R v A - [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]).
5. Allow the appeal. Set aside the sentence imposed by the Youth Court. Appellant to be resentenced. Appellant to be resentenced to a period of eight months and two weeks detention for the offence of aggravated robbery. That sentence is to be served cumulatively upon the unserved sentence of four months imposed on 6 February 2015, now to be served. That sentence is to commence from 17 October 2015 (at [68]).
Held per Blue J, dismissing the appeal:
1. The Judge was well aware of the effect that detention would have on the appellant’s seeing his father. The mere fact that the Judge did not refer to this gives no reason to doubt that the Judge took it into account. The third ground that the Judge failed to consider the appellant’s individual circumstances is not established (at [35] - [36]).
2. Given the escalation of the appellant’s offending, his disregard for the interests of his victims and the community at large and the likelihood of his reoffending in the community, the Judge was correct to assess that it was in the appellant’s own interests, as well as those of the community, that he serve a substantial period of detention while he remains a youth and while he retains a prospect of rehabilitation. The sentence of detention for 14 months was not manifestly excessive. The first and second grounds of appeal are not established (at [42] - [44]).
Young Offenders Act 1993 (SA) s 3, s 23(2)(a), s 23(4); Criminal Law (Sentencing) Act 1988 (SA) s 3A, s 10, referred to.
R v Place (2002) 81 SASR 395; R v QTV (2003) 87 SASR 378, discussed.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; A, MC v Police (2008) 102 SASR 151; R v A, D (2011) 109 SASR 197; R v J (1998) 102 A Crim R 157; Kentwell v The Queen (2014) 252 CLR 601; R v Lutze (2014) 121 SASR 144; Queen v Morse (1979) 23 SASR 98; R v McPartland and Polkinghorne (2014) 120 SASR 69; Hili v The Queen (2010) 242 CLR 520; R v S (1982) 31 SASR 263; R v P, NJY [2014] SASCFC 10, considered.

R v A
[2016] SASCFC 66
Court of Criminal Appeal: Blue, Stanley and Doyle JJ
BLUE J:

This is an appeal against sentence.
On 25 August 2015, the appellant, A, together with three other youths, committed armed robbery at a service station at Grange, stealing cash, cigarettes and a credit card. The appellant was arrested later that morning and charged with one count of aggravated robbery.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 137(1).
The appellant pleaded guilty in the Youth Court and a Judge imposed a sentence of detention for 14 months, reduced from a starting point of 20 months due to his guilty plea. The Judge ordered that the term commence on the expiration of detention for four months to be served upon the revocation of an earlier suspended sentence. The appellant was sentenced at the same time in respect of several other offences committed between April and August 2015 in respect of which he was convicted without further penalty and does not appeal.
The appellant appeals against the sentence of detention for 14 months for robbery on three grounds:
1.The sentence is manifestly excessive.
2.The Judge erred by imposing a sentence that failed to give sufficient weight to section 3 of the Young Offenders Act 1993 (SA).
3.The Judge erred by imposing a sentence that failed to consider the individual circumstances of the appellant.
Factual circumstances
On 25 August 2015 at 5.00 am, the appellant, in company with three other males, drove to a service station at Grange and entered the shop wearing balaclava disguises. Two members of the group were armed with tyre levers. They confronted the attendant and stole cigarettes and the attendant’s wallet containing cash and a credit card. The combined value of the items stolen was approximately $600.
On 6 February 2015, the Judge had sentenced the appellant for a series of offences, the most serious of which was an aggravated robbery committed on 25 October 2014 at 2.30 am. The appellant and three other youths approached a man leaving the Adelaide casino and demanded money, saying they had a gun and threatening to kill him if he did not hand over the money. The victim escaped but a few minutes later the appellant and three other youths attacked him, kicking him on the ground and stealing $60 from him. The Judge sentenced the appellant to detention for six months, of which he was to serve two months, the balance of four months being suspended on his being of good behaviour for nine months and subject to supervision. The appellant was sentenced at the same time to detention for two months, to be served concurrently with the robbery sentence, for the illegal use of a taxi in July 2014 and detention for two months, also to be served concurrently with the robbery sentence, for breaching bail in December 2014 by cutting off his home detention bracelet, and unlawful possession in January 2015 of material stolen in a recent break in.
On 2 April 2015, the appellant was released from detention on entering into a bond under the suspended sentence. He breached the condition of the bond on 18 April 2015 by being unlawfully on premises. He breached the condition of the bond on 30 April 2015 by theft of money using a stolen credit card and being in unlawful possession of a purse and $109.90 contents. He was arrested on 22 May 2015 and released on bail.
The appellant breached the condition of the bond on 29 May 2015 by breaching a curfew condition of his bail and was arrested again. He breached the condition of the bond on 23 August 2015 by entering a liquor store in company with three other youths and stealing bottles of spirits. He breached the condition of the bond on 25 August 2015 by the armed robbery the subject of the appeal. He breached the condition of the bond on 21 September 2015 by cutting off his home detention bracelet. On 17 October 2015 he was remanded in custody until he was sentenced on 18 December 2015.
The appellant was born in July 2000. He is the fourth of five children. He grew up in Port Pirie. His parents separated when he was seven years old. He started using cannabis at the age of 10. His family moved to Adelaide in 2012. In 2014, he was notionally enrolled at high school but due to ongoing truancy was transferred to the Flexible Learning Options Program. He engaged with that Program only on a very limited level. In July 2015, he started using methylamphetamine. His parents and two of his older brothers have criminal histories.
The appellant, with the assistance of his lawyer, wrote a letter addressed “To whom it may concern” that was handed up to the Judge. He said that he felt remorseful for his actions and acknowledged that he had hurt people, but said that was not his intention. He referred to his family missing him and supporting him. He said that he wished to apply for a suspended sentence.
The appellant had substantial previous court appearances in the Children’s Court before he first appeared in the Youth Court before the Judge leading to the February 2015 sentence. In November 2010, he appeared on charges of being unlawfully on premises and property damage, for which he was ordered to perform community service. In June 2011, he was placed on a bond for one year under supervision for serious criminal trespass, marking graffiti and three counts of theft. In May 2012, he was placed on a bond for nine months under supervision for five counts of theft, five counts of being unlawfully on premises and two counts of arson, all of which were committed in breach of the June 2011 bond. In December 2012, he was placed on a bond for six months under supervision for serious criminal trespass, theft and illegal interference with a motor vehicle, all of which were committed in breach of the May 2012 bond.
In September 2013, the appellant was sentenced to detention for two weeks, suspended on entering into a bond for six months under supervision for theft and three counts of illegal interference with a motor vehicle and was discharged without further penalty for being unlawfully on premises. In January 2014, that suspension was revoked and in addition he was sentenced to detention for four months for aggravated assault and two weeks for four counts of theft and three counts of illegal interference with a motor vehicle. In August 2014, on a charge of theft, he was discharged without further penalty taking into account 28 days served in detention.
The sentencing remarks
The Judge summarised the circumstances of the offending. The Judge then said:
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 very lengthy persistent serious antecedents.
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, direction 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.
…
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 they were other attempts at blended orders and suspended sentences; which will be in his benefit, and will benefit the community.
The Judge announced the sentence. The Judge then said:
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].
Statutory policies and relevant factors
In general terms and subject to specific provisions to the contrary, the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) applies in relation to the sentencing by the Youth Court of a youth.[2] However, in the event of a conflict between a provision of the Sentencing Act and a provision of the Young Offenders Act 1993 (SA) (the Young Offenders Act), the latter prevails.[3]
[2] Criminal Law (Sentencing Act) 1988 (SA) s 3A(1).
[3] Criminal Law (Sentencing Act) 1988 (SA) s 3A(2).
In the case of a youth sentenced by the Youth Court, the concept of detention is effectively substituted for the concept of imprisonment.[4] The concept of conditional release is effectively substituted for the concept of parole.[5] The period before a youth is eligible for consideration of conditional release is fixed by the statute at two thirds of the sentence of detention rather than being fixed in the exercise of the sentencing Judge’s discretion as a non-parole period.[6] The decision on conditional release is made by the Training Centre Review Board rather than the Parole Board.[7]
[4]    Young Offenders Act 1993 (SA) s 23(1).
[5]    Young Offenders Act 1993 (SA) s 41A.
[6]    Young Offenders Act 1993 (SA) s 41A(2)(a). Even for adult offenders, there may be a statutory minimum non-parole period: see, for example, the Criminal Law (Sentencing Act) 1988 (SA) s 20BA, s 32A.
[7]    Young Offenders Act 1993 (SA) s 41A.
The maximum penalty for aggravated robbery committed by an adult, or by a youth sentenced as an adult, is imprisonment for life. The maximum term of detention that can be imposed by the Youth Court for any offence is the lesser of the maximum term (of imprisonment) prescribed for the offence or three years.[8]
[8] Young Offenders Act 1993 (SA) s 23(2)(a) and (3).
The question whether a sentence imposed by the Youth Court should be by way of detention is governed by section 23(4) of the Young Offenders Act rather than section 11 of the Sentencing Act. However, there is no contention in the present case that a sentence of detention was not required.
Subsection 10(1) of the Sentencing Act, which sets out factors to which a sentencing court is to have regard, applies to the sentencing of a youth by the Youth Court, subject to modification by the Young Offenders Act. Subsection 10(1) provides:
10 – Sentencing Considerations
(1)In determining the sentence for an offence, a court must have regard to such of the following factors and principles as may be relevant:
(a)     the circumstances of the offence;
(b)     other offences (if any) that are to be taken into account;
(c)     if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d)     the personal circumstances of any victim of the offence;
(e)     any injury, loss or damage resulting from the offence;
(f)    if the offence was committed by an adult in circumstances where the offending conduct was seen or heard by a child (other than the victim (if any) of the offence or another offender)—those circumstances;
(g)     the degree to which the defendant has shown contrition for the offence (including by taking action to make reparation for any injury, loss or damage resulting from the offence);
(h)     the degree to which the defendant has cooperated in the investigation of the offence;
(i)    the deterrent effect any sentence under consideration may have on the defendant or other persons;
(j)    the need to ensure that the defendant is adequately punished for the offence;
(k)     if a forfeiture of property (other than a forfeiture that merely neutralises a benefit that has been obtained through the commission of the offence) is, or is to be imposed, as a result of the commission of the offence—the nature and extent of the forfeiture;
(l)    the character, antecedents, age, means and physical or mental condition of the defendant;
(m)    the rehabilitation of the defendant;
(n)     the probable effect any sentence under consideration would have on dependants of the defendant;
(o)     any other relevant matter.
Section 3(2a)(b) of the Young Offenders Act implicitly modifies section 10(1)(i) of the Sentencing Act such that the Youth Court sentencing a youth is not to have regard to general deterrence as opposed to personal deterrence.[9] The emphasis in section 3 of the Young Offenders Act on care, correction and guidance modifies the weight to be given to punishment under section 10(1)(j),[10] but section 3(2)(a) creates a statutory policy that a youth should be made aware of the consequences of breach of the law.
[9] R v S (1982) 31 SASR 263 at 266 per King CJ (with whom Zelling J agreed) (in relation to section 7 of the Children’s Protection and Young Offenders Act 1979 (SA)); Schulze v S (1995) 180 LSJS 371 at 372 per Cox J (with whom Mullighan J agreed) and 379 per Olsson J; R v QTV [2003] SASC 424, (2003) 87 SASR 378 at [48]-[49] per Prior, Bleby and Anderson JJ; A,MC v Police [2008] SASC 279, (2008) 102 SASR 151 at [26] per White J (with whom Doyle CJ agreed).
[10] R v QTV (2003) 87 SASR 378 at [49] per Prior, Bleby and Anderson JJ.
Subsection 10(2) of the Sentencing Act creates certain statutory policies for the purposes of sentencing. It requires a sentencing court to give effect to the need to protect the safety of the community and, in the case of specific types of offences, to protect certain members of the community vulnerable to those types of offences. Subsection 10(2) provides:
10 – Sentencing Considerations
(2)In determining the sentence for an offence, a court must give proper effect to the following:
(a)     the need to protect the safety of the community;
(b)     the need to protect the security of the lawful occupants of their home from intruders;
(c)     in the case of an offence involving the sexual exploitation of a child—the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence;
(d)     in the case of an offence involving arson or causing a bushfire—
(i)the need to protect the community from offending of such extreme gravity by ensuring that paramount consideration is given to the need for general and personal deterrence; and
(ii)the fact that the offender should, to the maximum extent possible, make reparation for the harm done to the community by his or her offending;
(e)     in the case of an offence involving a firearm—the need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence.

Subsection 3(1) of the Young Offenders Act identifies the object of the Act as follows:
3 – Objects and Statutory Policies
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.
Subsections 3(2) to (3) of the Young Offenders Act create certain statutory policies for the purposes of sentencing. These overlap with, supplement or modify the statutory policies the subject of subsection 10(2) of the Sentencing Act. Subsections 3(2) to (3) of the Young Offenders Act provide:
3 – Objects and Statutory Policies
…
(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;
(c)     the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a)In imposing sanctions on a youth for illegal conduct—
(a)     regard should be had to the deterrent effect any proposed sanction may have on the youth; and
(b)     if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth's conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—
(i)the deterrent effect any proposed sanction may have on other youths; and
(ii)the balance to be achieved between—
(A)the protection of the community; and
(B)the need to rehabilitate the youth.
(3)Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
(a)     compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b)     family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;
(c)     a youth should not be withdrawn unnecessarily from the youth's family environment;
(d)     there should be no unnecessary interruption of a youth's education or employment;
(e)     a youth's sense of racial, ethnic or cultural identity should not be impaired.
The statutory policies contained in paragraphs (b) to (e) of subsection 10(2) of the Sentencing Act have no application in any event in this case and can be put aside. The statutory policy in section 10(1)(a) of the Sentencing Act relating to protection of the safety of the community is encompassed by the statutory policy in section 3(2)(c) of the Young Offenders Act relating to protection of the community, and individual members of it, against violent or wrongful acts.[11] Personal deterrence is identified by section 3(2a)(a) the Young Offenders Act as an important statutory policy.[12] The sentence should reflect the gravity of the crime.[13]
[11] R v QTV (2003) 87 SASR 378 at [49] per Prior, Bleby and Anderson JJ.
[12] R v QTV (2003) 87 SASR 378 at [49] per Prior, Bleby and Anderson JJ.
[13] R v QTV (2003) 87 SASR 378 at [44] per Prior, Bleby and Anderson JJ; A, MC v Police (2008) 102 SASR 151 at [26] per White J (with whom Doyle CJ agreed).
In Hallam v O’Dea[14] King CJ (with whom Wells and Legoe JJ agreed) said:
The purpose of the Court therefore must be to “seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and his development into a responsible and useful member of the community”, and it is in doing that that it is to take into account the enumerated factors. The Court should therefore, if detention is indicated, impose on the child the period of detention which “will best lead to the proper development of his personality and to his development into a responsible and useful member of the community”, taking into consideration the enumerated factors or such of them as may be relevant and appropriate. The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender.[15]
[14] (1979) 22 SASR 133.
[15] At 136. These remarks related to sentencing under the Children’s Protection and Young Offenders Act 1979 (SA), but remain apposite to sentencing under the Young Offenders Act: A, MC v Police (2008) 102 SASR 151 at [29] per White J (with whom Doyle CJ agreed).
In R v QTV,[16] Prior, Bleby and Anderson JJ said:
The object specified in subs (1) of s 3 of the Young Offenders Act requires a sentence that allows for the care, correction and guidance necessary for the youth’s development into a responsible and useful member of the community. It requires the Court to assume that the youth has potential that can be realised. Those requirements are not necessarily the starting points in sentencing an adult. They will not be met by some notional discounting of what might be an appropriate sentence for an adult offender, nor will they be met by too crushing a sentence, particularly a first custodial sentence. In sentencing a youth much greater emphasis must be given to the youth’s prospects and potential than will usually be the case in sentencing an adult, where punishment and general deterrence may well assume a more dominant role. On the other hand, community protection (s 3(2)(c)) in a case like this and deterrence within the ambit of subsection (2a) are also important and must be brought into the scales.
For these reasons the sentence of a youth may bear little relationship to that imposed on an adult in similar circumstances. Sentencing “standards” will have little relevance or application. What is most important is the perceived effect that the particular penalty is likely to have on the youth offender. This can only be based on judgement and experience in dealing with youth offenders. It will always be an inherently difficult task, ideally suited to the judges of the specialist Youth Court established under the Youth Court Act 1993.[17]
[16] (2003) 87 SASR 378.
[17] At [49]-[50].
In A, MC v Police,[18] White J (with whom Doyle CJ agreed) said:
Subsection 3(1) and (2) make securing the necessary care, correction and guidance for young offenders’ development into responsible and useful members of the community, and for the proper realisation of their potential, a fundamental consideration in their sentencing. But at the same time, young offenders are to be made aware of their obligations under the law and of the consequences of a breach of the law, and the community is to be adequately protected against violent or wrongful acts. An appropriate sentence must allow each of those objectives to be achieved.[19]
[18] (2008) 102 SASR 151.
[19] At [25].
Failure to give sufficient weight to section 3
The appellant’s second ground of appeal is that the Judge failed to give sufficient weight to section 3 of the Young Offenders Act.
The appellant does not contend that the Judge did not apply the policies contained, or have regard to the factors identified, in section 3. In this regard, it is not necessary that a sentencing Judge refer to section 3 or address the factors identified in it in detail: it is sufficient if it appears that the Judge has in fact had regard to those factors.[20]
[20] A, MC v Police (2008) 102 SASR 151 at [34]-[36] per White J (with whom Doyle CJ agreed); M, MA v Police[2013] SASCFC 140 at [12] per Gray, Anderson and Blue JJ; R v P, NJY [2014] SASCFC 10 at [15] per David J (with whom Vanstone and Parker JJ agreed).
Failure to give sufficient weight to a mandatory or relevant factor does not amount to a process error. The appellant does not identify anything in the sentencing remarks that suggests that the Judge did not give weight to, or apply, section 3. The Judge referred to the appellant’s care, correction and guidance, which accords with subsection 3(1). The Judge referred to the need for specific deterrence and protection of the community, which accords with subsections 3(2) and (2a). The Judge referred to the appellant’s interests and considered that the sentence imposed would be for the appellant’s benefit in the long term, particularly given that previous sentences of various types had been unsuccessful. It is clear that the Judge had the provisions of section 3 at the forefront of his mind.
The appellant’s real complaint is of an outcome error, namely that a proper application of section 3 necessitated a much lower sentence of detention. It is therefore appropriate to consider ground 2 in conjunction with ground 1 that the sentence imposed was manifestly excessive.
Failure to have regard to personal circumstances
The appellant’s third ground of appeal is that the Judge failed to consider his individual circumstances.
The appellant contends that, because the Judge did not refer to the state of his father’s health or life expectancy, the Judge failed to have regard to a relevant factor. The Judge was provided with a section 32 report dated December 2014 prepared by his Youth Justice Case Manager which reported that the appellant’s father had been diagnosed with advanced stage liver cancer and his life expectancy was estimated to be only a few months.
The appellant’s father and his partner were present during sentencing submissions and sentencing on 18 December 2015. During sentencing submissions, reference was made to the section 32 report and the appellant’s counsel told the Judge that the appellant’s father had far outlasted what the doctors had predicted.
It is apparent that the Judge was well aware of the effect that detention would have on the appellant’s seeing his father. The mere fact that the Judge did not refer to this gives no reason to doubt that the Judge took it into account.
The third ground is not established.
Manifest excess on proper application of section 3
The appellant contends that the starting point of detention for 20 months was manifestly excessive on a proper application of the statutory policies and relevant factors under section 3 of the Young Offenders Act.
The appellant recognises that, if he has been an adult, he would have been liable to be sentenced to imprisonment for a much longer period than the sentence of detention imposed by the Judge. In accordance with the sentencing guideline established in R v Place,[21] if the appellant had been an adult, it is likely that a sentence of imprisonment for between six and eight years would have been imposed.
[21] [2002] SASC 101; (2002) 81 SASR 395.
The appellant began committing dishonesty offences at the age of 10. Between November 2010 and August 2014, his offences escalated from being unlawfully on premises and property damage to theft, serious criminal trespass and arson. Between June 2011 and December 2012, he was placed on three successive bonds to be of good behaviour, which he breached on multiple occasions by committing further offences. Between September 2013 and August 2014, he was sentenced to detention, in some cases suspended on his entering into a bond to be of good behaviour, and served periods of detention. He was under the supervision of the Department for most of the period since June 2011 but continued to offend.
In October 2014, the appellant committed robbery. In February 2015, the same Judge of the Youth Court sentenced the appellant to detention for six months, which was suspended after two months on his entering into a bond to be of good behaviour. He breached that bond soon after entering into it, committing an unlawful possession offence and theft within one month and a further theft in August 2015. The appellant committed the armed robbery in August 2015 and within one month later breached his bail by removing his home detention bracelet.
While living in the community, the appellant effectively chose to cease his education and to associate with other lawbreakers. While section 3 requires the court to take into account, so far as the individual circumstances allow, the importance of education and family relationships, these need to be considered in the light of the appellant’s circumstances and conduct.
Given the escalation of the appellant’s offending, his disregard for the interests of his victims and the community at large and the likelihood of his reoffending in the community, the Judge was correct to assess that it was in the appellant’s own interests, as well as those of the community, that he serve a substantial period of detention while he remains a youth and while he retains a prospect of rehabilitation.
Applying the statutory policies contained, and having regard to all relevant factors referred to, in the Young Offenders Act, a starting point of detention for 20 months was not manifestly excessive. The sentence of detention for 14 months was not manifestly excessive.
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); and
3.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
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[22] where Doyle CJ said:[23]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[22] [2009] SASC 346, (2009) 266 LSJS 283.
[23] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288 – 289.

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[24] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer[25] by Kourakis CJ,[26] if the error identified by the Full Court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[24] [1936] HCA 40, (1936) 55 CLR 499 at 504 – 505.
[25] [2013] SASCFC 130, (2013) 118 SASR 211.
[26] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214 – 215.
Sentencing in the Youth Court
Section 3 of the Young Offenders Act 1993 (SA) (the Act) prescribes the statutory principles that govern the exercise of the sentencing powers conferred on the Youth Court. It 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;
(c)     the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a) In imposing sanctions on a youth for illegal conduct—
(a)     regard should be had to the deterrent effect any proposed sanction may have on the youth; and
(b)     if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth's conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—
(i) the deterrent effect any proposed sanction may have on other youths; and
(ii) the balance to be achieved between—
(A) the protection of the community; and
(B) the need to rehabilitate the youth.
(3) Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
(a)     compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b)     family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;
(c)     a youth should not be withdrawn unnecessarily from the youth's family environment;
(d)     there should be no unnecessary interruption of a youth's education or employment;
(e)     a youth's sense of racial, ethnic or cultural identity should not be impaired.
Importantly, s 23(4) of the Act provides that a sentence of detention must not be imposed on a youth unless the Court is satisfied that, because of the gravity or circumstances of the offence or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate. The maximum penalty that can be imposed by Youth Court Judges is an order for detention for three years.[27]
[27] Section 23(2)(a) of the Act.
The provisions of the Act, however, are not exhaustive. The Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) and common law sentencing principles also apply to the sentencing of young offenders but only to the extent that they are not inconsistent with the Act. Section 10 of the Sentencing Act applies, on its terms, to the sentencing of young offenders by the Youth Court, but s 3A of the Sentencing Act expressly provides that, in the event of any inconsistency between the Sentencing Act and the Act, the Act prevails.
The sentencing provisions of the Act prescribe an approach to the sentencing of young offenders that is radically different from the way in which the sentencing discretion is exercised in relation to adult offenders. Care, correction and guidance, and not punishment, are the primary objects that govern the sentencing of young offenders. A sentence imposed by the Youth Court may be punitive, but only as an incidental or collateral consequence of its operation as an order that is necessary to achieve the purposes of correction and community protection prescribed by s 3 of the Act.[28]
[28] A, MC v Police [2008] SASC 279 at [67], (2008) 102 SASR 151 at 165.
Section 3 has been described as the cornerstone of the process of sentencing young offenders.[29] As this Court has previously explained in A, MC v Police[30] and R v A, D[31] s 3 makes securing the necessary care, correction and guidance for young offenders’ development into responsible and useful members of the community, and for the proper realisation of their potential, a fundamental consideration in sentencing. However, young offenders are also to be made aware of their obligations under the law and of the consequences of a breach of the law. In addition, the community is to be adequately protected against violent or wrongful acts. An appropriate sentence must allow each of those objectives to be achieved. In doing so, while the need for personal deterrence in the exercise of the sentencing discretion is relevant in sentencing a young offender, considerations of general deterrence are not. Even so, the need to ensure that an offender is adequately punished for the offence has less significance in the sentencing of a youth than it does in the case of an adult.[32] Nevertheless, at least with respect to serious offences, the sentence imposed on a youth should reflect the gravity of his or her offending.[33] In that context the remarks of King CJ in Hallam v O’Dea,[34] while made in respect to predecessor legislation to the Act, are also applicable to sentencing under the Act:[35]
The purpose of the Court therefore must be to “seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and to his development into a responsible and useful member of the community”, and it is in doing that that it is to take into account the enumerated factors. The Court should therefore, if detention is indicated, impose on the child the period of detention which “will best lead to the proper development of his personality and to his development into a responsible and useful member of the community”, taking into consideration the enumerated factors or such of them as may be relevant and appropriate. The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender. In the case of an adult offender, the starting point will generally be the observance of a proper proportion between the gravity of the crime and the severity of the punishment. This fundamental principle of adult sentencing obviously has no place in fixing the period of detention under the Children’s Protection and Young Offenders Act, even where the protection of the community becomes the dominant consideration. The proper approach for the Children's Court, where a sentence of detention must be imposed, is to consider what period of detention, within the statutory limit of two years, will best achieve the objects proposed to the Court by s. 7.
[29] R v QTV [2003] SASC 424 at [47], (2003) 87 SASR 378 at 388.
[30] [2008] SASC 279 at [25], (2008) 102 SASR 151 at 157.
[31] [2011] SASCFC 5 at [57], (2011) 109 SASR 197 at 208.
[32] R v QTV [2003] SASC 424 at [48], (2003) 87 SASR 378 at 388.
[33] R v J (1998) 102 A Crim R 157 at 164.
[34] (1979) 22 SASR 133.
[35] (1979) 22 SASR 133 at 136.
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.
This brings me to the question of whether the sentence imposed of 14 months detention is manifestly excessive. In The Queen v Morse[38] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[39]
[38] (1979) 23 SASR 98.
[39] (1979) 23 SASR 98 at 99.
To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing Judge.[40] In Hili v The Queen[41] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[42]
… appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
[Citations omitted].
[40] R v McPartland and Polkinghorne [2014] SASCFC 84 at [15], (2014) 120 SASR 69 at 77 – 78.
[41] [2010] HCA 45, (2010) 242 CLR 520.
[42] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538 – 539.
In my view, in considering this question it is relevant that this sentence was to be served cumulatively upon the unserved period of four months of the blended order of detention and suspended sentence obligation imposed on 6 February 2015.
There can be no doubt that this offending called for a sentence of detention in light of the appellant’s antecedent history and failure to respond to previous sentences. Ms Abbey, counsel for the appellant, does not contest this proposition. At issue is whether a 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 explained above. In my view, it is. There can be no doubt that the Judge had to impose a sentence that was sufficiently severe as to serve as a potential circuit breaker for the appellant’s egregious history of offending, to make plain to the appellant that unless he reformed he soon would be an adult who, if he committed crimes of the kind for which he was now being sentenced, ran the real risk that he would be facing lengthy periods of imprisonment with adults. Plainly that was the Judge’s purpose in fixing the sentence under appeal. Effectively that is a sentence of 18 months detention. In my view, that period of detention is considerably longer than is necessary to effect the Judge’s purpose and to achieve the objects of the Act. I consider a period of detention of about 12 months is sufficient for the Judge’s purpose and the objects enshrined in s 3 of the Act. To put it another way, I consider that if about 12 months detention cannot accomplish this result, 18 months detention is most unlikely to do so either. Ms Boord, counsel for the DPP, submits that the effective term of 18 months detention is necessary for the protection of the community. However, as King CJ pointed out in Hallam v O’Dea,[43] addressing the predecessor legislation to the Act, even where the protection of the community is the dominant consideration in the sentencing of a young offender, the proper approach in fixing a sentence of detention is to consider what period of detention, within the statutory limit of three years,[44] would best achieve the objects proposed by s 3.[45] For the reasons explained above, I consider that period is about 12 months.
[43] (1979) 22 SASR 133 at 136.
[44] Not the two years in the Children’s Protection and Young Offenders Act 1979 (SA).
[45] Not s 7 in the Children’s Protection and Young Offenders Act 1979 (SA).
Accordingly, I am satisfied that the sentence of detention of 14 months to be served cumulatively with the earlier unserved sentence of four months is manifestly excessive. I would allow the appeal. I would set aside the sentence imposed by the Youth Court. I would resentence the appellant to a period of 12 months detention for the offence of aggravated robbery, which after a discount of 30 per cent for the guilty plea, produces a sentence of eight months and two weeks detention. That sentence is to be served cumulatively upon the unserved sentence of four months imposed on 6 February 2015, now to be served.
Conclusion
I would allow the appeal. I would set aside the sentence imposed by the Youth Court. I would resentence the appellant to a period of eight months and two weeks detention for the offence of aggravated robbery. That sentence is to be served cumulatively upon the unserved sentence of four months imposed on 6 February 2015, now to be served. That sentence is to commence from 17 October 2015.
DOYLE J:
I have had the advantage of reading the draft reasons of both Blue and Stanley JJ. I agree with both of them that no process error has been established. On the issue of whether the sentence imposed was manifestly excessive, I do not understand there to be any significant difference between their Honours’ approaches as a matter of principle, the only difference being their views as to whether the sentence imposed was outside the range of what was necessary in order to achieve the objects of the Young Offenders Act 1993 (SA).
The subject offending was serious, and the appellant has had a significant and concerning history of offending. The sentencing Judge’s frustration at the ineffectiveness of the sentences imposed on previous occasions was obvious and understandable. If the appellant were an adult he would face a very much longer sentence of imprisonment.
However, as both Blue and Stanley JJ have explained, different considerations apply when sentencing a child. The proper approach in a case such as the present is to determine the period of detention which best achieves the care, correction and guidance necessary for the child’s development into a responsible and useful member of the community, and the proper realisation of their potential. While the gravity of the offending remains a relevant consideration, it assumes a lesser significance than in the case of an adult offender. General deterrence has no role to play. The maximum period of detention that may be imposed is three years.
In my view, despite the seriousness of the subject offending and the appellant’s history of offending, it is particularly significant in this case that the appellant was only 15 years of age at the time of the offending and sentencing, and that his longest previous period of detention was two months. This will be his first lengthy period of detention. In my view, as Stanley J has explained, it was not necessary to impose an effective sentence of 18 months detention in order to achieve the objectives of the Young Offenders Act. In my view, a lesser sentence in the order of 12 months imprisonment would represent a significant increase on previous sentences imposed upon the appellant and would be sufficient to achieve the objectives of the Young Offenders Act.
For these reasons, I agree with Stanley J that the appeal should be allowed, and agree with the sentence he would impose.