(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.
It is relevant to emphasise that the effect of section 3(2a)(a) of the Young Offenders Act is that, in sentencing young offenders as youths, regard is to be had only to personal deterrence, and not general deterrence.
Section 23(4) of the Young Offenders Act places limitations on the power of the Youth Court to impose custodial sentences and provides:
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.
On the appeal, counsel for the defendant submitted that it was not discernible from the Judge’s sentencing remarks how the object and policies specified in section 3 of the Young Offenders Act were applied. It was said that this failure of the Judge was particularly apparent in relation to subsections 3(3)(b)-(d) of the Act. Counsel for the police agreed with this contention. Counsel emphasised the importance of members of the Youth Court having these objects and policies at the forefront of their consideration when sentencing. Counsel drew attention to the following observations of White J in A, MC:[1]
In the present case, the judge did not refer expressly to s 3 or to its provisions. It is also difficult to discern, except possibly by a process of rationalisation of the sentence ultimately imposed, any indication that the judge applied the factors specified in s 3 in the circumstances of this case. The judge did not give any explanation of how the features of the offending which he had emphasised linked with the s 3 considerations. Further, his emphasis on these matters rather suggests that the judge was giving prominence to the punitive aspects of sentencing.
[1] A, MC v Police [2008] SASC 279, [37].
It is to be noted that, as the Court is here concerned with sentencing remarks, it is not necessary for the factors specified in section 3 of the Young Offenders Act to be addressed in detail. It is, however, important that the remarks make plain, at least by necessary inference, that the correct sentencing principles have been applied. For the reasons that follow, we consider that the Judge’s remarks, together with the appropriateness of the sentence imposed, make plain by necessary inference that the principles set out in section 3 were applied.
On appeal, counsel for the defendant drew attention to the defendant’s criminal antecedents, including the absence of any prior criminal history for offences of violence, that he had not previously been sentenced to detention, that he had not had the benefit of a suspended sentence and that prior to his arrest on 31 December 2012, he had not spent time in custody.
Attention was also drawn to the defendant’s personal antecedents. The defendant was raised by his mother with little contact or support from his father. He attended high school until year 11, passing all subjects. Following a falling out with his mother, the defendant left home, either living with friends or being in a state of homelessness. At this time, he was introduced to alcohol and other drugs. During 2012, the defendant became addicted to illicit drugs and accumulated a drug debt. Pressures to repay this debt led to the present offending. It was pointed out that the defendant’s pleas of guilty were entered at an early time and prior to the receipt of the results of DNA testing. It was claimed that he was now drug free and the Court was informed that the defendant would, on release, reunite with his mother in rural South Australia. The defendant’s mother provided a letter of support and confirmed her preparedness to assist her son on his release. A psychological report indicated that the defendant did not suffer from any mental illness, did not hold anti-social values and had some insight into the wrongfulness of his conduct.
The defendant’s offending was very serious. When aged almost 18 years, he and his co-offender, both armed with knives, robbed a post office. In the process, persons were threatened with those weapons. Monies were taken. The defendant’s offending was aggravated in that his conduct was in breach of an obligation entered into in the Youth Court three months earlier. The defendant had been released on that obligation in respect of serious dishonesty offending.
Victims of the offending provided victim impact statements attesting to the consequences of being threatened with a knife. One of the victims was receiving ongoing psychiatric treatment. There is no suggestion in the psychological report that the defendant has any insight into the impact of his conduct on his victims.
In our view, the sentence imposed was an appropriate sentence having regard to the defendant’s criminal culpability and the need for personal deterrence. Apparently the defendant was unconcerned about the terms of the obligation into which he had entered. The fact that he now may have some insight into the wrongfulness of his behaviour does not remove the need for personal deterrence. It is clear that the limitations on the power to impose an order for detention provided by section 23(4) of the Young Offenders Act, as extracted above, were satisfied in this case. A sentence of a non-custodial nature would have been inadequate having regard to the gravity of the defendant’s offending.
It would have been preferable for the Youth Court Judge to emphasise the special provisions of section 3 and section 23 of the Young Offenders Act. It is important that those provisions receive explicit attention. We do not consider, however, that the Judge overlooked these provisions. We are fortified in this conclusion by the appropriateness of the sentence imposed.
One final matter arose on the hearing of the appeal. As earlier mentioned, the Judge backdated the sentence of detention imposed to commence on 12 February 2013. Counsel for the Police drew the attention of the Court to the decision in Edwards, where Prior J observed:[2]
… S23 of the Young Offenders Act 1993 provides that a young offender may not be sentenced to imprisonment. Detention may be imposed in the manner outlined in subs(2). There is no specific authority in the Young Offenders Act to backdate a sentence of detention. The power to remand can be identified in s14 of that Act but any power to backdate must be found elsewhere as no reference to a power to backdate appears there or in any other section of the Young Offenders Act.
A general power to backdate sentences of imprisonment is contained in s30(2)(b) in Pt3 of the Criminal Law (Sentencing) Act 1988. No provision exists in Pt3 of that Act of the kind that appears in Pt5. Pt5 deals with Bonds and Undertakings and contains in s44A, a specific provision applying that Part to a youth by modifying references to imprisonment in Pt5 and directing that those "references are to be read as references to detention". Absent such a provision in Pt3 of the Criminal Law (Sentencing) Act, the power to backdate sentences does not extend to sentences of detention imposed upon young offenders.
[2] Edwards v South Australia Police (1995) 180 LSJS 215, 215.
The decision in Edwards,[3] however, predates relevant legislative amendment. In particular, section 3A of the Criminal Law (Sentencing) Act 1988 (SA) relevantly provides:
[3] Edwards v South Australia Police (1995) 180 LSJS 215.
(1)Subject to any provision of this Act to the contrary, this Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth.
(2)However, in the event of conflict between a provision of this Act and a provision of the Young Offenders Act 1993 or the Youth Court Act 1993, the latter provision prevails to the extent of that conflict.
(3)In applying a provision of this Act to a youth who is being or has been dealt with as a youth (ie, not as an adult)—
(a) a reference to imprisonment is to be read as a reference to detention;
…
Section 30(2) of the Sentencing Act provides:
If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a) make an appropriate reduction in the term of the sentence; or
(b) direct that the sentence will be taken to have commenced—
(i) on the day on which the defendant was taken into custody; or
(ii) on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
The combined effect of section 3A and section 30(2) of the Sentencing Act is, in the absence of a contrary provision in the Young Offenders Act, to empower the Youth Court to backdate a sentence of detention.
We dismiss the appeal.
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