S, JC v Police - [2007] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
S, JC v POLICE
[2007] SASC 27
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White)
6 February 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant pleaded guilty in Youth Court to three counts of aggravated serious criminal trespass and three counts of property damage - Youth Court judge recorded convictions and imposed a single sentence of four months detention suspended upon appellant entering into an obligation to be of good behaviour for 12 months, with a condition that the appellant complete 150 hours of community service - whether sentence manifestly excessive - whether special reasons existed for not recording convictions - whether sentencing remarks adequate in the circumstances.
Held: no special reasons for not recording convictions - (by majority) sentence of four months imprisonment manifestly excessive - sentence of eight weeks imprisonment substituted - sentence suspended.
Criminal Law Consolidation Act 1935 (SA), s 85, s 169; Young Offenders Act 1993 (SA), s 3, s 21, s 23; Childrens' Protection and Young Offenders Act 1979 (SA), s 7, referred to.
Hallam v O'Dea (1979) 22 SASR 133; L v The Police (1998) 198 LSJS 481; Baker v The Queen [2004] HCA 45; R v Harris and Simmonds (1992) 59 SASR 300; R v Place (2002) 81 SASR 395, applied.
R v MacGowan (1986) 42 SASR 580; Wakely v Police (2003) 229 LSJS 327; R v Lowe [2003] SASC 336; C, TE v The Police [2006] SASC 43; R v Police (2002) 224 LSJS 210; Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404; R v Simpson [2001] NSWCCA 534; R v Avgoustinos (1975) 13 SASR 48, considered.

S, JC v POLICE
[2007] SASC 27
Full Court: Doyle CJ, Debelle and White JJ

DOYLE CJ: I agree with the orders proposed by White J, and with his reasons.
DEBELLE J. The facts are recited in the reasons of White J and need not be repeated. I agree with White J that, in the circumstances of this offending, there has been no disparity in the sentences. The appellant and his co-offender JB had a higher degree of culpability than the other four offenders. I agree also that there was no ground on which this Court should interfere with the Judge’s conclusion to record a conviction. In addition, although the Youth Court Judge might have given more adequate reasons, the reasons given do not show any error. However, I strongly disagree with White J’s conclusion to set aside the sentence of four months imprisonment. For the reasons which follow, the sentence was plainly not manifestly excessive.
The appellant committed three sets of very serious offences. On three separate occasions he wrongfully entered the premises of the Blackwood High School and caused damage.…

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 S, JC v Police

Details

AGLC: S, JC v Police [2007] SASC 27
Case: [2007] SASC 27
Decision Date: 6 February 2007

CaseChat Overview and Summary

In the matter of S, JC v Police, the appellant appealed against the sentence imposed by the Youth Court after pleading guilty to three counts of aggravated serious criminal trespass and three counts of property damage. The Youth Court judge imposed a single sentence of four months detention, which was suspended upon the appellant entering into an obligation to be of good behaviour for 12 months, including a condition to complete 150 hours of community service. The court was required to determine whether the sentence was manifestly excessive, whether there were special reasons for not recording the convictions, and whether the sentencing remarks were adequate.

The court found that there were no special reasons for not recording the convictions. However, it held that the sentence of four months imprisonment was manifestly excessive. The court substituted an eight-week imprisonment sentence, which was also suspended. The reasoning behind this decision was based on the mitigating factors presented by the appellant, including his guilty plea, contrition, and the reduction allowed for these factors. The court emphasised the importance of considering these mitigating factors and ensuring that the sentence imposed is proportionate to the offence committed. Additionally, the court noted that the judge's failure to mention these factors in his sentencing remarks indicated that they may not have been properly considered.

The court also considered the provisions of the Young Offenders Act 1993 (SA), which aim to secure the care, correction, and guidance necessary for the development of youths into responsible and useful members of the community. The court found that the judge should have been satisfied that detention was not required in this case, and even if it was necessary, special circumstances existed indicating that the recording of convictions was not required. Finally, the court noted that considerations of parity of treatment with the sentences imposed on two other co-offenders warranted the court's interference. The final order of the court was to substitute an eight-week imprisonment sentence for the four-month sentence imposed by the Youth Court.

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

DEBELLE J (dissent)

As noted above, the appellant (and JB) were charged with six offences: three offences of serious criminal trespass and three offences of property damage. Each of the offences of serious criminal trespass was a major indictable offence as was the offence of property damage committed on 5 January 2006. The remaining two offences of property damage were minor indictable offences.The Decision of the Judge The judge heard sentencing submissions on the Thursday before Easter (13 April 2006). He remanded the appellant and JB in custody over the Easter weekend to Tuesday 18 April 2006 while he considered the submissions. Both boys were held in the McNally Training Centre over that Easter weekend. The judge characterised the kind of conduct in which appellant and his fellows had engaged as the conduct of “losers”. He regarded the offending as serious. The judge considered that the imposition of a period of detention was required, as was the recording of convictions. He imposed a single sentence of four months detention on both the appellant and JB. Each of their sentences was suspended upon them entering into an obligation to be of good behaviour for a period of 12 months, during which time each was to perform 150 hours of community service.Submissions on Appeal Mr Edwardson, who appeared with Mr Gauvin for the appellant, submitted that a number of matters in combination indicated errors by the judge and that an excessive sentence had been imposed. The failure of the judge to make any mention at all in his sentencing remarks of the matters put in mitigation, his failure even to mention the pleas of guilty, the appellant’s contrition and the reduction which he allowed on account of those matters, indicated, it was said, that these matters had not been properly considered. The judge had, it was said, attributed to the appellant and JB resentment towards others who were achieving at school when, at least in the case of the appellant, there was no evidence justifying that characterisation of his conduct. The judge could and should have been satisfied, it was submitted, that detention was not required in this case but even if he considered that it was required, he should have considered that special circumstances existed indicating that the recording of convictions was not required. Finally, it was submitted that considerations of parity of treatment with the sentences imposed on two other co-offenders warranted this Court’s interference. Mr Edwardson referred to a number of provisions in the Young Offenders Act 1993 (SA) (“YOA”) which bore upon the exercise of the sentencing submission. Section 3(1) provides: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.Section 3(2) provides that the powers in the YOA are, amongst other things, to be directed towards that object.

Ratio Decidendi

Legal Principle Established

Established by:

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