W, CD v Police; M, BC v Police
[2014] SASCFC 72
•4 July 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
W, CD v POLICE; M, BC v POLICE
[2014] SASCFC 72
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
4 July 2014
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - CUSTODIAL ORDERS - GENERALLY
Appeals against sentence.
The defendants and appellants, W and M, were jointly charged with one count of attempted aggravated serious criminal trespass in a place of residence, two counts of aggravated serious criminal trespass in a place of residence and one count of theft. On 18 December 2013, both defendants pleaded guilty in the Youth Court and were sentenced by a Magistrate to detention for a period of 15 months, suspended upon each of them entering into an obligation in the sum of $100.00 to be of good behaviour for a period of 18 months. The Magistrate dealt with both defendants in the one set of sentencing remarks. The Magistrate declined to record convictions in relation to either defendant. On the same date, W also pleaded guilty to one count of failing to comply with a bail agreement. No further penalty was imposed in respect of this offence and no conviction was recorded. At the time of the offending, both appellants were 17 years of age. All the offences were committed within a 24 hour period in Ceduna. The offending involved breaking and entering, or attempting to break and enter into three separate residential premises. All the offending occurred in the early hours of the morning when the defendants were intoxicated. Both defendants had relevant criminal antecedents. W had previously committed the offences of being unlawfully on premises, illegal interference and dishonestly taking property in November 2011. M had been convicted of the offences of serious criminal trespass – non residential and dishonestly taking property in March 2011, and of dishonestly taking property and resisting police in February 2013.
Whether the Magistrate erred in declining to refer the matter to a family conference. Whether the Magistrate erred in having insufficient regard to the defendants’ youth and early guilty pleas. Whether the Magistrate erred in not specifically referring to the provisions of the Young Offenders Act. Whether the sentence was manifestly excessive.
HELD per Gray J (Peek and Nicholson JJ agreeing) allowing the appeals:
1. The Magistrate was clearly aware of the requirements of the Young Offenders Act and did not err by failing to explicitly mention particular provisions.
2. The Magistrate was entitled to exercise his discretion not to order a family conference.
3. The Magistrate erred by imposing a notional sentence of 25 months. This sentence was manifestly excessive.
Defendants resentenced to 6 months’ detention, suspended on the terms of the bond imposed by the Magistrate.
Young Offenders Act 1993 (SA) s 3, s 23 and s 38; Criminal Law (Sentencing) Act 1988 (SA) s 3A, s 10, s 9C and s 10C; Youth Court Act 1993 (SA) s 14, referred to.
R v QTV (2003) 87 SASR 378; A, MC v Police (2008) 102 SASR 151; M, MA v Police [2013] SASFC 140; R v P, NJY [2014] SASFC 10; R v A, D (2011) 109 SASR 197; R v P, A [2013] SASCFC 3; Bechara v SA Police (Lander J, 31 March 1995, Jud Nos 5013, unreported BC 9503159); R v Grose [2014] SASCFC 42, considered.
W, CD v POLICE; M, BC v POLICE
[2014] SASCFC 72Full Court: Gray, Peek and Nicholson JJ
GRAY J.
Background
These are appeals against sentence.
The defendants and appellants, W and M, were jointly charged with one count of attempted aggravated serious criminal trespass in a place of residence, two counts of aggravated serious criminal trespass in a place of residence and one count of theft.
On 18 December 2013, both defendants pleaded guilty in the Youth Court and were sentenced by a Magistrate to detention for a period of 15 months, suspended upon each of them entering into an obligation in the sum of $100.00 to be of good behaviour for a period of 18 months. The Magistrate dealt with both defendants in the one set of sentencing remarks. The Magistrate declined to record convictions in relation to either defendant.
On the same date, W also pleaded guilty to one count of failing to comply with a bail agreement. No further penalty was imposed in respect of this offence and no conviction was recorded.
At the time of the offending, both appellants were 17 years of age. All the offences were committed within a 24 hour period in Ceduna. The offending involved breaking and entering, or attempting to break and enter into three separate residential premises. All the offending occurred in the early hours of the morning when the defendants were intoxicated. The offence of attempted aggravated serious criminal trespass in a place of residence involved an attempt to gain entry to residential premises whilst the occupant was present. The occupant was woken by the sound of someone trying to break into his home. He yelled out, causing the defendants to flee the scene before gaining entry. The first offence of aggravated serious criminal trespass in a place of residence involved the defendants breaking into another home a short time later while the occupant was asleep. On this occasion, the occupant woke to find one of the defendants going through her bedside table. The second offence of aggravated serious criminal trespass in a place of residence involved breaking and entering into residential premises and the offence of theft involved stealing items while the occupant was away from these premises.
Both defendants had relevant criminal antecedents. W had previously committed the offences of being unlawfully on premises, illegal interference and dishonestly taking property in November 2011. M had been convicted of the offences of serious criminal trespass – non residential and dishonestly taking property in March 2011, and of dishonestly taking property and resisting police in February 2013.
The Magistrate, having noted the seriousness of the defendants’ offending, took the view that the offences were too serious for him to exercise his discretion to order a family conference and, as a consequence, he then turned to the sentencing of the defendants. In respect of both defendants, the Magistrate observed:
You have, from the letters tendered by counsel, glowing references, you have done very well at school, you did very well in the sporting arena, you both have bright futures and you go and “muck” it all up, if I can use that word, by doing this sort of behaviour, simply as a result of alcohol and peer pressure.
Now you have to grow up very fast and get some “back bone” to resist these sort of things if you want to move ahead in life and achieve your goals. If you are going to be swayed by peer pressure, and especially in abusing alcohol and drugs etcetera, then you will end up coming back before the courts and end up spending time in gaol, if you continue with this sort of behaviour. Is that what you want?
Your freedom at the moment hangs in the balance. I have the option of sentencing you to detention immediately which will no doubt adversely affect all your future gaols [sic]. You have never, until now, realised how serious these offences were, did you? You probably though that being young and drunk, that nothing would happen to you.
The Magistrate determined that it was appropriate to order a period of detention, but to suspend that term on the defendants’ entry into good behaviour bonds. In that respect, the Magistrate remarked:
I am of the opinion that a period of detention is appropriate because the offending is very serious. But taking into account your past history, you do not have a very bad history, your youth and the glowing references that are before me and the fact that you have the full support of your families as well, (you both come from good families and you have let them down very very badly, I believe that they deserve an apology for what you have done and what you have put them through. The stress and pressure of waiting to see what was going to happen to you. I know from personal experience that when children do something wrong, the parents are the ones that suffer as well), I believe that proper grounds exist to suspend any detention that I impose, and give you another opportunity to basically prove, not only to yourselves, but to your parents and the community that you are not as bad as these offences portray you and that you can do something worthwhile for yourselves; but of course it is up to you. You are going to be subject to a suspended period of detention and if you do not abide by those conditions, then you know what to expect. You may be ordered to serve the period of detention. It is entirely on your shoulders from here on.
The Magistrate then turned to the question of whether he should record convictions and took the view that he should not do so, remarking in that respect as follows:
I will not record convictions, I will give you another opportunity, I have been persuaded by your counsel that you are in fact very remorseful about these matters and that it is unlikely that you will reoffend again, and I am going to go along with that and I hope you will keep to that promise.
Having made these remarks, the Magistrate then concluded as follows:
As far as the other matters are concerned, there will be one penalty for all four counts, there will be detention (taking into account the full extent of the discount because of your guilty pleas) for a period of 14 months,[1] which I will suspend on you entering into an obligation in the sum of $100, to be of good behaviour for a period of 18 months; you will not possess a firearm or ammunition or any part of a firearm and you will submit to such tests (including testing without notice) for gunshot residue as required by SA Police. As far as the fees are concerned, there will be the usual court fees, criminal injuries compensation levy and prosecution fees to pay.
[1] On the hearing of the appeal, counsel for the parties agreed that the reference to “14 months” in the Magistrate’s remarks was a typographical error and that the court record indicated that the Magistrate had actually imposed a sentence of 15 months’ detention.
The Appeal
On the appeal, both defendants contended that the sentence imposed was manifestly excessive. These contentions related to the imposition of a period of detention. It was complained that the Magistrate failed to properly consider a referral of both matters to a family conference. It was further suggested that the period of detention was too long in any event. In this respect it was argued that the Magistrate erred in not providing an adequate reduction on account of the guilty pleas entered into by both defendants at the first opportunity and in having inadequate regard to the defendants’ youth, their cooperation with the police, their limited prior offending, the circumstances of the offending, the absence of any subsequent offending and, finally, their future prospects as aboriginal persons in a remote regional town. Underscoring these contentions, the defendants submitted that the Magistrate failed to have proper regard to the special approach to be taken to the sentencing of young offenders under the Young Offenders Act 1993 (SA).
Counsel for the police submitted that the Magistrate’s remarks revealed an appropriate attention to the provisions of the Young Offenders Act and that those remarks also disclosed that the Magistrate had regard to all relevant matters, did not have regard to any irrelevant matters and that, in all the circumstances, the sentences imposed were well within his discretion.
Young Offenders Act 1993 (SA)
Before discussing the issues on appeal, it is convenient to note the salient provisions of the Young Offenders Act and the approach to be taken by the Court in sentencing a young offender.
Section 3 of the Young Offenders Act is the cornerstone of the process of sentencing young offenders.[2] It identifies the statutory object and policies to be pursued in the sentencing of young offenders. It aims to secure for youths the care, correction and guidance necessary for their development into responsible and useful members of the community, and the proper realisation of their potential. However, at the same time, young offenders are to be made aware of their obligations under the law and of the consequences of the breach of the law, and the community is to be adequately protected against violent or wrongful acts. An appropriate sentence must allow each of these objectives to be achieved.[3]
[2] R v QTV (2003) 87 SASR 378, 388.
[3] A,MC v Police (2008) 102 SASR 151, [25].
It is not necessary for a Youth Court Judge or Magistrate to address each of the factors specified in section 3 of the Young Offenders Act in detail in their sentencing remarks and the failure to do so is not of itself enough to demonstrate error.[4] It is, however, important that the sentencing remarks make plain that the correct sentencing principles have been applied. In A, MC, White J made the following relevant observations:[5]
… 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.
[4] M, MA v Police [2013] SASFC 140; R v P, NJY [2014] SASFC 10; A, MC v Police (2008) 102 SASR 151.
[5] A, MC v Police (2008) 102 SASR 151, [34].
The Criminal Law (Sentencing) Act 1988 (SA) applies to the sentencing of a youth as much as to an adult.[6] However, the principles of the Young Offenders Act are to prevail in the event of any conflict. The application of section 10 of the Sentencing Act must be directed to the fulfilment of the objects and policies of section 3 of the Young Offenders Act.[7]
[6] Criminal Law (Sentencing) Act 1988 (SA) section 3A.
[7] R v QTV (2003) 87 SASR 378, [48]; A,MC v Police (2008) 102 SASR 151, [27].
The need to ensure that the defendant is adequately punished for the offence has less significance in the sentencing of a youth than it does in the sentencing of an adult.[8] However, at least with respect to serious offences, the sentence of a youth should reflect the gravity of the crime.[9]
[8] R v QTV (2003) 87 SASR 378, [49].
[9] A,MC v Police (2008) 102 SASR 151, [27]; cited with approval in R v A,D (2011) 109 SASR 197, [57].
Section 3 of the Young Offenders Act requires the court to assume that the youth has the potential to be rehabilitated. Much greater emphasis will be given to the youth’s prospects and potential than might usually be the case in sentencing an adult.
Further, general deterrence is not a consideration when sentencing a young offender.[10]
In sentencing a youth, regard should also be had to the deterrent effect of any proposed sanction on the youth. General deterrence is not a consideration when sentencing a young offender.
[10] R v P, A [2013] SASCFC 3.
The Young Offenders Act imposes limitations on the Youth Court’s power to sentence youths to either imprisonment or detention. In particular, section 23(4) of the Act provides:
A sentence of detention must not be imposed for an offence unless—
(a) the offender is a recidivist young offender or a serious firearm offender; or
(b)in any other case—the Court is satisfied that a sentence of a non-custodial nature would be inadequate—
(i) because of the gravity or circumstances of the offence; or
(ii) because the offence is part of a pattern of repeated offending.
The Youth Court may suspend a period of detention pursuant to section 38 of the Sentencing Act.[11] However, the maximum period of detention that a magistrate sitting in the Youth Court, at the time of these sentences, could impose was two years.[12]
[11] Bechara v SA Police Lander J, 31 March 1995, Jud Nos 5013, unreported BC 9503159.
[12] Youth Court Act 1993 (SA) section 14(3).
In sentencing the defendants, the Magistrate indicated that he was doing so “taking into account the full extent of the discount because of your guilty pleas”. The Magistrate did not, however, indicate the amount of the discount applied.
All counsel agreed that the maximum reduction to be made on account of a guilty plea was 40 percent pursuant to section 10C of the Sentencing Act. It follows that if the Magistrate had allowed a reduction of this extent, his nominal head sentence for both defendants must have been 25 months. In these circumstances, the defendants contended that the Magistrate started at an excessive period for the offending.
Counsel for the defendants supported their contentions that the Magistrate did not have proper regard to the Young Offenders Act by referring to the fact that no explicit reference was made to the Act or its provisions in the remarks. In my view, these submissions should be rejected. A review of the Magistrate’s remarks demonstrates that the Magistrate was well aware of the special provisions of the Young Offenders Act and was at pains to address the particular needs of the young defendants. This is demonstrated by his decision not to record convictions and to avoid any period in immediate detention notwithstanding the prior offending of both defendants.
Counsel for the defendants contended that the Judge had not given proper consideration to the possibility of family conferencing. It was suggested that the Judge had taken the view that the seriousness of the offending precluded any consideration of the discretion to direct family conferencing. In my view, these submissions involve a misunderstanding of the Magistrate’s reasons. It is apparent that the Magistrate recognised that he had a discretion in regard to family conferencing, but declined to exercise that discretion because of the seriousness of the offending. Given the defendants’ age, their prior criminal antecedents and the circumstances of the present offending, I do not consider that the Magistrate could be criticised for not directing family conferencing. It is also relevant to observe that neither defendant sought a sentencing conference pursuant to section 9C of the Sentencing Act.[13]
[13] R v Grose [2014] SASCFC 42.
In my view, an error of sentencing principle has been identified. When the full extent of the reduction in regard to the pleas is considered, it is apparent that the Magistrate had fixed a notional sentence before reduction of 25 months. Even a reduction of only one third would have had a notional starting sentence of close to 25 months. In all the circumstances, I consider this has resulted in a manifestly excessive sentence.
As a consequence, there is a need for this Court to resentence the defendants. In doing so, I have had regard to the express provisions of the Young Offenders Act as discussed above, to the circumstances of the defendants’ offending, to their criminal antecedents, to the excellent references provided on their behalf and to their prospects for rehabilitation. I consider that it is appropriate to commence with the notional head sentence in each case of 10 months’ imprisonment, and then to reduce this by 40 percent on account of the early pleas of guilty, leading in each case to a term of detention of six months. I would suspend these periods of detention on the terms imposed by the Magistrate.
In my view, the appropriate order to give effect to these reasons is that the appeals be allowed, the sentences imposed by the Magistrate be amended so that the terms of the detention are reduced from 15 months to six months. Otherwise, the orders of the Magistrate remain in place.
PEEK J. I agree with the orders proposed by Gray J and with his reasons.
NICHOLSON J. I agree with the order proposed by Gray J for the reasons his Honour has given.