R v F No. Sccrm-97-91 Judgment No. S275

R v F
[1999] SASC 275

Review of Detention
Nyland J

This is a review pursuant to s36(2) of the Young Offenders Act 1993 (“the Act”). The youth who is the subject of these proceedings (whom I shall hereinafter refer to as F) was originally charged with the crime of murder. He pleaded not guilty to that charge but pleaded guilty to the crime of manslaughter. That plea was accepted by the Director of Public Prosecutions on 7 October 1997. At the time of the commission of the offence F was aged 15 years and 10 months. The sentencing judge expressed the view that the gravity of the offending demanded that F be dealt with as an adult. On 16 October 1997, F was sentenced to be imprisoned for a period of six years with a non parole period of four years and six months to commence from 21 October 1996, being the date upon which he was taken into custody. This means that F will be aged about 20 years and five months at the time that he is eligible for release.
At the time of sentence F was aged 16 years and 10 months. In accordance with the provisions of s36(1) of the Act, F has to date served his term of imprisonment at the Cavan Training Centre. Section 36(1) is in the following terms:
“Subject to any direction of the sentencing court to the contrary, a youth who has been dealt with as an adult and sentenced to imprisonment will serve that sentence in a training centre.”
Section 36(2) provides:
“If a youth is serving a sentence of imprisonment in a training centre, the sentencing court must, before the youth reaches 18 years of age, review the detention and either direct that the imprisonment in a training centre continue or that the youth be transferred to a prison.”

For completeness I mention that the definition of “youth” in the Act means:
“a person of or above the age of 10 years but under the age of 18 years and, in relation to proceedings for an offence or detention in a training centre, includes a person who was under the age of 18 years on the date of the alleged offence.”
Pursuant to s36(2), the court on its own motion listed the matter for hearing on 30 November 1998, which was shortly before F’s 18th birthday. The matter was subsequently adjourned on a number of occasions primarily to meet the convenience of witnesses proposed to be called with respect to the review.
On 4 December 1998, however, I made an order that pending the final determination of the review proceedings, F remain at the training centre.
On the hearing of the application, Mr Nicholas appeared for the Crown and Mr Lang appeared for F. Mr Nicholas sought an order from the court that F be transferred to an adult correctional facility. This application was resisted by F. A substantial body of evidence was called with respect to the review. With the exception of Mr Kartinyeri, each of the witnesses who gave evidence filed an affidavit which formed the basis of his or her evidence in chief and was thereafter made available for cross-examination as to the matters contained therein.
An affidavit was filed by Ms Ernst, the education manager of the Aboriginal Education Employment Development branch. Due to health problems, Ms Ernst was not available to give evidence but by consent her affidavit was admitted in evidence and it was agreed that Mr Kartinyeri who was employed in the same department would give evidence with respect to the matters contained therein and be subject to cross-examination as to those matters.
Thereafter I heard evidence from the following witnesses:
Ms Inara Blundell, the manager of the Cavan Training Centre (affidavit admitted as Exhibit P1 and report dated 4 May 1999 Exhibit D2)

Mr Jacek Gaudasinkski, a youth worker and teacher at Cavan Training Centre (affidavit admitted as Exhibit P3)
Mr Andrew Shephard, F’s key youth worker at Cavan (affidavit admitted as Exhibit P4)
Ms Ann Burfitt, the acting executive officer of the Prisoner Assessment Unit (affidavit admitted as Exhibit P5)
Mr Aldis Putnins, chief clinical psychologist with the Family and Youth Services Division of the Department of Human Services (affidavit admitted as Exhibit P6)
Mr Bernard Meatheringham, the manager of Offender Education Services in the Department of Correctional Services (affidavit admitted as Exhibit P7).
Mr Trevor Durdin, head teacher at Cavan Education Centre (affidavit admitted as Exhibit P8)
Mr Cyril Kartinyeri of the Aboriginal Education Employment Development branch. (Ms Ernst affidavit admitted as Exhibit P9.)
Dr Christopher Branson, a forensic psychiatrist (affidavit admitted as Exhibit D10)
Mr Marek Picheta, a teacher at Cavan Training Centre (affidavit admitted as Exhibit D11).

The evidence of a number of these witnesses was directed to the facilities and educational opportunities available within the corrections system and was relatively uncontentious.
Ms Blundell described Cavan as a small secure institution designed for the incarceration of juvenile offenders. She said that it had 36 beds and catered for males over the age of 16 who had been sentenced to detention for offences committed as youths. She told the court that as at the date of the review hearing there were 28 residents at Cavan, 13 of whom were over the age of 18. Each resident at Cavan has assigned to him a key worker who has the responsibility of facilitating the resident’s settlement into life at Cavan and to address any issues raised by the resident. Each key worker is responsible for one or at the most two residents. Mr Shephard is F’s key worker.
Cavan has an education centre and it is compulsory for residents to attend the centre daily for school or vocational training. The education centre also offers various personal and social development courses. Mr Durdin, head teacher at the Cavan Education Centre, told the court that the compulsory education comprises three 90 minute sessions a day, with an optional informal session for about an hour at the end of each day. He explained that residents at Cavan have the opportunity to study towards their South Australian Certificate of Education (SACE), and that for those residents who choose to pursue that course, SACE units “are embedded into a broad general education which may involve vocational training, or may involve general subjects”. A formal requirement for the study of each SACE subject is one telephone lesson per week with a tutor from the Open Access College. Furthermore, students enrolled in SACE subjects are provided with one or two 90 minute sessions a day for tutorial support. In addition, aboriginal students may receive the assistance of a tutor from the Aboriginal Tutorial Assistance Scheme.
Ms Burfitt, in her capacity as acting executive officer of the Prisoner Assessment Unit, gave evidence with respect to the process by which prisoners are placed upon entering into the adult prison system. She explained that they are initially subjected to an assessment conducted over about six weeks in the induction unit at Yatala Labour Prison. Ms Burfitt told the court that a likely placement plan for a prisoner such as F, should he be transferred to the adult prison system, would be a limited term at Yatala, before being transferred to an institution such as Mobilong, and then possibly Cadell for a short period of time before finally proceeding to the Adelaide Pre-Release Centre.
Ms Burfitt also explained the peer support system that operates in each prison in South Australia. The peer support group is comprised of prisoners who have been selected and have undertaken special training provided by the Department of Correctional Services (DCS). Upon cross-examination, however, Ms Burfitt was unable to confirm any guarantee as to the character or quality of any prisoner who might hold themselves out as a peer support representative. Ms Burfitt informed the court that aboriginal liaison officers, in other words, staff whose function it is to “meet the needs of aboriginal prisoners”, work in each adult correctional institution in South Australia.
Mr Meatheringham gave evidence as to the educational opportunities available to prisoners in South Australian prisons, and specifically to aboriginal prisoners. He indicated that the education and training programs currently provided by the DCS at Yatala Labour Prison are:
·.. Certificates of General Education for Adults (A literacy and numeracy development course)
·.. Modules from the National Office Skills course (Computing studies)
·.. Modules from the Certificate in Engineering, Level 1 (Welding)
He also discussed the opportunity for prisoners to undertake SACE studies. He told the court “one of the things that I ensure happens in Correctional Services is that prisoners who are capable of undertaking that level of study are able to study by distance education through the Open Access College in programmes of the South Australian Certificate of Education at level 1 and level 2”. He said that the opportunity to study SACE levels 1 and 2 was available at all correctional institutions within South Australia. However, Mr Meatheringham’s report which is annexed to P7, states that “Education is encouraged but is not a right. A prisoner’s access to education or a particular course cannot [be] guaranteed.”
Mr Meatheringham said that formal education in correctional institutions is administered through the Open Access College so that prisoners study by distance education, rather than in a class. However, prisoners studying SACE levels 1 and 2 would be likely to have a qualified teacher acting in the capacity of a tutor to assist them. Mr Meatheringham indicated that there are currently about 30 prisoners studying SACE levels 1 and 2, out of a total prison population of around 1280. He explained that there are two streams of education available to aboriginal prisoners, that is, the mainstream education programme within the DCS and the Aboriginal Education Employment Development Board which is a part of the Department of Education Training and Employment. Further, he told the court that aboriginal prisoners may have access to tutors from the Commonwealth funded Aboriginal Tutorial Assistance Scheme.
Mr Kartinyeri manages the aboriginal education program at the Adelaide Institute of TAFE and also manages the prisoner education program. He explained in evidence that the aboriginal education program does not extend to providing direct assistance with SACE subjects. Within correctional institutions however there are aboriginal lecturers available to assist students who are studying for their SACE. Mr Kartinyeri said that a prisoner wanting to pursue their SACE studies would have access to formal teaching in a classroom context for at least two hours per day each weekday and that it would also be possible to engage a tutor for two and a half hours a week if a prisoner required greater assistance in certain subjects.
I now turn to the evidence relating specifically to F. This was somewhat more contentious. Ms Blundell and Mr Shephard both supported the proposal to transfer F to an adult correctional facility. Ms Blundell expressed some managerial concerns relating to possible overcrowding if residents, such as F, increasingly remained at Cavan after turning 18. She said:
“... my concern about Cavan is that if there is a lot of pressure on the accommodation, both at Cavan and Magill, over the next whatever period, that we will be forced to put two young men in a bedroom or, to go over the numbers for which Cavan is designed, which is 36, and for me, the people who are sentenced to long sentences who are there, who stay at Cavan until well after their 18th birthday would contribute to that overcrowding by being there. If I keep getting younger boys in from Magill and there are beds being taken up by young men then it becomes overcrowded, so that’s why my concern is that Cavan remain as effective as it is now and one of the ways is by not becoming overcrowded and I believe that the 16 to 18 year old boys, with some exceptions, really have first call on accommodation.”
Ms Blundell described F as “lazy and unmotivated”, noting, however, that the supervisor of his unit had reported an improvement in his attitude over recent months. Similarly, Mr Shephard’s report, annexed to P4, states that F -
“....displays a lack of motivation in completing basic Unit chores and is constantly challenging staff direction in a disguised and ‘under-handed’ manner.
Due to [F’s] amount of time detained in the Centre he appears to have an intimate understanding of staff personalities and requirements. He utilises this fact to his advantage when he pushes the boundaries of acceptable behaviour to the limit.
[F] demonstrates aloofness and displays a condescending attitude to both staff and his peers. He perceives himself as possessing higher intelligence and greater maturity than all those around him. Staff have commented that he is lazy and extremely difficult to motivate unless the desired task is seen as worthwhile for him.”
In his evidence to the court, Mr Shephard explained that he had seen a change in F’s attitude since the time at which the report was written - “the work ethic, if you like, of the young man has improved in that period of time since that report was written. He since then has shown more willingness to conduct himself with a bit more vigour around the unit”. Mr Shephard thought that this change had commenced around the time of the initial court appearance in the present review.
F’s lack of motivation was the central focus of the evidence of Mr Gaudasinski, a youth worker and teacher at Cavan. In P3, Mr Gaudasinski states that he attempted to implement a special training program for F in order to teach him graphic design. The course was intended to run for two one hour sessions per week and to be conducted on a one to one basis. Mr Gaudasinski found that F’s “attendance was irregular and his preparation and commitment was poor.” In his report attached to P3, Mr Gaudasinski explains that F’s lack of commitment made it impossible to continue the program, “therefore I decided to create the situation in which [F] would be solely responsible for the outcome of the programme. Having done his exercises he was supposed to contact me and continue with the programme. Unfortunately I have not heard from him since.” During cross-examination, however, Mr Gaudasinski conceded that it may have been possible that F felt inadequate and slightly overawed by his abilities as an artist and his technique of conveying those skills.
Both Ms Blundell and Mr Shephard cited as an example of F’s laziness an incident where he failed to “actively take his share of the chores at camp.” Both witnesses, however, being aware of two contrasting reports relating to separate camps, omitted any reference to the more favourable of the two. In fact, Mr Shephard’s report is somewhat misleading in this respect. He states “F has been given opportunities to contribute to two work camps, however it was indicated that his attitude and work ethic whilst on camp was poor.” Upon cross-examination, Mr Shephard characterised his failure to mention the more positive camp report as an “oversight”.
Notwithstanding her reference to F’s laziness and lack of motivation, Ms Blundell admitted that F’s behaviour had never been a problem and “continues not to be a problem.” One of her primary concerns about F remaining at Cavan appeared to be his influence over other residents. She explained that F has a strong influence over the other residents on account of the seriousness of the offence for which he has been convicted as well as his physical stature. Having expressed this concern about F’s ability to influence other residents, Ms Blundell conceded that there had not been any incidents where F had attempted to use this alleged influence for the purpose of coercion. She attempted to explain her concern on the basis that “the influence that F has is his presence, his personal presence.” Her understanding, based on reports from workers who have closer contact with F, was that he is not generally a positive role model for the other residents at Cavan. Ms Blundell did, however, acknowledge that F is one of the few residents at Cavan who has been pursuing his studies consistently for a long period of time. Her evidence with respect to F’s influence over his peers, and particularly over younger residents, must be weighed against the evidence of teachers at the Cavan Education Centre, discussed at length below, who suggested that F may actually provide a positive role model in the educational context.
As has been mentioned, daily attendance at school is compulsory for residents at Cavan. Accordingly, F attends three 90 minute formal education sessions a day. The court was told that he frequently returns voluntarily for an additional informal session that runs for about an hour. I understand that since the middle of 1997, F has consistently worked toward gaining his SACE. Mr Durdin provided the court with a brief outline of F’s educational history at Cavan. In 1997, F undertook the SACE stage 1 subjects of General Mathematics 1A, English, Art and Technical Graphics. He withdrew from Technical Graphics and recorded a Requirements Not Met. With respect to the subjects of General Mathematics 1A and English, he recorded a Satisfactory Achievement, meaning that he had met all the requirements of the course and achieved all of the objectives. In the subject of Art, he was given a Recorded Achievement, indicating that he had met some of the objectives of the course, but not sufficient to warrant a pass. Nevertheless, Mr Durdin explained that one is permitted, in gaining one’s SACE to record a number of “RA’s” which “will count towards the final tally.”
In 1998 F enrolled in Australian Studies, English and General Mathematics 1B in semester one and Legal Studies, Practical Information Processing and Accounting in semester two He recorded a Satisfactory Achievement in all semester one subjects and also in Legal Studies in semester two. He gained a Recorded Achievement in Practical Information Processing and he withdrew from Accounting. Mr Durdin informed the court that F is presently enrolled in two SACE stage 1 subjects - English 1B and photography - and he has two or three modules left to complete in order to fulfil the requirements of SACE stage 1. Furthermore, F has participated in such subjects as Computing, Art, Magazine, Technical Studies, Home Economics, and Physical Education. In addition to the formal sessions devoted to his SACE studies, F receives the assistance of Mr Picheta, a tutor supplied through the Aboriginal Tutorial Assistance Scheme. Mr Picheta is required to spend three hours a week on a one-to-one basis with F. He said in evidence, however, that he usually spends about four or five hours a week providing F with private tuition.
A psycho-social screening assessment was conducted by Mr Putnins. He said that this revealed that F has an estimated non-verbal IQ of 129 placing him in the “bright/average range” of the population, the average IQ score being 100. Mr Putnins explained, however, that this was “not particularly stable as a test result within a fairly wide range, so I wouldn’t attest or say that without a doubt his function is at the level of an IQ of 129.” Nevertheless, on the basis of this testing, Mr Putnins said that he felt “fairly confident that, in fact, [F’s] true score is somewhere in the average to above average range” compared to the general population. Mr Putnins explained that he would expect a person with an IQ of 129 to be capable of undertaking both Year 12 (that is, SACE Stage 2) as well as university studies, given sufficient motivation and no significant handicaps.
In assessing all of the evidence it is clear that F struggles with motivation and that he requires frequent attention and encouragement to persist with his studies. Despite Mr Putnins’ psychological assessment, Mr Durdin characterised F’s intelligence as being of an average standard, making the observation that “nothing in F’s performance suggests that he’s anything but of average intelligence, perhaps slightly above at best.” This led him to describe F as “capable but lacking in motivation and, in fact, needs external motivation to keep him on task.” He explained that, in his experience, and understandably, all young offenders, without exception, need a great deal more motivation and encouragement with respect to their studies than the average high school student. It is therefore imperative that a student in a correctional institution receive daily or at least fairly frequent one-on-one tutoring. In this respect, F is no exception. As Mr Picheta told the court,
“[F], like many young people of his age, is prone to bouts of laziness, despondence, and we have to battle these. It is a battle, so I would not go as far as to describe [F] as a joy to teach, but, by the same token, it’s well within the expectations that I have of someone doing this sort of job.”

Mr Picheta has observed the most significant improvement in F’s work in the area of written expression, in which F has made “enormous strides.” He explained that
“When I first started working with [F] on a one-to-one basis, he was clearly incapable of writing down, expressing his own personal thoughts in a way that would allow another person to read with easy comprehension. Over the course of a couple of years that I have been working with him he’s reached the stage where he’s now a fluent writer and he can set out his ideas in a cogent and understandable manner”.
He said that together with F’s academic improvement over the past two years, there has been a corresponding increase in his willingness to actively seek out help, as well as an increase in his confidence and self-esteem.
Like Ms Blundell, both Mr Durdin and Mr Picheta observed that F exerts a level of influence over his peers. They did not agree, however, that he is a negative role model for other residents at Cavan. Mr Durdin told the court that, in the classroom setting, “there are times when [F is] a positive benefit to his peers, and there are times where he’s a negative influence.” He explained that “in some subject areas, particularly those where [F] is a better student, he is of positive benefit, and other residents would see him achieving in areas they might not have thought of and see that’s a possibility for them too.” He proceeded to say “I have never had any cause to question his behaviour, his attitude, nor when he’s motivated, the quality of his work”, and further that F “sets a good example by getting on with his work”. At the same time, Mr Durdin acknowledged that F may be a mildly negative influence in subjects in which he was not motivated.
Mr Picheta stated that he had no cause to believe that F has in any way been a disruption to the studies of others. Like Mr Durdin, he acknowledged that there are times, particularly when F feels he has covered work before, that he displays negative behaviour. Overall, however, Mr Picheta perceived that, in an academic context, F has been a largely positive role model for other residents at Cavan. He said that in working toward his SACE consistently for a couple of years, F -
“has had more than a considerable influence on other boys taking it up ... he offers a role model for other students which makes them see - and that is palpably true, anyone is welcome to come in and watch this happen - he offers a role model which is saying to other and younger residents and residents who come in fiercely anti-intellectual that, in fact, one of the possibilities in a place like Cavan is that you can structure your time and do something towards getting something out of it at the end. I strongly believe, it’s only a belief but I do strongly believe that [F] has been instrumental in effecting, at least, a small change in the mind set of young people and making them see at least that this kind of work in this kind of setting is a viable possibility.”
Mr Picheta said that, in the past, there had been a mind set of “huge anti-intellectualism and the consideration of anyone who was doing this kind of work as being a nerd”. This mind set has been changing with more residents undertaking study towards their SACE and “just the very fact of F being there as a role model for these younger people coming in has been very positive.”
As to the likely effect of F staying on at Cavan for the remainder of his sentence, Mr Durdin said “we do find, particularly in the non-open access subjects, that teachers are finding it difficult to find work that is new and challenging and fresh to a student who has been with us for so long.” While Ms Blundell spoke of the risk involved in housing residents over the age that Cavan, and particularly the education centre, have been “set up to provide services for”, Mr Picheta disagreed with the proposition that F’s age places him outside the general focus of the school. Rather, he thought that “F is at present in the middle of a developing situation where he’s trying to achieve something where he will get accreditation for. As such, he’s very much an integral part of the school population.” Although conceding that it would be a new situation, Mr Picheta did not think that any significant problems would be posed by having someone as old as 20 in the school. In fact, he thought that such older students might provide a “steadying influence.” He proceeded to say:
“We get a lot of youngsters come in at age of 16 who are very, very rough in their approach, could we say, when they first come in and they would like to feel they could - can throw their weight around in this sort of situation. We find that the older boys are very, very strongly instrumental in showing them, in ways these young people can relate to .... They do react favourably to people they see as their peers, even though being just those few years older.”
Dr Branson, a forensic psychiatrist, was cross-examined as to whether F’s maturation may be retarded by him continuing to mix with younger peers at Cavan. Dr Branson regarded this as a possibility. He thought it more likely, however, that, in his interaction with younger residents, F would perceive himself as, and take on the role of, an older mentor, rather than regressing to behave like a 16 year old.
As to the likely affect on F’s academic progress, should he be transferred to an adult prison, Mr Durdin expressed some concern, stating:
“My belief is the education centre offers as good an education as circumstances permit. I believe we offer a better education service than is available in the adult system and certainly a more individualised one. Therefore, based on that, I believe that F will be more able to achieve educational success with us, than in what I believe is a less personalised system in the adult prison.”
Dr Branson also gave evidence pertinent to this topic. Although Dr Branson had only limited contact with F, in the form of one 90 minute consultation, he is, nevertheless, an experienced forensic psychiatrist and I found his evidence, particularly with respect to the sub-cultures that operate within a prison context, to be most helpful. Upon being asked to assume that F’s education regime would be maintained in an adult prison, he responded:
“.... My concern, I guess, is more to do with his personality style and his emotional ability to cope with the subculture of an adult prison which, in itself, especially in a high security prison, really goes very much against, unfortunately, educational and rehabilitative opportunities. It seems to me that [F], even though the practical educational aspects might be available to him, would be in a position where the whole subculture would go against him making use of those things. He would be in what would be really quite an intimidating position, although I suspect he doesn’t really recognise that himself. In order to fit in, I think, given his level of psychological and emotional maturity, he would only do that by becoming part of a prevailing subculture rather than standing out against it. More mature, older prisoners sometimes are able to stand out against that subculture which really doesn’t want you to be, so that’s my concern about how he would probably fail to cope with that in a way which we would perhaps like because of the subculture, not because of the availability of opportunities.”
While Dr Branson agreed that the opportunities for F to grow and develop may be limited somewhat by the nature of the institution at Cavan, being an institution designed for adolescents, he was more concerned that F’s potential for development may be even worse in an adult prison, “or that development might go in quite a different direction from what we would all prefer to see.”
As I have said, both Ms Blundell and Mr Shephard recommended that F be moved from Cavan to an adult facility. Ms Blundell isolated three considerations which she perceived as relevant and important in making a recommendation, namely, the length of the sentence to be served, the particular resident’s attitude to being at Cavan and the resident’s maturity and ability to manage in the adult system. These considerations had led her to make contrasting recommendations with respect to some other residents. For example, she referred to another resident whom she had recommended should remain at Cavan, her reasons being that:
“[he] is a young Aboriginal man who has had many deaths in his family. He was suicidal and we are still very concerned about him. He’s a very slight young man. He’s vulnerable to being stood over by other people. He’s not strong, he’s emotionally very fragile and he has had a drug problem in the past too, so they are all reasons why we didn’t want him to go to the adult system to complete his sentence because we thought he might get hurt or hurt himself.”
In the context of these considerations, Ms Blundell’s recommendation with respect to F appeared to be based on the fact of physical size and social adeptness. She agreed that in the context of the adult prison system “looking after oneself may involve the ability and willingness to meet physical force with like or greater force” and that this ability could be determined partly on the basis of a person’s size. Mr Shephard also took the same position with respect to F’s ability to cope in an adult prison. He told the court “that as far as his physical size and his way he presents himself I wouldn’t see him as a shrinking violet in another system”.
Ms Blundell’s recommendation suffers, however, from her acknowledged limited contact with F. She told the court that she would see F “once a week or so, [and] say ‘Hello, how are you going?’”. She could not remember the last time she had a conversation with him but estimated that it “would be months ago. Quite a long time ago”. Ms Blundell stated: “I don’t have a close relationship with F, my relationship is mainly with the staff who look after F and with the supervisors who do have a fairly good knowledge of F and speak to him frequently.” Apart from Mr Shephard, however, none of these people were called to give evidence at the hearing of this review.
Mr Shephard’s evidence must also be weighed against the nature of his relationship with F. Mr Shephard said he spent approximately six hours a day on five days of each week with F, yet he described their relationship as “a fairly distant relationship”, acknowledging that “it was never a close working relationship”. Mr Shephard was aware that F had made requests for a change of key worker, but had never approached or discussed this matter with F. Rather surprisingly, given the power imbalance in the relationship between F and his key worker, Mr Shephard indicated that he believed that the onus to raise this matter was upon F rather than himself. There was, I thought, some merit in Mr Lang’s submission that Mr Shephard appeared reluctant to exhibit any generosity to F in the giving of his evidence, as was demonstrated by his omission of any reference to the positive camp report, whilst highlighting the negative report.
By contrast, I found both Mr Durdin and Mr Picheta to be excellent witnesses. Each has extensive and direct contact with F. Each presented an account of F to the court that highlighted his strengths as well as his weaknesses. They depicted him as an able student who at times lacks motivation to study and can therefore act as a distraction to his classmates, but who has made significant academic progress and has stood as a role model to his peers when he has been closely monitored and encouraged by academic staff. It is obvious that much of F’s progress to date is a direct result of the constant encouragement F has received from the teaching staff. The positive role model they have clearly provided for a young man serving a sentence for such a serious crime augurs well for the successful rehabilitation, not only of F, but of other young offenders within our correctional system.
As I have said, this is a review pursuant to s36(2) of the Act. This section is new. There is no equivalent provision in the repealed Children’s Protection and Young Offenders Act 1979 (the former Act), whereby the court was required to review the detention of a youth sentenced in an adult court. It is therefore necessary to determine the extent of the enquiry to be undertaken for the purpose of the review. The former Act provided for “the protection, care and rehabilitation of children; to provide for the welfare of the community; and for other purposes”. The former Act placed particular emphasis on the rehabilitation and welfare rights of the child. That Act was repealed in 1993 and replaced by three separate Acts, namely, the Youth Court Act 1993 which established the Youth Court and defined its jurisdiction; the Children’s Protection Act 1993 which now deals with the care and protection of children; and the present Act, that is, the Young Offenders Act 1993 which is described as “An Act to reconstitute the juvenile justice system in this State; and for other purposes”. Some of the provisions of the present Act are substantially similar to the former Act but there has been a shift in emphasis with respect to the sentencing of young offenders.
As an aid to interpretation, Mr Nicholas, in the course of his submissions, referred to the second reading speech with respect to the Young Offenders Bill. In that speech, the Hon M J Evans said (at 2849 of Hansard 1 April 1993):
“There is a widespread public perception that the current system of juvenile justice does not deal effectively with young offenders, especially those who commit serious offences or who are long-term recidivists. The penalties handed down by the Children’s Court are considered to be too lenient in many cases, with young offenders not being held accountable for, nor made to confront the consequences of, their actions. As a result, it is believed that the system fails to deter young people from re-offending and fails to adequately protect the community from such criminal behaviour.”
Mr Evans went on to say that the Bill redefined the philosophy on which the juvenile justice system was predicated. In order to ensure that the needs of victims and the community were given appropriate precedence, the Bill was designed to reverse the emphasis on the rehabilitative or welfare rights of the child. It was proposed to strengthen and extend penalties to ensure that young people were made accountable for their criminal acts. A number of new provisions were therefore incorporated into the present Act whereby victims were given the right of participation in the judicial process, and also rights as to such matters as restitution and compensation.
Mr Nicholas relied on the comments in the second reading speech to import the concept of deterrence into the review process as he submitted that the process of review was akin to a sentencing exercise carried out under the Criminal Law (Sentencing) Act 1988. Mr Nicholas argued that the prospect of being transferred to an adult prison was an important factor which would act as a deterrent to potential young offenders. He put to Dr Branson that remaining at Cavan was a “soft option” for F.
It is clear that deterrence is relevant to the imposition of sentence. I have some difficulty, however, in accepting that it has any relevance at all to a review. Section 3 of the present Act largely re-enacts s7(1) of the former Act. The change of emphasis which I have mentioned is demonstrated by the inclusion of such matters as s3(3)(a) which provides for compensation and restitution for victims. Deterrence is included in s3(2a). That section provides:
“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, regard should also be had to the deterrent effect any proposed sanction may have on other youths.”
By contrast, s 7(1) of the former Act, in so far as it is relevant to this discussion, provides as follows:
“In any proceedings under this Act, any court ... must consider the following factors:
(da).. where the child has been dealt with as an adult for an offence the deterrent effect that any sentence under consideration may have on the child or other persons.”
Unlike s7(1) of the former Act, therefore, which relates to “any proceedings”, Parliament has seen fit to limit the consideration of deterrence to the point at which sentence is imposed. This is understandable as the focus of the second reading speech is on the imposition of penalties which ensure that young offenders receive appropriate levels of punishment. The sentencing judge is in the best position to balance issues such as deterrence against the need to rehabilitate the offender and also take into account the rights of the victim. A sentencing judge, when imposing the sanction for serious criminal conduct, and having regard to the deterrent effect on other youths, may, consider that it is appropriate for the offender to spend part or all of his sentence in an adult facility. For example, Debelle J on 12 February 1998, sentenced a youth to a term of imprisonment for the crime of murder. That crime was committed when the youth was aged about 17 and a half years. The judge ordered that the youth remain at the training centre for a period of about 12 months to assist him before his transfer to Yatala when he would be aged about 20 years.
In the case of a young offender who is convicted of a serious crime, the court is empowered, as happened in the case of F, to sentence the youth as an adult and thereby impose a penalty which will be appropriate to the crime. That sentence can extend well beyond the age of 18 years. Once the sentence has been imposed, however, the deterrent aspect of punishment, together with the rights of the victim should have been satisfied. Thereafter, the emphasis should be on the issue of rehabilitation.
Mr Nicholas further submitted that there was what he described as a “practical presumption” that a resident in a training centre would move to prison on attaining the age of 18 years. This submission was consistent with Ms Blundell’s evidence as to her expectation and her concern at the possibility of overcrowding at Cavan unless that occurred.
Pursuant to the former Act, the court had no discretion with respect to the transfer to a prison of a child sentenced by an adult court.
Section 58 of the former Act provided:
“(1).. Subject to subsection (2), a child who has been sentenced to imprisonment by an adult court will serve that sentence in prison.
(2)An adult court that has sentenced a child to imprisonment may, by order, direct that the child be detained in a training centre for such period of the sentence as the court thinks fit, but not extending beyond the time at which the child attains the age of 18 years.”
This is to be contrasted with s 36(1) of the present Act which provides that, “subject to any direction of the sentencing court to the contrary, a youth who has been dealt with as an adult and sentenced to imprisonment will serve that sentence in a training centre”. Section 36(2) then introduces the review by the court upon the youth reaching the age of 18 years.
Parliament has, therefore reversed the situation which previously applied. The section now provides that, absent a direction of the sentencing judge, a youth will remain in a training centre for the term of the sentence even if that term extends beyond the youth’s 18th birthday. This, in my view, indicates a recognition by Parliament that, despite the need to increase sentences in order to make young offenders more accountable, it is not necessarily desirable for such youths automatically to be transferred to the adult system once they reach the age of 18 years.

Mr Nicholas suggested that the review process had been included to allow for special cases where hardship was demonstrated such as the risk of suicide or addiction to drugs and where, therefore, it would be desirable for the court to order that detention in a training centre continue. In this case, no such hardship had been demonstrated. F did not fall into any particular category of identifiable need, such as the youth referred to in para 39 (supra). Mr Nicholas went so far as to submit that F possessed a number of traits, such as his size, which would put him in good stead in dealing with his transition to the adult system.
While the present Act undoubtedly gives the court the discretion to make orders which will permit youths with particular problems to remain in a training centre beyond the age of 18, it does not follow therefrom that, in the absence of some special hardship, the youth should be transferred to prison. I do not see any justification for reading the section in the way that Mr Nicholas would interpret it. The section is in mandatory terms. It states unambiguously that the youth will remain at the training centre subject to any direction of the sentencing court to the contrary. If Parliament wished simply to provide for special cases there was no need to enact s36 in its present form. The section could have been re-enacted in the same form as s58, subject to the provision for an exception in the case of hardship. In that situation the expectation would have been for a transfer to prison at the age of 18 unless some special hardship was shown. Instead, Parliament saw fit to enact a completely new section pursuant to which the youth will remain at the training centre. I believe the review procedure was included to allow for circumstances which might arise subsequent to sentence which would make it inappropriate for that situation to continue.
At the end of the day, I think that it is the task of the court conducting the review to evaluate all of the circumstances surrounding the detention of the youth in question and then decide whether it is appropriate to make an order for transfer to a prison. I believe it is undesirable to circumscribe the discretion of the review judge by laying down any strict rules or criteria which will determine the basis upon which the order should be made. Each case will turn very much on its own particular facts. Nevertheless, there is a concern that this court give some indication to those in the institutional context as to the matters which should be addressed in making recommendations. It is therefore appropriate to mention some of the other matters raised in this case.
Ms Blundell identified in her evidence such matters as the age of the offender and the length of his sentence. Those matters are in my view relevant considerations. Ordinarily it would not be appropriate to detain in a youth facility an offender who might be well into adulthood before he is eligible for release. For example, the youth referred to in para 51 hereof was aged approximately 19 years at the date of sentence. His non parole period was fixed at 10 years and nine months. He was therefore over 18 when he commenced his sentence and would be nearly 30 before he was eligible for release. It would seem inevitable, therefore, that he would need to be transferred to prison at some stage prior to his release. The sentencing judge, in my opinion, appropriately determined that the transfer in that case should take place when the youth was about 20. In F’s case, however, he was not quite 16 when he committed the crime. He is now only 18 and will be just over 20 when he is due for release. According to the evidence, he is within the general age range of the other residents at Cavan, approximately half of whom are currently over the age of 18 years. There was no evidence to suggest that this situation was likely materially to change prior to the estimated date of his release.
I agree with Mr Nicholas’ further submission that the matters which the court may take into account will not necessarily be limited to the interest of the particular resident. In an appropriate case it could include broader considerations pertaining to the detention of other residents in the training centre, whose detention was being adversely affected by the continued presence and/or conduct of the youth in question. This would, however, require proof of more serious conduct than the type of negative influence attributed to F by some of the witnesses in this case.
Similarly, a problem such as overcrowding which Ms Blundell identified as a particular concern could be a relevant although not decisive factor. There would have to be a demonstrated problem rather than the sort of speculative concern outlined in this case. On the other hand, the well documented problem of overcrowding in the adult prison population might well make this particular issue somewhat academic.
It is obvious, therefore, that the scope of the review is potentially very wide. There are any number of factors which the court may take into account.
In the case of F, I am faced with a young man who has been convicted of a serious crime for which he received a lengthy sentence of imprisonment. The sentencing judge did not see fit to direct that F be transferred to prison before his release. There is no evidence that he has been a threat to any other resident at Cavan. He has not posed a management problem for any staff. He has undertaken a course of studies in an assiduous manner. This has resulted in significant academic progress over the past two years. Despite the evidence as to the educational facilities available to adults, I have no confidence that F’s good academic progress will be maintained in prison. F’s confidence and self-esteem appear to have increased. There is evidence that he has acted as a positive role model for some of the younger residents of Cavan. There is no significant age difference between F and the other residents of Cavan. A consideration of the whole of the evidence establishes that F is well advanced towards a successful rehabilitation.
The only matters raised to support a transfer to prison relate to F’s age, the nature of his crime, the fact that his physical size would assist him in coping in an adult prison, and speculation as to over-crowding at Cavan at some time in the future. None of these matters, in my view, is sufficient to outweigh the positive benefit to F and the community if he remains at a training centre and is successfully rehabilitated. To interfere with his current progress by making an order for transfer to prison is not only undesirable but would, in my view, be contrary to the objects and statutory policies set out in s3 of the Act, viz:
“... 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.”
Having reviewed the detention of F, I confirm the interim order. I direct that F continue to be detained in the training centre.

[1999] SASC 275

21 July 1999