Police v P No. Scgrg-99-922 Judgment No. S395

[1999] SASC 395

POLICE v P

[1999] SASC 395
Magistrate’s Appeal
1 MARTIN J.  (Ex tempore)           This is a Crown appeal in respect of a sentence imposed upon the respondent in the Youth Court.
2 The respondent pleaded guilty to illegal use of a motor vehicle, larceny of petrol to the value of $40.49 and breaking and entering a dwelling and stealing therein a number of items, together of the value of $5 543.  All offences were committed on 7 June 1999.  In relation to the offences of illegal use and larceny the Magistrate convicted the respondent without further penalty, but in respect of the illegal use his Honour disqualified the respondent from holding or obtaining a drivers licence for a period of 12 months.  For the breaking and entering offence, the respondent was placed on an obligation to be of good behaviour for a period of 12 months, upon condition that he be under the supervision of an officer of the Department of Human Services, Family and Community Services, and that he reside as directed initially at Cornerways Unit.  It was a further condition that the respondent attend programs and projects as directed. 
3 On the same occasion, the respondent was convicted in connection with breaching a previous obligation that had been imposed in the Youth Court on 2 March 1999 for the offence of damaging property.  A sentence of one month's detention had been imposed, but suspended upon the respondent entering into an obligation to be of good behaviour for a period of 12 months with various conditions.  The Magistrate found the breach proved and revoked the suspension.  His Honour reduced the period of detention from one month to 24 days.  He also backdated the sentence to commence on 7 June 1999 which was the date upon which the respondent had been taken into custody in connection with the offences that were before his Honour.  As sentence was imposed on 22 June 1999, the respondent had already served 22 days. 
4 The prosecution appeals on the ground that the penalty imposed for the offending was manifestly inadequate.  In addition it was argued that his Honour erred both in reducing the period of detention which was previously suspended from one month to 24 days and in backdating that period. 
5 The respondent was residing at a youth hostel in accordance with directions given pursuant to the suspended detention obligation undertaken on 2 March 1999.  He and three co-offenders left that accommodation.  One of the co-offenders later broke into a motor vehicle in a driveway and drove it along the Mount Barker Road toward Murray Bridge.  The respondent was a passenger.  At the Eagle on the Hill, the respondent and the co-offenders stole petrol to the value of $30.69 and then continued to Murray Bridge via the freeway. 
6 At Murray Bridge the youths observed a vehicle leaving a house and a co-offender suggested they break into the house.  The respondent told police that he followed a co-offender into the house while the others remained outside.  The co-offender selected items to be taken and handed them to the respondent.  When they left the house the police were in attendance and they were arrested.  The respondent made full and frank admissions. 
7 The respondent is now 15 year of age.  In a little over two years he has accumulated a very long record of prior offending and consistently failed to comply with his bond obligations.  Unfortunately, the offences involve not only dishonesty, but elements of violence to other persons.  The respondent has been given every opportunity and assistance to commence rehabilitation, but has failed to respond. 
8 The prosecution properly pointed out to the Magistrate that the Court had, on a number of occasions, extended leniency without success and that damage caused by the respondent in offences against the property of Family and Youth Services, had exceeded $60,000.  He has also committed numerous assaults upon employees of Family and Youth Services who work at the residential units where he has been residing. It was put to the Magistrate that the bulk of the prior offending consisted of common assaults and property damage arising out of incidents at the residential units with other youths and with the unit workers.  A primary cause of this offending was anger mismanagement.  It was pointed out that he had never been convicted or charged with offences of illegal use or break and enter.  It must be observed, however, that since 1997 the respondent has committed five offences of larceny and one of receiving.
9 The respondent has been the subject of an order placing him under the guardianship of the Minister of Family and Youth Services since December 1996.  In recent times he has been living at the Cornerways community unit.  He maintains a reasonably good relationship with his mother and continues to see her on a weekly basis.  Counsel for the respondent advised the Magistrate that the respondent is working towards alternative care, that is, being able to spend some of his week at the Cornerways community unit and the remainder with his mother. 
10 The respondent has been participating in a course of anger management and had enrolled in a further course.  This is a sign of his recognition of his anger mismanagement and his willingness to take positive steps to address that problem.  He has successfully participated in numerous other programs. 
11 While he was in breach of the suspended detention order put in place on 2 March 1999, the respondent had completed his 60 hours of community service and commenced paying the $500 compensation at the rate of $10 per week.  The Magistrate took into account the pleas of guilty and the admission of the breach of obligation.  He acknowledged that the prosecutor had submitted that he should impose a period of detention.  His Honour took into account the prior offending, but also reminded himself of the particular importance of the youth's rehabilitation.  He expressed considerable reluctance in giving the respondent another period of detention and took the view that a more positive outcome was to try and re-establish the respondent back at Cornerways and to encourage him not to be influenced by other young persons.  His Honour regarded the imposition of a period of detention as amounting to a "downwards spiral".  He said he was seeking to give the respondent an opportunity to forge new friendships and to enjoy the opportunity of working with people who can achieve improvement.  In addressing the options, his Honour did not make any mention of suspending a period of detention.  He seemed to be concentrating upon either detention to be served or the obligation that he imposed. 
12 The appellant recognised the special consideration applicable to Crown appeals: see Everett v The Queen (1994) 181 CLR 295 and The Queen v Osenkowski (1982) 30 SASR 212. Nevertheless, the Crown submitted that the penalty was so manifestly inadequate as to clearly demonstrate an error of principle on the part of the Magistrate.
13 The Magistrate required to impose penalty in accordance with the policy of the Young Offenders Act 1993 ("the Act"). Section 31(1) of the Act provides as follows:
"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".
14 That policy does not stand alone. Subsection (2) of s 3 provides that the powers conferred by the Act are to be directed towards the object set out in subs (1), but 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;
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(c)     the community and individual members of it must be adequately protected against violent or wrongful acts".
15 Sub-section (2a) of s 3 also requires the Court to have regard to the deterrent effect of any proposed sanction upon the youth.  General deterrence, however, is not a matter to which the section refers, unless sanctions are imposed on a youth who is being dealt with as an adult. 
16 The Magistrate was exercising his discretion in the context of a specialist jurisdiction.  An appeal court should be slow to interfere with the exercise of that discretion by an experienced Magistrate.  His Honour faced a difficult decision and was anxious to explore all alternative avenues to detention and to give the youth every possible opportunity to respond.  It is not in the respondent's interests or those of the community that he continue on his current path, which will inevitably lead to lengthy periods in custody.  The course chosen by the Magistrate was undoubtedly very lenient.  A view that the penalty was very lenient, however, is not a sufficient basis for interference by this Court, particularly on a Crown appeal.  I have been particularly concerned about the fact that the respondent was given a period of detention on 2 March 1999, which period was suspended, and the current offences were in breach of the bond obligation attached to the suspension of that period of detention.  This was not the first occasion on which the respondent has failed to comply with a bond obligation. 
17 On the previous occasion in March 1999, in respect of the offence of damaging property the Youth Court had arrived at the view that, notwithstanding the respondent's personal circumstances, a period of detention was the appropriate penalty.  The appellant's prior record of offending was undoubtedly a significant factor in arriving at that decision. 
18 On the occasion now under consideration there were no mitigating circumstances or reasons advanced for decamping from the unit and committing the offences.  Undoubtedly the personal circumstances and background of the respondent contributed, but there were no special circumstances associated with this particular offending.  In my opinion, in view of the respondent's prior record of offending and the fact that in March 1999 he was sentenced to a period of detention, which period was suspended, his Honour fell into error in imposing only the obligation.  The manifest inadequacy of the penalty imposed demonstrates that his Honour has in some way misdirected himself. 
19 There is an added complication.  One of the respondent's co-offenders was required to enter into an obligation for a period of 12 months.  It was a term of that obligation that he undertake 120 hours of community service.  A second co-offender was treated far more leniently.  All offences were dismissed without conviction, but he was disqualified from holding or obtaining a drivers licence for a period of 12 months. 
20 This Court has said on a number of occasions that disparate penalties should not be imposed upon co-offenders of equal culpability unless the disparity is justified by differences in personal circumstances, including antecedents: see R v MacGowan (1986) 42 SASR 580. The Magistrate who imposed penalty on the respondent was the officer who dismissed a co-offender’s offences without conviction and suspended that person’s licence for 12 months. A different judicial officer imposed the community service on the other co-offender.
21 In arriving at an appropriate penalty, therefore, I must bear in mind the need for consistency of punishment and must avoid creating a disparity which would give rise to a justifiable sense of grievance on the part of this respondent.  There is, however, a significant point of distinction between this respondent and the other co-offender who was treated very leniently.  That co-offender was not in breach of an obligation in connection with a suspended period of detention.  In the absence of a disparity difficulty, in my opinion the appropriate sentence for this respondent would have been a period of detention to be suspended.  However, by reason of the need to avoid unfair disparity, and bearing in mind that this is a Crown appeal, I have decided that it would create too much disparity to impose a period of detention, albeit suspended. 
22 As to the reduction of the suspended period of detention from one month to 24 days, the Crown submitted that the Magistrate erred because there were no special circumstances to justify that course. The Crown relied upon the application of s 58(4) of the Criminal Law (Sentencing) Act 1988, ("the Sentencing Act.").
23 It is apparent that his Honour considered the short period of remand in custody was sufficient to bring home to the youth the consequences of his action.  Having determined a future course that did not involve detention, his Honour obviously sought to avoid interfering with that and hence reduced the period so that the youth would be released within a day or two.  The reduction was in the order of six days.  The Crown has acknowledged that if there was nothing more in this matter it would not warrant interference.  In all the circumstances, and again bearing in mind that this is a Crown appeal, I am not satisfied that it is appropriate to interfere with his Honour's decision in that regard. 
24 Finally it was said that the Magistrate erred in backdating the commencement of the suspended detention because there was no power to do so. Where a court revokes a suspension, s 58(4)(b) enables the Court to direct that the time spent in custody pending determination of the proceedings for a breach of condition be counted as part of the term of the suspended sentence. The practical effect of strict compliance with s 58(4)(b) is the same as backdating the commencement of the term. His Honour was in error in purporting to backdate the period of that term. In the circumstances, however, notwithstanding that his Honour was strictly in error, I am not persuaded that it is appropriate to interfere with the result.
25 The appeal is allowed with respect to the penalties imposed for the offences which were before his Honour.  The orders made by his Honour with respect to those offences are set aside.  In lieu thereof the respondent is convicted of all counts.  For the offences of illegal use and larceny there will be one penalty, namely, a fine of $50.  I allow two months to pay.  In respect of the illegal use, the respondent will be disqualified from holding or obtaining a driver's licence for a period of 12 months.  The licence disqualification will commence at 12.01 a.m. on 16 January 2000.
26 In respect of the offence of breaking and entering and stealing, the respondent will be placed on an obligation to be of good behaviour for a period of 12 months.  It will be a condition of the obligation that the respondent perform 50 hours of community service within 12 months.  I impose further conditions that the respondent be under the supervision of an officer of the Department of Human Services, Family and Community Services and that he reside as directed and attend programmes and projects as directed.  I impose the same conditions under the obligation that the Magistrate imposed with the addition of 50 hours of community service.