R v A, D

[2011] SASCFC 5

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v A, D

[2011] SASCFC 5

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Duggan, The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice David)

3 March 2011

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - SENTENCING AS ADULT OR CHILD AND IMPRISONMENT

Respondent pleaded guilty to murder - respondent 14 years of age at the time of the offence - sentenced as an adult - sentenced to life imprisonment - non-parole period of six years - whether Judge erred in the application of s 32 and s 32A of the Criminal Law (Sentencing) Act 1988 (SA) - whether mandatory minimum non-parole period provisions apply to youths sentenced as adults - correct interpretation of the mandatory minimum non-parole period provisions - whether non-parole period manifestly inadequate - application for permission to appeal granted - appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s 3A, s 31A, s 31A(1), s 32, s 32(1)(a), s 32(5), s 32(5)(ab), s 32(5)(ba), s 32(10), s 32(10)(ba), s 32(10)(d), s 32A, s 32A(2)(b), s 32A(3); Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA); Young Offenders Act 1993 (SA) s 3, s 4(1), s 29(1), s 29(1)(a), s 29(1)(b), s 29(1)(c), s 29(4); Statutes Amendment (Sentencing of Young Offenders) Act 1996 (SA), referred to.
R v Ironside (2009) 104 SASR 54; A, MC v Police (2008) 102 SASR 151; R v QTV (2003) 87 SASR 378; R v Barnett (2009) 198 A Crim R 251; R v Harkin [2010] SASCFC 39; R v Jones [2010] SASCFC 58; The Queen v Shrestha (1991) 173 CLR 48; The Queen v Stewart (1984) 35 SASR 477, discussed.

R v A, D
[2011] SASCFC 5

Court of Criminal Appeal: Doyle CJ, Duggan, Anderson, White and David JJ

1. DOYLE CJ, DUGGAN, ANDERSON AND WHITE JJ:  On 12 November 2008 the respondent A stabbed and killed a youth aged 14 years in the course of a fight.  A also was 14 years of age. 

2. In April 2010 A pleaded guilty in the Supreme Court to a charge of murder.  When sentenced in September 2010 he was 16 years of age.

3. A Judge imposed the mandatory head sentence of life imprisonment.  He fixed a non-parole period of six years (taking effect from 17 November 2008 when A was first taken into custody). 

4. The Director of Public Prosecutions has applied for permission to appeal against the sentence. The Director submits that the Judge erred in law in his application to the case of s 32 and s 32A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). These provisions specify a mandatory minimum non-parole period (the mandatory period) of 20 years for murder, and further allow a court to fix a lower non-parole period only in specified and limited circumstances.

5. The Director’s application raises two issues of some importance.  First, the application of the provisions referred to when a court sentences a young offender as an adult for the offence of murder.  Second, the correct interpretation and application of those provisions. 

6. The application was first heard by a bench of three Judges.  The Court was referred to previous decisions of this Court in which different views had been expressed on the application of the provisions relating to the mandatory period.  No consistent majority view has emerged from those decisions.  At the direction of the Chief Justice the Court reconvened as a bench of five to consider whether these differences of opinion could be resolved.  The interpretation of the provisions relating to the mandatory period is of considerable practical importance, and sentencing judges need to know where they stand. The Court also heard submissions on the first issue identified above.

   The offence

7. A is a male Sudanese youth.  He was born on 26 August 1994.  He came to Australia in January 2005 with his mother and five siblings. 

8. The victim was also a Sudanese youth.

9. On 11 November 2008 A was involved in a fight with another Sudanese youth near King William Street Adelaide.  The victim intervened to break up that fight.  The next day, 12 November 2008, A was involved in another fight with the same Sudanese youth.  The victim’s brother intervened and stopped the fight.  A left the scene of the fight and went to a shop in King William Street.  There A bought a large knife, having initially bought a number of smaller knives, but later replacing them with the larger knife.  A said to the shop assistant, “I’m going to fucking kill the black cunt”.  It was not denied that A was referring to the victim’s brother. 

10. A left the shop and came across the victim, the victim’s brother and another boy in Grenfell Street.  A produced the knife.  The victim’s brother kicked his hand.  A swung the knife and cut the brother on the left side of the neck.  A then stabbed the victim once in the chest.  A ran off.  The victim, his brother and the other boy chased A and assaulted him.  While this was happening the victim collapsed.  He was taken to hospital where he died.  He died from the stab wound inflicted by A.

    A’s circumstances

11. A was born in Sudan.  He was brought up by his mother who was separated from A’s father.  A lived in Khartoum for a number of years.  He was brought up in an atmosphere of insecurity and violence.  The family moved to Cairo when A was seven years old.  In Egypt A suffered from attacks by the local population.  When he was nine years of age two men entered the apartment in which he lived and threatened him and his siblings with a knife.  The family managed to migrate to Australia in 2005. 

12. On arrival in Adelaide in January 2005 A attended primary school.  He had difficulty with English and with adapting to schooling.  The Judge said that A needed specialised attention, which need was not recognised, nor was the specialised attention available. 

13. While at school A was often frightened and in confronting situations, and he suffered discrimination.  He stopped attending school regularly.

14. The Judge received a psychological report from Dr O’Neill.  Dr O’Neill also gave evidence.  In relation to A’s cognitive ability Dr O’Neill wrote:

    It could be estimated that [the respondent’s] level of social/emotional development at the time of the offence would have measured at about the middle primary school level at best.  Leaving aside the specific conditions which led to the conflict, [the respondent’s] problems with his maladaptive executive functioning were clearly tapped and in full, desperate function.  This led to the inconsequential behaviour, a regression to the basic need for survival at any cost.

15. In her evidence Dr O’Neill said that A’s cognitive ability was about that of a 10 or 11 year old.  In relation to his social and emotional development, she said that it was not even that of a seven or eight year old child.  None of Dr O’Neill’s evidence was challenged.

16. The Judge was told that while A was on remand at a training centre he had been well behaved and had made good progress. 

    The Judge’s reasons

17. The Judge imposed a mandatory sentence of life imprisonment.  He fixed a non-parole period of six years.

18. It is not suggested that the Judge failed to make a proper assessment of the seriousness of the offence. 

19. The Judge considered the impact of the offence on the victim’s family.  His mother’s Victim Impact Statement is sad and moving.  She has suffered greatly.  The Judge considered in detail A’s present and past circumstances.  He was favourably influenced by the progress that A had shown while on remand.  The Judge noted that Dr O’Neill put A’s cognitive ability at the age of an eight year old to 10 year old, and noted that that was not much above the age at which criminal responsibility begins at law.

20. The Judge was satisfied that special reasons existed, enlivening the discretion to fix a lower non-parole period than 20 years.  He concluded that he should do so.  The Judge said:

    In setting the non-parole period I have had regard to all the matters which I have outlined earlier and I have had regard to the submissions of your counsel.  In particular I have had regard to your age at the time of the offending and more so your cognitive abilities, which are far less than your age.  Although you were 14 years and two months at the time, it appears that your cognitive abilities were more at the range of about an eight to 10-year-old.  I have also had regard to the circumstances of what occurred and to your difficult upbringing.  I have also had regard to your progress since you have been in detention.

    A little later the Judge said:

    In setting the non-parole period I accept that you are a good candidate for rehabilitation.  That factor is of particular relevance having regard to your age.  I accept that you will have to be continually assessed and I recommend to the authorities that they continue with the education program that you are undertaking and hopefully that can continue even beyond the age of 18.  I would also recommend, insofar as it is possible, that the authorities work together with Dr O’Neill in assessing you and in working out a program for your future development.

    I also have regard to the fact that the sentence that I impose must act as a deterrent to you in the future and a deterrent to other young persons who may become involved in altercations and fights.  It must act as a deterrent to young persons to prevent them from carrying weapons of any nature.

    You are a young man who has a long future ahead of you.  The road will be difficult.  The sentence I impose must give you some hope and encouragement to make a life for yourself and for you to be an active and contributing citizen to the society to which you will eventually return.  I recommend that you continue to be held at the Cavan Training Centre and that if at all possible, you serve your period in detention there and you continue your education and any counselling which is recommended for your future development.

    In all the circumstances, a non-parole period of six years is, in my view, the appropriate non-parole period having regard to your pleas of guilty, your contrition and the fact that you are entitled to a discount having regard to your plea and acceptance of responsibility.

    The mandatory period

21. Subject to its provisions, s 32 of the Sentencing Act requires a court that sentences a person to imprisonment to fix a non-parole period, if the person is not subject to an existing non-parole period: s 32(1)(a). It contains detailed provisions regulating the fixing of a non-parole period. These provisions are well known.

22. Subsection (5) of s 32 was amended in 2007 to insert the following subparagraphs:

    32(5)  The above provisions are subject to the following qualifications:

    …

    (ab)   if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;

    …

    (ba)   if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four‑fifths the length of the sentence.

    At the same time s 32A was added to the Sentencing Act.  It provides:

    32A—Mandatory minimum non-parole periods and proportionality

    (1)     If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.

    (2)     In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—

    (a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or

    (b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.

    (3)     In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:

    (a)the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;

    (b)if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;

    (c)the degree to which the offender has co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.

    (4)     This section applies whether a mandatory minimum non‑parole period is prescribed under this Act or some other Act.

    Amendments were also made to s 32(10) to insert a definition of “offence of murder” and a definition of “serious offence against the person”: s 32(10)(ba) and (d). These and other amendments were made by the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA). From time to time, when convenient, we will refer to the amendments as “the new provisions”.

23. The new provisions are in Division 2 of Part 3 of the Act. That division does not apply in relation to a youth unless, relevantly, the youth is sentenced as an adult: s 31A. In the present case A was sentenced as an adult. We will refer to the relevant provisions a little later.

24. The new provisions limit the scope of the power that the court would otherwise have to fix a non-parole period in respect of a person sentenced to life imprisonment for murder, and in respect of a person sentenced to imprisonment for a serious offence against the person. They do this by first specifying a non‑parole period, or the proportion of the non-parole period to the head sentence; by then enabling the court to fix a longer non-parole period if that is “warranted because of any objective or subjective factors affecting the relative seriousness of the offence”; and by then permitting the court to fix a shorter non-parole period only if “special reasons exist for fixing a non-parole period that is shorter than the prescribed period”, special reasons being defined narrowly by s 32A(3).

25. The new provisions are likely to result in the fixing of non-parole periods that are longer in many cases than was the practice in the past.  The offence of murder has often attracted a non-parole period in excess of 20 years.  But there are plenty of cases in which the court has fixed a non-parole period of less than 20 years.  In such cases in the future the non-parole period will be 20 years, unless there are “special reasons” that enable a court to fix a non-parole period that is shorter.  If special reasons as defined do not exist, there will not be the possibility of reducing the non-parole period below 20 years.  Similar comments apply to the fixing of a non-parole period in relation to a serious offence against the person.  It is not uncommon for such offences to attract a non-parole period less than four-fifths the length of the head sentence.  In future in such cases the non-parole period will be four-fifths the length of the head sentence, with no possibility of reduction unless special reasons exist.

26. The new provisions were enacted as part of the Executive Government’s policy of being “tough on crime”.  That policy, embodied in the new provisions enacted by Parliament, will result in a significant increase in the non-parole period in many cases, and an increase in the average length of non-parole periods.

    Consideration of submissions

27. The new provisions have been considered by the Court of Criminal Appeal in R v Ironside [2009] SASC 151; (2009) 104 SASR 54; in R v Barnett [2009] SASC 332; (2009) 198 A Crim R 251; in R v Harkin [2010] SASCFC 39 and in R v Jones [2010] SASCFC 58. In these cases a consistent majority opinion as to the construction and application of the new provisions has not emerged. Different opinions have been expressed. This is not surprising having regard to the difficult task that the new provisions set for a sentencing court. In R v Ironside Doyle CJ referred to a number of the difficulties that arise: at [39]-[49]. There is no need to repeat what Doyle CJ said. It suffices to say that the new provisions require an approach to fixing a non-parole period that departs substantially from the approach that prevailed before, and which involves the making of comparisons that do not involve comparing like with like.

28. In his written outline Mr Muscat SC, counsel for A, summarised some of the differing opinions that have been expressed by members of this Court.  There is no need to decide whether or not the summary captures all of the differing opinions expressed, and whether or not it is completely accurate.  It gives a helpful sketch of the differences.  We now set out that summary, incorporating Mr Muscat’s footnotes to the cases.   We do not necessarily endorse his attribution of opinions to particular Judges. The different views are as follows:

    (a)That in considering whether special reasons exist for reducing the mandatory minimum non-parole period for a serious offence against the person those special reasons:

    (i)      can only arise in the case of offences at the lower end of the range of objective seriousness (R v Ironside at [56] per Doyle CJ, R v Barnett  at [52] per Vanstone J and R v Harkin at [40] per Anderson and Kelly JJ).

    (ii)     can be considered in any type of case (R v Jones at [53]-[54] per Anderson J, [109]-[110] per David J and [172]-[173] per Peek J).

    (b)That if special reasons are found to exist, the discretion to reduce the mandatory minimum non-parole period:

    (i)    is limited to a consideration of only those factors and not the full range of factors which are normally taken into account in determining the length of a non-parole period (R v Ironside at [47]-[48] and [82] per Doyle CJ and [180] per Kourakis J).

    (ii)     the full range of factors ordinarily relevant to the fixing of a non-parole period can be considered (R v Barnett at [30]-[32] per Gray J, [46]-[50] per Vanstone J, [92] per Kourakis J and R v Jones at [111] per David J and [174]-[178] per Peek J).

    (c)That once special reasons are found to exist:

    (i)    the mandatory minimum non-parole period is still relevant to the extent of the reduction to be made (R v Ironside at [37]-[38], [47] per Doyle CJ and [181] per Kourakis J, R v Barnett at [50] per Vanstone J, [73]-[74] and [92] per Kourakis J, R v Harkin [36] per Anderson and Kelly JJ, R v Jones [73], [80] per Anderson J and [187] per Peek J).

    (ii)     the mandatory minimum non-parole period does not need to be further considered (R v Barnett [31]-[32] per Gray J and R v Jones [111] per David J).

    (d)That the range of the possible reduction:

    (i)    is limited to a relatively small degree (R v Ironside [179], [181] and [183] per Kourakis J, R v Barnett [49] per Vanstone J).

    (ii)     is not so limited (R v Jones at [81] per Anderson J (for murder) and [195] per Peek J (where it is disapproved or qualified)).

    (e)That different considerations may apply under section 32(5)(ab) and section 32(5)(ba) (R v Jones at [81] per Anderson J).

1. There is no need to state yet again the purpose for fixing a non-parole period or how a court fixes a non-parole period in cases unaffected by the new provisions.  The approach to be taken to these matters was summarised by Doyle CJ in R v Ironside at [26]-[27]. However, it is relevant to bear in mind the observations by Deane, Dawson and Toohey JJ in The Queen v Shrestha (1991) 173 CLR 48 at 68-69:

   All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time.

   The fixing of a non-parole period is always subject to the provisions of the Sentencing Act.

2. The new provisions operate against the background of established principles for fixing a non-parole period.  The new provisions depart from them.

3. We turn to the application of the new provisions.  For the moment we put aside the impact of the Young Offenders Act 1993 (SA).

4. The starting point in fixing a non-parole period for an offence of murder is the mandatory period of 20 years.

5. The court must consider whether to fix a non-parole period that is longer, the same as or shorter than this period.  It will not always be necessary to break the matter up into three separate questions.  Experience indicates that often only one of the three options will be realistically open.  But in the end they are the options open to the court.  The task of the court is no longer to fix the appropriate non-parole period according to established principles.

6. However, while there are distinct differences between the fixation of a non‑parole period according to established principles, and according to the new provisions, the process remains one in which the punitive, protective and rehabilitative purposes of fixing a non-parole period remain relevant:  cf R v Barnett at [49] Vanstone J.

7. If considering whether a non-parole period longer than the mandatory period should be fixed, the court must consider all “objective or subjective factors affecting the relative seriousness of the offence”.  This must mean all factors that are relevant according to established principles.  It is well established practice to treat all relevant factors in sentencing as either objective or subjective.  That must be what Parliament had in mind.  Accordingly, the court will ask itself whether the factors that are relevant to the fixation of a non-parole period according to established principles support or warrant a longer non-parole period than 20 years. 

8. But the mandatory period is not just a number.  It identifies a non-parole period appropriate “for an offence at the lower end of the range of objective seriousness”.  So the court must ask itself whether, bearing in mind that a 20 year non-parole period is an appropriate non-parole period for an offence of murder at the lower end of the range of objective seriousness, this particular offence (considering all relevant factors according to established principles) warrants a longer non-parole period.

9. By characterising the mandatory period as appropriate for “an offence at the lower end of the range of objective seriousness”, s 32A will increase non-parole periods. Experience indicates that 20 years is a high non-parole period for an offence of murder “at the lower end of the range of objective seriousness”. Parliament must have intended to encourage longer non-parole periods for the offence of murder.

10. In this way the mandatory or prescribed period operates as a yardstick or benchmark.  Parliament has chosen to identify 20 years as an appropriate non-parole period for an offence of murder “at the lower end of the range of objective seriousness”.  It is a strange benchmark.  The benchmark is identified by reference only to objective seriousness.  The court has to compare a particular case, taking account of objective and subjective factors, with a benchmark that is affected by objective factors only.  The court is not able to compare like with like.  The process is not easy to explain.  But this is the statutory task.

11. We emphasise that although the court fixes such non-parole period as it thinks fit, it fixes the non-parole period that is fit in light of the comparison that must be made.  The court does not exercise a discretion at large.

12. In considering whether a non-parole period shorter than the mandatory period should be fixed, the court must first consider whether “special reasons” exist. If “special reasons” do not exist, there is no power to fix a non-parole period shorter than 20 years. It is a departure from established principles to pick out particular factors in this way, but that is what Parliament has done in s 32A(3).

13. If “special reasons” exist, the court can fix a non-parole period shorter than the mandatory period, but only if those special reasons support fixing a non-parole period that is shorter than the prescribed period.  This means that the “special reasons” must warrant or support the fixing of a non-parole period shorter than the mandatory period.

14. The court has to ask itself whether, bearing in mind that a non-parole period of 20 years is appropriate for an offence at the lower end of the range of objective seriousness, the special reasons present in the case warrant or support a shorter non-parole period for this offence and this offender.

15. This is a complicated process.  It will cause difficulty for sentencing courts.  We cannot identify any good reason for sentencing in this fashion.  But that is Parliament’s choice.

16. It is necessary to emphasise that the presence of “special reasons” does not mean that the court can fix a non-parole period in accordance with existing or established principles.  The presence of factors amounting to “special reasons” merely enables the court to consider whether those factors warrant or support a non-parole period shorter than the mandatory period.

17. We refer to Mr Muscat’s summary.  We make the following comments, in the hope that they will be of some assistance. 

18. We disagree with proposition (a)(i).  Matters constituting special reasons may be found in any case, anywhere on the range of objective seriousness.  But whether those special reasons will warrant a non-parole period shorter than 20 years is another matter.  It follows that we agree with proposition (a)(ii).

19. We do not agree with propositions (b)(i) or (b)(ii).  The matters identified as special reasons must warrant or support the fixing of a non-parole period shorter than 20 years, bearing in mind the comparison with an offence at the lower end of the range of objective seriousness.  So while proposition (b)(i) is close to our conclusion, it is not quite the same. 

20. We agree with proposition (c)(i).  We disagree with proposition (c)(ii). 

21. As to propositions (d)(i) and (d)(ii), we consider that nothing will be gained by predicting likely outcomes.   There is no need to deal with these propositions.

22. It is desirable to apply what we have said to the fixing of a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person.

23. In such a case the mandatory period is four-fifths the length of the head sentence: s 32(5)(ba) of the Sentencing Act.

24. A non-parole period is the minimum term of imprisonment required to meet the punitive and protective purposes of punishment: The Queen v Stewart (1984) 35 SASR 477 at 477 King CJ. The fixing of a non-parole period should reflect a decision about what is an appropriate period before the offender can be released. The fixing of the non-parole period should also reflect a decision about the length of time for which the offender should be on parole. For example, there may be little point in fixing a non-parole period that allows only a very short time on parole. The fixing of a non-parole period is a decision about time, not about the proportion of the non-parole period to the head sentence. Nevertheless, it is often convenient to refer to the proportion that the non-parole period bears to the head sentence. The new provisions reflect this practice.

25. In a case in which the prisoner is sentenced for a serious offence against the person, the court will first fix a head sentence.  This will be done in the usual way.  The starting point for fixing a non-parole period will be to bear in mind that the mandatory period is four-fifths of that head sentence.  If the head sentence were, for example, ten years, the mandatory period would be eight years.  If there are no “special reasons” the court will consider the non-parole period, applying existing principles, but bearing in mind that eight years (four-fifths of the head sentence) is appropriate for an offence at the lower end of the range of objective seriousness.  If the period arrived at is greater than eight years, the court will fix the non-parole period accordingly.  Even if the period arrived at is less than eight years, the court cannot go below eight years unless special reasons exist.  If special reasons exist, the court will consider whether the special reasons warrant or support a shorter non-parole period than the tentatively identified non-parole period and shorter than the mandatory period, in this example eight years.  The court must consider the notional non-parole period (for eight years or more, as the case may be), bearing in mind the impact of the special reasons and that eight years is the appropriate non-parole period for an offence of the relevant kind which is at the lower end of the range of objective seriousness.  If that consideration of the special reasons does not warrant or support a non-parole period of less than eight years, the non-parole period will be eight years.  If it does warrant or support a shorter non-parole period, the court will fix a non-parole period shorter than the mandatory period.

26. The difficulties of comparison that we have already identified will apply here.

27. No doubt further problems will arise in later cases. Parliament is entitled to encourage the fixing of longer non-parole periods.  But we respectfully suggest that the complexity of the process, illustrated by the differing opinions in judgments of the court, is such that Parliament should reconsider how to achieve its aims.

    Sentencing a youth and the new provisions

28. The Young Offenders Act 1993 (SA) (the YOA) is an Act “… to reconstitute the juvenile justice system in this State; and for other purposes”: see the preamble to the YOA. The YOA contains provisions that regulate the sentencing of youths. A youth is a person “… of or above the age of 10 years but under the age of 18 years…”: s 4(1).

29. Section 3 of the YOA sets out the objects and statutory policies of the YOA. It is as follows:

    3—Objects and statutory policies

    (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.

    In A, MC v Police [2008] SASC 279; (2008) 102 SASR 151 White J summarised the general approach that has been taken to the interaction between the YOA and the Sentencing Act (referred to by him as the CLSA) when a youth is being sentenced. White J said:

    [27]Section 3 has been described as the cornerstone of the process of sentencing young offenders. Although the CLSA applies to the sentencing of a youth as much as to an adult, the principles of the YOA and the Youth Court Act 1993 (SA) are to prevail in the event of any conflict. This means that the sentencing considerations listed in s 10 of the CLSA, while relevant to the sentencing of youths, must be applied in a manner which is directed to the fulfilment of the object and policies stated in s 3 of the YOA. In particular, the need “to ensure that the defendant is adequately punished for the offence” has less significance in the sentencing of a youth than it does in the case of an adult.  This does not mean that retribution has no place in the sentencing of young offenders and, at least with respect to serious offences, the sentence of a youth should reflect the gravity of the crime.

    [28]In relation to the similar but not identical provision in s 7 of the Children’s Protection and Young Offenders Act 1979 (SA), King CJ in Hallam v O’Dea 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.

    [29]These remarks are also applicable to sentencing under the YOA.

    [30]Section 23(4) of the YOA was also relevant to the sentencing of the appellant.  It provides:

    A sentence of detention must not be imposed for an offence 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.

    [31]The effect of s 23(4) is to make a sentence of detention the option of last resort in the sentencing of youth offenders.

    Footnotes omitted

    Doyle CJ agreed with his reasons: at [1]. As we understand his reasons, so did Kourakis J: [62]-[69].

30. The same approach was taken by this Court in the earlier decision of R v QTV [2003] SASC 424; (2003) 87 SASR 378. The Court (Prior, Bleby and Anderson JJ) there said:

    [47]Section 3 of the Young Offenders Act is the section which must form the cornerstone of the process of sentencing a youth to whom the Act applies. It repeats the substance of some but by no means all of the factors required to be considered under s 10 of the Criminal Law (Sentencing) Act 1988 (SA) in sentencing an adult. The relationship between the Criminal Law (Sentencing) Act and the Young Offenders Act is set out in s 3A of the Criminal Law (Sentencing) Act.  It relevantly provides:

    (1)     Subject to any provision of this Act to the contrary, this Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth.

    (2)     However, in the event of conflict between a provision of this Act and a provision of the Young Offenders Act 1993 or the Youth Court Act 1993, the latter provision prevails to the extent of that conflict.

    [48]We do not suggest that s 10 of the Criminal Law (Sentencing) Act has no role to play in sentencing a youth. However, the application of that section must be directed to the fulfilment of the objects and policies of s 3 of the Young Offenders Act. This must mean that factors such as “the need to ensure that the defendant is adequately punished for the offence” will carry much less weight than they would in sentencing an adult. Questions of deterrence, insofar as there is a requirement to have regard to the deterrent effect any sentence under consideration may have on “the defendant or other persons”, must be read subject to s 3(2a) of the Young Offenders Act. Other factors mentioned in s 10 of the Criminal Law (Sentencing) Act will similarly carry a very different emphasis in the light of the requirements of s 3 of the Young Offenders Act.

    [49]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 subs (2a) are also important and must be brought into the scales.

    [50]For these reasons the sentence of a youth may bear little relationship with 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 judgment 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 (SA).

    Footnotes omitted

31. Significantly, the Court in that case made the point that the same approach is taken when a youth is being sentenced as an adult.  The Court said at [32]:

    [32]It is important to realise, however, that a decision to sentence a youth as an adult does not mean that other relevant sentencing principles contained in the Young Offenders Act cease to have any application. It merely means that some possible sentencing options under the Act are not available, and that the door is opened for the youth to serve his detention in a prison rather than in a training centre: see the discussion below on s 36 of the Young Offenders Act. The object and policies contained in s 3, also discussed below, continue to apply.

    And, as the Court added, the same approach is taken when fixing a non-parole period.  As to that the Court said:

    [60]Where a custodial sentence is necessary for a youth offender, one of the most significant sentencing tools to assist in the implementation of the objects of s 3 of the Act is the fixing of a non-parole period. Objectives of care, correction and guidance can often best be achieved under a careful and well-monitored period of parole the subject of appropriately tailored conditions, the offender knowing that breach of those conditions may well result in resumption of the custodial sentence.

    [61]The sentencing Judge fixed a maximum period of parole of four and a half years. A period of that order is not inappropriate in all the circumstances, and opinions may differ as to the appropriate ratio in a given case between the non-parole period and the necessary period of parole. As in the case of a head sentence, the fixing of a non-parole period will also be governed by the requirements of s 3 of the Young Offenders Act with its emphasis on processes of rehabilitation. A non-parole period fixed for a youth will not necessarily be the same as one might fix in similar circumstances in the case of an adult. Bearing in mind the head sentence that we propose, we would fix a non-parole period of four years, thus giving a substantial period for properly supervised rehabilitation which, in this case, s 3 of the Act requires.

1. These well established principles reflect the provisions of the YOA and the provisions found in s 3A of the Sentencing Act. That section relevantly provides:

   3A—Application of Act to youths

   (1)Subject to any provision of this Act to the contrary, this Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth.

   (2)However, in the event of conflict between a provision of this Act and a provision of the Young Offenders Act 1993 or the Youth Court Act 1993, the latter provision prevails to the extent of that conflict.

   …

2. The fixing of a non-parole period is governed by Division 2 of Part 3 of the Sentencing Act. The new provisions are in this Division. Section 31A relevantly provides as follows:

   31A—Application of Division to youths

   (1)This Division does not apply in relation to a youth unless the youth is sentenced as an adult or is sentenced to detention to be served in a prison or is otherwise transferred to or ordered to serve a period of detention in a prison.

   …

   This provision was added by the Statutes Amendment (Sentencing of Young Offenders) Act 1996 (SA) (No. 68 of 1996). This was some eight years after the Sentencing Act first came into force, and three years after the YOA first came into force. As originally inserted into the Sentencing Act, the amending provision read as follows:

   31A.This Division does not apply in relation to a youth unless the youth is sentenced as an adult.

   Although s 31A(1) has since been amended, the amendments are of no significance for present purposes.

3. When the amending Bill was considered and read a second time in Parliament (Hansard, House of Assembly, 11 July 1996, page 1965) the Minister said that confusion had arisen in relation to the relationship between the YOA and the Sentencing Act, and the amendments contained in the Bill were intended to grapple with that problem.

4. In light of s 31A of the Sentencing Act there is no doubt that when a youth is sentenced as an adult, the court has the powers conferred by Division 2 of Part 3 in relation to the fixing and extending of a non‑parole period, and in relation to a decision to decline to fix a non-parole period. It has never been suggested that these provisions give rise to a conflict with the provisions of the YOA. However, subject to what follows, as this Court said in QTV, the Court will fix a non-parole period when dealing with a youth, in a manner “… governed by the requirements of s 3 of the Young Offenders Act with its emphasis on processes of rehabilitation”:  QTV at [61]. The issue that falls for decision, raised for the first time in this case, is whether the new provisions apply to the fixing of the non-parole when a youth is sentenced as an adult, as A was.

5. The submissions before the sentencing Judge proceeded on the basis that the Judge should sentence A applying the principles set out above.  When the appeal was first argued, counsel then appearing for the Director of Public Prosecutions took the same approach.  The outline of submissions stated (para 28):

   However it is submitted that in fixing a non-parole period for an offence of murder committed by a youth, a court must exercise its powers in light of the objects and statutory policies found in s 3 of the Young Offenders Act 1993.

   When the matter was re-argued before the present bench of five Judges, Mr Hinton QC SG, appearing for the Director of Public Prosecutions, submitted that in this respect the Judge erred. He argued that the Judge was obliged to apply the new provisions in the same manner as they would be applied to an adult. That is, without regard to the policies found in s 3 of the YOA. It would not follow that the youth and immaturity of A would be irrelevant, merely that those matters would now be assessed and dealt with under the new provisions, and not by reference to the provisions of s 3 of the YOA. Mr Hinton subsequently applied to amend the grounds of appeal to add ground 3(3) to cover this submission. Mr Muscat did not oppose the amendment, but argued that the change of ground by the Director was a reason to refuse permission to appeal.

6. The issue raised by Mr Hinton is a significant one, and is of practical importance.  It arises fairly and squarely in this case.  We grant permission to amend the grounds of appeal as sought.

7. Mr Hinton argued as follows. First, that A was sentenced as an adult. We agree. Section 29(4) of the YOA provides:

   (4)A youth who is found guilty of murder must be sentenced to imprisonment for life.

   As A had to be sentenced to imprisonment for life, it was not open to the Judge to proceed under s 29(1)(b) or s 29(1)(c) of the YOA. The Judge had to proceed under s 29(1)(a) and deal with A as a adult.

8. Mr Hinton then argued that as A was sentenced as an adult, s 31A of the Sentencing Act made Division 2 of Part 3 applicable, and so rendered applicable the new provisions found in that Division.

9. We disagree.  This Court has already decided in QTV to the contrary. We set out again what the Court said at [32]:

   [32]It is important to realise, however, that a decision to sentence a youth as an adult does not mean that other relevant sentencing principles contained in the Young Offenders Act cease to have any application. It merely means that some possible sentencing options under the Act are not available, and that the door is opened for the youth to serve his detention in a prison rather than in a training centre: see the discussion below on s 36 of the Young Offenders Act. The object and policies contained in s 3, also discussed below, continue to apply.

   The effect of QTV, and other decisions to a like effect, is that when a youth is sentenced as an adult the court acquires additional powers, but that the principles and policies found in the YOA do not cease to apply.  Mr Hinton did not argue that QTV was wrongly decided.  In any event, we agree with that decision, and as it has stood for some time would not interfere with it unless persuaded that it was clearly wrong.

10. Mr Hinton’s argument is, in effect, that when a youth is sentenced as an adult, in deference to a statutory provision, Parliament has made a decision that the provisions of the Sentencing Act will apply, and will apply to the exclusion of principles found in the YOA, and that in that event there can be no “conflict” between a provision of the Sentencing Act and a provision of the YOA. But, as we have noted, this argument was rejected in QTV.  The Court there held that when a youth is sentenced as an adult, the principles and policies found in the YOA continue to apply.

11. In our opinion there is a clear conflict between the approach to sentencing a youth (when sentenced as an adult) set out in A, MC and in QTV, and sentencing in accordance with the new provisions.  One need only refer to our summary of the approach to be taken when sentencing under the new provisions to see the conflict.  The new provisions, properly understood, would not permit a court to sentence in accordance with the principles set out in A, MC and QTV.

    Disposition of case

12. The sentencing Judge said that he was “required” to sentence A as an adult. Section 29(1) of the YOA confers a power to do so. Section 29(4) of the YOA implies that a youth sentenced for murder must be dealt with as an adult. In any event, it was appropriate to sentence A as an adult.

13. The Judge fixed the non-parole period on the basis that the new provisions applied to the fixation of the non-parole period.  It was common ground before him that he should do so.  However, we have concluded that the new provisions did not apply.

14. The Judge found that “special reasons” existed for the purposes of s 32A(2)(b). The Judge relied in particular on A’s plea of guilty and on his cooperation in the investigation of the offence. We agree with the Judge’s conclusion.

15. The Judge then decided to fix a non-parole period having regard to all relevant circumstances, as if he were sentencing according to the principles that applied before the enactment of the new provision.  The Judge made no reference to the circumstance that a non-parole of 20 years represented a non-parole “for an offence at the lower end of the range of objective seriousness for the offence of murder”.

16. If the new provisions had applied, this would have been an error of principle.  The issue for the Judge would have been whether the matters constituting special reasons supported or warranted the fixing of a non‑parole period shorter than 20 years, bearing in mind that a non‑parole period of 20 years was the non-parole period for an offence of murder at the lower end of the range of objective seriousness.  The Judge would also have to bear in mind the punitive, protective and rehabilitative purposes of fixing a non‑parole period.  It would not have been open to the Judge, having found that special reasons existed, to fix a non-parole period having regard to all relevant circumstances, as would have been appropriate before the enactment of the new provisions.  It would have been necessary to give weight to the statutory determination that 20 years was the non-parole period for an offence of the kind identified by the new provisions.

17. The fact that the offence in question was not at the lower end of the range of objective seriousness was not a bar to the fixing of a non-parole period shorter than 20 years, but it was an important consideration in deciding whether a shorter non-parole period could and should be fixed. 

18. A’s offence was a very serious offence.  It involved a degree of preparation, and a return to the scene of the earlier altercation, A then being armed with a knife.  On the other hand, all of this occurred in the context of a hostile encounter.  A’s plea of guilty was entitled to great weight, especially coming from one so young.  So was his cooperation.  But we consider that it would be very difficult to justify a non-parole period as short as six years, had the new provisions been applicable.

19. However, as it turns out, the Judge’s approach to sentencing was close to what it should have been, because the new provisions were not applicable.  Having regard to the basis upon which the Judge was invited to sentence, we think it likely that he sentenced A in light of the principles to be found in the YOA.

20. In the end, there has been no error of sentencing principle affecting the final result. 

21. Is the non-parole period manifestly inadequate, assuming that A was sentenced according to established principles for a youth?  The non-parole period is certainly very low.  But the approach required by the YOA means that one cannot make comparisons with sentences imposed on adults.  A’s youth, maturity and background circumstances are weighty mitigating circumstances.  We bear in mind that A’s sentence is a sentence of life imprisonment, with the possibility of release after six years.  A might well serve a longer period of imprisonment than that. 

22. In the end we consider that the non-parole period is very low, but not so low as to call for intervention by this Court on an appeal by the Director of Public Prosecutions.  The fact that A is so young, and that his upbringing and youth have been so disrupted, and that his cognitive functioning is so undeveloped for one his age, make this a difficult and unusual case.

23. Our conclusion is that the sentence is not so low as to call for interference on an appeal by the Director of Public Prosecutions.

    Order

24. We grant to the Director of Public Prosecutions permission to amend the grounds of appeal to include ground 3(c) as proposed.  We grant permission to appeal.  We order that the appeal be dismissed.

25. DAVID J:              I agree that the appeal should be dismissed. I agree with the reasons of the majority that as the respondent was a youth (sentenced as an adult) the fixing of a non-parole period should not be governed by s 32 and s 32A of the Criminal Law (Sentencing) Act 1988 (SA).

26. The sentence is a very merciful one although the crime was exceedingly violent and had a number of aggravating features including a certain amount of premeditation in the use of a knife.  The sentencing Judge was faced with a very difficult dilemma.  The aspect of deterrence for youths behaving violently had to be carefully weighed against the prospects of rehabilitation of the respondent and the advantage that would have to the community at large.  The Judge carefully and thoroughly considered all matters in relation to that question including the evidence provided by a psychologist, Dr O’Neill, as to the respondent’s good prospects for rehabilitation.  I can see no reason why this Court should interfere with the sentence.