R v A

Case [2016] SASCFC 66

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v A

[2016] SASCFC 66

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Doyle)

1 June 2016

CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - CUSTODIAL ORDERS - DETENTION IN TRAINING CENTRE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence.  The appeal is against a sentence of 14 months detention for the offence of aggravated robbery.   The appellant is a child of 15 years of age. 

The appellant was sentenced to a period of 14 months detention for the offence of aggravated robbery by a Judge of the Youth Court.   The period of detention was cumulative upon a further period of four months detention imposed upon revocation of a suspended detention order.  The Judge ordered that the appellant serve the balance of the unserved detention order.  This period of 18 months detention was backdated to commence from 17 October 2015.  The appellant was also sentenced to two months detention for an offence of aggravated theft.  Prior to 17 October 2015 he had served various short periods in detention and on home detention.  The Youth Court Judge attributed those periods to the aggravated theft offence and did not impose any further penalty for that offending.  The appellant pleaded guilty.  The Judge discounted the term of imprisonment by 30 per cent for the plea.  Accordingly, the starting point was a sentence of 20 months detention. 

The appellant appealed on the grounds that the sentence was manifestly excessive, the sentencing Judge erred by imposing a sentence that failed to give sufficient weight to the purposes of the Young Offenders Act 1993 (SA) and that the sentencing judge erred by imposing a sentence that failed to consider the individual circumstances of the appellant.

Held per Stanley J (Doyle J agreeing), allowing the appeal:

1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [54]).

2. No error is demonstrated that in imposing sentence the Judge failed to give sufficient weight to the purposes of the Young Offenders Act 1993 (SA) (at [61]).

3.  The sentencing Judge did not err by imposing a sentence that failed to consider the individual circumstances of the appellant (at [62]).

4.  The term of detention of 14 months, imposed cumulatively with the unserved sentence of four months now to be served, is outside the range of sentences that is necessary to realise the objects of the Act (at [66]).

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R v A [2016] SASCFC 66
Case
[2016] SASCFC 66
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CaseChat Overview and Summary

This case concerned an appeal against a sentence imposed by the Youth Court on a 15-year-old offender. The appellant had pleaded guilty to aggravated robbery and was sentenced to 14 months detention, cumulative upon a further four months detention for breaching a suspended detention order. This resulted in a total period of 18 months detention, backdated to commence from 17 October 2015. The appellant argued that the sentence was manifestly excessive, that the sentencing judge failed to give sufficient weight to the purposes of the Young Offenders Act 1993 (SA), and that the judge failed to consider his individual circumstances.

The appellate court was required to determine whether the sentencing judge erred in imposing the sentence of 18 months detention. Specifically, the court had to consider whether the sentence was manifestly excessive, whether adequate weight was given to the rehabilitative and developmental objectives of the Young Offenders Act, and whether the appellant's personal circumstances were properly taken into account. The grounds of appeal challenged the sentencing judge's exercise of discretion.

The court affirmed the principle that an appellate court should only intervene if a sentence is demonstrably outside the permissible range, meaning it is so unreasonable or plainly unjust. The court found no error in the sentencing judge's assessment of the weight given to the purposes of the Act, noting that a submission that insufficient weight was given to a factor is not, in itself, grounds for appeal unless it leads to a manifestly excessive sentence. The court also found that the sentencing judge had indeed considered the appellant's individual circumstances, referencing the s 32 report which detailed his family, cultural background, health, education, and current situation, including his father's terminal illness. The judge's remarks indicated a clear focus on the appellant's antecedents and the extensive attempts made to address his repeated offending, expressing frustration at the appellant's failure to reform despite previous leniency.

The appeal was dismissed. The court concluded that the first and second grounds of appeal were not established, and therefore, the appeal against sentence was 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

The first and second grounds of appeal are not established.Conclusion I would dismiss the appeal. STANLEY J:Introduction This is an appeal against sentence. The appeal is against a sentence of 14 months detention for the offence of aggravated robbery. The appellant is a child of 15 years of age. The appellant was sentenced to a period of 14 months detention for the offence of aggravated robbery by a Judge of the Youth Court. The period of detention was cumulative upon a further period of four months detention for breach of a suspended detention order. That was for an offence of aggravated robbery for which he served two months in detention. The Judge ordered the appellant serve the balance of the unserved detention order. This period of 18 months detention was backdated to commence from 17 October 2015. Prior to 17 October 2015 he had served various short periods in detention and on home detention. The Youth Court Judge attributed those periods to the aggravated theft offence and did not impose any further penalty for that offending. No complaint is made of the approach taken by the Judge in this regard on appeal. The appellant pleaded guilty. The Judge discounted the term of imprisonment by 30 per cent for the plea. Accordingly, the starting point was a sentence of 20 months detention. The grounds of appeal are that:1.The sentence is manifestly excessive;2.The sentencing Judge erred by imposing a sentence that failed to give sufficient weight to the purposes of the Young Offenders Act 1993 (SA); and3.The sentencing Judge erred by imposing a sentence that failed to consider the individual circumstances of the appellant.Circumstances of the offending At about 5:05 a.m. on 25 August 2015 the appellant, in company with three other males, entered a service station at Grange. They were disguised in masks and headgear. Two of them, although not the appellant, were armed with tyre levers or irons. The appellant was the last to enter the service station. He had initially operated as a lookout in the doorway. On duty was a single console operator. Two of the males jumped the counter and went to the cash register. They were followed by the appellant who jumped the counter and took cigarettes from a cupboard. At some point the console operator’s wallet, containing cash, credit cards and his identification, was taken by one of the group. The incident was captured on CCTV and lasted about two minutes. This was serious, premeditated offending as part of a joint criminal enterprise. The offending was aggravated because it was committed in company and with weapons. Personal circumstances of the appellant The appellant was 15 years of age at the time of the commission of the offence of aggravated robbery, and 15 years at the time of sentencing. He has a long, unfortunate and depressing history of offending since the age of 10 years. His offending includes offences against property, offences of dishonesty and offences involving interference with or illegal use of motor vehicles. The appellant has previously received a community service order, a number of driver’s licence disqualifications and suspended sentence obligations. He has breached suspended sentence obligations and been sentenced to terms of blended detention and detention and suspension. He also has failed to comply with a bail agreement on two occasions. He has previously received the benefit of leniency from the Youth Court. Importantly, at the time of this offending, the appellant was subject to a blended order of detention and suspended sentence obligations. He was released after serving a period of two months detention on 6 April 2015. Thereafter he committed a string of offences which escalated from being unlawfully on premises on 18 April 2015 to the offence of aggravated robbery the subject of this appeal. Sentencing remarks…I have looked at the s.32 report, the letter he has provided today, and the letter of apology he provided. I have heard the sensible and thorough submissions today. The complicating factor from [A]'s point of view is that in February this year he was sentenced for, amongst other things, an aggravated robbery. On the aggravated robbery he got six months but that was a blended order where he served two, and four was suspended. Well, given that that suspended sentence would have kicked in two months later, in other words 6 March, he is reoffending on 18 April, and by 25 August he's committed another serious aggravated robbery. In addition he has a very lengthy persistent serious antecedence.It is depressing, and if there were anything else that could be usefully done to address [A]'s care, correction and guidance and in particular specific deterrence, I would happily do it. But with [A] everything has been tried. I have looked back through his antecedents and every variety of obligation, suspended sentence, blended order and so forth have been tried. His care, correction and guidance now needs to focus on specific deterrence, on the protection of the community, and upon him understanding that there are consequences for breaking the law. Do you want to say something?FATHER: Yes, please. Like, if ... down the road, I'm willing to get a new house and I…. to look after him.HIS HONOUR: Sure, I understand that. In fact his dad and I are thinking along the same lines in a sense, which is his future. It is in [A]'s interests that he get the message now before he reoffends, because if he committed anything like this again as an adult; or indeed as a youth, he would get sent to the adult court anyway I would have thought; and the sentence will be far, far more than what I am about to impose now. So everything in terms of sentencing factors points in the same direction and that is that he serve a significant term of detention now in the hope that he will get the message, which he has not done, when there were other attempts at blended orders and suspended sentences; which will be in his benefit, and will benefit the community.…I leave this matter by saying I acknowledge his family support and I wish there were some other outcome that I could have arrived at but I do not think it would be in the community's or [A]'s interest to do other than I have done. I certainly hope that [A] benefits from this, and can look back later and say 'Well that turned me around and I'm not now continuing on the trajectory that I was on' because if he does not get off this trajectory, all that is going to happen is some District Court Judge at some stage is going to be imposing a much bigger sentence.So with reluctance I think that is the only thing I can do for [A].Approach on appeal

Ratio Decidendi

Legal Principle Established

Where the circumstances warranting the imposition of a sentence of detention exist, the length of that period of detention, while reflecting the gravity of the offending and the need to protect the community, is to be fixed by reference to the minimum period that will best achieve the objects of making the offender aware of his or her obligations under the law and the consequences of breaching it, while securing his or her development into a responsible and useful member of the community, who properly realises his or her potential. Consideration In my view, no error is demonstrated by the ground that in imposing sentence the Judge failed to give sufficient weight to the purposes of the Act. As has been observed in recent years, it is not an appealable error, in accordance with the principle in House v The King[36] that a sentencing Judge has placed too little or too much weight on one or more of the applicable sentencing considerations. It is in the very nature of a sentencing discretion that different Judges will evaluate the considerations relevant to its exercise in different ways. A submission that a sentencing Judge did not give adequate or sufficient weight to a factor is not, of itself, capable of enlivening the appeal court’s power to intervene. Such a submission falls short of an assertion that no account was taken of the material consideration. It is not a complaint of specific error. At most it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the Judge have reached a sentence which is so unreasonable or plainly unjust, or is, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”.[37] Accordingly, a complaint that the sentencing Judge imposed a sentence that failed to give sufficient weight to the purposes of the Act can only be relevant to the ground of appeal that, in doing so, he imposed a sentence that was manifestly excessive. I will return to this question shortly. I reject this ground of appeal.[36] [1936] HCA 40, (1936) 55 CLR 499 at 504 – 505. [37] Kentwell v The Queen [2014] HCA 37 at [35], (2014) 252 CLR 601 at 615; R v Lutze [2014] SASCFC 134 at [47], (2014) 121 SASR 144 at 154. Further, I do not consider that the sentencing Judge erred by imposing a sentence that failed to consider the individual circumstances of the appellant. Plainly, as the sentencing remarks reveal, the Judge did have regard to the appellant’s individual circumstances. One can only sympathise with the almost palpable sense of frustration felt by the Judge, as disclosed in his sentencing remarks, with the appellant’s recurring failure to take advantage of the opportunities to reform that the court’s repeated leniency had extended to him. On this occasion, as on previous occasions, the court had regard to the appellant’s personal circumstances. The Judge referred to the s 32 report which set out the appellant’s family and cultural circumstances, his health, his education and his current circumstances, including his father’s terminal illness. The Judge was plainly focussed on his antecedents and the extensive attempts that had been made to address the appellant’s repeated offending. I reject this ground of appeal.