R, JM v Police

Case [2012] SASCFC 58

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

R, JM v POLICE

[2012] SASCFC 58

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Blue)

29 May 2012

CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - OTHER PARTICULAR CASES

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

Appeals against three sentences imposed by the Youth Court – the first appeal was against a sentence imposed in August 2010 by a Magistrate of the Youth Court who sentenced the appellant to detention (suspended) for a period of 10 months for some 38 offences – the Magistrate arrived at the sentence by accumulating a number of notional sentences but imposed a single sentence of imprisonment using the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) – the second and third appeals related to the sentence by a Judge of the Youth Court when sentencing the appellant for offences committed in December 2010.

The issues on appeal were: (1) whether the Youth Court can impose a single sentence of detention, exercising the power conferred by s 18A of the Sentencing Act, which sentence is arrived at by, in effect, accumulating sentences notionally attributable to the separate offences in respect of which the single sentence is imposed, whether s 31(4) of the Sentencing Act prohibits the accumulation of sentences when sentencing youths; (2) whether the Judge of the Youth Court should have reduced the term of detention, when the Judge revoked the suspension of the sentence in the course of sentencing the appellant in respect of the further offences; and (3) whether the Judge’s reasons were inadequate in considering whether the sentence, suspension of which had been revoked, should have been reduced.

Held: (1) Doyle CJ with David J concurring: the Magistrate had power to use s 18A as he did – s 18A and s 31(2) are procedural in nature, providing the court with the machinery to structure a sentence in a specified manner – neither provision is dependent upon the other – the exercise of each power is grounded in s 10 of the Sentencing Act and common law – the substantive principles relating to the imposition of concurrent and cumulative sentences are found in the common law – the limits imposed by s 23 of the Young Offenders Act 1993 (SA) on a court sentencing a youth as a youth, and the policy set out in s 3, make the process of accumulation of sentences under s 31 of the Sentencing Act inappropriate in most cases, when a court sentences a youth as a youth.

Blue J: the Youth Court has the power, quite independently of s 31 of the Sentencing Act

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R, JM v Police [2012] SASCFC 58
Case
[2012] SASCFC 58
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CaseChat Overview and Summary

The case of *R, JM v Police* involved three appeals against sentences imposed by the Youth Court of South Australia. The first appeal concerned a suspended sentence of 10 months detention for 38 offences, imposed by a Magistrate using the power under s 18A of the *Criminal Law (Sentencing) Act 1988* (SA). The second and third appeals related to a sentence imposed by a Judge of the Youth Court for offences committed later in 2010, specifically challenging the Judge's decision not to reduce the length of a suspended sentence.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether subsection 31(4) of the *Criminal Law (Sentencing) Act 1988* (SA) indicated a legislative intention that sentences of imprisonment imposed on a youth by the Youth Court should not be cumulative or reflect a cumulative approach, and whether s 18A of the Act could be used to circumvent this prohibition. The appellant also contended that s 31 of the Act was the sole source of power to impose a cumulative sentence.

The Court dismissed all three appeals. It reasoned that the appellant's propositions regarding the legislative intent against cumulative sentences and the exclusive power under s 31 could not be sustained. The Court examined the history of sentencing at common law, noting that cumulative sentences were permissible for misdemeanours, as demonstrated in *R v Wilkes*. This historical context, along with the relevant legislative provisions, led the Court to conclude that the appellant's interpretation of the Act was incorrect.

The Court ordered that all three appeals be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, the second and third appeals should be dismissed. One of those appeals is the appeal against the decision by the Judge not to exercise the power conferred by s 58(4)(a). The other appeal is consequential upon that, because it relates to the sentence of the Judge imposed for the offences before him, but the only complaint that is made is that the failure to reduce the length of the suspended sentence has resulted in a sentence that is, overall, manifestly excessive.Conclusion For those reasons all three appeals should be dismissed. It is appropriate that I acknowledge the assistance that I have derived from the Outlines provided to the Court. They reflect very detailed research on the background to the state of the relevant legislation, and on the issues which the Court has had to consider. DAVID J: I would dismiss all three appeals. I agree with the reasons of the Chief Justice. BLUE J: The facts and issues in these appeals are set out in the judgment of Doyle CJ.First appeal The contention of the appellant and defendant relies upon three propositions:1.subsection 31(4) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) manifests a clear legislative intention that sentences of imprisonment imposed on a youth by the Youth Court must not be cumulative or reflect a cumulative approach;2.the sole source of power to impose a cumulative sentence is section 31 of the Sentencing Act; and3.section 18A of the Sentencing Act cannot be used to achieve by the “back door” what subsection 31(4) prohibits by the “front door”. A consideration of the history of and policy behind the common law and relevant legislative provisions shows that the first two propositions cannot be sustained.Cumulative sentences At common law, all offences were classified as either misdemeanours or felonies.[1] Misdemeanours were punishable by imprisonment (without limit) and/or fine (without limit).[2] A court sentencing an offender for a misdemeanour had power to direct that a sentence of imprisonment commence upon the expiration of another sentence of imprisonment being served or imposed at the same time for another misdemeanour and multiple cumulative sentences were permissible.[3][1] Reynolds v Stacy [1957] HCA 9; (1957) 96 CLR 454 at 459-460 per Dixon CJ and McTiernan J (Fullaghar, Kitto & Taylor JJ agreeing). Treason was sometimes regarded as separate to, and higher than, felony, but treason can be disregarded for present purposes.[2] Although a sentence could not be inordinate in all of the circumstances: R v Castro (1880) 5 QB 490 at 509 per Bramwell LJ.[3] R v Wilkes (1769) 19 St Tr 1075 at 1133-1135; R v Rhenwick Williams (1790) 1 Leach 529; 168 ER 366; Gregory v The Queen (1850) 15 QB 974; 117 ER 726; R v Rowland [1971] SASR 392 at 394 per Bray CJ, Hogarth J and Sangster AJ. There were obvious policy reasons for this approach. In R v Wilkes,[4] Wilkes had been sentenced to ten months imprisonment for a treasonable libel and twelve months imprisonment for a separate blasphemous libel. It was ordered that the term of imprisonment for the blasphemous libel commence upon the expiration of the term of imprisonment for the treasonable libel. The House of Lords upheld the sentences. Sir John Wilmott CJ (delivering the opinion on behalf of the House of Lords) said:[5]We are of opinion that the defendant being convicted of two offences, it was necessary that two judgments should be pronounced, one upon each information …We cannot explore any mode of sentencing a man to imprisonment, who is imprisoned already, but by tacking one imprisonment to the other, as is done in the present case.It is not letting the judgment for the first offence vary the punishment, or influence the quantum of it in the other; but only providing, from the situation of the delinquent, to effectuate the punishment the Court thought his crime deserved. It is shaping the judgment to the peculiar circumstances of the case; and the necessity of postponing the commencement of the imprisonment, under the second judgment, arises from the party’s own guilt, which had subjected him to a present imprisonment; and therefore the question really is, Whether a man under a sentence of imprisonment for one offence, can be sentenced to be imprisoned again for another offence? If he can, this is the only form by which it can be done consistent with justice. If it cannot be done, then in all offences which are punishable only by fine and imprisonment, if a man has committed twenty, and has been sentenced to imprisonment for one of them, he must be fined for all the rest … or an imprisonment must be directed for every offence after the first, inadequate and disproportionate to it.[4] R v Wilkes (1769) 19 St Tr 1075.[5] R v Wilkes (1769) 19 St Tr 1075 at 1132-1134.

Ratio Decidendi

Legal Principle Established

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