Stefan Gerd Schulze v S (Respondent) No. SCGRG 94/1619 Judgment No. 5005 Number of Pages 8 Criminal Law and Procedure

[1995] SASC 5005

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), OLSSON(3) AND MULLIGHAN(2) JJ

CWDS
Criminal law and procedure - Young Offenders Act 1993s.3 - meaning of "deterrence" - whether includes general deterrence. Criminal Law (Sentencing) Acts.10 - courts to take into account deterrence and protection of the community - whether applicable to Youth Court - effect of Young Offenders Act s 3.

HRNG ADELAIDE, 13 March 1995 #DATE 23:3:1995 #ADD 2:5:1995

Counsel for appellant:     Mr M A Stevens

Solicitors for appellant:    Crown Solicitor's Office

Counsel for respondent:     Mr W F Braithwaite

Solicitors for respondent: Ms J K Powell

ORDER
Appeal dismissed.

JUDGE1 COX J The circumstances of this appeal and the terms of the relevant legislation are set out in the reasons of Olsson J.

2. One would conclude, looking no further than the Criminal Law (Sentencing)Act, that the repeal in 1993 of the exceptive words "(other than the Children's Court)" in the definition of "court" in s.3 of the Act meant that the list of matters in s.10, to which a court is obliged to have regard in determining sentence for an offence, would apply to the new Youth Court as well as to any adult court exercising criminal jurisdiction. However, an examination of s.3 of the Young Offenders Act 1993 shows that, at least with respect to certain of the matters listed in s.10 of the Sentencing Act, that cannot be so. The relevant parts of s.3 read -
    "(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) the sanctions imposed against illegal conduct must be
    sufficiently severe to provide an appropriate level of deterrence;

(c) the community, and individual members of it, must be
    adequately protected against violent or wrongful acts."

There was no point in Parliament dealing expressly with the matter of deterrence, in the case of young people before the Youth Court, in par.(b) of s.3(2) of the Young Offenders Act when the subject was already covered, to at least the same extent, in the Sentencing Act. The same may be said of the need stated in par.(c) for a court to have in mind the protection of the community against violent or wrongful acts. Parliament must have been making special provision for the Youth Court on those subjects to the exclusion of s.10 of the Sentencing Act. Cf. s.4 of the latter Act. That does not render the amendment to the definition of "court" in the Sentencing Act otiose, because there are other provisions of the Act (e.g. s.69) to which the extended definition will apply. The answer to the Crown's appeal must therefore depend upon the proper interpretation of s.3 of the Young Offenders Act.

3. The word "deterrence" in par.(b) of sub-s.(2) is not qualified and is therefore, taken in isolation, apt to cover both personal and general deterrence. However, par.(b) is describing one of the policies to which the Youth Court is to have proper regard when directing its sentencing powers towards the single object stated in sub-s.(1) of s.3, and that object appears to be concerned exclusively with the welfare of the youth concerned. When a court takes general deterrence into account it is really punishing the offender as an example to others, and for that reason the punishment may well be greater than it would have been had the factor of general deterrence been ignored. It is difficult to accommodate that notion to the language of sub-s.(1) without straining the words considerably. Cf. The Queen v S., V. and Nates (1982) 31 SASR 263. While the matter is not free of doubt, I think the better view is that the reference to deterrence that is expressed in par.(b), and probably also implied in par.(c), must, in the light of sub-s.(1), be confined to the deterrent effect of any punishment on the offender.

4. The Young Offenders Act 1993 completely replaced the Children's Protection and Young Offenders Act 1979, and the policy section (s.3) of the later Act is in quite different terms from the corresponding provision (s.7) of the earlier Act. I think that the interpretation point which this appeal raises should be decided without regard to the history of s.3. I may say, however, that comparing the old and new sections, and construing the latter in the light of the former, does not in my opinion produce a different answer.

5. I would dismiss the appeal.

JUDGE2 MULLIGHAN J I agree that the appeal should be dismissed for the reasons expressed by Cox J.

JUDGE3 OLSSON J This is a prosecution appeal against a sentence imposed on a youth by a Judge of the Youth Court, on the ground that it is manifestly inadequate. The sole point in issue relates to the conclusion of the learned sentencing judge that considerations of general deterrence were alien to the sentencing process under the Young Offenders Act, 1993 (the "YOA").

2. The respondent, a young man aged 17 years at time of sentencing, appeared before the learned judge on 31 August 1994. He then pleaded guilty to a variety of offences, against a background that he had already amassed a formidable antecedent record.

3. The offence in relation to which the present appeal arises was one of armed robbery. The detailed circumstances pertaining to it are irrelevant for present purposes. It will suffice to say that it was a serious offence of its type, involving the inflicting of a knife wound upon the 77 year old victim. In the event the learned sentencing judge, inter alia, imposed a sentence of 18 months' detention. As the respondent had already been in custody for a period which equated to 6 months on a "grossed up" basis, he suspended the period of detention on terms.

4. In arriving at sentence the learned sentencing judge expressly eschewed consideration of any element of general deterrence, on the ground that such a consideration was necessarily excluded by the provisions of the YOA. The appellant asserts that such an approach constituted an error in law.

5. The issues arising on this appeal necessitate a careful study of the historical evolution of the relevant legislation.

6. Up until 1 January 1994 young offenders were dealt with in accordance with the provisions of the Children's Protection and Young Offenders Act, 1979 (the "CPYOA").

7. Section 7 of the CPYOA, as amended in 1990, was expressed in the following terms:-
    "7 (1) In any proceedings under this Act, any court,
    panel or other body or person, in the exercise of powers in
    relation to the child the subject of the proceedings, must seek
    to secure for the child such care, protection, control,
    correction or guidance as will best lead to the proper
    development of the child's personality and to the child's
    development into a responsible and useful member of the
    community and, in so doing, must consider the following factors:

(a) the need to preserve and strengthen the relationship
    between the child and parents and other members of the
    child's family;

(b) the desirability of leaving the child within the
    child's own home;

(c) the desirability of allowing the education or
    employment of the child to continue without interruption;

(ca) the child's ethnic or racial background and the need
    to guard against damage to the child's sense of cultural
    identity;

(d) where appropriate, the need to ensure that the child
    is aware of his or her responsibility to bear the
    consequences of any action against the law; and

(da) where the child is being dealt with as an adult for an
    offence, the deterrent effect that any sentence under
    consideration may have on the child or other persons;

(e) where appropriate, the need to protect the community,
    or any person, from the violent or other wrongful acts of
    the child.

(2) Where the proceedings are under Part III, the court,
    panel or other body or person must, in complying with the
    requirements of subsection (1), regard the interests of the
    child as the paramount consideration."

8. The principles applicable to the sentencing of adult offenders were, by way of contrast, spelt out in the Criminal Law (Sentencing) Act, 1988 (the "CLSA"), section 3 of which defined the word "court" as meaning "any court of criminal jurisdiction (other than the Children's Court) ... ". The Children's Court was, of course, the precursor of the present Youth Court.

9. It is at once apparent from those statutory provisions that, not only were proceedings before the Children's Court positively excluded from the operation of the CLSA, but, also, the very mode of expression of section 7 of the CPYOA rendered it apparent that considerations of general deterrence were not relevant to the sentencing process under that section, except where a child was to be dealt with as an adult. That situation was confirmed by the Full Court in The Queen v S, V and Nates (1982) 31 SASR 263.

10. The CPYOA was repealed with effect as of 1 January 1994 and replaced by a totally new legislative scheme erected by four, separate, enactments. These were the Children's Protection Act, 1993 (the "CPA"), the YOA, the Youth CourtAct, 1993 (the "YCA") and the Statutes Repeal and Amendment (Children's Protection and Young Offenders) Act, 1993 (the "SRA").

11. The YCA established the present Youth Court of South Australia as a court of record with Statewide jurisdiction. In broad terms, the YOA replaced the criminal proceedings elements of the CPYOA, whilst the CPA subsumed all other miscellaneous areas of the CPYOA. The Youth Court had jurisdiction under both statutes.

12. Section 3 of the YOA, in effect, replaced the old section 7 of the CPYOA and was expressed in somewhat different terms. It read as under:-
    "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) the sanctions imposed against illegal conduct must be
    sufficiently severe to provide an appropriate level of
    deterrence;

(c) the community, and individual members of it, must be
    adequately protected against violent or wrongful acts.

(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."

13. It is at once apparent that subsection (2) of that section specifically introduces the notion of deterrence in relation to all young offenders. The Youth Court is enjoined, in the most general terms, to consider the issue of what is necessary for the adequate protection of the community, and individual members of it, against violent or wrongful acts.

14. Of particular significance for present purposes are the provisions of the SRA.

15. Inter alia, it effected a number of important amendments to the CLSA.

16. First and foremost, it deleted from the section 3 definition of "court" the phrase "(other than the Children's Court)". This, prima facie, rendered the provisions of the CLSA generally applicable to young offenders, subject to section 4 of that Act and other amendments made by the SRA.

17. It is to be noted that section 4 of the CLSA stipulates that:-
    "4 Subject to this Act, the powers conferred on a court
    by this Act are in addition to, and do not derogate from,
    the powers conferred by any other Act or law to impose a
    penalty upon, or make any order or give any direction in
    relation to, a person found guilty of an offence."

18. It followed, then, that, to the extent that the YOA contained provisions which were inconsistent or in conflict with the CLSA, as modified by the SRA, then the former was plainly intended to prevail.

19. The SRA contained a series of specific provisions which set out to render it clear that, on any view, certain of the CLSA sections were to apply to proceedings under the YOA, with modifications designed to harmonize the concepts of the two statutes.

20. It is unnecessary to traverse these in detail. However, by way of example, section 59AA was inserted into Division II of Part IX of the CLSA (which deals with enforcement of sentences), to align the procedures of that statute with the provisions of section 26 of the YOA, relating to orders creating obligations, in lieu of a young offender entering into a bond. Section 59AA provides that:-
    "59AA. If an order is made against a youth under section
    26 of the Young Offenders Act 1993, this Division applies
    subject to the following modifications:

(a) references to the probationer are to be read as
    references to the youth against whom the order is made;

(b) references to the probative court are to be read as
    references to the Youth Court;

(c) references to imprisonment are to be read as
    references to detention;

(d) references to a bond are to be read as references to
an order under section 26 of the Young Offenders Act 1993."

21. The present appeal focuses upon the extent to which, if at all, the content of section 10 of the CLSA, has a capacity to operate (and does operate) in relation to the sentencing of young offenders under the YOA, bearing in mind the provisions of section 3 of the latter enactment, as above recited.

22. Section 10 is expressed as follows:-

"10 A court, in determining sentence for an offence,
    should have regard to such of the following matters as are
    relevant and known to the court:

(a) the circumstances of the offence;

(b) other offences (if any) that are to be taken into
    account;

(c) if the offence forms part of a course of conduct
    consisting of a series of criminal acts of the same or a
    similar character - that course of conduct;

(d) the personal circumstances of any victim of the
    offence;

(e) any injury, loss or damage resulting from the offence;

(f) the degree to which the defendant has shown contrition
    for the offence -

(i) by taking action to make reparation for any injury, loss
    or damage resulting from the offence; or

(ii) in any other manner;

(g) if the defendant has pleaded guilty to the charge of the
    offence - that fact;

(h) the degree to which the defendant has co-operated in the
    investigation of the offence;

(i) the need to protect the community from the defendant's
    criminal acts;

(j) the deterrent effect any sentence under consideration
    may have on the defendant or other persons;

(k) the need to ensure that the defendant is adequately
    punished for the offence;

(l) the character, antecedents, age, means and physical or
    mental condition of the defendant;

(m) the rehabilitation of the defendant;

(n) the probable effect any sentence under consideration
    would have on dependants of the defendant;

(o) any other relevant matter."

23. In my opinion there is no warrant, on a fair reading of any of the statutes referred to, for concluding other than that section 10 must be taken to operate in relation to young offenders, save only to the extent that any of its provisions can properly be said to be ousted by, or in conflict with, specific stipulations in the YOA. The definition of "court", as amended, patently has that effect.

24. The real issue is as to whether the content of section 3 of the YOA is, wholly or in part, inconsistent with section 10 of the CLSA and, in particular, the invocation of subparagraph (j) of the latter, that the sentencing court is to have regard to the deterrent effect of a sentence on the defendant "or other persons".

25. As I understood him, Mr Braithwaite, of counsel for the respondent, contended that section 3 of the YOA fully covered the ground as to sentencing principles applicable to young offenders; and thus impliedly ousted the potential operation of any portions of section 10 of the CLSA. Alternatively, he submitted, section 3 must at least be taken, by necessary inference, to have been intended to cover the field on the question of the relevance of the concept of deterrence; and that consideration of this was limited to deterrence only in relation to the young offender.

26. In my view such a contention not only demands a careful consideration of the structure of section 3, but also particularly begs the question of what is intended by the expression of subparagraphs (b) and (c) of subsection (2) of that section.

27. As already emerges, the fundamental structure of section 3 of the YOA is markedly different from that of the former section 7 of the CPYOA. It expresses a somewhat different policy and appears to postulate the need for rather wider considerations in the public interest.

28. Whilst it is true that, in essence, the overarching, prescribed object of the sentencing process is to remain unchanged, the detailed factors to be taken into account now broaden the focus away from matters which, in the main, are directly pitched, almost exclusively, at the situation of the offender. Whilst a focus on the offender is by no means done away with, the scope of consideration is extended so that the court must not merely bear in mind the protection of the community from violent or wrongful acts of the young offender but also:-
    . the need to impose sanctions "against illegal conduct
     (which) must be sufficiently severe to provide an
     appropriate level of deterrence"

. the provision of compensation and restitution for victims
     of offences

29. I have difficulty in concluding that section 3 of the YOA necessarily operates so as, totally, to exclude any potential operation of section 10 of the CLSA. Plainly, there are a substantial number of factors expressed in the latter section which, in no sense, conflict with the concepts of the former.

30. However, despite the contrary conclusion expressed in R v SA Police (Olsson J, 31 January 1995, unreported), I am, in light of the argument advanced in this case, now convinced that subsection (2) of section 3 of the YOA is intended to be exclusive in its operation as to the topics to which it relates - given that the concept of subparagraph (c) is virtually identical to that expressed in subparagraph (i) of section 10 of the CLSA.

31. The context of subparagraph (b) of section 3 of the YOA renders it obvious that what is there being addressed is intended to constitute the full ambit of permissible consideration of the question of deterrence, to the exclusion of section 10(j) of the CLSA. It is, I consider, beyond acceptance that the Parliament intended, in significant degree, to expand the ambit of consideration merely by an indirect reference to section 10(j). If it had intended to do so, there would seem to have been little point in including section 3(2)(b) in the YOA at all.

32. It is also of significance that section 10(j) of the CLSA goes to some pains to render it clear that the factor of deterrence is to extend to consideration of both the offender and other persons, whereas section 3(2)(b) of the YOA does not do so. I am driven to the conclusion that, on reading subsection 3(2) of the YOA as a totality, the legislature was limiting its focus only to the young offender. Such a conclusion, derived from the mode of expression of the subsection itself, gains added force from the fact that subsections (2) and (3) of section 3 are essentially pitched at (and subordinated to) the attainment of the primary aim set out in subsection (1), which wholly concerns itself with that offender.

33. Upon reflection I consider that the conclusion arrived at by me in R v SA Police (supra) was incorrect and that the learned sentencing Judge was correct in the view which he took.

34. I would dismiss the appeal.