P v Police - [2003] SASC 198

P v POLICE
[2003] SASC 198
Magistrates Appeal
Gray J

This is an appeal against a sentence imposed by a magistrate sitting as the Youth Court at Berri. On 15 May 2003 the appeal was allowed. These are the reasons for the orders made.
Background
On 29 December 2002 at about 1.00 am the appellant aged 16 years and two boys aged 15 and 13 years decided to go for a “joy ride”. They took a vehicle belonging to one boy’s stepfather from his shed while he slept. The appellant did not drive the vehicle. She was one of the passengers. The youths intended to return the car. However, a “kill switch” in the car was activated and prevented its return. The stepfather reported the vehicle stolen at approximately 7.30 am that morning. At around 8.30 am police located the vehicle.
The appellant was interviewed at the Renmark Police Station. Her father was present. She admitted being in company of the other youths. She told the police that they had pushed the vehicle from the shed and down the road a short distance. One of the youths had then started the car. The appellant admitted that she was aware at the time that permission had not been given to use the vehicle. She said that she did not care as “it was something to do”. Further investigations were conducted. The appellant was arrested and charged with illegally using a motor vehicle, contrary to section 86A of the Criminal Law Consolidation Act 1935 SA[1]. She was released on police bail.
[1] On the 29^th day of December 2002 at Paringa in the said State, used a motor vehicle without first obtaining the consent of … the owner thereof. Section 86a of the Criminal Law Consolidation Act, 1935. This is a summary offence.
The appellant’s mother worked at a citrus packing plant and her father at a local winery. They had little knowledge of legal procedures. Not long after the appellant’s arrest her parents became concerned about her forthcoming court appearance. Her mother asked one of the police officers who had been involved in investigating the charge about the legal process and whether the appellant needed legal representation. The police officer did not suggest that the appellant consult a legal practitioner.
The day before the hearing, the appellant’s mother rang the police at Berri and talked to a prosecutor. She told the officer about the earlier conversation she had had with the police. She again asked whether she should engage a lawyer for the appellant. The police said that the decision to engage a legal practitioner “was up to them”.
By the time of the hearing, the only documentation the appellant had received in relation to the charge was a copy of her bail agreement. The appellant was unaware that a complaint and police apprehension report had been prepared.
The Proceedings before the Magistrate.
On 22 January 2003 the appellant appeared in court unrepresented. As earlier observed she had not received…

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 P v Police

Details

AGLC: P v Police [2003] SASC 198
Case: [2003] SASC 198
Decision Date: 24 June 2003

CaseChat Overview and Summary

The appeal in the case of P v Police was heard by the South Australian Court of Appeal, which allowed the appeal on 15 May 2003. The appellant, a 16-year-old, had been charged with illegally using a motor vehicle, a summary offence under section 86A of the Criminal Law Consolidation Act 1935 SA. The incident occurred on 29 December 2002 when the appellant and two younger boys took a vehicle belonging to one boy's stepfather without permission, intending to return it after a short drive. However, the vehicle was rendered inoperable by a "kill switch," leading to its theft report and subsequent discovery by police. The appellant, who was not the driver, admitted to participating in the act without permission and was subsequently charged.

The legal issues before the court centered on the procedural fairness and appropriateness of the sentence imposed by the magistrate. The appellant argued that she was not provided with adequate legal representation or advice, which significantly impacted her ability to present a complete case and understand the gravity of the charge. The court had to determine whether the magistrate erred in imposing an obligation of guarantee on the appellant's parents without considering their family circumstances and whether the absence of a duty solicitor exacerbated the appellant's disadvantage. The Crown conceded that the magistrate had erred in his approach to sentencing, acknowledging that the appellant's complaints about the sentencing process were valid.

The court found that the magistrate's imposition of the obligation of guarantee without considering the family circumstances was an error, especially given the family tensions that would have made such an obligation inappropriate. Additionally, the absence of a duty solicitor exacerbated the appellant's disadvantage, as it deprived her of basic legal advice that could have potentially influenced the court's decision. Given these errors, the court deemed it appropriate to re-sentence the appellant. The court acknowledged the challenging position of the magistrate, who faces extensive daily workloads, but emphasized the necessity of adhering to proper sentencing procedures, particularly for young offenders.

The final orders of the court were to re-sentence the appellant, taking into account the appropriate procedures and considerations for sentencing a young offender. The court did not specify the new sentence but indicated that it would be determined in accordance with the principles of juvenile justice and the relevant legal standards. The re-sentencing aimed to address the procedural shortcomings and ensure that the appellant's rights were properly respected.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an appeal against a sentence imposed by a magistrate sitting as the Youth Court at Berri. On 15 May 2003 the appeal was allowed. These are the reasons for the orders made.Background On 29 December 2002 at about 1.00 am the appellant aged 16 years and two boys aged 15 and 13 years decided to go for a “joy ride”. They took a vehicle belonging to one boy’s stepfather from his shed while he slept. The appellant did not drive the vehicle. She was one of the passengers. The youths intended to return the car. However, a “kill switch” in the car was activated and prevented its return. The stepfather reported the vehicle stolen at approximately 7.30 am that morning. At around 8.30 am police located the vehicle. The appellant was interviewed at the Renmark Police Station. Her father was present. She admitted being in company of the other youths. She told the police that they had pushed the vehicle from the shed and down the road a short distance. One of the youths had then started the car. The appellant admitted that she was aware at the time that permission had not been given to use the vehicle. She said that she did not care as “it was something to do”. Further investigations were conducted. The appellant was arrested and charged with illegally using a motor vehicle, contrary to section 86A of the Criminal Law Consolidation Act 1935 SA[1]. She was released on police bail. [1] On the 29th day of December 2002 at Paringa in the said State, used a motor vehicle without first obtaining the consent of … the owner thereof. Section 86a of the Criminal Law Consolidation Act, 1935. This is a summary offence. The appellant’s mother worked at a citrus packing plant and her father at a local winery. They had little knowledge of legal procedures. Not long after the appellant’s arrest her parents became concerned about her forthcoming court appearance. Her mother asked one of the police officers who had been involved in investigating the charge about the legal process and whether the appellant needed legal representation. The police officer did not suggest that the appellant consult a legal practitioner. The day before the hearing, the appellant’s mother rang the police at Berri and talked to a prosecutor. She told the officer about the earlier conversation she had had with the police. She again asked whether she should engage a lawyer for the appellant. The police said that the decision to engage a legal practitioner “was up to them”. By the time of the hearing, the only documentation the appellant had received in relation to the charge was a copy of her bail agreement. The appellant was unaware that a complaint and police apprehension report had been prepared.The Proceedings before the Magistrate. On 22 January 2003 the appellant appeared in court unrepresented. As earlier observed she had not received legal advice. She pleaded guilty. The magistrate asked the appellant whether she had or wanted legal representation. The appellant replied “no”. The magistrate then asked “Do you realise this is a serious “gaolable” offence?” The appellant replied yes, even though she did not know whether the offence was serious or “gaolable” or what that meant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The magistrate placed on obligation of guarantee on the appellant’s parents. He did so without any inquiry into the family circumstances. While this course may be appropriate in some cases, an investigation of the background family circumstances in this case would have disclosed that there were tensions in the family that made the obligation inappropriate. Imposing such an obligation without considering the family circumstances was an error.Conclusion The Crown accepted that the magistrate had erred in his approach to sentencing. All of the appellant’s complaints were acknowledged as departures from the proper approach to the sentencing of a young offender. It was appropriate for this court to re-sentence the appellant.The Difficult Position of the Magistrate It must be recognised that country magistrates attend to extensive daily lists. It is not uncommon for a magistrate’s list to include 80 or 90 matters on a normal sitting day. At the Berri Youth Court cases are heard by a “visiting magistrate”. The specialist Youth Court does not attend. Youth matters are dealt with as a group, generally in the afternoon. Considerable pressures may arise. This difficulty provides some explanation for the problems that arose in the present case. The appellant was seriously disadvantaged by not having legal representation. She was unable to inform the court of all of the relevant circumstances. As a result the magistrate did not consider a number of options which were available to the Youth Court.Duty Solicitor A duty solicitor’s primary role is to assist unrepresented people appearing in court. Priority is given to representation of people in custody for such applications as bail, pleas in mitigation of penalty on a plea of guilty or applications for remand. Where resources allow, a duty solicitor may also appear on simple matters for people who are not in custody. Commonly a duty solicitor would appear to apply for a remand or adjournment or to enter a guilty plea. This service is usually offered where the person would be at a significant disadvantage without representation. A duty solicitor’s role can also be to advise clients to apply for legal aid or instruct another solicitor where the matter appears to be more complicated or would take more time in preparation than the duty solicitor has available. Duty solicitors also provide a general advice service. This may include advising on such issues as potential defences, possible penalties and whether the offence is one which might attract a sentence of imprisonment. A duty solicitor can also advise a client on court procedures and matters which should be brought to the magistrate’s attention by way of mitigation of any penalty. If a duty solicitor had been available on the day of the appellant’s hearing, at the very least basic advice could have been provided to the appellant as to the best way to proceed and correct court procedures. The magistrate’s difficulties were compounded by the absence of a duty solicitor service in the Riverland. Such a service is available in the Adelaide Youth Court as well as in a number of city and suburban magistrates courts. The court in the Riverland as well as the appellant were disadvantaged.Re-sentencing

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.