RB v Police - [2024] SASC 94

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading RB v Police

Details

AGLC: RB v Police [2024] SASC 94
Case: [2024] SASC 94
Decision Date: 11 July 2024

CaseChat Overview and Summary

The case of RB v Police involved an appeal against the sentence imposed on the appellant, a juvenile offender, by the Magistrate. The appeal centred on the severity of the sentence, which included a term of detention, and the arguments that the sentence was manifestly excessive and not in line with the principles of the Youth Offenders Act. The Youth Court, with its focus on expediting matters and effectively communicating with young offenders, played a pivotal role in the sentencing process. The appellant argued that the Magistrate had not adequately considered certain mitigating factors, such as the appellant's lack of criminal history, mental health issues, and the appellant's role in the offence, which was not that of the instigator.

The legal issues that the court had to decide included whether the Magistrate had erred in imposing a custodial sentence and whether the sentence was manifestly excessive. The court had to consider the wide range of factors relevant to sentencing a youth, including the severity of the offending, the impact on the community, and personal factors about the appellant. The court also needed to assess whether the Magistrate had properly applied the objects and policies of the Youth Offenders Act, particularly the need to make the appellant aware of their obligations under the law and the consequences of breaching it.

The court found that the Magistrate had properly considered the appellant's personal circumstances and the broader context of the offending, which was part of a series of escalating offences. The court noted that the offences were serious, involving a violent attack in public, and had caused widespread concern in the community. Despite the appellant's lack of criminal antecedents, the court concluded that the Magistrate's decision to impose a custodial sentence was within the range of appropriate sentences that were open to the court. The court dismissed the appeal, finding that the sentence was not manifestly excessive and that it was open to the Magistrate to impose such a sentence to satisfy the objects of the Youth Offenders Act.

In conclusion, the appeal against the sentence was dismissed. The court found that the Magistrate had properly exercised their discretion in sentencing the appellant, taking into account the severity of the offending, the impact on the community, and the appellant's personal circumstances. The sentence imposed was deemed to be within the appropriate range and was not manifestly excessive.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.ConsiderationThe 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.