R v T, JJ - [2012] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v T, JJ
[2012] SASCFC 62
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice David)
1 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - CUSTODIAL ORDERS
The applicant applied for permission to appeal to the Court of Criminal appeal against his sentence after a single Judge of the Supreme Court of South Australia refused permission to appeal – the application and appeal were heard concurrently in the event that permission to appeal was granted.
The applicant pleaded guilty in the Youth Court to the charge of murder – T was 14 years old when the offence was committed and 15 years old when sentenced – the sentencing Judge imposed the mandatory sentence of life imprisonment, and fixed a non-parole period of 15 years.
The question for the Court was whether or not permission to appeal should be granted - the ground of appeal was that the non-parole period was manifestly excessive – the issue put into contention to support the ground of appeal was whether the following factors required a shorter non-parole period: the applicant was only 14 years of age at the time of the offence; the applicant pleaded guilty at an early stage; the applicant’s provision of two detailed statements to the DPP; it was a first offence; the applicant had a difficult childhood, both at school and at home; the applicant’s psychological condition; and the fact that the applicant had shown some signs of improvement during is time in detention.
Held: the case is sufficiently unusual, and the non-parole period is sufficiently substantial, to warrant consideration by the Court – after considering the relevant provisions of the Criminal Law (Sentencing) Act 1988 (SA), applied in the light of the relevant provisions of the Young Offenders Act 1993 (SA), and the relevant circumstances and the number of years determined by the Judge, it could not be said that the Judge’s decision was erroneous.
Application for permission to appeal against the non-parole period granted – appeal dismissed.
Young Offenders Act 1993 (SA) s 3, s 3(2a)(b)(ii), s 29(1), s 29(4); Criminal Law (Sentencing) Act 1988 (SA), referred to.
R v A, D (2011) 109 SASR 197, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"young offender"

R v T, JJ
[2012] SASCFC 62
Court of Criminal Appeal: Doyle CJ, Vanstone and David JJ

DOYLE CJ: T pleaded guilty in the Youth Court to a charge of murder. When the offences were committed T was 14 years old. He was 15 years old when sentenced. The Judge imposed the mandatory sentence of life imprisonment, and fixed a non-parole period of 15 years.
T…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v T, JJ

Details

AGLC: R v T, JJ [2012] SASCFC 62
Case: [2012] SASCFC 62
Decision Date: 1 June 2012

CaseChat Overview and Summary

The applicant, T, who was 14 years old at the time of the offence and 15 years old when sentenced, sought permission to appeal against the 15-year non-parole period imposed by a single Judge of the Supreme Court of South Australia. The applicant had pleaded guilty in the Youth Court to murder, which carried a mandatory sentence of life imprisonment. The application for permission to appeal was heard concurrently with the appeal itself, should permission be granted.

The central legal issue before the Court of Criminal Appeal was whether the non-parole period of 15 years was manifestly excessive. This question required the court to consider whether a range of mitigating factors, including the applicant's young age at the time of the offence, his early guilty plea, his cooperation with the DPP, his first-offence status, his difficult childhood, his psychological condition, and signs of improvement in detention, necessitated a shorter non-parole period.

The Court acknowledged that while the sentencing Judge had correctly applied the mandatory life sentence and was entitled to sentence T as an adult under section 29 of the Young Offenders Act 1993 (SA), she was nonetheless obliged to fix the non-parole period with regard to the objects and statutory policies of that Act. These policies emphasise the care, correction, and guidance necessary for a youth's development, awareness of legal obligations, protection of the community, and the balance between deterrence and rehabilitation, particularly when dealing with a youth as an adult. The Court found that the sentencing Judge had referred to these matters and that her approach accorded with relevant case law. Despite the unusual circumstances and the substantial non-parole period, the Court concluded that it could not be said that the Judge's decision was erroneous.

Permission to appeal was granted, but the appeal was ultimately dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was appropriate for the Judge to sentence T as an adult, as she did: see the Young Offenders Act 1993 (SA) (“the YOA”) s 29(1) and s 29(4). Although the Judge sentenced T as an adult, she was obliged to fix the non-parole period having regard to the objects and statutory policies to be found in s 3 of the YOA. Relevantly, s 3 of the YOA provides:(1)The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.(2)The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:(a) a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;(c) the community, and individual members of it, must be adequately protected against violent or wrongful acts.(2a)In imposing sanctions on a youth for illegal conduct—(a) regard should be had to the deterrent effect any proposed sanction may have on the youth; and(b) if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth's conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—(i)the deterrent effect any proposed sanction may have on other youths; and(ii)the balance to be achieved between—(A)the protection of the community; and(B)the need to rehabilitate the youth.…These are all matters to which the Judge referred. The Judge’s approach accorded with the requirements of the YOA as explained in decisions such as R v A, D [2011] SASCFC 5; (2011) 109 SASR 197 at [56]-[60]. Consideration of Appeal Mr Muscat submits that certain factors called for and required a shorter non-parole period. First, the circumstance that T was only 14 years of age when he committed the offence. Second, his early plea of guilty. Third, the provision of two detailed statements to the DPP. Fourth, the circumstance that he had not previously committed any offence. Next, T’s difficult childhood, both at home and at school, bearing in mind the many years of teasing and bullying to which he had been subjected. He referred also to the factors identified by Mr Broomhall. He relied also on the circumstance that T had shown some improvement during his time in detention. The issue for this Court is whether it should grant permission to appeal to enable Mr Muscat to argue Mr Muscat to argue that the non-parole period is excessive. In considering this question one must bear in mind the approach to sentencing a young offender outlined in R v A, D. The provisions of the Criminal Law (Sentencing) Act 1988 (SA) are relevant, but are to be applied in light of the provisions of the YOA referred to above, in the manner indicated in R v A, D. Arriving at an appropriate non-parole period is always difficult when a serious crime is committed by a young offender. The decision is made all the more difficult in this case by T’s very young age, and by the nature of his crime.