W, Ss v Police

[2014] SASCFC 64

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

W, SS v POLICE

[2014] SASCFC 64

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kelly)

17 June 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - GENERALLY

Appeal against sentence.  The appellant pleaded guilty to two counts of assault, two counts of theft, one count of making off without payment, two counts of failing to answer questions put to her by a police officer which may have led to the identification of the person who was the driver of a motor vehicle on a particular occasion, and one count of illegal use of a motor vehicle.  The sentencing Judge in the Youth Court was informed that the appellant had prospects for employment with an interview to take place in the week following sentencing.  The Judge sentenced the appellant to immediate detention for a period of eight weeks and made an order disqualifying the appellant from holding or obtaining a driver’s licence for a period of 12 months.  An affidavit was tendered by consent on the appeal indicating that, following her release on bail pending the appeal, the appellant was successful in obtaining employment and remained in employment at the date of the hearing of the appeal.  On the appeal, the police consented to the appeal being allowed and the order for detention being suspended upon the appellant entering into a good behaviour obligation.

Held per Gray J (Kelly J agreeing) (allowing the appeal):

1.  The Youth Court Judge did not give adequate weight to the appellant’s determination to obtain employment and her progress towards rehabilitation. 

2.  Appeal allowed.

3.  Detention order reduced to seven weeks and suspended.

Held per Vanstone J (allowing the appeal):

1.  It is plain beyond argument that, had the appellant been sentenced after having obtained employment, the Judge would have suspended the detention order he imposed.

Young Offenders Act 1993 (SA) s 3, referred to.
R v C (2004) 89 SASR 270; R v Dorning (1981) 27 SASR 481; R v Brain (1999) 74 SASR 92, considered.

W, SS v POLICE
[2014] SASCFC 64

Full Court:      Gray, Vanstone and Kelly JJ

GRAY J.

1. This is an appeal against sentence.

2. The appellant pleaded guilty in the Youth Court to two counts of assault, two counts of theft, one count of making off without payment, two counts of failing to answer questions put to her by a police officer which may have led to the identification of the person who was the driver of a motor vehicle on a particular occasion, and one count of illegal use of a motor vehicle.  The assaults occurred in February 2012 and all other offending occurred in February 2013.  On 31 October 2013, the appellant was sentenced by a Judge of the Youth Court to immediate detention for a period of eight weeks.  The Youth Court Judge made a further order disqualifying the appellant from holding or obtaining a driver’s licence for a period of 12 months. 

3. Following sentencing, the appellant spent one week in detention before being granted bail pending appeal. 

4. On 10 June 2014, I joined in an order allowing the appeal.  The Court ordered that the period of detention imposed by the Youth Court be set aside.  In lieu, a seven week suspended detention order was made on the appellant’s entry into a six month obligation to be of good behaviour.  The other orders of the Youth Court were confirmed.

5. The Youth Court Judge received submissions concerning the circumstances of the offending and the appellant’s criminal and personal antecedents, including her history of drug abuse.  The Judge noted that the appellant had prospects for employment with an interview with a furniture retailer to take place in the week following.  It was put to the Judge that the appellant’s personal circumstances had altered and that at the time of sentencing, she had changed her approach to life, was confronting her drug use and was intent on obtaining employment.  Notwithstanding these submissions and the impending job interview, the Youth Court Judge determined that it was appropriate to make an immediate order of detention. 

6. On the hearing of the appeal, an affidavit from the appellant was tendered.  The general purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing Judge, or to explain facts which were before the sentencing Judge so as to put them in a new light.[1]  The affidavit meets these criteria.  The police consented to the Court receiving and acting on the affidavit.  In the circumstances, the Court accepted the tender.

   [1]    R v C (2004) 89 SASR 270, 275-6; see also R v Dorning (1981) 27 SASR 481, 488; R v Brain (1999) 74 SASR 92.

7. The affidavit, inter alia, traces the appellant’s employment history in some detail.  It transpires that she was able to rearrange her interview with the furniture retailer to a time following her release on bail pending appeal.  She accepted employment offered at the interview and has remained in employment since that time.  She has prospects of promotion to the position of supervisor.  The appellant lives nearby in her own rental accommodation and is able to attend at short notice to help out in shifts if other employees are unable to attend through illness.  The contents of her affidavit demonstrate that the appellant has taken significant steps in her rehabilitation, with improved self esteem and optimism for the future. 

8. Counsel informed the court that the police consented to the appeal being allowed and that the order of detention be suspended upon the appellant entering into a good behaviour obligation.  The appellant sought no other order on the appeal, save for recognition of the fact that she had served one week in detention before being released on bail. 

9. In my view, the concession of the police is appropriate.  I consider that the Youth Court Judge did not give adequate weight to the appellant’s determination to obtain employment and her progress towards rehabilitation.  The provisions of the Young Offenders Act 1993 (SA) give special emphasis to youth employment. In particular, section 3 relevantly provides:

   (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.

   …

   (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 … employment;

   …

10. One course open to the Youth Court Judge was to adjourn the proceedings allowing the appellant to attend her job interview and, if successful, to have had regard to her employment when sentencing.  Had the Judge done so, he would have been in a better position to have determined an appropriate sentence to be imposed.  For the appellant to undergo detention at the present time would put in jeopardy not only her employment, but her ongoing rehabilitation. 

11. In the circumstances, I consider that the appeal should be allowed and the detention order should be reduced to seven weeks and should be suspended.

12. VANSTONE J:     The respondent does not oppose the Court receiving the affidavit of the appellant describing the employment she has taken up – and is succeeding in – since being given bail pending appeal.  As well, the respondent concedes that the appeal should be allowed.

13. It is plain beyond argument that had this development occurred prior to sentence the judge under appeal would have suspended the detention order he imposed.

14. In all the circumstances I agree that the appeal should be allowed and the term of detention suspended.

15. KELLY J:             I agree with the orders proposed by Gray J and with his reasons.