R v Police

R v POLICE
[2002] SASC 403
Magistrates Appeal

Gray J This is an appeal against sentence.
Background
The appellant R a young offender was jointly on information with two counts of damaging property, two counts of being unlawfully on premises and one count of larceny.[1]
[1] The information was in the following terms:
All offences arose out of a course of conduct on 2 June 2002. The appellant and friends attended two parties. The appellant consumed alcohol and smoked marijuana. At about 1:20 am with three other boys some of whom had also been drinking the appellant attended at the Naracoorte South Primary School. Windows were broken, bins damaged and pot plants upturned. The group returned to the school at about 3:40 am and continued breaking windows. Approximately 35 windows were broken. The boys also stole a letterbox and used that to effect damage. The cost of repairs amounted to $18,508.93. The school incurred an additional cleaning cost of $1015.10. The total expense resulting from the incident was $19,524.00.
On 7 August 2002 the appellant pleaded guilty to all counts. At the first attendance at the school he did not cause any damage. On the second occasion the appellant broke five windows. He was present at the time the other boys took the letterbox but he was not directly involved in the theft. He did not use the letterbox in any damage that he effected. His pleas were entered on the basis that he was a participant in a joint enterprise. It was accepted that the appellant encouraged the involvement of others by his presence. However it was not disputed that his level of participation was less than some of the other boys.
The appellant was aged 16 years at the time of the offending. He had an unblemished record. He co-operated with the police and made full admissions about his involvement soon after the incident. He also provided information about the conduct of others. A letter of apology from the appellant[2], a reference from his aunt who worked at the school and a letter from his parents were tendered. The appellant’s letter was prepared on his own initiative. The appellant’s employer, the supervisor of his horticultural apprenticeship also provided a reference which included:
“I have a lot of faith in his ability and stand by him as a promising young man.”
[2] The letter was as follows: “I would like to say sorry to the head master of the school, teachers and studints for all the trouble I have caused them. and to my Auntie [W] who works at the school and to my cusins who are studints to. To my mum and dad and all my famley and to my boss [C]. I have lernt losts, to treat the couminity with respect and to behav proberly. I will aspest my punement and do the right thing in the future. I think what I did was wrong and that it hurt a lot of peole. And that it was not a good iedi to go out smokeing and drinking at my age.” [The appellant is dyslexic]
The appellant lived at home with the benefit of his family’s support. He was employed in a permanent horticultural apprenticeship. The appellant had saved $1400.00 from his weekly wage of $200.00 and was in a position to make reparation for the damage that he had caused. The appellant had been subjected to a night curfew for some months whilst on bail.
The prosecutor made no submissions as to penalty.
The Sentence Imposed
The magistrate sitting as the Youth Court recorded convictions for all offences and imposed a sentence of two months detention. He suspended the sentence on the condition that the appellant enter into an obligation for 12 months.[3] He also ordered that the appellant pay $1400 reparation to the court registrar for transmission to the Naracoorte primary school.
[3] The terms of the obligation included that the appellant be of good behaviour; that he be under the supervision, that he perform 100 hours of community service within 12 calendar months; that he submit to assessment for drug and alcohol dependence or abuse and undergo such counselling and treatment and participate in such courses or programs as directed by a suitably qualified person.
The magistrate reasoned:
“I accept that you were 16 years of age at the time, and that your immaturity may have contributed to your decision to participate. It is clear that there was a degree of bravado involved and that you were influenced by peer-group pressure; but you chose to participate. There were others present who did not.
I give you credit that on the night after this incident, in the presence of your parents, or one of them, you made full admissions to the police. You did not try to avoid the consequences of what you had done. I give you credit for the fact that, on your own initiative, from a relatively small wage, you have saved up $1,400 which you offer on account of compensation. That is a clear demonstration of your attitude towards the offence and your desire, as a member of the community, to do something about it. I accept that you are genuinely contrite and remorseful. I also give you credit for your pleas of guilty.
…
The sentencing principles which I have to apply are not the same as those that apply to an adult. The objective is for me to secure, for you, the care correction and guidance necessary for your development into a responsible and useful member of the community and the proper realisation of your potential. The powers that I have must be directed towards that objective, having regard to the statutory policies. One of the policies is that you should be made aware of your obligations under the law and the consequences of breaching it. Another is that the community, and individual members of the community, must be adequately protected against wrongful acts. A third is that in imposing sanctions for your illegal conduct, I must have regard to the deterrent effect any proposed sanctions may have on you. There are other policies that must be taken into account, including those relating to your offer of compensation, your family environment, your education and employment, your family relationships and the support you receive from your parents.
There is a range of sentencing options available to me to give effect to that objective and those statutory policies. They include an obligation, a fine, community service, home detention or a sentence of detention actually to be served or suspended. Section 23(4) of the Young Offenders Act says that a sentence of detention must not be imposed for an offence unless the court is satisfied that the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inappropriate.
By any standards, the circumstances of the offences were very serious. An aggravating factor was that you chose to participate twice.
I have taken into account the mitigating factors which have been put forward on your behalf by [defence counsel]. Giving weight to those factors, both individually and in combination, I consider that the gravity of the circumstances of the offences is such that a sentence of a non-custodial nature would be inappropriate.
…
Although your role in what happened in my view merits a sentence of detention it is appropriate that I draw a distinction between you and D on the basis of the information that has been put forward by [defence counsel] in her submissions today.
…
In imposing the sentence, I am marking the seriousness of what happened. I am intending to deter, or discourage, you from ever acting like that again. I cannot ignore the seriousness or the serious aspects of your participation in what happened. I am encouraged by what I have heard that you are very unlikely to do anything like that again. You realise your consumption of alcohol and drugs affects your behaviour and causes you to behave in a way differently from the way you normally behave. Although what you did has had a profound affect on you, on those who care for you, and on the wider community, the efforts you have made to save up the compensation and your attitude towards what has happened, indicates that there is every prospect that you will grow up into a useful and law-abiding member of the community and put this behind you.”
The Other Offenders
The other offenders pleaded guilty on the same occasion. D was 16 years old. He had no prior convictions. D was the “leader” of the group and responsible for most of the damage. He threatened and attempted to influence potential witnesses. Convictions were recorded against D on all counts. He was sentenced to three months detention. That sentence was suspended on D entering into an obligation for 18 months to be of good behaviour and perform 200 hours of community service. D was ordered to pay court fees, the levy and the prosecution fee.
W was 15 years old. He broke three windows. He had no prior convictions. Convictions were recorded on all counts. He was sentenced to one months detention. That sentence was suspended on W entering into a 12 month obligation to be of good behaviour. Conditions were imposed as to supervision, participating in counselling courses, project or programs as directed and to submit to assessment for drug and alcohol dependence or abuse and undergo counselling or courses or programs as directed. Court fees were waived but W was required to pay the levy.
T was 17 years old. He was sentenced by a different magistrate. It was accepted that although he did not smash any of the windows he encouraged the others by his presence. He entered into an obligation to be of good behaviour. He was not convicted on any of the counts.
Issues on Appeal
Counsel for the appellant advanced a number of complaints. It was submitted that the magistrate failed to address the impact of the convictions on the appellant. The magistrate failed to give adequate consideration to alternatives to imposing a suspended detention order. In addition there was fresh evidence that should be considered by this court.
Availability of the Family Conference Process
Diversion
The concept of diversion, its history and use in South Australia was the subject of comment in R v McMillan[4]:
“It has long been recognised that the criminal law is a blunt instrument for dealing with particular types of offenders particularly young offenders, aboriginal offenders, drug users and those suffering from mental illness. The courts have developed techniques to address difficult cases, sometimes with legislative backing and sometimes by way of informal initiatives.
…
The concept of diversion involves a realisation that traditional criminal sanctions are not effectively reducing the criminal activities of certain persons within the community. The aim is to divert or channel those persons out of the court process into programs with a rehabilitative treatment focus. This is with a view to their long term rehabilitation and the prevention of further offending.”
[4] (2001-2002) 81 SASR 540 at [57, 58 , 60, 61] Diversion has also been the subject of considerable academic comment. As Graycar observed in his Australian Institute of Criminology paper Dealing with Delinquency Diverse Challenges Youth Justice 2000: Managing A New World In Transit 15 Aug 2000.
“Diversion is the channelling of an offender or suspect away from the criminal justice process. This may take the form of a caution or warning, diversion at the pretrial stage for resolution of the case by some informal procedure, or alternatives to conviction or sentence following a trial.”
In developing the Young Offenders Act 1993 (SA) parliament recognised the failings of more traditional methods of punishment for young offenders. It sought to offer the community and young offenders the advantages of a diversionary process. It was thought that the community would be better protected by helping young offenders to recognise their wrong doing. The community could then assist them to develop into law abiding members of the community by facilitating their rehabilitation and encouraging the realisation of their potential. These objectives are reflected in section 3:
“3. (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, regard should also be had to the deterrent effect any proposed sanction may have on other youths.
(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.”
The Young Offenders Act provides for diversion on two levels. The police have a discretion to divert certain matters away from the traditional court process. Sections 6 and 7 permit diversion to an informal or formal caution or a family conference:
“6 (1) If a youth admits the commission of a minor offence, and a police officer is of the opinion that the matter does not warrant any formal action under this Act, the officer may informally caution the youth against further offending and proceed no further against the youth.
(2)If a youth is informally cautioned under this section, no further proceedings may be taken against the youth for the offence in relation to which the youth was cautioned.
(3)    No official record is to be kept of an informal caution.
7. (1) If a youth admits the commission of a minor offence, a police officer may deal with the matter as follows:
(a)    the officer may deal with the matter under Division 2; or
(b)    the officer may notify a Youth Justice Co-ordinator of the admission so that a family conference may be convened to deal with the matter; or
(c)    the officer may lay a charge for the offence before the Court.
(2) Before the police officer proceeds to deal with an offence under Division 2, or notifies a Youth Justice Co-ordinator of the admission so that a family conference may be convened —
(a)    the officer should explain to the youth —
(i)     the nature of the offence and of the circumstances out of which it is alleged to arise; and
(ii)    that the youth is entitled to obtain legal advice; and
(iii)   that the youth is entitled (irrespective of whether he or she exercises the right to obtain legal advice) to require that the matter be dealt with by the Court; and
(b)    if the youth does not require the matter to be dealt with by the Court, the officer should put the admission into written form and, if possible, get the youth to sign the admission.
(3) An explanation given to a youth or the signing of an admission by a youth under subsection (2) should take place, if practicable, in the presence of —
(a)    a guardian of the youth; or
(b)    if a guardian is not available — an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth.
(4)    A charge may only be laid —
(a)    if the youth requires the matter to be dealt with by the Court; or
(b)    if, in the opinion of the police officer, the matter cannot be adequately dealt with by the officer or a family conference because of the youth's repeated offending or some other circumstance of aggravation.”
The police discretion to divert is restricted to minor offences as defined in section 4 of the Young Offenders Act[5].
Section 17
[5] A minor offence is defined by section 4 as:
Parliament also recognised that there would be cases where diversion was appropriate although the police had not exercised their discretion to divert. A judicial discretion was incorporated into the legislative scheme by section 17:
“(1) Subject to this Act, the Court will deal with a charge in the same way as the Magistrates Court deals with a charge of a summary offence and, in doing so, has the powers of the Magistrates Court.
(2) The Court may, even though a charge has been laid, refer the subject matter of the charge (after the youth's guilt has been established either by admission or by the Court's findings) to be dealt with by a police officer or by a family conference.
(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.”
This discretion is generally unfettered. The only limitations are those expressly provided for in section 17(3).
Section 17 enables a court to refer the subject matter of a charge to the police for a caution or to a family conference when it considers it is appropriate. The court’s power to refer is not limited to minor offences. The legislation contemplates the possibility of diversion by a judicial officer once guilt has been established.
In Police v W[6] Cox J observed:
“Section 17 apart, a matter cannot get to a family conference unless it meets the requirements of the definition of a minor offence in s4, including the police officer's holding the requisite opinion, and unless the offender admits the commission of the offence. The typical occasion for the use by a court of subs(2) of s17 will arise where the particular wrongdoing answers the requirements of para(a) to para(d) of the ‘minor offence’ definition but the question whether the matter should be referred to a family conference never arose at the normal stage because, say, the youth did not admit his guilt or he preferred to be dealt with by the court. Where his guilt is established either by his subsequent admission or by the court's finding, s17 enables the court to do what it judges that the police officer in charge would probably have done in the first place had he been able to do so, namely, refer the matter to a family conference. It is true that s17 does not refer in terms to a minor offence; it could hardly do so, because it is unlikely in the nature of things that the police officer, faced with an unco-operative offender, formed and recorded the opinion that is needed to make an offence a minor offence within the meaning of s4. One would expect, however, that a court would generally confine the application of s17 to cases that answer the paragraphed requirements of the definition and also appear to be cases that may suitably be handled by a family conference. In other words, the section provides an opportunity for retrieving from the court system a case that should really never have got into it. It is not intended, in my opinion, simply to provide an additional sentencing option for a court that is hearing a charge against a youth.” [taken in]
[6] (1994-95) 64 SASR 408 at 412

Counsel for the Crown drew attention to the following observation of Nyland J in H v Police[7]:
“A court exercising power pursuant to s 17(2) would, however, still be required to find that the offence was minor in accordance with the provisions of s4.”
Read literally[8] this observation conflicts with the terms of section 17 and the reasoning of Cox J.
[7] (1998) 198 LSJS 331
[8] However her Honour considered that a more general discretion arose:“[counsel] has presented a detailed and persuasive argument to support her argument that the matter should have been diverted to a family conference. If I had been the sentencing judge I may well have been persuaded to adopt that course.”
In Police v CB[9] Wicks J considered the use of section 17(2) of the Young Offenders Act. His Honour concluded:
“As the court in the present case is concerned with an offence which is not “minor offence” within the meaning of the Young Offenders Act s17, the family conference procedure would appear to have no relevance. Because of the gravity of the offence it could never come within the definition of “minor offence” and therefore in my view s17 and Pt2 of the Young Offenders Act have no application.”
[9] [1999] SASC 371
Section 17 does not restrict the court’s powers to divert only minor offences. The section does not refer to minor offences. The discretion is a discretion reposed in the court to be exercised judicially with respect to a charge before the court. The observations of Nyland and Wicks JJ do not appear to correctly reflect the terms of section 17 of the Young Offenders Act.
The discretion reposed in the police is an administrative decision and is restricted to minor offences. This distinction was recognised by Cox J in W when he spoke of a court generally confining the application of section 17 to minor offences. Cox J contemplated that there would be other cases when the application of section 17 was not so confined:
“One would expect, however, that a court would generally confine the application of s17 to cases that answer the paragraphed requirements of the definition [of a minor offence] and also appear to be cases that may suitably be handled by a family conference”
Cox J’s remarks are not supported by the terms of section 17.
There is no reason in principle to limit the court’s power to refer only minor offences. There will always be cases that have found their way into the court system that “should never really have got into it.” Section 17 contemplates that a court may conclude that a police caution or family conference may be appropriately used as an alternative to traditional sentencing to further the Act’s purposes and in the interests of the community and the young offender. The expansion and development of diversionary powers also suggest that Cox J’s observation is too narrow.
The objectives and policies embodied in the Young Offenders Act underscore the importance of tailoring a sentencing package to address young offenders’ needs. There is no reason to narrow the breadth or restrict the operation of the power given by section 17. Parliament chose not to limit the judicial discretion to divert in the same way that the police discretion has been restricted. The judicial discretion to divert is a broad, unfettered discretion that creates a legitimate sentencing alternative. It is in the interests of young offenders and the community that the advantages of the diversionary process as enacted by parliament are given their full effect by the courts. A wide interpretation should be given to section 17.
Diversion in the Present Case
The magistrate made no reference to section 17 of the Young Offenders Act or the possible utility in referring the appellant’s case to a family conference. On appeal counsel for the appellant submitted that this possibility had not been raised with the magistrate. She believed that the process was unavailable because the appellant’s offending was not minor offending within the meaning of section 4. Counsel said that in the past when appearing before the same magistrate he had expressed the view that family conferencing was not an available option in the absence of police referral. There is no evidence before this court as to what view the magistrate may have had about the discretionary process in the present case.
The appellant acknowledged his guilt and assisted the police. He demonstrated remorse and contrition. He set aside a substantial amount from his modest earnings to make reparation. He apologised to the school for his conduct. His conduct stood against his unblemished record. Alcohol and marijuana together with immaturity offered an explanation. His conduct caused property damage. There was no indication of any personal violence. He had strong family support. The letters from his parents and aunt evidence the determination of his family to stand by him and provide counselling, support and direction.
These considerations demonstrate that the appellant was a suitable candidate for family conferencing despite the seriousness of his conduct. Family conferencing would have allowed a face to face meeting with the school principal and the opportunity to talk through all issues. It would have enabled the principal and other members of the community to express their views about the appellant’s conduct in a controlled environment. The appellant would then better understand the consequences of his behaviour and begin the difficult process of regaining community trust and respect.[10]
[10] The observations of Graycar in the earlier cited article are apposite:
“The process of restorative justice involves bringing together victims and offenders, and others who may have an interest in a particular offence to deal collectively with how to resolve the impact of the offence, and to chart a path for the future.
In addition to the victim and the offender we might see family members and other members of their communities who may be affected or who may be able to help prevent a recurrence of the offence. These meetings are facilitated by a [youth justice co-ordinator] who helps bring about a collective resolution. The goals of meetings are to heal the relationship between the victim and offender, provide restitution and healing for the victim, reassure the community, and encourage acceptance of responsibility and healing for the offender through apology and reparation.
…
In a conference the victims are given the opportunity to confront the young offender, express the hurt and anger that they feel and play a key role in deciding what needs to be done by the youth to make up for the harm caused. Conferencing is attractive because it entails the ideals of healing and restoration, and of empowering offenders, victims and families. It sees young people as integral members of a family and a community, rather than as social isolates.”
There was a further factor which supported referral to a family conference. The appellant and his family reside and are likely to remain in a country area. Given that the appellant was likely to be in contact with the school and students from the school family conferencing offered greater prospects for his acceptance back into the community with understanding and compassion. In a rural community such an approach seemingly offers particular advantages.
The magistrate should have considered the exercise of his diversionary powers. He was in error not to have done so. He may have been persuaded to refer the matter to be dealt with by way of family conference.
There is now no point in referring the appellant’s case to a family conference. Reparation has been made to the school. The appellant has apologised for his conduct. He is part way through his service obligation. He has begun to make amends with the community by pursuing long term volunteer work with the Country Fire Service (“CFS”).
Should a Conviction Have Been Recorded
Section 23
The complaint about the magistrate’s failure to address the impact of convictions and consider other alternatives to suspension are inextricably linked.
It was accepted by counsel for the Crown that the magistrate did not consider the impact of convictions on the appellant’s later life and that he should have done so.
Section 17 of the Young Offenders Act provides that when dealing with a charge the Youth Court has the powers of the Magistrates Court. As a result Section 17(1) picks up section 16 of the Criminal Law (Sentencing) Act 1988 SA[11]. Section 16 as amended provides:
[11] See [17]
“Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)    that the defendant is unlikely to commit such an offence again; and
(b)    that, having regard to—
(i)     the character, antecedents, age or physical or mental condition of the defendant; or
(ii)    the fact that the offence was trifling; or
(iii)   any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.”
When originally introduced section 16 provided:
“Where a court finds a person guilty of an offence for which it proposes to impose a fine (but no other penalty) and the court is of the opinion ...”
In this form the section was the subject of judicial comment. The court was limited to proceeding without conviction only when the relevant penalty was a fine. In Glover v Zouroudis[12] Jacobs J said:
“In my opinion it is erroneous in point of law to resort to s 16 of the Criminal Law (Sentencing) Act and decline to record a conviction in order to avoid the imposition of the additional penalty to be imposed upon a conviction under s 66 of the Fisheries Act. Under s 16 of the Sentencing Act the power to impose a fine without recording a conviction arises only ‘when a Court finds a person guilty of an offence to which it proposes to impose a fine (but not other penalty) ...’. For the reasons which were given in Glover v Haseldine (unreported, Supreme Court, SA, Jacobs J, 5 July 1990) the power in s 16 to impose a fine without conviction is only available when the offence carries no other penalty in addition to the fine.”
[12] (1989-90) 54 SASR 200 at 203; see also Glover v Haseldine (1990) 48 A Crim R 118, Glover v Romanowcyz (1990-91) 55 SASR 524
Section 16 was amended in 1991. A reference to “community service” in addition to “a fine” were added and the words “(but no other penalty)” were deleted. This is a significant amendment. In Clark v Glover; Hemming v Clark[13] Perry J observed:
[13] (1992) 58 SASR 571 at 577; see also Hemming 6v Perkins (1999) 74 SASR 307 at 325 per Martin J at 325
“The magistrate was confronted with an argument ... that s 16 of the Sentencing Act could not be invoked for the reasons appearing in the decision of Jacobs J in Glover vHaseldine (1990) 48 A Crim R 118, and see also the decision of White J in Glover v Romanowcyz (1991) 55 SASR 524.
Those decisions are authority for the proposition that the operation of the provisions of s 66 of the Fisheries Act, serves to render s 16 of the Criminal Law (Sentencing) Act inapplicable to offences to which s 66 applies (which is the case with respect to the charge of taking undersize fish.) I do not pause to consider those decisions, as, for reasons which will appear, even if s 16 was to be of application, it would not avail the appellant Clark.
It is sufficient to observe that, since the time when those two decisions were reached, the words then appearing after “fine” in s 16, namely the words “but no other penalty,” were deleted (see Act No 22 of 1991). Both decisions must now be regarded as open to question, in so far as they might be thought to govern the operation of s 16 in its present terms, vis-à-vis s 66.”
In Rusby v Kerley[14] Lander J affirmed these remarks and observed:
“When the section [section 16] was in those terms two Judges of this Court in separate decisions construed s 66 of the Act to preclude the operation of s 16 of the Sentencing Act: Glover v Haseldine (1990) 48 A Crim R 118; Glover v Zouroudis (1990) 54 SASR 200 per Jacobs J; Glover v Romanowcyz (1991) 55 SASR 524 per White J.
More recently and since the amendment of s 16, which deleted reference to “(but no other penalty) …” and included reference to community service orders, Judges of this Court have taken a different view.
Perry J has doubted whether the earlier decisions could now be regarded as applicable having regard to the amendments: Clark v Glover; Hemming v Clark (1992) 58 SASR 571. He described these earlier decisions as now “open to question”.
In Hemming v Mundy [2001] SASC 105 Martin J distinguished the earlier decisions of Jacobs J and White J by reason of the deletion of the words to which I have referred and concluded that s 16 of the Sentencing Act was available in prosecutions under this Act, even where s 66 of the Act would otherwise have operated. In the case of Hemming v Dale [2002] SASC 40, Doyle CJ assumed the operation of s 16 in circumstances where s 66 operated. Without referring to this point he approved the decision of Martin J in Hemming v Mundy (supra).
I agree with the conclusion reached by Martin J’s construction of s 16 and its interaction with s 66.”
[14] [2002] SASC 141
Section 16 in its amended form permits a court to impose a penalty without recording a conviction. The judicial discretion is not restricted to offences where the court proposes to impose a fine or a sentence of community service.
The magistrate may have proceeded on the basis that he had no power to order a period of detention without imposing a conviction. Counsel for the Crown accepted that such an approach would be erroneous. Section 23 of the Young Offenders Act provides the power to detain where a youth is “convicted or found guilty”:
“(1) Subject to subsection (6), the Court cannot sentence a youth to imprisonment.
(2) If an offence of which a youth is convicted, or found guilty, is punishable by imprisonment where committed by an adult, the Court may sentence the youth to —
(a)    detention in a training centre for a period not exceeding three years; or
(b)    home detention for a period not exceeding six months, or for periods not exceeding 6 months in aggregate over one year or less; or
(c)    detention in a training centre for a period not exceeding two years to be followed by home detention for a period not exceeding six months or for periods not exceeding 6 months in aggregate over one year or less.
(3) If, however, the maximum term of imprisonment prescribed for the offence is less than three years, the period of detention to which the youth is sentenced cannot exceed that maximum.
(4) A sentence of detention must not be imposed for an offence unless the Court is satisfied that, because of the gravity or circumstances of the offence, or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.”
Counsel for the Crown invited the court to interpret section 23(2) liberally. It was said that this would accord with the purposes of the Young Offenders Act. To impose a period of detention without conviction was a legitimate sentencing alternative. That alternative provides a means by which in appropriate cases offenders can be given a short sharp shock, a taste of detention and an insight into what is likely to happen in the future if they engage in further offending. It enables an offender to be given a second chance, particularly when the offending was out of character, due to immaturity of youth, a seemingly one off excursion into criminal activity and there are circumstances that indicate that the type of behaviour is unlikely to be repeated. As is envisaged by the Young Offenders Act section 23(2) gives offenders an opportunity to avail themselves of the guidance necessary for their development into responsible and useful members of the community and to realise their potential.
In matters concerning young offenders it is relevant to note that section 21 provides that a court “should record a conviction” on finding a youth guilty of a major indictable offence unless there are “special reasons for not doing so.” This section suggests that the recording of a conviction may not be appropriate in regard to lesser offences. This interpretation accords with the objects and statutory policies set out in section 3 of the Young Offenders Act.
The words in section 23(2) “or found guilty” following the words “is convicted” permit the ordering of detention without the need for a conviction to be recorded. On any other view the words “or found guilty” have no work to do. Detention can be ordered following a finding of guilt alone. The recording of a conviction is not a necessary pre-requisite to a detention order. The magistrate had the power to proceed without recording a conviction pursuant to section 16 of the Sentencing Act.
Rehabilitation and the Young Offender
The option of proceeding without conviction can be used when sentencing young offenders, particularly first offenders. It enables the court to impress upon a young person the seriousness of their actions without exposing them to the long term consequences of a conviction. The magistrate erred in failing to consider the option of proceeding without imposing convictions.
A conviction remains with an offender for life. It can hamper employment prospects, prevent the undertaking of certain kinds of employment, create difficulties when entering countries and provide restrictions in other ways. A conviction should not be imposed without first carefully considering the long term implications for the individual involved.
In The Queen v Avgoustinos[15] Bray CJ addressed the position of the young adult offender and observed:
“Indeed, I would say for myself that when a court chooses to dismiss a charge without proceeding to conviction there must be some difference in the weight which should be placed on that order and the weight which should be placed on a conviction without a penalty. Parliament has provided these two alternatives; it must have intended that there should be some difference in effect between them. There is no immediate difference. In either case the defendant leaves the court unscathed. The only difference therefore can be in their respective long-term effects on the defendant’s record. ”
These remarks have even more force when a court sentences a young offender.
[15] [1975] 13 SASR 48 at 49
In The Queen v Weaver[16] Bray CJ, Mitchell and Sangster JJ emphasised the importance of rehabilitation:
“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. ”
In Vartzokas v Zanker[17] King CJ observed:
“Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measurers precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person.”
Other Issues
[16] (1973) 6 SASR 265 at 267; see also Taylor v Barr (1987) 135 LSJS 106 at 110-112
[17] (1988-89) 51 SASR 277 at 279
The Effect of a Curfew on Sentence

The magistrate failed to have regard to the fact that the appellant had been subjected to a curfew from 7:00 pm till 7:00 am for the two months that he was on bail between 3 June 2002 and 7 August 2002. The curfew partially deprived the appellant of his liberty. This was a matter that could properly have been considered in the same way that home detention can be brought to account in the sentencing process.[18] A curfew is a relevant factor that should be considered pursuant to section 10(1)(o) of the Sentencing Act.[19]
[18] R v Malesevic (1999) 204 LSJS 32; see also R v Foster (No 2) [2001] SASC 154
[19] “10. (1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(o) any other relevant matter.”
Fresh Evidence
The general principles governing the reception of fresh evidence on appeal are settled.[20] It must be established that the evidence could not have been obtained with reasonable diligence for use at first instance. It must be demonstrated that if given at first instance the evidence would probably have had an important influence on the result of the case. It must then be shown to be apparently credible evidence although it need not be incontrovertible.
[20] Ventura v Sustek (1976) 14 SASR 395 at 399; Orchard v Orchard (1972) 3 SASR 89; Ladd v Marshall [1954] 1 WLR 1489 at 1491; R v Dorning (1981) 27 SASR 481; R v McIntee (1985) 38 SASR 432
In sentencing appeals the courts have adopted a more flexible view. Fresh evidence may be admitted to prevent a miscarriage of justice even if the conditions referred to have not been satisfied.[21] There is also a public interest in the finality of the court process. Tension can arise in the operation of these two principles. In seeking to resolve this tension the courts have developed rules to facilitate the reception of evidence in appropriate cases. The decisions of Aplin v Police[22], Neill v Police[23], R v Brain[24] and R v Jenkins[25] are examples of means by which this tension can be resolved. In the criminal court where liberty may be lost the overriding principle must be the interests of justice.
[21] Bean v Considine (1965) SASR 351; R v Maniadis (1997) 1 QdR 593
[22] [1999] SASC 273
[23] [1999] SASC 270
[24] (1999) 74 SASR 92
[25] (2000) 209 LSJS 341
After the appellant was sentenced counsel received information that potentially had some relevance to sentence. The information came from the appellant’s mother and was in substance that her extended family resided overseas and that the convictions and suspended detention order were likely to prevent the appellant from obtaining a visa. No foundation was laid to substantiate this assertion on the hearing before this court.
An adequate basis has not been established for this material to be received as fresh evidence. However errors earlier identified require this court to re-sentence the appellant. Regard can be had in the re-sentencing process to the possibility that the appellant may be unable to obtain an entry visa.
The second item of suggested fresh evidence related to the appellant’s community service work. As at 1 October 2002 the appellant had performed 20 hours of community service with the CFS. He is presently able to perform only four hours of service each week in the form of training exercises but as summer approaches the opportunities for him to assist will increase. The appellant is now a permanent CFS volunteer. He intends to continue voluntarily with this community activity once his compulsory community service has been completed. There was minimal evidence before this court in support of the application for the material to be received as fresh evidence.
Counsel for the Crown submitted that the appellant’s progress with his community service was not fresh evidence. It was said that policy considerations operate to prevent a court from taking into account good behaviour that has resulted from community service work or the influence that such work had on an offender. It was said that otherwise there would be no end to offenders coming back to court applying to have their sentences reviewed.
The appellant appears to have clearly benefited from the community service order. His work with the CFS has provided him with a new and constructive interest. He has undertaken more service than ordered and has developed a genuine interest in CFS work. The appellant’s work as a volunteer has a wide community benefit. The service provided by the CFS is important. It was submitted that the appellant’s long term plans to work with the CFS would facilitate his rehabilitation.
Generally fresh evidence cannot be admitted on appeal concerning matters which have occurred after the sentence.[26] However it has been accepted that fresh evidence may be admitted when it deals with a matter that was before the court at the time of sentencing and which discloses new and further aspects which could not then have been known.[27] The proposed evidence does not meet this test.
[26] R v Smith (1987) 44 SASR 587; R v Amuso (1987) 132 A Crim R 308; R v Babic (1998) 2 VR 79
[27] Aplin v Police [1999] SASC 273; Neill v Police [1999] SASC 270; R v Brain (1999) 74 SASR 92; R v Jenkins (2000) 209 LSJS 341
The appellant’s progress at CFS is not in the nature of fresh evidence. However as with the evidence about his extended family it is a matter that can be had regard to when the appellant is re-sentenced.
Re-sentence
The magistrate erred in his approach to sentencing. The sentence imposed by the magistrate should be set aside and the appellant re-sentenced. It is appropriate for this court to perform that task.
The appellant aged 16 years became intoxicated and smoked marijuana. In the early hours of the morning he made two trips to a local primary school. He went in a group on both occasions. At some time a letterbox was stolen. Windows, bins and potplants at the school were damaged. Although the appellant was not the instigator of the conduct and his participation was not as great as some of his co-offenders he encouraged the others to do what they did by his presence. The total expense incurred by the school as a result of the joint enterprise was over $19,000.
The appellant promptly acknowledged his guilt. He made full and frank admissions and assisted the police with their enquiries. He has demonstrated remorse and contrition in a number of ways. He provided a written letter of apology to the school and his payment of significant reparation reflects considerable effort on his part.[28]
[28] His reparation may be measured against the terms of section 24 of the Young Offenders Act which provides: “The Court must not impose a fine exceeding $2 500 for an offence.”
The appellant had no criminal record. He is now 17 years old. He left school at the end of year 10 after struggling academically. He obtained full time work as an apprentice horticulturalist and is doing well. He is part way through his community service obligations and has extended that service beyond what was required. The appellant has received considerable support from his family. They were present in court and have willingly assisted the police to make amends for their son’s conduct. The appellant recognises how fortunate he is to have his parents’ support. It is important that this support continues. As Graycar has observed “The most successful crime prevention agency is the family.”
The appellant’s conduct since his offending shows that he understands the nature and consequences of his actions. He has done what he can to make amends for his wrongdoing and with the help of others has seemingly set himself on a path to a brighter future. The appellant has completely disassociated himself with the main offender D. This signifies his realisation that he was influenced by others and that it is necessary to avoid a similar situation.
The appellant is employed. He is working in a position that he enjoys. Despite the incident he has maintained the confidence of his employer and fellow workers. This is significant and further illustrates the extent of support available to the appellant.
As earlier observed diversion at this time in this case is inappropriate. A fine is inappropriate given the substantial reparation already made. There is a real possibility that a conviction would affect the appellant’s future employment prospects. It may also hamper his chances of obtaining a visa to visit his relatives overseas. Regard must be had to the period during which the appellant was subject to the curfew. This has given him a taste of what the deprivation of liberty would be like should an order for his detention be made in the future. Although the appellant’s conduct is serious a sentence of a non-custodial nature is appropriate.
The appeal is allowed. The convictions recorded by the magistrate are set aside. The sentence imposed is set aside. The appellant is discharged on an obligation to be of good behaviour without conviction. The terms of the obligation are that he be of good behaviour for a period of two years; that he be supervised by a Family and Youth Services officer and obey the lawful directions of that officer; that he undertake such courses and programs as may be directed and that he abstain from consuming alcohol and using non medically prescribed drugs for two years.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

1 The information was in the following terms:
“Count 1
On the 2nd day of June 2002 at Naracoorte in the said State, [W, R, D and T] intending to damage the property of another or being recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing that no such lawful authority existed, damaged windows, wheelie bins and pot plants the property of Naracoorte South Primary School, such damage amounting to more than $2,000 but not more than $25,000.
Section 85(3) of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.

Count 2
On the 2^nd day of June 2002 at Naracoorte in the said State, [W, R, D and T] was on premises at Cedar Avenue Naracoorte for an unlawful purpose.
Section 17(1) of the Summary Offences Act, 1953.

This is a summary offence.
Count 3
On the 2nd day of June 2002 at Naracoorte in the said State, [W, R, D and T] intending to damage the property of another or being recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing that no such lawful authority existed, damaged windows, wheelie bins and pot plants the property of Naracoorte South Primary School, such damage amounting to more than $2,000 but not more than $25,000.
Section 85(3) of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.
Count 4
On the 2^nd day of June 2002 at Naracoorte in the said State, [W, R, D and T] was on premises at Cedar Avenue Naracoorte for an unlawful purpose.
Section 17(1) of the Summary Offences Act, 1935.
This is a summary offence.
Count 5
On the 2^nd day of June 2002 at Naracoorte in the said State, [W, R, D and T] stole a letterbox of the value of $100.00 the property of JM.
Section 131 of the Criminal Law Consolidation Act, 1935
This is a summary offence.”
2 The letter was as follows: “I would like to say sorry to the head master of the school, teachers and studints for all the trouble I have caused them. and to my Auntie [W] who works at the school and to my cusins who are studints to. To my mum and dad and all my famley and to my boss [C]. I have lernt losts, to treat the couminity with respect and to behav proberly. I will aspest my punement and do the right thing in the future. I think what I did was wrong and that it hurt a lot of peole. And that it was not a good iedi to go out smokeing and drinking at my age.” [The appellant is dyslexic]
3 The terms of the obligation included that the appellant be of good behaviour; that he be under the supervision, that he perform 100 hours of community service within 12 calendar months; that he submit to assessment for drug and alcohol dependence or abuse and undergo such counselling and treatment and participate in such courses or programs as directed by a suitably qualified person.
4 (2001-2002) 81 SASR 540 at [57, 58 , 60, 61] Diversion has also been the subject of considerable academic comment. As Graycar observed in his Australian Institute of Criminology paper Dealing with Delinquency Diverse Challenges Youth Justice 2000: Managing A New World In Transit 15 Aug 2000.
“Diversion is the channelling of an offender or suspect away from the criminal justice process. This may take the form of a caution or warning, diversion at the pretrial stage for resolution of the case by some informal procedure, or alternatives to conviction or sentence following a trial.”

5 A minor offence is defined by section 4 as:
“an offence … that should, in the opinion of the police officer in charge of the investigation of the offence, be dealt with as a minor offence because of
(a)     the limited extent of the harm caused through the commission of the offence; and
(b)    the character and antecedents of the alleged offender; and
(c)     the improbability of the youth re-offending; and
(d)    when relevant – the attitude of the youth’s parents or guardians.”

6 (1994-95) 64 SASR 408 at 412
7 (1998) 198 LSJS 331
8 However her Honour considered that a more general discretion arose:“[counsel] has presented a detailed and persuasive argument to support her argument that the matter should have been diverted to a family conference. If I had been the sentencing judge I may well have been persuaded to adopt that course.”

9 [1999] SASC 371
10 The observations of Graycar in the earlier cited article are apposite:
“The process of restorative justice involves bringing together victims and offenders, and others who may have an interest in a particular offence to deal collectively with how to resolve the impact of the offence, and to chart a path for the future.
In addition to the victim and the offender we might see family members and other members of their communities who may be affected or who may be able to help prevent a recurrence of the offence. These meetings are facilitated by a [youth justice co-ordinator] who helps bring about a collective resolution. The goals of meetings are to heal the relationship between the victim and offender, provide restitution and healing for the victim, reassure the community, and encourage acceptance of responsibility and healing for the offender through apology and reparation.
…
In a conference the victims are given the opportunity to confront the young offender, express the hurt and anger that they feel and play a key role in deciding what needs to be done by the youth to make up for the harm caused. Conferencing is attractive because it entails the ideals of healing and restoration, and of empowering offenders, victims and families. It sees young people as integral members of a family and a community, rather than as social isolates.”

11 See [17]
12 (1989-90) 54 SASR 200 at 203; see also Glover v Haseldine (1990) 48 A Crim R 118, Glover v Romanowcyz (1990-91) 55 SASR 524
13 (1992) 58 SASR 571 at 577; see also Hemming 6v Perkins (1999) 74 SASR 307 at 325 per Martin J at 325

14 [2002] SASC 141
15 [1975] 13 SASR 48 at 49
16 (1973) 6 SASR 265 at 267; see also Taylor v Barr (1987) 135 LSJS 106 at 110-112

17 (1988-89) 51 SASR 277 at 279
18R v Malesevic (1999) 204 LSJS 32; see also R v Foster (No 2) [2001] SASC 154
19 “10. (1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(o) any other relevant matter.”
20 Ventura v Sustek (1976) 14 SASR 395 at 399; Orchard v Orchard (1972) 3 SASR 89; Ladd v Marshall [1954] 1 WLR 1489 at 1491; R v Dorning (1981) 27 SASR 481; R v McIntee (1985) 38 SASR 432

21 Bean v Considine (1965) SASR 351; R v Maniadis (1997) 1 QdR 593
22[1999] SASC 273

23 [1999] SASC 270
24 (1999) 74 SASR 92
25 (2000) 209 LSJS 341
26R v Smith (1987) 44 SASR 587; R v Amuso (1987) 132 A Crim R 308; R v Babic (1998) 2 VR 79
27Aplin v Police [1999] SASC 273; Neill v Police [1999] SASC 270; R v Brain (1999) 74 SASR 92; R v Jenkins (2000) 209 LSJS 341
28His reparation may be measured against the terms of section 24 of the Young Offenders Act which provides: “The Court must not impose a fine exceeding $2 500 for an offence.”

“Count 1
On the 2nd day of June 2002 at Naracoorte in the said State, [W, R, D and T] intending to damage the property of another or being recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing that no such lawful authority existed, damaged windows, wheelie bins and pot plants the property of Naracoorte South Primary School, such damage amounting to more than $2,000 but not more than $25,000.
Section 85(3) of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.

Count 2
On the 2^nd day of June 2002 at Naracoorte in the said State, [W, R, D and T] was on premises at Cedar Avenue Naracoorte for an unlawful purpose.
Section 17(1) of the Summary Offences Act, 1953.
This is a summary offence.
Count 3
On the 2nd day of June 2002 at Naracoorte in the said State, [W, R, D and T] intending to damage the property of another or being recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing that no such lawful authority existed, damaged windows, wheelie bins and pot plants the property of Naracoorte South Primary School, such damage amounting to more than $2,000 but not more than $25,000.
Section 85(3) of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.

Count 4
On the 2^nd day of June 2002 at Naracoorte in the said State, [W, R, D and T] was on premises at Cedar Avenue Naracoorte for an unlawful purpose.
Section 17(1) of the Summary Offences Act, 1935.
This is a summary offence.

Count 5
On the 2^nd day of June 2002 at Naracoorte in the said State, [W, R, D and T] stole a letterbox of the value of $100.00 the property of JM.
Section 131 of the Criminal Law Consolidation Act, 1935
This is a summary offence.”

“an offence … that should, in the opinion of the police officer in charge of the investigation of the offence, be dealt with as a minor offence because of

(a)   the limited extent of the harm caused through the commission of the offence; and
(b)   the character and antecedents of the alleged offender; and
(c)   the improbability of the youth re-offending; and
(d)   when relevant – the attitude of the youth’s parents or guardians.”

[2002] SASC 403

20 December 2002