T, NTJ & N, JA v Police - [2011] SASC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
T, NTJ & N, JA v POLICE
[2011] SASC 96
Judgment of The Honourable Justice Sulan
17 June 2011
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
Appeal pursuant to section 22 of Youth Court Act against sentence imposed by Magistrate of Youth Court - both appellants convicted of aggravated assault - conviction recorded - entry into obligation to be of good behaviour for two years.
Appeal against finding of guilt and recording of conviction.
Whether Magistrate failed to give sufficient reasons for finding the charge proved - whether Magistrate considered sentencing principles for young offenders.
Held: Appeal dismissed in respect of finding that the charge was proved.
Appeal allowed in relation to sentence. No conviction recorded.
Youth Court Act 1993 (SA) s 22; Young Offenders Act 1993 (SA) s 3, referred to.
R v Keyte (2000) 78 SASR 68; R v Power (2003) 141 A Crim R 203; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Papps v Police (2000) 77 SASR 210; Gikas v Police (1999) 202 LSJS 301; A, MC v Police (2008) 102 SASR 151; R v Lambert [2009] SASC 307; R v Weaver (1973) 6 SASR 265; Hendy v Kraft (1991) 55 SASR 345; W, LO v Police [2008] SASC 324; R v QTV (2003) 87 SASR 378, considered.

T, NTJ & N, JA v POLICE
[2011] SASC 96
Magistrates Appeal: Criminal

SULAN J: This is an appeal pursuant to s 22(2)(c) of the Youth Court Act 1993 (SA) against a sentence imposed by a Magistrate of the Youth Court. The appellants NTJT (T) and JAN (N) were convicted of aggravated assault. It was alleged that they together assaulted Nicole Martino on 19 November 2009. Both T and N appeal against this conviction. Both appellants also appeal against the decision of the Magistrate to record a conviction. In each case they have entered into an obligation to be of good behaviour for two years in the sum of $200.
Both T and N complain that the Magistrate failed to give sufficient reasons for finding them guilty, submitting that the charge was not proved beyond reasonable doubt.
In each case I granted leave to file the notice of appeal out of time.
Background
On 19 November 2009 Ms Martino was driving her Holden Barina towards her home. Her then boyfriend Troy Coyle was a passenger in the car. Mr Coyle had been in a previous relationship with T. A blue Daewoo sedan driven by N drove up and according to Ms Martino attempted to force her vehicle off the road. T was a passenger in N’s car. N followed Ms Martino for a short time and as Ms Martino approached her home, N drove off.
Ms Martino gave evidence that later that day she was driving her father’s utility when she was flagged down by two occupants of a motor vehicle, who she later recognised was T and N. Ms Martino stopped her vehicle. She said she had half opened the driver’s door when she was pulled by the hair from her car by N, overpowered, dragged to the ground and struck on the head by an object carried by T. She was punched whilst on the ground by N. She was also struck several times by N who was holding a long object in her hand. She saw a man who had alighted from a car call out to the girls to drop the screwdriver. She did not see a screwdriver. N and T left shortly thereafter.
Ms Martino gave evidence that a young woman driving a Holden Barina stopped and gave her N’s name. That woman did not wish to be identified and Ms Martino did not know her. She went home and reported the incident to the police. Ms Martino agreed that at one stage she had grabbed the pole when N dropped it and had swung it at T.
A witness, Chad Miric, was driving home. He saw three girls fighting. He stopped. He did not know any of the girls involved. He identified N and T in Court as the attackers. He saw Ms Martino on the ground. He yelled at them. They then returned to their car. One appeared to be carrying what he described as a screwdriver. They drove off. He described the pole as black or blue with insulation tape wound around it. He described that he initially saw the girls fighting but Ms Martino went to the ground.
David Boyd was also driving home. He saw girls fighting. He described two girls on the ground and one standing holding a pole which he says was blue with black electrical tape around it. He said that the pole produced in court was not the pole he saw. He saw Miric approach the girls, at which point the two attacking girls left.
Mr Coyle gave evidence that he was a passenger in Ms Martino’s car just after midday on the relevant day. He said that he became aware they were being followed when a small car attempted to overtake them on the right whilst attempting to force Ms Martino’s vehicle into the gutter. He recognised the passenger in the other car to be T, with whom he had previously had a short-term relationship. He was not with Ms Martino at the time of the alleged assault, though he later received a message from her informing him that she had been attacked by T and N. He then went over to her house and witnessed her injuries.
Constable Hanton was the investigating officer. He took a statement from Ms Martino at the Elizabeth Police Station. He organised photos to be taken of the injuries to her face, neck and arms. Upon leaving the police station Ms Martino saw T and N whom she identified to police. Constable Hanton did not conduct interviews with T and N at the time because they were youths. He informed them that interviews would be conducted at a later stage in the presence of their parents. He observed that T had a lump on her head. He later interviewed T in the presence of her mother. He also attempted to speak to N in the presence of her father; N declined to answer any questions. One girl had a green pole which Constable Hanton took. He examined the green pole and saw no evidence of any blood or hairs on it. No forensic examination of the pole was conducted.
T gave evidence that in the afternoon of 19 November 2009 she was a passenger in the vehicle driven by N. She said that whilst on the way to a friend’s house she noticed a car in front of them which N tried to overtake. She then recognised the passenger in the other car to be her ex-boyfriend, Mr Coyle. She says that N backed off and began to follow Ms Martino’s car when Ms Martino slammed on her brakes nearly causing a collision. She agreed that N was driving recklessly. She said that she did not know Ms Martino, but had heard that whilst she was in a relationship with Mr Coyle, he had cheated on her with Ms Martino.
T and N then attended lunch with friends Jason Robertson and Sarah Brown. During lunch she said she became aware that Mr Robertson and Ms Brown received messages from Ms Martino. This was contrary to Ms Martino’s evidence that she did not know Mr Robertson. T said that after dropping their friends home she saw a white utility speeding towards them in the right lane. She said she recognised the driver as Ms Martino. She said it made a u-turn and began to follow them. She said she asked N to pull-over as she wanted to confront Ms Martino and ask her what her problem was, and apologise for the incident earlier in the day. N pulled over, and Ms Martino, in the white utility, pulled up in front. She said that she observed Ms Martino alighting from her vehicle with a long pole which she swung whilst shouting in the direction of N. She said she yelled at Ms Martino, who then directed her attention from N to her, hitting her several times on the arms and her left temple. Following this Ms Martino attempted to move away towards her car, at which point T said she grabbed the stick from her and threw it to the ground, resulting in a fight on the ground between T and Ms Martino. She said she was on top of her when a car pulled up and the occupant alighted, yelling out to them. She said she then picked up the pole, placed it in N’s car, and drove away. She denied that N had grabbed Ms Martino by the hair dragging her out of the car. She denied ever punching Ms Martino, but conceded slapping her and pulling her hair. On being shown the pole during the trial she identified it as the pole she had taken to the police station. She said, however, that there had been tape wrapped around it which was now missing, inferring that it had been tampered with since being at the police station.
N and T’s friend, Mr Robertson, gave evidence that he knew of Ms Martino as Mr Coyle, her then boyfriend, used to be a friend of his cousin, and he had met her on one previous occasion. He said they talked to each other on the phone on occasions. He said that Ms Martino had sent him a text message on the day of the incident and that she was lying when she said she did not know him nor have his phone number. No attempt was made to corroborate these phone records.
N gave evidence that she was driving a Daewoo Llanos with T as a passenger on the relevant day, when she commenced to overtake Ms Martino’s car. She said that T had commented that the occupants of the other car were Mr Coyle and Ms Martino. She had heard of them and knew that Mr Coyle was T’s ex-boyfriend. She also attended lunch with T, Mr Robertson and Ms Brown. She said she was informed that Mr Robertson had received a phone call from Ms Martino. She said that after lunch she was driving with T when she saw a utility travelling in the opposite direction. She said she next saw the utility behind her, and could see the driver gesturing her to pull over. She pulled over at which point the utility pulled over in front of her vehicle. She said she heard T say, ‘Careful she’s got a pole’. She said that Ms Martino then ran at her as she stood near her driver’s door, swinging the pole. She put out her hand to grab the pole and was struck on the hand; M’s attention then turned to T. She said after Ms Martino hit T, they both came to start fighting with each other on the ground. She said she picked up the pole from the ground, which she dropped upon seeing a male approaching, as she thought it would look bad for her. She denied making any physical contact with Ms Martino at all. After the fight she saw T pick up the pole which was then taken to the police station.
Taylor Williams lives near M’s residence and owns a silver Holden Barina with a pink Billabong sticker. She knows of Ms Martino but denied witnessing the incident. She had heard of T, and knew N from school. She denied stopping and speaking to Ms Martino after the incident.
Findings of the Magistrate
The Magistrate noted that Mr Miric and Mr Boyd did not know any of the girls involved in the incident. He considered them to be wholly independent witnesses who gave evidence honestly, and to the best of their ability. Whilst he took into account the discrepancies in their evidence, he did not consider them to be significant enough to render the evidence as totally unreliable.
The Magistrate considered the evidence of Ms Martino to be generally accurate, accepting her as a truthful witness. He considered the inconsistencies between her prior statement to the police and evidence in court; he believed these were reasonable and the type of inconsistencies one could expect from someone involved in a volatile situation.
He considered the evidence of T and N, and enumerated the reasons why he did not regard them as credible witnesses. These are outlined in points (1) to (6) in his judgment. I do not need to detail these here. In light of all the evidence the Magistrate found T and N’s version of events implausible and fabricated. He considered that they contradicted each other in a number of important respects. He was satisfied beyond reasonable doubt that T and N had attacked Ms Martino whilst she was alighting from her car, that she was pulled to the ground and struck with an object about the head, and that she had been punched several times to the face and upper body.
In his remarks on penalty the Magistrate considered the victim impact statement that had been read to the court. He commented on the seriousness of the offending, the fact that no credit could be given for a guilty plea, and the absence of any contrition or remorse shown by the defendants. Emphasising the seriousness of the offending he considered it appropriate to record a conviction for each defendant. Both defendants were released on an obligation to be of good behaviour for two years in the sum of $200.
Submissions of N
Mr Truscott, for the second appellant N, complains that there was a failure of the Magistrate to provide adequate reasons for his decision. First, he submits that the Magistrate did not consider the uncorroborated injuries to Ms Martino, nor did he consider Ms Martino’s evidence in relation to Taylor Williams, who denied being at the incident.
Injuries to Ms Martino
Ms Martino gave evidence that she felt T hit her with an object several times on the head, resulting in bruises and lumps. She also said that she was struck several times on the head by N with a long object. Among other injuries listed by her, she noted that she suffered bruising to the outside of her right eye. Mr Truscott submits that the Magistrate erred in accepting this evidence without question or reservation. He says that there was neither medical evidence to support her claim nor corroboration from a prosecution witness. It is contended that without such supporting evidence, the inference drawn becomes an error of law. Further, Mr Truscott submits that being struck with the pole was not in Ms Martino’s statement to police. He says that the Magistrate was in error in finding that Ms Martino could be truthful despite these problems with her evidence, which raises reasonable doubt in the prosecution’s case.
I have difficulty with the assertion put by the second appellant that there is no visible injury whatsoever in the photographs of Ms Martino at the police station. One can see bruising, albeit faint, on the right side of her eye. Further, I do not find that the failure of Ms Martino to refer to being struck with the pole by N in the police statement is fatal to the Magistrate accepting her evidence as truthful. Mr Miric, an independent witness, gave evidence that he saw Ms Martino being swung at with the pole, notwithstanding that he did not observe the area of her body on which she was struck. Consequently, I do not accept that the Magistrate should have severed these claims of Ms Martino, as suggested by Mr Truscott.
Eyewitness
Ms Martino gave evidence that she came to know the identity of N because she was told by a girl at the scene, Taylor Williams, who arrived after the incident took place. Ms Williams denied witnessing the incident. No other witnesses saw her at the scene of the incident. Mr Truscott submits that the Magistrate did not attempt to explain these ambiguities in Ms Martino’s evidence, nor the lack of corroboration from any other witnesses. He says that the Magistrate needed to identify a weighing up of the evidence; this could have been shown by specifically dealing with the issue of Ms Williams in his reasons and the strikes from the pole as I have previously referred to. I will deal with the sufficiency of the Magistrate’s reasons below.
Recording of conviction
Mr Truscott submits that in recording a conviction the Magistrate failed to take into account the absence of prior offending, and made no reference to the principles in section 3 of the Young Offenders Act 1993 (SA) (YOA). This will be dealt with below.
Submissions of T
Phone records
Mr Blake, for first appellant T, submits that the Magistrate impermissibly used the failure of the appellants to produce the phone records of Mr Robertson, to discredit the evidence of the appellants, in finding that they fabricated the story in an attempt to discredit Ms Martino’s evidence.
I find that this argument does not further either of the appellants’ cases. Although the Magistrate notes that there was no attempt to corroborate the alleged text message sent to Jason, he continues:
However, I am mindful of the fact that there is no onus on the defendants to prove anything.
I find, therefore, that this is not significant enough to amount to an error.
Failure to provide reasons
The Magistrate made a number of findings in relation to the credibility of the witnesses in paragraph 27 of his reasons. Mr Blake complains that the assessment of the appellants’ credit was either unsupported on the evidence, or demonstrated a misconstruction of the evidence. He says that the evidence of T and N is relatively consistent, and any such discrepancies should not go against credit. He further contends that the Magistrate has not described how he has reasoned the way in which certain findings affect the credibility of the appellants, or how he has accepted M’s evidence given certain inconsistencies.
Recording of conviction
Like Mr Truscott, Mr Blake contends that the Magistrate erred in not considering the principles for sentencing youths in the recording of a conviction, and failed to consider the consequences of imposing a conviction on the appellant.
Legal principles
Sufficiency of reasons
The gravamen of the appeal is the submission that there has been a failure by the Magistrate to identify with precision the basis upon which the appellants’ evidence was rejected, and the evidence of Ms Martino accepted.
There is a body of case law considering the extent to which judicial officers must express their reasons on particular issues.[1] There is not, however, a precise test to determine whether or not reasons are adequate; this is dependent upon the circumstances surrounding each case. In Soulemezis v Dudley (Holdings) Pty Ltd,[2] Kirby P said:
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.
[1] R v Keyte (2000) 78 SASR 68; R v Power (2003) 141 A Crim R 203; Pettitt v Dunkley [1971] 1 NSWLR 376.
[2] (1987) 10 NSWLR 247 at 259.
These words have since been endorsed by this Court. In Papps v Police,[3] Gray J added:
As was said in Lawson v Lee, the reasons must be “coherent, intelligible and comprehensive”. But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. (Citations omitted).
[3] (2000) 77 SASR 210 at 34.
The issue that arises is whether the Magistrate’s reasons in this matter were adequate. After summing up the evidence of each witness the Magistrate directed himself as to the burden of proof. He then outlined the defence cases for both T and N. He considered the independent witnesses Mr Miric and Mr Boyd. He then had regard to the evidence. He noted that despite some inconsistencies in Ms Martino’s evidence he considered her to be a truthful witness. He then proceeded to give detailed reasons for finding that the appellants were not credible witnesses. It was after accepting the evidence of Ms Martino and the independent witnesses, and rejecting the versions put forth by T and N as implausible and fabricated, that he came to be satisfied beyond reasonable doubt that the charge was proved.

A similar issue arose in Gikas v Police.[4] This involved circumstances where the evidence of the complainant and prosecution witnesses was to the effect that an assault had occurred, whilst the evidence of the defendant and other defence witnesses was to the effect that it had not occurred. Lander J accepted that, had the Magistrate accepted the evidence of the complainant and the prosecution witnesses, there was no flaw in the reasoning process that had led the Magistrate to find the defendant guilty. The Magistrate had considered at length the evidence of the complainant and his witnesses in his reasons, and found them to be truthful and accurate. He remarked that either the complainant and his witnesses, or the defendant and his witnesses had been untruthful. Ultimately, Lander J allowed the appeal on the basis that the Magistrate had erred in failing to give reasons for rejecting the defendant and his witnesses as credible. It cannot be said that this has occurred in the case before me. The Magistrate has given extensive reasons for finding that the appellants were not credible.
[4] (1999) 202 LSJS 301.
This was a matter where the Magistrate was faced with entirely opposing accounts. The credibility of each witness was therefore critical in the fact finding process. The Magistrate gave reasons as to why he did not consider the appellants to be credible witnesses. He said:
(1)   T said that Martino drove her utility at them on Lovelock Road, yet she wanted the court to believe that in spite of that she wanted Martino to pull over so she could apologise to her for the earlier road rage incident. N who was the driver, on the other hand, says nothing about the utility driving at them. She said that the utility followed them and that T asked her to pull over.
(2)   N contrary to T’s evidence gave the impression that Martino was the cause of the road rage incident.
(3)   T said that when they pulled over it was Martino that came at them with a pole but instead of withdrawing she “chased” her and attacked her and brought her to the ground. N says that she was struck by Martino and she just stood there, and when she attacked T, again she made no attempt to intervene, she just stood back with the pole in her hands and dropped it when Meric (sic) pulled up because “it might look bad for her”.
(4)   I listened intently several times to T’s record of interview and I am convinced that she described the pole as black, whereas the pole that was handed to Constable Hanton was blue. All prosecution witnesses say that the pole they saw at the scene of the assault was much larger than the Exhibit P2. Meric (sic) said that the pole was black or blue with electrical tape wound around it. Boyd said it was blue with black electrical tape around it. Exhibit P2 did not have any tape around it. When this was put to the defendants they both said that when it was handed to the police it had tape around one end but it was now missing. The inference being that someone must have tampered with the exhibit by removing the tape. I also note that Constable Hanton was never cross-examined on this point.
(5)   T conceded that after the assault incident she was angry and wanted Martino to get in trouble. So she and N went immediately to the Salisbury Police Station to report that Martino assaulted them, then to the Lyell McEwen Hospital and specifically requested a letter from the treating Doctor to corroborate the complaint of having sustained a head injury from having being (sic) struck to the head by Martino.
(6)   T said that she had received bruising and injuries to her arms and legs as a result of having been struck with the pole by Martino but made no mention of that to the doctor at the hospital.
These reasons for inferring that the appellants were not truthful witnesses are, in my opinion, very detailed. The Magistrate made these observations after considering the evidence of T and N in relation to each other, as well as the independent witnesses. It is clear why he rejected the appellant’s accounts.
The Magistrate’s reasons for accepting the evidence of Ms Martino was less detailed. He said:
I have carefully assessed all the evidence and I accept that there were some differences or inconsistencies between Martino’s prior statement to the police made on the day in question, and her evidence in court, however, to my way of thinking they are reasonable and the sort of inconsistencies one would expect from someone involved in such a volatile situation. I believe that her account was generally accurate and I accept her as a witness of truth. I have also carefully assessed the evidence of the other prosecution witnesses and accept that they were truthful and reliable witnesses.
Whilst the Magistrate’s detailing of Ms Martino’s evidence was lengthy, his reasons for accepting the evidence are brief. In my view the acceptance of Mr Miric’s evidence was significant in regarding Ms Martino as a credible witness, and supported such a finding.
The case depended on a factual finding about conflicting accounts. The Magistrate reminded himself about the onus of proof. He had the advantage of hearing the witnesses, observing their demeanour, and assessing their credibility. Such findings as to credit should be afforded due weight where the appeal court has not had this advantage. His findings as to credit were clearly stated. Having conducted an independent review of the evidence I am satisfied that there are grounds to support the conclusions reached by the Magistrate. I find no reason to interfere with the finding of the Magistrate that the charge has been proved beyond reasonable doubt.
Recording of a conviction
The Magistrate’s remarks on penalty were very brief. The remarks indicate that the principal factor driving the sentence in the mind of the Magistrate was the seriousness of the offence. He did not explicitly refer to the YOA. Section 3 of the YOA outlines the statutory object and policies to be pursued in the sentencing of young offenders. Subsections 3(1) and (2) provide:
(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 community, and individual members of it, must be adequately protected against violent or wrongful acts.
Section 3(3) then provides:
(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; (My emphasis).
(e)     a youth’s sense of racial, ethnic or cultural identity should not be impaired.
In A, MC v Police,[5] the Full Court considered section 3. White J noted that this section has been described as the cornerstone of the process of sentencing young offenders.[6] In considering the authorities on section 3, he noted:
What the authorities do indicate is that, at least in those cases in which a young offender is sentenced to detention, the sentencing remarks should indicate how the object and policies of the YOA were applied. Sentencing remarks can satisfy this requirement without any explicit reference to s 3 or to its object and policies at all.
…
This may be done by express reference. Alternatively, if may be discernible from the manner of explanation of the sentence that those object and policies, even though not specifically mentioned, were considered and applied.
[5] (2008) 102 SASR 151 at 34-36.
[6] R v QTV (2003) 87 SASR 378 at 388.
He continued:
In my opinion, this court should not accept too readily a submission that a judge or magistrate sitting regularly in the Youth Court has failed to take into account the relevant statutory objects and policies applicable to the sentencing of a youth. Such judges and magistrates work on a daily basis with the YOA and should be taken to be well familiar with its principles. Nevertheless, as I have said, at least in those cases in which a sentence of detention is imposed, there must be discernible in the sentencing remarks an indication of how the object and policies specified in s3 were applied in the circumstances of the individual offender.
In light of the above remarks, the requirement that section 3 has been considered, expressly or impliedly, may be more pertinent in those cases where detention is imposed, unlike the case before me. Nevertheless, the objects and statutory policies enumerated in section 3 are fundamental considerations in the sentencing of young offenders, and regard should be had to them.
The Magistrate in sentencing considered that the seriousness of the offending warranted the recording of a conviction. He then continued:
As far as penalty itself, they are both juveniles and therefore I have to consider and take into the account the appropriate provisions relating to sentencing of juveniles. If they were adults I would have had no hesitation, even though they are first offenders, of imposing a term of imprisonment.
It cannot be said, therefore, that the Magistrate did not turn his mind to consider that he was sentencing youths. However, there is no reference to how the conviction and obligation could secure for the appellants the care, correction and guidance necessary for their future development.
The recording of a conviction was considered by the Full Court in R v Lambert.[7] Here, I noted:
The recording of a conviction can have serious consequences for an individual, as it may affect his future employment prospects, his ability to travel and his acceptance into professional or trade associations linked with his profession or trade. A submission to a court not to record a conviction is a matter that requires detailed consideration by the court.
…
Parliament has recognised that the recording of a conviction can have a significant deleterious effect upon an offender. The offender will carry the conviction with them into many walks of life. It acts as a continual punishment and may be a factor adverse to the rehabilitation of an offender. It follows that power has been given to courts not to record a conviction.
[7] [2009] SASC 307 at 20, 22.
In sentencing, the rehabilitation should have been the paramount consideration of the Magistrate.[8] In R v Weaver,[9] Bray CJ, Mitchell and Sangster JJ highlighted the importance of rehabilitation:
Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence.
[8] R v Weaver (1973) 6 SASR 265; Hendy v Kraft (1991) 55 SASR 345, 347.
[9] (1973) 6 SASR 265 at 267.
I am satisfied that the Magistrate erred in failing to apply the relevant principles to the sentencing of a young offender and that is likely to have affected the sentence which was ultimately imposed. The Magistrate failed to take into account all relevant considerations. He gave insufficient weight to the appellants’ age, need for rehabilitation and lack of prior offending. Further, as submitted by Counsel for N, no consideration was given to N’s Aboriginality, or her intention to pursue further studies with the aim of completing tertiary education.
In W, L O v Police,[10] Layton J considered the effect of a conviction in respect of young Aboriginal offenders. She said:
It is common knowledge that young Aboriginal offenders, in particular, face special difficulties in obtaining employment. This is not to say, of course, that convictions should not be imposed in appropriate cases in spite of these added difficulties.
[10] [2008] SASC 324 at 33.
The personal circumstances of the appellants should have been considered. Regard should have been given to the adverse effect a conviction may have on their future education and employment. The appellants were youths who had no previous criminal behaviour and were therefore entitled to be dealt with as juvenile first offenders.
I would proceed without recording a conviction. I would uphold the Obligations that were entered into by the appellants on 23 December 2010.