R v W, TB - [2006] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, TB
Judgment of The Court of Criminal Appeal
(The Honourable Justice Besanko, The Honourable Justice Anderson and The Honourable Justice Layton)
8 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES
Application by Director of Public Prosecutions for leave to appeal against sentence – respondent pleaded guilty to committing number of offences when he was sixteen-and-a-half years old – judge ruled that she would sentence respondent as youth and sentenced respondent three days before his eighteenth birthday – with respect to offences of causing death by dangerous driving, using motor vehicle without consent, failing to stop and give assistance, and driving while disqualified, respondent sentenced to detention in training centre for 2 years, suspended upon respondent entering into obligation to be of good behaviour for 2 years, and disqualified from holding driver’s licence for six years – with respect to offences of serious criminal trespass in place of residence and theft, respondent placed under obligation to be of good behaviour for 2 years – three grounds of appeal – first, that judge erred in declining to sentence respondent as adult – secondly, and only if first ground successful, that sentence imposed manifestly inadequate – thirdly, and irrespective of first ground, that judge erred in suspending sentence.
Held, granting application and allowing appeal – first, judge erred in declining to sentence respondent as adult – secondly, sentence imposed manifestly inadequate – thirdly, no good reason to suspend sentence – respondent re-sentenced to total of 3 years’ imprisonment, to be served in training centre, and non-parole period of 18 months – sentence not suspended – respondent disqualified from holding driver’s licence for six years.
Young Offenders Act 1993 ss 3, 4, 17, 22, 23, 29, 36, 39; Criminal Law Consolidation Act 1935 ss 19A, 86A, 134, 170; Road Traffic Act 1961 s 43; Motor Vehicles Act 1959 s 91; Criminal Law (Sentencing) Act 1988 ss 3A, 18A, 38; Youth Court Act 1993 (generally), referred to.
R v Nemer (2003) 87 SASR 168; R v QTV (2003) 87 SASR 378; R v N; R v P Unreported, 26 February 1998, no. S6565; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; Lovell v Lovell (1950) 81 CLR 513; Gronow v Gronow (1979) 144 CLR 513; Mallet v Mallet (1984) 156 CLR 605; R v Errigo (2005) 92 SASR 562; R v Hicks (1987) 45 SASR 270; R v Wacyk (1996) 66 SASR 530, considered.

R v W, TB
[2006] SASC 62
Court of Criminal Appeal: Besanko, Anderson and Layton JJ

BESANKO J: This is an application for leave to appeal by the Director of Public Prosecutions against a sentence imposed by a judge of the District Court. The respondent to the application was born on 17 October 1987. He committed a number of offences on 13 April 2004, when he was about sixteen-and-a-half years of age. He was therefore a “youth” within the provisions of s 4 of the Young Offenders Act 1993 (“YOA”) at the time of offending. A judge of the Youth Court committed the respondent for trial to the District Court. The respondent subsequently pleaded guilty to the following offences:
1Causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (“CLCA”).
2Using a motor vehicle without consent, contrary to s 86A of the CLCA.
3Failing to stop and give assistance after an accident, contrary to s 43(1) of the Road Traffic Act 1961.
4Driving while disqualified, contrary to s 91 of the Motor Vehicles Act 1959.
5Serious criminal trespass in a place of residence, contrary to s 170(1) of the CLCA.
6Theft, contrary to s 134 of the CLCA.
The District Court judge heard submissions in relation to sentence over a number of days in October 2005. On 13 October 2005, she ruled that she would not deal with the respondent as an adult. She sentenced the respondent on 14 October 2005, which was three days before his eighteenth birthday.
With respect to the offences of causing death by dangerous driving, using a motor vehicle without consent, failing to stop and give assistance after an accident, and driving while disqualified, the judge imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) of detention in a training centre for 2 years. She suspended the sentence upon the respondent entering into an obligation to be of good behaviour for a period of two years, subject to five conditions, which it is not necessary to set out.
The judge also disqualified the respondent from holding a driver’s licence for a period of six years starting from 14 October 2005.
With respect to the offences of serious criminal trespass in a place of residence and theft, the judge imposed one penalty pursuant to s 18A of the Sentencing Act of an obligation to be of good behaviour for a period of 18 months.
The Director challenges the sentencing judge’s decision in three respects. First, he challenges her decision not to deal with the respondent as an adult. He submits that the judge gave no consideration, or no proper consideration, to the nature of the offences, the circumstances surrounding their commission and the respondent’s antecedents in determining whether the respondent should be dealt with as a youth or as an adult. Secondly, he submits that the sentence imposed by the judge was manifestly inadequate. The Director only pursues this second submission if he is successful in establishing that the judge erred in declining to deal with the respondent as an adult. Thirdly, the Director submits that the judge erred in suspending the sentence. He pursues this submission irrespective of whether he succeeds in establishing that the judge erred in declining to deal with the respondent as an adult.
The circumstances surrounding the commission of the offences
Although there is some difficulty in reconciling the times at which certain events occurred, there is no dispute that the events occurred as I will describe them.
In the early afternoon of 13 April 2004, the respondent broke into residential premises at 1 Jemison Street, Waikerie, through an open bathroom window. He stole three bank cheques, a computer bag, a cash tin, 22 foreign coins, a pipe and a box containing photographs. This conduct constituted the offence of serious criminal trespass in a place of residence, for which the maximum penalty is imprisonment for 15 years, and the offence of theft, for which the maximum penalty is imprisonment for 10 years.
The respondent then left the premises, whereupon he stole a gold Holden Gemini sedan (“the Gemini”), which was parked at the rear of 3 Jemison Street, Waikerie. This conduct constituted the offence of using a motor vehicle without consent, for which the maximum penalty is imprisonment for 2 years and a mandatory disqualification from holding a driver’s licence for a period of 12 months.
At between 1.00 pm and 1.30 pm, the respondent was observed driving the Gemini in Lawrie Terrace, Waikerie, at speeds of between 40 and 50 kilometres per hour. The Gemini failed to negotiate a moderate sweeping right-hand bend in the road, left the road, collided with a garden wall and entered the garden of private premises. The Gemini came to rest under a tree.
At between 1.00 pm and 1.30 pm, the Gemini was then observed travelling west along Ramco Road, Waikerie, at speeds in excess of 100 kilometres per hour. The Gemini was being driven over the centre line of the road with the double white lines on the roadway under the driver’s seat area. The Gemini was observed overtaking a second vehicle on a right hand bend where the view of oncoming traffic was obstructed.
At approximately 1.30 pm, the Gemini was observed travelling east along Ramco Road, Waikerie, at speeds of between 100 and 120 kilometres per hour. Just before a sweeping left bend, near the intersection of Zeigler Road and Ramco Road, the Gemini overtook two other vehicles travelling in the same direction, disregarding the solid double white lines on the road. One of the drivers described the respondent’s conduct in then slowing down and braking, pulling over to the side of the road and beckoning other drivers to pull over, as “frightening”.
The Gemini then entered the sweeping left bend on the wrong side of the road and at high speed. After leaving the bend, and while still driving in the oncoming lane, that is, on the wrong side of the road, the Gemini collided with a motorcycle ridden by John Raymond Miller, who was travelling in the opposite direction. The driver’s side mirror of the Gemini connected with the front right handle bar and fairing of the motorcycle. The front right tyre of the Gemini connected with the motorcycle’s right muffler. Mr Miller was lifted off the motorcycle and travelled up the windscreen pillar of the Gemini, along the roof of the Gemini and onto the bitumen.
After the collision with Mr Miller, the Gemini was stationary for a few moments before turning 180 degrees and driving away. As the Gemini moved off, it collided with a burgundy Mitsubishi Magna sedan, which had five occupants, before reversing and driving away. This conduct constituted the offence of failing to stop and give assistance after an accident, for which the maximum penalty is a fine of $5,000 or imprisonment for 1 year and a mandatory disqualification from holding a driver’s licence for a period of not less than 1 year.
At approximately 3.00 pm, the Gemini was observed driving along a side road near the loading bay of the Woolworths store at Waikerie. A truck was blocking the side road. The driver of the Gemini became agitated at being unable to pass the truck. The Gemini was reversed into some wooden pallets that were stacked against a fence before driving away.
As at 13 April 2004, the respondent was disqualified from holding a driver’s licence. His conduct in driving the Gemini constituted the offence of driving while disqualified, for which the maximum penalty is imprisonment for 6 months (for a first offence).
Shortly after 3.00 pm, the police spoke with the respondent, who was in a vehicle in the company of some family members. He was seen to be unsteady on his feet with fine marks or scratches on his neck and right forearm, swelling underneath his right eye and dried blood around his mouth and on his lip. When asked about his injuries, the respondent told the police that he had been in a fight. The Gemini was located in Burns Street, Waikerie, at approximately the same time as police were speaking to the respondent. Substantial damage to the front portion of the vehicle and windscreen was observed.
The respondent was arrested shortly before 4.00 pm and questioned about the collision on Ramco Road. He was later questioned about the trespass and theft of items from 1 Jemison Street, Waikerie. Shortly after 5.00 pm, items taken from 1 Jemison Street, Waikerie, were recovered from the premises of the respondent’s grandmother at 24 Smith Drive, Waikerie.
I pause at this point to say that when first questioned by police, the respondent denied any involvement in the events leading to the collision with Mr Miller’s motorcycle. He was very aggressive and asked the police if they had any witnesses. He said that he would sue for wrongful detention and threatened to break into the homes of the police officers questioning him.
At approximately 9.25 pm, an analysis of a sample of blood taken from the respondent indicated a blood alcohol content of 0.041 per cent. The blood sample also contained approximately 3 micrograms of tetrahydrocannabinol per litre and 11-nor-9-carboxytetrahydrocannabinol was also detected. Tetrahydrocannabinol is a cannabinoid and the major psychoactive constituent of cannabis. 11-nor-9-carboxytetrahydrocannabinal is the major metabolite of tetrahydrocannabinol. An estimate of the respondent’s likely and minimum blood alcohol concentration at the time of the collision was between 0.11 per cent and 0.16 per cent.
On 17 April 2004, Mr Miller died at the Royal Adelaide Hospital as a result of multiple trauma injuries suffered in the collision with the Gemini. The respondent’s driving which caused Mr Miller’s death was the conduct that constituted the offence of causing death by dangerous driving, for which the maximum penalty is imprisonment for 10 years (for a first offence) and a mandatory disqualification from holding a driver’s licence for 5 years (for a first offence) or such longer period as the court orders.
The offences and the circumstances surrounding their commission, particularly the four offences involving the use of a motor vehicle, are very serious. The driving of the motor vehicle along Ramco Road at high speed and, at times, on the wrong side of the road, puts this case in the worst category of dangerous driving. The respondent drove when he was disqualified from doing so and while he was under the influence of alcohol and, it seems, drugs. His driving over a period of time was wanton, callous and highly dangerous. It was such that the risk to other road users of death or serious injury was high and, tragically, a man died as a result of his driving. The respondent fled the scene and, in doing so, collided with another vehicle. In sum, the respondent’s conduct on 13 April 2004 involved a total disregard for the rights and safety of others.
I turn now to outline the judge’s findings as to the respondent’s personal circumstances and the other matters she considered relevant to the sentencing of the respondent.
The respondent’s personal circumstances
A number of reports were put before the judge. Although I will not mention them all, I have read each report carefully.
The respondent was born on 17 October 1987 at the Adelaide Women’s and Children’s Hospital. He has three younger siblings and a younger half-sibling. He spent the first eight years of his life in Point McLeay. He then moved with his parents to live in Murray Bridge for about three years. After that, he lived in Mount Gambier for two years, before returning to live in Murray Bridge.
The respondent has had a difficult childhood. The relationship between the respondent’s parents was turbulent and marked by domestic violence.
The respondent’s father had significant problems with alcohol abuse and he left the family home when the respondent was 11 years of age. The respondent’s father physically abused him. The respondent’s father died in August 2000.
The respondent’s mother also abused alcohol and that caused difficulties for the respondent and his siblings, who have from time to time been placed in foster care. She was imprisoned for a short time when the respondent was two years of age. When he was about 13 years of age, he was placed under the guardianship of the Minister for a period of 12 months. In April 2001, a further order was made by the Youth Court placing the respondent under the guardianship of the Minister until he reached 18 years of age. The respondent was not happy in a number of his foster care placements.
The respondent is of Aboriginal descent. His Aboriginal background is addressed in a report from Dr Philip Clarke, an anthropologist. The judge referred to the respondent’s Aboriginal heritage, which she said was not a mitigating factor but did throw light on the respondent’s upbringing, which included physical abuse and exposure to violence and alcohol from an early age.
The respondent has had only a limited education. He has a learning disability and his ability to read and write is limited. The judge found that the respondent is intellectually impaired. Dr David Bertram, a psychiatrist, prepared a report after examining the respondent and the judge appears to have accepted the opinions expressed therein. They include the opinion that the respondent has suffered a number of psychiatric conditions, being borderline intellectual functioning, post-traumatic stress disorder, depression, attention deficit disorder with hyperactivity and an attachment disorder. Dr Bertram made recommendations as to the treatment of the respondent’s conditions and expressed the opinion that he would need a period of at least two to four years of intensive treatment and rehabilitation.
The judge also referred to a report of Dr Mark Reid, a psychologist, who conducted a neuropsychological examination of the respondent. Dr Reid expressed the opinion that the respondent’s intellectual ability is “well below average” and “at least within the ‘borderline’ range”, with limited literacy and numeracy skills and a current reading age equivalent to that of a seven-and-a-half year old child. In June 2005, Dr Reid expressed the opinion that the respondent did have the capacity and mental fitness to stand trial, although his appreciation of the relevant issues would be at a simple level.
The judge also referred to reports prepared by Dr Craig Raeside, who saw the respondent on two occasions. Dr Raeside expressed the opinion that, although he could not find any evidence of a psychiatric disorder, the respondent appeared to have a low intellectual ability. Dr Raeside believed that if the respondent’s alleged memory impairment was genuine, it related to long-term substance abuse or other cognitive impairment. After he had received a copy of Dr Reid’s report, Dr Raeside noted Dr Reid’s opinion that the respondent was “in the borderline range of intelligence, but not retarded”. He noted that Dr Reid questioned the validity of many responses provided by the respondent and said that that was consistent with his own impression of the respondent. Dr Raeside also noted that Dr Reid did not find any features of an underlying neuropsychological impairment. Dr Raeside likewise expressed the opinion that the respondent was fit to plead.
The respondent was also seen by Dr Maree O’Neill, a psychologist. Two reports of Dr O’Neill were put before the judge. Dr O’Neill expressed the opinion that the respondent was at risk of committing suicide if incarcerated. Dr Richard Balfour, a psychologist, also saw the respondent and he expressed the opinion that the respondent, if incarcerated, would need to be closely monitored during the adaptation phase to ensure that he did not become acutely suicidal.
The judge considered the respondent’s conduct since the commission of the offences on 13 April 2004. The respondent entered into a relationship with a 15- year-old girl in 2002, when he was also 15 years of age. A child of the relationship was born in November 2003. The respondent’s partner thereafter moved away from Murray Bridge and it was not until after the offending on 13 April 2004 that the relationship recommenced. In March 2005 the respondent moved into independent housing with his partner and child. The judge found that the respondent and his partner were good housekeepers and very responsible for the upkeep and care of the premises. The judge also found that the respondent strongly identified with his role as a father. The respondent, his partner and child have since moved to Goolwa to live with the respondent’s aunt, apparently to escape interference from his partner’s family. The Minister has assisted in ensuring that suitable accommodation is provided, and that the respondent will have access to the counselling and supervision that he needs, at least in the foreseeable future.
The respondent’s history of offending

The respondent has a history of offending that commenced when he was about 10 years of age. He has offended on a fairly regular basis from 1997 to October 2002. The offences (some of which have been committed on more than one occasion) include being unlawfully on premises, larceny, damaging property, breaking and entering a building and committing an offence, failing to comply with a bond obligation, failing to comply with a bail agreement, assault, and various offences associated with a motor vehicle, including driving or using a motor vehicle without consent, and driving unregistered, uninsured and without a licence. The penalties have ranged from bonds to be of good behaviour, to the performance of community service, to disqualification from holding a driver’s licence. The respondent has not previously served a sentence of imprisonment or detention, or been given a sentence of imprisonment or detention which has been suspended. However, his offending has been consistent, and cannot be described as minor. A number of offences have related to the use of a motor vehicle.
Application for leave by the Director
The principles by reference to which an application by the prosecution for leave to appeal is determined are well-established. It is sufficient to refer to the discussion by the Chief Justice in R v Nemer (2003) 87 SASR 168. In addition to establishing error, the Director must establish some wider purpose, such as giving the Court an opportunity to elaborate a relevant principle, or to establish or maintain adequate standards of sentencing. Alternatively, the Court will intervene if the sentence is so far below the appropriate range that the sentence reflects an error of principle, and is one that would “shock the public conscience” or shake public confidence in the administration of justice were it to stand (R v Nemer (supra) at 172 [24]).
Even if the Court concludes that a case falls within these principles, it may think it appropriate in the circumstances to grant leave, but to dismiss the appeal.
For the reasons which follow, I think that the discretion as to whether to deal with the respondent as an adult has miscarried. In my opinion, the sentence imposed is manifestly inadequate, reflects an error of principle and to allow it to stand would shake public confidence in the administration of justice. Furthermore, it is necessary to intervene to maintain adequate standards of sentencing.
This is not a case where it is appropriate to grant leave, but to dismiss the appeal.
Relevant principles
In the circumstances of this case, the judge was required to make three decisions. First, she was required to decide if she would deal with the respondent as an adult and, if not, whether she would sentence him or remand the respondent to the Youth Court for sentencing. Secondly, assuming she decided to sentence the respondent, she was required to decide upon the appropriate sentence. Thirdly, assuming a sentence of imprisonment or detention was appropriate, she was required to decide if the sentence should be suspended.
On 22 September 2004, the respondent was committed for trial to the District Court by his Honour Judge Jennings of the Youth Court. His Honour made that order under s 17(3) of the YOA, which is in the following terms:
(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.
The decision under s 17(3) is made at a different stage of proceedings and with different consequences, but the reference in the subsection to the gravity of the offence, the youth’s history of offending and whether the offence forms part of a pattern of repeated offending, should be noted.
On 8 August 2005, the respondent pleaded guilty in the District Court to the charges against him and, on 13 October 2005, the judge decided both that she would not deal with the respondent as an adult and that she would not remand the respondent to the Youth Court for sentencing. In other words, she decided that she would sentence the respondent herself as a youth.
The first decision the sentencing judge was required to make was made under s 29 of the YOA, which, relevantly, is in the following terms:
(1)Subject to this Act, where a youth is committed to the Supreme Court or the District Court for trial, and is found guilty on trial in that court, or is committed to the Supreme Court or the District Court for sentence, that court, on sentencing the youth may –
(a)     deal with the youth as an adult; or
(b)     make any order in relation to the youth that may be made by the Youth Court on sentencing a youth; or
(c)     remand the youth to the Youth Court for sentencing.
Subsections (2) and (3) of s 29 are not directly relevant, although it should again be noted that these subsections refer to the gravity of the offence and the youth’s history of offending as relevant matters in determining if he or she should be dealt with as an adult.
There is nothing in the terms of s 29(1) to indicate the matters that are to guide the Court in making the decision required by the subsection. It is therefore appropriate to start with a comparison of the consequences of dealing with the respondent as an adult or as a youth.
Section 3 is a key section in the YOA. It sets out the object and statutory policies of the YOA and is in the following terms:
(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.
Section 3A of the Sentencing Act provides that that Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth, save and except where there is a conflict between the provisions of that Act and the provisions of the YOA, or the Youth Court Act 1993, in which event the provisions of the latter Acts prevail to the extent of the conflict.
The powers of the sentencing court differ in relation to, on the one hand, sentencing a youth as a youth, and sentencing a youth as an adult, on the other. Furthermore, even if a youth is sentenced as an adult, the relevant sentencing principles are not the same as those which apply to the sentencing of adults. Whether a youth is sentenced as a youth or as an adult, the object and statutory policies in s 3 of the YOA remain relevant. That means that the sentencing levels for adults do not apply to youths sentenced as adults, nor, in sentencing a youth as an adult, is it appropriate to simply ascertain the level for an adult and then discount it (R v QTV (2003) 87 SASR 378 at 389-390 [54]).
One difference between sentencing a youth as a youth and sentencing a youth as an adult is that, in the latter case, regard should be had to the deterrent effect any proposed sanction may have on other youths (YOA, s 3(2a)(b)).
Another difference is that if a youth is sentenced as a youth, there are limits on the power of the court to impose a custodial sentence, which would not apply if the youth were sentenced as an adult. Those limits are set out in s 23 of the YOA. The maximum sentence that may be imposed on a youth sentenced as a youth is detention in a training centre for a period not exceeding 3 years (YOA, s 23(2)). The limits do not apply if the youth is sentenced as an adult, although, as I have said, adult levels of penalties do not apply, because, in sentencing a youth, the court must have regard to the matters in s 3 of the YOA.
A further difference is that a youth sentenced as a youth is detained in custody in a training centre, whereas a youth sentenced as an adult may be given a term of imprisonment. This distinction may not be as significant as it first appears, in view of the fact that s 36 of the YOA provides that, 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. Furthermore, whether sentenced to detention or to imprisonment, once a youth turns 18 years of age, the youth can be transferred to a prison (YOA, ss 36(2) and 39(2)).
Whether a youth is sentenced as a youth or as an adult, the power to suspend a sentence is contained in s 38 of the Sentencing Act (see ss 22 and 29 of the YOA and s 3A of the Sentencing Act).
The circumstances in which a youth should be dealt with as an adult were considered by the Court of Criminal Appeal in R v N; R v P (unreported, 26 February 1998, number s 6565). The Chief Justice (with whom Olsson and Williams JJ agreed) considered a challenge to a decision under s 17(3) of the YOA to commit the youths in that case for trial in the Supreme Court. That aspect of the judgment is not relevant here. The Chief Justice then considered a challenge to the decision under s 29(1) to sentence the youths as adults. His Honour said:
The appellants fell to be dealt with under section 29(1). That subsection gives no indication of the basis upon which the court should decide which course of action it should follow. In this respect, a contrast can be drawn with subsections (2) and (3).
It is unlikely that Parliament intended a different approach to be taken under subsection (1). In my opinion, a decision to sentence a youth as an adult under subsection (1) is to be based upon the gravity of the offence or the youth’s history of offending.
That provokes a further question. When will a consideration of either of those matters lead to the conclusion that a youth should be sentenced as an adult?
His Honour then considered the consequences of a decision to sentence a youth as an adult. I have already referred to those consequences. The Chief Justice said:
All of that indicates, in my opinion, that a court will sentence a youth as an adult when, bearing in mind the gravity of the offence or the history of the youth’s offending, the statutory objects and policies will best be achieved by sentencing the youth as an adult. The court might conclude that they will best be achieved through the impact of the more formal procedures of the Supreme Court or the District Court, or because the case is one that will require imprisonment for more than three years, or because the case may be one of those rare cases in which the youth should serve the whole of the sentence in a prison. The fact that a youth is getting close to 18 years of age might also be a factor. In my opinion, it is not the case that a youth will be sentenced as an adult only when a sentence of more than three years’ imprisonment is to be imposed. As I have indicated, there may be other reasons for sentencing a youth as an adult.
It is not simply a matter of sentencing a youth as an adult to enable the court to impose a heavier sentence than the Youth Court could impose, although often that will be the consequence of the decision to sentence a youth as an adult. Nor is it simply a matter of sentencing a youth as an adult to enable the court to take account of deterrence of other youths, although that will be a consequence of the decision. Nor is it simply a matter of saying that an offence is a relatively serious one, and therefore the youth should be sentenced as an adult, although once again a decision to sentence as an adult will often be because of the seriousness of the offence. As I have already said, it is a matter of deciding that, in the light of the seriousness of the offence or of the history of offending, the implementation of the statutory objects and policies requires that the court sentence the youth as an adult.
The judge’s decision not to sentence the respondent as an adult
On 13 October 2005, the judge made a ruling with respect to two matters, namely, whether to sentence the respondent herself or to send the respondent back to the Youth Court, and whether to deal with the respondent as an adult. She gave brief reasons at the time of her ruling addressing those two issues. In the course of her remarks while sentencing the respondent on 14 October 2005, the judge expanded on those reasons. In considering the judge’s decision in declining to deal with the respondent as an adult, it is therefore appropriate to have regard to both her reasons given on 13 October 2004 and her sentencing remarks on 14 October 2004.
In the course of her ruling on 13 October 2005, the judge referred to the submissions of counsel and to the declarations put before her, particularly as they related to the gravity of the offending. She said that she accepted the circumstances surrounding the offences as put to her by counsel for the Director. The judge referred to the decision in R v N; R v P (supra) and certain observations of the Chief Justice in that case. She referred to the respondent’s age, briefly to his personal background and to what she described as his “significant intellectual impairment”. She also referred to what she found to be his need for ongoing psychiatric intervention and the fact that he had not been the subject of a detention order previously. The sentencing judge said:
I consider this matter to be finely balanced, but bearing in mind all the material in the reports and the matters which I have taken into account and intend to express in more detail in my remarks on penalty to the youth, I propose to deal with the matter myself and not send it back to the Youth Court for sentence, but I make a decision that the youth is to be sentenced as a youth and not as an adult.
In her sentencing remarks the following day, the judge expanded on the reasons for her decision not to deal with the respondent as an adult. She referred to the following considerations:
1The objects referred to in s 3(1) and the statutory policies referred to in s 3(2) and (3) of the YOA.
2The respondent was operating below his chronological age in terms of intellectual functioning and maturity.
3The offences were very serious and the respondent’s history of offending was a relevant consideration.
4The respondent had never previously been sentenced to detention, either suspended or not.
5The respondent understood the nature of his offending and its very serious consequences and realised that if he continued to offend it was very likely he would find himself in prison.
6The respondent was aware of his obligations under the law and of the consequences of a breach of the law.
7The best protection afforded to the community was the respondent’s rehabilitation and there was a very serious risk of the respondent becoming institutionalised within the criminal justice system.
8There was a risk of the respondent committing suicide if incarcerated.
9The respondent should have a last opportunity to put his life on a proper course.
The judge then said:
From all that is before me, I am persuaded that if you are given the opportunity to undergo treatment with respect to your mental health issues and undertake other training and learning programmes and employment courses rather than being in prison now, then with the appropriate support you can realise your potential as a useful member of the community. As I have said, I must have regard to the provisions and objectives of s 3 of the Young Offenders Act in determining sentence. In my opinion these objects can best be achieved if I sentence you as a youth.
Having regard to all these matters I am not satisfied that I ought to sentence you as an adult and I will, therefore, sentence you in accordance with the provisions of the Young Offenders Act. That means that the maximum penalty that I can impose for any offence is a sentence of three years detention.
The decision whether or not to deal with a youth as an adult involves the exercise of a broad discretion and will not often be interfered with on appeal. However, it is not immune from review. The relevant principles are well-known (House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321). The relevant passage in House v The King (supra) is in the following terms:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Lovell v Lovell (1950) 81 CLR 513, Latham CJ said (at 519) (citations omitted):
The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v Wakefield) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.
Kitto J said (at 533):
The proposition that the appeal court will consider whether “no sufficient weight” has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.

I refer also to Gronow v Gronow (1979) 144 CLR 513 at 519-520 per Stephen J at 534-535 and 537 per Aickin J and Mallet v Mallet (1984) 156 CLR 605 at 614 per Gibbs J (as he then was).
The Director submits that the exercise of the discretion miscarried. He submits that the judge did not give consideration, or proper consideration, to the gravity of the offending and the respondent’s history of offending, or the fact that, at sixteen-and-a-half years of age, the respondent was approaching the age of majority. He submits that a description of the respondent’s personal circumstances occupied the bulk of the judge’s reasons and sentencing remarks. The Director did not submit that the judge was not entitled to take those factors into account. Rather, it was submitted that the judge did not explain how she balanced those factors against the very serious nature of the offences and the respondent’s history of offending. Although the judge identified certain aggravating features of the offences, the Director submits that the judge did not elaborate sufficiently on the factors which made this such a bad case of dangerous driving. The judge referred to the respondent’s history of offending, but the Director submits that the judge did not give proper consideration to this factor. This was evidenced, in part at least, by what the Director described as the judge’s “grossly optimistic” view of the respondent’s prospects of rehabilitation. It was submitted that she would not have reached the view that the respondent’s prospects of rehabilitation were good if she had given proper consideration to the respondent’s history of offending.
In my opinion, this was a clear case for sentencing the respondent as an adult. The gravity of the offending, the respondent’s history of offending and his age make it appropriate, having regard to the object and statutory policies in s 3 of the YOA, that the respondent be sentenced as an adult, thereby expanding the relevant considerations on sentence, increasing the formalities or gravity of the trial or sentencing process and the nature and range of sentencing options.
In terms of his age, it was not inappropriate for the judge to take into account the fact that the respondent was operating below his chronological age in terms of intellectual functioning and maturity. However, that was no more than a qualification on the fact that the respondent’s age was a factor suggesting (with other factors) that he should be dealt with as an adult.
In my respectful opinion, the judge erred because she did not properly assess the nature and quality of the offending in this case or the effects of the respondent’s history of offending. As far as the nature and quality of the offending is concerned, it is one thing to say that the offending is serious and has a number of aggravating features; it is another to appreciate and place in the balance the fact that it shows an offender who not only disregards his legal obligations, but has such contempt for the law that he is prepared to imperil public safety.
The point is reinforced if one has proper regard to the respondent’s history of offending. It was relevant to note, as the judge did, that the respondent had not previously received a sentence of imprisonment or detention (whether suspended or otherwise), but that is not the only significance of the respondent’s history of offending. The respondent had been a regular and consistent offender who had not been dissuaded from offending by his numerous court appearances. It was one thing for the judge to say, as she did on two occasions in the course of her sentencing remarks, that she had had regard to the respondent’s “offending history” and to his “antecedents”. It was probably not necessary for the judge to summarise the respondent’s history of offending, in her sentencing remarks. However, I think it was necessary for her to state what conclusions she drew from his history of offending bearing in mind the importance of this matter, together with the gravity of the offending, in the decision whether to deal with the respondent as an adult. The judge did not state what conclusions she drew from the respondent’s history of offending.
The judge’s failure to properly assess the gravity of the offending and the respondent’s history of offending, in my opinion, meant that she took an overly optimistic view of the respondent’s prospects of rehabilitation.
I think the judge erred in deciding whether to deal with the respondent as an adult. In those circumstances, I must decide whether the respondent should be dealt with as an adult. For reasons I have already given, I think he should be dealt with as an adult.
The appropriate sentence
I have held that the sentencing judge erred in not dealing with the respondent as an adult and that she did not place sufficient weight on the gravity of the offending or the respondent’s history of offending.
This Court must now pass sentence having regard to the matters previously identified and the fact that, in addition to the matters the judge was required to consider, regard must also be had to the deterrent effect any proposed sanction may have on other youths (s 3(2a)(b)), the fact that he will be sentenced to a term of imprisonment and a non-parole period fixed, and that the limits in s 23 of the YOA do not apply.
On the other hand, this is an appeal by the Director and the re-sentencing of the respondent must be approached with restraint. Adult sentencing standards do not apply and it is necessary to have regard to the objects and statutory policies enumerated in s 3 of the YOA.
In my opinion, bearing each of the relevant matters in mind, the appropriate sentence for the first four offences which involved the use of a motor vehicle, utilising s 18A of the Sentencing Act, is 2 years and 9 months, and the appropriate sentence for the offence of serious criminal trespass and theft, again utilising s 18A of the Sentencing Act, is 3 months. These sentences should be cumulative, giving a total of 3 years’ imprisonment.
Having regard to the respondent’s age, the objects and statutory policies in s 3 of the YOA, and the fact that there are some prospects of the respondent’s rehabilitation, I would fix a non-parole period which is lower than might otherwise be expected of 18 months.
The respondent is disqualified from holding or obtaining a driver’s licence for a period of six years commencing on 14 October 2005.
Should the sentence be suspended?
Under s 38 of the Sentencing Act, the Court may suspend a sentence of imprisonment if it thinks that good reason exists for doing so.
For an application of the relevant principles to a case in which the prosecution successfully submitted on appeal that a sentence of imprisonment should not have been suspended, I refer to R v Errigo (2005) 92 SASR 562.
The rehabilitation of the offender is relevant to the question of whether a sentence of imprisonment should be suspended, but it is not the only factor. All the considerations relevant to the decision to impose a sentence of imprisonment should be revised (Dinsdale v The Queen (supra) at 330 [26] per Gaudron and Gummow JJ; at 348-349 [85]-[87] per Kirby J). However, these principles are subject to the fact that the power to suspend must be exercised having regard to the objects and statutory policies in s 3 of the YOA.
To my mind, good reason to suspend the sentence of imprisonment does not exist in this case. The gravity of the offending, the respondent’s history of offending and his age outweigh the other relevant considerations and lead to the conclusion that the sentence should not be suspended.
Section 36 of the YOA
As I have said, the respondent was about sixteen-and-a-half years of age at the time of the offending, and he was sentenced three days before his eighteenth birthday. For the reasons I have given, I must re‑sentence the respondent. He is now about 18 years and 4 months old. I have already set out the sentence that I would impose.
Section 36 of the YOA relevantly provides as follows:
(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.
Section 36(2) is not directly relevant in this case because the respondent is not presently serving a sentence of imprisonment in a training centre and he has already reached eighteen years of age. However, s 36(2) throws light on the approach to be taken under subsection (1).
After the hearing of the appeal, the Court invited the parties to make submissions as to whether, on the assumption that a sentence of imprisonment was imposed and not suspended, an order should be made under s 36(1) or (2). Both parties were content to make their submissions in writing and neither sought an opportunity to make oral submissions. The appellant sought an order that the respondent serve his sentence in a prison and advanced various submissions in support of that contention, mainly based around the circumstances of the offending and the need for deterrence. The respondent asked that no order be made and submitted that in the absence of an order under s 36(1), the respondent would serve his sentence of imprisonment in a training centre.
In R v QTV (supra) the Court said, after quoting s 36(1) and (2) (at [35] and [36]):
[35] 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 subs (2) could not apply. Yet, the expectation underlying subs (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.
[36] However, there is also a clear assumption behind subs (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 subs (1) is inappropriate, and that as well as imposing a sentence, the sentencing court must conduct something akin to the review contemplated by subs (2) in order to determine whether a training centre or prison is more appropriate, and to give the direction under subs (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 Court also identified the matters which are relevant to the question (at [40]-[42]). It is not necessary to set them out.
I have considered all the relevant factors in this case and the respective submissions of the parties and I consider that it is not appropriate to order that the respondent serve the sentence of imprisonment in a prison. It is true that he is now over eighteen years of age, but his intellectual functioning is borderline and he is immature for his age. He has not previously been in custody. When these factors are added to the length of the sentence I propose to impose, and the fact that the various reports suggest he needs considerable assistance, I do not think it is appropriate to make an order that the respondent serve his sentence in a prison. In those circumstances, I do not think any order is necessary and the YOA will simply operate according to its terms. However, out of an abundance of caution, I would give the parties an opportunity to address the issue of whether any form of order is necessary.
Conclusions
For these reasons, I would make the following orders:
1.The application for leave to appeal by the Director is granted and the appeal is allowed.
2. The sentence imposed by the judge is set aside.
3.The respondent is to be dealt with as an adult and, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, there will be one sentence of imprisonment of 2 years and 9 months imposed on the respondent for the first four offences in the information and, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, there will be one sentence of imprisonment of 3 months imposed on the respondent for the fifth and sixth offences in the information. The sentences will be cumulative, making a total of 3 years’ imprisonment. A non-parole period of 18 months is fixed. The sentences should not be suspended.
4.The respondent is disqualified from holding or obtaining a driver’s licence for a period of six years commencing on 14 October 2005.
I would not make an order that the sentence of imprisonment be served in a prison for the reasons given in [82] above, but I would hear the parties on whether any order is necessary in relation to this issue.
ANDERSON J I have read the draft reasons prepared by Besanko J. I agree with his reasons generally, and I agree with his reasons for dealing with the respondent as an adult.
It is my view that once the respondent is treated as an adult, and his conduct on the occasion in question is examined, a term of imprisonment is called for. I agree also with the reasoning of Besanko J in relation to the appropriate sentence.
As to the question of suspension, I have considered the dilemma which faced the learned sentencing Judge. I also take into account, as Besanko J points out, that this is an appeal by the Director which requires a restrained approach in any re-sentencing of the respondent by this Court.
I have taken into account the fact that the appellant suffers from a limited education and has a learning disability. There were many reports from experts before the learned Judge, again summarised by Besanko J in his reasons. It seems on balance that the respondent’s intellectual ability was within the “borderline range”. The respondent is a person of Aboriginal descent. His early childhood involved some physical abuse.
As against those considerations, the respondent has a very poor record when one looks at his history of offending which goes back several years. However, despite this bad record of offending, he has not before served a sentence of imprisonment. At the time he committed these offences he was sixteen-and-a-half years of age.
I have finally concluded that it is the seriousness of the offending, as detailed by Besanko J, together with the respondent’s history of offending and the fact that at the time of the offences he was approaching the age of majority, which are the key factors which have influenced me to not suspend the sentences.
In the end result, I therefore agree with Besanko J that the appeal should be allowed. I agree with the sentences proposed, being in total three years imprisonment, and I agree also with the non-parole period of 18 months.
For the reasons which I have given and for all the reasons advanced by Besanko J, I do not consider that this is an appropriate matter in which to suspend the sentences of imprisonment.
LAYTON J: This is a prosecution appeal against sentence. The appellant argues that the sentencing judge erred in sentencing the respondent as a juvenile, that the sentence imposed was manifestly inadequate, and that the period of detention ought not to have been suspended. The facts and sentences imposed by the judge are set out in some detail in the reasons for decision of Besanko J.
I have had the opportunity of reading the draft reasons of Besanko J. I agree with Besanko J that the appeal should be allowed, that the respondent should be dealt with as an adult, and also with the period of three years’ imprisonment proposed by his Honour. I have, however, reached a different conclusion on the issue of whether or not ‘good reason’ exists for that sentence of imprisonment to be suspended.
In coming to this conclusion, I have had regard to the significant factors which support the imposition of a period of imprisonment. These factors have been set out by Besanko J in dealing with the question of whether the respondent should be sentenced as an adult, and in his consideration of the appropriate period of imprisonment. In particular I note that the offences were aggravated by the respondent’s consumption of alcohol, and possibly Valium and marijuana. I also take into account the very serious nature of the offence, and the quite devastating consequences of the respondent’s actions.
I am mindful that because the Court has allowed the appeal on another issue the question of whether to suspend is an aspect of the re-sentencing process. It is not to be approached from the perspective of whether the sentencing judge erred in her conclusion that suspension was appropriate. However, the fact that her Honour suspended the sentence and her reasons for doing so, are not irrelevant considerations in re-sentencing. In relation to the question of suspension it is my view that the sentencing judge approached her task correctly and indeed fastidiously. She ensured that she had all available information to assist her decision making on this point.
The considerations relevant to suspension of sentence differ from those which are relevant to whether to sentence the respondent as a child or an adult. As to the latter, the major focus is on the gravity of the offence and the pattern of repeated offending.[1] The question of whether or not ‘good reason’ exists to suspend the sentence is instead mainly dependant on the circumstances of the offender, which must of course be viewed in the context of the offending behaviour.
[1] Young Offenders Act 1993 ss 17(3)(c) and 29.
Despite the seriousness of the offence of causing death by dangerous driving, there may still be circumstances in which ‘good reason’ exists for imprisonment to be suspended. In R v Hicks,[2] which was also a prosecution appeal against a sentence for causing death by dangerous driving, King CJ said that:
Considerations of deterrence and satisfaction of public outrage must undoubtedly play a large part in the fixing of sentences for crimes of this kind. For that reason suspension of a sentence for this type of crime cannot be the norm. But important as those considerations are, other proper sentencing considerations are not to be disregarded. It is proper to use the power of suspension which Parliament has conferred upon the courts if the circumstances are appropriate. There may be circumstances in relation to offences of causing death by dangerous driving which render suspension the appropriate course: R v Hewett (1981) 27 SASR 364; R v Haynes (1984) 113 LSJS 186; R v Andrews (1985) 40 SASR 133…
I think that there were ample grounds in the present case upon which the learned sentencing judge could reasonably suspend the sentence. Every consideration of character, antecedence, age and health pointed in that direction. The obstacle to suspension was the gravity of the offence. The need to satisfy public outrage and the common assumption, unverified I may say, that severe penalties where death results may have the effect of deterring dangerous driving, make it inevitable that suspension of sentence for this class of offence will be the exception rather than the rule. Nevertheless, when there are indications in favour of suspension, a court is not required to disregard the truth that the tragic consequences are the unintended result of conduct which, if that unintended result had not ensued, would have attracted a very much lower penalty.[3]
In that case the respondent was an elderly man with an unblemished record. However, despite significant differences between the circumstances of the respondent in that case and this, the articulation by the Chief Justice of considerations which must exist to found any suspension of sentence in such cases, are in my view applicable in this case.
[2] (1987) 45 SASR 270.
[3] (1987) 45 SASR 270, 272.

In R v Wacyk[4] Perry J, with whom Millhouse J agreed, stated that:
It will never be possible to isolate any single factor in a given case as being determinative of the exercise of the discretion whether or not to suspend. The exercise of the discretion one way or the other must turn upon a careful evaluation of the overall circumstances of the particular case, which will include consideration of the circumstances of the offending and the circumstances personal to the offender.[5]
It is my view that the circumstances personal to the offender point very strongly towards there being ‘good reason’ to suspend.
[4] (1996) 66 SASR 530.
[5] (1996) 66 SASR 530, 536.
In addition, because the respondent was a youth, s 3 of the Young Offenders Act 1993 (‘YOA’) is relevant, even though the respondent is being sentenced as an adult. The statutory objects and policies contained in s 3 may support a conclusion that ‘good reason’ exists, where it would not have been established if sentencing an adult purely under the Criminal Law (Sentencing) Act 1988. Therefore, whether ‘good reason’ exists in this case needs to be considered through the lens of s 3 of the YOA. The full text of that section is set out in the reasons of Besanko J.
The respondent’s personal circumstances
The respondent is an 18-year-old Aboriginal man. He was 16 at the time of committing the relevant offences. His antecedent history is quite substantial for such a young person, including prior offences of larceny, common assault, non-aggravated serious criminal trespass and driving or using a motor vehicle without consent. He also has a number of failures to comply with bail and breaches of bond. He has not previously been sentenced to any period of detention.
The sentencing judge requested a number of reports which provide considerable detail about the respondent’s personal history. He is the eldest of five children. The Department of Children Youth and Family Services has been involved with the respondent and his family since 1994, when the respondent was six years old. Child protection notifications have included concerns about emotional abuse, domestic violence, neglect and physical abuse of the children, as well as alcohol abuse by both the respondent’s mother and father. The respondent’s father died from cancer when the respondent was 13 years old. He has been under the Guardianship of the Minister since 2000. The respondent has been in a number of foster care placements, and was in six different foster care placements over an eight-month period in 1998. The respondent has frequently run away from foster care placements, preferring to live with his grandmother.
Psychological assessment was required to determine that the respondent was competent to instruct. Testing indicated that the respondent’s intellectual ability is well below average, and within the ‘borderline’ range. The respondent tested in the fifth percentile for general intelligence, and less than the first percentile for numeracy, spelling and reading, indicating that over 99 per cent of his same-age peers would be expected to perform better.
The respondent has been unemployed since leaving school at the age of 13. He began using alcohol at the age of 14, and cigarettes at the age of 15. He also has a history of using cannabis and other drugs including Valium.
The respondent is of Ngarrindjeri descent to which he relates. His mother, who speaks the Ngarrindjeri language, along with Aboriginal services, has made efforts to maintain the respondent’s cultural learning. Whenever possible he was placed in foster care placements with persons of Ngarrindjeri heritage. He has had a strong relationship of love and respect for his maternal grandmother and that has helped reinforce cultural connections. More recently his aunt, with whom he has been living, has continued that connection. In April 2005, the respondent was involved in a cultural consultation with an Aboriginal Family Team Social Worker who provided some further male sensitive cultural information to the respondent. In short his cultural connections are important to the respondent, and he has been culturally dislocated which has led him to suffer further problems of inferiority and a lack of identity.
The respondent now has a de facto partner and a young child, with whom he lives. He appears to have made real progress in his life since committing these offences. He reports no longer drinking, realising that alcohol puts him at risk of further offending. The respondent is reported to have a significant understanding of the impact of his offences on the victims, considering his upbringing and life experiences. A Drug and Alcohol counsellor who had been seeing the respondent for 12 months, wrote in August last year that:
[The respondent] is self-chastening and remorseful over the recent events…He is a good young man with strong morals and codes of ethics. He also has a young wife who is seventeen years of age and a young child who is twenty months old…He has recently moved away from [his home town]. He has made this move to distance himself from the past and dysfunctional family members of his extended family.
Hopefully this move will allow him to have a fresh start in life. He would like to do some vocational training for employment, so that he can be an active member of society and the community.
At the time of preparation of the Children Youth & Family Services Social Background Report in August 2005, the respondent had been accepted into a project with a Community Development Employment Program, and it was anticipated that he might later embark on an apprenticeship with mentoring. The positive development that this represents, as well as the statutory policy that ‘there should be no unnecessary interruption of a youth’s…employment’,[6] points strongly towards the benefits of suspension. At that time the respondent, his de facto and their child were residing with his aunt. The Social Background Report states that:
This placement is good for [the respondent] as he has a respectful relationship with his Aunty…[who] is also able to give positive advice to [him] as she has also been through a life of trauma, and substance and alcohol abuse associated with offending.
[6] YOA s 3(3)(d).
This factor is of particular significance in the context of the respondent’s family relationships having been severely interrupted by the intervention of child protection authorities. It has been difficult for the respondent to maintain positive contact with family members, and unfortunately in the past, some extended family members have influenced the respondent and often increased his offending behaviour. Other family members however have had a positive influence on his behaviour and this is relevant to the statutory policies that ‘family relationships …should be preserved and strengthened’[7] and that ‘a youth’s sense of racial, ethnic or cultural identity should not be impaired’.[8]
[7] YOA s3(3)(b) - (c).
[8] YOA s3(3)(e).
Between April 2004, when the relevant offences were committed, and August 2005 when the Social Background Report was prepared, the respondent has been greatly supported by the Department of Families & Communities. Over that 16 months he has not re-offended, and the report indicates that:
It is the writer’s perception that if [the respondent] is able to maintain his current positive focus and does not associate with negative influences in his life, then he most likely will refrain from further offending. [He] is an extremely personable young man who has always been respectful, and throughout his involvement with the Youth Team has always been open, frank and honest.
[He] is committed to making the right changes in his life and will continue to benefit from appropriate supports such as counselling and life skills in order to be successful in this transition.
A number of the reports indicated that the respondent suffered from suicidal ideation in relation to incarceration in gaol. One report expressed the view that he was ‘a high suicide risk’. This is also an important factor to bear in mind, especially in conjunction with his youth and Aboriginality.
In my view the respondent’s youth, his mental impairment, the violence, neglect and disruption which characterised his childhood, and the suggested risk of him suiciding in custody are all factors which, in the circumstances of this case, tend to support the suspension of his sentence of imprisonment. However, it is the progress that he has made since the offending, and the clear indications of rehabilitation that most strongly suggests that, having regard to the object and statutory policies of s 3 of the YOA, ‘good reason’ exists for the suspension of the respondent’s sentence.
I also take into consideration, in reaching that conclusion, the fact that the respondent has had the benefit of suspension on an obligation since he was sentenced in the District Court in October of last year. In R v Hicks,[9] King CJ made the following remarks with regard to the imposition of a sentence on appeal when it had previously been suspended:
prosecution appeals fall to be decided on somewhat different considerations than appeals by persons under sentence. When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating. I do not think that any consideration of justice or the protection of the public demands that this particular respondent, after he has been told by a court that he will not have to go to prison, should now be told by this appellate Court that he must serve the sentence.[10]
[9] (1987) 45 SASR 270.
[10] (1987) 45 SASR 270, 273.
I respectfully adopt his Honour’s reasoning and in my view this is particularly so in the present case where the consideration of securing for the respondent the ‘care, correction and guidance’ necessary for his development into a responsible and useful member of the community is relevant. It seems to me that this Court has before it a young Aboriginal man who has committed a very serious offence, and who has done so in the context of a substantial antecedent history. He has, however, never been sentenced to any period of detention, and his offending must be seen in the context of a quite appalling family history. He has made substantial progress towards rehabilitation, and I consider that the best way of achieving further rehabilitation, and in the long term the best protection for the public, is to suspend the sentence of imprisonment. The period of imprisonment has been increased on appeal, and is significant. The conditions on which the sentence would be suspended are strict, and the consequences of breach would likely be imprisonment in an adult facility.
I would allow the appeal, I agree with the period of imprisonment and the non-parole period proposed by Besanko J, but I would order that that imprisonment be suspended on the respondent entering into a bond on the same conditions as were imposed in the court below.