T, KK v Police

[2007] SASC 378

Supreme Court of South Australia

(Youth Court Appeal: Criminal)

T, KK v POLICE

[2007] SASC 378

Judgment of The Honourable Justice Sulan (ex tempore)

18 October 2007

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS - RELEVANT PRINCIPLES

Appellant pleaded guilty to multiple offences in the Youth Court - suspended sentence of detention imposed - information relevant to sentencing the appellant not before the Youth Court - appellant currently before the Youth Court in relation to a number of other offences - appeal allowed - remitted to Youth Court to consider all the outstanding matters together.

T, KK v POLICE
[2007] SASC 378

1. SULAN J (ex tempore):     The appellant is a youth. She is 15 years of age. She pleaded guilty before a Magistrate in the Youth Court to offences of attempting to damage property, unlawfully on premises, serious criminal trespass of a non‑residential building, dishonestly taking property without the owner’s consent, damaging property and two counts of failing to comply with a bail agreement.  At the time of the offending, the appellant was aged 14 years.

2. On 22 May 2007, the Magistrate imposed an order of detention of one month, which he suspended upon the appellant entering into an obligation in the sum of $50 to be of good behaviour for nine months and to be under the supervision of an officer of the Department of Families and Communities SA, or other person nominated by the Chief Executive of the Department of Families and Communities SA, and obey directions of that officer or person. She was to report to Families SA within 24 hours of the date of entering into the obligation. She was to obey all lawful directions of Families SA in relation to her place of residence.

3. The appellant has appealed against the severity of the sentence. The grounds of appeal are that the sentence was manifestly excessive and that the Magistrate erred in imposing a sentence of detention.  A further ground is that the Magistrate erred in not requesting a social background report, or a psychiatric report, or a psychological report.

4. Counsel for the appellant sought leave to rely on an affidavit of Wyarta Joanne Miller to which was exhibited a background report relating to the appellant.  Ms Miller is an Aboriginal Family Practitioner, employed by the Department of Families and Communities, who is the case officer assigned to supervise the appellant.  The appellant was placed under the guardianship of the Minister for Families and Communities.  Counsel for the respondent consent to me accepting the affidavit and the report as fresh evidence.  That concession was properly made in the circumstances of this case.

5. The appellant also relied upon affidavits of Anthony Douglas McCarthy and Phillip Milton Edwards, both of whom are legal practitioners employed by the Aboriginal Legal Rights Movement.  Mr Edwards had represented the appellant before the Magistrate.

6. The background information of Ms Miller was not before the Magistrate at the time that he heard submissions.  The information is relevant in determining how to deal with the appellant.  She had resided from time to time with an uncle and aunt.  In the first half of 2007, during which time the offending occurred, the appellant resided with her uncle and aunt.  That domestic situation broke down and was considered to be unsatisfactory.  The appellant currently resides at Ceduna with a person who is willing and able to support her.

7. The appellant is presently before the Youth Court in respect of a number of offences which were committed between 4 January 2007 and 27 June 2007.  Some of the offences were committed prior to her appearing before the Magistrate on 2 May 2007.  Other offences, it is alleged, were committed after 2 May 2007.  It is alleged that the appellant committed an offence of assault within seven days of being released by the Magistrate and having entered into an obligation for nine months to be of good behaviour.

8. It is evident to me that it is appropriate that the Youth Court should deal with all of the appellant’s offending, including the offences the subject of this appeal, at the same time.  The Court can have regard to all relevant matters, including the appellant’s current domestic arrangements, when considering all of her offending.

9. Counsel for the respondent rightly conceded that the appropriate course of action in this appeal is to allow the appeal and to remit these matters to the Youth Court to be considered with all other matters which are currently before that Court.  The Magistrate or Judge hearing all of the matters can consider all the information about all of the offences and will have the updated information about the appellant, including information about her past history, the reasons for her offending, any psychological and psychiatric assessments of her, and any reports from the Minister, or his departmental officers, in deciding what is the appropriate course of action to be taken in respect of her future.  The Youth Court can then decide whether detention is an appropriate course or, if detention is not an appropriate course, the terms of any obligation that the appellant may be required to undertake or, alternatively, whether detention subject to an obligation is the appropriate course of action to be taken.

10. As the appeal is brought out of time, I grant an extension and allow the appeal.  The orders of the Magistrate made on 2 May 2007 are set aside.  I order that the matter be remitted to the Youth Court for consideration with the other matters before that Court for sentence.