Police v CB, GD, DB & MN No. Scgrg-99-217 Judgment No. S371

[1999] SASC 371

POLICE v CB, GD, DB & MN

[1999] SASC 371

Magistrates Appeal

1 WICKS J The respondents were charged on Information with endangering life or being recklessly indifferent as to whether the life of another was endangered, against s 29(1) of the Criminal Law Consolidation Act 1935. The respondents were also charged on Information with damaging property with intent to do so against s 85(3) of the Criminal Law Consolidation Act 1935.
2 The offence of endangering life is a major indictable offence and the offence of damaging property is a summary offence.
3 On 22 November 1998 the respondents were together under a bridge throwing stones at vehicles passing over the bridge on the road into Port Augusta.  The stones damaged a number of motor vehicles passing over the bridge.  A six year old child was a passenger in one of the motor vehicles concerned although it does not appear that he or she was injured.
4 Each of the respondents was under 18 years of age at the date of commission of the offences.  The proceedings on the Information were brought before the Youth Court.
5 At an early stage in the hearing before the Youth Court, counsel for the respondents applied to have the respondents referred to a family conference under Part 2 Division 3 of the Young Offenders Act 1993. On 29 January 1999, the Magistrate before whom the case came made an order referring the charges against the four respondents to a family conference.
6 The South Australian Police appealed from that order alleging that:
"The Learned Magistrate erred in law in that she referred the subject matter of a charge to a Family Conference pursuant to Section 17(2) of the Young Offenders Act, 1993 in circumstances where the charge could not be characterised as a minor offence within the meaning of Section 4 of the Young Offenders Act, 1993."

7 As the offences occurred at Port Augusta, it is appropriate that suitable arrangements be made for the respondents to attend the hearing of the appeal at Port Augusta.  Accordingly, I have arranged to sit in the Magistrates’ Court Room No 12 at the Adelaide Magistrate’s Court.  Arrangements have been made for a video link to Port Augusta and for a Sheriff’s Officer to meet such of the respondents as attend at the Court House at Port Augusta and to conduct them to the venue in Port Augusta where the video link has been set up so that they can take part in the proceedings.
8 The respondents, GD, DB and NN, are all in attendance at court, via the video link. CB is absent, although he has been personally served with the Notice of Appeal and with a letter signed by my Associate, advising him of the date, time and place at which he may attend, either in Adelaide, or in Port Augusta. 
9 A difficult question arises in this case as to whether I can proceed with this appeal against a respondent who does not attend the hearing, although duly served with a copy of the notice of appeal and a letter informing him of the date, place and time of the hearing.  This matter was discussed by the New South Wales Court of Criminal Appeal in R v Hallocoglu (1992) 29 NSLR, p 67.  At p 72 Hunt CJ said:
"                 Section 14(2) of the Criminal Appeal Act permits this Court to impose a sentence upon an appellant in substitution for that imposed at first instance, notwithstanding that the appellant is not present.  The proviso does not in terms apply to the situation where the respondent to a Crown appeal is not present.  In my view, however, the common law position on an appeal is the same as at the trial.  There is a discretion to proceed with the Crown appeal (at least in misdemeanour cases) where the respondent has voluntarily absented himself ...

In the present case, the inference was clear that the respondent had deliberately absented himself from the country in order to avoid the consequences of a successful Crown appeal.  Accordingly, in the exercise of this Court's discretion, we direct that the matter proceed in his absence."

10 Of course the dichotomy between felonies and misdemeanours no longer exists in this State. 
11 In the present case, I do not propose to impose any penalty, or sentence.  The proceedings will be limited to remitting the matter back to the Youth Court for hearing and on this hearing.  I need not concern myself with the question of whether a more severe penalty, or sentence could be imposed in the absence of the respondent, although duly served with notice of appeal. 
12 For the purposes of these proceedings, I hold that I have a discretion to proceed with the matter in respect of such of the defendants who have been served with Notice of Appeal and notice of that date and as I understand them, and the position, all of them have been so served.
13 The proceedings on this appeal are to set right an error in the court below, they will take the matter no further, leaving it in the hands of the court to hear and decide the case. 
14 Part 2 of the Young Offenders Act deals with the topic of minor offences. Where a minor offence is involved, outstanding charges against a person under 18 years of age can be referred under Part 2 of the Young Offenders Act to be dealt with under that part rather than being dealt with by the processes of the Youth Court. Section 7 of the Act provides that if a person under 18 years admits the commission of a minor offence, a police officer may notify a Youth Justice Co-ordinator of the admission so that a family conference may be convened to deal with the matter.
15 However, all of this is subject to the offence in question being properly characterised as a "minor offence". The expression "minor offence" is dealt with in s 4 of the Act and is defined as:
"... an offence to which this Act applies that should, in the opinion of the police officer in charge of the investigation of the offence, be dealt with as a minor offence because of -

(a)     the limited extent of the harm caused through the commission of the offence; and

(b)     the character and antecedents of the alleged offender; and

(c)     the improbability of the youth re-offending; and

(d)     where relevant - the attitude of the youth’s parents or guardians."

16 As Cox J put it in SA Police v W (1995) 64 SASR 408, at p 412:
"The caution and family conference procedures seek to divert the young offender from the mainstream criminal justice system.  No charge is laid and the matter is dealt with in a non-curial and relatively informal manner.  The procedure is only appropriate where the offender admits the offence and the offence itself falls within the definition of a minor offence.  An offence cannot be a minor offence and so dealt with by way of caution or family conference unless the police officer in charge of the investigation is of the opinion that the offence should be dealt with as a minor offence.  (I suppose one may add that the procedure is unlikely to succeed without the youth’s co-operation.)  Cases that should properly be dealt with by the Youth Court are in character quite different."

17 I have indicated earlier in the present case that counsel for the respondents in the court below applied for a s 17 referral to a family conference. At that time, counsel indicated that the subject matter of the charges was admitted.
18 I come now to the application of s 17 of the Young Offenders Act 1993. Sub-section (2) of that section provides as follows:
"(2)  The Court may, even though a charge has been laid, refer the subject matter of the charge (after the youth’s guilt has been established either by admission or by the Court’s findings) to be dealt with by a police officer or by a family conference."

19 This sub-section gives the court the opportunity after guilt has been admitted or established but before any conviction is recorded to have the matter referred to a family conference.  As Cox J put it in SA Police v W (supra) at pp 412-413:
"The typical occasion for the use by a court of subs (2) of s 17 will arise where the particular wrongdoing answers the requirements of pars (a) to (d) of the ‘minor offence’ definition but the question whether the matter should be referred to a family conference never arose at the normal stage because, say, the youth did not admit his guilt or he preferred to be dealt with by the court. Where his guilt is established either by his subsequent admission or by the court’s finding, s 17 enables the court to do what it judges that the police officer in charge would probably have done in the first place had he been able to do so, namely, refer the matter to a family conference ... One would expect, however, that a court would generally confine the application of s 17 to cases that answer the paragraphed requirements of the definition [the definition of "minor offence"] and also appear to be cases that may suitably be handled by a family conference. In other words, the section provides an opportunity for retrieving from the court system a case that should really never have got into it. It is not intended, in my opinion, simply to provide an additional sentencing option for a court that is hearing a charge against a youth."

20 As the Court in the present case is concerned with an offence which is not "minor offence" within the meaning of the Young Offenders Act s 17, the family conference procedure would appear to have no relevance. Because of the gravity of the offence, it could never come within the definition of "minor offence" and therefore in my view s 17 and Part 2 of the Young Offenders Act have no application.
21 In my opinion, the learned Magistrate erred in referring the subject matter of the charges in this case to a family conference pursuant to s 17(2) of the Young Offenders Act 1993. The offence of endangering human life was not a minor offence and for the reasons I have given, the subject matter of a charge for that offence should not have been referred to a family conference. I propose therefore to allow this appeal.
22 I make the following orders:

1. I allow the appeal.

1. I order that the orders of the learned Magistrate in the court below on all six counts of the information be set aside. 

1. I order that the charges against the respondents CB, GD, DB and MN, be remitted to the Youth Court for re-hearing.