RJB v Police

[2000] SASC 209

RJB v POLICE
[2000] SASC 209

Youth Court Appeal:  Criminal

1................ DEBELLE J.  (ex tempore)        This is an appeal from a magistrate sitting in the Youth Court at Berri.

1. The appellant was convicted on his plea of guilty to a number of offences on four separate complaints. The first complaint charged the appellant with illegal use of a motor vehicle, wilful damage to that motor vehicle and a failure to comply with a bail agreement. He was convicted and sentenced to four months detention.

2. On the second complaint he was charged with three offences of breaking into and larceny from a building, and two counts of criminal damage. These offences were committed before the offences the subject of the first complaint. The appellant was convicted without further penalty. On the third complaint he was charged with three offences of failure to comply with a bail agreement. He was convicted without further penalty. On the fourth complaint he was charged with the offence of non-aggravated criminal trespass. The offence related to breaking and entering into a football club and stealing goods from that building. He was convicted without further penalty.

3. The offending was serious. The first of the offences to occur were the breaking and entering into buildings, and criminal damage to those buildings. On the weekend of 15 to 18 October 1999 the appellant, with three other lads, broke into the Waikerie High School and stole goods with a total value of about $1400. Those goods were taken from the arts studio at that school. Whilst in the arts studio, they cut the neck strings on 28 aprons hanging on the wall. Damage was also done to a desk. Later in the weekend the same four lads broke into the Waikerie Primary School. They took goods to the value of some $3460. They also sprayed graffiti on walls and other parts of the school.

4. The appellant voluntarily attended at the Waikerie Police Station on 19 October 1999 and freely admitted being involved in the above offences. He denied damaging property, but admitted writing graffiti on the walls of the primary school. It appears that he did not benefit from any of the stolen goods. After being interviewed by the police, the appellant was arrested, charged and released on bail. Relevant conditions of the bail agreement were to the following effect:

   1...... That he would not leave the State of South Australia for any reason without lawful permission.

   2...... That he was to reside at 5 Smith Drive, Waikerie.

   3.That he will not make contact with Jack Daniel Hawkins, Matthew Ashmore and Zacharia Fuller.

   4...... That he was not to be away from his place of residence between the hours of 6 pm and 7 am unless in the company of a parent or guardian.

The persons Hawkins, Ashmore and Fuller were the appellant’s co-offenders in breaking and entering the two schools. The appellant came before the Youth Court on 26 November 1999. The matters were adjourned and the appellant was released on bail on the same conditions.

1. The next offence occurred on 13 January 2000. The appellant was in company with Hawkins and Ashmore in breach of his bail agreement. They stole a Mazda motor car which was parked in the street in the front of the owner’s residence at Waikerie. They drove the car to Adelaide where they spent some time in Hindley Street and Rundle Mall. They then returned on the morning of 14 January to Ramco. There they pushed the car into the River Murray. The car was not recovered until 27 January, almost two weeks later. It was extensively damaged and it was not repairable. The car was worth $4500 and was insured.

2. Police officers interviewed the appellant. He admitted being with Ashmore and Hawkins, stealing the car, and pushing it into the River Murray. He also admitted driving the car in the course of the escapade to Adelaide. He admitted being in breach of his bail agreement. There were two breaches of the bail agreement. The first was associating with Hawkins and Ashmore. The second was being away from home without being accompanied by a parent or guardian.

3. The offences of breaching the bail agreement occurred in January 2000. On one of those occasions the appellant left South Australia to visit his natural mother in Broken Hill.

4. The offence of non-aggravated criminal trespass was committed on 20 January, just a week after the stealing of the motor car. The appellant broke into the Ramco Football Club and stole a satchel and some beer to the value of about $70. When breaking into the club, he caused about $75 damage to the window.

5. The appellant had spent five weeks in custody after being sentenced by the magistrate. On 18 May 2000 he was released on bail, pending the outcome of this appeal. He resided with his parents at Waikerie. At the time of the break and entry into the two schools, the appellant was aged 16 years. He turned 17 in December 1999. He had one prior offence of disorderly behaviour and hindering police in 1998 when he was fined $100.

6. The appellant relies on one ground of appeal, namely, that the magistrate should have suspended the period of detention. The appellant accepts that the totality of the gravity of his offending justified a period of four months detention. Indeed, it could be said to have justified an even longer period of detention, as I shall mention in a moment.

7. It is apparent from the magistrate’s remarks, when sentencing the appellant, that he has imposed one sentence in relation to all of this offending. It is equally apparent that the magistrate believed that the gravity of the offending primarily existed in the fact that the appellant committed further offences while on bail. He was also concerned that the appellant had not understood the seriousness of his offending.

8. The magistrate said,

   “The most important aspect of these particular offences is that both you and Mr Hawkins broke and entered (and you on the third occasion ...) but the most important thing to take note is that after the first round of breaking and entering you were placed on bail by a bail authority and you were required by that bail authority to keep away from each other and in addition not to re-offend. Instead of that, from 15.10.99, 2 months later, both of you took a person’s car, used it extensively and in breach of bail agreements, and then were part of an enterprise which chose to push it into the river without any thought for the victim or the fact that that was perhaps the most valuable item of property the victim possessed. Whilst you have entered guilty pleas (an important sign that you are sorry for your actions) I do not believe that you have any real appreciation of how serious your offending was—not just in the illegal use but then pushing the vehicle into the river and destroying it. I have come to the conclusion that the matters set out in the Young Offenders Act should be implemented in both your cases, and that no amount of undertakings or fines can adequately demonstrate to you, even with unstained character, the criminality of your actions. I propose one sentence be imposed and that it not be suspended as I see no value in doing this in your respective cases, having regard to the seriousness of your offending whilst on bail.”

The magistrate was entitled to be concerned at the serious nature of the offending by the appellant while on bail. The stealing of the motor car and the act of pushing it into the River Murray was a very serious offence, particularly as it was committed while the appellant was on bail. In addition, when stating that despite the pleas of guilty the appellant did not have a real apprehension of the seriousness of this offending, the magistrate was relying on the social background report which had been provided to him. It contained remarks to that effect.

1. In the ordinary case of a youthful offender committing his first serious offence which justifies an order for detention, a magistrate should consider suspending the order of detention. The appellant lives with his father and stepmother. The magistrate was informed that the family is supportive and caring. Both parents are able to assist and guide the appellant. They were factors which might have encouraged the magistrate to suspend the period of detention.

2. However, the fact that the appellant continued to offend whilst on bail was clearly an aggravating feature of the appellant’s offending, and it is apparently that fact which has caused the magistrate to order the appellant to serve the period of detention. Notwithstanding the gravity of the appellant’s offending, the magistrate was required to have regard to the fact that detention and imprisonment are options of last resort in the process of sentencing young offenders: Hallam v O’Dea (1979) 22 SASR 133; R v Police (1998) 198 LSJS 481; and Ogg v Police (unreported, Doyle CJ, 8 August 1996, Judgment No. S5769).

3. Although the magistrate has expressly referred to the matters set out in the Young Offenders Act 1993, it is not apparent to which objectives of the Act he has had regard. I acknowledge that these are the ex tempore reasons of a busy magistrate intent upon disposing of a heavy list. However, the reference by the magistrate to the matters set out in the Young Offenders Act does not indicate to which of the matters or the objectives of that Act, as spelled out in s 3 of the Act, the magistrate has had regard. In the course of her very capable submissions, Ms Boord referred to the magistrate’s reference to:

   “[N]o amount of undertakings or fines can adequately demonstrate to you ... the criminality of your actions.”

But those remarks do not indicate whether the magistrate has considered the policy or objectives of the Act. In my view, the magistrate has failed to have regard to the fact that it is the clear policy of the Act that sentences of detention or imprisonment are options of last resort when sentencing young offenders.

1. There is a further reason which causes concern as to whether the magistrate has erred in the exercise of his sentencing discretion. The penalty of four months detention was, on any view, a very lenient penalty for this course of serious offending, even when regard is had to the appellant’s youth. It is not clear whether the magistrate had decided that it was appropriate to order a low period of detention as a kind of short, sharp shock. If that was his intention, he ought to have said so in his reasons. Given that the magistrate thought this offending called for a period of detention, he ought to have considered what was the proper period of detention and then, and only then, to determine whether to suspend that period of detention: R v Palliaer (1984) 35 SASR 569 at 571. Had the magistrate proceeded in that way, he might have imposed a period of detention more suited to the gravity of this offending. In the result, the penalty which has been imposed is extremely lenient.

2. In light of the fact that the magistrate has erred in the exercise of his sentencing discretion, it is necessary to set the sentence aside and to sentence the appellant afresh. Notwithstanding that the penalty ordered by the magistrate of four months detention is, in all the circumstances, extremely lenient, it is not possible for me to increase it in the absence of any cross-appeal by the complainant.

3. Notwithstanding the poor record of this appellant whilst on bail, I am satisfied that he has good prospects of rehabilitation. I have already referred to the fact that he has two caring and supportive parents. That is something which regrettably many young offenders do not have. He has had employment from time to time. Plainly, in this area, that employment is likely to be of a seasonal nature. He has served a brief period of detention. That is likely to be a very stern reminder to him of his obligations to the community and the fact that he should have regard to the interests of others and not offend. His prospects of rehabilitation will be improved if he has the benefit of a probation officer’s counselling and assistance. At the same time, he must realise that there is a penalty to be served in relation to his conduct. I therefore propose to order a relatively long period of an obligation with which he must comply. I propose also to order a period of detention, but suspend that period of detention whilst the appellant is of good behaviour. In fixing the period of detention, I have regard to the fact that he has already served 35 days in detention.

4. For all of these reasons, I allow the appeal. I set aside the sentence ordered by the magistrate on 14 April 2000 and, in lieu thereof, order the following penalty that the appellant serve a period of 12 weeks detention. I suspend that period of detention upon the appellant entering into an obligation to be of good behaviour for a period of two years. The obligation will be in the sum of $300. It will be a condition of the obligation that the appellant perform 120 hours of community service work as directed by an officer of the Department of Family and Youth Services. There will be a further order that the appellant be disqualified from holding or obtaining a driving licence for a period of 12 months, the order to operate as from 14 April 2000. There will be no order as to costs.