S v POLICE No. SCGRG-98-1469 Judgment No. S7019

S v POLICE
[1998] SASC 7019

Magistrates Appeal: Criminal

MULLIGHAN J This is an appeal against the sentence of detention for five weeks by the learned Magistrate sitting as the Youth Court on 12th October 1998 upon the appellant pleading guilty to a charge of carrying an offensive weapon, namely a knife on 20th August 1998 contrary to s15(1)(a) of the Summary Offences Act 1953.
The appellant is aged 15 years. He committed a number of other offences which the learned Magistrate had to consider at the same time. They are not directly the subject of this appeal but it is appropriate to mention them. The appellant pleaded guilty to all of these charges. On 9th March 1998 he stole a pair of shorts of the value of $59.95, the property of Myer Stores Limited. On 16th May 1998 he stole a confectionary bar of the value of $1.05, the property of Timesavers Supermarket, he knowingly had cannabis in his possession and he carried an offensive weapon namely a knife.
On 26th May 1998 he stole a jacket to the value of $89.95, the property of Harris Scarfe Limited, he carried an offensive weapon namely a barber’s razor blade and a folding knife, he knowingly had cannabis in his possession and he had in his possession a piece of equipment for use in connection with smoking of cannabis.
On 20th August 1998 he fought with a male person in a public place. On 3rd September 1998 he had in his possession a piece of equipment for use in connection with the smoking of cannabis.
Having sentenced the appellant to detention on the charge of carrying an offensive weapon on 20th August 1998, the learned Magistrate disposed of the other charges either with or without conviction and with no further penalty. He excused payment of Court fees but noted that the appellant is obliged to pay a criminal injuries compensation levy with respect to each of the other charges which, of course, represents a substantial payment to be made by him. I understand the total amount to be $308.
With respect to the offending on 9th March 1998, a security officer employed by Myer Stores Limited at Noarlunga Centre saw the appellant and another male youth, in the vicinity of a display counter containing shorts. They appeared to have a conversation and the appellant then stole a pair of shorts. They were later apprehended and the appellant made admissions and co‑operated with the police.
On 16th May 1998 the appellant was seen in the Timesavers Supermarket with another youth to go into the confectionary area and after discussion between them the appellant stole a bar of chocolate. They left the shop and, when confronted, the appellant tried to run away but was apprehended. The police were called and upon searching the appellant found a tin containing cannabis and a knife with a folding blade. The police then took him home and spoke to his father. The appellant made admissions to the police and co-operated with them except that he did not give any explanation for carrying the knife.
The offences on 26th May 1998 were committed in Adelaide. The appellant was seen with another male youth and a female youth in the shop of Harris Scarfe Limited. The other male selected the jacket and spoke to the appellant. The other male and the female then stole it and left the store. The appellant assisted them in the stealing of the jacket. Police apprehended the appellant and the other youths and took them to the Hindley Street Police Station. The appellant admitted that he had assisted in stealing the jacket and co-operated with the police. He was searched and the police found the razor within the sock on his right leg and a small silver pen knife in a front pocket of his jeans. He told the police that the razor was for his protection and that there was a “crew” after him. He said he would use it in his defence if necessary. He told the police that the other knife was a gift from his father and he was taking it home to place with his collection. The appellant has a collection of knives which are kept at his home and his father did give him this knife. On this occasion the police also found a knife and a small jar of cannabis. He admitted that he smoked cannabis and said that he thought that it was only an offence to carry cannabis if it was in a “deal bag”.
On 20th August 1998 the appellant was at the Noarlunga Centre at about 2.45 pm with two other male youths. Another youth of about the same age, perhaps a little younger, was riding a bicycle on the footpath when he was approached by the appellant and his companions. They were yelling and swearing at the youth on the bicycle. It was alleged that one of them held the youth and the appellant punched him twice. One of his companions punched him once. The appellant then held a knife and showed it to the youth on the bicycle. Police spoke to the appellant and his companions a little later. The appellant was arrested for another earlier matter and was taken to the Christies Beach Police Station. He admitted that he had hit the youth once and that he had also hit the bicycle. He said that he showed him the knife in order to scare him and that he carried the knife for protection from “a crew” which was after him. He explained to the police that he had carried that knife, which was a small flick knife, with a wooden handle, for about two weeks so that he could use it if someone in a gang pulled a knife on him.
The offence on the 3rd September 1998 of possessing a piece of equipment for use in connection with smoking cannabis was detected whilst the appellant was in the cells at the Christies Beach Police Station having been remanded in custody. The appellant admitted the offence to the police. On that day the appellant appeared before another learned Magistrate sitting as the Youth Court at Christies Beach. His bail was revoked and he was remanded in custody until subsequently being granted bail. He was in custody for 11 days.
It is convenient at this stage to mention the past criminal offending of the appellant. On 30th October 1996 he was dealt with at a Family Conference for being in possession of a piece of equipment for use in connection with the smoking of cannabis on 10th September 1996. On 18th March 1997 he was released without conviction on charges of common assault committed on 29th December 1996 and damaging property committed on 30th December 1996. On 17th December 1996 he was released without conviction on the charges of damaging property committed on 12th August 1996 and of failing to comply with a bail agreement committed on 24th September 1996.
On 7th May 1996 he was convicted of possessing a controlled substance and possessing a piece of equipment for use in connection with administering that substance which I assume was cannabis. These offences were committed on 8th November 1997 and 15th January 1998 respectively and he was fined $50 on each charge.
Before sentencing on 12th October 1998 the learned Magistrate had before him a social background report from the Family and Youth Services which was prepared by officers at the Happy Valley District Centre. This report sets out a good deal of information about the appellant and his family. His parents are divorced and he lives with his father. He sees his mother frequently who has remarried. He also sees his older sister and her young child almost twice a week. All members of the family are supportive of him. Occasionally he stays overnight with his mother.
The father of the appellant disciplines him appropriately and he undertakes responsibility in the home. The Youth Court imposed a curfew on the appellant as a condition of his bail and he observed that condition. He enjoys working and is regarded by his family as reliable and responsible. He often cares for his young niece as a baby sitter.
Most of the offending of the appellant has occurred when he was with a particular group of friends, some of whom have a history of committing criminal offences. It is perhaps a familiar story in that he is mixing with some youths who are a bad influence on him. The year 1997 was especially difficult for him because he lost three of his grandparents. He was close to all of them. He refuses to discuss his feelings about his loss or the effect upon him of the divorce of his parents.
The appellant left school during year nine. He had some behavioural problems. He had employment for two weeks in Adelaide which he undertook successfully but he was retrenched. He is anxious to obtain employment.
Before the learned Magistrate, the appellant was represented by counsel Ms Chester, who also appeared on this appeal. She made detailed submissions to the learned Magistrate. She informed him of the appellant’s version of the various incidents giving rise to the charges which accord substantially with the matters which I have recited. With respect to the incident at the Noarlunga Centre on 20th August 1998, the appellant’s explanation is that he did not know the youth on the bicycle but knew of him. This youth yelled out at the appellant in a threatening manner along the lines that he would get others “on to” him. This youth knows the group of youths whom the appellant refers to as “the crew”. The appellant became scared and distressed. He grabbed the bike and the youth made further threats. He struck two blows, one to the youth on the arm and one on the bicycle. He told the youth that he would not be intimidated easily and that he would not be bullied or pushed around. He pulled the knife out of his pocket only a little way to show the youth. He did not open it and display the blade. His purpose was to scare the youth. The appellant and the youth resolved their differences and apologised to each other. This version of the incident was not challenged by the prosecutor.
The learned Magistrate was also informed that the appellant had carried this knife for about two weeks with the intention of using it in self defence if accosted by “the crew”. These youths live in the Noarlunga and Christie Downs area. The learned Magistrate was informed that the appellant has reported to the police incidents involving these youths with the consequence that they became more aggressive to him. He is in fear of them. He uses cannabis and possesses it only for his own use.
The learned Magistrate was also informed that the appellant had worked with two other employers for short periods. He enjoyed work and is anxious to obtain a full-time position.
In his remarks on sentencing the learned Magistrate referred to the various charges and aspects of his past record and then said:
“I make those remarks, bearing in mind the facts and in particular the very worrying aspect of the carry of offensive weapons charges.
I bear in mind about the area in which the defendant resides, but the offending of 26 May is offending in Adelaide, where the defendant was found in possession of a barber’s razor blade as well as a folding knife.
The further offending on 20 August, by whichever way I assess the facts and I read them down in favour of the defendant, he conceded punching the victim at least twice. What is also not an issue, is the production of a knife to the victim, said to scare the boy.
That is very worrying when viewed, with the defendant having been before the court on 7 May and then gone out and got involved in further offending, which is offensive weapon of 16 May, 26 May and then the production of this knife to a victim on 20 August.”

He then referred to the appellant coming from a disadvantageous background and that he was moving about with the wrong people. He went on to say:

“I make all those remarks against the backgrounds of s3 and the opportunities that have been afforded to the defendant and the fact that there has to come a time Nathan, where I must bring home to you by way of personal deterrence and I emphasise personal deterrence, that is, that it is not proper or appropriate for you to be carrying knives and to produce knives to scare other people and go on offending continuously, not withstanding the means with which you have been dealt with.”

He said that he took into account the time that the appellant had spent in secure care and then imposed the sentence. He concluded his remarks by saying that he asked that whilst in secure care the appellant be given the opportunity to participate in programmes and projects which would assist in rehabilitation and he mentioned some of these programmes.

The grounds of appeal are that the sentence is manifestly excessive, that the learned Magistrate erred in the exercise of discretion in not suspending the period of detention and that there was a lack of procedural fairness in that the learned Magistrate did not indicate before imposing sentence that he proposed a sentence of that nature with the consequence that Ms Chester did not have the opportunity to make submissions accordingly.
In my view the appeal should be allowed. The sentence imposed is manifestly excessive in the circumstances. I first mention the relevant provisions of the Young Offenders Act 1993. Section 3 provides:
“3(1).. 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.
(2)The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:
(a)...... a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;
(b)(Repealed)
(c)...... the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a).. In imposing sanctions on a youth for illegal conduct -
(a)...... regard should be had to the deterrent effect any proposed sanction may have on the youth; and
(b)if the sanctions are imposed by a court on a youth who is being dealt with as an adult, regard should also be had to the deterrent effect any proposed sanction may have on other youths.
(3).. Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
(a)...... compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b)family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened;
(c)...... a youth should not be withdrawn unnecessarily from the youth’s family environment;
(d)there should be no unnecessary interruption of a youth’s education or employment;
(e)...... a youth’s sense of racial, ethnic or cultural identity should not be impaired.”

Section 23(1) provides that a youth may not be sentenced to imprisonment. Section 23(4) is as follows:

“23(4).. A sentence of detention must not be imposed for an offence unless the Court is satisfied that, because of the gravity or circumstances of the offence, or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.”

Recently Bleby J in L v Police (27th August 1998, Judgt No S6821, unreported) had occasion to consider these and other provisions of the Act and the correct approach to sentencing. He noted the observations of King CJ in Hallam v O’Dea (1979) 22 SASR 133 and of the Full Court in the earlier case of Reg v Homer (1976) 13 SASR 377. I need not undertake the same exercise. I agree with the observations made by Bleby J and that what was said in those cases, although in the context of the former Juvenile Courts Act 1971 and the Children’s Protection and Young Offenders Act 1979, applies equally to the present legislation. In Hallam v O’Dea, King CJ said at p137:

“The crucial issue which faced the learned Judge in dealing with this case was whether there should be a sentence of detention. In that sense it was the first consideration. 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.”

Bleby J in L v Police agreed with that observation and so do I.

I do not think that the learned Magistrate adopted this approach. I have reached that conclusion with some hesitation because he is a very experienced Magistrate, particularly in matters of this nature and he was obviously concerned at the appellant carrying knives. People who carry weapons of that nature in anticipation of trouble are likely at some time to use them and thereby became involved in what may be criminal conduct of the most serious nature. The learned Magistrate was fully justified in his concern about the conduct of the appellant in carrying offensive weapons even for his stated purpose, however I do not think the stage of last resort had been reached.
The appellant has a caring, concerned and supportive family. He is only aged 15 years. I expect that he has had significant emotional upheaval in his life in recent times due to the breakdown of the marriage of his parents and the death of the grandparents. His history of previous offending is not extensive and has not involved very serious crimes. The offences which the learned Magistrate had to consider and his past offences appear to be a consequence, at least in part, of his association with particular young people. He had already spent 11 days in detention away from his family which is, in itself, a significant punishment and is, at the least, a taste of what is to come if he continues to offend.
The learned Magistrate was also informed that the appellant had come to realise that his spending much of his recreational time with certain youths had led him into trouble. He had come to realise that he did not want to lead a life of criminal offending. As I understand the submission, he intends not to associate with those youths. This is a matter of considerable importance. If true, it would suggest a real prospect of reform and rehabilitation. If the learned Magistrate was entitled to be sceptical, an effective way of testing it would be to postpone sentence and see what happened.
I have mentioned the appearance of the appellant before the Youth Court at Christies Beach on 18th March 1997. On that occasion an obligation was imposed upon him pursuant to s26 of the Young Offenders Act for a period of six months. The terms of the obligation are not before me but I assume that he was required to be of good behaviour during the period of the bond. He discharged the obligation which is an indication that he can accept and discharge responsibility.
The imposition of an obligation is a significant sentence. Failure to comply with an obligation is an offence and the maximum penalty is $2,500 or detention for six months: s26(4) of the Young Offenders Act.
In my view, it cannot be said that a sentence of a non-custodial nature would be inadequate: s23(4). A sentence of detention in the circumstances will not, at this stage of the appellant’s life, be in accordance with the objects of the legislation as set out in s3.
There is another matter of some importance. The appellant had not previously been before the Youth Court on a charge of carrying an offensive weapon even though he had previously committed the offence. It had not had brought home to him by the Court the seriousness of the charge and the possibility of detention which is of particular significance given his age.
Having concluded that the sentence is manifestly excessive, it remains to consider that is the appropriate sentence.
I think the proper course is to follow the course taken by Bleby J in L v Police where he set aside the sentence of detention and the obligation which was, in effect, a suspended sentence and imposed a fresh obligation. He said:
“Means are therefore still available to deal with breach of obligation in the manner which best befits the circumstances at the circumstances at the time, rather than what may turn out to be a mandatory requirement to serve the sentence imposed.”

Leaving aside whether serving a sentence of detention may be a mandatory requirement, the approach of Bleby J recognises difficulties in sentencing young people given their immaturity and susceptibility to influence and reflects a common sense approach to the problem. I intend to adopt it in the present case.

I have not found it necessary to consider the contention that the appellant was denied procedural fairness, I merely make the observation that where, in any case whether in the Magistrates Court or the Youth Court, imprisonment or detention is not the only option which may be justified in the circumstances and the Magistrate is considering imprisonment or detention, it is desirable that the Magistrate say so during the course of submissions so that the offender or his or her counsel may deal with that prospect in submissions or, in some cases, by adjournment to enable evidence to be placed before the Court. However, as the appeal has been allowed on another ground, it is unnecessary to consider whether this ground of appeal has been established.
The appeal is allowed and the sentence of detention quashed and the obligation imposed is set aside. I do not think it is appropriate to interfere with the decision to convict the appellant. The sentence is that an obligation be imposed upon the appellant with suitable terms. I shall hear the parties as to the terms which should be included.

[1998] SASC 7019

22 December 1998