Y v Police No. Scciv-02-349

Y v POLICE
[2002] SASC 137
Magistrates Appeal: Criminal

MULLIGHAN J The appellant committed two serious offences in September 2000 when he was aged 17 years. On 16^th September 2000 whilst in Gray Street in Adelaide he, without lawful excuse, threatened a young man with an imitation firearm contrary to s 47 of the Criminal Law Consolidation Act 1935 (“the first offence”). On 23^rd September 2000 at the intersection of Pulteney Street and Rundle Street, Adelaide, he assaulted another young man thereby occasioning him actual bodily harm: contrary to s 40 of the Act (“the second offence”). He was sentenced by a learned Magistrate in the Youth Court on 7^th March 2002 to nine months’ detention in the Youth Training Centre for the second offence. For the first offence he was convicted without further penalty.
The appeal is against that sentence.
At the time of sentence the appellant was aged nearly 19 years. He was born on 22^nd April 1983. Prior to the first offence he had not been in any trouble with the law and he has not committed any offences since the second offence. At the time of his offending, he was aged 17 years and five months. He had always lived at home with his parents.
On the occasion of the first offence the appellant went to the City with a friend in a motor vehicle. When on foot in Rundle Mall, there was an altercation between the appellant and the victim who walked away to Hindley Street. He and a female friend were walking in Gray Street towards a hotel to have a drink when the appellant and his friend pulled up in a motor vehicle. They alighted from the vehicle and the appellant began cursing the victim who said that he did not know him and he must have the wrong person. The appellant then obtained an imitation Colt .45 pistol from the motor vehicle and held it towards the victim and threatened him with it. The victim thought that it was a real pistol and was shocked and frightened. He ran away to a hotel and later went to a nearby police station. Later that night the appellant was apprehended by the police when he was in the motor vehicle. The imitation firearm was found on his person. He was released on bail.
The second offence occurred at about 12.50 am. The victim was another young man. It was alleged by the police that he was walking with two other young men in Rundle Street when one of them was assaulted by a group of youths. He returned to assist and was also attacked by this group. He was forced out onto the roadway. He claimed that he was hit by one of the group from behind with a beer bottle. He ran away but was chased by members of the group and forced onto the roadway of the intersection where he was punched and kicked by members of the group, including the appellant. The appellant’s involvement was limited to kicking the victim in the head on two occasions whilst he was on the ground. The victim sustained a deep cut to the rear of his head which required two stitches, a burst blood vessel in his right eye, bruising to his right eye, a cut to the edge of his nose and numerous bruises and soft tissue injuries. That part of the incident which occurred at the intersection was recorded on a surveillance video tape.
After the incident, the appellant ran away but was soon apprehended by police. He was taken to the City Watchhouse and charged. He was released on bail, a condition of which was that he reside with his parents, not be absent from their house between 10.00 pm and 7.00 am unless accompanied by a parent and that he not enter the City of Adelaide, the boundaries of which were defined as the four Terraces.
The appellant appeared in the Youth Court on 3^rd October 2000 and was granted bail on the same conditions except that he could not be away from the home after 7.00 am except for the purpose of work and then until 1.00 am. He appeared in the Youth Court on various occasions thereafter. On 20^th June 2001 the Court was informed that he would plead guilty to the charge alleging the second offence. He pleaded not guilty to the charge alleging the first offence which proceeded to trial on 7^th September 2001. The trial continued on various days over a period of time and on 1^st February 2002 the appellant was found guilty. The learned Special Magistrate was informed of the charge alleging the second offence and that matter was called on. The appellant pleaded guilty. His bail was revoked and he was remanded in detention pending submissions as to sentencing.
Both matters were called on before the learned Magistrate on 8^th February 2002 and the appellant made an application for bail which was granted on his being restricted to home detention. The matters were adjourned until 7^th March 2002. A Social Background Report and a Home Detention Bail Progress Report were to be prepared.
On 7^th March 2002 submissions were made by the prosecutor and counsel for the appellant. The appellant had given evidence at the trial of the charge alleging the first offence to the effect that he did not take the imitation firearm out of the car when he spoke to the victim in Gray Street and he did not threaten him with it. The learned Special Magistrate rejected that evidence.
With respect to the second offence, the prosecutor informed the learned Magistrate that the circumstances of the offence were as I have mentioned.
The appellant’s version was that he was sitting at a café in Rundle Street with a female friend when a violent incident occurred nearby involving a male friend who was set upon by two males. The appellant went to his assistance. One of the men, not the victim, attempted to strike him but missed. The incident moved out onto the roadway and an associate of the appellant, who was over the age of 18 years, attacked the victim by striking him and kicking him. The appellant joined in and kicked the victim on two occasions.
The learned Magistrate did not resolve the conflict as to who initiated the incident and whether the appellant became involved to defend a friend or whether he joined in gratuitously.
The victim made a victim impact statement which the learned Magistrate considered. He reported that he had been kicked in the face and suffered swelling to his eyes and jaw. He referred to having been hit with a bottle which, he said, caused a wound. He further reported that he was kicked in the abdomen and suffered bruising to his chest. He was conveyed to the Royal Adelaide Hospital by ambulance and four sutures were applied to the wound. He subsequently consulted a psychologist on three or four occasions and was diagnosed as suffering a post traumatic stress disorder. He claimed that he was shocked by the assault and was overly wary of groups of male youths for at least a year. He was away from work for one week and incurred expense with the psychologist.
It seems likely that the kicks administered by the appellant did not cause the wound to the head and it is not known what, if any, injuries his conduct caused to the victim. I have seen the video tape which was admitted into evidence before the learned Magistrate. It supports the appellant’s version of his own conduct and it may be seen that his associate was responsible for most of the kicks and all of the blows which were administered. Nevertheless, the appellant joined in the attack and did so when the victim was on the ground and defenceless.
The appellant lives with his parents and his younger sister. He has an older sister who is married and has a young child. The Social Background Report which was placed before the learned Magistrate indicates that the family are of Macedonian decent. It appears that the Macedonia referred to is the country in the former Yugoslavia. His father had a difficult life as an immigrant and has a criminal record. He had returned to the family home after being in prison and was on bail for another offence with a condition of home detention. His return to the home caused stress in the family relationships.
After completing secondary education to Year 11, the appellant left school because of unsatisfactory acquaintances with whom he was in contact. He then went to the Thebarton Senior College during the year 2000 and completed Year 12. He then obtained employment which has continued except for the brief periods when he has been in detention.
At the beginning of this year, he enrolled in a course in business and marketing at the Port Adelaide TAFE College and paid the required fee of $700. This course is a prerequisite to entry to a similar course at the University of South Australia which he intends to commence next year. His course involves a total of 18 contact hours each week and attendance at the College on each week day. The University course is for three years.
The appellant’s mother suffers ill health which requires treatment and, when permitted by conditions of bail, he assists her by taking her to medical practitioners and hospitals. When his father was in prison the appellant assumed a more significant role in the family than would otherwise have been the case. He has a good relationship with his mother, and I assume, his sisters and both his parents have discussed his offending with him, and supported him and counselled him. He is an active sportsman. He played soccer with a club associated with the Serbian and Macedonian community. His participation has been compromised by his wearing of an electronic monitoring device whilst on home detention which not only interfered with his sporting activities but was embarrassing to him.
The family, including the appellant, attend a Serbian Orthodox Church and a Brother from that Church supported him when he was before the learned Magistrate. It is a term of his bail that he may be absent from his home to attend the Benevolent Society which is run by that Church. The appellant undertakes community work at the Society.
I have mentioned that pending sentencing the appellant was on home detention bail. His father was also on home detention bail, a condition of which was that he could not leave the home except for specified reasons. During this period the family required some fuel for the barbeque. The appellant went to a shop unaccompanied for that purpose and returned without delay. Coincidentally a check was made by the authorities during his absence and he was found to be in breach of a condition of his bail. He was given a caution and the incident is referred to in the continuing home detention report which was placed before the learned Magistrate.
A Home Detention Report was placed before the learned Magistrate. It includes:
“Home Detention staff found it necessary to remind Steven of his need to comply with the conditions of the program when Steven began to make a number of movements and did not always provide accurate information for staff. When challenged about his behaviour, Steven was of the opinion that he was different to other participants on the program and that he ought to be allowed greater flexibility to continue his social activities.
Conversations with Steven suggest that Steven feels that as he is 19 years old and the matters before the Court are over 2 years old, the Home Detention regime is an unfair and severe a [sic] restriction on his lifestyle.
On 25/02/02 Steven was issued with a formal warning restating program expectations and a direction to comply with all conditions of the program.
Since that time Steven has managed to improve his compliance to staff direction in regards to his movements and requests.”
The submissions made to me and to the learned Magistrate indicate that there are inconsistencies in this report. The only occasion of a breach of a condition was the incident which I have mentioned. He did not make “a number of movements” inconsistent with the condition of home detention. There was no occasion when he provided inaccurate information to staff. It is accepted that he did resent the condition of home detention and express views to staff accordingly.
He was remanded into detention on 1^st February 2002 and released upon home detention bail on 8^th February 2002 until he was sentenced on 7^th March 2002.
Upon sentencing the learned Magistrate said that he had regard to the personal circumstances of the appellant and s 3 of the Young Offenders Act 1993. He said that he was disappointed that the home detention bail had not been as successful as it should have been. He went on to say:
“I have a Home Detention Progress Report dated 6 March 2002 that has told me of the youth difficulties on home detention bail. I have tried to make clear to Steven, that he is at risk of going into detention. I have sought alternative outcomes for Steven. Mr Alcock is acutely aware of his risk of being detained. I was hopeful that Steven would have responded better on the home detention bail.”
The learned Magistrate was referring to the breach of a condition to which I have referred for which he received a caution. He went on to say:
“But that aside, I want to be crystal clear as I don’t want any ambiguity whatsoever in what I now say and that is this: I want Steven to understand that the offending by him, such a very short time after the incident of 16 September, and I speak of the offending of 23 September is very grave indeed and that I must impose an immediate period of detention.”
And later:
“I have remarked about the unsatisfactory report on home detention. I have tried to be helpful to Steven. I have tried to take into account his personal position and his situation with his family and study.”
The learned Magistrate described the second offence as a very serious and violent offence and that it had endangered the victim because of the traffic at the intersection. He intimated that he would have sentenced the appellant to detention for twelve months but upon giving credit for the time he had served in detention and for his plea of guilty, he reduced that term to nine months. He then said:
“I have given Steven home detention bail and he has failed the test there. I am not going to try again. He was given a window of opportunity and that has been unsuccessful. I don’t think there can be any issue taken with my earlier decision to release Steven on home detention bail pending the completion of the Social Background Report.”
He declined to suspend the sentence of detention. He said:
“I direct that Steven should serve forthwith. Steven was exceedingly foolish with his unlawful behaviour on 16 September but then for him to get involved again such a short time later in this very serious offence of 23 September preclude the suspension of this period of detention. I direct that the youth serve this period of detention in the Youth Training Centre.”
The learned Magistrate had intimated that he proposed to impose one sentence for both offences pursuant to s 18a of the Criminal Law (Sentencing) Act but he did not do so. He imposed the sentence of detention on the second offence and on the first offence he convicted the appellant which he said he dismissed with no further penalty.
There are three grounds of appeal:
1The learned Magistrate erred in failing to give sufficient weight to s 3 of the Young Offenders Act 1993.
2In all the circumstances, the penalty imposed by the learned Magistrate was manifestly excessive.
3In the alternative, the learned Magistrate erred in not exercising his discretion to suspend the sentence of detention.
The provisions of s 3 of the Young Offenders Act 1993 relevant for present purposes provide:
“Objects and statutory policies
3(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;
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(c)the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a) In imposing sanctions on a youth for illegal conduct -
(a)regard should be had to the deterrent effect any proposed sanction may have on the youth; and
(b)if the sanctions are imposed by a court on a youth who is being dealt with as an adult, regard should also be had to the deterrent effect any proposed sanction may have on other youths.
(3) Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
(a)compensation and restitution should be provided, where appropriate, for victims of offences committed by youth;
(b)family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened;
(c)a youth should not be withdrawn unnecessarily from the youth’s family environment;
(d)there should be no unnecessary interruption of a youth’s education or employment;
(e)a youth’s sense of racial, ethnic or cultural identity should not be impaired.”
Most of these requirements are expressed in mandatory terms.
In Hallam v O’Dea (1979) 22 SASR 133 the Full Court had to consider similar, but not identical, provisions in s 7 of the former Children’s Protection and Young Offenders Act 1979. King CJ, with whom the other members of the Court agreed, said at 136:
“The purpose of the Court therefore must be to ‘seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and to his development into a responsible and useful member of the community’, and it is in doing that that it is to take into account the enumerated factors. The Court should therefore, if detention is indicated, impose on the child the period of detention which ‘will best lead to the proper development of his personality and to his development into a responsible and useful member of the community’, taking into consideration the enumerated factors or such of them as may be relevant and appropriate. The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender. In the case of an adult offender, the starting point will generally be the observance of a proper proportion between the gravity of the crime and the severity of the punishment. This fundamental principle of adult sentencing obviously has no place in fixing the period of detention under the Children’s Protection and Young Offenders Act, even where the protection of the community becomes the dominant consideration. The proper approach for the Children’s Court, where a sentence of detention must be imposed, is to consider what period of detention, within the statutory limit of two years, will best achieve the objects proposed to the Court by s. 7. This approach is inconsistent with reserving the maximum period of detention for the most serious type of crime and of relating periods of detention for less serious offences to the maximum.”
In the present case the task of the learned Magistrate in sentencing the appellant was to secure for him the care, correction and guidance necessary for his development into a responsible and useful member of the community and the proper realisation of his potential taking into account the matters set out in s 3. Although the learned Magistrate said that he had considered these provisions, I do not think he gave them adequate weight.
The long period of release on bail without infringement, except in the one respect which has been mentioned, suggest that the appellant was aware of his obligations under the law and of the consequences of breach of the law. That suggestion is reinforced by his not having been in any trouble with the law since committing the second offence on 23^rd September 2000, nearly 18 months before he was sentenced.

The appropriate deterrent effect of a sentence upon him could be achieved without a long period of detention actually to be served. Furthermore, he has served two short periods in detention and a period of home detention on bail which would have served as an adequate deterrent to him.
The appellant appears to have a sound relationship with his mother and sisters which has survived the difficulties of his father returning to live in the home after being in prison. His relationship with his father is not destructive to him and his father supports and encourages him to live a law-abiding life. That family relationship should be fostered and not adversely affected by a sentence of detention which would necessarily mean that he would be withdrawn from his family environment. The question is whether to cause such a withdrawal is necessary in all the circumstances.
As has been seen, the appellant has pursued secondary and tertiary education with purpose and dedication. It is in his interests, and I expect those of the community, that he be able to continue his present course and proceed to the University next year. To serve the sentence of detention would interrupt his education and his present employment and result, at the least, in a significant set back to both.
In all of the circumstances I do not think the sentence of detention actually to be served is necessary to protect the community against violence or wrongful acts by him. His offending occurred over a brief period of only about one week in an otherwise lawful life. He has not since committed any offences. It is reasonable to conclude that his offending was out of character and, on each occasion, committed on the spur of the moment. The reason for his committing the first offence is not clear but it appears to have been the aftermath of an earlier altercation. The second offence appears to have been impulsive.
The approach to sentencing should have been to determine what period of detention, if any, would best achieve the objects set out in s 3: Hallam v O’Dea at 136. I do not think that approach was adopted and this ground must succeed.
I turn to the other grounds of appeal which may be considered together.
I think the learned Magistrate erred in some respects which contributed to a sentence being imposed which is manifestly excessive.
If committed by an adult, the maximum penalty for the first offence is four years and for the second offence, in the present circumstances, five years. Pursuant to s 23 of the Young Offenders Act the maximum sentence which could be imposed upon the appellant is detention in a training centre for three years and the maximum sentence of home detention is six months. However, the learned Magistrate could not impose a sentence of more than two years: s 14(3) of the Youth Court Act 1993. The maximum sentence of home detention is six months. S 23(4) and (5) of the Young Offenders Act provide:
“23(4) A sentence of detention must not be imposed for an offence unless the Court is satisfied that, because of the gravity or circumstances of the offence, or because the offence is part of a pattern of repeated offending, a sentence of a non-custodial nature would be inadequate.
(5) A sentence of home detention -
(a)must not be imposed unless the Court is satisfied that the residence the Court proposes to specify in its order is suitable and available for the detention of the youth and that the youth will be properly maintained and cared for while detained in that place; and
(b)should not be imposed if the Court is not satisfied that adequate resources exist for the proper monitoring of the youth while on home detention by a home detention officer.”
I do not regard either of the two offences as being part of a pattern of repeated offending. I do not regard the first offence as being of such gravity or committed in such circumstances as to render a non-custodial sentence as inadequate even though the offending was a serious breach of the criminal law because a person had been threatened and put in fear by the use of an imitation firearm which appeared to be real. The second offence was a very serious crime but the option of home detention was appropriate in that the residence where the appellant would live was suitable and adequate resources for proper monitoring existed as had been established whilst he was on bail. In my view, the learned Magistrate erred in not having sufficient regard to s 23.
The second error, in my view, is that the learned Magistrate did not accept the submission made on behalf of the appellant about the breach of the condition of home detention bail which I have mentioned. The learned Magistrate should not have found that the appellant had not responded appropriately to home detention bail or that he had been given a “window of opportunity” which he had not taken. There was a clear difference between the assertion in the Home Detention Report and the submissions made on behalf of the appellant. If the learned Magistrate was to act upon the former and reject the latter, he should have said so and afforded the prosecutor the opportunity of indicating whether he challenged the version put on behalf of the appellant. If he did, and the submission was maintained, the issue would have had to have been resolved by evidence. This error is of crucial importance because the learned Magistrate found that home detention was inappropriate because of the assertions in the Home Detention Report.
The third error is that the learned Magistrate did not have sufficient regard to the very long period of time during which the appellant had been on bail with considerable restrictions to his activities. These restrictions were a significant punishment in themselves and should have been brought to account.
The fourth error is that the learned Magistrate did not, in my view, give appropriate weight to the appellant having already been in detention for a short period. To deprive a young person, or anyone for that matter, of his or her liberty even for a short period is a very serious matter and a substantial punishment in itself.
The last matter is that the learned Magistrate did not have sufficient regard to the substantial progress in rehabilitation which had been achieved by the appellant despite the restrictions of the conditions of bail. His course of study and employment, his involvement in sport and his church are all strong indicators of successful rehabilitation.
For these reasons the sentencing discretion miscarried and must be exercised afresh. In doing so, I must also consider what has occurred since the sentence was imposed. He served four days in detention and, as has been mentioned, he was then released on home detention bail. He had to wear an electronic monitoring device and has been under supervision of a Home Detention Officer. He has been on such bail since 11^th March which is a period of about six weeks. During that time he has been confined to his home except for the purpose of employment and attending the TAFE, his Church and the Society.
In all, there have been two periods of home detention bail for a total period of 10 weeks, two periods of detention for a total period of 12 days and bail with curfew restrictions for a period of about 16 months. The total period of detention and home detention bail is a few weeks short of three months.
I have had regard to the seriousness of the offences and the fact that the second offence was committed on bail. Kicking a defenceless person whilst he is down is a very serious offence and warrants significant punishment. However, both offences appear to have been impulsive. I do not think there is any reason to conclude that the appellant disregarded the conditions of bail or that his rehabilitation will not be successful. He has the support of his family. He is in employment and undertaking tertiary education.
I have had regard to his plea of guilty to the second offence at an early stage.
Applying the objects of s 3 and the provision of s 23 and the principle that detention is the last resort only to be imposed when no other sentencing option is appropriate and the various matters I have mentioned, I think the appellant has already been sufficiently punished. Furthermore, I was informed that the other person who participated in the second offence has not been punished as the charge against him was withdrawn. Whilst that is a matter of limited weight because the reasons for the decision to withdraw were not placed before me, it is appropriate to attempt to avoid a sense of grievance on the part of the appellant by reason of his being treated differently.
I allow the appeal. I set aside the sentence imposed by the learned Magistrate. I decline to impose another sentence. The convictions for the first offence and the second offence remain as do the orders of forfeiture of the imitation firearm and for the levies imposed by the learned Magistrate.

[2002] SASC 137

26 April 2002