R v QTV

R v QTV
[2003] SASC 424
Court of Criminal Appeal: Prior, Bleby and Anderson JJ
The Court:
Background

The appellant appeals against a sentence of 11 years imprisonment with a non-parole period of six years and six months, imposed in the District Court upon his being sentenced there for four counts of robbery with violence, one of attempted armed robbery and one of assisting an offender to escape apprehension. Those offences were committed between 13 September and 9 October 2002. At the time, the appellant was not quite 18 years of age. He was born on 18 October 1984 and had appeared on eight previous occasions before courts on drug and vehicle theft charges between December 1999 and July 2002.
In the Youth Court the appellant pleaded guilty to and was committed to the District Court for sentence on three counts of armed robbery and one count of attempted armed robbery. He was committed for trial on other charges, but in the District Court pleaded guilty on a fresh Information to one additional count of armed robbery and one count of assisting an offender. The latter charge attracted the operation of s 29(2) of the Young Offenders Act 1993. A District Court Judge sentenced the youth as an adult on all counts.
In this appeal the head sentence and non-parole period are said to be manifestly excessive. Further complaints are made. It is said that the sentencing Judge erred in that he did not properly or adequately consider or apply the provisions of s 29(2) of the Young Offenders Act 1993, although this point was abandoned at the hearing of the appeal. It is also said that his Honour failed to give adequate weight to indications that the adult co-offender was the dominant personality in the relationship between the two offenders, or alternatively, that the sentencing Judge should have invited further submissions or oral evidence to resolve a manifest dispute between the appellant and the co-offender as to their respective degrees of influence in the offending. However, these points were not argued on the appeal.
A further complaint is that the sentencing Judge did not properly or adequately consider, apply or balance the competing provisions in s 3 of the Young Offenders Act. It is also complained that the sentencing Judge did not properly or adequately consider the provisions of s 36 of that Act.
The offences
The armed robbery offence of 13 September 2002 was committed by the appellant on his own. Armed with a knife, he robbed a 15-year-old schoolboy whom he had followed in his car. He then held a knife to the boy’s throat, demanded money and ran off with the boy’s wallet, which contained $25. The offence constituted a breach of two good behaviour bonds.
The other offences were all committed in company with a man named Quach. Two were committed in the same adult bookshop at Holden Hill. On the first of those two occasions, 4 October 2002, the appellant was in company with Mr Quach, who threatened an assistant with a knife and stole $200. Two days later, Quach confronted the owner of the same bookshop, again in company with the appellant. Quach again confronted his victim with a knife. The owner of the premises resisted. The appellant drove himself and Quach from the scene. That was the attempted armed robbery. On the same day, the two drove to an adult bookshop in Broadview, where Quach threatened a female assistant with a knife and demanded money. When the till was opened the appellant took $200 and ran off, whilst Mr Quach cut the telephone cord.
On 8 October 2002, the appellant went with Mr Quach to another adult bookshop, at Parafield Gardens. Mr Quach ran behind the counter and held a knife close to the attendant’s face. The appellant held a screwdriver to her neck. $110 and a mobile telephone were taken.
On the following day, the appellant was in company with Mr Quach when Quach robbed an elderly woman of her handbag and inflicted serious injuries to her hand with a knife. Both the appellant and Quach ran from the scene, the appellant assisting Quach to avoid apprehension by driving him away in a motor vehicle. They were stopped by a bystander. The two men were arrested.
The appellant was released on home detention bail on 26 October 2002. His bail was revoked after repeated breaches of conditions as to heroin use and the provision of urine samples. He was returned to custody on 2 January 2003.
It was not disputed that the proceeds of the offending had been used to obtain heroin for both the appellant and Mr Quach. The victim impact statements before the sentencing Judge affirmed the fear felt by the victims, particularly the boy who was robbed in the street by the appellant alone. That boy now fears for his personal safety when alone in public. Each person involved in the bookshop robberies is said to be less confident about their personal security as a result of their experiences.
Other relevant information
The sentencing Judge had a social background report. The appellant was born in Melbourne, soon after his parents arrived as refugees from Vietnam. His parents were divorced in 1996. The appellant was living with his father at Parafield Gardens at the time of these offences.
The appellant’s first offending involved stealing cars. The first of those was during a trip to Victoria in December 1999. The second offence occurred in April 2000. Further offending followed, the appellant claiming that his involvement in those later offences was a combination of “gullibility and being too loyal to people he viewed as friends”.
The appellant was sentenced just before his 19^th birthday. In the social background report, the authorities at Cavan Training Centre were quoted as being troubled by a person of the appellant’s age remaining at that Centre for the duration of any sentence likely to be imposed by the Court. Cavan Centre is a juvenile detention facility catering for young men from 15 to 18 years of age. The appellant had resided in Magill and Cavan juvenile facilities from 2 January 2003, whilst on remand. The officers providing the social background report held concerns “regarding the implications of a young man in his twenties mixing with 15 year old men who reside at Cavan”.
The social background report also quoted Cavan staff as indicating that previous experience was that persons like the appellant were subject to greater anxiety and stress if they completed the first 12 months of any sentence imposed at Cavan and then were transferred to the adult system.
Submissions to the sentencing Judge
The sentencing Judge was told that the appellant was willing to seek help with his drug difficulties. His Honour was also told that the appellant’s offending in the past and his tragic involvement in the heroin scene arose “as a result of persons to whom he was exposed when he was cast adrift from his family situation”. The appellant had developed a heroin addiction whilst in Melbourne, using it daily and using a considerable amount.
When he moved to Adelaide to reside with his father the appellant commenced a detoxification programme. He secured part-time casual employment. As a result of an association with a young girl, the appellant was introduced to Mr Quach. It was put that as a result of his interaction with Mr Quach the appellant, “unfortunately once again was exposed to heroin”.
The sentencing Judge was told that it was Quach who had fallen into financial difficulty as a result of his association with heroin. The appellant was supplied with some heroin by Quach, as a result of which he, in a sense, became obligated to him. The sentencing Judge was told that the appellant played, essentially, a back-up role for the adult bookshop incidents.
The appellant’s counsel told the sentencing Judge that, as at the time of sentencing, the appellant was intending to lead a heroin-free lifestyle. He wanted to be with and assist his father, who is unwell. The appellant had hopes of gaining employment, having completed a welding course at Cavan.
Counsel for the appellant invited the sentencing Judge to consider the terms of s 29(2) of the Young Offenders Act in respect of the offence of assisting an offender. The sentencing Judge was reminded that he could only deal with the appellant as if he were an adult in respect of that offence if satisfied that, because of the gravity of the offence or the appellant’s history of offending, the appellant should be dealt with as if he were an adult. It was submitted that the charge of assisting an offender was one that provided some statutory basis for a court to hesitate in sentencing the appellant as an adult with respect to that offence, whatever might be said with respect to the robbery offences.
As for the robbery and attempted robbery offences, it was submitted that for the four bookshop incidents the appellant played a subsidiary role such that it was not appropriate to sentence him as an adult. That submission is hard to accept, given the appellant’s sole involvement in the September robbery and his actual participation in the other robberies.
The present offending was said to have as a common genesis reinvolvement with heroin and involvement with the co-offender. If, contrary to the appellant’s submissions, the sentencing Judge was of the view that the appellant should be sentenced as an adult, counsel reminded the sentencing Judge that the principle of general deterrence was not applicable. The appellant’s youth was said to be a very important and prevailing factor in determining an appropriate sentence. It was put to the sentencing Judge that the appellant was someone who showed indications of being able to be salvaged from an unfortunate spate of offending.
Nothing was said in the appellant’s primary submission about the application of s 36 of the Young Offenders Act as to whether the sentence should be served in a prison or in a training centre.
The prosecution submitted that the appellant should be sentenced as an adult given the intrinsic seriousness of armed robbery as an offence in itself. Besides that, there were multiple offences, being four armed robberies, one attempted armed robbery and the charge of assisting another in his armed robbery. The prosecution referred to the age of the appellant at the time of his armed robbery of the schoolboy, just one month short of the appellant’s 18^th birthday. The other offending was obviously closer to the appellant’s 18^th birthday.
The prosecutor said that the offending represented a prolonged course of serious offending. It was conceded that in the majority of the armed robberies in which Mr Quach was involved he was the principal offender and the principal knife wielder. However, it was emphasised that the appellant did use a knife himself, in the mugging of the first victim. It was the appellant who took the money at the Broadview shop, and it was also pointed out that the appellant used a screwdriver in the armed robbery of 8 October, at the Parafield Gardens shop.
The prosecutor submitted that each of the offences was premeditated and that the appellant knew full well what was going to happen as part of a plan entered into between him and Quach. With respect to the armed robbery that the appellant committed alone, that too was said to be a premeditated offence.
It was not disputed that the appellant should be given some discount for his plea of guilty. Submissions were made with respect to the provisions of s 36 of the Young Offenders Act. It was put on behalf of the prosecution that, as the appellant was then almost 19, if he was subject to a lengthy sentence, a direction that the sentence be served in prison was more appropriate.
Further submissions about the implications of s 36 were received from the appellant’s counsel. He initially suggested that if the Court were to direct service of a sentence in a prison there should be evidence from the relevant authorities. However, after further exchanges with the Judge, counsel conceded that, in the end, there was the challenging task of balancing a number of considerations and that that was a matter for the sentencing Judge. No application was made to cross-examine the authors of the social background report or to hear further evidence on that question.
The sentencing remarks
In his sentencing remarks, the sentencing Judge referred to the appellant’s criminal history and the circumstances of the offences then before the Court. The sentencing Judge said the appellant’s personal history might have been affected by his parents’ divorce and the death of his sister. His Honour then said:
“… You were in Melbourne whilst your father was in America when your heroin addiction commenced in 2001. Firstly, you sold heroin and then you used it and became addicted. On his return you returned to Adelaide and overcame your addiction in the early part of 2002. You then obtained casual work for some months.
Your then girlfriend was your link to Quach and re-exposure to heroin. Through your counsel you paint the reverse picture of that put to me on behalf of Quach - namely that he was in financial difficulty because of his heroin use and the offending commenced. I have already inferentially commented upon the role on which you played - namely you were each totally supportive of the other and benefited from the heroin purchased with the robbery proceeds.
This is so even though the social background report indicates that you were dominated by Quach and there is support for this in his record of interview with police.
However, I reject any suggestion that you were in any way forced into participation in these offences. On one occasion you were armed and on another you took money from the till and on two occasions you drove Quach from the scene. I proceed on the basis you were to benefit from each of these criminal acts and became involved willingly so as to facilitate the continuation of your heroin use.”
The sentencing Judge had sentenced Quach earlier the same day, having heard sentencing submissions on different days for the two offenders.
The sentencing Judge referred to s 29(2) of the Young Offenders Act with respect to the offence of assisting an offender. His Honour said that that offence was an indictable offence and should be dealt with as if the appellant were an adult because of the circumstance of severity involved, in that the appellant had observed Quach rob an elderly woman and wound her with a knife. His Honour then said, with respect to the armed robbery offences, that he declined to sentence the appellant as a youth. His Honour said that he was not prepared to accept that the appellant played a subsidiary role. His Honour saw all of the offending as serious. Accepting that principles of general deterrence had no role to play, his Honour said that it was important to impress upon the appellant, in a personal sense, the wrongness of his behaviour. His Honour said:
“…You have before been involved with heroin, given it up and then taken your place in the community only to succumb and then become involved in this very serious criminal behaviour. The sentence must seek to impress upon you that, upon your release from prison, such behaviour must not be repeated. In view of the seriousness of your offending, I decline the invitation to sentence you as a youth or remand you to the Youth Court for sentence.
The offending clearly calls for a sentence of imprisonment. I propose to sentence you as an adult to a sentence to be served in an adult institution.
As these offences are, in reality, part of the one criminal escapade based upon your connection with heroin, spread over nearly one month, I propose to impose one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act. As I have said earlier in relation to Quach, it is not possible to proceed by way of a mathematical formula and obtain a sentence which is realistic having regard to the seriousness of the offending and your age.
The sentence must recognise that you are a young man who will be in prison for the first time and that there remains good prospects for your rehabilitation because of your youth. Hopefully, you have some insight into your behaviour and its consequences. Whilst the social background report cites examples of poor behaviour in Cavan in relation to acting responsibly, I am prepared to accede to your counsel’s submission that overall your performance there is characterised as ‘good’ and that you should receive some benefit in that regard.
Were it not for your early pleas of guilty, I would have imposed a sentence of 17 years imprisonment. After application of the discount earlier mentioned I fix that sentence at 13 years and 6 months.
In fixing this head sentence I have had regard to your youth and have fixed a period which is several years less than otherwise would be so.
However, it is then necessary again to stand back and look at that sentence having regard to your age and youth and the prospects of rehabilitation which I have acknowledged to exist and the limited scope of general deterrence in sentencing you as an adult for offences committed as a youth.
In light of those matters, I reduce the head sentence to 11 years. I fix a non parole period of 6 years and 6 months.
This sentence may not properly be suspended.
The sentence is to commence from when you were taken into custody on 2 January 2003.”
Sentencing as an adult
In our opinion the appellant properly abandoned the complaint that the sentencing Judge erred in dealing with the youth as an adult, both with respect to the robbery offences and that of assisting an offender. It is plain from the material before the sentencing Judge that his Honour was justified in so sentencing the appellant on all of the charges then before the Court given the nature, gravity and number of offences then before the Court and the nature of the appellant’s involvement in those offences. It is plain that the October robbery offences were pre-planned. Besides that, the appellant’s previous history was properly a factor relevant to the decision to deal with the youth as an adult. As for the offence of assisting an offender, whilst that had to be considered under s 29(2), the appellant’s history of offending and the seriousness of the offending which the appellant assisted warranted the same conclusion with respect to that matter as with the others. It was appropriate to deal with the youth as an adult with respect to all of the offending then before the court.
It is important to realise, however, that a decision to sentence a youth as an adult does not mean that other relevant sentencing principles contained in the Young Offenders Act cease to have any application. It merely means that some possible sentencing options under the Act are not available, and that the door is opened for the youth to serve his detention in a prison rather than in a training centre: see the discussion below on s 36 of the Young Offenders Act. The object and policies contained in s 3, also discussed below, continue to apply.
The influence of Quach
Although this was not the subject of oral submissions, it was touched upon in the appellant’s written outline. We reject the appellant’s submission that the sentencing Judge failed to give adequate regard to the degree of influence upon him by Quach. The sentencing Judge accepted the information in the social background report that he was “dominated” by Quach and that that was supported by what Quach had said in his record of interview. Quach may well have been influential in the appellant’s return to heroin abuse. However, the sentencing Judge properly found that the appellant had not been forced into participation in the offences by Quach. Quach was not involved in the first armed robbery of 13 September, and the appellant played a significant role in the joint offending. His lesser role in the attack on the elderly woman was reflected in the lesser charge of assisting an offender.
Section 36, Young Offenders Act

Two questions arise in relation to s 36 of the Young Offenders Act. The first is the obligation of the sentencing Judge when sentencing as an adult a youth who, at the time of sentencing, is over the age of 18. The second is whether there was sufficient information before the sentencing Judge on this occasion to justify the giving of a direction under sub-section (1). Section 36 relevantly provides:
“(1)Subject to any direction of the sentencing court to the contrary, a youth who has been dealt with as an adult and sentenced to imprisonment will serve that sentence in a training centre.
(2) If a youth is serving a sentence of imprisonment in a training centre, the sentencing court must, before the youth reaches 18 years of age, review the detention and either direct that the imprisonment in a training centre continue or that the youth be transferred to a prison.”
The section appears to be written on the assumption that a youth will always be sentenced well before attaining the age of 18 years. In this case, however, the appellant was undoubtedly a youth for the purposes of the Young Offenders Act at the time of each of his offences, but was aged almost 19 at the time of being sentenced. Clearly sub-section (2) could not apply. Yet, the expectation underlying sub-section (1) is that a youth will generally serve a sentence in a training centre, and that the sentencing Judge will need to be persuaded that the sentence is more appropriately served in a prison.
However, there is also a clear assumption behind sub-section (2) that a training centre will not necessarily be the best place in which to keep a youth after he or she turns 18, and a review is necessary at that age. Thus, it would seem to follow that, in circumstances such as the present, when the person being sentenced is over 18, the expectation underlying sub-section (1) is inappropriate, and that as well as imposing a sentence, the sentencing court must conduct something akin to the review contemplated by sub-section (2) in order to determine whether a training centre or prison is more appropriate, and to give the direction under sub-section (1) if a training centre is not appropriate. There can be no presumption, at that age, that a training centre will be more appropriate. We consider that that was a necessary part of the process in this case. To the extent that the appellant and his counsel may have considered that the question need not be addressed, that was a misapprehension. It cannot be assumed that a person over 18 will be appropriately housed in a training centre.
The Act is silent as to the nature of the review that is necessary under sub-section (2) and the nature of an inquiry that might be necessary under sub-section (1). It may be conducted as a formal hearing on oral evidence as with the case in R v F (1999) 75 SASR 163. On the other hand, there is nothing to prevent the review from being conducted on a report, such as was before the sentencing Judge in this case, together with such other relevant information concerning the youth and his circumstances as is placed before the Court. We would respectfully agree with what fell from Nyland J in R v F, in relation to the conduct of the review under sub-section (2), at 176:
“At the end of the day, I think that it is the task of the Court conducting the review to evaluate all of the circumstances surrounding the detention of the youth in question and then decide whether it is appropriate to make an order for transfer to a prison. I believe it is undesirable to circumscribe the discretion of the review judge by laying down any strict rules or criteria which will determine the basis upon which the order should be made. Each case will turn very much on its own particular facts.”
In our opinion the same applies to a sentencing Judge when considering whether to make a determination under sub-section (1) in relation to a person who is then over the age of 18.
In this case the sentencing Judge directed his mind to the question, but it received little more than a passing mention in a two-line paragraph of the sentencing remarks.His Honour merely referred to the appellant as a young man who will be in prison for the first time and directed the sentence to be served in an adult prison. We consider that the effect of s 36 is to require a more detailed consideration of the question than the Judge appears to have given it.
The sentencing Judge was required to conduct a review to evaluate all of the circumstances surrounding any detention of the appellant and then decide whether it was appropriate to make an order for transfer to a prison. As we have said, there are no strict rules or criteria to determine the basis upon which an order might be made. Each case will turn very much on its own particular facts. However, the age of the offender and the length of his sentence are plainly relevant considerations. It cannot be disputed that the sentencing Judge was alert to those two factors. Likewise, it must be said that it is not appropriate to detain in a youth facility an offender who might be well into adulthood before he or she is eligible for release. It is not inappropriate to consider the interests of other residents detained in a training centre whose detention might be adversely affected by the continued presence or conduct of a person sentenced as an adult.[1] That circumstance was raised by the authorities and was before the sentencing Judge in the social background report.
[1] R v F (1999) 75 SASR 163 at 176 and 177
The social background report also gave detailed information as to the appellant’s performance against various criteria during his period in custody. The Judge had relevant information from a youth worker associated with the Vietnamese community in Australia. In addition we were supplied, without objection, with information concerning the appellant’s further progress in studies commenced through the Open Access College whilst he was at Cavan Training Centre and which continued after his transfer to Yatala gaol. The information before the sentencing Judge indicated that there was some reluctance on the appellant’s part while on home detention bail and in custody to demonstrate a desire for rehabilitation, and some reluctance to participate in rehabilitation programs aimed at addressing his offending behaviour. Nevertheless, the information also indicates an interest in vocational training and the opportunity to complete a number of possible training and behaviour programs whilst in the prison system.
On all the material before the sentencing Judge, it was appropriate to direct that the sentence be served in a prison. There is no doubt that the hearing on this issue could have been more extensive. If the appellant wished to challenge the views expressed by the authors of the social background report he could have required them to attend for cross-examination, and further evidence could have been led as to the desirability (if such was the case) of his remaining in a training centre. That was not done. Given the fact that the appellant was facing a significant custodial sentence taking him well into adulthood, it was not inappropriate to direct service of the sentence in a prison.
Section 3, Young Offenders Act
In maintaining that the head sentence and non-parole period are both manifestly excessive, the appellant submitted that the sentencing Judge erred in fixing a head sentence of 13 years and six months before reducing it to 11 years. It is said that the Judge did not properly or adequately consider or apply the competing provisions of s 3 of the Young Offenders Act. Section 3 provides:
“Objects and statutory policies
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;
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(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.”
We are not persuaded that the sentencing Judge failed to have regard to the requirements of s 3. Whether they were accorded sufficient weight and whether there was some other error in the sentencing process are other questions. considerable weight was obviously afforded to the appellant’s youth when viewed against the objective seriousness of the offending. The care, correction and guidance of a young offender is a particularly important factor when considering a proper sanction for the offending being dealt with by the Court. The nature, gravity and aggravated features of the offending are not to be ignored. Nor, indeed, must a sentencing judge fail to carry into effect the direction within s 3(2a), that in imposing sanctions on a person who has committed offences whilst under the age of 18, who is to be dealt with as an adult, regard is to be had to the deterrent effect which any proposed sanction may have on that person and on other youths.
The sentencing Judge clearly had regard to the appellant’s age, the prospects of rehabilitation and the limited scope of general deterrence in sentencing the appellant as an adult for offences committed as a youth. Whilst the Judge acknowledged the fact that general deterrence is not to be taken into account with respect to imposing a sanction upon a person who has committed offences whilst under the age of 18, he did have regard to the deterrent effect any proposed sanction may have on other youths.[2]
[2] Young Offenders Act 1993, s 3(2a)(b)
His Honour seems to have been alive to his responsibility under par (2)(a). That requirement of s 3 may sometimes be easily overlooked by a sentencing Judge of a court other than the Youth Court. The sentencing Judge also had to be aware that the community needs to be adequately protected against violence. Inferentially his Honour seems to have taken that into account.
A sentencing error
Section 3 of the Young Offenders Act is the section which must form the cornerstone of the process of sentencing a youth to whom the Act applies. It repeats the substance of some but by no means all of the factors required to be considered under s 10 of the Criminal Law (Sentencing) Act 1988 in sentencing an adult. The relationship between the Criminal Law (Sentencing) Act and the Young Offenders Act is set out in s 3A of the Criminal Law (Sentencing) Act. It relevantly provides:
“(1)Subject to any provision of this Act to the contrary, this Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth.
(2) However, in the event of conflict between a provision of this Act and a provision of the Young Offenders Act 1993 or the Youth Court Act 1993, the latter provision prevails to the extent of that conflict.”
We do not suggest that s 10 of the Criminal Law (Sentencing) Act has no role to play in sentencing a youth. However, the application of that section must be directed to the fulfilment of the objects and policies of s 3 of the Young Offenders Act. This must mean that factors such as “the need to ensure that the defendant is adequately punished for the offence”[3] will carry much less weight than they would in sentencing an adult. Questions of deterrence[4], in so far as there is a requirement to have regard to the deterrent effect any sentence under consideration may have on “the defendant or other persons” must be read subject to sub-section 3(2a) of the Young Offenders Act. Other factors mentioned in s 10 of the Criminal Law (Sentencing) Act will similarly carry a very different emphasis in the light of the requirements of s 3 of the Young Offenders Act.
[3] Criminal Law (Sentencing) Act 1988, s 10(1)(k)
[4] Criminal Law (Sentencing) Act 1988, s 10(1)(j)
The object specified in subsection (1) of s 3 of the Young Offenders Act requires a sentence that allows for the care, correction and guidance necessary for the youth’s development into a responsible and useful member of the community. It requires the Court to assume that the youth has potential that can be realised. Those requirements are not necessarily the starting points in sentencing an adult. They will not be met by some notional discounting of what might be an appropriate sentence for an adult offender, nor will they be met by too crushing a sentence, particularly a first custodial sentence. In sentencing a youth much greater emphasis must be given to the youth’s prospects and potential than will usually be the case in sentencing an adult, where punishment and general deterrence may well assume a more dominant role. On the other hand, community protection (s 3(2)(c)) in a case like this and deterrence within the ambit of subsection (2a) are also important and must be brought into the scales.
For these reasons the sentence of a youth may bear little relationship with that imposed on an adult in similar circumstances. Sentencing “standards” will have little relevance or application. What is most important is the perceived effect that the particular penalty is likely to have on the youth offender. This can only be based on judgement and experience in dealing with youth offenders. It will always be an inherently difficult task, ideally suited to the judges of the specialist Youth Court established under the Youth Court Act 1993.
Indeed, it seems a little odd that judges of that Court, who must be judges of the District Court[5], are limited by s 23 of the Young Offenders Act to imposing a custodial sentence not exceeding three years. Such limitation does not apply to a District Court Judge sitting in that capacity. We can see no reason why a Judge of the Youth Court should not be able to exercise the same powers as a Judge of the District Court, or alternatively to sit in their capacity as a District Court Judge when the District Court is required to sentence a youth. By reason of the specialist nature of the Youth Court and for consistency in the application of s 3, we think it desirable that they should be able to exercise such powers.
[5] Youth Court Act 1993, s 9
Given the obligation to comply with s 3 of the Young Offenders Act the sentencing Judge could not sentence the appellant as he would have sentenced a person legally an adult. Towards the end of his remarks the Judge made clear what he would have done if the appellant had been an adult, and then applied a series of discounts to arrive at his final sentence. In our opinion it is an error to seek to identify the head sentence that might have been imposed had the appellant been above the age of 18 at the time of the commission of the offences and to work down from there. The challenge for the sentencing Judge was to identify a proper sentence for all of the offending, committed by someone just under the age of 18, bearing in mind the provisions of s 3.
Given the markedly different emphasis of that section, relying on sentencing tariffs for armed robbery committed by adult offenders and determining what sentence would have been imposed if the defendant were an adult cannot really assist. Perhaps the most obvious difference is in relation to deterrence. The Young Offenders Act maintains a prohibition of taking deterrence generally into account, whether young people are sentenced as adults or sentenced in the normal way under the Young Offenders Act.[6] Other factors mentioned in s 10 will be affected in different ways. So comparison with an adult penalty for the same offence becomes odious and can indeed lead to error.
[6] R v C (1998) 72 SASR 391 at 396
In R v C[7], Cox J considered that it was permissible “to have regard” to cases that establish the general level of penalties for the offence in question when committed by an adult. It may be appropriate to use such adult sentencing standards as a check to ensure that the standard is not being exceeded in the sentence being proposed for the youth. It would be wrong, however, and we do not consider that Cox J suggested this, to use any such adult level of penalties as a starting point in the calculation of the appropriate penalty for a youth and to discount any such figure for various reasons to arrive at a penalty for the youth. We note that in any event, the principal basis on which the sentence was reduced in that case was because of the failure of the sentencing Judge to give sufficient weight to the appellant’s exceptionally young age. In fact the sentence imposed by the Full Court on appeal bore no relation to what was said to be the appropriate sentencing standard for equivalent offences committed by adults.
[7] (1998) 72 SASR 391 at 396
The sentencing of juveniles was addressed by Bleby J in L v Police[8]. The comparison was made between s 3 of the Young Offenders Act and the former s 7 of the Children’s Protection and Young Offenders Act 1979. The observation was made (at 490) that under the present regime there was an even greater emphasis on care, correction, guidance and development of offenders as responsible members of the community than in the previous Act. When speaking of s 7 of the previous Act King CJ had said in Hallam v O’Dea[9]:
“The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender. In the case of an adult offender, the starting point will generally be the observance of a proper proportion between the gravity of the crime and the severity of the punishment. This fundamental principle of adult sentencing obviously has no place in fixing the period of detention under the Children’s Protection and Young Offenders Act, even where the protection of the community becomes the dominant consideration.
………
The Act prescribes methods of dealing with juvenile offenders which differ radically in nature and object from the methods used in relation to adult offenders. It would be meaningless to ask what sentence of imprisonment would be appropriate to a seventeen year old who is within the purview of the young offenders legislation, if he were not a seventeen year old but an eighteen year old adult subject to the ordinary sanctions of the criminal law.”
Wells and Legoe JJ agreed with the former Chief Justice. Those remarks bear even greater force under the present Act.
[8] (1998) 198 LSJS 481
[9] (1979) 22 SASR 133 at 136 – 137
A similar approach was taken by Duggan J in R v Bui and Beedar[10] where he considered it “inappropriate” for a sentencing Judge to arrive at the sentence of a youth “by discounting from what would have been an appropriate sentence for an adult”. Debelle and Williams JJ agreed.
[10] (2002) 224 LSJS 286; [2002] SASC 407 at [23]

This is not to say that a youth should not be told, for example by way of warning under s 3(2)(a), what penalty might be imposed for a similar offence committed by an adult. The point is that the sentencing criteria for a youth are to be found predominantly in s 3. The provisions of the Criminal Law (Sentencing) Act 1988, while relevant, have a subsidiary effect. The approach to sentencing a youth is quite different from the approach to sentencing an adult.
Compared with the sentencing process applicable to the appellant’s co-offender who was at all material times an adult, although only a year older than the appellant, the approach required by the Act may appear to give rise to an anomalous result. However, the legislation has fixed a standard age of 18, and an offender must be treated differently by the courts in respect of offences committed while below that age. So long as a different sentencing regime is maintained for a class of persons defined by reference to a particular age, there will always be anomalies where offences are committed close to that age.
Conclusion – Head Sentence
Given the appellant’s age at the time of his offending, his previous appearances before courts and the criteria set out in s 3 of the Young Offenders Act, we think a head sentence of about 12 years, before a discount for the plea of guilty, is the maximum sentence of imprisonment appropriate to be served in an adult prison that could be imposed in all the circumstances of this case. After a discount for the plea of guilty we would fix a head sentence of nine years. In fixing that sentence we are conscious of the fact that the appellant also served approximately two and a half weeks in custody after his arrest, followed by a period of a little over two months on home detention bail.
Non-parole period
Where a custodial sentence is necessary for a youth offender, one of the most significant sentencing tools to assist in the implementation of the objects of s 3 of the Act is the fixing of a non-parole period. Objectives of care, correction and guidance can often best be achieved under a careful and well monitored period of parole the subject of appropriately tailored conditions, the offender knowing that breach of those conditions may well result in resumption of the custodial sentence.
The sentencing Judge fixed a maximum period of parole of four and a half years. A period of that order is not inappropriate in all the circumstances, and opinions may differ as to the appropriate ratio in a given case between the non-parole period and the necessary period of parole. As in the case of a head sentence, the fixing of a non-parole period will also be governed by the requirements of s 3 of the Young Offenders Act with its emphasis on processes of rehabilitation. A non-parole period fixed for a youth will not necessarily be the same as one might fix in similar circumstances in the case of an adult. Bearing in mind the head sentence that we propose, we would fix a non-parole period of four years, thus giving a substantial period for properly supervised rehabilitation which, in this case, s 3 of the Act requires.
Orders
The appeal is allowed. The sentence of the District Court is set aside. In lieu thereof we impose a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act of nine years imprisonment and fix a non-parole period of four years. Both the head sentence and non-parole period are to commence from 2 January 2003. In the light of the material before the sentencing Judge and this Court we direct, pursuant to s 36(1) of the Young Offenders Act, that the sentence be served in prison as from 23 September 2003, being the date of the appellant’s sentencing in the District Court.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.      Young Offenders Act 1993, s 3(2a)(b)
2.     Criminal Law (Sentencing) Act 1988, s 10(1)(k)
3.     Criminal Law (Sentencing) Act 1988, s 10(1)(j)
4.     Youth Court Act 1993, s 9
5.     R v C (1998) 72 SASR 391 at 396
6. (1998) 72 SASR 391 at 396
7. (1998) 198 LSJS 481
8. (1979) 22 SASR 133 at 136 – 137
9. (2002) 224 LSJS 286; [2002] SASC 407 at [23]

[2003] SASC 424

19 December 2003