R v L-A, T & R v A, SA
[2010] SASC 91
•7 April 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v L-A, T & R v A, SA
[2010] SASC 91
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)
7 April 2010
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - CUSTODIAL ORDERS - DETENTION IN TRAINING CENTRE
Defendant youth pleaded guilty to a number of offences - appeal against order that defendant serve balance of sentence in an adult prison - youth offender over 18 at time of sentence - whether defendant should be returned to a youth training centre - Court to conduct a review akin to that contemplated by s 36(2) Young Offenders Act 1993 (SA) as to whether training centre or adult prison appropriate - no presumption that a youth offender over 18 should be housed in a training centre - whether too much weight given to defendant's superficial victim awareness - whether insufficient weight given to rehabilitation and education whilst in training centre.
Held: (per Nyland and Gray JJ, Vanstone J concurring): having regard to all the circumstances surrounding the detention of the youth, in particular his positive steps towards rehabilitation and education whilst in the training centre, it is appropriate that the sentence of imprisonment be served in a youth training centre. Appeal allowed.
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - GENERAL PRINCIPLES
Defendant youths pleaded guilty to a number of offences - appeal against sentence - whether sentences were manifestly excessive - whether Judge adequately considered the circumstances of the defendants, including their ages and prospects for rehabilitation.
Held: (by Nyland and Gray JJ): in respect of both defendants, the Judge gave insufficient weight to their prospects of rehabilitation. The sentences were manifestly excessive. Appeal allowed.
Per Vanstone J (dissenting): the Judge had adequate regard to the circumstances of the defendants, including their age. Having regard to the serious nature of the offences, the sentences were not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) ss 19(1), 19(2), 85(3), 86A, 134(1), 137(1), 169(1), 270A; Young Offenders Act 1993 (SA) ss 3, 29, 36, referred to.
R v QTV (2007) 87 SASR 378; R v F (1999) 75 SASR 163, applied.
R v L-A, T & R v A, SA
[2010] SASC 91Court of Criminal Appeal: Nyland, Gray and Vanstone JJ
NYLAND and GRAY JJ:
These two sentence appeals were heard together.
On the night of 6 and 7 December 2007, T and S, the appellants, who were youths, together with another youth and an adult, committed a series of offences. T was aged 16 years and two months and S was 14 years and almost 11 months. The other youth, J, was aged 15 years and one month and the adult was 24 years.
T pleaded guilty to 17 offences - two counts of aggravated robbery, one count of attempted aggravated robbery, one count of aggravated serious criminal trespass in a non-residential premises, three counts of aggravated threatening life, three counts of aggravated threatening harm, four counts of theft and three counts of damaging property.[1] The Judge sentenced T to imprisonment for nine years. But for his pleas of guilty, the sentence would have been 12 years. A non-parole period of four years and six months was fixed. The sentence was back-dated to commence on 7 December 2007. Although T was a youth at the time of the commission of these offences, he had turned 18 by the time he was sentenced. At that time, the Judge ordered that T serve the balance of his sentence in an adult prison.
[1] The maximum penalties for these offences are as follows:
•Aggravated robbery – life imprisonment pursuant to section 137(1) of the Criminal Law Consolidation Act 1935 (SA).
•Attempted aggravated robbery – imprisonment for 12 years pursuant to sections 137(1) and 270A Criminal Law Consolidation Act1935 (SA).
•Aggravated serious criminal trespass in a non-residential premises – imprisonment for 20 years pursuant to section 169(1) Criminal Law Consolidation Act 1935 (SA).
•Aggravated threatening life – imprisonment for 12 years pursuant to section 19(1) Criminal Law Consolidation Act 1935 (SA).
•Aggravated threatening harm – imprisonment for seven years pursuant to section 19(2) Criminal Law Consolidation Act 1935 (SA).
•Theft – imprisonment for 10 years pursuant to section 134(1) Criminal Law Consolidation Act 1935 (SA).
•Damaging property – imprisonment for two years for damage less than $2,500 and imprisonment for three years for damage between $2,500 and $30,000 pursuant to section 85(3) Criminal Law Consolidation Act 1935 (SA) (as it then stood).
S pleaded guilty to 15 offences - three counts of aggravated robbery, one count of attempted aggravated robbery, one count of aggravated serious criminal trespass in a non-residential premises, three counts of aggravated threatening life, two counts of aggravated threatening harm, two counts of theft, two counts of damaging property and one count of using a motor vehicle without consent.[2] The Judge indicated that but for his pleas of guilty, S would have been sentenced to imprisonment for 10 years. This was reduced to seven years and six months, a non-parole period of three years and nine months was fixed, and the sentence and non-parole period were back-dated to commence on 7 December 2007. With respect to the offence of illegal use, S was disqualified from holding or obtaining a driver’s licence for 12 months, commencing on the day of his release on parole. At the date of sentence, S was aged 16 years and 11 months. In sentencing, the Judge considered that because of the difference in age between S and T, the number of offences each youth had committed and their respective criminal records, it was appropriate to differentiate between them to some extent.
[2] The maximum penalty for the offence of using a motor vehicle without consent is imprisonment for two years for a first offence and for not less than three months and not more than four years for a subsequent offence, plus 12 months licence disqualification, pursuant to section 86A Criminal Law Consolidation Act1935 (SA).
Each offence was serious. S was involved in nine separate incidents and T in 10 incidents. Victims were threatened with violence on a number of occasions. On some occasions an imitation firearm was produced by S. Pursuant to section 29 Young Offenders Act 1993 (SA) the Judge decided to sentence both appellants as adults. No complaint is made by either appellant in relation to this decision.
It is to be noted that J, who was aged 17 years and one month at the time of sentence, was sentenced with respect to 10 offences to a term of imprisonment of seven years with a non-parole period of three years and six months. The adult offender pleaded guilty to six offences, in addition to a number of other unrelated offences which were transferred from the Magistrates Court. He had a poor criminal antecedent record. He was sentenced to imprisonment for seven years and two months, reduced from nine years on account of his pleas of guilty. That sentence was reduced by eight months, to take account of the time spent in custody. The sentence was ordered to be served cumulatively upon the sentence imposed for the Magistrates Court offences. As a result, a total head sentence of seven years, seven months and three weeks was imposed and a non-parole period of four years and nine months was fixed.
Appeal with Respect to T
T has appealed on the grounds that the sentence is manifestly excessive, and that the Judge erred in ordering that he be transferred to and serve the balance of his sentence in an adult prison.
Section 36 of the Young Offenders Act provides:
(1)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.
(2)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.
When a youth offender is over 18 years at the time of sentencing, the Sentencing Court must, as well as imposing a sentence, conduct something akin to the review contemplated by section 36(2) in order to determine whether that sentence is more appropriately served at a training centre or a prison. It cannot be presumed that a person over 18 will be appropriately housed in a training centre.[3]
[3] R v QTV (2007) 87 SASR 378 at 385 [36] (The Court).
The Judge’s remarks with respect to his review of T’s situation were very brief:
[T] you are now aged 18 and you will be well into adulthood when you become eligible for parole and your case worker reports that your victim awareness is superficial. Having conducted the review I am obliged to undertake, these considerations lead me to order that you will serve the balance of your sentence in an adult prison.
In QTV, this Court, constituted of Prior, Bleby and Anderson JJ, approved the comments of Nyland J in R v F[4] as to the approach to a review under section 36(2):[5]
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.
[4] R v F (1999) 75 SASR 163.
[5] R v QTV (2007) 87 SASR 378 at 385 [37] (The Court) adopting R v F (1999) 75 SASR 163 at 176 [59] (Nyland J).
The Court in QTV made it clear, however, that when conducting a review a sentencing judge is required to evaluate all of the circumstances surrounding any detention and then decide whether it is appropriate to make the order for transfer to an adult prison. Matters to be considered include the age of an offender and the length of sentence. It might not be appropriate to detain a youth in a training centre who could be well into adulthood before becoming eligible for release. The interests of other residents in the training centre whose detention might be adversely affected by the continued presence or conduct of a person sentenced as an adult, might also be relevant.[6]
[6] R v F (1999) 77 SASR 163 at 176-177 [60]-[61] (Nyland J); R v QTV (2003) 87 SASR 378 at 386 [40] (The Court).
In the case of T, the Judge appears to have focussed on the age at which T would become eligible for parole. The Judge made repeated reference to the comment in the Social Background Report concerning T’s lack of victim awareness. In so doing, the Judge appears to have disregarded, or had little regard to, the strong body of evidence which supported T continuing to serve his sentence in a training centre. We refer in particular to the evidence provided by Mr Kalaitzis. It is also appropriate to comment that T is of small stature for his age. Of particular relevance is section 3(3)(d) Young Offenders Act which provides that there should be no unnecessary interruption of a youth's education or employment. As appears from the report to which we have earlier referred, whilst T has been in custody in the training centre, he has worked towards the completion of SACE Stage 1 and 2. It would appear that this program has been interrupted by his transfer to the adult prison system.
For these reasons, on 18 February 2010 we delivered judgment with respect to Ground 2 of T’s appeal. We allowed the appeal as to that ground and quashed the order made by the sentencing Judge on 23 December 2009 whereby T was directed to serve the balance of his sentence in an adult prison. We joined in a further order that T be forthwith returned to a youth training centre to serve the balance of his sentence.
Although T was sentenced as an adult, the Judge was nevertheless required to take into account the objects and statutory policies provided by the Young Offenders Act. Section 3 Young Offenders Act provides:[7]
[7] This is the current formulation of section 3 Young Offenders Act 1993 (SA), which is as it stood at the time of sentence. At the time of the commission of the offences, the previous formulation of section 3(2a) was in place. That section provided:
(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, regard should also be had to the deterrent effect any proposed sanction may have on other youths.
(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.
When sentencing T the Judge remarked:
Your upbringing has not been without its difficulties and you eventually became transient. You had some education, you have continued your education and you have undertaken a number of courses and programs whilst you have been in custody. You have developed some degree of insight into the seriousness and implications of your offences; you now know the choices that you ought to make, you have done well whilst you have been on remand and there are people who are prepared to support you and try and instil appropriate values in you.
However, your case manager reports that although you acknowledge your responsibility for the part that you played in these offences, you do not seem to appreciate the seriousness of the violence which was involved and you have but superficial insight into the effects on your various victims.
The Social Background Report of 27 May 2009 provided information about T’s background, problems and the steps taken towards rehabilitation. Since his incarceration, T has participated in many educational and vocational improvement programs. He was assessed as requiring intervention with respect to employment and training, substance misuse counselling, loss and grief counselling in relation to his mother’s death, and victim awareness. A subsequent student report dated 10 September 2009 detailed his performance in the courses undertaken in custody and concluded with the general comment:
T has been exceptional in his approach towards his education. He is very willing to attempt new work, follows instruction, shows strong initiative and completes work to a high standard. T has shown interest in broadening his education and has enrolled in two SACE Stage 1 subjects. He intends in working towards the completion of SACE Stage 1 and 2 studies. T is a mature and confident student who is determined to stay focussed and work towards achieving his educational goals.
Mr Kalaitzis, a client services worker at the young offenders detention centre at Cavan, gave evidence on T’s behalf. This evidence was relevant both to the question of whether the sentence imposed was manifestly excessive, and whether T should have been transferred to an adult prison. Mr Kalaitzis told the Judge that he had been working with T for about eight months. T had been placed in Unit Charlie, which is usually where younger or shorter term offenders are placed, but T had been an exception to that. Mr Kalaitzis described T as being:
… very well-behaved in that unit and he has also been seen as a role model for that unit as well [as] for the younger guys coming in.
Mr Kalaitzis described T as being well-respected by other people in the unit. T undertook his chores in a positive manner and was a good role model for others. Mr Kalaitzis went on to say:
Q.Are you aware of how he has performed in the programs.
A.Yes, as outlined in that report he has been engaging quite well with the program and, once again, there has been much progress on the programs he has participated in. He has been able to actually reflect upon a lot of his life experiences and he has been able to bring them forward in the program for other people.
Q.What about his behaviour when he is given directions by staff around the unit.
A.It is my understanding that he follows staff directions quite well. When told to do something, he will do it without being disruptive.
Q.Have there been any bad reports about his conduct.
A.Not to my knowledge.
Q.Can you say anything else about the attitude about whether or not he should stay in residence.
A.The centre fully supports [T] serving his order, basically, in the youth detention; similarly, we have a lot more to offer than adult educational facilities by way of adult education. [T] has completed certificate 1 and he can go on to having more modules; probably even a certificate 2.
Q.What is a certificate 2.
A.Basically, it is an accredited certificate, he has hopefully completed the one for vocational education, and he can also have a look at all the other certificates and do basically vocational work.
Q.Does that link in with the trades.
A.Yes, basically it is recognised by the trades as being an actual recognised course.
Q.Would that assist him in getting an apprenticeship or other types of work.
A.Definitely it would give him a background into basically [sic] numeracy and English literacy skills, and he is intending to go on addressing these issues.
Q.Do you have any concerns about his continuing cooperation with the officers that oversee him and the other residents in the future.
A.I think that, well, on the understanding that [T] will continue to do his best, as he has in the last 18 or so months.
Q.Is that based on his progress.
A.On his progress while he has been at the centre.
The above demonstrates the progress made by T.
It is clear from the Social Background Report that T had a troubled childhood. His mother died when he was five years old. His father is a recidivist offender who had little contact with T. T was exposed to domestic violence from a very early age, and he had little contact with his siblings. Prior to this offending, T had been transient for about one year. He had no significant counselling or other assistance prior to his incarceration with respect to these offences in 2007.
Before the imposition of the present sentence, T had not previously served a sentence of detention other than a short period in custody as a result of a breach of bail. T’s antecedent history is relatively short. His most serious offending led to a sentence in November 2007 of five months detention, suspended on a bond of good behaviour for eight months with supervision, together with 120 hours of community service to be performed within eight months.
The sentencing Judge was correct in taking a serious view of T’s conduct. The seriousness of the conduct led to the decision to sentence him as an adult. As a result, the Judge was able to impose a sentence greater than the maximum sentence of three years detention which would have otherwise applied. The Judge was mindful of the provisions of section 3 Young Offenders Act, which relate to the deterrent effect of the sentence upon T and other youths, as well as the protection of the community. Section 3(2a)(b)(ii) Young Offenders Act, however, requires a balance to be achieved between the protection of the community, and the need to rehabilitate youths. We consider that the Judge when performing this balancing exercise, failed to adequately address the question of T’s rehabilitation.
The earlier extracted evidence demonstrated the substantial progress made by T whilst incarcerated. This progress was a highly relevant matter for consideration. As the evidence demonstrated, it was accepted that T would continue to progress positively. Further, as observed, T possessed potential leadership skills, increasing levels of maturity, was co-operative rather than obstructive, and was genuinely engaging in educational pursuits. T’s rehabilitation appears to have been well under way by the time of sentence. We consider that the Judge imposed a sentence which can be properly described as manifestly excessive. For a young offender facing a term of imprisonment of nine years with a non-parole period of four years and six months, this sentence may also be properly described as crushing. The special need for rehabilitation of the young offender warranted a more merciful approach.
We would quash the sentence imposed by the sentencing Judge and in lieu thereof sentence T to a term of imprisonment of six years for all offences. We would fix a non-parole period of three years. The sentence and non-parole period should commence from 7 December 2007.
Appeal with respect to S
The sole ground of appeal with respect to S is that the sentence imposed is manifestly excessive.
Counsel submitted that the Judge failed to give adequate weight to the policies expressed in section 3 Young Offenders Act. S was aged 14 years and almost 11 months at the time of the offending and was the youngest of the four involved in the offending on the night in question. However, it is to be noted that S was the person who brandished the imitation firearm. S had no prior record, although in September 2007 he had been bailed on a charge of disorderly behaviour and in October 2007 he had been charged with further offences and placed on home detention bail. S had a difficult upbringing. His Social Background Report disclosed that he had a good relationship with his mother and maternal family members. His father had repeatedly been in prison. The report mentioned that a psychiatric assessment took place at the end of October 2007, which had disclosed a tentative diagnosis of drug induced psychosis. At that time, S was prescribed Pericyazone (a mood-stabling medication) to address his symptoms. The report records that at the date of the report S was continuing to take prescribed medication. However, S continued to report increasing paranoia and auditory hallucinations.
It appears that his sole positive male role model was his great uncle, who died about three months prior to the commission of the present offending.
A Bail Remand Report dated 28 September 2009 mentioned that S was regularly consulting a psychiatrist, that he had been on anti-psychotic medication and that he was still experiencing anxiety in addition to auditory and sensory hallucinations.
The Judge was provided with a report from Dr Lyons, a psychiatrist, who examined S on 5 November 2007. Dr Lyons had difficulty in reaching any conclusion about S as a result of his lack of cooperation at the interview, although he reported a possible diagnosis of drug induced psychosis. On the hearing of the appeal, S’s counsel submitted that the evidence as to S’s mental state was relevant to assessing the gravity of his offending. However, there is a paucity of material before the Court to enable any conclusion to be drawn as to the mental state of S, either at the time of his offending, or at sentence.
As was the case with T, S has made substantial progress towards his rehabilitation in the time that he has been in custody. He had no relevant prior convictions and had not yet turned 15 years of age when he committed the present offending. In our opinion, the Judge gave insufficient weight to factors relating to S’s rehabilitation and imposed a sentence which was manifestly excessive.
A sentence of seven years and six months imprisonment with a non-parole period of three years and nine months with respect to a 14 year old first offender was manifestly excessive. Such a sentence may be viewed as crushing.
We would allow the appeal against sentence. We would quash the sentence imposed by the sentencing Judge and in lieu thereof, sentence S to a term of imprisonment of five years. We would fix a non-parole period of two years and six months. The sentence and non-parole period should commence from 7 December 2007.
VANSTONE J: As is apparent from the reasons of Nyland and Gray JJ, the appellants were dealt with, together with the co-offenders, J, also a youth, and Graham, an adult, by the one sentencing judge. The judge had the benefit of comprehensive submissions from separate counsel representing each offender, as well as from counsel for the prosecution. In addition, the judge had extensive material by way of reports dealing with the progress in custody of the appellants. The judge was in a good position to assess the relative culpability of all four offenders insofar as it was necessary to do so. That matter was not straightforward, since there were so many offences to be considered and the role of each person in each offence was necessarily different. In addition, not all offenders were implicated in each offence.
The sentencing judge gave lengthy and detailed remarks in respect of the sentences imposed. Plainly he addressed the criteria relevant to imposing sentences on youths. His attention was drawn to the relevant section of the Young Offenders Act 1993 together with the principal authorities dealing with those provisions.
This Court too has also had the benefit of well-directed and incisive submissions in support of the grounds of appeal.
There can be no doubt that the sentences imposed on each appellant were severe. In my view that statement is probably particularly apt in respect of the younger of the offenders, S. He faces a non-parole period of three years and nine months against a head sentence of seven years and six months, commencing 7 December 2007. At the time of the offending he was just short of his fifteenth birthday. He had little or no prior offending to be considered. Like T, he was sentenced as an adult, but it is not suggested that the judge erred in that regard. To a person of his age the sentence must indeed appear to be severe. Although his young age might tend to an assumption that he was led into the offending by the older co-offenders, in fact the role which he played in some of the more serious of the offences was a leading one. It has also been suggested that his psychiatric health might have had a bearing on these offences. On the other hand, that issue was not explored before the sentencing judge and it is not to be assumed that further material in support of any such matter was available, but not provided to the judge.
Counsel for both appellants have pointed to the sentence imposed upon the adult offender, Graham, and argued that, although sentences imposed on youths and adults are not directly comparable, the fact that Graham’s sentence was not much longer than that of T suggests that insufficient regard was had to the age of the appellants and the aims of the Young Offenders Act as expressed in s 3 of that Act. In my view that submission assumes that the s 3 considerations will always dictate lesser sentences. That is not so. It is a question of how the relevant aims of the section are evaluated in terms of the specific features of the offenders being dealt with and the offences under consideration. When regard is had to the whole course of offending, the fact that Graham was not present at the outset and that his role was not a leading one, I do not think that such comparison as can be made between his sentence and that of the youths is suggestive of evaluative error.
Having regard to the fact that the judge had before him numerous offences, some of them extremely serious, the area of discretion in terms of the sentences to be imposed was wide. Notwithstanding the careful arguments presented to us, I am not persuaded that either of the sentences were manifestly excessive.
In relation to T, there was a further ground of appeal raising an order made by the sentencing judge that T serve his sentence in an adult prison. He was 18 years and 2 months of age at the time of sentence. I joined in the order of the Court made on the day of the appeal hearing in quashing that order and substituting another because, in my view, the brief reasons given by the judge for making that order were not such as to justify it. The judge said:
[T] you are now aged 18 and you will be well into adulthood when you become eligible for parole and your case worker reports that you victim awareness is superficial. Having conducted the review I am obliged to undertake, these considerations lead me to order that you will serve the balance of your sentence in an adult prison.
I consider that the main consideration referred to – limited insight in respect of the impact of these crimes on the victims – is, at best, neutral in respect of an order under s 36 Young Offenders Act. The evidence before the judge was that T was making good progress during his long period of remand in a youth training centre. He had embarked on a number of programs which had benefitted him and he was pursuing his education. There was nothing in the material to suggest that his presence as an adult would be disruptive or counter-productive in terms of other youths at the training centre. This was a case where there appeared to be good reason to allow the apparent progress being made by T in the training centre to continue. I do not think that an assessment that T’s insight into his offending was limited, valid though that may have been, pointed to a decision to send him to an adult prison.
Therefore, apart from allowing the appeal of T for the purpose of the order already made on 18 February 2010, I would dismiss the appeal. I would dismiss the appeal of S.