R v P, A

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v P, A; P, A v POLICE
[2013] SASCFC 3
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
7 February 2013
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentences imposed in the Youth Court and the District Court – the appellant committed several offences as a young offender – in the Youth Court, after pleading guilty to the offences charged, the appellant was declared a recidivist young offender and sentenced to a term of detention of 21 months – added to this was a term of three months detention that remained from an earlier order of detention – in the District Court, the appellant pleaded not guilty – he was convicted on 28 September 2011, but was not sentenced until 28 June 2012 which was two days after he had completed his 24 month term of detention pursuant to the order of the Youth Court Judge – the appellant was sentenced to six years imprisonment with a non-parole period of four years.
Whether the appellant should be granted an extension of time to appeal against the sentence imposed in the Youth Court – whether it was appropriate for the Youth Court Judge to make a declaration that the appellant was a recidivist young offender – whether the sentences imposed in the Youth Court and District Court were manifestly excessive – in particular, whether the sentences were manifestly excessive as a consequence of the appellant being sentenced by two different judicial officers.
Held per the Court: The appellant should have been sentenced in one court in respect of all offences.
Held per Gray and White JJ (Vanstone J dissenting on this point): Extension of time to appeal to the Youth Court granted.
Held per Gray and Vanstone JJ: Appeal against the orders of the Youth Court Judge dismissed.
Held per White J (dissenting on this point): Appeal against the Youth Court sentence allowed in part to set aside the declaration that the appellant is a recidivist young offender.
Held per Gray and White JJ (Vanstone J dissenting on this point): Appeal against the sentence imposed in the District Court allowed – the totality of the sentence imposed was crushing – sentence imposed by the District Court set aside – appellant resentenced.
Criminal Law Consolidation Act 1935 (SA) s 19AC, s 20, s 86A, s 134, s 137, s 144, s 169 and s 170; Criminal Law (Sentencing) Act 1988 (SA) s 3, s 18A, s 20A, s 20B, s 20C, s 23, s 31A and s 58; Summary Offences Act 1953 (SA) s 74AB; Young Offenders Act 1993 (SA) s 3, s 4, s 29, s 32 and s 63, referred to.
R v Ainsworth (2008) 100 SASR 238; R v McGaffin [2010] SASCFC 22; R v A, D (2011) 109 SASR 197; R v Saunders [2011] SASCFC 37; Police v Warren [2000] SASC 285; R v Weaver (1973) 6 SASR 265; R v McGaffin [2010] SASCFC 22; R v Van Der Horst [2006] SASC 243, considered.

R v P, A; P, A v POLICE
[2013] SASCFC 3
Court of Criminal Appeal: Gray, Vanstone, White JJ
GRAY J.

The defendant and appellant, P, A, committed several offences as a young offender.
The defendant pleaded guilty before a Judge of the Youth Court to offending which occurred late at night on 12 and 26 June 2010 and in the early hours of the following morning. He also pleaded guilty to the offence of assault committed at Cavan on 7 December 2010. The police made application that the defendant be declared a recidivist young offender, relying in particular on offending that occurred in May 2009 as well as the offending on 12 and 26 June 2010. On 11 November 2011, the Judge of the Youth Court made an order that the defendant be declared a recidivist young offender. The Judge sentenced the defendant to a term of detention of 21 months. To this was added a term of three months detention that remained outstanding from an earlier order of detention. As a consequence, the defendant faced a total term of detention of 24 months. As the defendant had been declared a recidivist young offender, he was entitled to early release only after he had served four-fifths of the detention order.
The defendant pleaded not guilty to the alleged offending said to have occurred on 21 June 2010. The defendant’s trial was heard before a Judge and jury in the District Court, the proceedings having been referred to that Court. The defendant was convicted on 28 September 2011. However, the defendant was not sentenced by the District Court Judge until 28 June 2012, two days after he had completed his 24 month term of detention pursuant to the order of the Youth Court Judge. The defendant was sentenced to a head sentence of six years imprisonment with a non-parole period of four years.
The defendant’s complaint on appeal was that the consequence of being sentenced by the two different judicial officers resulted in sentences that were manifestly excessive. It was the defendant’s submission that as a young offender, aged 17 years, he had engaged in a course of criminal conduct involving similar offending on 12, 21 and 26 June 2010. It was suggested that it was desirable that he be sentenced by the one judicial officer in respect of all offending. It was said that either the Judge of the Youth Court should have referred the offending on 12 and 26 June 2010 to the District Court Judge, or alternatively, following conviction, the District Court Judge should have referred the offending of 21 June 2010 to the Youth Court Judge.[1] Had this occurred, it was said that the judicial officer hearing all matters could have considered acting pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed a single penalty for the entire course of similar criminal offending.
[1] The Youth Court Judge holds a commission as a District Court Judge.
As a consequence of the procedures followed, it appears that the defendant spent two years in youth detention without any form of early release. As noted above, he was then subject to a further head sentence of six years with a non-parole period of four years. This may be broadly equated to a total immediate head sentence of eight years, with a non-parole period of six years. It was argued that to impose such a penalty on a 17 year old in the circumstances was manifestly excessive.
The defendant lodged appeals against the sentence imposed by the Youth Court Judge and the recidivist young offender order. The defendant also lodged an appeal against the sentence imposed by the District Court Judge.
Before turning to discuss the two appeals, it should be noted that the defendant was represented throughout. He made an application to the Youth Court Judge that the matters before him be referred to the District Court Judge for sentence. The District Court Judge was invited to refer the matter in the District Court to the Youth Court Judge for sentencing. In other words, the defendant sought to be sentenced in respect of the course of criminal conduct by the one judicial officer. Counsel appearing for the police and the Director agreed that such a course would have been desirable.
The Offending Conduct
Youth Court Proceedings
The defendant was charged that on 12 and 13 June 2010 at Parafield Gardens, he used a motor vehicle without first obtaining the consent of the owner,[2] knowing that payment was required for petrol to the value of $60.22 he dishonestly made off intending to avoid payment,[3] he interfered with a motor vehicle without first obtaining consent of the owner,[4] he entered a non-residential building as a trespasser with the intention of committing an offence being an aggravated offence because the offence was committed in company with one or more other persons[5] and he committed theft by taking alcohol, soft drinks and cigarettes to the value of $1,350.00 dishonestly and without the owner’s consent with the intention of permanently depriving the owner of the property.[6]
[2] Contrary to section 86A of the Criminal Law Consolidation Act 1935 (SA).
[3] Contrary to section 144(1) of the Criminal Law Consolidation Act 1935 (SA).
[4] Contrary to section 86A of the Criminal Law Consolidation Act 1935 (SA).
[5] Contrary to section 169(1) of the Criminal Law Consolidation Act 1935 (SA).
[6] Contrary to section 134(1) of the Criminal Law Consolidation Act 1935 (SA).
The offending on 26 and 27 June 2010 involved using a motor vehicle without first obtaining the consent of the owner;[7] entering a place of residence as a trespasser with the intention of committing the offence of theft, the offence being aggravated as a person was present in the place of residence and the offence was committed when the defendant knew of the person’s presence;[8] and driving a motor vehicle in a culpably negligent manner or recklessly or with speed or in a manner dangerous to the public, being an aggravated offence as the conduct was done with the intention of escaping pursuit by a police officer and driving with a speed in excess of 140 kilometres per hour in a 60 kilometres per hour zone.[9]
[7] Contrary to section 86A of the Criminal Law Consolidation Act 1935 (SA).
[8] Contrary to section 170(1) of the Criminal Law Consolidation Act 1935 (SA).
[9] Contrary to section 19AC(1) of the Criminal Law Consolidation Act 1935 (SA).
The police prosecutor outlined that the defendant in company of others stole a motor vehicle, obtained petrol without paying, illegally interfered with another motor vehicle, entered Liquorland at Parafield Gardens and stole alcohol. The defendant and others then drove to a private home at Somerton Park at a time when the elderly occupant was present. The occupant heard a downstairs door banging, went to investigate and saw three boys approach from the outside yard. When they demanded money, he told them to go away, but the boys entered his premises demanding money. At or about this time, the occupant’s son arrived in a taxi and the boys ran away, jumping a side wall and fleeing in a motor vehicle.
The defendant was also charged that on 7 December 2010, he committed the offence of assault, being an aggravated offence as he used or threatened to use an offensive weapon.[10] This offence was committed while the defendant was in detention at Cavan.
[10] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA).
District Court Proceedings
In the District Court, the defendant was found guilty of the offence of aggravated serious criminal trespass in a non-residential building committed on 21 June 2010 at the premises of the Waterloo Station Hotel and committed in the company of others;[11] theft on the same occasion of property of the Waterloo Station Hotel of the value of about $891.15;[12] the offence of aggravated serious criminal trespass in a non-residential building committed on 21 June 2010 at the premises of the Midway Tavern;[13] and on the same occasion, armed robbery in order to commit the theft of approximately $7,000.00, in circumstances where the offence was committed in the company of others and in circumstances where the defendant threatened to use a knife, an offensive weapon.[14]
[11] Contrary to section 169(1) of the Criminal Law Consolidation Act 1935 (SA).
[12] Contrary to section 134 of the Criminal Law Consolidation Act 1935 (SA).
[13] Contrary to section 169(1) of the Criminal Law Consolidation Act 1935 (SA).
[14] Contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA).
The District Court Judge, when sentencing, identified the events of 21 June 2010 as comprising an ongoing course of criminal conduct. With the same associates, making use of a stolen car, the defendant broke into the gaming room of the Waterloo Station Hotel. The defendant was seen to be carrying two knives. The Hotel was closed at the time. Later the same morning, the defendant and his associates entered the Midway Tavern. There were staff members present. The defendant was armed with a knife. One of his associates was armed with a Club lock and the other, a screw driver. The defendant threatened the security guard with death if he did not cooperate. The theft then occurred. The defendant and his associates shared the proceeds, discarded the disguises they were wearing and abandoned the motor vehicle. The defendant falsely claimed that his housemate was responsible.
This was an appropriate case for the defendant’s criminal culpability to be assessed having regard to that entire course of conduct. This was criminal conduct in respect of which it was appropriate to fix a single sentence by a District Court Judge, treating the defendant as an adult and having regard to the relevant provisions of the Young Offenders Act 1993 (SA).
Antecedents
The defendant was born on 4 February 1993. He is from an indigenous family. He attended several primary schools and finished his schooling during the early years of secondary school. He has a very limited employment history with his only serious work being with his father in a demolition business. He has a history of experimentation with illicit drugs, including cannabis, methylamphetamine, LSD and ecstasy. He also used alcohol. The defendant has a long criminal history with many attendances in the Youth Court. A reporting psychologist described these as “behavioural type of offences”, including trespass, theft and driving matters. Apparently the defendant initially thought that crime was fun and that he wanted to be “locked up”.
In June 2010, the defendant was using methylamphetamines and, on his account, the subject offending occurred while he was under the influence of that illicit substance. He claimed that peer group pressure was a major factor in relation to his conduct. The reviewing psychologist, Dr Cayley, reviewed psychological reports from Mr Broomhall, Ms Manshe and Ms Hackett, as well as reports from Ms Frick and Ms Hannah from Families SA.
The effect of these reports was that the defendant was in the low average range of intelligence. His verbal abilities were toward the upper limit of the borderline range and his non-verbal abilities were toward the lower limit of the average range. The psychological reviewers agreed that the defendant met the relevant diagnostic criteria for conduct disorder, adolescent onset type, amphetamine abuse and an impulse control disorder, not otherwise specified. The opinion of the reviewers was that practical support by way of stable accommodation and engagement in employment with therapeutic intervention was appropriate. A referral for psychiatric assessment in order to assess the appropriateness of pharmacological intervention was suggested. It was considered that the defendant was able to display greater insight into the offending behaviour than at earlier times in his adolescence. It was considered that therapeutic intervention involving offence cycle mapping would be appropriate. Generally, the reviewers considered that the defendant did have prospects of rehabilitation but would require extensive support and intensive intervention over an extended period. It was anticipated that because of the defendant’s youth, he was likely to make further errors of judgment.
The Youth Court Recidivist Young Offender Order
The Youth Court Judge, as noted above, declared the defendant a recidivist young offender. He provided the following reasons:
It is necessary with the conviction on that matter being recorded to consider the application for a declaration that you be declared a recidivist offender. To that application one should add the most recent matter to which you have pleaded, that is the assault at Cavan, also an offence of violence.
In your case I do not have any hesitation whatsoever in firstly deciding that you are liable to be declared a recidivist offender and in your case I have no hesitation at all in declaring that you are a recidivist offender. It is appropriate that that declaration be made given your history and given the fact that on multiple occasions you failed to follow correctly the orders of the court and engage in further criminal offending.
Section 20C of the Sentencing Act relevantly provides:
(1)A youth is liable to be declared a recidivist young offender if the following conditions apply:
(a)     the youth—
(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and
(ii)     has been convicted of those offences; or
…
(2)If a court convicts a youth of a serious offence, and the youth is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a recidivist young offender, the court—
(a)     must consider whether to make such a declaration; and
(b)     if of the opinion that the youth's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.
(3)If a court convicts a youth of a serious offence, and the youth is declared (or has previously been declared) to be a recidivist young offender—
(a) the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence (but, in the case of the Youth Court, the limitations relating to a sentence of detention under section 23 of the Young Offenders Act 1993 apply to the sentence that may be imposed by the Youth Court on the recidivist young offender); and
(b)     any non parole period fixed in relation to the sentence must be at least four fifths the length of the sentence.
The making of a recidivist young offender order is a serious matter. It allows a sentencing Judge to impose a disproportionate penalty. It is an order that should only be made when the statutory conditions relating to the making of an order are strictly complied with. One of the consequences of making an order is to limit a non-parole period to four-fifths of the head sentence. It is to be understood that such a sentence may not adequately address the young offender’s prospects for rehabilitation.
The Youth Court Judge in the present proceeding was in a position to make a finding that the defendant had committed, on at least three separate occasions, an offence to which the relevant Division applied and further that he had been convicted on his pleas of those offences. As a consequence, the Judge’s discretion to make a declaration that the defendant was a recidivist young offender was enlivened. The Judge, pursuant to section 20C(2), was obliged to consider whether to make such a declaration. In that process, if the Judge formed the opinion that the youth’s history of offending warranted a particularly severe sentence in order to protect the community, he should make such a declaration.
The earlier extracted remarks demonstrate that the Judge had regard to the relevant provisions of section 20C.[15] Plainly the Judge had in mind the need to protect the community when he noted that the defendant had failed to follow earlier orders of the Court and notwithstanding those orders, had engaged in further criminal offending. When fixing a penalty, the Judge remarked:
… The appropriate course in my view is to fix one penalty for all of these matters. In doing so I note that you have been in custody since 27 June last year. In your matter I would fix that penalty, even having regard to your pleas of guilty here, at 21 months. To that should be added the three months that you owe on the blended order. As a result, even taking into account your pleas of guilty and reducing the sentence as a result I would fix a head sentence of 24 months to run from 27 June last year. If it were not for your plea of guilty I would have imposed a sentence of 30 months. I repeat 24 months to run from 27 June last year. I make the declaration that is sought in the application. Thank you.
These remarks make it clear that the Judge was imposing a particularly severe sentence. The reduction for the pleas of guilty approximated a reduction of only one-eighth. The sentence was close to the maximum that could be imposed. It was to be served in addition to the period of three months still to be served in regard to prior offending. I infer that the Judge saw the need to impose a disproportionate sentence to protect the community.
[15] For discussion of the legislative history of Division 2A of the Criminal Law (Sentencing) Act 1988 (SA), which includes section 20C, see footnote 22 in R v Saunders [2011] SASCFC 37.

Given the defendant’s criminal antecedents, it cannot be said that the sentence imposed by the Judge was manifestly excessive. No error was identified.
The defendant’s appeal was more than a year out of time.[16] The explanation for the delay related primarily to difficulties with funding. In the case of a young offender, the Court should be slow to refuse an extension of time, particularly when the youth has been sentenced to a lengthy period of imprisonment. It transpires that the two year detention order had been served. However, the review of the recidivist young offender order and the complications arising in regard to the District Court appeal, in my view, warrant an extension of time. As it is apparent from my later reasons, I consider the totality of the sentences imposed is such as to be crushing. In the event, it is convenient to address this concern through the appeal against the sentence imposed in the District Court proceeding.
[16] For a discussion of the rules which guide the court in considering an application to extend time, see Police v Warren [2000] SASC 285, [16].
The District Court Sentence
As earlier noted, the District Court Judge did not sentence the defendant until the two year detention order imposed by the Youth Court Judge had expired. This involved a delay of many months in sentencing. No explanation has been offered for the delay. The overwhelming inference to be drawn is that the delay was occasioned to enable the Youth Court order to expire. I would draw this inference having regard to the proximity of the sentencing in the District Court to the expiration of the detention order being a period of no more than two days. As a consequence, the District Court Judge was not called on to consider totality, concurrency or partial concurrency.
There was good reason for the defendant to be sentenced by the one judicial officer. This would have allowed issues of totality, concurrency and partial concurrency to be considered and addressed. There is good reason for the defendant to be sentenced promptly following the jury verdicts of guilty. Had that occurred, even though sentencing was conducted by a different judicial officer, issues of totality, concurrency and partial concurrency could have been addressed.
To sentence an offender aged 17 years at the time of offending to an immediate term of imprisonment of effectively eight years with an effective non-parole period of six years is, to my mind, a truly crushing sentence. There are grounds for this Court to interfere. The policy of the law is to assist the young offender in rehabilitation.[17] In Weaver, Bray CJ, Mitchell and Sangster JJ in a judgment of the Court observed:[18]
Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence. …
General deterrence is not a consideration when sentencing a young offender. The focus is on the sentence that will enhance the prospects of a young offender returning to the community as a law abiding member.
[17] See, R v Weaver (1973) 6 SASR 265, 267; R v McGaffin [2010] SASCFC 22, [69]; R v Van Der Horst [2006] SASC 243, [24]-[32].
[18] R v Weaver (1973) 6 SASR 265, 267.
The District Court Judge in his sentencing remarks noted that the defendant had made considerable advances towards rehabilitation while in custody. The District Court Judge declined to make a serious repeat offender order pursuant to section 20B of the Sentencing Act. There has been no appeal in respect of this refusal. The defendant has prospects of rehabilitation. A crushing sentence should not have been imposed. It is too late, however, to make any adjustment to the Youth Court sentence. Any adjustment to be made should be to the District Court sentence.
I would set aside the sentence imposed by the District Court. In lieu, I would sentence the defendant to a term of imprisonment of four years. I would fix a non-parole period of 18 months. I would backdate the sentence to commence on 26 June 2012.
Conclusion
I have had the opportunity to review the draft reasons of the other members of the Court. Vanstone J would dismiss the appeal from the sentence imposed in the District Court. White J would allow this appeal, resentence the defendant to a term of imprisonment of four years and fix a non-parole period of two years. As indicated above, I would allow the appeal from the sentence imposed in the District Court, resentence the defendant to a term of imprisonment of four years and fix a non-parole period of 18 months.
It is necessary for this Court to reach a majority conclusion as to the sentence to be imposed on the defendant in respect of the District Court proceedings. The majority conclusion is that a non-parole period of at least two years should be imposed. In the circumstances, to allow the majority view to be given effect to, I would concur in the making of an order in the following terms. The appeal against the sentence imposed in the District Court be allowed and the sentence imposed set aside. The defendant be resentenced to a term of imprisonment of four years. A non-parole period of two years be fixed. The sentence to commence on 26 June 2012.
The appeal against the orders of the Youth Court Judge should be dismissed.
VANSTONE J: The detail of the course of offending engaged in by the appellant is set out in considerable detail in the reasons of Gray J and White J, as is the passage of the charges through the Youth Court and District Court. I need not rehearse those details. They serve to underline both how serious was the appellant’s conduct and what a difficult task befell both sentencing judges.
I agree with both Gray J and White J that it would have been better had one judge sentenced the appellant for all the offences. That would best have occurred in the District Court. However, I am not persuaded that either judge fell into error.
In respect of the Youth Court sentence I agree with Gray J that due to the passage of time since the sentence it is now not appropriate to entertain an appeal.
In relation to the District Court sentence it is to be noted that the sentencing judge, an experienced judge of that Court, had before him all the material now before this Court. In addition he had the benefit of having presided over the appellant’s trial. There is no reason to apprehend that the judge overlooked the appellant’s youth, the reports before the Court bearing on the appellant’s background and prospects, or the fact that the appellant had already served a significant period in detention as a result of the Youth Court sentence. There is no reason to believe that the judge was unaware of the high proportion that the total time in custody would bear to the total of the head sentences imposed. That high proportion is explicable having regard to the shocking nature of the offending, the need to protect the public, the appellant’s poor and escalating criminal record, his breach of the suspended detention order and the limited remorse shown by him.
It may be accepted that the sentence imposed by the judge, viewed as it needed to be against the appellant’s service of the term of detention imposed in the Youth Court, was a heavy penalty for such a young person. I am unable to say, though, that it is manifestly excessive.
I would refuse leave to appeal against the Youth Court sentence and I would dismiss the appeal against the District Court sentence.
WHITE J: In a 16 day period in June 2010, the appellant (then aged 17 years and 4 months) committed 13 offences. He was sentenced in the Youth Court for nine of those offences and in the District Court for the remaining four.
As part of his sentence, the Judge in the Youth Court made a declaration under s 20C of the Criminal Law (Sentencing) Act 1988 (SA) (“CLSA”) that the appellant was a “recidivist young offender”, as well as imposing sentence for a further offence committed on 7 December 2010.
The appellant now appeals against each sentence. I would grant the appellant an extension of time in which to appeal against the Youth Court sentence and would allow both appeals. My reasons follow.
The June 2010 offending
The appellant’s offending in June 2010 commenced on the 12^th when he stole a car parked in the street at Parafield Gardens. This comprised the offence of illegal use of a motor vehicle.[19]
[19] Criminal Law Consolidation Act 1935 (SA) (“CLCA”), s 86A.
On the following day (13 June) the appellant committed four further offences: making off from a service station without paying for petrol;[20] illegal use of another vehicle; aggravated serious criminal trespass into a liquor store;[21] and theft from the liquor store of some alcohol, soft drinks and cigarettes.[22] The offences involving the liquor store were committed at about 2.30 am.
[20] CLCA, s 144(1).
[21] CLCA, s 169(1).
[22] CLCA, s 134(1).
The appellant pleaded guilty to these offences. They were included in the offences for which he was sentenced in the Youth Court.
The next offences were committed on 21 June 2010. In company with others, the appellant made, in effect, a raid on two hotels in quick succession. Shortly after 2.00 am the appellant and three others broke into a hotel gaming room. The hotel was closed at the time but the group took alcohol valued at $876.15. At the time, the appellant was carrying two knives; one of his accomplices had club lock and a third had a screwdriver. It was obvious that the appellant and his co-offenders had armed themselves so as to be able to deal with any resistance. All of the offenders made attempts to obscure their faces.
The appellant and his co-offenders then drove to another hotel. That hotel was closed but staff were still present cleaning up. The group broke into the hotel at about 2.30 am by forcing a door. Again, they made attempts to obscure their faces and were carrying the same weapons. The appellant brandished his knife at a security guard, threatening him with death if he did not co-operate. They took a substantial sum of money, the handbag of a staff member, two tills and some other items.
Arising out of this conduct, the appellant and his co-offenders were charged with two offences of aggravated serious criminal trespass in a non-residential building, [23] one offence of theft,[24] and an offence of aggravated robbery.[25]
[23] CLCA, s 169(1).
[24] CLCA, s 134.
[25] CLCA, s 137(1)
The appellant pleaded not guilty to these four offences. He was referred for trial in the District Court and was found guilty of each offence by a jury.
The next offending occurred on 26 June 2010. At about 6.00 pm the appellant and others stole a car at Glenelg South, thereby committing a further offence of illegal use of a motor vehicle. A few hours later, at just after midnight, the appellant and others broke into a home at Somerton Park in which an elderly man was present. The group demanded money and started to ransack the home. They were interrupted by the arrival of the man’s son but stole an iPod and some alcohol in decanters. This gave rise to a charge of aggravated serious criminal trespass in a place of residence[26] and theft.
[26] CLCA, s 170(1).
The appellant was arrested an hour or so after committing the offences and denied his involvement. In addition, when questioned by police, he declined to answer questions as to the identity of the driver of the car in which he had been travelling and which the police had pursued for a time in a high speed chase. This was a contravention of s 74AB(2)(a) of the Summary Offences Act 1953 (SA).
The appellant originally entered a plea of not guilty to these offences but later changed his plea. Subsequently, he applied for permission to withdraw those pleas but ultimately abandoned that application. The Youth Court Judge sentenced the appellant for these three offences.
The offences in June had serious effects on some of the victims. Several provided victim impact statements outlining those effects. One has even been prompted to move to live interstate.
The appellant committed a further offence on 7 December 2010 for which he was also sentenced in the Youth Court. This was an offence of aggravated assault.[27] The appellant assaulted a youth worker at the Cavan Training Centre in which he was then being held by hitting him with a chair and punching him.
[27] CLCA, s 20(3).
The appellant’s personal circumstances
For one so young, the appellant has a regrettably long criminal record. Prior to being sentenced by the Youth Court Judge on 11 November 2011, he had been sentenced in the Youth Court on some 10 occasions, commencing when he was 14 years and 10 months old. His offending comprised a variety of offences but of particular relevance presently are three offences of serious criminal trespass, nine offences of theft, and 12 offences of illegal use or interference with a motor vehicle.
On 31 July 2009, the appellant had been sentenced to detention for 11 months but with a condition that he be released after eight months upon entering into a bond to be of good behaviour. His offending in June 2010 involved a breach of that bond. The prosecution applied to have the appellant dealt with for that breach.
The appellant’s family moved from country Victoria to live in Adelaide when he was three months old. He is one of five children. Unlike many offenders in his circumstances, the appellant had a stable family upbringing. His family continues to support him.
Regrettably, the appellant commenced using illicit drugs at an early age and this seems to explain in part his behaviour. In fact, the appellant claims to have been affected by amphetamines or alcohol at the time of some of his offences in June 2010. Peer group pressure has also been identified as a factor in his offending.
The appellant has been assessed as being of low-average intelligence, immature, with limited impulse control and, at least for a time, with little insight into his behaviour. It seems that he did not progress beyond Year 9 level at school. By reason of the periods spent in custody, he has had limited employment and much of that has been in his father’s demolition business.
Dr Cayley, the psychologist, considers that the appellant will require extensive support and intervention over a long period if he is to avoid recidivism and to re-integrate into society.
The report prepared under s 32 of the Young Offenders Act 1993 (SA) (“YOA”) indicates that the appellant has undertaken several courses while in detention. Several of his teachers have spoken well of his behaviour. The appellant has developed a positive relationship with a mentor and it seems that this is likely to continue. There are indications that the appellant is becoming more mature and making positive steps towards rehabilitation.
The sentence in the Youth Court
The offence of aggravated serious criminal trespass in a place of residence committed on 27 June 2010 was a “serious offence” as defined in s 20A of the CLSA and was the appellant’s third offence of that kind. This meant that the appellant was liable to be declared a “recidivist young offender” under s 20C(1) of the CLSA and that the Youth Court Judge was bound to consider whether to make such a declaration. Section 20C provides (relevantly):
(1) ….
(2)If a court convicts a youth of a serious offence, and the youth is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a recidivist young offender, the court—
(a)     must consider whether to make such a declaration; and
(b)     if of the opinion that the youth's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.
(3) If a court convicts a youth of a serious offence, and the youth is declared (or has previously been declared) to be a recidivist young offender—
(a) the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence (but, in the case of the Youth Court, the limitations relating to a sentence of detention under section 23 of the Young Offenders Act 1993 apply to the sentence that may be imposed by the Youth Court on the recidivist young offender); and
(b)     any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
The Youth Court Judge considered it appropriate to make a declaration under s 20C, saying:
… I do not have any hesitation whatsoever in firstly deciding that you are liable to be declared a recidivist offender and in your case I have no hesitation at all in declaring that you are a recidivist offender. It is appropriate that that declaration be made given your history and given the fact that on multiple occasions you failed to follow correctly the orders of the Court and engage in further criminal offending.
In sentencing for the 13 offences to which the appellant had pleaded guilty in the Youth Court, the Judge said:
[I]t is necessary to note that you owe three months on a blended order. The appropriate course in my view is to fix one penalty for all of these matters. In doing so I note that you have been in custody since 27 June last year. In your matter I would fix that penalty, even having regard to your pleas of guilty here, at 21 months. To that should be added the three months that you owe on the blended order. As a result, even taking into account your pleas of guilty and reducing the sentence as a result I would fix a head sentence of 24 months to run from 27 June last year. If it were not for your pleas of guilty I would have imposed a sentence of 30 months.
The Judge went on to say that he would also impose “the usual mandatory disqualification” but he did not identify the disqualification. The Record of Outcome indicates that the driver’s licence disqualification imposed comprised three periods of 12 months, as required by s 86A(3) of the CLCA.
In my respectful opinion, it would have been preferable for the appellant to be sentenced by the one Court. This was particularly so given that all but one of the offences for which the appellant was sentenced constituted part of a spate of offending over a relatively short period. They can be characterised appropriately as offences committed in a single course of conduct.
There were no practical impediments to the appellant being sentenced in one Court. The Youth Court Judge did not sentence the appellant until 11 November 2011. By that time the appellant had been convicted by the District Court jury (on 28 September 2011) and the sentencing submissions before the District Court Judge were completed on 15 December 2011. The transcript of the sentencing submissions before the Youth Court Judge indicates that some of the difficulties arising from two Courts sentencing independently were recognised. In those circumstances, it would have been appropriate for the charges to be referred to the District Court so that the District Court Judge could sentence for all at the one time.
The sentence in the District Court
Although the sentencing submissions in the District Court were concluded on 15 December 2011, the Judge did not sentence the appellant until 28 June 2012, two days after the completion of the total period of detention required by the Youth Court orders.
The Judge sentenced the appellant as an adult.[28] He declined to make a declaration under s 20B of the CLSA that the appellant is a “serious repeat offender”. Although the Judge accepted that the appellant is “a menace” and that the community needs protection from him, he considered that the appellant’s youth made the declaration inappropriate. In imposing sentence the Judge said:
I will impose one penalty for all four offences, pursuant to s 18A of the [CLSA]. It was one episode of offending.
You are not entitled to any discount for a plea of guilty. You played a leading role in the offending. Moreover, you were armed with a knife, an evil weapon, and with it you threatened and traumatised a defenceless group of people who were simply going about their ordinary work. Further, you committed these offences in company with others. This sort of gang violence is cowardly and abhorrent.
[28] Young Offenders Act 1993 (SA), s 29.

The Judge then imposed a single sentence of imprisonment for six years and fixed a non-parole period of four years, with the sentence to commence on 26 June 2012. The Judge rejected the appellant’s request that, under s 63 of the YOA, he direct that the sentence be served in a youth training centre.
An extension of time for the Youth Court appeal
The appellant did not commence his appeal to this Court against the sentence imposed by the Youth Court Judge until 15 October 2012. This was 11 months after the sentence was imposed, and well outside the prescribed 21 day period. The appellant accordingly seeks a substantial extension of time for the commencement of the appeal.
In many respects the application for an extension of time has little to commend it. However, I consider that there is an error in the sentence which should not go uncorrected. For that reason, I would grant the appellant the extension of time which he seeks.
Error in the Youth Court sentence
In my opinion, the Youth Court Judge should not have made a declaration that the appellant is a recidivist young offender. That is because the declaration lacked utility in the circumstances.
Section 20C(2) of the CLSA vests in a court a discretion to make a declaration that an offender is a recidivist young offender. In one circumstance, the exercise of that discretion is circumscribed. When a court considers that the youth’s history of offending warrants a particularly severe sentence in order to protect the community, the court “should” make the declaration.
When a court does not reach that conclusion, the discretion is to be exercised having regard to the apparent object and purpose of a declaration. Those matters are informed by a consideration of the consequences of the making of a declaration that a youth is a recidivist young offender. First, the court will not be confined by the fundamental principle that a sentence should be proportional to the gravity of the offence (subs 3(a)) and, secondly, any non-parole period fixed by the Court must be at least four fifths of the head sentence (subs 3(b)).
In the present case, the Youth Court Judge did not make any finding that the appellant’s history of offending warranted a particularly severe sentence in order to protect the community, and the sentence which he did impose does not seem to reflect that view. Given the important consequences of such a finding, it is to be expected that a judge will record a conclusion to this effect in clear terms. Further, there are no indications that the Judge wished to impose a sentence which was not proportional to the offences for which he was sentencing. The large number of offences for which the Judge was sentencing meant that he had, in any event, a considerable discretion in the fixing of an appropriate sentence. That being so, the declaration was not required in order to increase the sentence which could be imposed.
Having regard to s 31A of the CLSA, the Judge could not fix a non-parole period in relation to the sentence he imposed on the appellant. This meant that the requirement imposed by subs 3(b) that a non-parole period be of a minimum length had no application in this case.
In these circumstances the declaration that the appellant was a serious recidivist offender did not have any practical effect on the sentence imposed by the Youth Court Judge.
As the opening words of s 20C(3) indicate, a declaration that a youth is a recidivist young offender has practical operation when a court “convicts a youth” of a serious offence. The parties’ submissions assumed that a person’s youth is to be assessed by reference to the age at the date of commission of the offences, rather than at the date of sentencing.[29] I will assume for the purposes of this appeal (without deciding) that that is so. Consequently, s 20C of the CLSA does not have any application to the sentencing of a person for offences committed after the person becomes adult.
[29] See the definition of “youth” in s 3 of the CLSA and the corresponding definition of “youth” in s 4 of the Young Offenders Act 1993 (SA).
The appellant was already an adult (18 years and 9 months) at the time the Youth Court Judge imposed sentence. He had not been charged with any other offences committed as a youth (other than those for which he was to be sentenced in the District Court). This meant that in the absence of newly discovered further offences, there could be no further sentencing for offences committed after the declaration for which the appellant could be sentenced as a youth.
For the reasons which I will state shortly, the Judge’s declaration could not have any bearing on the sentence of the District Court Judge.
In these circumstances, I consider that the declaration that the appellant was a recidivist young offender lacked utility and, accordingly, should not have been made. For a time, I thought that the lack of practical utility in the declaration also meant that there was a corresponding lack of utility in the appeal against it. However, on reflection, a declaration of this kind is a significant matter on a young person’s record. It could have adverse effects for the appellant in the future, especially if he is able to rehabilitate himself successfully. That being so, I consider that this Court should give effect to its conclusion that the declaration was made inappropriately by allowing the appeal so as to set it aside.
Had there been some utility to it, the Judge’s declaration under s 20C would have been understandable. I have already referred to the appellant’s extensive criminal history and, as the District Court Judge concluded, he is a person from whom the community requires protection. Nevertheless, I consider that a declaration under s 20B or s 20C of the CLSA should only be made with some caution. As with an order for indefinite detention under s 23 of the CLSA, it involves a departure from a fundamental principle of sentencing, namely, proportionality. The purpose of the declaration is principally protective and, in my opinion, the making of declarations should be confined to those cases in which that is really required. As with orders for indefinite detention, a judge should make the order only upon cogent evidence and with a clear appreciation of the exceptional nature of the course which is being taken.[30]
[30] Cf R v Ainsworth [2008] SASC 67 at [56]; (2008) 100 SASR 238 at 253-4.
The manner in which the Judge dealt with the three months detention remaining on the previous “blended order” was not entirely satisfactory. As previously noted, the appellant had entered into an obligation on 31 July 2009 under which the last three months of an 11-month sentence were suspended upon him undertaking to be of good behaviour. On proof of the breach of that obligation, s 58 of the CLSA governed the way in which the Judge could proceed. As the Judge intended that the appellant serve the remaining three months in detention, the proper course for the Judge was to make an order revoking the previous suspension and a further order that the previous sentence be carried into effect. It was not a matter, as the Judge’s remarks seem to indicate, of him imposing an additional head sentence of which the remaining three months from the previous sentence was to form part. The appellant should, on the Judge’s approach, have been ordered to serve the remaining three months detention with that sentence back-dated to 27 June 2010. The new sentence of 21 months imposed by the Judge had to commence on the expiration of that sentence. As it happens, the Record of Outcome signed by the Judge in substance reflects this position, even though this was not the effect of the reasons stated by the Judge in open court.
No error in the head sentence
Although the appellant’s grounds of appeal indicated a complaint that the head sentence of 21 months imposed in the Youth Court was manifestly excessive, his counsel did not make any submissions to support that ground. In my opinion, it cannot reasonably be concluded that this sentence was manifestly excessive and I would dismiss this ground of appeal.
Appeal against the District Court sentence
As previously noted, the District Court Judge sentenced the appellant to imprisonment for six years with a non-parole period of four years, with both periods to commence on 26 June 2012, that is, on the completion of the Youth Court sentence. For reasons which I will give shortly, I consider that this sentence did involve error.
It is appropriate, however, to address first the submission of the Director that the District Court Judge could not fix a non-parole period of less than four-fifths of the head sentence. That was so, it was said, because at the time the District Court imposed sentence the appellant was a youth who had been declared to be a recidivist young offender, with the effect that the Judge was bound to act in accordance with s 20C(3)(b).
In my opinion, this contention should not be accepted. That is because the appellant had been convicted of the four offences for which he was to be sentenced in the District Court before the Youth Court Judge made the declaration that he is a recidivist young offender. The former occurred on 28 September 2011, and the latter on 11 November 2011. On its proper construction, the previous declaration to which s 20C(3) refers is, in my opinion, one made before the conviction enlivening the obligation under subs (3)(b). That condition not having been satisfied in this case, the Judge was not bound to act in accordance with s 20C(3).
This conclusion makes it unnecessary in the present appeal to determine whether s 20C(3) has any application to offences committed before a declaration is made, when the court sentencing for those offences is not the court making the declaration. The Court received only limited submissions on this topic and it is undesirable for any concluded view to be expressed.
The effect of the District Court Judge’s sentence is that the appellant has been sentenced to imprisonment for a total of seven years and nine months (in addition to the balance of three months from the previous suspended sentence) and must serve in custody five years and nine months (in addition to the same three month period). If one ignores for the moment the differences in origin of the sentences, this is equivalent, in effect, to a head sentence of eight years with a non-parole period of six years.
In my opinion, the sentence in the District Court which produces that effect is disproportionate and should not have been imposed. At the very least, it means that the appellant will be required to serve in custody an unduly high proportion of the total period of detention and imprisonment imposed for the June 2010 offending. It also fails to take account of the fact that the appellant’s offending formed part of a single course of conduct over a relatively short period and that his culpability is to be assessed in that context. Nor does it have proper regard to the appellant’s youth. It is well established that in the sentencing of young people, greater emphasis is given to rehabilitation rather than deterrence.[31] In the appellant’s case, s 3 of the YOA reflects this consideration expressly. Even though the appellant was being sentenced as an adult, this was still the proper approach.[32]
[31] R v McGaffin [2010] SASCFC 22 at [69].
[32] R v A, D [2011] SASCFC 5 at [59], [68]; (2011) 109 SASR 197 at 210, 212.
I consider it unlikely that, had the appellant been sentenced as an adult for all offences at the one time, a sentence of seven years and nine months with a non-parole period of five years and nine months would have been imposed.
The Judge did have some indications that the appellant was making appropriate steps towards rehabilitation. The report from the psychologist and the report prepared under s 32 of the YOA indicated that this was so. It was, in any event, appropriate for the Judge to take account of the deterrent and rehabilitative effect which the period of two years served by the appellant in detention before being sentenced had had on the appellant. That period had achieved some of the rehabilitative and deterrent effect which would have otherwise been appropriate in the District Court sentence.
The seriousness of the appellant’s sustained offending in the course of conduct in June 2010 is not to be underestimated. However, proper account had to be taken of his youthfulness and the predominant consideration of rehabilitation.
Accordingly, I would set aside the sentence imposed by the District Court Judge and, in its place, impose a single sentence of imprisonment for four years with a non-parole period of two years. A non-parole period of this length provides protection to the community, should provide an adequate opportunity for the appellant to receive the counselling and support recommended by Dr Cayley while he is in custody, and should provide an appropriate period of supervision after his release. Both should be taken to have commenced on the date fixed by the Judge, namely, 26 June 2012.
Conclusion
For the reasons stated above, I would extend to 15 October 2012 the time within which the appellant may appeal against the Youth Court sentence and would allow that appeal for the sole purpose of setting aside the declaration that the appellant is a recidivist young offender. In all other respects I would dismiss that appeal.
In relation to the appeal against the sentence imposed in the District Court, I would allow the appeal. I would set aside the sentence imposed by the District Court Judge and impose in its place a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) of four years imprisonment. I would fix a non-parole period of two years and direct that both periods be taken to have commenced on 26 June 2012.

[2013] SASCFC 3

7 February 2013

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Criminal Law

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Appeal

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Sentencing

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