O, C v Police - [2007] SASC 346

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
O, C v POLICE
[2007] SASC 346
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Bleby and The Honourable Justice Layton)
27 September 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS - RELEVANT PRINCIPLES
Appeal against sentence - 14 year old appellant pleaded guilty in Youth Court to one count of aggravated robbery and one count of aggravated common assault - Youth Court Judge imposed a single sentence of six months' detention, with two months to be served and the remaining four months suspended - the Judge decided not to record conviction - whether sentence manifestly excessive - whether sentencing remarks adequate in the circumstances.
Held: the sentencing remarks were inadequate in the circumstances - Judge erred in not suspending the whole of the sentence - sentence of six months' detention manifestly excessive - appeal allowed - sentence of four months' detention substituted - sentence suspended upon appellant entering into an obligation to be of good behaviour for 18 months.
Criminal Law Consolidation Act 1935 (SA) s 20(4), s 137(1); Criminal Law (Sentencing) Act 1988 (SA) s 3A, s 9, s 38; Young Offenders Act 1993 (SA) s 3, s 21, s 23, s 26; Youth Court Act 1993 (SA) s 22, referred to.
Hallam v O'Dea (1979) 22 SASR 133; S, JC v Police (2007) 96 SASR 432, applied.
AJK v Police [2000] SASC 209; Bechara v SA Police (SC(SA), Lander J, 31 March 1995, unreported); Cross v Police [2001] SASC 47; K v Police [1999] SASC 407; L v Police (1998) 198 LSJS 481; Lanham v Brake (1983) 34 SASR 578; Papps v Police (2001) 77 SASR 210; R v Capalbo (2005) 238 LSJS 245; R v Nevermann (1989) 43 A Crim R 437; R v Police (2002) 224 LSJS 210; R v Spreitzer (1991) 58 A Crim R 114; Schrubsole v Ridriguez (1978) 18 SASR 233; Uzanski v Searle (1981) 26 SASR 388, considered.

O, C v POLICE
[2007] SASC 346
Full Court: Nyland, Bleby and Layton JJ.

NYLAND J: I agree that the appeal should be allowed for the reasons expressed by Layton J. I agree with the orders she proposes.
BLEBY J: I agree with the orders proposed by Layton J and with her reasons.
LAYTON J:
Introduction
This is an appeal pursuant to s 22(1)(d) of the Youth Court Act 1993 (SA) against a sentence imposed by a judge of the Youth Court. On 26 April 2007, the appellant, whom I will refer to as O, pleaded guilty to aggravated robbery[1] and aggravated common assault.[2] Taking into account O’s plea of guilty, the Judge sentenced O to six months’ detention, of which two months were to be served, and the remaining four months suspended. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O, C v Police

Details

AGLC: O, C v Police [2007] SASC 346
Case: [2007] SASC 346
Decision Date: 27 September 2007

CaseChat Overview and Summary

The appellant, a 14-year-old, appealed against his sentence in the Youth Court of South Australia after pleading guilty to aggravated robbery and aggravated common assault. The Youth Court Judge imposed a sentence of six months' detention, with two months to be served and the remaining four months suspended, and chose not to record a conviction. The appellant argued that the sentence was manifestly excessive and that the sentencing remarks were inadequate. The Court of Appeal was required to determine whether the sentence was manifestly excessive and whether the sentencing remarks were adequate in the circumstances.

The Court of Appeal found that the sentencing remarks were inadequate and that the Judge had erred in not suspending the entire sentence. The Court held that the sentencing principles for youths, as outlined in s 3 of the Young Offenders Act 1993 (SA), required the Judge to consider the objects of care, correction, and guidance necessary for the youth's development into a responsible and useful member of the community. The Court also held that the statutory policies outlined in s 3(2) of the Act, which include making the youth aware of their obligations under the law and protecting the community, were relevant considerations. Additionally, the Court considered the factors set out in s 3(3) of the Act, which emphasised preserving and strengthening family relationships and avoiding unnecessary interruptions to the youth's education or employment. The Court concluded that the sentence of six months' detention was manifestly excessive and substituted a sentence of four months' detention, suspended upon the appellant entering into an obligation to be of good behaviour for 18 months.

The Court of Appeal allowed the appeal against the sentence, substituting a sentence of four months' detention, suspended upon the appellant entering into an obligation to be of good behaviour for 18 months. The Court of Appeal held that the original sentence was manifestly excessive and that the sentencing remarks were inadequate in the circumstances. The Court emphasised the importance of considering the objects and statutory policies outlined in the Young Offenders Act 1993 (SA) when sentencing a youth and the need to impose a sentence that will best lead to the proper development of the youth's personality and their development into a responsible and useful member of the community. The Court also held that only personal deterrence, and not general deterrence, is a relevant consideration in sentencing a youth.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In sentencing youths, the Court must have regard to the object contained in s 3 of the Act, namely:[t]o 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 for their potential.Relevant considerations Section 3(2) of the Act states that the powers in the Act are to be directed towards that object, and they provide as follows: [5]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 violence or wrongful acts. [5] S, JC v Police (2007) 96 SASR 432, 437 per White J. Under the Act only personal deterrence, and not general deterrence, is a relevant consideration in sentencing.[6][6] S, JC v Police (2007) 96 SASR 432, 437 per White J. Section 3(3) of the Act sets out considerations to be taken into account when sentencing a youth and, relevantly to the circumstances of this case, it provides that:… (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.Sentence of detention In deciding whether to sentence a youth to a period of detention, the Court must have regard to s 23(4) of the Act which provides:A sentence of detention must not be imposed for an offence unless the Court is satisfied that, because of the gravity or 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 inadequate. In Hallam v O’Dea,[7] King CJ (with whom Wells and Legoe JJ agreed) considered the equivalent sections of the previous legislation, which listed factors akin to the objects in s 3 of the Act, and encapsulated the purpose of sentencing of youth. As King CJ said:[8]The purpose of the Court therefore must be to "seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and his development into a responsible and useful member of the community", and it is in doing that that it is to take into account the enumerated factors. The Court should therefore, if detention is indicated, impose on the child the period of detention which "will best lead to the proper development of his personality and his development into a responsible and useful member of the community", taking into consideration the enumerated factors or such of them as may be relevant and appropriate. The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender. [7] (1979) 22 SASR 133.[8] Ibid, 136.