Shannon James Roberts v SA Police No. SCGRG 94/361 Judgment No. 4534 Number of Pages 9 Criminal Law and Procedure Judgment and Punishment Young Offenders

[1994] SASC 4534

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - young offenders - Appeal against custodial sentence imposed in the Youth Court for offences committed prior to the enactment of YoungOffenders Act - minimum sentence of imprisonment to be imposed under previous legislation 2 months - requirement of transitional legislation that penalty to be of the same nature and no greater than that which could he properly imposed under previous legislation not violated - in the circumstances apparent disparity with the sentences given to co-offenders not shown to be of significance - magistrate failing to attach due significance to 8 month period of no offending prior to sentencing - observations as to the mode of implementation of suspended sentences under Young Offenders Act - appeal allowed - sentence suspended. Statutes Repeal and Amendment (Children's Protection and Young Offenders) Act 1993s 19(3); Children's Protection and Young Offenders Actss 51(1)(a), 51(6); Young Offenders Act s 26 and Criminal Law (Sentencinq) Act ss 38, 44A, 59AA.

HRNG ADELAIDE, 13 April 1994 #DATE 10:5:1994

Counsel for appellant:     Mr G D Alcock

Solicitors for appellant:    Geoffrey David Alcock

Counsel for respondent:     Miss M Pangiotidis

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal allowed.

JUDGE1 OLSSON J This is an appeal against a custodial sentence imposed by a magistrate constituting the Youth Court, on the grounds that it was manifestly excessive, that any custodial sentence properly imposed ought to have been suspended and that the sentence imposed was in discord with the legislation applicable to the offending.

2. The relevant offending occurred in the months of June and July 1993, at a time when the appellant was just short of 18 years of age.

3. On 2 June 1993 (in concert with a co-offender) he stole tools and tool boxes (of a total value of about $1,387) from a tradesman's utility. On 18 July 1993 he was not only involved in a fracas in Rundle Mall in concert with other persons, but was also then found to be in possession of an item of equipment for use in connection with the smoking of a prohibited substance.

4. As a matter of practicality, the learned magistrate opted to impose the principal sentence in respect of an admitted charge of behaving in a disorderly manner, which reflected the seriousness of the totality of the offending. He dismissed the other charges, although he formally recorded a conviction in the case of the larceny offence. In the event, the appellant was sentenced to 28 days' detention.

5. In the course of his remarks as to penalty the learned magistrate, in effect, pointed out that the appellant had been singularly fortunate, in that he had originally been charged with two counts of common assault related to the fight which, after negotiation with the prosecution, had been withdrawn and replaced with one lesser count of disorderly behaviour. The conduct in question had, undoubtedly, clearly involved an assault by the appellant on a third party in the course of the fracas above referred to.

6. The learned magistrate also noted that, shortly prior to the offence in question, the appellant had been convicted of two counts of hotel breaking and one count of clubroom breaking, in respect of which he had been ordered to perform 90 hours of community service.

7. It was made to appear to the learned magistrate, in relation to the offence of disorderly behaviour, that the appellant had been one of a party of four males in Rundle Mall in the early hours of the morning of the day in question. He was appreciably intoxicated at the time. Having regard to what was said in The Queen v Sewell and Walsh (1981) 29 SASR 12 at 15 and R v Lane
(1990) 53 SASR 480, that appears to me, in the context of the present case, to have been a circumstance of aggravation, rather than one of mitigation.

8. It seems obvious that the group was looking for trouble; and deliberately engineered an altercation with two members of the public. Whilst it is true that much of what subsequently took place seems to have involved the companions of the appellant in greater degree than himself, there is no doubt that, in the course of a scuffle, if not brawl, which ensued, the appellant grabbed the victim in question around the neck and forced him to the ground. Two companions of the appellant - as the learned magistrate put it, then "commenced to lay into" the victim, by kicking him. This situation continued until an independent person pulled the appellant off the victim, immediately prior to the arrival of the police. The victim sustained a blood nose, a sore left thumb and an injury to his neck.

9. I entirely agree with the learned magistrate that what occurred was part and parcel of a cowardly and unprovoked attack on a member of the public, of a type which simply cannot and will not be tolerated.

10. It was urged upon the learned magistrate that a custodial sentence ought not to be imposed and that the appellant ought to be permitted to go to Katherine in the Northern Territory to attend a 13 week trainee jackaroo course. He had been out of work for some 5 months prior to appearing before the learned magistrate on 9 March 1994. Prior to that he had had two short term jobs after leaving school.

11. The learned magistrate was told that the appellant had kept out of trouble in the eight month period since the commission of the offences and had the support of his family. He was further informed that an adult co-offender had pleaded guilty to a charge of assault and, after agreeing to pay $4,000 compensation to the victim, had been convicted and fined $400. Another magistrate had dealt with a juvenile co-offender by dismissing a substituted charge of disorderly behaviour without conviction. The antecedent records of the co-offenders are not known, nor is the accepted fact situation on the basis of which each of them were sentenced.

12. Whilst he acknowledged the lastmentioned situations, the learned magistrate was of the view that the totality of the appellant's offending, following, as it did, so soon after the three breaking offences, was such that an immediate custodial sentence was the only appropriate penalty.

13. In considering the matter the learned magistrate recognised that, by virtue of the transitional provisions set out in section 19(3), of the Statutes Repeal and Amendment (Children's Protection and Young Offenders) Act 1993 ("the Act") he was bound to impose a penalty of the same nature as that which could have been imposed under the former statute; and which was no more severe than could properly have been imposed under that enactment.

14. Apart from a general plea that the sentence imposed was, in the circumstances, manifestly excessive, the appellant asserted that it was not consistent, or on an acceptable parity, with the treatment accorded the co-offenders; and that, in any event, the learned magistrate had erred in his interpretation of section 19(3) of the Act.

15. It seems to me that the last two aspects may simply be disposed of.

16. As to the disparity contention, the short answer is that not only was nothing known of the antecedent records of the other offenders or what was put to the relevant courts as to the relevant background facts, but also there is no suggestion that they were being sentenced in the context of having committed other than a single offence. Here the appellant was being dealt with in respect of three separate offences, which had, in turn, closely followed three prior breaking offences. Prior leniency had failed dismally as a sentencing strategy designed to promote rehabilitation.

17. So far as the section 19 point is concerned it seems to me that this fails to recognise the clear intendment of the relevant transitional provisions.

18. Section 19 establishes two quite unequivocal propositions, namely, that a sentence imposed in respect of an offence committed prior to the coming into operation, on 1 January 1994, of the Young Offenders Act, 1993:-
    - must be of the same nature as could have been imposed
    under the former legislation; and
    - the penalty must be no more severe than that which could
    have been properly imposed under that legislation. Under
the former Children's Protection and Young Offenders Act,
    1979 it was open to the Children's Court to impose a
    custodial sentence of detention, albeit that the minimum
    permissible period of detention was two months (section
    51(1)(a)). Under that statute, as, indeed, is the situation
    under the Criminal Law (Sentencing) Act, a custodial
    sentence was to be a sentence of last resort, or reserved
    for offences so serious that it was the only appropriate
    sentencing option. By way of contrast there is now no
    minimum period of detention which may be ordered pursuant to
the Young Offenders Act, although many other concepts have
    not significantly changed.

19. I consider that the fact that the pre-existing legislation specified a minimum custodial period which could be applied did not affect the nature of the sentence - it merely served to ensure that a custodial sentence was, in practical terms, only resorted to in limited classes of circumstance. When the transitional provisions speak of the "nature" of the penalty they are, in my opinion, focusing on its generic type and not the extent of any sentence to be imposed. A sentence of detention under the current legislation is, in generic terms, identical with a sentence of detention under the former enactment.

20. Moreover, it cannot possibly be suggested that a sentence of detention for 28 days, i.e. less than the minimum which could have been imposed under the former legislation, in a case which merited detention, is more severe than that which could properly have been imposed under such legislation.

21. It follows that neither of the bases of appeal which raise the issues to which I have adverted can be upheld.

22. However, Mr Alcock, of counsel for the appellant, sought to attack the custodial sentence from several other points of view.

23. First, he contended that the learned magistrate fell into error by, in effect, treating the matter before him as involving an assault offence, rather than one of disorderly behaviour - and thus proceeded to sentence the appellant on an incorrect, and unduly severe basis.

24. On a fair reading of the reasons expressed by the learned magistrate I do not consider that such a complaint can be justified. What the learned magistrate in fact did was merely to point out that, having regard to the circumstances in which the offensive behaviour occurred (including the assault admittedly perpetrated by the appellant), it had to be regarded as a serious offence of its type. Moreover, the sentence imposed had to reflect the fact that it also took into account that no separate penalties were being imposed in respect of the other admitted offences - that no totality factor operated and the other offences were an offset against mitigating factors.

25. Secondly, he argued that the learned magistrate had failed to pay due regard to the adverse effect that an actual custodial sentence necessarily had on the appellant's employment prospects and associated rehabilitation, or the adverse impact which it would have on his rehabilitation and family relationships and environment.

26. I do not consider that these assertions can be made out. The indications are clearly to the effect that the learned magistrate was well aware of such considerations, but took the view that the totality of the offending was such that other factors referred to in section 3 of the Young Offenders Act had to assume paramountcy.

27. Finally, it was pressed upon me that, having regard to the prior history of the appellant, the imposition of an actual custodial sentence was too much of a quantum leap from prior treatment accorded him, and that some less severe strategy was not only demanded (having regard to the factors identified by section 3 of the Young Offenders Act), but would have achieved the same degree of remedial outcome.

28. In reviewing that contention I bear well in mind the admonition of Ms Panagiotidis, of counsel for the respondent, that appeals of this type are to be approached on the basis enunciated in Uznanski v Searle (1981) 26 SASR 388 at 389 and reiterated by me in Laxton v Justice (1985) 38 SASR 376 at 379. The issue is not whether I would have adopted the sentencing strategy implemented by the learned magistrate, but whether he has been shown to have fallen into error in any of the respects adverted to by the Chief Justice in the former case.

29. It seems to me that, in developing his submissions, Mr Alcock sought, inappropriately, to focus his attention on the offence of offensive behaviour in isolation. As I have sought to demonstrate, it was one of three offences arising for consideration (that of stealing being serious in its own right), all of which closely followed the breaking offences.

30. Those features placed it in an entirely different category than that of a single (and perhaps first, or at least isolated) offence. Moreover, as the learned magistrate correctly pointed out, it was a serious offence of its type, which patently merited stern treatment.

31. In my assessment a sentence of detention was plainly called for and I see nothing excessive in the term actually imposed.

32. Had this matter finally been dealt with, promptly after the commission of the offences, I consider that what was done by the learned magistrate would have been beyond realistic challenge, notwithstanding the quantum leap involved. The offending was serious and it rapidly followed earlier serious offending. A sharp lesson needed to be taught to the appellant both to deter him from continuing antisocial behaviour and to afford proper protection to the public.

33. However, a very substantial time lapse occurred between the commission of the relevant offences and their ultimate disposal.

34. In the case of the larceny offence committed on 2 June 1993, a complaint was issued on 3 August 1993 and first came before the court on 2 September 1993. It was thereafter adjourned on various occasions until finally disposed of on 9 March 1994.

35. The two related offences committed on 18 July 1993 were referred to a screening panel on that day, but not dealt with by it until 2 September 1993. A complaint was raised on 6 September 1993 and first came before the Court on 7 October 1993. It, too, was adjourned, on a variety of occasions, until finally dealt with on 9 March 1994.

36. There is no obvious explanation for the delays which occurred, other than that what were described as protracted negotiations took place between the defence and prosecution. These ultimately led to a withdrawal of some charges and a substitution of the charge of disorderly behaviour for two charges of assault.

37. Whilst I do not criticize any proper and responsible process of plea negotiation, the delays which arose in this matter (whether wholly or in part due to that process) are quite inconsistent with adherence to any reasonable time performance standards of caseflow management. They are both regrettable and unacceptable in what is designed to be a summary process of case disposal.

38. However, in the instant case, quite fortuitously, the delays had one beneficial feature. They gave rise to a lapse of some eight months, over which it was possible to examine the conduct of the appellant. It is not disputed that, during such period, he had not committed any further breaches of the law and appears successfully to have resiled from his earlier digression into a continuum of antisocial behaviour.

39. It seems to me, with respect, that the learned magistrate did not attach to such situation the significance and weight which it plainly attracted. He seems, almost exclusively, to have been distracted - perhaps understandably, by the enormity of the appellant's succession of offences (and, in particular, the offensive behaviour count) over a brief period of time. True it is that he recognised that the appellant had "kept out of strife for a long span of time", had secured the employment training at Katherine and "had woken up" to himself. Yet he felt that the conduct in Rundle Mall was too serious to permit of the suspension of an inevitable custodial sentence.

40. After careful consideration I have concluded that this was an error in approach which, in practical terms, failed to recognise the rehabilitation which had obviously taken place. Far from re-inforcing it, the sentencing strategy seems to me to have been destructive of it. I say this without, in any sense, disassociating myself from the condemnation by the learned magistrate of what took place in the Mall.

41. Such conduct must firmly be repressed, but, in the particular circumstances of this case, the lapse of time infused a new dimension into the situation which was best reinforced by a suspended sentence. Such a strategy would not only operate to protect the public, but also ought to have the practical effect of ensuring continued good conduct for the duration of the suspension period.

42. I propose therefore to allow the appeal for the purpose of ordering that the sentence of detention imposed by the learned magistrate be suspended, provided that the appellant be of good behaviour and be subject to supervision for a period of twelve months from 9 March 1994. In arriving at that conclusion I expressly bear in mind that the appellant has already been in custody for some five days and therefore has some appreciation of what lies in store for him if he fails to satisfy his obligations.

43. The technical process by which such a result is achieved is somewhat tortuous.

44. Prior to the coming into operation of the Youth Offenders Act, the Criminal Law (Sentencing) Act had no direct application to proceedings under the former Children's Protection and Young Offenders Act, 1979. The latter statute, by section 51(6), conferred on the Court a specific power of suspension on entry by an offender into a good behaviour bond.

45. The present statute is silent on the topic of suspension; and, by section 26, abolishes the concept of a bond within the juvenile justice system.

46. However, by virtue of the Statutes Repeal and Amendment (Children's Protection and Young Offenders) Act, 1993, the Criminal Law (Sentencing) Act was amended in various respects to render it applicable to young offenders. The Youth Court of South Australia became a court of criminal jurisdiction for the purposes of the latter statute; and a new section 44A was inserted to render Part V of the Criminal Law (Sentencing) Act, which deals with bonds, applicable, mutatis mutandis, to section 26 orders associated with sentences of detention; and a new section 59AA was enacted, to render Division II of Part IX (dealing with enforcement of bonds) also applicable to section 26 orders.

47. The practical effect of that legislative scheme is to enable the Youth Court to suspend a custodial sentence and, at the same time, make a section 26 order imposing on a youth an obligation to be of good behaviour for a specific period of time authorised by the Criminal Law (Sentencing) Act and also to be subject to other types of condition envisaged either by section 26 or, subject to any express contrary provisions of the Youth Offenders Act, section 42 of the Criminal Law (Sentencing) Act.

48. At the end of the day the expression of subsection (1) of section 38 of the lastmentioned Act seems to remain somewhat incongruous, in that it refers to suspending a sentence on condition that "the defendant enter into a bond", the reference to the word "bond" being required "to be read as (a reference) to an order under section 26 of the Young Offenders Act, 1993".

49. However, the obvious intention of the legislation is plain enough.

50. My formal order in this matter will therefore be:- 1. Appeal allowed. 2. Sentence of detention to be suspended upon compliance by the appellant with the obligations hereafter imposed. 3. Appellant to be of good behaviour for a period of 12 months from March 1994. 4. Appellant to be subject, during such period, to the supervision and obey the lawful directions of a Family and Community Service officer, including any directions which such officer may give concerning the participation by the appellant in a specified programme of training or activity, the attendance by the appellant at any specified activity centre or as to the place of residence for the time being of the appellant. 5. Appellant to report to the office of the Family and Community Services Department at 995 North East Road, Modbury within two working days of this order.