Police v D No. Scciv-03-1516

POLICE v D
[2004] SASC 131
Full Court: Perry, Bleby and Gray JJ

PERRY J In my view, for the reasons given by Gray J, this appeal should be allowed.
I would emphasise that the complications which have arisen in this case could have been avoided if the sentencing judge had exercised his power to refer the respondent to be sentenced as an adult in the District Court. He could then have been sentenced by the District Court judge who dealt with the other rape charge, and a single sentence imposed for all of the offences.
The offences giving rise to the sentence under appeal were clearly so serious that an order should have been made in any event that the respondent be dealt with on those offences as an adult. The case in favour of that course became overwhelming when it was apparent that the respondent was awaiting sentence in the District Court for a similar offence committed when he was an adult.
Given that it was inevitable that the respondent stood to be sentenced in the District Court to a term of imprisonment, it could not possibly serve a useful purpose to order that he serve a term of detention as a young offender before going to gaol.
I agree with the orders proposed by Gray J.
BLEBY J I agree with the orders proposed by Gray J and with his reasons.
GRAY J This is a Crown appeal against sentence.
D was charged in the Youth Court with four counts of rape. All counts arose out of the one course of conduct. All involved the one complainant. The matter proceeded to trial. After the complainant was cross-examined, pleas of guilty were entered to all counts. D was sentenced on 15 October 2003. At the time D was aged 17 years.
The Facts
At about 8.00pm on 31 October 2001 the complainant left her home to go for a walk. She took her friend’s dog with her. She went to a nearby park, stayed for a while and then started her return home. Whilst returning the complainant was approached by D. He asked for the time. D began to talk to the complainant and introduced himself as Matt. He asked if she wanted to “hook up” some time and she replied “No”. They then crossed to the Foodland shopping complex nearby, sat on a wall and continued to talk.
D asked the complainant “Do you want to go around the back for a fuck”. She replied “No”. D then attempted to kiss the complainant. She responded, but then moved away. D continued to try to talk to her. They went down a pathway between a group of shops. Whilst in the pathway D grabbed the complainant by the shoulders and pushed her against a wall. The complainant was shocked and scared. The dog had broken away.
D then attacked the complainant. She was pinned against the wall. D undid her jeans and put his fingers into her vagina. He was rough and caused pain. By this time the complainant’s pants had fallen down. D had penile intercourse with her. The complainant remained pinned to the wall. She unsuccessfully attempted to push and kick D away. She was then pushed to the ground and again D’s fingers were inserted into her vagina. A further act of penile intercourse took place. D ejaculated during this act of intercourse. He then left.
At the beginning of the trial pleas of not guilty were entered. The complainant was examined and cross examined in regard to the attack. In cross examination it was suggested that she was a consenting and cooperative participant to all that had occurred. The trial was adjourned for a short period. D’s counsel then advised that he was instructed to further cross examine the complainant. However, before any further cross examination was undertaken D entered pleas of guilty to all counts.
Rape has been described as the most humiliating, distressing and cynical of crimes. The attack on the complainant was both callous and brutal. The complainant’s victim impact statement indicates the extent of her suffering.
My life was turned upside down by you on the day you raped me. You destroyed me! It wasn’t just the physical ordeal that affected me; it was mental side of it as well. I ask myself, what did I do to deserve being degraded like that. You destroyed my self-esteem.
…
…
When I found out that you were going to plead guilty, I felt numb. Why couldn’t you have been man enough to own up earlier, then maybe people would have believed me sooner? You put me through hell, having to give evidence, getting told that I would have to return to court to answer more questions and then at the last minute you decide that you would own up. I will never forgive you for what you did, for the hell you put me through. You ruined my life! You made me suffer by making me relive every degrading thing you did to me. I hate you! I want to see you punished, so no one else has to suffer at your hands.
The complainant’s parents and sister provided a composite statement which include the following:
I hope that you never have a daughter, sister or wife that has been raped. If you do, you will soon realise the anguish and emotions that victims and their families endure. You will realise what we went through when you raped C. It’s like a ripple starts off small then becomes huge waves. C lost a lot the day you raped her. She lost friends, job opportunities and self respect. She can’t trust anyone anymore. Maybe, after you are sentenced, she will find some peace, and begin to rebuild her life. The life that you ruined.
A forensic psychologist, provided a report to the sentencing court. He described D’s account of the incident in the following terms:
[D] told me that the four counts of rape involve two counts of digital penetration and two counts of penile penetration, all perpetrated on the same victim during one period of time. He told me that he met the victim at a shopping centre while walking home. He told me that they kissed, that they started walking to the rear of the shopping centre. [D] told me that he could not remember any other details of what occurred after this. He told me that “from memory”, it was “more than likely” that he was under the influence of methamphetamine, or “coming down” from that drug. He told me that he and friends had “…been binging for a while”, and that he was probably “fried” on methamphetamine.
In submissions to the Youth Court judge, D’s counsel did not challenge the complainant’s account of the attack.
Personal Antecedents
D was born in the United States. The family migrated to Australia in or about 1988. D’s parents were citizens of the United States. D’s parents separated in 1999. His father left the family home. He returned shortly thereafter but finally left in July 2002. D attended Valley View High School. He left during Year 12. His plans are to finish Year 12 and then to study accountancy at university.
D has had involvement with drugs since aged 13 years. He has used hard drugs extensively since about 2000. As earlier observed, D suggested that his criminal conduct was due in part to the effects of drug abuse. This may possibly be an explanation, but provides no excuse for D’s conduct.
The examining psychologist described D as having a depressive personality. He reported that at the time of sentencing D was suffering from mild depression with heightened levels of tension and anxiety. It was his opinion that D was in need of treatment for his drug addiction. D continues to have the support of his mother and wider family.
Criminal Antecedents
On 25 April 2001 D was charged with three counts of ‘robbery in company’. The offending conduct involved the robbery of three youths of money and property. The Youth Court judge described the offending conduct as involving bullying, intimidation and some violence. No convictions were recorded and D was released on a 12 month obligation to be of good behaviour. The judge warned D of the serious consequences of engaging in further criminal conduct:
… [R]est assured that if you were ever get into trouble again you would have convictions recorded against your name and if that impacted on your future, well, so be it. It would be not as a result of any thing the court did but as a result of your own stupid actions and I’m sure you realise that.
On 31 October 2001 D committed the offences the subject of the present appeal. At this time his conduct was in breach of the terms of his recently entered into obligation.
On 13 November 2002 D committed a further offence of rape. He was then aged 18 years. On 29 September 2003 he pleaded guilty in the District Court. On 17 December 2003 D was sentenced to a term of imprisonment of five years with a non parole period of three years. At the time of sentencing submissions with respect to the subject charges D had pleaded guilty to the later rape but had not been sentenced.
During the period from 27 to 30 July 2003 D failed to comply with the conditions of bail in regard to the subject charges. On 1 August 2003 he was convicted without penalty for that offence.
The Young Offender
When sentencing young offenders special considerations apply. Section 3 of the Young Offenders Act 1993 (SA) has been described as forming the ‘cornerstone’ of the process of sentencing young offenders:
(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, regard should also be had to the deterrent effect any proposed sanction may have on other youths.
(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.
The objects set out in section 3 should be addressed by the sentencing judge.[1] In R v QTV the court observed:[2]
The object specified in subsection (1) of s 3 of the Young Offenders Act requires a sentence that allows for the care, correction and guidance necessary for the youth’s development into a responsible and useful member of the community. It requires the Court to assume that the youth has potential that can be realised. Those requirements are not necessarily the starting points in sentencing an adult. They will not be met by some notional discounting of what might be an appropriate sentence for an adult offender, nor will they be met by too crushing a sentence, particularly a first custodial sentence. In sentencing a youth much greater emphasis must be given to the youth’s prospects and potential than will usually be the case in sentencing an adult, where punishment and general deterrence may well assume a more dominant role. On the other hand, community protection (s 3(2)(c)) in a case like this and deterrence within the ambit of subsection (2a) are also important and must be brought into the scales.
It is to be observed that section 3 requires that the community be adequately protected against violent or wrongful acts and that the deterrent effect of a sentence on the youth is a relevant consideration.
[1] KBS v Police [2001] SASC 40 at [34] – [35]
[2] R v QTV (2003) 231 LSJS 385 at 395
The Approach of the Sentencing Judge
On 15 October 2003 D was sentenced in the Youth Court on the subject counts of rape. The sentenced imposed was that D be detained for 12 months. However an order was made that D serve only three months of the term of detention and that the balance of nine months be suspended on D entering into a good behaviour obligation. The Youth Court judge remarked:
Most unfortunately at the time this offence was committed, you had just entered into an obligation only a few weeks before as a result of a finding against you that you had been guilty of robbery and you entered into an obligation to be of good behaviour. That obligation clearly meant little to you because this offence was then committed.
…
[D], the offence that you’ve committed, in my opinion in this court, deserves 12 months detention, but I think it would be much too severe, given all the things I’ve read in Dr Caley’s report and that Mr McKenney has told me if I were to require you to serve all of that time. Instead I intend that you should serve a short period of time, I’ll suspend the balance and you will be required to enter into an obligation to undertake treatment for sexual offending and for drug taking.
The bottom line is that you’ll be in detention for three months, it’s only a short period of time, but I hope that will deter you from committing such offences in the future and bring home to you that there are consequences when we do these stupid things. We all do stupid things when we’re young, you can live it down.
The Youth Court judge declined to transfer the present matter to the District Court. At the time of sentencing D was 19 years of age. This approach was taken notwithstanding the gravity of the offending and that D was awaiting sentence as an adult for the further offence of rape. The judge reasoned:
Although you’re an adult now, you committed these offences as a child. I was asked to transfer this offence to the District Court so you could be dealt with as an adult and I felt that would have been very contrary to your interests and indeed in this particular case contrary to the duties of this court. You committed the offence as a child and in my opinion you’re entitled to be dealt with as a child.
Crown Appeal
Section 22 of the Youth Court Act1993 (SA) provides that a party to proceedings in the Youth Court may appeal against any judgment given in the proceedings. Section 22(2)(d) provides that an appeal against a judgment of a judge of the Youth Court lies to the Full Court of the Supreme Court. Section 22(3) addresses the wide powers on appeal:
On the appeal, the appellate court may exercise any one or more of the following powers:
(a)     it may confirm, vary or quash the judgment subject to the appeal and, if the court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)     it may remit the matter for hearing or further hearing;
(c)     it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
The Crown accepted that as this was an appeal against sentence the usual principles in relation to Crown appeals had application. These principles are well settled. In R v Osenkowski[3] King CJ observed:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[3] R v Osenkowski (1982) 30 SASR 212 at 212-213 – see also Everett v The Queen (1994) 181 CLR 295, Police v Cadd (1997) 69 SASR 150 at 156-159 per Doyle CJ.
Counsel for the Crown submitted that the Youth Court judge departed from proper sentencing principles. It was submitted that the judge failed to have regard to the subsequent offence of rape in respect to which D pleaded guilty, but was yet to be sentenced. This was said to be a relevant consideration.
Counsel submitted that the sentencing judge had imposed a penalty beyond power. It was contended that it was not possible for the judge to suspend part of a sentence of 12 months detention or to impose an obligation for a period in excess of nine months.
Counsel for the Crown further submitted that the sentence was manifestly inadequate having regard to the gravity of D’s offending. It was argued that a 12 month detention order partly suspended was a grossly inadequate sentence and shocked the public conscience.
Counsel for D submitted that having regard to D’s age it could not be said that the sentence imposed was outside the proper exercise of the judge’s sentencing discretion. It was argued that the Youth Court judge was correct to have no regard to the subsequent offence.
A Preliminary Observation
On the basis of the circumstances outlined above, an immediate term imprisonment for the subsequent offence was inevitable. In these circumstances there was little purpose in sentencing D as a young offender for the subject offences. On the approach of the Youth Court judge D would spend three months on detention, despite having turned 18. He would then face a term of imprisonment as an adult. In the event this occurred. Having regard to the above matters the case for transferring the sentencing of D to the District Court was compelling.
Issues on Appeal
The Subsequent Offence
As earlier observed D committed the further crime of rape on 13 November 2002. At the time he was 18 years of age and an adult. He was arraigned before the District Court, pleaded guilty and was convicted on 29 September 2003. At the time sentencing submissions were made to the Youth Court judge D had already acknowledged his guilt with respect to the later rape.
During submissions the Youth Court judge’s attention was drawn to D’s subsequent plea of guilty to the November rape. The judge made it clear that he did not treat the subsequent offence as a relevant consideration. He made no reference to the subsequent offence of rape or its significance in his sentencing remarks.
In R v McInerney[4] King CJ observed:
In my opinion the true rule is that a sentencing court may take into account in an appropriate way and for appropriate purposes, offences committed by an offender whether such offences were committed before or after the commission of the offence for which sentence is being passed and whether the convictions for such offences occurred before or after the commission of the offence for which sentence is being passed.
…
Where the other offences have been committed after the immediate offence, they are relevant only in special circumstances. The offender has not committed the immediate offence with his character already affected by the offences nor after the experience of conviction. In circumstances, however, in which the offender might otherwise have been given credit for having lived a law abiding life in the period between crime and sentence, it is relevant that he has not so lived but has committed an offence or offences in that period. In some circumstances, the nature of the subsequent offences may be such as to suggest that a greater degree of personal deterrence than would otherwise have been contemplated, is required. It seems to me that the circumstances in which offences subsequent to the commission of the offence for which sentence is being passed, are relevant to the sentence, are more restricted than those in which prior offences are relevant.
[4] (1986) 42 SASR 111 at 112-113

Cox J noted[5]:
That is not to say, of course, that subsequent convictions will necessarily be taken into account in the same way as previous convictions. Whether the offences were committed before or after the offence for which the defendant is being sentenced may make a difference in some cases. The fact that it was not a first or isolated offence, that the defendant’s recent history shows a procession from one offence to another, may well be important, but the conviction itself adds a significant dimension. A conviction is a formal and solemn act marking the court’s, and society’s, disapproval of a defendant’s wrongdoing, so that a prior offence may not assume quite the same significance as a prior offence coupled (by the time the instance offence is committed) with a prior conviction. So far as subsequent offences are concerned, they cannot justify the court in imposing a higher sentence than the instant offence intrinsically merits, but they might well lead the court to conclude that any leniency to the defendant would be misplaced. As always, of course, it will depend upon the circumstances of the particular case.
These remarks demonstrate that D’s admitted subsequent criminal conduct was relevant to the Youth Court judge’s sentencing discretion.
[5] (1986) 42 SASR 111 at 124
Though the offences took place a little more than 12 months apart, they represented a course of conduct consisting of a series of criminal acts of the same or similar character. D was a danger to the community, particularly vulnerable members of the community. He was a predator of young women. Personal deterrence was of particular significance. This is particularly so in the light of the specific requirements of section 3(2)(a) and (c) of the Young Offenders Act. In the course of the Youth Court judge’s sentencing remarks no consideration was given to these important matters. The Youth Court judge failed to have regard to a relevant consideration and in so doing erred in the application of sentencing principle[6]. For this reason the sentence must be reconsidered.
[6] House v R (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 32
Sentence Beyond Power
Section 3A of the Criminal Law (Sentencing) Act1988 (SA) provides that the provisions of the Sentencing Act apply in relation to the sentencing of a youth. When dealing with a young offender a reference to imprisonment in the Sentencing Act is to be read as a reference to detention. In the event of any conflict between the Sentencing Act, the Young Offenders Act and the Youth Court Act, the latter Acts are to prevail to the extent of the conflict.[7]
[7] Hallam v O’Dea (1979) 22 SASR 133 at 136 per King CJ; AJK vPolice [2002] SASC 265 at [29] – [30] per Wicks J
The provisions of section 38(2a) of the Sentencing Act apply to young offenders with the qualification that a reference to imprisonment is to be read as detention. The Youth Court judge was empowered to suspend part of an order for detention providing the detention order was for a period of less than 12 months. Section 38(2a) and (2b) of the Sentencing Act relevantly provide:
(2a) However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order--
(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
(2b) The term of a bond under subsection (2a) cannot extend beyond the period of the suspended imprisonment.
As earlier observed the Youth Court judge imposed a detention order of 12 months. Accordingly section 38(2a) could not be invoked. That section only operated when a sentence of less than 12 months was imposed. The judge’s order was beyond power.
It is also to be observed that the term of an obligation under section 38(2a) of the Sentencing Act is limited to the period of the suspended term of detention. In the present case, given the partial suspension order, the obligation could not be for a period longer than 9 months. The Youth Court judge imposed an obligation of 12 months. This was beyond power.
As the sentence imposed was beyond power it is necessary for the matter to be revisited. If the sentence imposed was otherwise appropriate, a minor adjustment could be made to the head sentence and a new obligation imposed.
Manifestly Inadequate
Counsel for the Crown submitted that the sentence imposed was manifestly inadequate. It was said that this inadequacy in part resulted from the error of sentencing principle earlier identified.
As earlier observed D’s criminal conduct was grave. He committed a brutal attack on a stranger. At the time of the offending D was under an obligation to be of good behaviour following offences of violence. Subsequently D committed a further rape. A sentence of 12 months detention with a term of immediate detention of three months was manifestly inadequate and grossly disproportionate to the gravity of the offending. It is necessary for the sentence to be reconsidered.
D Should be Sentenced as an Adult
Section 17(3)(c) of the Young Offenders Act provides:
[If] the Court or the Supreme Court determines, on the application of the Director of Public Prosecutions or a police prosecutor, that the youth should be dealt with in the same way as an adult because of the gravity of the offence, or because the offence is part of a pattern of repeated offending; the Court will conduct a preliminary examination of the charge, and may commit the youth for trial or sentence (as the case requires) to the Supreme Court or the District Court.
The Crown made application to the Youth Court judge for D to be sentenced as an adult due to the gravity of the offence and because the offence was part of a pattern of repeat offending. The Youth Court judge rejected this application.
In R v C[8] Cox J observed:
The learned judge, because it would seem of the gravity of the offence alone, resolved to deal with him as an adult. I see no reason to question the soundness of the learned judge’s discretionary decision. Indeed, given the gravity of the offence, he hardly had any real choice in the matter. To that could be added the appellant’s record, as a relevant consideration in making that jurisdictional decision, notwithstanding the fact that none of them was a breach of the drug laws, even though they may conceivably have had drugs as their motivation. The learned judge, in my opinion, was justified in dealing with the appellant as an adult.
In R v QTV Prior, Bleby and Anderson JJ considered sentencing a youth as an adult:[9]
In our opinion the appellant properly abandoned the complaint that the sentencing Judge erred in dealing with the youth as an adult, both with respect to the robbery offences and that of assisting an offender. It is plain from the material before the sentencing Judge that his Honour was justified in so sentencing the appellant on all of the charges then before the Court given the nature, gravity and number of offences then before the Court and the nature of the appellant’s involvement in those offences. It is plain that the October robbery offences were pre-planned. Besides that, the appellant’s previous history was properly a factor relevant to the decision to deal with the youth as an adult. As for the offence of assisting an offender, whilst that had to be considered under s 29(2), the appellant’s history of offending and the seriousness of the offending which the appellant assisted warranted the same conclusion with respect to that matter as with the others. It was appropriate to deal with the youth as an adult with respect to all of the offending then before the court.
It is important to realise, however, that a decision to sentence a youth as an adult does not mean that other relevant sentencing principles contained in the Young Offenders Act cease to have any application. It merely means that some possible sentencing options under the Act are not available, and that the door is opened for the youth to serve his detention in a prison rather than in a training centre: see the discussion below on s 36 of the Young Offenders Act. The object and policies contained in s 3, …, continue to apply.
[8] R v C (1998) 72 SASR 391 at 394
[9] R v QTV (2003) 231 LSJS 385 at 390-391
As earlier observed a District Court judge sentenced D for the subsequent offence of rape. The circumstances of the subsequent offending were not dissimilar to the subject charges. The District Court judge observed:
On 13 November 2002 you and the victim were at the Modbury interchange, where she was waiting for a bus. She was approximately the same age as yourself. You approached her and began a conversation. It culminated in you pushing her against a wall, touching her on the vagina and kissing her. Later you pulled her into a bus shelter and forced her to perform an act of fellatio upon you. You ejaculated in her mouth. She got away from you and went to a bus driver. The bus driver called police and you were traced. It was a terrible thing to do.
The District Court judge declined to declare D a serious repeat offender because of the crushing consequences that would follow. He imposed a sentence of five years imprisonment with three years non parole and observed:
The sentence that I must impose is one that must commence when you finish your present period of detention. I understand that is to be on 14 January, so I expect that that is when the sentence that I impose will commence. I am told that there is an appeal. If that situation changes, then sobeit (sic), there is nothing I can do about that.
The difficulty facing the District Court judge was self-evident. He was aware that the sentence imposed by the Youth Court may be revised on appeal but he was left having to sentence in respect to subsequent offences as best he could. He observed:
In April 2001, whilst still a juvenile, you committed some robberies. In October 2001 you committed four rapes of one person on one occasion. I am told that you were aware that police were enquiring into that event before 13 November 2002, which is the date of the event that I have to deal with. I do note that the event I have to deal with did not follow a prior conviction or sentence.
D’s criminal conduct demonstrated a pattern of repeat offending of a similar nature. These are matters that should have been dealt with by the one sentencing judge so that an overall sentencing package could have been considered. That sentencing judge could then have regard to the entire course of conduct when considering the protection of the community, the deterrence for D, as well as considering D’s long term rehabilitation. Having different courts sentence D has caused considerable difficulty and has contributed to the Youth Court judge falling into error in his application of sentencing principles.
This court has been able to review the transcript of evidence and other relevant material. This review demonstrates the desirability for all offences to have been before the District Court. The Youth Court judge was aware that D was awaiting sentence for the later rape in the District Court. He erred in not referring D for sentencing to the District Court.
Resentencing
Procedure to be Followed
In the light of the foregoing reasons it is necessary for this court to re-sentence D. Before doing so it is important to discuss the powers of this court and the procedures to be followed.
As earlier observed this court has wide powers on appeal. Section 22(3)(a) empowers this court to set aside the sentence subject to appeal and to vary any other judgment made in the Youth Court proceedings. ‘Judgment’ includes a declaration or order.[10] Section 22(3)(c) empowers this court to make any other order that may be necessary or desirable in the circumstances.
[10] Section 3 Youth Court Act 1993 (SA)
Pursuant to these powers this court should allow the appeal and set aside the sentence imposed by the Youth Court judge. However, in so far as it may be necessary, this court should also set aside his refusal to determine that D be dealt with as an adult and his refusal to exercise his discretion to commit D for sentence in an appropriate adult court. As this court is to resentence, the question of whether D should be resentenced as an adult necessarily arises.
At the time of the earlier sentencing the appropriate adult court was the District Court of South Australia. However there is now no point in referring D to the District Court for sentence. This court is fully seized of the matter and should re-sentence D. There is no difficulty in this court conducting the necessary preliminary examination of the charge. The appeal papers contain the transcript of evidence taken before the Youth Court judge and all other relevant documents and records.
This court should exercise its powers pursuant to section 36 of the Young Offenders Act that provides:
(1)Subject to any direction of the sentencing court to the contrary, a youth who has been dealt with as an adult and sentenced to imprisonment will serve that sentence in a training centre.
(2)If a youth is serving a sentence of imprisonment in a training centre, the sentencing court must, before the youth reaches 18 years of age, review the detention and either direct that the imprisonment in a training centre continue or that the youth be transferred to a prison.
The assumption behind section 36(2) is that a training centre will not necessarily be the best place to keep a youth once he or she reaches the age of 18. A review may be appropriate. In circumstances such as the present, it is appropriate for the court to consider whether a training centre or prison is a more appropriate place of detention. This was the approach taken in QTV where it was observed:[11]
There can be no presumption, at that age, that a training centre will be more appropriate. We consider that that was a necessary part of the process in this case. To the extent that the appellant and his counsel may have considered that the question need not be addressed, that was a misapprehension. It cannot be assumed that a person over 18 will be appropriately housed in a training centre.
…
The sentencing Judge was required to conduct a review to evaluate all of the circumstances surrounding any detention of the appellant and then decide whether it was appropriate to make an order for transfer to a prison. As we have said, there are no strict rules or criteria to determine the basis upon which an order might be made. Each case will turn very much on its own particular facts. However, the age of the offender and the length of his sentence are plainly relevant considerations. It cannot be disputed that the sentencing Judge was alert to those two factors. Likewise, it must be said that it is not appropriate to detain in a youth facility an offender who might be well into adulthood before he or she is eligible for release. It is not inappropriate to consider the interests of other residents detained in a training centre whose detention might be adversely affected by the continued presence or conduct of a person sentenced as an adult. That circumstance was raised by the authorities and was before the sentencing Judge in the social background report.
[11] R v QTV (2003) 231 LSJS 385 at 392 - 393
When re-sentencing D full credit must be given to the time he has spent on detention pursuant to the Youth Court judge’s order. That period should be deducted from the sentence that would otherwise be imposed. It is not possible in the circumstances to backdate the sentence. It is also necessary to consider whether the sentence should be served concurrently with the existing District Court sentence, or be cumulative on that sentence. For reasons that appear later the re-sentence in respect of the subject charges should be a sentence served in addition to the sentence imposed by the District Court judge.
Finally it will be necessary for this court to review the non parole period set by the District Court and extend that period as this court thinks fit.
Conclusion
D is now aged 19 years and six months. This court should re-sentence D as an adult pursuant to its powers under section 22(3) of the Youth Court Act. When doing so the court must have regard to the special considerations that apply to young offenders. In R v Bui[12] the court concluded that where an order is made under section 17(3)(c) of the Young Offenders Act the provisions in section 3 of that Act still apply to the sentencing of the youth, although their relevance would depend on the circumstances. The same conclusion was reached in QTV.
[12] (2002) 224 LSJS 286
The gravity of D’s offending requires the imposition of a sentence of immediate imprisonment. His criminal conduct was both brutal and callous. At the time D had been released on a good behaviour obligation following earlier crimes involving violence. Subsequent to the subject offending D committed a further crime of rape. It would appear that an explanation for his conduct was his long standing drug addiction. This circumstance may offer an explanation but provides no excuse.
The psychological evidence suggests that D has prospects for rehabilitation with appropriate treatment. When determining sentence the court should have regard to D’s youth, both at the time of offending and at resentencing. Special weight should be given to his prospects for rehabilitation. However regard must also be had to the protection of the community and the need to deter D from future offending.
D’s plea of guilty came very late and in circumstances where the complainant had been subjected to the giving of evidence. As the complainant’s victim impact statement disclosed, the trial process was extremely distressing. In this circumstance only a minimal allowance can be made for his pleas. An allowance of three months has been made.
Care must be taken to avoid imposing a sentence that would be crushing. It is appropriate to invoke the provisions under section 18A of the Sentencing Act and impose the one sentence for the four counts of rape.[13]
[13] If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
The minimum period of imprisonment that D should serve for the subject offences is two years and nine months. A reduction has been made for D’s pleas of guilty. Credit must be given for the three months already spent in detention. As a result a head sentence should be imposed for the subject offences of imprisonment for two years and six months.
On the material before the court and having regard to the fact that D faces a custodial sentence during adulthood, the sentence for the subject offences should be served in prison.
The District Court judge, when sentencing for the subsequent rape offence, fixed a head sentence of five years with a non parole period of three years. The sentence commenced on 15 January 2004 at the expiration of the sentence imposed by the Youth Court.
Section 32(1)(b) of the Sentencing Act provides:
Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court);
The non parole period should be extended from three years to four years and nine months. The head sentence to be imposed with respect to the subject offences of two years and six months should be cumulative on the head sentence of five years imposed by the District Court judge.

This appeal should be allowed. The following orders should be made:
-       The sentence imposed by the Youth Court judge be set aside.
-D be re-sentenced in respect to the subject offences.
-D be re-sentenced as an adult. Pursuant to section 18A of the Sentencing Act D be sentenced to imprisonment for two years and six months for the four counts of rape.
-       The sentence be served in prison.
-The sentence be cumulative on the sentence imposed by the District Court on 17 December 2003.
-The sentence commence on the expiration of the sentence imposed by the District Court.
-The non-parole period of three years fixed by the District Court be extended to a period of four years and nine months.
-       The extended non parole period is to commence on 15 January 2004.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1      KBS v Police [2001] SASC 40 at [34] – [35]
2      R v QTV (2003) 231 LSJS 385 at 395
3 R v Osenkowski (1982) 30 SASR 212 at 212-213 – see also Everett v The Queen (1994) 181 CLR 295, Police v Cadd (1997) 69 SASR 150 at 156-159 per Doyle CJ.
4 (1986) 42 SASR 111 at 112-113
5 (1986) 42 SASR 111 at 124
6 House v R (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 32
7 Hallam v O’Dea (1979) 22 SASR 133 at 136 per King CJ; AJK vPolice [2002] SASC 265 at [29] – [30] per Wicks J
8      R v C (1998) 72 SASR 391 at 394
9      R v QTV (2003) 231 LSJS 385 at 390-391
10 Section 3 Youth Court Act 1993 (SA)
11     R v QTV (2003) 231 LSJS 385 at 392 – 393
12 (2002) 224 LSJS 286
13 If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.

[2004] SASC 131

12 May 2004