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.

1. NYLAND J:          I agree that the appeal should be allowed for the reasons expressed by Layton J.  I agree with the orders she proposes.

2. BLEBY J:             I agree with the orders proposed by Layton J and with her reasons.

   LAYTON J:

   Introduction

3. 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 Judge decided not to record a conviction.  O appeals against his sentence on the ground that it was manifestly excessive.

   [1]    Criminal Law Consolidation Act 1935 (SA) s 137(1).

   [2]    Criminal Law Consolidation Act 1935 (SA) s 20(4).

   Circumstances of the offending

4. The offending occurred on 18 November 2006 at Paralowie. The victim, who was 15 years old at the time, was walking along Whites Road with two of his friends towards another friend’s house.  O, who was in the company of five other youths, aged 16 and 17 (“the group”) was in a car travelling along Whites Road.  The social background report describes how the group “decided that they wanted to start a fight with someone”.  Two of the victim’s friends had run across the road in front of the car, but the victim decided to wait for it to pass before crossing the road.  As the victim crossed the road after the car had passed, he attempted to catch up with his friends. As he was doing so the car turned around at a nearby roundabout and stopped.  The victim then described a man yelling at him from the car, and then soon after, two or three occupants getting out of the car, before yelling at him and chasing him down the street.  The victim stated that as he was running away, he felt something hit his right leg, which he believed was a pole, and then fell to the ground. 

5. On the victim’s account, as he was on the ground he was then hit with a pole on numerous occasions and was also kicked in the legs.  The victim also claimed that he saw a knife and was stabbed.  When interviewed by police, O admitted that he was involved in the attack, and that he had struck the victim with his studded belt.  O said that it was his belt that caused some of the victim’s cuts and denied that a pole and/or a knife were used.

6. After the attack, the assailants stole the victim’s mobile phone, wallet and shoes, before hitting him again and running off.  Soon after the incident, the police located the assailants’ car.  The police searched the vehicle and found a pole as well as a knife inside it.  In addition, they found a mobile phone, later identified as being the victim’s, and the victim’s shoes.

7. When questioned by police, O initially gave answers which suggested that he did not know about the pole or knife being in the boot of the car but later gave answers which suggested that the pole or knife were not used because they were in the boot of the car, or in the alternative, that he did not see them being used.  He also gave contradictory answers as to whether or not he knew that there was a pole and a knife in the car.

8. As a consequence of the attack, the victim sustained a “very bad” wound on the right side of his head, requiring nine stitches; two further cuts to the back of his head each requiring five stitches; cuts on both his left and right shoulders, requiring four and five stitches respectively; and a cut to his right leg requiring four stitches.  The victim required a total of 27 stitches and, in addition, suffered bruising on his arms and legs.  The Victim Impact Statement also outlines the considerable emotional and psychological scarring suffered as a result of the attack.

   Personal circumstances of O

9. O is of Cambodian Australian background. He was 14 years of age at the time of the offending.  He is one of three children; he has an older sister and a younger one. He has no prior record.  The social background report tendered at the hearing before the Judge discloses that O is from a stable and supportive family and is in year 10 at high school.  He has expressed interest in doing an apprenticeship in either mechanics or as a chef. He requires some assistance and guidance in achieving this goal including possibly enrolling in a TAFE course.  O told the writer of the report that in the months preceding the offending, he began to spend time with the group of older youths (aged 16 and 17) with whom he committed the offences.  At the time of the offending, O was staying with his grandparents whilst his parents had gone to visit relatives in Cambodia for a short period.  O had obtained permission from his grandparents to return to his home to use a computer.  Whilst he was at his home, his older friends came over and there was a party with music and alcohol. He later went with these friends for a ride in a car driven by one of them. He said that the group drove around and “wanted to start a fight with someone”.  They saw the victim and two of his friends and jumped out of the car to attack them.  According to O, the attack “was a result of a dare, and that the group of youths consider fighting a good skill to have.”

10. O’s parents were “mortified” when they learnt of O’s behaviour. They grounded him so that he was only allowed out of the house to go to school or when he was with his parents.  He was not allowed to have friends over to the house or receive phone calls at home.  At the time of the interview for the social background report, it was agreed between O and his parents that the plan for the future was to work towards O’s parents meeting his friends and being kept informed as to where he was and with whom.  His parents wanted him to be placed on a curfew so that he was required to be home by 8.00pm on weeknights and 10.00pm on weekends.  They agreed to a court imposing such conditions.

11. O expressed considerable contrition and remorse for his actions, both to the writer of the social background report, as well as in the apology read out in court.  O stated to the writer of the report that he had disassociated himself from the co‑offenders because he saw their attitude to be different from his own. 

12. The writer of the report formed the opinion that O and his parents were genuinely engaged in the interview process and that all of them were frank and honest about the offence.  The writer considered that O “has moved forward from the behaviours and choices that lead [sic] to the offence and that his current commitment to a more positive future should be recognised”.

    Ground of Appeal – manifestly excessive

13. As I indicated earlier, the sole ground of appeal is that the sentence imposed was manifestly excessive.  The primary complaint is that the sentence should have been wholly suspended.  O further argues that even if the sentence was wholly suspended, having regard to O’s subjective personal circumstances and the objective seriousness of the offending, the sentence of six months’ detention was manifestly excessive. 

14. A number of submissions were made to support O’s argument that the Judge erred in his approach to sentencing, namely that he gave:

    ·Undue weight to personal deterrence;

    ·Insufficient weight to the objects and policies in ss 3(1) and 3(3) of the Young Offenders Act 1993 (“the Act”);

    ·Insufficient weight to the provisions of s 23(4) of the Act;

    ·Insufficient weight to the lesser role played by O in the attack on the victim;

    ·Insufficient weight to the much younger age of O than that of his co-offenders;

    ·Inadequate reasons for sentencing, in particular as to why a sentence of detention was required; and

    ·No adequate explanation for not recording a conviction but still imposing a period of detention.

15. In addition, it was submitted that there was disparity between the sentence imposed for one of the co-offenders and that imposed on O.

    Appeals against sentence from the Youth Court

16. It is well established that an appellate court should not interfere with the sentence ordered in the court below unless an error can be identified or unless it can be demonstrated that the sentence was manifestly excessive.  Where there is room for a reasonable difference of opinion, it is inappropriate for this Court to interfere.  It is inappropriate for an appellate court to meddle and tinker with sentences.[3]  Furthermore, the Youth Court is a specialist court which sentences youths on a regular basis.  As a consequence, it is usually better placed than this Court to assess what is an appropriate sentence.[4]  The Youth Court is also a very busy jurisdiction and accordingly, due allowance should be made for the ex tempore reasons and the circumstances in which the Judge imposed the sentence. 

    The Sentencing of Young Offenders: the statutory scheme

    [3]    Uzanski v Searle (1981) 26 SASR 388, 389; Lanham v Brake (1983) 34 SASR 578, 585. Cited in S,JC v Police (2007) 96 SASR 432, 435 per Debelle J.

    [4]    K v Police [1999] SASC 407, [23] per Doyle CJ (with whom Mullighan and Wicks JJ agreed).

    The object of the Act

17. 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

18. 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.

19. 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.

20. 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

21. 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.

22. 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.

23. These comments have been held to equally apply to the current Act.[9] 

    [9]    L v Police (1998) 198 LSJS 481, 491 per Bleby J and S, JC v Police (2007) 96 SASR 432, 439, [46].

24. Finally, a sentence of detention may be suspended if there is “good reason” to do so.[10]

    [10]   Bechara v SA Police (SC(SA), Lander J, 31 March 1995, unreported); Criminal Law (Sentencing) Act 1988 (SA) s 38.

    The statutory and common law obligation to give reasons

25. Section 9 of the Criminal Law (Sentencing) Act 1988 (SA), (“the Sentencing Act”) provides as follows:

    (1) A court must, upon sentencing a defendant who is present in court—

    (a) state its reasons for imposing the sentence;

    …

    (2) The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.

26. Section 9 of the Sentencing Act is applicable to sentencing in the Youth Court by virtue of s 3A of the Sentencing Act.

27. In addition to this statutory obligation, the Court of Criminal Appeal in R v Capalbo[11] clearly stated the obligations under common law for a sentencing Judge to give, at the least, brief reasons for the sentence being imposed, including disclosing the process of reasoning which led to that sentence.[12]  Although White J pointed out in R v Capalbo[13] that it has not been thought that a failure of a sentencing Judge to give sufficient reasons constitutes a ground by itself for setting aside or interfering with a sentence, it may in some circumstances demonstrate a miscarriage of a judge’s sentencing discretion.[14] In relation to sentences from the Youth Court, this has been the case where an appellate court cannot discern whether the Judge appropriately considered the statutory policies set out in s 3 of the Act.[15] 

    [11] (2005) 238 LSJS 245, 261, [98] per White J (with whom Doyle CJ and Besanko J agreed).

    [12]R v Nevermann (1989) 43 A Crim R 347; R v Spreitzer (1991) 58 A Crim R 114,120; Cross v Police [2001] SASC 47, [20]-[30].

    [13]   Shrubsole v Rodriguez (1978) 18 SASR 233. Cited in R v Capalbo (2005) 238 LSJS 245, 261.

    [14]   Papps v Police (2000) 77 SASR 210; AJK v Police (2002) 135 A Crim R 1; RJB v Police [2000] SASC 209.

    [15]   RJB v Police [2000] SASC 209.

28. When a custodial sentence is being imposed, a judge’s responsibility to provide reasons for that sentence is even greater.  As White J explained:[16]

    …in cases in which a custodial sentence is being imposed, it is a reasonable expectation that the sentencing remarks will include the sentencing court’s reasons for the particular sentence being imposed and will address the principal matters put in mitigation.

    [16]   S, JC v Police (2007) 96 SASR 432, 442.

    The Judge’s approach to the sentence

29. In sentencing O, the Judge had the following material before him:

    ·A Victim Impact Statement;

    ·The Police Record of Interview of O;

    ·A social background report from the Department for Families and Communities; and

    ·Two apology letters: one from O, and another from O’s mother.

30. The Judge’s sentencing remarks were delivered ex tempore and as they are relatively brief, I set them out in full:

    You’ve pleaded guilty to these offences that relate to the robbery and bashing of this man, the offences are extremely serious and despite the contents of the social background report and despite the submissions made by Mr Cocchiaro, my view about this matter is this; that there is such extreme violence associated with this random stopping of this man whilst he’s going about his lawful activities; the beating that was associated, the injuries that he sustained, the participation by you in the beating, all of those matters are extremely serious.  These are matters that require in my view, you specifically to be deterred from this type of conduct.

    There was no excuse for you at all except that you were involved with others and I accept that this was not your initial idea.  Your participation in this matter is a grave piece of conduct.  In my view, the violence that’s associated with this needs to be reflected particularly to discourage you from further acts of this type.  You come before the court with no history whatsoever, you’ve pleaded guilty and in addition, you assisted the police when they made their initial inquiries.  Those are very positive things and you should be given proper credit for those matters.

    In my view, an appropriate sentence of detention is a sentence of six months.  I would have imposed a longer sentence had you not assisted the police and had you not entered a plea of guilty I would have imposed eight months.  In my opinion, an appropriate sentence is six months.  I need to consider two things, whether that should be following a conviction or not.  The submissions of Mr Cocchiaro that I should not record a conviction.  Your lack of history is the reason that that submission should be accepted.

    I also need to consider whether any or all of that sentence should be suspended.  In my opinion it is not appropriate in your case given the role of specific deterrence and given the role of violence associated with these matters to require that the whole of the sentence be suspended.  In my view, an appropriate approach to this matter is to direct as I do that you be released after serving two months.  You’ll serve two months and you’ll then enter an obligation to be of good behaviour for the balance of the sentence.

    I repeat, I won’t record a conviction, you’re sentenced to six months detention.  You are to be released after serving two months.  You’ll be taken into custody to serve the two months. 

1. Before specifically addressing the primary submissions made on appeal, I make some preliminary observations about the Judge’s remarks.  I note that the Judge has not explicitly stated the circumstances of the offending upon which O is being sentenced.  He did not specifically refer to O’s admitted conduct of using his belt to assault the victim.  However, it appears implicit in the Judge’s sentencing remarks that O was being sentenced on the basis of his participation in a joint criminal enterprise. I note that the Judge made reference to the submissions made by the prosecutor who had made submissions on both bases of criminal responsibility, that is primary and secondary liability, and the effect of all the injuries on the victim.  The Judge similarly referred to “the beating” and also appears to treat O as criminally responsible for all the injuries sustained by the victim.  Accordingly, the Judge’s treatment of O’s offending as “extremely serious” was indisputably correct.

2. A second related point is that whilst the prosecution accepted that O did not know that a pole and knife were used in the attack, the Judge has not indicated what his approach would have been if O had known that a pole and knife were in the car and available for use in the attack.  The prosecution made no submission to the Judge on this point. The relevance of a submission and a finding on this issue concerns the Judge’s basis for sentencing O for a joint enterprise, in particular whether it included an understanding by O of the potential for such weapons to be used by his co-offenders in deciding to attack the victim.  The prosecutor should have properly articulated this matter to the Judge.

3. In the absence of a submission and finding on that topic, I consider that the Judge was entitled to take the most favourable view, which was that O was not aware of a pole or knife in the car or that they were used by the co-offenders in the attack. Instead he was aware on his own admission of the use of other objects used to attack the victim and cause injury, namely studded belts.

4. Turning now to the primary arguments on appeal. 

   Submissions of Counsel

   Recording of Conviction

5. Dealing first with the Judge’s decision not to record a conviction. O complains that the Judge’s decision not to record a conviction is incongruous with the detention imposed, and there is no adequate explanation for such an approach. 

6. Section 21 of the Act requires the Court to record a conviction for major indictable offences “unless there are in the opinion of the Court special reasons for not doing so, and a formal record of those is made in the Court’s reasons for judgment”. In R v Police,[17] which was confirmed in S, JC v Police,[18] Gray J stated that the recording of a conviction is not a necessary pre-requisite for the imposition of a sentence of detention.  Further, it has been stated that in appropriate cases, it is open to the Youth Court to order detention, yet refrain from recording a conviction.[19] 

   [17] (2002) 224 LSJS 210, 220-1, [32]-[35].

   [18] (2007) 96 SASR 432, 440, [52].

   [19] (2002) 224 LSJS 210, 223, [39].

7. In the present case, it appears that the Judge found that O’s lack of criminal history was a “special reason” for not recording a conviction.  Given the ultimate penalty imposed, I consider that the approach adopted by the Judge was appropriate and not inherently incongruous.

   The sentence imposed was manifestly excessive

8. Counsel for O, Ms Davey, submitted that two specific errors arise from the sentence: First, that the Judge gave undue weight to personal deterrence; and second, that the Judge gave insufficient weight to the statutory policies set out in s 3 and the considerations for imposing a sentence of detention contained in s 23(4) of the Act.

9. Ms Davey submitted that given O’s personal circumstances and his role in the offending, the Judge’s emphasis on personal deterrence as the reason for such an immediate period of detention was neither stated nor obvious from the circumstances of the offending or O’s personal circumstances.  It was submitted that personal deterrence had been substantially accomplished and an appropriate response from the Court should have been a regime of supervision, or if a period of detention was warranted, a suspended term of detention.  I note that the only supervision present in the current sentence is that of the two months in detention; the remaining four months of the sentence do not have any supervisory conditions at all.  After being sentenced, O had been the subject of a bail agreement with curfew conditions and a requirement to abide by reasonable directions of his father and another guarantor.

10. Ms Davey drew the Court’s attention to the following mitigatory factors, which she submitted the Judge failed to give sufficient weight in imposing his sentence:

    ·O’s lesser, albeit serious, role in the offending – for example, O was not the “knife-wielder”;

    ·The factual background to the offending – O was away from his parents and was not subject to his usual parental control;

    ·O was only 14 at the time, whilst the co-offenders were 16 or 17;

    ·The seven hours spent in custody when O was first arrested;

    ·O’s contrition and remorse indicated expressly through his early plea of guilty, admission of guilt and apology letter;

    ·O’s supportive family, who have accepted responsibility and have implemented their own supervisory regime and the interruption to that regime which would result from a custodial sentence; and

    ·The obvious interruption to his schooling at a crucial time of his development.

11. Underpinning this submission was the contention that the Judge’s sentencing remarks were inadequate. Ms Davey submitted that the Judge failed to explain why immediate detention was the only option available to O. With the exception of the reduction for the plea of guilty, the Judge does not refer to any of the above factors or indicate how they influenced the outcome. She submitted that the Judge’s failure to provide adequate reasons when coupled with O’s personal circumstances, the policy considerations underpinning the Act, and the seriousness of sentencing a 14 year-old to an actual period of detention, demonstrates error and that the sentence imposed was manifestly excessive.

12. In response, counsel for the respondent, Ms Barnett, conceded that the Judge’s remarks were scant in detail, but submitted that the Judge had heard lengthy submissions about the sentencing options under the Act, and had considered all the material before him.

13. Whilst Ms Barnett conceded that the sentence imposed was unusually harsh, she submitted that given the seriousness of the offending, and the Judge’s concerns about the need for personal deterrence, the sentence was reasonably open to the Judge, who was an experienced judicial officer.  Ms Barnett also submitted that given the fact that this attack could have resulted in far more dramatic consequences, the Judge’s emphasis on personal deterrence was justified in the circumstances.  Ms Barnett submitted that despite the mitigatory factors, in particular the very positive balance of the social background report, the Judge was entitled to consider personal deterrence as an important factor.  In support of this submission, Ms Barnett drew the Court’s attention to O’s susceptibility to peer pressure, his active participation in the attack, his initial lies when first questioned by police and the fact that this was his first incursion into criminal activity.

14. Having carefully considered the submissions of counsel, and all the material available at the time of sentencing, I consider that the Judge’s approach in sentencing discloses two errors. First, the sentencing remarks are so brief and inadequate that one is unable properly to discern the Judge’s reasoning, particularly in the light of the requirements of s 3 of the Act, and of the various sentencing options available to him. Given the very serious nature of sentence being imposed, the age of O, and the fact that this was his first offence, the Judge should have, at the very least, explained why a period of immediate detention was necessary in the circumstances. This clearly was not done and, in my view, demonstrates a failure of the Judge to consider these statutory requirements.

15. Second, it appears that His Honour’s preoccupation with the gravity of the offending, and the need for personal deterrence, has put a term of immediate detention at the forefront of the sentencing options, rather than as an option of last resort.[20]  Whilst it was open for the Judge to consider detention as an option for sentencing by virtue of the gravity of the offending, the Judge did not explain his rejection of all other lesser sentencing options, including suspending the whole of the detention, in ordering two months’ detention to be actually served.  In this case, a period of actual detention would profoundly disrupt O’s family life by withdrawing him from a supportive family environment and would considerably interrupt his eduction.  Furthermore, with the exception of the two months to be served in custody, the sentence fails to provide for any supervision, which as I noted above, has already been implemented by O’s family, and reinforced in O’s current bail agreement.  In addition, whilst I agree that personal deterrence was a relevant consideration given the very serious nature of offending, there was ample material demonstrating that his insight into his offending and his subsequent conduct diminished the weight to be given to that aspect of the sentencing.  There was “good reason” for the whole of the term of detention to be suspended.  In my view, the Judge erred in failing to do so, and as a consequence, the sentence imposed was manifestly excessive.

    [20]   See L v Police (1998) 198 LSJS 481, 491 per Bleby J.

16. Notwithstanding the question of suspension, I also consider that the starting point of eight months’ detention, and the resultant sentence of six months’ detention was manifestly excessive.  Taking into account all the relevant factors, in particular the gravity of the offending, the maximum penalties, as well as O’s lesser role in the offending and his lack of previous convictions, in my view, an appropriate sentence would have been four months’ detention.

    Disparity

17. Although disparity was not raised as a ground of appeal, at the hearing of the appeal Ms Barnett disclosed that on the day after O was sentenced, a co‑offender, N, pleaded guilty to three counts of aggravated robbery committed on three separate occasions over a four week period.  For this offending N, who was 17 years-old at the time of this offending, was sentenced to 10 months’ detention, with four months to be served.  N was the driver of the car, and used a belt to assault the victim – he was not the person wielding the knife.  Ms Davey submitted that this disparity between the sentence imposed on the co-offender N and that imposed on O of itself suggests that the sentence imposed on O was manifestly excessive.  I agree.

    Re-sentencing

18. Having found that the sentence imposed was manifestly excessive, I consider it appropriate for this Court to set aside the sentence and sentence O afresh.

19. The offending was extremely serious.  It was premeditated, unprovoked, deliberate and vicious.  The victim was defenceless and suffered substantial injuries.  Given the gravity of this offending, I consider that a sentence other than detention would be inadequate, but I would sentence O to four months’ detention for the reasons previously set out.  In light of O’s personal circumstances, in particular his age, his previous unblemished record, his clear contrition and remorse as well as his supportive family environment and the obvious need for a period of appropriate supervision, I consider that there is “good reason” to suspend the whole of the sentence.  This would best promote the statutory object of “care, correction and guidance” by preserving and strengthening O’s family relationship and enabling him to continue with his education, yet at the same time deter him from re-offending, protect the public, and hopefully give the victim a sense that justice has been served.  I also take into account that the appellant has already experienced two periods in custody as a result of this offence.  The first was for seven hours when he was first arrested.  The second was for in excess of 24 hours upon the sentence being imposed and before he was released on bail pending appeal.

20. For these reasons, I would make the following orders:

    1The appeal be allowed.

    2The sentence imposed in the Youth Court be set aside and in its place the appellant be sentenced to four months’ detention.

    3Pursuant to s 26(2) of the Young Offenders Act 1993, an obligation be imposed for 18 months, with the sentence of detention to be suspended so long as the appellant complies with the following conditions of this obligation:

    (a)     To be of good behaviour for the duration of this obligation.

    (b)To be under the supervision of an officer of the Department for Families and Communities or other person nominated by the Chief Executive of that Department and obey the directions, including directions for participation in projects or programmes, of that officer or person.

    (c)To remain at home or such other place as approved by an officer of the Department for Families and Communities or other person nominated by the Chief Executive of that Department, each night between the hours of 8 pm and 7 am, and Friday/Saturday and Saturday/Sunday between the hours of 10 pm and 7 am, or at such other times as may be approved by that officer or person.

    (d)Not to associate with PR, VH, VT, HN and MF or with any other person named by the Community Welfare Worker as an undesirable companion.

    (e)To report to Families SA at its Salisbury office, located at 16-18 Ann Street, Salisbury, on or before 4.00 pm on Tuesday 2 October 2007.

    4No conviction be recorded.

    5The appellant pay the Victims of Crime Levy of $80.

21. I note that a failure to comply with this obligation could result in the suspension of the four months’ detention being revoked.  Furthermore, such non-compliance would make O guilty of an offence which is punishable by a fine or a further period of detention or both.