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 27Full 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.…
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CaseChat Overview and Summary
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.
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