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. The damage he caused to the school on 1 January 2006 was extensive. On 5 January he and JB returned to the school and caused further damage. The extent of the damage was substantial. The appellant had used one or more fire extinguishers and had sprayed them about the school premises. The extent of the damage was substantial. Fifteen rooms in the school were covered with fire extinguisher powder. Sixty nine computers, four printers and two projectors were rendered unusable because of the fire extinguisher powder. Four computer monitors, four large television sets and one glass door and a ceramic sink were smashed. It seems that the damage caused by the appellant was limited to that resulting from the use of the fire extinguisher. The appellant had sprayed the fire extinguishers in rooms both on 1 and 5 January. When sentencing the appellant, the Judge referred to “the chaos that was wreaked on the school premises and the school property”. That is a fair description of the result of the offending.
The cost of making good the damage was in excess of $30,000. However, as White J has pointed out, that cost does not include the time of the school staff and others who cleaned up the mess and the time spent in replacing the damaged equipment and in re-programming the computers. The actions of the appellant and his co-offenders caused considerable distress and disappointment to the principal, teachers and students at the Blackwood High School.
For an adult, the maximum penalty for this offence was twenty years. Because of the appellant’s youth, the maximum period of imprisonment was three years.
The appellant was a Year 11 student at the time he was sentenced. He has learning difficulties, a consequence of an attention deficit disorder. At the time of committing each of these three sets of offences, he was markedly affected by alcohol. That may explain but does not excuse his conduct. He has the advantage of good family support, which should assist his rehabilitation.
The appellant appeared in the Youth Court on Maundy Thursday 2006. After submissions had been made on his behalf, he and his co-offender were remanded in detention until the Tuesday after Easter. His counsel informed the Court that the period of five days’ detention had had a salutary effect upon him. The appellant said that he had experienced something he did not wish to experience again.
These were very serious offences. The appellant had caused extensive damage. To repeat the observations of the sentencing Judge, he had wreaked havoc at the school. He had done so, not once but on two occasions, the second occasion being four days later. It was wanton, mindless destruction causing distress to quite a number of people. Due allowance must be made for the appellant’s good family background and support, for the fact that the appellant was affected by alcohol at the time of the offending, for the fact that this was his first conviction and for the appellant’s expressions of remorse. Allowance must also be made for the fact that he had served five days of detention at Magill, a period of detention which seems to have had a salutary effect upon him. Even when allowance is made for all of those factors, this was a sentence which was clearly within the proper exercise of the sentencing discretion.
The sentencing Judge did not state what reduction he had made for the appellant’s plea of guilty. Even if he had made a generous reduction of one‑third, the sentence would have been no more than six months’ imprisonment. When regard is had to the gravity of the offending and the fact that the maximum sentence was a period of three years, that sentence was plainly within the sentencing discretion.
Counsel for the appellant was not able to demonstrate any error in the exercise of the sentencing discretion. While that might to some degree be a consequence of the nature of the sentencing remarks, the fact remains that the sentence was in no sense manifestly excessive.
Where no error has been identified and there is room for a reasonable difference of opinion, an appellate court should not substitute its own view as the proper sentence for that ordered in the court below: Uznanski v Searle (1981) 26 SASR 388 at 389; Lanham v Brake (1983) 34 SASR 578 at 585. To substitute a sentence of two months for a sentence of four months for these extremely serious offences is to meddle, if not to tinker, with the sentence ordered by the Youth Court Judge in an impermissible way. That is not the proper function of a court of criminal appeal. In those circumstances, it may interfere only where the sentence is manifestly excessive. I repeat, this sentence was well within the sentencing discretion. While it might be said that it is to reduce the sentence by one-half, that is not the correct means by which to assess the severity of this sentence. The fact is that it is a sentence of four months only, a period which is not unduly long even for a youth without any prior convictions. Furthermore, although, as a general rule, there is no element of general deterrence in the sanction imposed on a youth, a period of detention contains elements of personal deterrence. To reduce this sentence sends the wrong message to this appellant. Further, while a sentence in the Youth court does not include an element of general deterrence, any reduction of this sentence also sends the wrong message to those minded to convict this kind of wanton vandalism in schools or other premises.
For these reasons, I would dismiss the appeal.
WHITE J: Following pleas of guilty, the appellant was sentenced by a judge in the Youth Court for three pairs of offences. Each of the pairs comprised an offence of serious criminal trespass in contravention of s 169(2) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) and an offence of property damage in contravention of s 85(3) of the CLCA committed at the Blackwood High School. The first pair of offences was committed late on 31 December 2005, the second pair in the early hours of 1 January 2006, and the third pair on 5 January 2006.
The judge imposed a single sentence of four months detention but suspended that sentence upon the appellant entering into an obligation to be of good behaviour for a period of 12 months. It was a condition of the obligation that the appellant perform 150 hours of community service.
The appeal is made on a number of grounds. First, it was said that a sentence of four months’ detention was manifestly excessive. Secondly, it was submitted that the judge should have been satisfied that there were special reasons for not recording convictions. Thirdly, complaint was made about the adequacy of the judge’s sentencing remarks and, in particular, his failure to mention matters put in mitigation and his failure to make any mention of the reduction allowed on account of the plaintiff’s pleas of guilty.
Circumstances of the Offending
The appellant was 16 years old and had just completed Year 10 at the time of the offending.
On 31 December 2005, the appellant and a group of young people were at a party at Blackwood. They were drinking alcohol. One person had noticed that a gate permitting access to a hallway at the Blackwood High School was unlocked. A group from the party, including the appellant, went to the school and entered the hallway. It seems that on this occasion they did not stay long and caused little damage.
In the early hours of 1 January 2006 a group of about 10, including the appellant and the co-offender, JB, returned to the school. From the hallway they gained access to rooms containing computer equipment. JB smashed several computers. The appellant sprayed a fire extinguisher about causing a widespread distribution of decelerant powder. The group then left the school. Their entry and the damage which they had caused went undetected until 5 January 2006.
On 5 January 2006, the appellant and JB returned to the school to see if their actions had been discovered. On finding that they had not, they entered the school again and embarked on further destruction with the appellant again using a fire extinguisher. However, on this occasion as the two boys were leaving, they were apprehended. Five of the 10 persons involved in the offending on 1 January 2006 have since been arrested and charged.
When first spoken to by the police, the appellant denied any involvement in the damage but later admitted his actions.
All of the offences were committed at a time when the appellant was intoxicated.
The damage to the school was substantial. 15 rooms were covered with fire extinguisher powder and 69 computers, four printers and two projectors were rendered unusable by reason of fire extinguisher powder. Four computer monitors, four large televisions, one glass door and a ceramic sink were smashed. As at the time of sentencing it was thought that the total damage was of the order of $30,000. This did not make allowance for the time of the school staff and employees in cleaning up the mess, replacing the damaged equipment, and re-programming the computers. In addition to the physical damage, the actions of the youths caused considerable distress and disappointment to the teachers and students at the school.
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.
The effect of s 3(2a) is that regard is to be had only to personal deterrence, and not general deterrence, in sentencing an offender in the appellant’s circumstances.
Section 23(4) provides in effect that a sentence of detention is not to be imposed unless the court is satisfied that no other sentence would be adequate. In relation to major indictable offences, s 21 requires the court to record a conviction “unless there are in the opinion of the Court special reasons for not doing so, and a formal record of those is made in the Court’s reasons for judgment”.
Sentencing Parity
The complaint about an absence of sentencing parity can be disposed of shortly.
The principles to be applied are clear enough. They have been stated in R v MacGowan,[1] Wakely v Police[2] and in R v Lowe.[3]
[1] (1986) 42 SASR 580 at 582-3 per King CJ.
[2] [2003] SASC 295 at [34]-[36]; (2003) 229 LSJS 327 at 331 per Doyle CJ.
[3] [2003] SASC 336 at [16]-[17] per Prior J.
With the consent of the respondent, Mr Edwardson adduced evidence on the appeal of the sentencing by the same judge on 1 June 2006 of two of the appellant’s co-offenders. Each was released without conviction upon their entering into a bond to be of good behaviour for a period of 12 months and to perform 100 hours of community service. It was said that the disparity between their sentences and that imposed on the appellant was so large as to give rise to a justifiable grievance in the appellant. In fact, it was the sentence imposed on 1 June 2006 on the co-offenders which prompted this appeal.
The submission with respect to disparity cannot be accepted.
There is a significant difference between the circumstances of the two co‑offenders on the one hand, and of the appellant on the other. Each of the co‑offenders was sentenced for one offence only of serious criminal trespass and for one offence only of property damage. Although it is not entirely clear, it seems likely that each was sentenced for the offences which occurred at the time of the entry into the school in the early hours of 1 January 2006. The fact that these two co-offenders were sentenced for two offences when the appellant was sentenced for six is a significant difference. The culpability of the appellant was much greater, both because of the multiple offending in his case and because the offending on 5 January 2006 occurred after he had had an opportunity to reflect calmly on the wrongfulness of his conduct. In these circumstances, no issue of sentencing parity (or disparity) arises.
The Severity of the Sentence
It is appropriate to consider first the sentence of detention which was imposed upon the appellant.
The offending was serious. The damage caused was substantial. I have referred already to the financial cost and there were additional intangible costs for the school, its staff, and its students. The appellant’s conduct involved a degree of persistence, evidenced by his return to the school on 5 January 2006 after he had the opportunity to reflect upon his actions without the influence of alcohol and away from the influence of his friends.
A number of matters of a mitigatory nature were urged upon the judge in the Youth Court. Support for the appellant’s submissions about those matters was contained in a Social Background Report dated 6 April 2006. There was no reason for the matters contained in that Report not to be accepted by the judge.
This was the appellant’s first appearance before a court. He comes from a stable and supportive family comprising his parents and an older sister. In addition, he has a supportive extended family. The appellant has a mild Attention Deficit Disorder which has impacted upon his schooling. The offences were committed while the appellant and others were intoxicated. The circumstances in which this youth from a supportive family came to be on the streets in an intoxicated state on two separate occasions were not fully explained in the evidence and submissions before the Youth Court.
The appellant regrets very much his conduct and has, to his credit, written a letter of apology to the principal of Blackwood High School. It seems also that he has reflected upon his conduct, the implications of ingesting alcohol and the consequences of his allowing himself to be influenced by others. There were good indications that the appellant has an understanding of the wrongfulness and the seriousness of his conduct. It is significant that the appellant has accepted responsibility for his own conduct and has not attempted to shift responsibility to others.

The appellant’s parents have imposed some limitations on the appellant’s conduct in consequence of his offending. A further relevant factor is that the appellant spent five days in detention over the Easter break. His counsel informed the judge of the Youth Court that this had had a very salutary effect on him.
The question of whether detention was appropriate was to be approached in the manner outlined by King CJ in Hallam v O’Dea.[4] In relation to s 7 of the Childrens’ Protection and Young Offenders Act 1979 King CJ said:
The purpose of the Court therefore must be to “seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and his development into a responsible and useful member of the community”, and it is in doing that that it is to take into account the enumerated factors. The Court should therefore, if detention is indicated, impose on the child the period of detention which “will best lead to the proper development of his personality and to his development into a responsible and useful member of the community”, taking into consideration the enumerated factors or such of them as may be relevant and appropriate. The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender. In the case of an adult offender, the starting point will generally be the observance of the proper proportion between the gravity of the crime and the severity of the punishment. This fundamental principle of adult sentencing obviously has no place in fixing the period of detention under the Children’s Protection and Young Offenders Act, even where the protection of the community becomes the dominant consideration. The proper approach for the Children’s Court, where a sentence of detention must be imposed, is to consider what period of detention, within the statutory limit … will best achieve the objects proposed to the Court by s 7.[5]
[4] (1979) 22 SASR 133.
[5] Ibid at 136.
Later in Hallam v O’Dea King CJ said:
It would be quite wrong, in my opinion, for a judge in the Children’s Court to treat detention as other than the last resort to be resorted to only when satisfied that the other available options do not meet the case.[6]
[6] Ibid at 137.
In L v The Police[7] Bleby J held that these observations were equally applicable to sentencing under the YOA.[8]
[7] (1998) 198 LSJS 481.
[8] Ibid at 491, and see also C, TE v The Police [2006] SASC 43 at [34] per Layton J.
In the course of his sentencing remarks the judge said that the appellant and JB “deserved” a period of detention. This reflected a comment made by the judge during the course of sentencing submissions to the effect that there had to be a period of detention for both the appellant and JB, with the relevant question being whether or not it should be suspended.
Despite the factors which were mitigatory and which indicate reasonable prospects for the appellant in the future, I consider that it was appropriate for the judge to conclude that a sentence of detention was necessary in this case. The offending was serious, it was persistent and the appellant and his fellows caused substantial damage. General deterrence was not a consideration in the sentencing process, but personal deterrence was. It was appropriate for the judge to conclude that the “care, correction and guidance” of the appellant required that the seriousness of his conduct, and the potential for more serious penal consequences in the event of any repetition, should be brought home to him by an order for detention.
The period of four months detention which the judge ordered is, in my opinion, severe. The judge has not given any indication of how the sentence of four months was reached. He has not specified the reduction on account of the appellant’s pleas of guilty and of his contrition. A reduction of 25 per cent on account of these matters would have been appropriate. If the judge applied a reduction of that amount, it means that he must have considered that a starting point of about 24 weeks detention (when allowance is also made for the five days actually spent in detention over Easter 2006) was required for the correction, control and guidance of the appellant. Despite the seriousness of the conduct, and the gravity of its consequences, I consider such a starting point to be too severe. I do not consider that it can reasonably be said, having regard to the appellant’s clean record and the favourable circumstances for a successful rehabilitation, that detention of that order was appropriate. Even detention for a period of four months was, in my opinion, more than was necessary to achieve the objects contained in s 3 of the YOA. The sentence imposed was therefore manifestly excessive and this Court should intervene.
In my opinion, an appropriate starting point would have been 12 weeks detention. That should have been reduced on account of the pleas of guilty to nine weeks and I would reduce it to eight weeks on account of the time spent in detention before 18 April 2006. A sentence of eight weeks detention, but suspended, should have the effect of bringing home to the appellant the seriousness with which his conduct is viewed.
Accordingly, in my opinion, the appeal should be allowed and the sentence of the judge set aside. The appellant should be re-sentenced. I would sentence the appellant to detention for a period of eight weeks. Like the judge, I would suspend that sentence and would do so on the same conditions as were imposed by the judge.
Recording of Conviction
I agree with the submission of Mr Edwardson that it is open to the Youth Court, in an appropriate case, to impose a sentence of detention and yet to refrain from recording a conviction. I refer to the discussion by Gray J on this topic in R v Police.[9]
[9] [2002] SASC 403 at [32]-[45]; (2002) 224 LSJS 210 at 220-5.
In the present case, four of the offences were major indictable offences. It was not suggested that any differentiation should have been made in the decision about recording convictions between the major indictable offences and the minor indictable offences.
As already noted, s 21 of the YOA provides:
If the Court finds a youth guilty of a major indictable offence, the Court should record a conviction for the offence unless there are in the opinion of the Court special reasons for not doing so, and a formal record of those is made in the Court’s reasons for judgment.
In effect, a conviction is to be recorded on a finding of guilt of a major indictable offence unless the court considers that there are “special reasons” for not doing so. As noted by Gleeson CJ in Baker v The Queen[10] a requirement for a court to be satisfied of special reasons is a verbal formula commonly used when it is intended that a judicial discretion should not be confined by precise definition or when the circumstances of potential relevance are so various as to defy precise definition. It has been said that these are words of indeterminate reference which take their colour from the context in which they are used and the purpose which the relevant statutory provisions intended to serve.[11]
[10] [2004] HCA 45 at [13].
[11] Goldsmith v Newman and The State of South Australia (1992) 59 SASR 404 at 409-11 per King CJ; R v Simpson [2001] NSWCCA 534 at [59] per Spigelman CJ.
Apart from noting that special circumstances may arise from the circumstances of the commission of the offence itself, or from the circumstances of the offender, or from a combination of these, and that they may arise from the weight or quality of the circumstances, or a combination of both,[12] little can be said in advance to identify what may constitute special reasons for the purposes of s 21. What can be said is that the reasons will usually be found in circumstances, or in a combination of circumstances, which lie outside the ordinary case.
[12] Baker v The Queen [2004] HCA 45 at [14] per Gleeson CJ.
Section 21 reflects a legislative understanding that the recording of a conviction is a significant matter. Mr Edwardson pressed upon the Court the submission that a conviction is a matter of record and can have effects on future employment and travel.[13] He referred again to the appellant’s family circumstances, to his contrition, and to his good prospects for a successful rehabilitation. These are important considerations which operate in the appellant’s favour. But in the circumstances of this case, those factors are insufficient by themselves, in my opinion, to comprise special reasons not to record convictions. I expect that they are circumstances which the Youth Court commonly encounters. There would, in addition, be an incongruity in the Court concluding that the circumstances were of sufficient seriousness that no sentence other than a sentence of eight weeks detention would be adequate, but that there were nevertheless special reasons making it inappropriate for the Court to record convictions. In my opinion, the decision of the judge that convictions should be recorded has not been shown to be wrong.
[13] See the discussion in R v Avgoustinos (1975) 13 SASR 48 at 49 per Bray CJ; R v Police (2002)224 LSJS 210 at 224 per Gray J.
Adequacy of Reasons
A substantial part of Mr Edwardson’s submissions on appeal were directed to the adequacy of the judge’s sentencing remarks or, as Mr Edwardson would have it, their inadequacy. As the first ground of appeal succeeds it is not necessary to consider this ground of appeal. There is some force however in some of Mr Edwardson’s submissions. This Court has said many times that a sentencing court should identify the amount of the reduction allowed by the court for pleas of guilty and on account of remorse and contrition.[14] Yet the judge did not refer at all to the appellant’s plea of guilty nor to his remorse and contrition, nor to the letter of apology which he had sent to Blackwood High School. Although the judge referred to the appellant’s Social Background Report, he made no mention at all of the matters contained in it suggesting that the prospects for a successful rehabilitation by the appellant were good. The judge did not explain in the sentencing remarks why detention was appropriate, nor why he considered it necessary for the appellant and JB to be remanded in custody whilst he considered an appropriate sentence. It was the judge’s omission to address these matters which formed the basis of Mr Edwardson’s submission on this topic.
[14] R v Harris and Simmonds (1992) 59 SASR 300; R v Place (2002) 81 SASR 395.
Section 9 of the Criminal Law (Sentencing) Act 1988 (SA) provides that a sentencing court must state its reasons for imposing a sentence. It is well understood that sentencing remarks should be appropriate to the occasion. Sometimes very brief remarks are appropriate and more likely to be effective. Sometimes length can detract from the impact of the remarks upon an offender. But at the least in cases in which a custodial sentence is being imposed, it is a reasonable expectation that the sentencing remarks will include the sentencing court’s reasons for the particular sentence being imposed and will address the principal matters put in mitigation. In my opinion, the sentencing remarks in this case were barely adequate. However, as the appeal has been allowed and the appellant re-sentenced, it is not necessary to consider this ground of appeal any further.
Conclusion
In summary, I would allow the appeal so as to set aside the period of detention ordered by the sentencing judge. I would substitute in its place a period of detention of eight weeks. I would suspend that sentence upon the appellant entering into an obligation to be of good behaviour for the balance of the period of the original obligation. It is a condition of the obligation that the appellant perform the balance (if any) of the 150 hours of community service ordered to be served by the judge.