J M B v COMMISSIONER OF POLICE [2024] SASC 17

On Appeal from YOUTH COURT OF SOUTH AUSTRALIA (HIS HONOUR MAGISTRATE KOEHN) YCCRM-23-4295, YCCRM-23-4279 Applicant: J M B Counsel: MR T CICCHIANNI-JONES - Solicitor: MATTHEW MITCHELL SOLICITORS Respondent: COMMISSIONER OF POLICE Counsel: MS J HOULAHAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 06/02/2024 File No/s: C SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. J M B v POLICE [2024] SASC 17 Judgment of the Honourable Justice McDonald (ex tempore) 7 February 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES This is an appeal against the sentence imposed by a Magistrate in the Youth Court following JMB’s conviction of 21 separate offences committed between 18 March and 13 September 2023. The Magistrate imposed a single sentence of 5 months and 21 days, ordering that JMB serve 1 month and 28 days in custody and suspending the remainder of three months and 13 days upon him entering into an obligation to be of good behaviour for a period of 8 months from the date of sentence. This sentence was backdated to begin on 13 September 2023. JMB appeals this sentence on the basis that the Magistrate erred in imposing a period of detention for two offences which were only punishable by way of fine. The respondent contends that, while the appeal should be allowed on the basis of a technical error, the sentence should not be interfered with. Held, allowing the appeal and remitting the matter to the sentencing court for resentence: 1. The learned sentencing Magistrate erred in imposing a period of detention for two offences where were punishable only by fine. 2. The learned sentencing Magistrate erred in his calculation of JMB’s sentence. 3. Given the potential for fresh evidence to be led on resentencing, as well as the Youth Court’s experience in sentencing young offenders, it is appropriate to remit the matter to the Youth Court for resentence. -- 1 of 8 -- Youth Court Act 1993 (SA) s 22, s 23; Young Offenders Act 1993 (SA) s 23; Sentencing Act 2017 (SA) s 26, referred to. Hermel v Police (2000) 76 SASR 336; Playford v Police [2017] SASC 26; R v QV [2003] 87 SASR 378, considered. -- 2 of 8 -- J M B v POLICE [2024] SASC 17 Magistrates Appeal: Criminal McDONALD J. 1 This is an appeal against a sentence imposed by a Magistrate in the Youth Court on 9 November 2023 for 21 separate offences. At the time of sentencing JMB had already served 58 days in detention. Taking that into account the Magistrate sentenced JMB to 5 months and 21 days detention. That sentence was backdated to the 13 September 2023 when JMB was first taken into custody. The remaining 3 months and 13 days were suspended upon JMB entering into an obligation to be of good behaviour for 8 months. Details of the offences 2 Amongst the offences for which JMB was sentenced were 8 breaches of bail that occurred between 18 March and 13 September 2023; two counts of possessing cannabis in March and May 2023 and 5 counts of theft that involved stealing alcohol from a BWS store between 28 August and 5 September 2023. Two of the counts of theft were aggravated by virtue of JMB being in company when the offences were committed. On 13 September 2023 as the result of becoming involved in a high speed chase with the police, JMB was charged with a further series of offences, namely illegal use of a motor vehicle, carrying an offensive weapon, driving with excess blood alcohol, driving disqualified and driving at an excessive speed. 3 On 3 July 2023 JMB had been sentenced for a series of similar offences. On that occasion JMB was placed on an obligation to be of good behaviour for 6 months. It follows that a number of the most recent offences breached that obligation. The Sentencing approach adopted by the Magistrate 4 Under s 23 of the Youth Court Act 1993 (SA) a youth can only be sentenced to a term of detention if the youth is a recidivist young offender or a serious firearm offender or in any other case if the Court is satisfied that a sentence of a non - custodial nature would not be adequate because of the gravity or circumstances of the offence or because the offence is part of a pattern of repeat offending. 5 The Magistrate expressed the view that the events of 13 September 2023 were so serious that the conduct warranted a term of detention. He also found that the five thefts from the bottle shop “represent a pattern of very serious offences which also justify a term of detention.”1 Consequently, the overall approach 1 Sentencing Remarks 9 November 2023 p 2. -- 3 of 8 -- [2024] SASC 17 McDonald J 2 adopted by the Magistrate was to sentence JMB to terms of detention for these offences and to discharge him without further penalty for the remaining offences. 6 As I have mentioned, by the time the Magistrate came to sentence JMB he had been in custody since his arrest on 13 September 2023. It is clear from the Magistrate’s sentencing remarks that he was of the view that JMB had already spent sufficient time in detention and any additional period of imprisonment should be suspended. The Magistrate fashioned a sentencing package to achieve that outcome. 7 Although the Magistrate imposed one penalty pursuant to s 26 of the Sentencing Act 2017 (SA) he set out the notional penalties that he intended to impose for each offence. For each of the simple thefts the Magistrate would have imposed 1 month imprisonment which was reduced to 22 days on the basis of JMB’s guilty pleas. For each of the aggravated thefts the Magistrate indicated that he would have sentenced JMB to six weeks imprisonment which reduced to 30 days on the basis of the guilty pleas. Each of the sentences for the aggravated and non-aggravated thefts was cumulative resulting in a total of 30 days detention for this offending. 8 When he came to deal with the offending that took place on 13 September 2023 the Magistrate said the following:2 In relation to the offending of 13 September, which involves the driving offences, for the illegal use of a motor vehicle and the driving whilst disqualified offences, in my view a single penalty would have been appropriate of six months, which I reduce to four months and seven days to take account of your plea of guilty. 9 The Magistrate made that sentence cumulative on the sentence for the thefts. The Magistrate explained how he proposed that the sentence would operate:3 So I consider that I should deal with the matter as follows: treating the four months and seven days as cumulative upon the six weeks for the theft offences. That would bring me to a total of five months and 21days. I would backdate that sentence to 13 September when you were placed in custody and that would leave, I calculate, three months and 13 days which I suspend. So I am ordering you to serve 1 month and 28 days which takes you to today and I am suspending the remainder which is three months and 13 days for a period of 8 months from today. Alright? So you will be on a suspended sentence from today for a period of eight months for three months and 13 days. (Emphasis Added) 10 Having dealt with those offences for which a period of detention was imposed, the Magistrate went on to deal with those offences from 2 Sentencing Remarks 9 November 2023 p 3 [4]. 3 Sentencing Remarks 9 November 2023 p 3 [5]. -- 4 of 8 -- [2024] SASC 17 McDonald J 3 13 September 2023 for which the maximum penalty was a fine and a licence disqualification. In that context he said:4 Now there are also fines. So for the drink driving offence of 13 September there is a minimum fine of $900 and for the speeding offence there is a minimum fine of $3,000. In my view, you have no ability to pay those amounts in full, but I am prepared to reduce them under section 120 of the Sentencing Act 2017. You will be required to pay a fine of $200 for the drink driving and $500 for the speeding offence. 11 That passage evinces an awareness by the Magistrate that for these two offences the maximum penalty was a fine. Ground of Appeal 12 JMB relied on one ground of appeal that being: The Learned Sentencing Magistrate erred in imposing a period of detention for two offences which were only punishable by way of a fine, those offences being Driving while having a Prescribed Concentration of Alcohol in Blood under s 47B(a)(ii) of the Road Traffic Act and Excessive Speed under s 45A(a)(i) of the Road Traffic Act. 13 This ground is founded not only on the passage of the Magistrates remarks on penalty which refers to “… the offending of 13 September, which involved the driving offences, for the illegal use of a motor vehicle and the driving whilst disqualified offences…” but also on the official court records. The record of outcome, the mandate of detention, and the suspended sentence obligation and acknowledgement all record that the Magistrate imposed a single period of detention for nine offences pursuant to s 26 of the Sentencing Act including driving with a prescribed concentration of alcohol in blood and driving at excessive speed. 14 There is no dispute that it is well established that s 26 of the Sentencing Act should not be used to impose a simple sentence of imprisonment for various offences where one or more of the offences is not punishable by imprisonment.5 To proceed in such a manner is a misuse of the section and any resulting sentence imposed is beyond power. The respondent concedes that the Magistrate was in error in including the relevant two offences in the sentence imposed pursuant to s 26(1). It was not open to the Magistrate to sentence JMB to imprisonment for those offences. 15 The only real contest between parties is whether the error reflected a mistaken belief on the part of the Magistrate that the sentence that he was imposing was for all of the offences committed on 13 September, consequently resulting in a higher sentence, or it was an administrative error. The resolution of that issue has the potential to impact on the overall disposition of the matter. 16 Counsel for JMB made a number of points in support of his submission that the Magistrate sentenced JMB to detention for offences that are only punishable 4 Sentencing Remarks 9 November 2023 p 4. 5 Hermel v Police (2000) 76 SASR 336 at [337]-[338]. -- 5 of 8 -- [2024] SASC 17 McDonald J 4 by a fine. He commenced with the length of the sentence itself. He submitted that it was a “heavy handed” sentence compared to those commonly handed down in the Youth Court particularly given that s 23(2)(a) of the Youth Offenders Act limits the period of detention that can be imposed to a maximum of 3 years. He also made the point that the Magistrate would have seen the various court records and did not identify an error, nor did the Magistrate refer to it in the “Additional Note” that he provided after he had the opportunity of reviewing the sentencing remarks. The final matter relied upon by JMB was the inclusion of the words “driving offences” in the portion of the sentencing remarks that I have previously set out. 17 Counsel for the Director submitted that whilst the appeal should be allowed, the nature of the error is such that the sentence should not be interfered with. In response to the submissions about the length of the sentence, the Director emphasised that not only was the offending serious but the Magistrate clearly regarded it as such resulting in the decision to impose a term of detention. The Director contended that on a reading of the whole of the sentencing remarks it is not reasonable to suggest that it was the intent of the Magistrate to impose both a term of detention and a fine for the two offences. Rather the use of the loose language of “the driving offences” was a product of the Magistrate attempting to deal with the matter expeditiously in what was no doubt a busy list. 18 As Vanstone J said in Playford v Police,6 Remarks on penalty given by magistrates, and particularly ex tempore remarks, are not to be analysed and deconstructed in the same way as might be settled reasons for judgement. Of necessity, magistrates often deliver ex tempore reasons. If they did not, their workloads would become overwhelming. 19 This submission was supported by the fact that it appears that despite the Magistrate purporting to deal with all of the offences from 13 September 2023 as a group, at some point the offence of carrying an offensive weapon, which is punishable by a term of imprisonment, dropped out and was dealt with the other miscellaneous offences for which no further penalty was imposed. 20 There is force in the submissions made by the Director and I am persuaded that the error was of an administrative nature and does not reflect an intention by the Magistrate to sentence JMB to detention for the two driving offences. A second error identified by the Magistrate 21 In advance of the hearing of the appeal, a request was made for a copy of the Magistrate’s sentencing remarks. 22 It would appear that upon reviewing those remarks the Magistrate identified that he had made an error in the calculation of the term of detention that was imposed. 6 [2017] SASC 26 at [27]. -- 6 of 8 -- [2024] SASC 17 McDonald J 5 23 On that basis on 25 January 2024 the Magistrate provided some “Additional Notes” along with his sentencing remarks noting the error that he had detected. That note said:7 Upon reviewing my sentencing remarks in this matter I noted errors in my calculation of the term of detention I imposed on 9 November 2023. Having indicated that for the two aggravated theft offences the sentence of six weeks detention would be reduced to 30 days in respect of each of them, I subsequently referred to the sentences as six weeks detention rather than 30 days detention. This was in error and not my intention. The end result, had the error not been made, and had my subsequent calculations been correctly done, would have been a head sentence of five months and seven days, from 13 September 2023. Upon serving one month and 29 days, the remaining period of detention of three months and eight days would have been suspended. 24 It would appear that this error in the calculations was an oversight on the part of the Magistrate that worked to JMB’s detriment. Disposition of the Appeal 25 It is agreed by both parties that two errors have been established, and that it is therefore appropriate for the Court to allow the appeal, at least in so far as is necessary to correct the record. 26 Section 22(3) of the Youth Court Act sets out the powers that an appellate Court may exercise on appeal. This includes confirming, varying or quashing the judgment the subject of appeal, remitting the matter back to the Youth Court for hearing, or making any other order that may be necessary or desirable in the circumstances. 27 It was the JMB’s submission that I should remit the matter for resentence in the Youth Court, on the basis that the Youth Court has particular experience in sentencing young offenders especially in circumstances in which there is the potential for fresh evidence to be led. 28 There is no doubt that the Youth Court is a specialist jurisdiction that holds experience in sentencing youths. In R v QTV the Court explained the fundamental difference between sentencing a youth and an adult offender.8 The object specified in subs (1) of s 3 of the Young Offenders Act requires a sentence that allows for the care, correction and guidance necessary for the youth’s development into a responsible and useful member of the community. It requires the court to assume that the youth has potential that can be realised. Those requirements are not necessarily the starting points in sentencing an adult… For these reasons the sentence of a youth may bear little relationship to that imposed on an adult in similar circumstances. Sentencing “standards” will have little relevance or application. What is most important is the perceived effect that the particular penalty is 7 Additional Notes made on 25 January 2024. 8 [2003] 87 SASR 378 at [388]-[389]. -- 7 of 8 -- [2024] SASC 17 McDonald J 6 likely to have on the youth offender. This can only be based on judgment and experience in dealing with youth offenders. 29 Whilst the Director did not dispute this as a matter of principle, it was contended that in the circumstances of this case, where the nature of the errors is technical, and correction of the error does not require the substance of the matter to be revisited, it would be appropriate to allow the appeal for the limited purpose of correcting the head sentence and reflecting in the Court record that the penalty for the two offences the subject of this appeal are the fines indicated by the Magistrate. There is an obvious efficiency in both time and cost in adopting the approach contended for by the Director. 30 Despite this I have arrived at the view that it is appropriate to remit the matter back to the Youth Court for JMB to be resentenced. I do so on two bases. The first is the submission that was made by JMB’s counsel, that the sentence of 6 months was “heavy handed”. A specialist Youth Court Magistrate would be far better placed than me to make an assessment of that submission. Counsel for JMB also advised the Court that it is at least “on the cards” that he will seek to lead fresh evidence about JMB’s personal circumstances on the rehearing of sentencing submissions. This is a powerful factor in favour of remitting the matter back to the Youth Court. Orders 1. The appeal is allowed. 2. The sentence is set aside. 3. The matter is remitted back to the Youth Court for resentencing. -- 8 of 8 --