RB v Police
[2024] SASC 94
•11 July 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
RB v POLICE
[2024] SASC 94
Judgment of the Honourable Justice McDonald (ex tempore)
11 July 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES
This is an appeal against a sentence imposed by a Magistrate sitting in the Youth Court, on 21 March 2024 pursuant to s 22 of the Youth Court Act 1993 (SA). The appellant was sentenced for a number of offences on this occasion. The first two of which, namely aggravated assault cause harm and aggravated assault, both committed on 4 June 2023, are the subject of this appeal.
In determining the sentence, the Magistrate considered the various factors relevant to sentencing a youth, namely the severity of the offending, the impact of the offending on the community, and the appellant’s personal circumstances , including the appellant’s lack of criminal history and role in the assaults.
In balancing the objects and purpose of the Youth Court Act 1993 (SA) together with the relevant factors to consider when sentencing a youth, the Magistrate imposed a sentence of three months imprisonment, which was reduced to two months taking into consideration the appellant’s pleas of guilty. Upon the appellant entering a six-month obligation, three months of which were spent under supervision, the appellant’s sentence was suspended.
The appellant appeals the Magistrate’s decision on the basis that the sentence was manifestly excessive in that the Magistrate erred in imposing a period of detention and that the Magistrate erred in not taking into account the sentencing considerations set out in the Young Offenders Act 1993 (SA).
Held; that the sentence is not manifestly excessive.
1. The sentence falls within the range of appropriate sentences open to the Magistrate;
2. The Magistrate appropriately considered the factors relevant to sentencing a youth under the Young Offenders Act 1993 (SA);
3. The appeal is dismissed.
Youth Court Act 1993 (SA) s 22; Young Offenders Act 1993 (SA) s 3, s 4, s 6, s 7, s 17, s 23, s 26; Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20(4), s 86A; Sentencing Act 2017 (SA) s 3, s 4, s 10, s 11, s 39(2); Passenger Transport Regulations 2009 (SA) s 113(8), referred to.
R v QTV (2003) 87 SASR 378; House v The King (1936) 55 CLR 499; R v Jongewaard [2009] SASC 346; R v Morse (1979) 23 SASR 98; R v A [2016] SASCFC 66; O, C v Police [2007] SASC 346; R v Jacques [2021] SASCA 94; Yardley v Betts (1979) 22 SASR 108; L v Police [1998] SASC 6821; A, MC v Police (2008) 102 SASR 151, considered.
RB v POLICE
[2024] SASC 94
Single Judge Appeal
McDONALD J (ex tempore):
This is an appeal against a sentence imposed by a Magistrate sitting in the Youth Court, on 21 March 2024 pursuant to s 22 of the Youth Court Act1993 (SA).
On that occasion the appellant was sentenced for a number of offences across a number of different files. The appeal only relates to the sentence imposed for two of the offences. These are aggravated assault cause harm[1] and aggravated assault,[2] both committed on 4 June 2023. For these offences, the Magistrate commenced at a starting point of three months detention which was reduced to two months to take into account the appellant’s pleas of guilty. That sentence was suspended upon the appellant entering into a six-month obligation, three months of which was under supervision.
[1] Criminal Law Consolidation Act 1935 (SA) s 20(4).
[2] Criminal Law Consolidation Act 1935 (SA) s 20(3).
The appeal is brought on the basis the sentence was manifestly excessive. Further particulars of that ground are that the Magistrate erred in imposing a period of detention and that the Magistrate erred in not taking into account the sentencing considerations set out in the Young Offenders Act 1993 (SA) (‘the YO Act’).
The offences for which the appellant was sentenced
As it is important to deal with the impugned sentences in context, it is necessary to provide an overview of the various offences for which the appellant fell due to be sentenced by the Magistrate.
21 February 2023 (Illegal Use)
On 21 February 2023 the appellant was seen to alight with five others from a Lexus station wagon that had been stolen from its owner’s premises earlier that morning. The appellant was stopped by police after exiting the vehicle.
4 June 2023 (Aggravated assault cause harm; Aggravated assault)
At about 5.45 p.m. on 4 June 2023, a male and female victim were travelling on a bus when a group of females, including the appellant, entered the bus. After a short period of time one of the co-offenders got up and stood over the female victim, grabbed a hold of her head and punched her to the face. When the male victim attempted to intervene, the other members of the group pushed him over and started kicking and punching him whilst he was on the ground. The appellant rushed up to the male victim and whilst he was still on the ground, punched him to the head four times and then stomped on his head. During this time the female victim attempted to help the male victim which resulted in the appellant punching her to the face. Both victims received minor injuries; those being cuts and bruising as a consequence of this offending.
It was agreed that the appellant was to be sentenced on the basis that she was not the instigator but had joined in as part of the group.
26 June and 12 July 2023 (2 x Aid and abet – contravene an intervention order)
There was a non-contact active intervention order in place naming TJ as the defendant and CC as the protected person. On 21 June 2023, police attended at the appellant’s home address and advised her that she was not to assist TJ to make contact with CC. In doing so they explained the terms of the order.
On 26 June 2023, the appellant facilitated a three-way call between the parties in breach of the order. The appellant was reported for this offence and was subsequently dealt with by way of a family conference on 23 August 2023. This was not one of the offences the Magistrate was required to deal with. On 12 July 2023, the defendant facilitated a further three-way call between the parties in breach of the order.
31 July 2023 (Illegal use; Breach of bail; Theft)
The appellant was subject to a bail agreement which included a condition that she not make contact with CG, RS and KR.
At 5.05 p.m. on 31 July 2023, a stolen black Subaru entered a Coles Express service station at Hope Valley. The appellant got out of the car and filled it up with petrol without making payment.
At about 9 p.m. the vehicle was seen in Stirling North and Whyalla Norrie, where the police tried to unsuccessfully deploy road spikes.
At about 10 p.m. police located six people, including the appellant, hiding in a backyard. Others in the group included those whom the appellant was not permitted to associate with under her bail conditions.
9 September 2023 (Breach bail)
On 9 September 2023, the appellant was located by the police in the company of TW, RS and CG. It was a condition of her bail agreement that she not contact or communicate with any of those individuals.
20 September 2023 (Breach bail)
On 20 September 2023 police again located the appellant in the company of the same individuals.
2 October 2023 (Breach bail; Contravene a transit barring order)
On 2 October 2023, the appellant boarded a bus in the metropolitan area in the company of a person who she was prohibited from being in contact with under the terms of her bail agreement. As a consequence, she was in breach of her bail and a transit barring order.
17 October 2023 (Assault; Breach bail; Contravene a transit barring order)
On 17 October 2023, the victim was on a bus with a friend when two teenage females, one of whom was the appellant, boarded the bus. After a short period, one of the teenagers grabbed her hair and pulled the victim to the floor. Whilst she was on the ground, the appellant joined in and began punching and kicking her to the face numerous times.
The victim suffered cuts and bleeding as a consequence of the assault.
The appellant was arrested and spent four days in detention before being granted bail in relation to this offence.
The appellant was in breach of bail by being in the company of KR. She was also in breach of a transit barring order[3] by travelling on a bus in the metropolitan area.
[3] Passenger Transport Regulations 2009 (SA) s 133(8).
The sentences imposed
The following table sets out the outcome for each of the charges.
Court file number
Offence and offence date
Outcome
YCCRM-23-1283
Count 1: Illegal use (21.02.2023).
Count 1: Diverted to family conference; s 17(2) Young Offenders Act 1993 (SA).
YCCRM-23-4496
Count 1: Aggravated assault cause harm (4.06.2023), s 20(4) of the CLCA; and
Count 2: Aggravated assault (4.06.2023), s 20(3) of the CLCA.
Counts 1 and 2: Starting point of three months detention, reduced to two months detention, which was suspended upon the entry into a six month obligation, for which three months was under supervision.
YCCRM-23-4865
Count 1: Aid and abet breach of intervention order (12.07.2023).
Count 1: Dismissed, without conviction, taking into account time served; s 23(2)(c) of the Sentencing Act 2017 (SA).
YCCRM-23-3601
Count 1: Illegal use (31.07.2023);
Count 13: Breach of bail (31.07.2023) s 17(1) of the Bail Act 1985 (SA); and
Count 14: Theft (31.07.2023).
Count 1: Diverted to family conference; s 17(2) Young Offenders Act 1993 (SA).
Count 13: Dismissed, without conviction, taking into account time served; s 23(2)(c) of the Sentencing Act 2017 (SA).
Count 14: Dismissed without penalty.[4]
YCCRM-23-4906
Count 1: Breach of bail (9.09.2023); s 17(1) of the Bail Act 1985 (SA).
Count 1: Dismissed, without conviction, taking into account time served; s 23(2)(c) of the Sentencing Act 2017 (SA).
YCCRM-23-4693
Count 1: Breach of bail (20.09.2023); s 17(1) of the Bail Act 1985 (SA).
Count 1: Dismissed, without conviction, taking into account time served; s 23(2)(c) of the Sentencing Act 2017 (SA).
YCCRM-23-4809
Count 1: Breach Bail (2.10.2023), s 17(1) of the Bail Act 1985 (SA); and
Count 2: Breach transit barring order (2.10.2023) s 133(8) of the Passenger Transport Regulations 2009 (SA).
Counts 1 and 2: Dismissed, without conviction, taking into account time served; s 23(2)(c) of the Sentencing Act 2017 (SA).
YCCRM-23-5089
Count 1: Aggravated assault (17.10.2023);
Count 2: Breach of bail (17.10.2023) s 17(1) of the Bail Act 1985 (SA); and
Count 3: Breach transit barring order (17.10.2023), s 133(8) of the Passenger Transport Regulations 2009 (SA).
Count 1: Obligation to be of good behaviour for six months;
Count 2: Dismissed, without conviction, taking into account time served; s 23(2)(c) of the Sentencing Act 2017 (SA);
Count 3: Dismissed, without conviction, taking into account time served; s 23(2)(c) of the Sentencing Act 2017 (SA).
[4] This offence is not referred to in the remarks on penalty. However this outcome is recorded in the Court outcome.
The appellant’s personal circumstances
The appellant is an Aboriginal youth who had turned 16 at the time of being sentenced. Although she had been struggling with mental health difficulties, she was engaging well with her Youth Justice Case Manager. She had recently been referred to a psychologist, as well as having been prescribed medication to better assist her in managing her mental health.
The appellant continued to live at home with the support of her family including her mother, grandmother, siblings and cousins.
These offences were the appellant’s first foray into serious criminal offending. The only prior entry in her criminal history was for the breach of an intervention order that resulted in a family conference.[5] She was for all intents and purposes, a first offender when she became before the Magistrate.
[5] This relates to the events that occurred on 26 June 2023 as set out in Annexure A to the Affidavit of Rachelle Louise Adams dated 19 June 2024, row 3, column 6.
Sentencing in the Youth Court
The Young Offenders Act 1993 (SA)
Section 3 of the YO Act prescribes the statutory principles that govern the exercise of the sentencing powers conferred on the Youth Court. It provides:
3—Objects and statutory policies
(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 regard should be had to the deterrent effect any proposed sanction may have on the youth.
(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;
(ab) compensation and restitution should also be provided, where appropriate, for persons who have suffered loss or damage as a result 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.
(4)This section does not apply to a court imposing sanctions 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, including, for example, the gravity of the illegal conduct (and the laws applying in relation to the sentencing of an adult apply to such a youth).
These sentencing provisions mandate an approach that is fundamentally different from the way in which the sentencing discretion is exercised in relation to adult offenders. Of particular importance to the resolution of the issues on this appeal is that, as set out in s 3(1), the object of the YO Act is to secure the “care, correction and guidance” necessary for the development of youths “into responsible and useful members of the community and the proper realisation of their potential”. That is to be compared with the primary and secondary purposes of the Sentencing Act 2017 (SA), which include the need to protect the community, punishment, accountability, and general deterrence.[6]
[6] Sentencing Act 2017 (SA) s 3 and s 4.
In R v QTV,[7] the Court considered the objects of the YO Act as compared to the approach to be adopted in sentencing an adult and said the following:[8]
The object specified in subs (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 subs (2a) are also important and must be brought into the scales.
[7] (2003) 87 SASR 378.
[8] Ibid at [49].
Whilst the court must give effect to the objects of the YO Act, youth offenders are also to be made aware of their obligations under the law and the consequences of any breach of the law. Whilst considerations of general deterrence are not relevant, personal deterrence is an important sentencing consideration. In addition, the community must be protected against violent or wrongful acts. An appropriate sentence must allow each of those objects to be achieved. For these reasons, the sentence for a youth may bear little relationship to that imposed on an adult in similar circumstances.[9]
[9] Ibid at [50].
The YO Act creates a scheme by which alternative remedies are available depending upon the circumstances of the youth and the nature of the offence. Part 2 creates a regime for “Minor offences”. Minor offences are defined in s 4 of the YO Act as being an offence which, in the opinion of a police officer, should be dealt with as a minor offence taking into account four specific statutory criteria, those being:
(a)the limited extent of the harm caused through the commission of the offence; and
(b)the character and antecedents of the alleged offender; and
(c)the improbability of the youth re-offending; and
(d)where relevant—the attitude of the youth’s parents or guardians;
Pursuant to s 6 of the YO Act, the first and most lenient option is an “informal caution”. It is of note that any record made of an informal caution “does not constitute a criminal record of the youth”.[10] Section 7 relates to “More formal proceedings” for minor offences. Under this section a police officer has three options available, the administering of a “formal caution”; notifying a Youth Justice Co-ordinator so that a family conference may be convened; or laying a charge before the Court.
[10] Young Offenders Act 1993 (SA) s 6(3).
“Part 4 – Court proceedings against a youth” of the YO Act deals with those matters that have not been determined to be “minor offences” or a determination has been made pursuant to s 7(1)(c) that the appropriate course is for a charge to be laid before the Court.
Section 17, which falls within that division, enables a Court, even though a charge has been laid, to refer the matter back to be dealt with by a police officer or a family conference.
“Division 3 – Sentence” provides the various sentencing options available in sentencing a youth. Section “23 – Limitation on power to impose custodial sentence” sets out the circumstances in which a youth may be sentenced to a term of detention. Section 23(4) creates a prohibition against a sentence of detention unless certain criteria are satisfied. It relevantly provides:
23—Limitation on power to impose custodial sentence
…
4)A sentence of detention must not be imposed for an offence unless—
(a) the offender is a recidivist young offender or a serious firearm offender; or
(b) in any other case—the Court is satisfied that a sentence of a non custodial nature would be inadequate—
(i)because of the gravity or circumstances of the offence; or
(ii)because the offence is part of a pattern of repeated offending.
…
Section “26 – Limitation on Court’s power to require bond” prohibits the Court from requiring that a youth enter into a bond as provided for under the Sentencing Act2017 (SA). Instead s 26(2) allows for the Court to impose an obligation of the kind that might have otherwise been imposed under a bond.
The Sentencing Act 2017 (SA)
The Sentencing Act2017 (SA) also has application to the sentencing of a youth offender. Both the general and individual sentencing principles outlined under ss 10 and 11 of the Sentencing Act 2017 (SA) remain relevant when sentencing a youth, though to the extent that there is an inconsistency between those sentencing considerations and the provisions of the YO Act, the latter will prevail.
Of note, the seriousness of the offending, the vulnerability of any victim and the extent to which any injury or harm was suffered, as well as matters personal to the youth such as the risk of re-offending and prospects of rehabilitation remain relevant sentencing considerations. It is necessary however that when considering those matters, attention is directed to the objects and policies of s 3 of the YO Act.
The sentencing approach adopted by the Magistrate
Following sentencing submissions the Magistrate proceeded to sentence the appellate ex tempore. It is important to note that during the relatively brief submissions, emphasis was placed on the four days that the appellant spent in detention, which was said to have a deterrent impact, the negative impact of the appellant’s peer group, the fact that the appellant had succeeded in not reoffending for four months, and that she was engaging in relevant programs. Those matters would no doubt have been at the forefront of the Magistrate’s mind when he came to sentence.
It was also agreed by all parties that the most serious offences were the June assaults. The Magistrate commented that it was this matter that “concern[ed]” him the most.[11]
[11] T3.
As is apparent from the table setting out the various penalties imposed, the Magistrate tailored his approach to sentencing the appellant, depending on the nature, circumstances, and gravity of each offence.
A number were dismissed without further conviction, and some were diverted to a family conference.
For each of the breach of bail offences, the offence of aiding and abetting the breaching of an intervention order and the offence of breaching a transit barring order, the Magistrate dismissed the charges without conviction.
The Magistrate diverted the two illegal use charges to a Family Conference. In doing so, the Magistrate acceded to a submission made by the appellant’s solicitor. It had been submitted that because the appellant was 16, she was at an age at which she could commence qualifying to obtain a driver’s licence. Had these matters not been diverted, pursuant to s 86A of the Criminal Law Consolidation Act 1935 (SA), the appellant would have been the subject of a mandatory 12-month licence disqualification.
Having determined to adopt that course, the Magistrate explained his reasons for doing so:[12]
In relation to the illegal use charges, I am asked by prosecution to impose licence disqualifications. That submission has some force, particularly in relation to the offending of 31 July, which was an extended period of driving after taking the vehicle. Normally, I must say, even notwithstanding the lack of relevant priors and matters in R, B’s favour, I would impose the disqualification. However, she has turned 16, and she is ready to get her driver’s licence. She is showing signs of engaging and doing the right thing. I do not think it is in her interest to impose the licence disqualification and, on balance, just, I do not think it is in the community’s interest either.
[12] Remarks on Penalty at 2.
In considering the two episodes of offending that involved assaults, the Magistrate categorised them as “serious assaults”. In referring to the June assaults, the Magistrate said the following:[13]
I accept that R, B was associating with the wrong people, and that there may have been mental concerns at the time. Nonetheless, even though she was not the instigator, she has admitted to punching one victim four times to the head whilst he was on the ground, and then stomping him on the head once. It is just blind luck you are not on a more serious charge. Any one of those blows could have done something catastrophic if it hit the wrong place. The community needs to be protected from this kind of conduct. I say that notwithstanding your relevant lack of priors and the terms of s 3(1) of the Young Offenders Act1993.
[13] Remarks on Penalty at 3.
For the October 2023 offending, the Magistrate dealt with the aggravated assault by way of the imposition of an obligation for six months, three months of which were to be under supervision. For the breaches of bail and the transit barring order, the Magistrate dismissed those offences without conviction.
For the June 2023 offences, the Magistrate started at a sentence of three months detention, which was reduced to two months to take into account the appellant’s guilty pleas and her personal circumstances. That sentence was suspended upon the appellant entering into a six month obligation, three months of which were under supervision. In explaining why he imposed a term of detention, the Magistrate said:[14]
[N]otwithstanding everything that has been properly said on R, B’s behalf, ultimately I agree with the prosecutor that a suspended term of detention is appropriate for the charges of aggravated assault and aggravated assault cause harm. The offending is simply too serious for any other outcome.
[14] Remarks on Penalty at 3.
In concluding his remarks on penalty, the Magistrate reiterated the seriousness of the offending:[15]
The long and short of that, is there is a term of detention hanging over your head. You do not have to serve it, but if you commit further offences you might. It is up to you now. That was a really serious offending. It seems to me that you are on the right track now. Hopefully you are getting the help that you need. If you keep on this track you can pretty much do anything you want. We do not want to see you back here again.
[15] Remarks on Penalty at 4.
Approach on appeal
An appeal court will not interfere with the sentence passed in a lower court merely because it has a different view to the sentencing judge or magistrate about the most appropriate sentence. Only if there has been an error of the type described in House v The King[16] does the appeal court have the power to quash the sentence passed below.
[16] (1936) 55 CLR 499 at 504-505.
The test to be applied in determining whether to interfere with a decision on sentence on appeal was set out by Doyle CJ in R v Jongewaard:[17]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
[25] As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[17] [2009] SASC 346 at [40]; (2009) 266 LSJS 283 at 288-289.
In R v Morse,[18] King CJ identified the factors to be considered in determining whether or not a sentence is manifestly excessive. Those include the maximum penalty prescribed by law, the standards of sentencing observed for those offences,[19] the place the criminal conduct occupies in the scales of seriousness of crimes of that type, and the personal circumstances of the offender.[20] An appellate court can only intervene with a sentence on grounds of manifest excess when satisfied that the sentence imposed was “definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing Judge”.[21]
[18] (1979) 23 SASR 98.
[19] Sentencing standards have limited application in sentencing a youth, R v QTV (2003) 87 SASR 378 at [50].
[20] R v Morse (1979) 23 SASR 98 at 99.
[21] R v A [2016] SASCFC 66 at [64].
In determining whether to interfere with the sentence, an additional consideration is that the Magistrate who sentenced the appellant sits in a highly specialised court. In considering the approach to be adopted on an appeal against sentence from the Youth Court, in O, C v Police[22] Layton J observed:[23]
It is well established that an appellate court should not interfere with the sentence ordered in the court below unless an error can be identified or unless it can be demonstrated that the sentence was manifestly excessive. Where there is room for a reasonable difference of opinion, it is inappropriate for this Court to interfere. It is inappropriate for an appellate court to meddle and tinker with sentences. Furthermore, the Youth Court is a specialist court which sentences youths on a regular basis. As a consequence, it is usually better placed than this Court to assess what is an appropriate sentence. The Youth Court is also a very busy jurisdiction and accordingly, due allowance should be made for the ex tempore reasons and the circumstances in which the Judge imposed the sentence.
(Footnotes omitted)
Was the sentence manifestly excessive?
[22] [2007] SASC 346.
[23] Ibid at [16].
The appellant’s submissions
It was the appellant’s submission that the impugned sentence is unreasonably high, or plainly unjust, in the sense required by House v The King.[24] It was submitted that as a sentence of detention is an option of last resort and given the appellant’s circumstances, that point had not yet been reached.
[24] (1936) 55 CLR 499 at 504-505.
The appellant does not allege any process error but rather, raised a number of matters which it is suggested are ‘signposts’ contributing to the explanation for a manifestly excessive sentence. In doing so, the appellant adopted an approach that was discussed with approval by the Court of Appeal in the R v Jacques.[25] The Court observed:
The determination of whether a sentence is manifestly inadequate is a conclusion that requires repeating the sentencing task to determine whether the sentence fell outside the permissible range. To this end, it is often the practice of the prosecution on an application for permission to appeal to identify steps taken by the sentencing judge that it asserts have led to the claimed manifest inadequacy. This technique of advocacy is usual enough even where a step so highlighted is not claimed to amount to a process error. It is to identify signposts along the way to manifest inadequacy that can assist the Court in its notional repetition of the sentencing task. Further, however, it assists in identifying whether a sentence is a product of idiosyncratic views that require correction, or so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’, such that the matter may be an appropriate case for permission.
(Footnote omitted)
The ‘signposts’ relied upon by the appellant
1. The appellant’s personal circumstances
[25] R v Jacques [2021] SASCA 94 at [29].
Counsel for the appellant relied upon a number of the appellant’s circumstances as forming the foundation for a submission that the sentence was manifestly excessive. The appellant is a 16-year-old Aboriginal youth with effectively no prior criminal history. She has mental health issues, however, at the time of sentencing she was engaging well.
The appellant was not the instigator of the offences but was part of a group described as “negative peer influences”. There was evidence before the court that the appellant was making progress through her period of supervision,[26] and enjoyed the support of her mother, grandmother and family members.
[26] That appears to have been accepted by the Magistrate in his remarks on penalty.
The appellant had spent four days in juvenile detention which was said to have a deterrent effect.
2. Failure to have explicit regard to the four days in detention
In his remarks on penalty the Magistrate did not make reference to the four days the appellant spent in detention in relation to the October assault. It was submitted that this was problematic in two respects. Firstly, it does not make it plain that the appellant was given credit in a sentence for those four days. However, the appellant fairly and reasonably accepted that it would seem by necessary implication that the Magistrate took those four days into account in relation to the sentence for the June assaults. That was on the basis that in reducing the sentence from three months to two months, the Magistrate explained that he did so on the basis “of her plea and matters personal to her”. The reduction of three months to two months equates to a discount of about 33.33 per cent, which was in excess of what the appellant was entitled to.[27] It is implicit therefore that the Magistrate allowed for the four days the appellant had spent in custody.
[27] Sentencing Act 2017 (SA) s 39(2)(b)(ii). The maximum discount available under this section is 30 per cent.
The second difficulty identified by the appellant was that by failing to make an express reference to the time spent in custody, “the deterrent effect of that time in custody did not find voice in the reasons”.
Whilst it was accepted by the appellant that it is not necessary for the Magistrate to set out every consideration that resulted in him arriving at the sentence, this was a matter of some significance because s 3(2a) of the YO Act provides that in “imposing sanctions on a youth for illegal conduct regard should be had to the deterrent effect any proposed sanction may have on the youth”. As the deterrent effect of the four days in custody had been one of the matters raised by the appellant’s counsel during submissions it was contended that the absence of any reference to those submissions about the impact of spending four days in detention, is suggestive of the Magistrate adopting an erroneous approach.
3. The need to protect the community
This complaint arises from the observations in the Magistrate’s remarks on penalty that the “community needs to be protected from this kind of conduct. I say that notwithstanding your relevant lack of priors and the terms of s 3(1) of the Young Offenders Act 1993”.
It was the appellant’s submission that whilst there is nothing inaccurate in what was said, the Magistrate failed to set out “the critical stepping stones which link the two concepts”.[28] As I understand it, what is meant by this submission is that the community is provided with the best protection if a youth receives “the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential”.[29] This proposition is broadly accepted in the sentencing of any offender, as was succinctly encapsulated by King CJ in Yardley v Betts.[30]
The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is that to extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced.
[28] Written Submissions of Appellant at [23], (FDN 10).
[29] Young Offenders Act 1993 (SA) s 3(1).
[30] (1979) 22 SASR 108 at 112.
It was the appellant’s position that in failing to expressly acknowledge this link, there is a risk that the Magistrate failed to take this consideration into account, thus resulting in a sentence that is manifestly excessive.
4. The Magistrate failed to consider other options falling short of a term of imprisonment
It was the appellant’s submission that in circumstances in which imprisonment is the penalty of last resort, the Magistrate’s decision to impose a suspended term of detention was to impose a penalty that fell outside of the permissible range of penalties. It was submitted that the circumstances of the case militated so strongly in favour of a non-custodial sentence, that the magistrate must have failed to give sufficient consideration to other non-custodial sentencing options. Alternatively, it was suggested that the Magistrate fell into the type of error identified by Bleby J in L v Police,[31] where his Honour found that in that case the approach of the sentencing Magistrate:[32]
… appears to have been to put a custodial sentence at the forefront of the sentencing options for reasons of the gravity of the crime and personal deterrence. … Particularly in view of the fact that this was a first offence, those options should have been explored, rather than resorting immediately to what should have been the last resort.
[31] L v Police [1998] SASC 6821.
[32] Ibid at [34].
In particular, the appellant relied upon the finding of the Magistrate that the appellant’s “progress in [her] latest report [was] really good”, that the appellant was “showing signs of engaging and doing the right thing”, and, finally the Magistrate’s observations to the appellant that “[i]t seems to me you are on the right track now. Hopefully you are getting the help that you need. If you keep on this track you can pretty much do anything you want”.
It was the appellant’s submission that given her lack of criminal record, these findings and observations were such that, if given appropriate weight, should have resulted in a penalty that did not involve a custodial sentence.
In summary, it was the appellant’s submission that, notwithstanding the acknowledged seriousness of the offences, a proper application of the principles underpinning the YO Act required the Magistrate to impose a sentence that did not include a term of detention. Expressed differently, it was submitted that the imposition of a period of detention was outside of the range of permissible sentences for the offences.
The Respondent’s submissions
It was the respondent’s submission that the sentence complained of cannot be seen to be manifestly excessive in the circumstances of this case. The respondent’s position was summarised in the following terms:[33]
… By reference to the gravity of the offending, his Honour was perfectly entitled to find that a sentence of a non-custodial nature would be inadequate, bearing in mind that these were vicious and unprovoked assaults against two different civilians in a public setting committed in the company of multiple associates. Not only did his Honour properly apply the test governing the imposition of detention under subsection 23(4)(b)(i) of the YOA, it is submitted that the imposition of detention was entirely consistent with the statutory policies enshrined in the YOA – those included that a youth be made aware of her obligations under the law and the consequences of breaching the law, as well ensuring the community including its individual members be adequately protected against violent and wrongful acts. His Honour’s ultimate decision to suspend that term of detention reflects that proper regard was had to those matters personal to the appellant, including her lack of prior history, the progress she had made as referenced in the reports and the time she had spent in custody. The sentence imposed properly reflects the object contained under section 3 of the YOA, namely, it gave the appellant the degree of care, correction and guidance necessary for her development, whilst allowing for the proper realisation of her potential in the community.
(Footnotes omitted)
[33] Written Submission of the Respondent at [10], (FDN 11).
The respondent submitted that the structure of the Magistrate’s remarks on penalty provide a clear indication that the Magistrate took all relevant considerations into account in ultimately determining that the June assaults warranted a suspended term of detention.
The Magistrate commenced with the less serious matters which he dismissed without recording a conviction. In explaining his reasons for doing so, the Magistrate set out all of those matters favourable to the appellant, including the time that she had spent in detention.
The Magistrate’s approach to the illegal use charges was also indicative that he was conscious of the objects of the YO Act and the need to develop youths into “responsible and useful members of the community”. The inability to obtain a driver’s licence may well be an impediment to that outcome, such that the Magistrate adopted a course that did not prevent the appellant from having that opportunity.
In relation to the June assaults however, and consistent with the Magistrate’s findings, the respondent relied upon a number of aspects of the appellant’s conduct as demonstrating the gravity of the offending. These were:
a.The offending was entirely unprovoked, but rather was an example of callous and gratuitous violence;
b.The offending impacted two separate civilians who were otherwise minding their own business in a public place. The protection of the community from this sort of violence was a particularly important sentencing feature to which proper regard was required to be had in accordance with s 3(2)(c) of the YO Act;
c.The nature of the physical contact engaged in by the appellant was particularly significant – it involved firstly, multiple applications of force by the appellant to the male victim’s head and ‘stomping’ on his head whilst on the ground, followed by a further punch to the face of the second female victim;
d.The offending occurred in company of multiple other assailants who also joined in with the physical attacks on both complainants;
e.Whilst not major indictable offences, the maximum penalties for each offence included terms of imprisonment.[34] They were particularly serious examples of assaults, bearing in mind the presence of the aggravating feature as well as the nature of the force and area to which it was directed. The offending can properly be characterised as serious examples of those particular criminal offences.[35]
[34] The offence of aggravated assault carries a maximum penalty of imprisonment for three years and the offence of aggravated assault cause harm carries a maximum penalty of imprisonment for four years: Criminal Law Consolidation Act 1935 (SA) ss 20(3)(b), 20(4)(b).
[35] Written Submissions of Respondent at [28], (FDN 11).
It was the respondent’s submission that the above factors plainly supported the Magistrate’s ultimate finding that the gravity of the conduct rendered non-custodial penalties inadequate. Further, that such a finding was entirely consistent with the terms of the YO Act, and the provisions governing the imposition of detention under s 23(4)(b)(i) of the YO Act.
Consideration
The Magistrate’s remarks on penalty
Before considering the various complaints made by the appellant, it is appropriate to make some general observations about the nature of sentencing remarks in the Youth Court.
As has been previously mentioned, the Magistrate’s remarks on penalty were ex tempore and were addressed to a 16-year-old youth. In such circumstances, with a need to communicate effectively with the youth and explain the process, it will be highly undesirable, indeed inappropriate, for the Magistrate to set out the minutiae of the circumstances of the offending and his reasoning process or embark upon a detailed treatise of the law.
The failure of the Magistrate to refer to each submission made by counsel does not amount to error justifying appellate intervention. This is particularly so in the context of the Youth Court which is well recognised as a fast paced jurisdiction with a strong focus on expediting matters for the benefit of the youth offender. As White J observed in A, MC v Police:[36]
Sentencing judges and magistrates have considerable flexibility in the content of the sentencing remarks. They can satisfy the obligation to give adequate reasons for sentence in a variety of ways. What is adequate will vary according to the circumstances of the individual case. When a young offender is to be sentenced to detention, the very severity of such a sentence and the fact that it is a sentence of last resort indicate that adequate sentencing reasons should explain, at the least, why the court regarded such a sentence as being appropriate, and should address the principal matters put in mitigation. That may be done by express reference to the object and policies within s 3, but that is not the only way. The sentencing remarks will be sufficient if they indicate how the object and policies of s 3 were applied. This may be done by express reference. Alternatively, it may be discernible from the manner of explanation of the sentence that those object and policies, even though not specifically mentioned, were considered and applied.
In my opinion, this Court should not accept too readily a submission that a judge or magistrate sitting regularly in the Youth Court has failed to take into account the relevant statutory objects and policies applicable to the sentencing of a youth. Such judges and magistrates work on a daily basis with the YOA and should be taken to be well familiar with its principles. …
(Footnotes omitted)
1. The appellant’s personal circumstances
[36] (2008) 102 SASR 151 at [35]-[36].
The Magistrate’s remarks on penalty adequately set out those matters that were taken into consideration. It is apparent from the remarks that the Magistrate was cognisant of those matters that the appellant relied upon in support of a sentence other than detention. These were that the appellant was associating with the wrong people at the time and there were mental health concerns, the appellant’s lack of prior criminal history and the agreed fact the appellant was not the instigator of the assaults.
It is plain that the Magistrate had due regard to the personal circumstances of the appellant.
2 Failure to have explicit regard to the four days in detention
True it is that the Magistrate did not expressly refer to the appellant having spent four days in detention, nor did he specifically cite the “salutary effect of a period in detention” in the course of his remarks, however, it does not follow that the Magistrate had no regard to the submissions put by the appellant’s solicitor on this issue. To the contrary, in his remarks the Magistrate referred to the time that the appellant “spent in custody” on a number of occasions. In fact, the Magistrate ultimately resolved to dismiss a number of charges without recording convictions after taking into account the time that the appellant had spent in custody.
As to the issue of whether the sentence imposed by the Magistrate (for the June assaults) took into account the four days spent in custody, the maths used to calculate the sentence would suggest that he did.
The parties agreed that the appellant was entitled to a discount of 30 per cent as a result of her guilty pleas. As previously mentioned, the discount that was in fact given was 33.33 per cent. It is unhelpful that the Magistrate described having arrived at the discount on the basis of “matters personal to her”, as there is a lack of clarity surrounding the process that was undertaken. However, when the relevant mathematical calculations are performed, it becomes clear that the Magistrate did in fact give credit for the four days previously served. As the respondent pointed out in submissions, if one commences with the starting point of three months, deducts four days for that period in detention and reduces the sentence by 30 per cent the final result is, indeed, about two months.
3. The need to protect the community
It is of note that in the relatively succinct remarks on penalty, the Magistrate, having made reference to the need to protect the community from conduct of this type, stated in the sentence immediately following “I say that notwithstanding your relevant lack of priors and the terms of s 3(1) of the Young Offenders Act 1993.” It is clear that the Magistrate was conscious of the need to consider the concept of the protection of the community in the broader context of the objects of the YO Act.
4 The Magistrate failed to consider other options falling short of a term of imprisonment
The Magistrate is an experienced Youth Court Magistrate, who no doubt is called upon to consider the various sentencing options for any number of youth offenders on a daily basis. It is apparent from the totality of his remarks that the Magistrate was cognisant of the various options open in sentencing the appellant. It is also apparent that he turned his mind to each of the offences and considered the appropriate outcome based on the nature of the offence and the circumstances in which it was committed and, as I have said previously, he did so taking into account the appellant’s personal circumstances.
The Magistrate expressly acknowledged that the consequence of this sentence would result in the appellant having a term of detention “hanging over [her] head”. It is clear that the Magistrate had determined that this was the necessary outcome to ensure that the appellant kept on the “right track”, such that she would not commit any further similar offences, whilst affording her the opportunity to obtain the assistance she needed.[37]
[37] Remarks on Penalty at 4.
It was open to the Magistrate to adopt this course. As the Court observed in QTV:[38]
… 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 judgment 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 Act1993 (SA).
[38] R v QTV (2003) 87 SASR 378 at [50].
Conclusion
When regard is had to the entirety of the remarks on penalty, it is plain that the Magistrate had proper regard to the wide range of factors relevant to sentencing a youth. These include not simply the objective severity of the offending and the impact of the offending on the community, but also those matters personal to the appellant, including her lack of criminal history, her particular role in the assaults and her mental health.
The words of admonishment from the Magistrate to the appellant during sentencing that it was “blind luck” that she was not on a more serious charge, emphasising that any one of the blows could have resulted in a catastrophic outcome, also demonstrate that the Magistrate made a concerted effort to ensure that the objects of s 3(2)(a) of the YO Act were met, namely, to make the appellant aware of her obligations under the law and the consequences of breaching it.
The offences for which the Magistrate was sentencing were very serious and of a type that would be likely to cause widespread concern in the community. It was a random, violent attack, in daylight, on public transport, involving a number of assailants. It is also a relevant factor that the offences did not stand in isolation but were part of a large number of offences that occurred between February and October 2023, which in combination, demonstrated that the appellant’s offending had been spiralling out of control.
In those circumstances, notwithstanding the appellant’s lack of criminal antecedents, it was open to the Magistrate to impose the impugned sentence in order to satisfy the objects of the YO Act.
I find that the sentence is not manifestly excessive. It falls within the range of appropriate sentences that were open to the Magistrate.
I dismiss the appeal.
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