R v N & P No. Sccrm-97-283, Sccrm-97-304 Judgment No. S6565

[1998] SASC 6565

R v N & P

Court of Criminal Appeal
Coram:  Doyle CJ, Olsson and Williams JJ

Doyle CJ

The Court has before it two appeals against sentence.

Each appellant has pleaded guilty to a charge of assault occasioning actual bodily harm.  The maximum penalty for that offence is five years’ imprisonment.

Each appellant was sentenced by a Judge of the Supreme Court to imprisonment for 18 months.  But for the plea of guilty, the sentence would have been imprisonment for 24 months.  A non parole period of 12 months was fixed in relation to each appellant.  The Judge declined to suspend the sentence.

Each appellant was a youth for the purposes of the Young Offenders Act ("the Act"). The appellant N was 15 years of age at the time of the offence, and 17 years of age when he came before the Court. The appellant P was 17 years of age at the time of the offence, and 18 years of age when before the Court.

The charges were laid before the Youth Court. Acting under section 17(3)(c) of the Act, the Judge ordered that each appellant be dealt with in the same way as an adult. The Court did so, in the words of the provision, "because of the gravity of the offence." By that the Judge meant the gravity of the circumstances of the particular offence, not just the gravity of the offence in the abstract. On appeal it was submitted that this decision was wrong.

Having heard submissions, the Judge decided, pursuant to section 29(1) of the Act, that he should deal with the appellants as adults. It is submitted that that was wrong.

Finally, it is submitted that the sentences imposed were, in any event, excessive.

I can be brief about the facts.  The appellants were in a group of young people who were roaming the streets of an Adelaide suburb in the early hours of one morning.  Some of them were affected by alcohol.  P was one of those affected, although not to the extent of not knowing what he was doing.  N was not said to be affected.

There was a confrontation in an hotel car park with three men, including Mr Heidt ("Heidt").  On the material before the Judge, Heidt provoked this confrontation.  He was seriously affected by alcohol.  He behaved badly, including some acts of indecency towards some young women who were in the group which I will refer to as "the younger group".

Everyone left the car park.  The younger group walked off along a path.

Heidt was driving a motor car, despite his state.  It is clear that he intended to continue the confrontation.  He drove to a place, not far away, where he expected to find the younger group, as he did.  His two companions were with him.

Heidt then confronted the younger group again.  It seems that members of the younger group threw rocks at him and his friends.  One of the rocks hit Heidt, causing an injury, and he became more aggressive.  He had a baseball bat.  He was clearly looking for a fight.  Heidt laid hold of N, and grappled with him, but N broke free.  The rest of the younger group then joined the fray.

Heidt was struck and pushed to the ground, being kicked by various people, and hit with branches and sticks.

N pleaded guilty on the basis that, in the course of this, he kicked Heidt twice.  P pleaded guilty also on the basis that he kicked Heidt twice.  The kicks were delivered while Heidt was on the ground, and while he was being kicked and struck by others in the younger group.  None of the kicks caused Heidt any serious harm.  The plea on this basis was accepted by the prosecutor.  It seems that N and P took flight quite early in the incident.  Another member of their group stabbed Heidt, causing his death.  N and P were not involved at all in the stabbing.  They had no reason to expect it to happen.  They had no knowledge that a knife was at the scene.  The person who stabbed Heidt pleaded guilty to manslaughter on the basis of an unlawful and dangerous act.

The attack on Heidt was described by counsel for the DPP as "mob violence."  That is not a particularly informative description.  What is clear is that, although Heidt provoked the incident, the younger group attacked him in sufficient numbers for him to have no real chance of defending himself.  It is also clear that N and P could easily have retreated.  They were not cornered, or in any sense forced to fight with Heidt.  They assaulted Heidt while he was on the ground.

N and P were originally charged with murder, but in due course the prosecutor accepted a plea to a lesser charge.  The plea of guilty was accepted on the basis that neither N nor P was in any way implicated in Heidt’s death.

N has a record that includes about fourteen prior offences, mostly minor, but the record is a poor one.  P has a similar record.  Neither of them has previously committed any crime of violence.  It is clear from what I have said that the offence was not pre-meditated or planned.

N lived with his father, his parents being separated.  His father had been supportive in the past, and remained so.  N was making reasonable progress with his schooling.  The Judge accepted that N was genuinely remorseful, and that the murder charge had caused him great anxiety.  N had been in custody for about 10 ½ months.  I repeat that he was 15 years of age at the time of the offence.

P also was genuinely remorseful, as the Judge found.  He had been on home detention.  His parents were separated, and he lived with his mother.  He had had some work since completing his schooling, but was on unemployment benefits at the time of the offence, and had been for some time.  Since then, he had resumed some studies while on home detention.  There were some signs of a more mature approach to life.

As is well known, the Act establishes a special regime for young offenders. There is a special regime procedurally. Young offenders are dealt with usually by the Youth Court. There is a special regime substantively. The sentencing of young offenders is not dealt with in the same way as is the sentencing of adults. In particular, the Youth Court does not sentence a youth to imprisonment, but to detention in a training centre. The maximum period of detention is three years; section 23(2). The decision made by the Judge meant that the case of N and P was taken outside the limited powers of the Youth Court.

It is necessary to bear in mind the object of the Act. The object of the Act is to secure for young offenders the "... care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential:" section 3(1).

Powers under the Act are to be exercised on that basis, and with regard to certain specific statutory policies. They include making a youth "aware of his or her obligations under the law and of the consequences of breach of the law", and protection of the community against "violent or wrongful acts": section 3(2). In punishing a youth for illegal conduct, the Court ordinarily has regard only to the deterrent effect on the youth in question, and not to general deterrence. The deterrent effect of the punishment on other youths may be considered if a youth is dealt with as an adult: section 3(2a).

It follows that the sentencing of a youth proceeds on principles established by the Act. These principles are not the same as those that apply to an adult. The principles established by the Act apply even if a youth is sentenced as an adult.

The decision made under section 17(3) of the Act

Section 17(3) of the Act provides as follows:-

"17.(3)       If -

(a)     the offence with which the youth is charged is a homicide, or an offence consisting of an attempt to commit, or assault with intent to commit homicide;  or

(b)     the offence with which the youth is charged is an indictable offence and the youth, after obtaining independent legal advice, asks to be dealt with in the same way as an adult;  or

(c)     the Court or the Supreme Court determines, on the application of the Director of Public Prosecutions or a police prosecutor, that the youth should be dealt with in the same way as an adult because of the gravity of the offence, or because the offence is part of a pattern of repeated offending,

the Court will conduct a preliminary examination of the charge, and may commit the youth for trial or sentence (as the case requires) to the Supreme Court or the District Court."

It can be seen that it is a provision that results in a charge being dealt with by the Supreme Court or the District Court, instead of by the Youth Court.

The removal of a case to either of these courts has two results. First, the Supreme Court or District Court will conduct a trial, if one ensues, in the usual fashion for those courts. The Youth Court, on the other hand, conducts trials in the same way as the Magistrates Court conducts the trial of a summary offence: section 18. Secondly, the Supreme Court or District Court has the power to sentence a youth as an adult: section 29(1)(a). The court is not required to do so. Alternatively, it may make any order that can be made by the Youth Court, or it may remand the youth to the Youth Court for sentencing: section 29(1)(b) and (c).

It follows that the significance of a decision under section 17(3) is that it alters the procedure to be followed in the event of a trial, and makes it possible for a youth to be sentenced as an adult if found guilty.

An order will be made under section 17(3)(c) at an early stage of proceedings. Because a consequence of the making of an order is the conduct of a preliminary examination by the Youth Court, an order will therefore be made on the basis of limited information. There will not yet have been a preliminary examination. I would expect that usually an order would be made on the basis of some or all of the material on which a committal would proceed. The amount and nature of the material provided to the court will obviously depend upon the circumstances, and the material might be quite limited. The judge will decide how much material is required.

In my opinion, the Judge was required to consider more than where the offence charged stands in the scale of criminality.  He was also obliged to consider the circumstances of the offences alleged by the prosecution.  The gravity of an offence requires consideration of both matters.

One purpose of the provision, in my opinion, is to enable the Supreme Court to decide that, because it might be appropriate to sentence a youth as an adult should the youth be convicted, the matter should be tried and punished in the Supreme Court or District Court.  Oddly enough, the potential complexity of a matter is irrelevant to the decision to be made.

I will deal later with the question of when it is in fact appropriate to sentence a youth as an adult.

The nature of the decision to be made, and the fact that it is to be made at an early stage of proceedings, when all the facts cannot be known by the court, indicate that the decision is not to be made on the basis of a prediction of the sentence that will actually be imposed, or on the basis of a close analysis of the facts.  I consider that it suffices, for the making of an order, that the court is satisfied that in the event of a conviction it might be appropriate for the court to sentence the youth as an adult.  To put it a little differently, it is sufficient that there is a reasonable prospect that it will be appropriate to sentence the youth as an adult, in the event of the youth being convicted.  And, as I have already said, that decision can be made on relatively limited information.

In my opinion, the Judge did not err in the decision that he made.  An attack by a group of people, such as happened on this night, is a serious offence, and makes the offence of N and P more serious than it would have been had each of them acted alone but inflicted the same harm.  I consider that it was open to the Judge to decide that the offences should be dealt with in the Supreme Court, so that the Court would have available to it the wider powers of that Court.  By doing what the Judge did, he gave himself the opportunity to deal with N and P as adults, although he was not obliged to do so.

The decision under section 29(1) of the Act

Section 29 provides as follows:-
"29.(1)       Subject to this Act, where a youth is committed to the Supreme Court or the District Court for trial, and is found guilty on trial in that court, or is committed to the Supreme Court or the District Court for sentence, that court, on sentencing the youth, may -

(a)     deal with the youth as an adult;  or

(b)     make any order in relation to the youth that may be made by the Youth Court on sentencing a youth;  or

(c)     remand the youth to the Youth Court for sentencing.

1. If a youth is found guilty by the Supreme Court or the District Court of an offence that is a lesser offence than the one which the youth was committed for trial, the court cannot deal with the youth for that offence as if he or she were an adult unless -

(a)     the offence is an indictable (but not minor indictable) offence;  and

(b)     the court is satisfied that, because of the gravity of the offence or the youth’s history of offending, the youth should be dealt with as if he or she were an adult.

1. If a youth is committed for trial or sentence in the Supreme Court or the District Court at his or her own request, the court cannot deal with the youth for the offence as if he or she were an adult unless the court is satisfied that, because of the gravity of the offence or the youth’s history of offending, the youth should be dealt with as if he or she were an adult.

1. A youth who is found guilty of murder must be sentenced to imprisonment for life."

The appellants fell to be dealt with under section 29(1). That subsection gives no indication of the basis upon which the court should decide which course of action it should follow. In this respect, a contrast can be drawn with subsections (2) and (3).

It is unlikely that Parliament intended a different approach to be taken under subsection (1). In my opinion, a decision to sentence a youth as an adult under subsection (1) is to be based upon the gravity of the offence or the youth’s history of offending.

That provokes a further question.  When will a consideration of either of those matters lead to the conclusion that a youth should be sentenced as an adult?

If a youth is sentenced as an adult, certain results follow. The youth is sentenced in the Supreme Court or District Court, with the added formality that that entails. That will have an effect on some offenders. The youth will be sentenced in a court which is open to the public, unlike the Youth Court, although the restrictions on the reporting of proceedings contained in section 25 of the Youth Court Act will still apply. A sentence of imprisonment may be imposed, as distinct from a sentence to detention. However, in this respect, the difference is not a great one, because a sentence of imprisonment imposed upon a youth is in any event served in a training centre, unless the court directs otherwise: section 36(1). As well, whether sentenced to detention or to imprisonment, once a youth turns 18 years of age the youth can be transferred to a prison: section 36(2) and section 39(2). More significantly, the Youth Court cannot sentence a youth to detention for a period exceeding three years: section 23(2). There is no such limit if a youth is sentenced as an adult. Finally, if a youth is sentenced as an adult, the court can have regard to the deterrent effect that any proposed sanction may have on other youths: section 3(2a)(b). Unless a youth is sentenced as an adult, deterrence of others is not a factor in the sentencing process.

However, it is desirable to repeat here that, even if a youth is sentenced as an adult, the court is to exercise its powers in the light of the objects and statutory policies found in section 3 of the Act.

All of that indicates, in my opinion, that a court will sentence a youth as an adult when, bearing in mind the gravity of the offence or the history of the youth’s offending, the statutory objects and policies will best be achieved by sentencing the youth as an adult.  The court might conclude that they will best be achieved through the impact of the more formal procedures of the Supreme Court or the District Court, or because the case is one that will require imprisonment for more than three years, or because the case may be one of those rare cases in which the youth should serve the whole of the sentence in a prison.  The fact that a youth is getting close to 18 years of age might also be a factor.  In my opinion, it is not the case that a youth will be sentenced as an adult only when a sentence of more than three years’ imprisonment is to be imposed.  As I have indicated, there may be other reasons for sentencing a youth as an adult.

It is not simply a matter of sentencing a youth as an adult to enable the court to impose a heavier sentence than the Youth Court could impose, although often that will be the consequence of the decision to sentence a youth as an adult.  Nor is it simply a matter of sentencing a youth as an adult to enable the court to take account of deterrence of other youths, although that will be a consequence of the decision.  Nor is it simply a matter of saying that an offence is a relatively serious one, and therefore the youth should be sentenced as an adult, although once again a decision to sentence as an adult will often be because of the seriousness of the offence.  As I have already said, it is a matter of deciding that, in the light of the seriousness of the offence or of the history of offending, the implementation of the statutory objects and policies requires that the court sentence the youth as an adult.

I consider that it was open to His Honour to conclude, as he did, that the gravity of the offence in this case was such that, to achieve the statutory objects and policies, each of the appellants should be sentenced as an adult.  It was open to him to conclude, in the light of the seriousness of the offence, that the more formal procedures of a higher court should be followed.  It was open to His Honour to conclude that in this way the appellants were more likely to be made aware of their obligations under the law and of the consequences of breach of the law.  His Honour was also entitled to take into account the fact that neither appellant was a young child.  The fact that each of them was not far from adulthood could be a reason for treating them as adults.

Although His Honour did not expressly refer to the matter in this context, he was also entitled to take into account the fact that each of the appellants had a record that included a number of offences and that there was reason to think that penalties previously imposed by the Youth Court had not brought home to either appellant his obligations under the law, and the consequences of breach of the law.  This factor tends to overlap with the first factor mentioned by me.  It was also open to His Honour to conclude, from the appellants’ records, that something more than a sentence of detention was required adequately to protect the community against wrongful acts committed by the appellants.

For those reasons, although His Honour did not spell out in any detail his reasons for sentencing the appellants as adults, I consider that no error has been shown in the decision that His Honour made in that respect.

I should add that the discretion to be exercised under section 29 is a broad one.  It will not be often that it will be interfered with on appeal.  I would not wish what I have just said to be taken as definitive of its scope, or as exhaustive of the factors that might be relevant to its exercise.

However, in my opinion, the sentences that His Honour imposed on the appellants were excessive.  It was, of course, appropriate for His Honour to have regard to the need to deter other youths from offending.  But, in my opinion, His Honour could not have given sufficient weight to the fact that the appellants were respectively 15 years and 17 years of age when the offences were committed.  They were, after all, still relatively young.  I consider that he must also have failed to give adequate weight to the fact that the appellant N had not, at the time of the offence, behaviourly been deprived of his liberty (although he subsequently served 24 days’ detention for breach of a bond) and that the appellant P had previously been deprived of his liberty for only two days by way of detention.  Bearing in mind the relative youth of each of the appellants, the fact that this was the first offence of violence that either had committed, the fact that the injuries inflicted were not severe, and the importance to be attributed to rehabilitation in the case of young offenders, I consider that the sentence that His Honour imposed cannot be justified.

I would set aside the sentences imposed by His Honour.

Despite the difference in age, I would not differentiate in any way between N and P.  Their conduct provides no basis for any differentiation.  In some cases the difference in age will itself provide a basis for differentiation.  However, there is no indication of any marked difference in maturity as between N and P, and in my opinion, this was the sort of case in which one can say that each of them was equally able to understand that what he did was seriously wrong.  Nor can I find any other aspect of the offence which causes me to say that the difference in age should be reflected in a difference in culpability.

In my opinion an appropriate sentence in each case is a sentence of imprisonment for a period of 12 months.  In each case I would fix a non-parole period of 6 months.  Like the Judge, in the case of N, I would direct that the non-parole period and head sentence commence from 17 December 1996.  In the case of P, I would direct that the head sentence and non-parole period commence from 1 June 1997.

For those reasons, I would allow the appeal and substitute the sentences referred to by me.

Olsson J

I have had the advantage of reading, in draft, the reasons published by the Chief Justice in this matter.

I agree both with the substance of those reasons and also the order which he proposes.

For myself, I would only wish to stress that, although the actual physical effect of the assaults perpetrated by the appellants upon the victim  paled somewhat into relative insignificance when contrasted with the separate fatal injuries inflicted by a co-offender, this was, nevertheless, a very serious offence.

The gravamen of it lay in the fact that, even although the victim provoked the overall incident, he was ultimately set upon by a group of assailants, of which the appellants were two.  Realistically, the victim was no match for the sheer weight of numbers arrayed against him and was rapidly felled to the ground.  Whilst he remained prostrate and unable to defend himself the accused joined in inflicting punishment on him by administering heavy kicks to his body.

Such conduct is  inherently very serious and, unfortunately, by no means uncommon in cases coming before the criminal court.  Conduct of that type must firmly be repressed, to the extent that the courts  can prevent it.  The gravity of it clearly warranted both the disposal of the matter in this court and also the ultimate sentencing of the appellants as adults.  It was important that a sentence be imposed that indicated to other youths that assaults of this nature will not be tolerated and will inevitably lead to significant penal consequences.

Williams J

I agree with the order proposed by the Chief Justice for the reasons which he has given.