Police v G, PA - [2007] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v G, PA
[2007] SASC 78
Judgment of The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice David
7 March 2007
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS
Prosecution appeal against decision of Youth Court judge to refer matter to a family conference - respondent charged with aggravated robbery whilst in possession of an offensive weapon - matter referred to a family conference pursuant to Young Offenders Act 1993 (YOA) s 17(2) - appeal directed to Full Court - consideration of appeal provisions in Youth Court Act 1993 (YCA) s 22 - Held: referral of matter to family conference is an interlocutory order and appeal lies to single judge of the Supreme Court - by consent, issue on original appeal dealt with by way of reservation of question of law for the consideration of the Full Court pursuant to Supreme Court Act 1935 s 49(1).

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS - FIRST OFFENDERS AND JUVENILE OFFENDERS
Question of law referred to Full Court - whether Youth Court judge had power under YOA s 17(2) to refer subject matter of charge of aggravated robbery to be dealt with by family conference - whether court's power to refer matter to family conference restricted to a "minor offence" as defined in YOA s 4 - whether power to refer major indictable offence to family conference - Held: Youth Court's power under YOA s 17(2) not restricted to minor offences or offences which are not major indictable offences.
Young Offenders Act 1993 s 4, 6, 7,(1), 8, 11, 12, 17(2), 21; Youth Court Act 1993 s 22, 22(2)(b); Criminal Law (Sentencing) Act 1988 s 3; Supreme Court Act 1935 s 49(1), referred to.
R v Police (2002) 224 LSJS 210, applied.
H v Police (1998) 198 LSJS 331; Police v CB & Others [1999] SASC 371, distinguished.
SA Police v W (1995) 64 SASR 408, discussed.

POLICE v G, PA
[2007] SASC 78
Full Court: Doyle CJ, Duggan and David JJ

DOYLE CJ. I agree that the question of law reserved by Duggan J for the consideration of the Full Court should be answered “Yes”. I agree with the reasons of Duggan J for that answer.
DUGGAN J. The respondent appeared before the Youth Court charged on an information which alleged that, on 9 July 2006 at Tea Tree Gully, he and another youth committed aggravated robbery whilst in possession of an offensive weapon and robbed Drew Clark of three pizzas, a bag and money.
Aggravated robbery is a major indictable offence.
The respondent was aged 16 years and 9 months at the time of the alleged offence.
The respondent pleaded guilty to the offence on 19 July 2006. The presiding Youth Court magistrate then ordered a social background report.
Subsequently, the matter was listed before the Senior Judge of the Youth Court on 23 August 2006. The social background report and a victim impact statement were provided to the court on this occasion.
In the course of submissions before the Senior Judge, defence counsel applied for the matter to be dealt with by way of a referral to a family conference pursuant to s 17(2) of the Young Offenders Act 1993. The prosecution opposed the referral, but the defence application was granted.
The prosecution appealed to this court against the decision to refer the matter to a family conference. The grounds of appeal are as follows:
1The learned appeal Judge imposed a sentence that was manifestly inadequate.
2The learned appeal Judge erred in law by dealing with the respondent pursuant to section 17(2) of the Young Offenders Act 1993 when the respondent had pleaded guilty to a major indictable offence involving violence.
3The learned appeal Judge erred in law by dealing with the respondent pursuant to section 17(2) of the Young Offenders Act 1993 when the offence to which the respondent pleaded guilty was not a minor offence as defined in section 4 of the Young Offenders Act 1993.
It is necessary to deal first with the competency of the appeal.
Section 22 of the Youth Court Act 1993 provides for appeals against judgments given in proceedings before the Youth Court. “Judgment” is defined in s 3 to include a declaration or order. Section 22(2)(b) states that, in the case of an interlocutory judgment given by a judge, the appeal is to the Supreme Court constituted of a single judge.
A decision to refer a matter to a family conference is in the nature of an interlocutory order in that it does not finally dispose of the matter. It follows that the appeal in this matter should have been to a single judge of the Supreme Court.
There is a further difficulty with the notice of appeal. Ground 1 complains that the sentence is manifestly inadequate. It may be that no sentence has been imposed. The referral to a family conference may not be a “sentence” as defined in s 3 of the Criminal Law (Sentencing) Act1988. However, this issue was not argued on the hearing of the appeal and it is unnecessary to express a decided view in relation to it.
Section 49(1) of the Supreme Court Act 1935 enables a court constituted of a single judge of the Supreme Court or a master to reserve a question of law for the consideration of the Full Court. The questions of law raised in grounds 2 and 3 of the notice of appeal give rise to important issues which have been the subject of conflicting decisions by single judges of this court. In the circumstances, it seems appropriate to treat this appeal as an appeal to a single judge so as to conform with s 22(2)(b) of the Youth Court Act and for a single judge from the court as presently constituted to reserve for the Full Court, as a question of law, the issue whether the judge had power to refer the subject matter of the charge in the present case to be dealt with by a family conference.
Following discussion between the members of the court and counsel, it has been agreed that I should reserve for the consideration of the Full Court the following question:
Did the learned senior judge have the power under s 17(2) of the Young Offenders Act 1993 to refer the subject matter of the charge of aggravated robbery with which the respondent has been charged, to be dealt with by a family conference?
Assuming that there was power to refer the matter to a family conference, the question whether the judge erred in the exercise of his discretion to do so is not raised on the grounds of appeal. However, both counsel have made submissions on this issue. Section 22(2) of the Youth Court Act requires that this issue, if raised on appeal, is to be dealt with by a single judge of this court. A ground of appeal relating to the exercise of the judge’s discretion would not raise a question of law and so could not be reserved for the consideration of the Full Court pursuant to s 49 of the Supreme Court Act.
In my view, it would be inappropriate for this court to express any view on the exercise of the discretion, as this issue is not properly before the court.
In my capacity as a member of the Full Court, I now propose to answer the question of law which has been referred to the court. I will continue to use the terms “appellant” and “respondent” for the sake of convenience.
Counsel for the appellant argued that the court had no power to refer the matter to a family conference. In the alternative, it was argued that, if the court had power to make the referral, there was an error in the exercise of the discretion to divert the matter to a family conference.
Family conferences were introduced into the juvenile justice system in this State as a result of the passing of the Young Offenders Act in 1993. This Act retained the concept of diversion by replacing the system of Aid Panels which existed under earlier legislation with a diversionary system involving either police cautioning or referral to a family conference.
The power to divert a matter for police cautioning or to a family conference may be exercised by a police officer or the court depending upon the stage to which the matter has progressed.
An informal caution by the police may be administered if a youth admits the commission of a minor offence and a police officer is of the opinion that the matter does not warrant any formal action under the Act (s 6).
Section 7 provides for more formal proceedings which can be directed by the police. Section 7(1) provides:
If a youth admits the commission of a minor offence, a police officer may deal with the matter as follows:
(a)     the officer may deal with the matter under Division 2; or
(b)     the officer may notify a Youth Justice Co-ordinator of the admission so that a family conference may be convened to deal with the matter; or
(c)     the officer may lay a charge for the offence before the Court.
The reference to the matter being dealt with under Division 2 relates to the powers to administer a formal caution. Pursuant to s 8 of the Act which appears in Division 2, the police officer may administer a formal caution against further offending and exercise other powers to require the youth to enter into an undertaking, pay compensation to the victim, carry out community service or enter into an undertaking to apologise to the victim of the offence. If all the requirements made of the youth are complied with the offence cannot be prosecuted.
Procedural aspects of family conferences are outlined in s 11 of the Act which provides as follows:
(1)     A family conference consists of –
(a)     a Youth Justice Co-ordinator (who will chair the conference); and
(b)     the youth; and
(c)     such of the persons invited to attend the conference as attend in respect to that invitation; and
(d)     a representative of the Commissioner of Police.
(2)A family conference should act if possible by consensus of the youth and such of the persons invited to attend the conference as attend in response to that invitation.
(3)A decision by a family conference is not however to be regarded as validly made unless the youth and the representative of the Commissioner of Police concur in the decision.
(4)A youth is entitled to be advised by a legal practitioner at a family conference.
(5)If a family conference fails to reach a decision, the Youth Justice Co-ordinator must refer the matter to the Court and the Court may decide any question, and exercise any power, that could have been decided or exercised by the family conference.
The powers of a family conference are set out in s 12 which states:
(1)     A family conference has the following powers:
(a)     the conference may administer a formal caution against further offending;
(b)     the conference may require the youth to enter into an undertaking to pay compensation to the victim of the offence;
(c)     the conference may require the youth to enter into an undertaking to carry out a specified period (not exceeding 300 hours) of community service;
(d)     the conference may require the youth to enter into an undertaking to apologise to the victim of the offence or to do anything else that may be appropriate in the circumstances of the case.
(2)In exercising powers under this section, the family conference must have regard to sentences imposed for comparable offences by the Court.
(3)If a formal caution is administered, the caution must be put in writing and acknowledged in writing by the youth.
(4)An undertaking will have a maximum duration of 12 months.
(5)If a youth enters into an undertaking to pay compensation, a copy of the undertaking must be filed with the Registrar and payments of compensation must be made to the Registrar who will disburse the compensation to the victims named in the undertaking.
(6)If a youth enters into an undertaking to carry out community service, a copy of the undertaking must be filed with the Registrar.
(7)If a youth enters into an undertaking under this section to apologise to the victim of the offence, the apology must be made in the presence of an adult person approved by the family conference or a Youth Justice Co-ordinator.
(8) If a youth—
(a) fails to attend at the time appointed for a family conference; or
(b) does not comply with a requirement of the family conference; or
(c) does not comply with an undertaking under this section,
a police officer may lay a charge before the Court for the offence in relation to which the conference was convened.
(9)A charge may be laid under subsection (8) even though a period of limitation relating to the commencement of proceeding for the relevant offence has expired, but the charge must be laid not more than 12 months after the expiration of that period of limitation.
(10)    If—
(a)     a youth is cautioned, and no further requirements are made of the youth, under this section; or
(b)     all requirements made of the youth under this section (including obligations arising from an undertaking given by the youth) are complied with,
the youth is not liable to be prosecuted for the offence.
(11)If a family conference deals with an offence under this Division, the Youth Justice Co-ordinator must—

(a)     ask the victim of the offence whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with; and
(b)     if the victim indicates that he or she does wish to have that information —give the victim that information.
The power of a police officer to proceed with a matter by way of a formal or informal caution or by diversion to a family conference is restricted to a “minor offence”.
“Minor offence” is defined in s 4 of the Act 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.
The Youth Court’s power to refer a matter for police caution or to a family conference arises after a charge has been laid before the court. Section 17(2) of the Act provides:
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.
The primary argument of the appellant is that the court’s power under s 17(2) to refer a matter to be dealt with by a family conference can only be exercised in the case of a “minor offence” as defined in s 4.
The first difficulty which that argument encounters is that the wording of s 17(2) contains no such restriction. The term “minor offence” is used in ss 6(1) and 7(1) when identifying the type of offence which a police officer may deal with by way of caution or by diversion to a family conference. However, there is no such restriction in the wording of the power given to the court to utilise the diversionary procedures.
Secondly, it would be impractical to introduce into s 17(2) the concept of a “minor offence” as defined in s 4. The essence of the definition of “minor offence” is the formation of the relevant opinion by the police officer in charge of the investigation of the offence. There may be some cases in which the mind of a police officer in this respect would be known to the court, but these occasions would be rare. Furthermore, it would be impractical for the court to investigate such an issue at the stage of the proceedings when it was considering whether to make an order under s 17(2).
These difficulties were acknowledged by counsel for the appellant who suggested that the concept of a “minor offence”, which he argued is implicit in s 17(2), need not meet the strict requirements of the term as defined in s 4 of the Act. As I understand the argument, the court would be bound to satisfy itself of the criteria referred to in paras (a) to (d) of the definition of “minor offence”.
There is nothing in the Act which would support the inference that the power of the court under s 17(2) is to be restricted by reference to a modified version of s 4 which is not referred to in s 17(2) or elsewhere in the Act.
There is the further difficulty that the definition of “minor offence” is not capable of being modified in some way by excluding the opinion of a police officer. The opinion of the police officer is central to the definition of “minor offence” in s 4. The remainder of the definition sets out the factors which are relevant and necessary in the formation of the opinion. If the opinion is formed and the offence admitted, it is open to the police officer to make the further assessments pursuant to s 6 or s 7 to determine whether the matter should be diverted for cautioning or referred to a family conference. The question whether a matter should be diverted at this early state is dependent upon the subjective views and assessment of the police officer after having regard to the criteria prescribed in the Act. In these circumstances, it is highly unlikely that the concept of a “minor offence” with its emphasis on the opinion of a police officer, was intended also to restrict the exercise of the discretion by the court at a later stage in the proceedings when diversion was under consideration. Counsel for the appellant enlisted support for his argument by relying on the qualifying words at the commencement of the definition section, s 4 “unless the contrary intention appears”. However, this qualification which is included in most definition sections applies in situations where a word or phrase is employed in a statute in a context which removes it from the defined meaning of the term. It has no application in the present case where, as has been pointed out, s 17(2) makes no reference to a “minor offence”.
The appellant advanced a further argument based on s 21 of the Act which states:
If the Court finds a youth guilty of a major indictable offence, the Court should record a conviction for the offence 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.
It was argued that this provision is an indication that s 17(2) has no application to major indictable offences.
In my view, this argument must be rejected. Section 21 applies where the court decides to proceed with the matter in accordance with the usual court procedures. It is in the nature of diversionary procedures that the matter is taken outside the court system and dealt with in accordance with the procedures for police cautions and family conferences. In my opinion, s 21 must be read as being subject to any decision to divert a matter pursuant to s 17(2). Furthermore, as a police officer may divert a major indictable offence at an earlier stage in the proceedings, there would seem to be no reason for preventing the court from doing so.
In the course of the appeal attention was drawn to decisions of single judges of the Supreme Court dealing with the nature and extent of the Youth Court’s power to refer a matter to a family conference under s 17(2).
In SA Police v W (1995) 64 SASR 408 the respondent was charged with a series of serious property offences. The prosecution appealed against the decision of a magistrate in the Youth Court to divert the matter to a family conference. Cox J made the following observations on the court’s power under s 17(2) at 412:
The two procedures, family conference and court hearing, are fundamentally different. Section 17 apart, a matter cannot get to a family conference unless it meets the requirements of the definition of a minor offence in s 4, including the police officer’s holding the requisite opinion, and unless the offender admits the commission of the offence. 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. It is true that s 17 does not refer in terms to a minor offence; it could hardly do so, because it is unlikely in the nature of things that the police officer, faced with an unco-operative offender, formed and recorded the opinion that is needed to make an offence a minor offence within the meaning of s 4. 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 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.

His Honour’s remarks are directed more to the discretionary approach which the court should take to the exercise of its power under the section, not whether the power could only be exercised if the circumstances came within the definition of a “minor offence”. Indeed he referred to the inappropriateness of a reference to “minor offence” in s 17(2). As I have attempted to point out, once it is recognised that the exercise of the power under s 17(2) is not confined to cases answering the precise definition of “minor offence”, the question is not whether the power exists, but the manner in which the court’s discretion should be exercised.
I acknowledge that the decisions in H v Police (1998) 198 LSJS 331 and Police v CB and Others [1999] SASC 371 support the view that only a “minor offence” as defined in s 4 of the Act can be made the subject of orders for diversion under s 17. However, I respectfully adopt the contrary conclusion reached by Gray J in R v Police (2002) 224 LSJS 210.
Although I am of the view that the exercise of the court’s power under s 17(2) is not restricted to a “minor offence” as defined in s 4, the matters referred to in paras (a) to (d) inclusive of the definition are important considerations relevant to the exercise of the court’s discretion. However, for the reasons which I have given, they are not to be regarded as constituting the definition of an offence to which the operation of the section is then confined.
I would answer “Yes” to the question reserved for the consideration of the Full Court.
DAVID J. I agree with the reasons of Duggan J. I would answer “Yes” to the question reserved for the consideration of the Full Court.