W, RJ v Police - [2007] SASC 95

Supreme Court of South Australia
(Youth Court Appeal: Criminal)
W, RJ v POLICE
[2007] SASC 95
Judgment of The Honourable Chief Justice Doyle (ex tempore)
13 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence – whether sentence manifestly excessive – appellant pleaded guilty before the Youth Court to charges of trespass with intention to commit an offence and theft and was sentenced to a period of seven months detention – whether Magistrate erred by failing to make specific reference to relevant provisions of the Young Offenders Act 1993 (SA) – whether sentence reflects the objectives of the Young Offenders Act 1993 (SA) whether the Magistrate erred in failing to order the preparation of a social background report – appropriate sentence having regard to appellant’s significant record of offending.
Held: appeal dismissed.
Supreme Court Civil Rules 2006 (SA); Criminal Law Consolidation Act 1935 (SA) s 134(1), s 169(1); Young Offenders Act 1993 (SA) s 23(4), s 32, referred to.

W, RJ v POLICE
[2007] SASC 95
Youth Court Appeal: Criminal

DOYLE CJ (ex tempore): This is an appeal against a sentence imposed by a magistrate sitting in the Youth Court.
The notice of appeal was filed several days late. This was due to an error by Mr W’s solicitor. The solicitor states in an affidavit that he did not know the requirements for the filing of an appeal under the Supreme Court Civil Rules 2006. Although it was only a matter of looking at the Rules to find out what is required for the institution of the appeal, I am prepared to make an order extending to 15 January 2007 the time for the filing of the notice of appeal. I do so only because the appeal was only a few days late and because a substantial custodial order is involved.
Mr W was born on 18 June 1988. At the time of the offences in question he was aged 17 years 10 months. When sentenced he was aged 18 years 5 months.
He pleaded guilty in the Youth Court to two charges.
The first was a charge of entering a non-residential building as a trespasser with the intention of committing an offence, the theft of property, contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”). As the offence was a basic offence for the purpose of s 169(1), the maximum punishment is imprisonment for 10 years. The offence is a minor indictable offence because of the value of the property involved.
The second was a charge of theft from the same premises, contrary to s 134(1) of the CLCA. The property taken consisted of television sets and other electrical equipment, to the value of about $5000. The maximum punishment is imprisonment for 10 years. This offence also was a minor indictable offence, having regard to the value of the property involved.
The Magistrate imposed a single sentence of detention for a period of seven months.
The circumstances of the offence are that on the night of 14 April 2006 Mr W forced an entry into a Radio Rentals store at Murray Bridge by smashing a front door. When police arrived they found that the front door had been smashed and that property had been removed.
Blood was found at the scene. In due course Mr W was identified as the source of the blood.
The police spoke to Mr W on 30 August 2006. He did not admit his guilt at first, but did so in due course, apparently once he realised that the blood found at the crime scene had been identified as his.
Submissions were made to the Magistrate by the prosecutor and by counsel for Mr W.
The prosecutor put the facts of the case to the Magistrate. He drew to the Magistrate’s attention Mr W’s very lengthy record of offending, and his numerous appearances before the Youth Court.
Counsel for Mr W told the Magistrate that Mr W began offending from about the age of 11 years. His father had died when he was four years old. Counsel told the Magistrate that Mr W had a poor relationship with the man with whom his mother later lived. It is not clear what that had to do with Mr W’s pattern of offending. The Magistrate was told that Mr W completed only seventh grade at school.
Apart from that, the Magistrate does not seem to have been given a lot of information about Mr W, although perhaps his record spoke for itself.
Mr W’s offending history is a very long one. It includes a number of assaults, numerous public order offences and nine property offences on my count. Notably, he has convictions for non-aggravated serious criminal trespass in 2002 and twice in 2003, and one for aggravated robbery with an offensive weapon in January 2005.
He has been in detention on a number of occasions between 2002 and 2006. On my reading of his record he has been detained on at least six occasions.
Clearly enough, along the way he has had the benefit of leniency. There have been periods while he has been under supervision while at liberty. None of this has worked. His record includes numerous offences of failing to comply with an obligation.
On the basis of the material before the Magistrate, Mr W had had opportunities to change his ways, and the benefit of leniency on a number of occasions. Deterring Mr W from further offending had clearly become a significant consideration in arriving at an appropriate sentence. This was a significant aspect of the matter as it stood before the Magistrate.
Two matters of particular significance were drawn to the Magistrate’s attention.
The first was that Mr W had most recently been released from detention on 3 July 2006, having spent about nine weeks in detention. Three days later he was involved in a serious motor vehicle accident. He suffered a significant injury to his left arm, resulting in a substantial and apparently permanent loss of use of the arm.
The second matter was that realising he had reached the age of 18, and perhaps affected by the motor vehicle accident, Mr W had come to realise that he needed to do something to change his life.
He had moved from Adelaide to get away from the associates with whom he mixed, and with whom he offended. He obtained accommodation at Mount Gambier, next to the place where his sister was living with her partner and a child. His sister was supportive, and wanted to help him change his ways.
Counsel submitted that although Mr W had been in detention on a number of occasions, he had reached a turning point in his life, and was in the process of rehabilitating himself.
The Magistrate referred in his sentencing remarks to the main relevant matters. Mr W’s sister was at court, and the Magistrate heard from her. He said that he was impressed by her. There is no reason to think that the Magistrate overlooked any relevant matter.
In a situation like this where the Magistrate is aware of the matter and has the parties before him a court on appeal must give considerable weight to the Magistrate’s assessment of the parties before him and the facts as they are before him.
On appeal, Ms Beverdam, counsel for Mr W, submits that the Magistrate failed to give sufficient weight to Mr W’s prospects of rehabilitation, to the support that he was getting from his sister, and to his attempts to obtain employment.
There is no reason to think that the Magistrate overlooked these matters. His remarks suggest that he gave them careful thought. Unless it appears that the sentence is excessive, suggesting that adequate weight was not given to these matters, there is no basis for saying that the Magistrate erred in this respect.
I should add that the Magistrate made the pertinent point that Mr W had been in Mount Gambier only for about three months, and it was too soon to say that he had in fact changed his ways. That comment was open in the circumstances and open bearing in mind, as I said, that the Magistrate had the parties before him and was in a position to make his own assessment of them.
Ms Beverdam submits that the Magistrate failed to have regard to the sentencing principles embodied in the Young Offenders Act 1993 (SA). True, the Magistrate did not refer to the Act. It might have been better if he had related his decision to its provisions, and to particular provisions, but there is no reason to think that he was not aware of it. There are indications in his reasons that he knew full well that he was dealing with a young offender, or a person who was a young offender when he committed the offences, and with a person who was still, as it were, involved in what he called the juvenile justice system.
It is also necessary to bear in mind that the sentencing remarks that the Magistrate gave were clearly directed at Mr W. He addressed him in person. The Magistrate was trying to convey a message to Mr W and in those circumstances it was appropriate for him to keep his sentencing remarks as short as he could and as simple as he could.
Ms Beverdam was also critical of the fact that the Magistrate commented that if Mr W were an adult, the sentence he would have imposed would have been greater. No criticism at all can be made of this comment. Bearing in mind that Mr W had recently turned 18 years of age, and that for any offending in the future he will be dealt with as an adult, it was important to bring home to him that should he offend as an adult he could expect a much heavier punishment than was imposed by the Youth Court.
Standing back and looking at the sentence I consider that it is well within an appropriate range. Even allowing for the different approach that must be taken when sentencing a young offender and for the fact that general deterrence is not a factor and for the fact that the object of the Young Offenders Act is to secure for young offenders “care, correction and guidance”, I consider that the sentence is an appropriate one. I also consider that it is consistent with the policy embodied in s 23(4) of the Young Offenders Act.
When he committed the offences in question Mr W was almost an adult and had a long record of offending. The statutory policies stated in the Young Offenders Act remained relevant, but his age and background were also material factors. His history indicates that the Magistrate had to have careful regard to making Mr W aware of his obligations under the law. His recent change of heart is commendable, and is to be encouraged, but this change of heart could not be allowed to dictate the outcome. It was open to the Magistrate to conclude that a period of detention was required. The period imposed was a lenient one. It was also open to the Magistrate to conclude that the period of detention should be actually served. It was open to the Magistrate to conclude, as contemplated by s 23(4) of the Young Offenders Act, that the gravity of the offences and the fact that they were part of a pattern of repeated offending meant that a non-custodial sentence would be inadequate. I am not persuaded that the sentence is excessive.
There is one other matter to which I should refer. Ms Beverdam submitted that the Magistrate had erred by failing to order, pursuant to s 32 of the Young Offenders Act, a report on the social background and personal circumstances of Mr W. No application was made to the Magistrate at the time for any such order. Of course, it was open to the Magistrate to make the order even if not asked to do so, but it is relevant that no request was made to him that he make that order.
It is also relevant that the most pertinent matter, or perhaps the most material matter, before the Magistrate, was the recent move of Mr W to Mount Gambier and the support of his sister. As I said, the Magistrate was told about those matters, he had the sister before him and he spoke directly to her. So there is no reason to think that there were factual matters of which the Magistrate was unaware.
It is going too far to say that the Magistrate was required to order the preparation of such a report before imposing a sentence of detention. The Act does not so provide. There is no material before me that indicates that had such a report been prepared it is likely that it would have thrown new light on the situation, or that it would have thrown a light favourable to Mr W on the situation. In saying that, I do not suggest that when arguing a ground like this it is incumbent on counsel, as it were, to have the report already before the court. There will be cases where the court can say that, having regard to the circumstances, the sentencing court may well have been lacking in relevant information or may well not have been informed of relevant matters. I do not think this is such a case.
So approaching the matter on the basis that the Magistrate was not required as a matter of law to order the obtaining of a report, and bearing in mind that no request was made by counsel for Mr W, and bearing in mind that the Magistrate gave specific consideration to the main matter of mitigation before him, my view is that it cannot be said that the failure to obtain the report is likely to have led to a miscarriage of justice.
On the other hand it is worth emphasising the potential value of such reports and it is worth emphasising the desirability of magistrates at least considering the obtaining of such a report before imposing a sentence of detention. But I do not agree that in this respect the Magistrate erred.
For those reasons I am not persuaded that the sentence is excessive and I dismiss the appeal.