R v Grant Charles Roberts No. DCCRM-96-660 Judgment No. D3576

[1997] SADC 3576

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Ruling of His Honour Judge Kitchen (ex tempore)

Hearing

06/11/96, 09/12/96, 12/12/96, 03/02/97, 10/02/97.

Catchwords

CRIMINAL LAW - PRACTICE AND PROCEDURE Young Offenders Act S29(1) - whether a plea of guilty is comprehended in the expression "found guilty on trial". R v Symons (1981) VR 297

Representation

Crown DIRECTOR OF PUBLIC PROSECUTIONS:
Counsel: MS C MEALOR

Accused GRANT CHARLES ROBERTS:
Counsel: MR G ALGIE - Solicitors: DIXON GALLASCH

DCCRM-96-660

Judgment No. D3576

3 February 1997

(Criminal)

THE DISTRICT COURT OF SOUTH AUSTRALIA

CRIMINAL JURISDICTION

DCCRM-96-660

R v GRANT CHARLES ROBERTS

REASONS FOR RULING OF HIS HONOUR JUDGE KITCHEN

On 18th March 1996, pursuant to Section 17 of the Young Offenders Act 1993 (the Act), the accused was committed for trial in this Court for the offence of arson.On 8th July 1996 he pleaded not guilty in this Court to an Information charging him with that offence and he was remanded for trial.The particulars in the Information alleged that the accused "on the 14th October 1995 at Craigmore, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged by fire a school building the property of the Education Department of South Australia, the said damage amounting to about $l.2 million".

On the day set for his trial the DPP amended the Information by deleting from the particulars of the offence the words "intentionally or" and the accused pleaded guilty to the Information as amended.

Section 17 of the Act provides that where the Youth Court or the Supreme Court determines, on the application of the DPP or a police prosecutor, that a youth charged with an offence should be dealt with in the same way as an adult because of (inter alia) the gravity of the offence, the Youth Court may commit the youth to the Supreme Court or the District Court for trial or sentence.

Section 29(1) of the Act provides that where a youth is committed for trial, and is found guilty on trial, or is committed for sentence, the court to which the youth was committed may deal with the youth as an adult or make any order in relation to the youth that may have been made by the Youth Court on sentencing a youth, or remand the youth to the Youth Court for sentencing.

In my opinion the amendment to the Information did not charge a lesser offence, so the provisions of Section 29(2) of the Act, dealing with a case where a plea is entered to a lesser offence than that charged in the Information, are not relevant.

The question is whether the phrase in Section 29(1) of the Act "and is found guilty on trial" means that there must be a finding of guilt after a trial, as that word is usually understood, or whether it is capable of including a finding of guilt on a plea of guilty.

"Trial" is not defined in the Act.

If the phrase "found guilty on trial" were construed to mean that a plea of guilty does not empower the court to sentence the accused then neither, so it appears, would the court have the power to remand the accused to the Youth Court for sentence.A construction which would result in such an hiatus should be avoided.

The words "on trial" are to be construed in the context in which they appear, the purpose and intent of the statute in which they appear and the historical setting of the particular statute.

The Act was one of three statutes (the others were the Youth Court Act and the Children's Protection Act) on the coming into force of which the Children's Protection and Young Offenders Act 1979 (CPYO) was repealed.Section 56(1) of the CPYO provided "where a child is committed to an adult court for trial otherwise than upon his own request, that court may upon finding the child guilty of an offence" deal with the child in the manner set out in that section, that manner being essentially the same as now appears in Section 29(1) of the Act.The words of Section 56(1)did not, in my view, confine the Court's power to impose a sentence only to a case where there had been atrial after a plea of not guilty.Comparing the similar sections, and the context in which they appear, in the respective statutes it is difficult to impute to the Parliament an intention that by using the words "found guilty on trial" the Court does not have the power to sentence if there is simply a plea of guilty.

In R v Symons (1981) VR 297 Young CJ referred to dictionary definitions of "trial" and said, at page 299 "These meanings of definitions perhaps suggest, although they do not require, that the receiving of a plea of guilty and the passing of judgment thereon do not involve a trial".He went on to consider the other provisions of the statute to ascertain the meaning of the word "trial" for the purposes of the question before the Court in that case.In the same case Tadgell J reviewed a number of United Kingdom and Victorian authorities, noting that in R v Brown (1889) 24 QBD 357 and R v Inglis (1917) DLR 672 it has been held that a question arising upon a plea of guilty is a question arising "on the trial" of a person.

It would be my view that the correct interpretation of the phrase "found guilty on trial" does not exclude a case where there is a finding of guilt on a plea of guilty.

The researches of my associate have located two instances where a Judge of the Supreme Court has proceeded to sentence a youth on his plea of guilty to the offence or offences for which he was committed for trial to that Court, after the coming into force of the Act.They areR v M 484/94 and R v P 503/95.In both cases the presiding Judge was Duggan J.In the first case the plea was entered after a ruling by His Honour, and before a jury was empanelled, upon an application for the exclusion of certain evidence.In the second case, similarly - the plea was entered after His Honour's ruling and before a jury was empanelled.Although it does not appear that any submission was made to His Honour concerning the meaning of the phrase I am concerned with, nor that he expressly adverted to it, that he proceeded to sentence the youth accords with the conclusion I had reached after a brief consideration of the matter. Furthermore, it is appropriate, I think, that I should follow what has been done in the Supreme Court in like cases, and deal with this youth on the basis that by his plea of guilty to the offence for which he was committed for trial, this Court has jurisdiction to proceed pursuant to Section 29(1) of the Act.