W, L O v Police - [2008] SASC 324

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
W, L O v POLICE
[2008] SASC 324
Judgment of The Honourable Justice Layton
21 November 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - IN GENERAL
Preliminary issue – whether prosecution able to tender on appeal the offender history report which by oversight was not before magistrate – whether it could be tendered as “fresh evidence” or “further evidence”- whether admissible in relation to alleged error of sentencing magistrate or for resentencing
Held: failure by prosecution to place offending behaviour before magistrate not relevant as to whether an error in sentencing – not “fresh evidence” or “further evidence” for that purpose – offender history admissible for resentencing – offender history taken into account when resentencing appellant.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS - RELEVANT PRINCIPLES
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against decision of magistrate – 16-year-old appellant pleaded guilty to one count of unlawful possession and one count of property damage – magistrate recorded convictions and placed appellant on a 12-month good behaviour obligation in the sum of $100 – appellant contended that the recording of the convictions was in all of the circumstances manifestly excessive – whether magistrate had failed to make specific reference to, or demonstrate application of, the objects and principles of s 3 of the Young Offenders Act 1993 – whether credit given for guilty pleas and contrition – whether sentencing option of not recording convictions was considered – whether magistrate took into account an irrelevant consideration or not sentenced on the basis of the most favourable version to the appellant.
Held: appeal allowed – no indication that the magistrate had applied the objects or principles of s 3 of the Young Offenders Act – no reference to personal circumstances, strong family background, rehabilitation and employment prospects, Aboriginality, and effect of convictions – magistrate erred in failing to indicate account taken of guilty plea and contrition – magistrate appeared to have been affected by irrelevant consideration or failed to sentence on the basis of the most favourable version of events – recording of conviction manifestly excessive on information before magistrate - disadvantage to appellant in recording conviction outweighed public interest - previous offending two and a half years earlier when 13 years old - no convictions recorded and order made imposing an obligation to be of good behaviour for eight months in the sum of $100.
Youth Court Act 1993 (SA) s 22(2)(c); Young Offenders Act 1993 (SA) s 3; Criminal Law (Sentencing) Act 1998 (SA) s 16, s 39, referred to.
A, MC v Police [2008] SASC 279; R v Harris (1992) 59 SASR 300; O'Hanlon v SA Police (1994) 62 SASR 553; O'Malley v French (1971) 2 SASR 110; Day v Police (2005) 92 SASR 1; R v Frantzis (1996) 66 SASR 558; Police v Zefi [2003] SASC 218; R v Weaver (1973) 6 SASR 265; Hendy v Kraft (1991) 55 SASR 345; Cardona v Police [1998] SASC 6847, applied.

W, L O v POLICE
[2008] SASC 324
Magistrates Appeal
LAYTON J.
Introduction

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 appellant was charged with two offences: unlawful possession of a laptop computer at Murray Bridge on 25 May 2008, and property damage, being damage of a wall and screen of his bedroom in a house rented by his mother, on 8 July 2008.
The appellant pleaded guilty to both charges on 15 July 2008. The Magistrate recorded a conviction and placed the appellant on an obligation to be of good behaviour in the sum of $100 for a period of 12 months. The Notice of Appeal, which I permitted to be amended, claims that the sentence was manifestly excessive and that the Magistrate erred in imposing a conviction.
The Notice of Appeal was filed after the required time limit pursuant to Rule 283 of the Supreme Court Rules 2006. The appellant sought an extension of time within which to appeal on the basis that the respondent is not prejudiced by the passage of time; there is a prospect of success, and the appellant was not at fault. As there was no opposition by the respondent, I extend the time within which the appellant is entitled to institute the appeal to 13 August 2008.
Sentencing Remarks
The sentencing remarks of the Magistrate were very brief. His Honour stated:
You have pleaded guilty to a serious offence of dishonesty and damaging property.
Someone owned a laptop computer. That laptop computer was stolen. It was later found at your brother-in-laws (sic) home. He was charged with unlawful possession of it. He told police that you brought the laptop to his home. I don’t know who stole it but someone did. If it was you don’t you ever do it again. You say you found it down the reserve. I have some difficulty in believing that. However you came into possession of it you should never have passed it on to your brother-in-law. Not only are you in trouble, he is in trouble as well. It should never have been stolen but if it was found it should have been taken to the police. When you found out your brother-in-law had reported you to police you lost your temper and you caused damage to your mother’s home that she is renting. That doesn’t speak very highly of you at all.
If you want to live around this area you behave yourself.
I will place you on an obligation to be of good behaviour in the sum of $100 for a period of 12 months. The only condition is that you be of good behaviour.
Preliminary Issue
There was a preliminary issue raised with regard to what material was or was not before the Magistrate at the time of sentencing. An affidavit of Ms Eliana Truscott sworn on 12 August 2008 was tendered before me. Ms Truscott was counsel for the appellant before the Magistrate. That affidavit stated that “no previous criminal history whatsoever was alleged”.[1]
[1] Affidavit of Eliana Truscott, sworn 12 August 2008, [11](ii).
Also before me was an affidavit of Paul Whitehouse, who was the prosecutor before the Magistrate, sworn on 17 September 2008. In [4] of that affidavit, Mr Whitehouse stated that he:
“… informed the Court of the appellant’s relevant prior conviction history. I do not recall word for word the submissions I made but I believe I pointed out the fact that the accused had been dealt with in the past on a number of occasions on a without conviction basis for deception type offences.”
There was therefore a dispute as to whether prior criminal behaviour had or had not been mentioned by the prosecutor before the Magistrate.
After hearing submissions when this matter first came on for hearing on 22 October 2008, I decided it was appropriate to adjourn the matter until 19 November 2008 to provide the parties an opportunity to address the issue.
The respondent subsequently filed a second affidavit of Paul Whitehouse, sworn on 13 November 2008. Essentially, Mr Whitehouse stated that while he was unable to recall the specific submissions he had made to the Magistrate, it was his usual practice to refer the court to any offender history. As the offender history report was printed on 12 July 2008, prior to sentencing submissions, it would have been on the police file at the time of the hearing. If he had failed to inform the Court of the offender history, it had been an oversight on his part.[2] The appellant continued to rely on the affidavit of Ms Truscott of 12 August 2008.
[2] Affidavit of Paul Whitehouse, sworn 12 November 2008, [6].
Given that Ms Truscott was specific in her recollections that no offender history whatsoever was alleged, and Mr Whitehouse was relying on what was simply his usual practice, I am not satisfied that the Magistrate did have the prior criminal history before him. Therefore, His Honour was required to sentence the appellant as though he was a first offender.
Arguments on Appeal
There are a number of concerns which were raised by Mr Beston, counsel for the appellant, in relation to the sentencing process and remarks made by the Magistrate.
First, the apparent failure of the Magistrate to advert to the objects set out in s 3 of the Young Offenders Act 1993 (SA) (“Young Offenders Act”). In particular, to the objects set out in s 3(1) in securing “care, correction and guidance” for a young offender, and to the statutory policy indicated in s 3(3)(d), concerning the avoidance of any unnecessary interruption with the offender’s education and employment.
Second, the alleged failure of the Magistrate to take into account any of the mitigating personal circumstances of the offending, including: the appellant’s youth; Aboriginality; his sheltered upbringing in isolated regional communities; his prospects for rehabilitation; his strong family support; and his employment prospects.
Third, the failure to indicate whether, and to what extent, credit was given for the appellant’s plea of guilty, together with the remorse and attrition expressed by the appellant as to his offending.
Fourth, the alleged failure of the Magistrate to address a sentencing option of not recording convictions in respect of both offences, having regard to the order sought by the appellant’s counsel pursuant to s 16 of the Criminal Law (Sentencing) Act 1998 (SA) (“Sentencing Act”) as well as the provisions of s 39 of the Sentencing Act.
Fifth, the apparent error of the Magistrate in taking into account the irrelevant consideration that the appellant might have been involved in the original offending, namely, theft of the laptop. Further, in adverting to this possibility, His Honour did not sentence the appellant on the basis of the most favourable version of events available to him.
Young Offenders Act and the Personal Circumstances of the Appellant
Sections 3(1) and 3(2) of the Young Offenders Act 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;
(c) the community, and individual members of it, must be adequately protected against violent or wrongful acts.
As White J in A, MC v Police[3] indicated in the Full Court, and the Chief Justice agreed, these subsections were designed to secure the necessary care, correction and guidance for a young offender’s development into a responsible and useful member of the community, and for the proper realisation of their potential. They are fundamental considerations in sentencing young offenders. As White J described, s 3 is essentially the cornerstone of the process of sentencing young offenders.[4] An appropriate sentence must allow for each of these objectives to be achieved.[5]
[3] [2008] SASC 279
[4] A, MC v Police [2008] SASC 279, [27].
[5] Ibid, [25].
Section 3(3)(d) of the Young Offenders Act provides as follows:
(3)Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
…
(d) there should be no unnecessary interruption of a youth's education or employment;
Again White J noted with respect to s 3, including s 3(3) of the Young Offenders Act, that whilst the sentencing considerations in s 10 of the Sentencing Act are relevant, not only to adults but also youths, they must be applied in a manner which is directed to the fulfilment of the objects and policies stated in s 3 of the Young Offenders Act. In particular, White J noted that 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 an adult. This does not mean that retribution has no place in the sentencing of young offenders.[6]
[6] Ibid, [27].
White J also discussed the principle relevant to the application of s 3 of the Young Offenders Act in the sentencing process. The issue which was before the Full Court in that case, was the consequence of a failure by a sentencing court to make explicit reference to s 3 or to the statutory object and policies contained in it. White J summarised the authorities on this point in the following way:[7]
On my reading, none of these authorities stand for the proposition for which the appellant contends, namely, that the reasons of a judge or magistrate sentencing young offenders should refer specifically to s 3 of the YOA or, at least, to the object and policies contained within it. 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.
[7] Ibid, [34].
White J continued on:[8]
The sentencing remarks will be sufficient if they indicate how the object and policies of s 3 were applied. This may be done by express reference. Alternatively, it 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.
[8] Ibid, [35].
White J also indicated that the Full Court should not accept too readily a submission that a judge or magistrate regularly sitting in the Youth Court has failed to take into account the relevant statutory objects and policies, particularly when they work in that jurisdiction on a daily basis.[9]
[9] Ibid, [36].
White J concluded that it was difficult to ascertain the process of rationalisation of the sentence imposed by reading the sentencing remarks made by the sentencing judge. Further, he noted that the Judge did not give any explanation of how the features of the offending linked with s 3 considerations. It was noted by His Honour that the emphasis given by the sentencing Judge suggested that the Judge was giving prominence to the punitive aspects of sentencing.[10]
[10] Ibid, [37].
In my view, a number of the observations made by White J in A, MC v Police are also applicable to the case before me. No reference at all is made to the personal circumstances of the appellant, which included the circumstances outlined in [11] of the affidavit of Ms Eliana Truscott. Ms Truscott had submitted that the appellant was 16 years old; Aboriginal; that he had resided in Murray Bridge and had undertaken schooling until Year 10 when he then moved to Leigh Creek and consequently had to cease his education because of distance; he had now returned to Murray Bridge and wished to pursue his education through TAFE to thereby gain employment; and he had strong family support in Murray Bridge.
There is no reference to how the convictions and a bond of 12 months with no conditions could secure for this appellant the care, correction, and guidance necessary for his future development. There is no reference made to the policy in s 3(3)(d) with regard to his future education and employment. Instead, the Magistrate’s apparent emphasis appeared to be on punitive aspects of sentencing and specific deterrence. I am satisfied that the Magistrate erred in failing to apply the principles relevant to the sentencing of a young offender and that this is likely to have affected the sentence which was ultimately imposed.
Reduction for plea of guilty and remorse
The appellant’s counsel submitted that the Magistrate had failed to take into account two mitigating features relevant to a reduction of the sentence. Firstly, the appellant’s plea of guilty in relation to both offences at the first available opportunity, and secondly, the apology he gave to his mother for the damage he had caused to the premises she was renting.
There is no indication in the sentencing remarks for any reduction on that basis, nor even a reference to his plea and to his apology. This suggests another failure by the Magistrate to give proper consideration to a mitigating circumstance in reaching his decision. In my view, the Magistrate erred in failing to indicate or stipulate that a discount for a guilty plea had been allowed.[11]
[11] R v Harris (1992) 59 SASR 300.
The recording of a conviction
The fact that the Magistrate recorded convictions against both offences in this matter has significance in a number of ways. As previously adverted to, there is a statutory policy requiring consideration to be given to the need not to unnecessarily interrupt a young offender’s education or employment.
This Court in O’Hanlon v South Australian Police[12] indicated that although this section, on its face, contemplates the effect of a conviction on a young person’s education or employment at the time of sentencing, a conviction may handicap a young offender in later obtaining employment, particularly with the difficulties in current labour markets.
[12] (1994) 62 SASR 553.
This interpretation that s 3(3)(b), (c) and (d) have a sense not only of the present but of the future is, in my view, appropriate.
It is common knowledge that young Aboriginal offenders, in particular, face special difficulties in obtaining employment, and the recording of criminal convictions can be yet another hurdle in obtaining employment. That is not to say, of course, that convictions should not be imposed in appropriate cases in spite of these added difficulties.[13]
[13] Counsel for the appellant also referred to unemployment statistics of the Australian Bureau of Statistics in 2006 to support this contention. The statistics indicated that indigenous people in the labour force were three times more likely than non-indigenous people to be unemployed (16 per cent compared with 5 per cent). Further, indigenous people living in inner or outer regional areas had the highest unemployment rates (both 18 per cent). Even more relevant to this case is that indigenous unemployment rate for younger people aged between 15 and 17 was as high as 28 per cent in comparison with the non-indigenous population of 13 per cent.
Therefore, the recording of a conviction not only for a dishonesty offence but for the associated offence of damaging his bedroom wall, in what appeared to be a temper tantrum, is highly likely to have a serious adverse affect on the appellant’s education, and more particularly, his employment prospects.
A further consideration related to the imposition of convictions is that Ms Truscott had advised the Magistrate that if there was an imposition of a penalty, she sought to make an application under s 16 of the Sentencing Act for her client not have a conviction recorded against him. Section 16 is limited to circumstances in which a court proposes to impose either a fine or a sentence of community service or both. In that situation the court may impose the penalty without recording a conviction if there is “good reason” for not recording a conviction, having regard to the considerations outlined in the section.
The Magistrate did not advert to this conditional application made by Ms Truscott. He clearly did not consider it appropriate to fine the appellant nor sentence him to community service and therefore the section technically did not apply having regard to the sentence which he gave. However, Ms Truscott had made a clear request not to record convictions on the basis that there were “good reasons” to do so.

Section 39 of the Sentencing Act provides that a court may, if it thinks that “good reason” exists, discharge an offender without recording a conviction upon condition that the offender enter into a bond with or without conditions.
The Magistrate made no reference at all to the recording of convictions let alone whether he gave any consideration at all to whether good reason existed for not recording a conviction, or the impact of s 3(3)(d) of the Young Offenders Act.
This failure to advert to the request not to record a conviction coupled with the failure to refer by specific reference or by inference to the provisions of s 3(3)(d) of the Young Offenders Act, in my view, is demonstrable of a further error in the sentencing process which was likely to have affected the penalty that he ultimately gave to this appellant.
Irrelevant Consideration
The criticism that the Magistrate had taken an irrelevant consideration into account related to the following remarks made by the Magistrate:
I don’t know who stole it but someone did. If it was you don’t ever do it again. You say you found it down the reserve. I have some difficulty in believing that. However you came into possession of it you should never have passed it on to your brother-in-law…It should never have been stolen but if it was found it should have been taken to the police.
The appellant submitted that the Magistrate appeared to take into account a speculative possibility that the appellant was involved in the original offending wherein the laptop was stolen. Further, it is alleged that the sentencing remarks reveal that the Magistrate did not sentence upon the version of facts which were within the bounds of reasonable possibility, most favourable to the accused.[14] The affidavit of Eliana Truscott outlined that she had made the following submissions in respect of the circumstances of the unlawful possession offence:
8.I made submissions in mitigation of penalty. In relation to the circumstances of the offending, I submitted, inter alia,
i.      In relation to count one, my client instructed that he found the laptop in a park hidden behind a glass house.
ii.     He denied any involvement in its theft and did not know how it came to be in the park.
iii.    He took the laptop home intending on keeping it.
iv.    He was unable to switch the laptop on and assumed it was broken.
v.     The adult offender – a relative of his named Adam Ford – visited his home. My client gave the laptop to him, believing it was worthless.
vi.    The appellant received no money or items in exchange for the laptop.
[14] O’Malley v French (1971) 2 SASR 110.
In addition, the affidavit of Paul Whitehouse indicated in [3] that he made submissions based on details in the police apprehension report, a copy of which was exhibited and marked “PW1”. Those apprehension details included that the language on the laptop computer was in Chinese. The person who owned the laptop computer was also Chinese.
Legal authority indicates that even where a prosecutor does not dispute the version put forward by an offender, the Court does not have to accept it where it is not reasonably possible.[15] At the same time the Court should ordinarily act in sentencing upon the version of facts which, within the bounds of reasonable possibility, are most favourable to the accused.[16]
[15] Day v Police (2005) 92 SASR 1.
[16] O’Malley v French (1971) 2 SASR 110.
It is understandable that the Magistrate may have had doubts about the appellant having found the laptop in a park as alleged. However, the fact that the language on the computer was Chinese, may explain why the laptop had been dumped in a park. It was not, in my view, “inherently unbelievable and offended common sense.”[17] Whilst it may be unlikely, the Magistrate was required to act on the basis of the appellant’s explanation. The Magistrate’s remarks, in particular his admonition in relation to whether the appellant was involved in stealing the laptop in the first place, and his warning: “if it was you don’t do you ever do it again”, suggests that these were factors which inappropriately affected the penalty ultimately imposed. In my view the approach of the Magistrate demonstrated error in relation to the sentencing process of the appellant.
[17] R v Frantzis (1996) 66 SASR 558.
Was the penalty imposed manifestly excessive?
Accepting the very busy load of magistrates and that this case did not involve any period of detention, there were, in my view, a number of errors of the Magistrate in what were limited and deficient reasons for sentence. There was a failure to refer or advert to the objects set out in s 3(1) of the Young Offenders Act. There was no reference to the appellants Aboriginality; strong family links; rehabilitation; or employment prospects, and an unfortunate reference appearing to connect him with an offence of stealing.
The question is whether, notwithstanding those errors, the penalty is or is not manifestly excessive. The maximum penalty for the offence of unlawful possession is $10,000 or imprisonment for two years, and the maximum penalty for property damage is two years. On the information before the Magistrate, this youthful appellant had no previous criminal behaviour and was therefore was entitled to be dealt with as a juvenile first offender. In sentencing the appellant, rehabilitation should have been the paramount consideration of the Magistrate.[18]
[18] See R v Weaver (1973) 6 SASR 265, 267 and Hendy v Kraft (1991) 55 SASR 345, 347.
I agree with the submission made on behalf of the Crown that a 12 month good behaviour bond was a modest sentence for the offending. The issue is not with the bond but with the recording of the convictions, although clearly the two components together comprise the penalty.
The appellant was, on the information before the Magistrate, a first offender. There are two sections of the Sentencing Act relevant to the recording of a conviction. Section 16 of the Sentencing Act provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)    the fact that the offence was trifling; or
(iii)     any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
As Gray J in Police v Zefi[19] discussed, the considerations in s 16 are conditions precedent to the exercise of a discretion to proceed without conviction. “Good reason” needs to be identified before the discretion can be enlivened. It is therefore the exception rather than the rule.
[19] [2003] SASC 218.
Section 39 of the Sentencing Act, on the other hand, provides:
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)    to comply with the other conditions (if any) included in the bond; and
(b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a) However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)     Where a defendant is discharged under this section—
(a)     no fresh prosecution may be commenced in respect of the offence; and
(b)     the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
This section also requires “good reason” to exist, but it is an aspect to be considered as part of the sentencing process.
Again, in the case of Police v Zefi, Gray J discussed in some detail the considerations that are relevant in the application of s 39. In essence, it is a balancing process of weighing the public interest in a conviction being recorded, against the disadvantage the offender may suffer in having a conviction recorded.
In applying s 39, I consider that the disadvantage which the appellant would suffer in having two convictions recorded against him at such a young age, particularly with regard to the offence of damaging property, would far outweigh the public interest in him having those convictions recorded.
In short, I consider that the magistrate erred and that the sentence imposed by him upon the appellant, on the information before him, was manifestly excessive. However, there is another issue to be considered.
Fresh or Further Evidence
Unbeknown to the Magistrate at the time of sentencing, the appellant had an offending history which was not placed before him due to what I regard as an oversight by the prosecution.
The appellant’s offender history report contains records of the following offences:
Family Conference Matters
These offences were admitted and formal cautions were administered.
·One count of discharging a firearm to cause injury or damage to property committed on 22 October 2005.
·One count of failing to comply with a bail agreement committed on 4 November 2005.
·One count of throwing a missile to cause injury or damage to property and one count of being a minor and possessing liquor in a public place committed on 19 November 2005.
Murray Bridge Children’s Court Matters
These were the first offences dealt with by a Court.
·One count of dishonesty taking property without owner’s consent committed on 30 November 2005. No conviction was recorded and there was a request to pay costs only.
·Three counts of dishonestly take property without owner’s consent committed on 29 January 2006. No convictions were recorded and community service was ordered.
The Crown submitted that in deciding whether or not the penalty should be set aside as manifestly excessive, I should accept this evidence as either fresh or further evidence to be received in the hearing, not just at a point of resentencing upon error, but as to whether or not the sentence should be set aside.
It was submitted on behalf of the Crown that the appeal was a rehearing, the prior offending history was a material fact in existence at the time, and that the Court had power to admit further evidence pursuant to Supreme Court Rule 292(3)(a). It was further submitted that it was in the interests of justice for this oversight to be corrected.
Counsel for the appellant submitted to the contrary and referred to a decision of Perry J in Cardona v Police[20](“Cardona”). In that case, on the hearing before Perry J, the DPP sought to tender affidavit material that the appellant had a long history of offending in New South Wales, Queensland and Victoria. The explanation given for the failure to inform the learned sentencing Magistrate of the appellant’s prior convictions, was that the computer search had not revealed the interstate record. Perry J rejected that the information could be regarded as “fresh evidence”. Perry J decided in that case that the deficiency in the system of obtaining information which was reasonable available at the time, did not permit the information to be regarded as “fresh evidence”. As Perry J indicated:[21]
The prosecution owe a duty to assemble all of the material which it wishes taken into account in the Magistrates Court before the hearing in that court. If it fails to do so, it cannot expect to have the opportunity of a second attempt on appeal.
Clearly, this evidence was available at that time in that it could have been obtained by appropriate computer searching. The failure to obtain it at that stage cannot be cured…
[20] [1998] SASC 6847.
[21] Cardona v Police [1998] SASC 6847, 4.
In this case, I consider the same applies. The inadvertence of the prosecution does not render the information sought to be tendered as properly fitting within the category of “fresh evidence”. It was available at the time and the Magistrate should have been informed. I therefore consider in the circumstances of this case, the appellant’s criminal history is not admissible in respect of whether or not the sentencing Magistrate erred. Similar reasoning leads me to the conclusion that it should not be admitted as “further evidence” pursuant to Supreme Court Rules R 292(3)(a). However, the question remains as to whether it is admissible on any resentencing.
In the case of Cardona, Perry J concluded that as no error had been demonstrated there was no basis for him to reconsider penalties, and therefore it was unnecessary for him to consider whether or not information should be used in respect to resentencing.
In my view, it is appropriate for the record of the prior criminal offending behaviour to be before me for the purposes of resentencing. That is a different exercise and requires the Court to be informed of all relevant matters to ensure that a just sentence is handed down. This includes the current circumstances of the appellant since being before the Magistrate, in order to ensure that an appropriate sentence is handed down in all of the circumstances of the case.
Resentencing
In resentencing, I will first have regard to the prior offending. I requested submissions from the appellant’s counsel, Mr Beston, as to information on the prior offending, and I was informed as follows.
With regard to the offences of 29 January 2006, the appellant had been shoplifting in concert with a group of other young people, apparently “prolific offenders,” and had not personally stolen anything. As to the offences occurring on 19 November 2005, Mr Beston submitted that the appellant had thrown a water-filled balloon at a Christmas pageant and had carried someone else’s alcohol in his bag. Importantly, I was informed that the appellant has not drunk alcohol in the past and he does not drink now.
In my view, it is relevant to note that the earlier offending was over a short period some two and a half years ago when the appellant was only 13 years of age. On the information provided to me by the appellant’s counsel, I still consider it appropriate not to have convictions recorded.
The additional information that I have been given fortifies my view that the imposition of a good behaviour obligation for 12 months without the recording of convictions, is an apposite sentence. Unlike many Aboriginal people from rural areas, this appellant and his family are not living in some of the circumstances which are so prevalent in this Court. Alcohol is not consumed and there is no domestic violence in the house. He has strong family connections. In all of those circumstances, a simple bond is all that is required.
As there are to be no convictions recorded, it is necessary for the appellant to enter into a new obligation. The appellant has already served just over four months of his obligation, in my view, he should enter into a fresh obligation for the balance of that period, which is approximately eight months.
I therefore make the following orders:
1The time within which the appellant is entitled to appeal is extended to 13 August 2008.
2The appeal is allowed.
3The sentence of the learned Magistrate is set aside and the following sentence is imposed in lieu thereof.
4That there be no convictions recorded, and the appellant enter into an obligation in the sum of $100 to be of good behaviour for a period of eight months.
5Pending the signing by the appellant of the obligation imposed by order 4, the previous obligation signed by the appellant on 15 July 2008 is to remain in force.