H, N In Person via Telephone v COMMISSIONER OF POLICE [2023] SASCA 114

On Appeal from YOUTH COURT OF SOUTH AUSTRALIA (MAGISTRATE BRODERICK) YCCRM- 22-003491, YCCRM-22-003657, YCCRM-23-000547, YCCRM-23-001595, YCCRM-23-001596 Appellant: H, N In Person via Telephone Counsel: MR R PICCOLO - Solicitor: NEWELL LAWYERS Respondent: COMMISSIONER OF POLICE Counsel: MS S AGNEW WITH MS B SYMES - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/10/2023 File No/s: SCCRM-23-029935 B SUPREME COURT OF SOUTH AUSTRALIA (Court of 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. H, N v POLICE [2023] SASCA 114 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby) 17 October 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE The appellant appeals against his sentence on the ground that he was sentenced to detention for three offences which only carried a fine as a penalty. The respondent conceded that the Magistrate made a material error and that it was necessary to set aside the sentence and re-sentence the appellant. Held, per the Court, allowing the appeal: 1. The sentence imposed by the Youth Court on 10 August 2023 is set aside. 2. The matter is remitted to the Youth Court for re-sentence. -- 1 of 3 -- -- 2 of 3 -- H, N v POLICE [2023] SASCA 114 Court of Appeal - Criminal: Livesey P, Lovell and Bleby JJA THE COURT (ex tempore): 1 The appellant pleaded guilty in the Youth Court to 31 offences with the offending spanning nine months. On 10 August 2023, the appellant was sentenced for all of the offending to a global penalty of two months and 24 days in detention, partially suspended. Three of the offences for which the appellant was sentenced to detention carried only a fine as a penalty. 2 The responded has conceded that the magistrate was in error in including those offences in the global penalty and that it is necessary to set aside the sentence and proceed to re-sentence. That concession was appropriate in all of the circumstances. 3 The appellant must be re-sentenced. The respondent submitted that given the experience of the Youth Court in relation to sentencing youths, and the fresh evidence that will be led on re-sentencing, this Court should set aside the sentence and remit the matter to the Youth Court for re-sentence. We agree. 4 Accordingly, the orders of the Court will be as follows: 1. The sentence imposed on 10 August 2023 in the Youth Court is set aside. 2. The matter is remitted to the Youth Court for re-sentence. -- 3 of 3 --