PRBM v Police No. Scciv-02-383

PRBM v POLICE
[2002] SASC 182
Magistrates Appeal

Gray J This is an appeal against a sentence imposed by a judge of the Youth Court.
Background
On 31 January 2002 the appellant 17 year old PBRM received some good news. She was informed that she had been accepted into university to study a Bachelor of Archaeology. The celebration that followed ended abruptly when the appellant rode her bicycle in a shopping centre carpark without a helmet. She was approached by the police. She was clearly intoxicated. She rode away from the police along the footpath. The police pursued her but she collided with the gutter and fell to the ground. There was a minor struggle when they tried to apprehend her. She swung her arms around and twisted her body in an attempt to stop the police from handcuffing her.
The appellant was taken to the police station and detained for some hours. She was charged with driving under the influence of liquor, failing to wear an appropriate bicycle helmet, failing to state her name and address and giving a false name, failing to produce evidence of the correctness of her name and address, hindering a police officer and resisting arrest.
On 13 February 2002 the appellant pleaded guilty to all six counts. She appeared unrepresented and had not received legal advice. The magistrate took into account the pleas of guilty and the fact that she had no previous court appearances. His reasons provide:
“I think the appropriate way to proceed is to impose one penalty under s.18A of the Sentencing Act but I think what we had better do is to confine that somewhat because on the false name and address, that is Count 3, and the refuse name and address, Count 4, they will be without conviction dismissed without penalty. On the hindering police and resisting police, I will pick the first one of those to impose a penalty and on that I am going to impose a conviction and fine of $150. On the failure to wear helmet without conviction dismissed without penalty. On the drive under the influence there will be a conviction and I am going to release you on a 12 months, $300 good behaviour bond. In other words if you in the next 12 months fail to be of good behaviour you will come back to this court and be sentenced for that offence.
As to the financial penalty, on that matter I think what we had better do is to take that $150 away on the hindering and just impose one penalty, namely a fine of $700. There will be a conviction but without further penalty on the hindering…”
The magistrate acknowledged that the appellant’s behaviour was “a rather uncharacteristic performance” and that he understood it was “uncharacteristic behaviour and a one off situation in which you had a few drinks” that got “out of hand”. He expressed “extreme disappointment” at the situation.
The Appeal
On the hearing of the appeal it was submitted that the magistrate had failed to give sufficient weight to section 3 of the Young Offenders Act 1993 (SA) (“the Act”). This resulted in his failure to consider the diversionary principles inherent in the Act and to utilise the available diversionary procedures when dealing with the appellant. In addition it was submitted that the penalty imposed was manifestly excessive. Counsel for the Crown conceded that the magistrate had erred.
Counsel for the appellant submitted that the conduct was explained by “youthful exuberance enhanced by the consumption of alcohol”. The appellant had accepted that her behaviour was foolish. She had no prior court appearances. She had not been in contact with the police before. The appellant was unaware of the purposes of the Act and the availability of the diversionary procedures designed to give effect to those purposes. I was informed that diversionary processes and the need to have regard to section 3 of the Act were not mentioned before the magistrate. It was accepted by the Crown that if the appellant had obtained legal advice it was likely that such matters would have been raised and submissions urging their adoption put to the court.
The obligation on magistrates to inform unrepresented litigants of their responsibilities and options is well established. As Wells J said in Cooling v Steel[1]
“Difficulties arise at a number of stages in the proceedings. I refer more particularly to the typical case of the defendant who attends unrepresented and pleads guilty.”
His Honour continued:
“In general, the court should ensure that the defendant is appraised of his rights and his duties at all times and be vigilant to keep the proceedings free of error or misunderstanding.”
[1] (1971) 2 SASR 249 at 250-251
Section 3 of the Act provides:
“(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;…
The legislative scheme embraces the concept of diversion.[2] It seeks to divert young offenders who commit minor offences away from the traditional court process and deal with them without the need for court proceedings. It recognises that many minor offences are committed by young people who do not have a hardened propensity to commit serious conduct but who make misguided or poor choices. The Act seeks to provide those young offenders with the benefit of a “second chance”. It provides that less punitive outcomes such as police cautions[3] or family conferences[4] be undertaken with a view to guiding and encouraging the youth to adopt a more law abiding attitude.
[2] R v McMillan [2002] SASC 73 at [57-60], [64]
[3] Sections 6 & 7
[4] Section 7
The Act envisages that these diversionary mechanisms may be implemented where appropriate in two ways. The first is by the police at the outset or later by the court. “Minor offence” is defined by section 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)limited extent of the harm caused through the commission of the offence; and
(b)     character and antecedents of the alleged offender; and
(c)     improbability of the youth re-offending; and
(d)     relevant the attitude of the youth’s parents or guardians”
In the event that the police believe that a matter should not be dealt with by an officer or a family conference because of the youth’s repeated offending or some other circumstance of aggravation, a formal charge may be laid. However even at this stage the Act contemplates that diversionary processes may be appropriate. The court has a general discretion[5] to refer the subject matter of the charge back to be dealt with by a police officer or by a family conference once guilt has been established. Section 17 provides:
[5] Section 17 is not limited to minor offences
“(1) Subject to this Act, the Court will deal with a charge in the same way as the Magistrates Court deals with a charge of a summary offence and, in doing so, has the powers of the Magistrates Court.
(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.
(3) If —
(a)     the offence with which the youth is charged is a homicide, or an offence consisting of an attempt to commit, or assault with intent to commit homicide; or
(b)    the offence with which the youth is charged is an indictable offence and the youth, after obtaining independent legal advice, asks to be dealt with in the same way as an adult; or
(c)    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.”
As Cox J said in SA Police v W:[6]
“The section [section 17] provides an opportunity for retrieving from the court system a case that should really never have got into it.”
[6] (1994) 64 SASR 408 at 412-413
It has not been disclosed why the appellant’s conduct was not initially treated by the police as a minor offence and dealt with accordingly. There are a number of possible explanations but it is not necessary to speculate. This was an appropriate case to utilise diversion at the outset. The nature of the offending, the fact that no party was injured directly or adversely affected by the appellant’s conduct, the fact that she was a first offender who had not been in trouble with the police before and the fact that this kind of behaviour was unlikely to be repeated were sufficient reasons for justifying at least the use of an informal caution or at the most a formal caution and family conferencing.[7]
[7] CLM v SA Police (1994) 178 LSJS 390 at 395-396
The magistrate did not alert the appellant to the availability of the diversionary avenue. He did not refer to section 3 in his reasons or during the course of the sentencing process. He gave insufficient weight to the Act’s diversionary objects.
Error has been demonstrated. The magistrate’s discretion miscarried. Accordingly the appellant must be re-sentenced.
Re-sentence
During the appeal I was informed that the appellant is now an adult. She has deferred her studies and is currently residing with her mother in Alice Springs. She intends to return to study in Adelaide next year. In these circumstances it is now inappropriate to consider diversion to a family conference. Counsel for both parties agreed that the appropriate course was to release the appellant on an obligation to be of good behaviour without recording convictions or imposing any monetary penalty. Given that the appellant now resides in Alice Springs it is appropriate to continue the existing obligation.
The order of the court is
1      appeal allowed
2the sentence imposed by the magistrate is set aside except for the obligation entered into by the appellant. That obligation was in the amount of $300. It obliged the appellant to be of good behaviour for a period of 12 months and to come before the court for sentence and conviction if called upon. The appellant continues to be subject to that obligation.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 (1971) 2 SASR 249 at 250-251
2      R v McMillan [2002] SASC 73 at [57-60], [64]
3      Sections 6 & 7
4      Section 7
5      Section 17 is not limited to minor offences
6 (1994) 64 SASR 408 at 412-413
7 CLM v SA Police (1994) 178 LSJS 390 at 395-396

[2002] SASC 182

7 June 2002