TCN v Police No. Scciv-02-988

TCN v POLICE
[2002] SASC 409
Magistrates Appeal
Nyland J

This is an appeal against a sentence imposed in the Youth Court.
The appellant was charged on information that on the 4 June 2002 at Mount Gambier in the State of South Australia he assaulted Paul Bradley Sleep, a person of or above the age of 12 years, thereby occasioning him actual bodily harm, contrary to section 40 of the Criminal Law Consolidation Act 1935.
The appellant was also charged on complaint with several other offences. Count one of the complaint alleged that on the 21 June 2002 at Mount Gambier in the said state, he assaulted Glenn Lee Morley, contrary to section 39(1) of the Criminal Law Consolidation Act 1935. Counts two and three alleged that on the 21 June 2002 at Mount Gambier in the said state, he without reasonable excuse failed to comply with a term or condition of a bail agreement entered into by him at Mount Gambier Police Station on 6 June 2002 contrary to section 17 of the Bail Act 1985. At the time that these offences were alleged to have occurred, the appellant was aged 17 years.
The appellant appeared in the Youth Court with respect to these charges on 3 July 2002. At that time an application was also made for the enforcement of a breached obligation. It was alleged that by committing the offences of 4 and 21 June 2002, the appellant had breached an obligation entered into on 12 October 2001 which required him to be of good behaviour for a period of one year. That obligation suspended a sentence of one month’s detention which had been imposed with respect to two counts of larceny.
The appellant entered a plea of guilty to the charge of assault occasioning actual bodily harm and the two charges of breach of bail. The appellant also admitted the breach of the obligation. The appellant pleaded not guilty to the charge of common assault and that matter was adjourned to be dealt with on a separate occasion.
The circumstances of the appellant’s offending are set out in the affidavit of Jeffrey Kilford Wright, police prosecutor, sworn on 26 September 2002. In paragraph four of that affidavit, he said that although he could not now recall exactly what he said, he believed he would have said the following:
“The victim in this matter was in a vehicle with friends in Elizabeth Street, Mount Gambier. They stopped to examine their vehicle for damage when another vehicle pulled up alongside them and several males got out carrying what they believed to be baseball bats. It is now agreed that they were large sticks of similar size to baseball bats. The males chased the victim and one male hit him in the leg with a large stick, causing him to fall over. All the males then struck him with the sticks about the legs and body until another witness shielded him with her body. The victim then returned to this friend’s vehicle and was taken to hospital. The defendant was identified by witnesses as one of the assailants.
The victim said that the vehicle containing the males drove towards them without lights on. When it stopped, about five males got out of the vehicle. The victim recognised one of the males as the defendant. He said he remembered the males hitting him with the sticks and later waking up in hospital. As a result of the assault, the victim received a deep gash on his left shin which required two stiches, a gash on his right shin, a large bruise on his right hip and a sore left shoulder.
This incident was witnessed by several other people who were nearby at the time. One of the witnesses, the victim’s sister, was so concerned that she threw herself on top of the victim to protect him. She also recognised the defendant as one of the assailants.
The police were advised by a member of the public that a disturbance had occurred in Elizabeth Street. Police spoke to the defendant in a vehicle matching the description a short distance from the scene. The defendant told police at the time that he had no knowledge of the disturbance that had occurred in Elizabeth Street. After obtaining further evidence, police interviewed the defendant the following day with his mother present. During the interview, the defendant told police that on the night of the incident he was at home with his mother and brother until about 11.00 pm. He said he was picked up from home by the other offenders. He stated that he went driving with them and was stopped by Police behind the Caltex Service Station. He denied any knowledge of the assault upon the victim.”
The police prosecutor also provided the magistrate with the appellant’s antecedent report. That disclosed a long history of offending which included several convictions for failing to comply with bail agreements.
In the course of submissions on behalf of the appellant, his counsel provided the magistrate with a social background report. That report highlighted the supervision conducted by the Department for Family and Community Services of the appellant since 1999. It disclosed that between October 1999 and April 2002, the appellant had been subject to two bail supervision orders and had received three suspended sentences. There were instances of the appellant responding in a positive and responsible way on occasions when he had attended various programs, but there was a complaint that his reporting and keeping of appointments was poor. Towards the end of that period his attitude towards the department had deteriorated to the point where he was no longer responsive to intervention.
The learned magistrate recorded convictions with respect to the charges against the appellant and, pursuant to the provisions of s 18A of the Criminal Law (Sentencing) Act 1988, imposed one sentence of eight months detention for all of the offending. The magistrate then revoked the order for suspension of the sentence of one month’s detention as a result of the breach of the obligation and ordered that sentence be served cumulatively upon the sentence imposed for the other offences. That resulted in a total period of detention of nine months.
On the hearing of the appeal, Mrs Shaw QC, who appeared as counsel for the appellant argued that the sentence imposed by the magistrate was manifestly excessive, particularly as this was the first occasion upon which the appellant had been required to serve a period of detention.
Mrs Shaw further complained of the failure by the learned magistrate to specify the discount given for the appellant’s plea of guilty. The appellant pleaded guilty to these matters within about one month of being apprehended for the offence of assault occasioning actual bodily harm. On the assumption that the learned magistrate had allowed a discount of about 25% for the plea, the starting point with respect to the sentence for these offences must have been about 11 months, which was substantially outside the penalty range of sentences for similar matters in the Youth Court and the sentence was therefore manifestly excessive.
This court has on innumerable occasions repeated the need for a sentencing court to specify the amount of discount given for a plea of guilty: R v Harris; R v Simmonds (1992) 59 SASR 300 at 302. Failure to specify a discount is not, of itself, an appealable error, but as King CJ said in Seagrim v R (CCA) 9 December 1994, SASC S4888, unreported:
“If the judge does not say how much discount has been given, it is difficult for this court to judge whether an adequate discount has been given. In the present case the sentence imposed by the learned judge is a severe sentence. The severity of the sentence is such that it gives rise, in my mind, to some doubt as to whether the learned sentencing judge could have made a discount, or at least an appropriate discount, for the plea of guilty. In those circumstances, I think that this court must act upon the basis that the sentencing discretion has miscarried and must therefore look at the appropriate sentence afresh.”
Those comments are, in my view, pertinent to the present matter and causes a concern that the sentencing discretion may have miscarried.
Of particular significance, however, are the provisions of s 3(2)(a) of the Young Offenders Act 1993. That section provides that the concept of general deterrence is to be excluded from the sentencing process when a youth is sentenced pursuant to the provisions of that Act. In the course of his sentencing remarks, the learned magistrate commented, however, that “[the appellant] and others must be deterred from contemplating a repeat of such behaviour” (emphasis added). In so doing, the learned magistrate appears to have incorporated the question of general deterrence into the sentence imposed upon the appellant.
Clearly, the magistrate was concerned about the serious nature of the appellant’s conduct. The appellant was one of a group of youths who set upon one individual. Although the appellant did not have a weapon he was nevertheless a member of a group in which a weapon was used to injure the victim. At the time of the offending the appellant was on bail and was in breach of a curfew clause of his bail agreement by being outside of his home on the night of the offences.
As the magistrate said in the course of his remarks:
“The youth has breached bail twice this time and there have been a number of prior breaches. His extensive prior history and his poor attendances indicate that he is intent on ignoring court sanctions.
It is difficult to know what more can be done for this youth who is only days away from turning 18. He has had endless warnings and continues to offend and remain on the wrong side of the law. The offence of occasioning actual bodily harm with a stick or baseball bat is a serious matter with no mitigatory offences.”
He then went on to refer to the need to deter the appellant and others. In so doing, however, the magistrate fell into error. As a result, the sentencing discretion has miscarried. It is therefore appropriate for this court to consider the sentence afresh and it is unnecessary to finally determine the other matters raised on appeal.
Section 3 of the Young Offenders Act 1993 requires a sentencing court to have regard to the objects and statutory policies set out therein. Section 3(2) provides:
“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.”
In this case, Mr Brebner, who appeared for the respondent on the hearing of the appeal, conceded that learned magistrate had fallen into error by taking into account the question of general deterrence, but argued that any reduction for that error should be minimal. He submitted that this was a case in which there was a significant need for personal deterrence. Despite the appellant apparently making some progress, his record and previous attitude to supervision and other corrective programs was such as to disclose a significant need to make him aware of his obligations under the law. The circumstances of the assault occasioning actual bodily harm were serious. The bail offences were committed against a background of 12 other convictions for failing to comply with bail agreements. Furthermore, the appellant was almost 18 at the time he committed these crimes.
In my opinion there is considerable force in the argument put by Mr Brebner. Although the provisions of the Young Offenders Act 1993 provide that for a youth, imprisonment is to be viewed as a last resort, the appellant has had the benefit of extensive leniency in the past and has not been responsive to it. His history of prior offending discloses a general disregard of court sanctions. Although he is not to be punished again for past offences, the scope for leniency on this occasion is substantially reduced. I nevertheless bear in mind the appellant’s age and the fact that this is the first occasion on which he has been required to serve a period of imprisonment.
Bearing in mind the gravity of the offending and the appellant’s prior history, as well as all the objects and statutory policies as set out in s 3 of the Young Offenders Act 1993, I consider that this is a case in which it is appropriate to order an immediate term of detention in the hope that it will bring home to the appellant the serious consequences of his conduct. I propose to utilise the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 to impose one sentence with respect to the offences committed on 4 and 21 June 2002. But for the plea of guilty I would impose a sentence of seven months imprisonment. I propose, however, to reduce that sentence to two months to allow a discount for the plea of guilty. That results in a sentence of five months detention.
In addition, the appellant will be required to serve the sentence of one month’s detention with respect to the breach of obligation which sentence is to be cumulative upon the sentence for the other offences. That results in a sentence of six months detention which should be backdated to the date on which the appellant was taken into custody, namely, 3 July 2002.
The appeal will therefore be allowed. The previous sentence will be set aside and in view thereof the appellant is sentenced to a total period of detention of six months to commence from 3 July 2002.

[2002] SASC 409

11 December 2002