Police v W, R - [2005] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v W, R
Judgment of The Honourable Justice Duggan
31 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Appeal from decision of magistrate in Youth Court not to revoke respondent's suspended sentence - detention suspended upon imposition of good behaviour obligation - the obligation form not signed by respondent - whether the signing of the obligation form is a condition precedent to validity of obligation by the court - no error made by magistrate - was reasonable doubt as to respondent's understanding of obligation - within magistrate's discretion not to revoke the suspension - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 58; Young Offenders Act 1993 s 26, referred to.
Dat v Police (2002) 83 SASR 237, applied.

POLICE v W, R
[2005] SASC 119
Magistrates Appeal

DUGGAN J. This is a prosecution appeal against the orders made by a magistrate in the Youth Court in relation to an admitted breach of obligation.
The obligation was imposed upon the respondent by the Senior Judge of the Youth Court on 23 August 2004. On this occasion the Senior Judge imposed a sentence of detention in respect of various offences, but directed that the detention be suspended upon the imposition of the obligation. The obligation required the respondent to be of good behaviour for a period of 12 months and to perform 120 hours of community service. It also contained supervision and reporting conditions.
On 6 January 2005 the respondent was dealt with by the learned magistrate appealed from for two offences which breached the obligation. The offences were for unlawful possession of a mobile telephone on 30 August 2004 and unlawful possession of a pullover on 24 September 2004. In addition, there was an application for the revocation of the suspension of the period of detention and a direction that the sentence of detention be carried into effect. The breaches of the obligation were admitted. However, the magistrate found that there were proper grounds upon which the failure of the respondent to abide by the terms of the obligation could be excused, thus enabling the court to refrain from revoking the suspension pursuant to the Criminal Law (Sentencing) Act 1988 s 58(3). The magistrate then ordered that the obligation be extended for a period of 12 months on conditions similar to those imposed in relation to the earlier obligation.
The present appeal is against the refusal of the magistrate to revoke the suspension.
The magistrate proceeded in this way after stating that he was not satisfied that the respondent fully appreciated the significance of the breaching offences and the obligation imposed. In order to assess the appropriateness of that finding it is necessary to refer again to the history of the matter.
I have said that the respondent was sentenced by the Senior Judge on 23 August 2004. I quote some excerpts from the Senior Judge’s remarks:
“HIS HONOUR: Stand up please [R]. [R], you have been stealing, you have been breaking into people’s houses, you have been taking cars; you deserve to have a long time in Magill. I am going to make an order that you go to Magill for six months but I am going to leave you out while you behave yourself. Anything wrong at all and you will end up in Magill for sure. And you are going to have to do 120 hours of community service.
DEFENDANT:            Yes.
HIS HONOUR:           So it is up to you. If you want to stay out, don’t steal.
DEFENDANT:            Yes.
HIS HONOUR:           If you want to go to gaol then you know what to do.
DEFENDANT:            Yes.
HIS HONOUR:           Take a seat. I find the breach of obligation proven on file 1423 and I extend the bond for a period of 12 months from today. Then working through these other matters, from the top. On file 3646 there will be one penalty only. Have I heard facts from you Mr Prosecutor?
APP TOLLENAAR:             No sir.
HIS HONOUR:           Do you want to give me anything that is other than on the information?
APP TOLLENAAR:             No sir.
HIS HONOUR:           Thank you.
MR MCCARTHY:      Can I express a point. There is no illegal uses. Certainly in the past [R] has got quite a long – has a record for that.
HIS HONOUR:           Well yes, there is one illegal use outstanding isn’t there?
MR MCCARTHY:      Yes, interference your Honour I think.
HIS HONOUR:           Yes, interference. So on that file, 3646, there will be one penalty only. [R] is convicted and he is sentence to detention for six months. On the file 1811, again there is one penalty only and [R] is sentenced to detention for six months. On the file 0614, one penalty. [R] is convicted and sentenced to detention for six months. On file 0512 [R] is convicted without penalty. On the common assault on file 0227 – you had better give me the facts on that.”
After the prosecutor had summarised the facts his Honour continued:
“Thank you. He will be convicted. He will be sentenced to detention for one month. The other matters remain outstanding. On the matters in file 0841, one penalty only and [R] is convicted. He is sentenced to detention for six months. On the damage property he is convicted without penalty on both counts.
All of those sentences of detention are suspended upon [R] entering into an obligation to be of good behaviour for 12 months. During that time he is to be under the supervision of an officer of the department and he is to obey that officer’s directions as to attendance on programmes and projects, as to his place of residence, and he is not to attend within the Adelaide metropolitan area unless that supervising officer first gives his express permission. And he is to do 120 hours of community service within the first six months of that obligation.
All right well when you have signed your obligation papers [R] you will be free to go but, as I said, any further trouble and it is off to Magill for six months. Where should he report Mr Kovacev?”
I have been told that the practice in the Youth Court is to require a youth, upon whom an obligation linked with a suspended sentence is imposed, to sign a document entitled:
“Suspended Sentence Obligation and Notice”.
The form is not authorised by the Youth Court Rules, but it provides for the setting out of the particulars of the offences to which the obligation relates and the details of the obligation imposed. It also includes an explanation to the youth of what could happen if there is a failure to comply with the conditions of the obligation.
The magistrate found that the respondent did not sign any form on 23 August 2004. The reason why this did not occur is not apparent on the material before me.
There is a suggestion in the appellant’s outline of argument that the respondent may have signed a form answering the description of the form described above on 14 December 2004. This could not be confirmed at the hearing of the appeal and, in any event, the breaching offences were committed before that date.
It was argued by the appellant that the magistrate appears to have assumed that the signing of a form by the youth setting out the nature of the obligation was a condition precedent to the validity of the obligation. It followed, so it was argued, that the magistrate erred in law in proceeding on this basis.
I accept the appellant’s contention that there is an important distinction between a defendant entering into a bond pursuant to Part 5 of the Criminal Law (Sentencing) Act1988 and the imposition of an obligation by the court pursuant to s 26 of the Young Offenders Act 1993. The former requires agreement by the defendant whereas the latter is a unilateral imposition of an obligation by the court. Accordingly, a youth is not required to give any form of undertaking. The obligation comes into effect when the court imposes it on the youth.
In my view, however, the magistrate did not fall into error. He stated that he was unable to find beyond reasonable doubt that the appellant knew his conduct was a breach of the obligation: see Dat v Police (2002) 83 SASR 237. He said:
“Given the limited intellectual functioning of the youth and given the uncertainty about when he signed the various obligations I have grave doubts about making a finding beyond reasonable doubt that he fully appreciated the significance of the breaching offences. In deciding whether there are proper grounds to excuse the breach I take into account the circumstances of delay before you actually signed the obligations. The breaching offences occurred on my findings prior to the obligation being signed by you. Given your degree of intellectual malfunction it appears to me in the circumstances that the failure of the court system generally to ensure that you were required to focus on your obligations by having the conditions of the obligation explained to you and to have you sign the obligations allow me to conclude that there are proper grounds to excuse the breach. Those proper grounds sound in the failure of the system to ensure that you were required to acknowledge your obligation in the usual way on the day that the sentencing took place. I excuse the breach.”
In my view the magistrate was doing no more than stating that one of the reasons for finding a reasonable doubt as to whether the respondent fully appreciated the significance of the breaching offences in the context of the obligation was that the court failed to ensure that he signed a form acknowledging the obligation. He did not hold that the signing of such a form was necessary to give effect to the obligation.
In the absence of any error in law by the magistrate there is no case for interfering with the exercise of the discretion not to revoke the suspension. It was open to the court to find that, in the particular circumstances of the case, there was a doubt as to the respondent’s understanding of the obligation and that this was a proper ground for refraining from revoking the suspension.
The appeal will be dismissed.