Vandenbergh v Police - [2019] SASC 205

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VANDENBERGH v POLICE
[2019] SASC 205
Judgment of The Honourable Justice Bampton
29 November 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence imposed by Magistrate – whether in sentencing a caution received in the Youth Court was disregarded in compliance with s 58 of the Young Offenders Act 1993 (SA).
Held: contrary to s 58 of the Young Offenders Act 1993 (SA) the caution was not disregarded – appeal allowed.
Young Offenders Act 1993 (SA) s 58; Sentencing Act 2017 (SA) s 26, referred to.

VANDENBERGH v POLICE
[2019] SASC 205
Magistrates Appeal: Criminal

BAMPTON J: Jared John Vandenbergh seeks an extension of time to appeal the sentence imposed on him by the Magistrate following his guilty pleas to four offences and two breaches of bail.
Mr Vandenbergh’s grounds of appeal are that the resulting sentence is manifestly excessive, that the Magistrate erred in not suspending the sentence of imprisonment, and that the Magistrate had impermissible regard to a caution he received in the Youth Court.
For the reasons that follow, I am of the view that the appeal has merit and, accordingly, I grant an extension of time to appeal to 9 August 2019. I allow the appeal on the ground that the Magistrate did not disregard the caution Mr Vandenbergh received whilst a youth, contrary to s 58 of the Young Offenders Act 1993 (SA) (“the Young Offenders Act”).
Offences charged on Information dated 9 October 2018
Mr Vandenbergh committed one count of serious criminal trespass of a non‑residential property and one count of theft at Glandore on 8 September 2018. The circumstances of this offending are that he broke into the Westminster Old Scholars Football Club by forcing open a window and then damaging a cash register to steal $100 in cash. Mr Vandenbergh pleaded guilty to this offending on 31 May 2019.
Offences charged on Information dated 27 February 2019
Mr Vandenbergh committed two offences of serious criminal trespass of a residential property and two counts of theft from those properties. The circumstances of this offending are that, on 12 September 2018, Mr Vandenbergh committed a serious criminal trespass at a residential property in Prospect by forcing entry through a window and stealing jewellery and a set of car keys. On the same day, he also trespassed into a residential home at Fitzroy by removing a flyscreen and climbing through a side window, stealing a substantial quantity of jewellery valued at $10,000. Mr Vandenbergh pleaded guilty to this offending on 31 May 2019.
The two breaches of bail charged on Information dated 7 August 2018
The breaches of bail occurred between 12 April 2018 and 10 May 2018. Mr Vandenbergh was convicted without penalty for this offending.
The sentence
In sentencing for the two offences committed on 8 September 2018, the Magistrate utilised s 26 of the Sentencing Act 2017 (SA) (“the Sentencing Act”) and started with a notional sentence of 12 months’ imprisonment, reduced by 30 per cent on account of Mr Vandenbergh’s guilty pleas to eight months and 13 days, less two days’ credit for time in custody.
For the offending committed on 12 September 2018, the Magistrate again utilised s 26 of the Sentencing Act and started with a head sentence of three years, reduced by 30 per cent to 25 months and seven days, with credit for time in custody and partial credit for time spent on home detention of four months and 14 days.
The Magistrate ordered that the sentences be served cumulatively, resulting in a head sentence of 28 months and 34 days. A non-parole period of eight months was fixed, which the Magistrate said, “allows for time in custody and home detention”. Her Honour determined that Mr Vandenbergh’s offending was too serious to suspend the sentence imposed and ordered that it be served on home detention.
The reference to the caution
Mr Vandenbergh complains that the Magistrate impermissibly referred to a caution he received in the Youth Court (“the caution”) when she said in her remarks:
You have a limited criminal history for driving matters, disorderly and breach of bail. I note you received a caution as a youth for non-residential serious criminal trespass and theft.
(Emphasis added)
The caution Mr Vandenbergh received in the Youth Court is a matter the Magistrate was obliged, by s 58(1) of the Young Offenders Act, to disregard. It is a matter that cannot be noted as a part of Mr Vandenbergh’s history of offending.
Section 58(1) of the Young Offenders Act provides:
58—Prior offences
(1)If a person has been dealt with under this Act by a police officer or a family conference, and the question of prior offences subsequently arises in proceedings relating to offences committed by that person as an adult, the offences for which the person was dealt with by the police officer or family conference will be disregarded.
Mr Vandenbergh also relied on the fact that the caution was referred to by the Magistrate in her remarks when she sentenced him on 4 June 2019 for illegal use of a motor vehicle, being unlawfully on premises, and unlawful possession. In those remarks, the Magistrate said:
These are serious offences against a background of someone who has some prior offending. Fortunately, your prior offending is mainly for breach of bail and driving offences. There was also a formal caution in the Youth Court in 2012.
The respondent in conceding that no regard should be had to the caution submitted that no weight was given to it by the Magistrate. The respondent submitted that the Magistrate clearly distinguished by her wording between the offences which constitute Mr Vandenbergh’s criminal history and the caution, which suggests the reference to the caution was observational. In particular, the respondent referred to the words “I note”. It was submitted there was no suggestion that the sentence imposed attributed any weight to the caution in sentencing. It was contended that there was no reference to the Youth Court matter as being a prior offence in sentencing, and that the Magistrate referred to Mr Vandenbergh’s limited criminal history, saying, “You are a young man who has come before the Court without much of a history and who has a good deal of promise”. The respondent submitted that there is no outcome error in that the sentence was not affected by the reference to the caution.
Consideration
Section 58(1) of the Young Offenders Act prescribes that the caution is to be disregarded. The caution should have been ignored and not mentioned. Given that the Magistrate referred to it in earlier sentencing remarks, the Court cannot be satisfied that Magistrate disregarded it when she sentenced Mr Vandenbergh on 18 July 2019.
The noting of the caution was particularly significant in circumstances where the Magistrate specifically referred to Mr Vandenbergh having received it for “a serious criminal trespass and theft” and he stood to be sentenced for serious criminal trespass and theft offending.
It is not clear just what impact the noting of the caution had in the sentencing of Mr Vandenbergh, the very mention of it in the context of sentencing for like offending suggests it was not disregarded.
The verb “note” is defined in the Oxford Dictionary as meaning to:
observe, notice, give or draw attention to; set down as a thing to be remembered or observed.
and the Macquarie Dictionary includes in the meaning of “note”:
to observe carefully; give attention or heed to.
to take notice of; perceive.
The use of the words “I note” connotes more than mere observational regard was had to the caution.
Conclusion
I allow the appeal on the ground that contrary to s 58(1) of the Young Offenders Act the caution was not disregarded. It is not necessary to consider the other grounds of appeal.
My orders are:
1.I extend the time within which to appeal to 9 August 2019.
2.I allow the appeal.
3.I set aside the sentence imposed in the Magistrates Court on 18 July 2019.
I will hear submissions on resentencing.