A Child v The State of Western Australia - [2007] WASCA 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: A CHILD -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 285

CORAM: WHEELER JA
McLURE JA
MILLER JA

HEARD: 18 DECEMBER 2007

DELIVERED : 24 DECEMBER 2007

FILE NO/S: CACR 149 of 2007

BETWEEN: A CHILD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :REYNOLDS DCJ
File No  :CC 3896-8/7 of 2007

Catchwords:

Criminal law - Sentence - Sentencing of child - Whether detention order only disposition open - Whether all relevant factors taken into account - Young Offenders Act 1994 (WA)

Legislation:

Criminal Code, s 317(1), s 333, s 338(a)
Young Offenders Act 1994 (WA), s 7, s 46, s 101, s 118(1)(b), s 120, s 121(1)

Result:

Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr B Fiannaca SC

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

B (a child) v The Queen (1995) 82 A Crim R 234
F (a child) v The State of Western Australia [2004] WASCA 193
Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349
O,C v Police [2007] SASC 346
Perrier & Richardson [1991] 1 VR 717; (1990) 59 A Crim R 164
R v F; R v P [1997] QCA 098
R v Lopez (Unreported, WASCA, Library No 930431, 13 August 1993)
R v SG [2007] NSWSC 511
Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313
The State of Western Australia v A child [2007] WASCA 115; (2007) 172 A Crim R 15
WO (a child) v The State of Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352

WHEELER & McLURE JJA: We have had the advantage of reading in draft the reasons for decision of Miller JA. We are largely in agreement both with his Honour's summary of the facts, and with the views which his Honour has expressed. However, although the difference between our own view and that of Miller JA is relatively narrow, it must, we think, in the present case lead to a difference of result.

The facts of the offending

These are summarised by Miller JA at [27] to [35]. We accept that summary, subject to one comment. His Honour's summary includes a reference to the appellant asking CD, "Is this the person we are going to hurt today?" at a very early stage in the proceedings, before any of the children had even left the school grounds. That question did not form part of the statement of material facts recounted by the prosecution, although it was in the victim's statement. If accepted, it would indicate that the appellant had been part, from the inception, of a plan to harm another child.
That seems to have been the only aspect of the facts about which some significant issue remained at the time at which the learned President came to sentence the appellant, and it appears to us to be a fact which the President did not accept. The learned President's only observations in relation to the way that events on that day began, and the appellant's part in them, were:
... it wasn't your idea to go to what you and the others seem to refer to as the bunker ... but it was a decision made and six of you went to the area in the bush and the six included the victim .... (AB 49)
The learned President seems also to have made no finding about the appellant's precise role in taking the victim to that area; rather, the account of the appellant's role which is contained in the sentencing remarks commences from the point at which one of the other boys had the idea of giving the victim a "corky".
That said, on any view, the appellant was an active participant, over a relatively lengthy period, in a course of appalling behaviour which, as the State submitted to us, was a gross invasion of the human rights of the child victim. The learned President characterised the conduct in which all of the offenders engaged as a form of "torture". That is a characterisation which can be accepted, but with reservations. The comment was plainly made by the learned President in order to distinguish the conduct from mere "bullying". Torture, however, is the infliction of intense physical or mental pain or anguish. Although the acts engaged in by the offenders were wrongful, and there were numerous assaults and threats, and although there was no doubt physical pain caused to the victim, the physical aspect of the conduct is not of such severity as to be worthy of the extreme characterisation adopted by the President. His Honour was no doubt referring to the mental ordeal experienced by a child who had been the subject of numerous assaults and numerous threats, over a period of time, by a group of people, in circumstances where the victim had no way of knowing which of their threats the offenders intended to carry out, whether the behaviour would escalate, or when his ordeal would end.
If one accepts, as we think it is reasonable to suggest, that the mental aspect of the victim's ordeal, and the appalling potential for escalation of the assaults in a group situation such as this, was what made the behaviour so serious, there are implications for the appellant's criminality. That is because, although the President found, and we accept, that the appellant should have known, and did know, that the victim was frightened and in pain, it appears that the learned President also accepted the suggestions in the court reports that the appellant, to a degree, lacked insight into the seriousness of his behaviour and its effect upon the victim. In an adult, such a lack of insight would be a cause for very serious concern. In a child of the appellant's age however, it may, at least in part, be explicable by a simple lack of maturity. Having regard to the appellant's role in all of this conduct, of which he was not the original instigator, it seems that, as he did not himself intend to do the victim serious harm, he may not have appreciated the intensity of the fear which the victim no doubt felt. The point of these observations is simply to note that, even if it is accepted that the learned President's characterisation of the whole of the conduct on that day as "torture" is correct, when that conduct is seen in its context and the basis for that characterisation is understood, it does not inevitably flow from that characterisation that, whatever other mitigating factors might exist, a sentence of detention is inevitable.

The appellant's conduct subsequent to the offending

On the day following the offences, three of the group of offenders apparently spoke to the child victim of the offences, asking him why he had "dobbed", further assaulting him and threatening him in retaliation. The appellant was not a member of that group and there is no suggestion that he knew of that conduct. Rather, it appears that, so far as the appellant was concerned, he promptly admitted to the offences when asked about them. He made a statement to the police, which was a very full statement. It implicated him and described a number of things which he had done to the victim, and also described the roles of others. It does not appear to have been designed to minimise his conduct, or the offending as a whole, in any way. The appellant was the first of the group to enter a plea of guilty, and he had agreed to give evidence, if necessary, against his co‑offenders.
The learned President noted the appellant's prompt admissions and co‑operation with authorities, and quite rightly noted that those factors were significant for sentencing purposes. When, however, the learned President came to bring together his reasons for reaching the view that a sentence of detention was the only possible outcome, he said:
[P]utting everything together and carefully considering it all, in my view the combined weight of the extreme seriousness of the factual circumstances and the need for deterrence and, in particular, general deterrence outweighs the combined weight of everything else that I have mentioned, including in particular your extreme youth and the need for great weight to be given to rehabilitation .... [AB 55]
The omission of any reference to co‑operation and remorse suggests that his Honour did not regard them as of "particular" significance in deciding whether the "last resort" of detention had been reached.
When determining the length of the sentence of detention which should be imposed, the President said that, because of the appellant's co‑operation and offer of future co‑operation, he had determined that a period of 11 months' immediate detention should be reduced to 8 months. That was, in our respectful view, an inadequate allowance for co‑operation in the particular circumstances of this case.

The relevance of co‑operation with authorities

The principles governing the discount for co‑operation with authorities have been often stated. A substantial discount is given to an offender who gives useful information or assistance to law enforcement authorities, irrespective of whether that demonstrates remorse or contrition. Where the information or assistance does demonstrate genuine remorse or contrition (as, in our view, it does here), the discount should be greater. The more potentially useful the information is to authorities, the greater should be the discount. Finally, any danger or hardship which the person assisting authorities may be placed in or may undergo as a result of co‑operation should be taken into account: Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349, [118] (Roberts‑Smith J); Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313, [34] (McKechnie J).
The considerations mentioned above reflect two underlying principles. One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law‑abiding citizens that crime should be detected and successfully prosecuted.
The discount given to offenders should not be laid down as a standard percentage, but depends upon the circumstances of the individual case: R v Lopez (Unreported, WASCA, Library No 930431, 13 August 1993). In that case, it should be noted that Rowland J cited Perrier & Richardson [1991] 1 VR 717; (1990) 59 A Crim R 164 as authority for the proposition that, in some circumstances, the discount may be as high as two‑thirds deducted from the head sentence.
Looking to the conduct of the appellant in the present case, it is plain, not only from the content of the statement which he gave, but from the court reports which were before the learned President, that the appellant's co‑operation reflected genuine remorse and contrition. Although he neither desisted nor walked away during the offending, as he should have, it is plain that he dissociated himself from his co‑offenders and regretted his conduct very promptly thereafter.
The degree of practical assistance is significant, in this sense. While it is true that the victim's statement is very detailed and that it seems that he is reasonably clear in his own mind about who did what, and when, there would be potential difficulties in a successful prosecution if it involved only the word of the victim against that of all of the other offenders. It is not easy, where there is a lengthy series of events over a period of time, in which a number of offenders engage, to sheet home responsibility to each individual offender, and this is particularly so where the sole witness is a relatively young child. Although it would appear to us that a successful prosecution, even with just the word of the victim, would be very likely, it cannot be assumed that success would be inevitable, and it certainly cannot be assumed that it would be possible for the prosecution to prove the full range and seriousness of the conduct which, in fact, took place. Further, the ordeal of a trial in which he, alone, gave evidence against all offenders, would have the potential to re‑victimise the child victim.
Finally, looking to the potential effect of his co‑operation upon the appellant, the effect is not likely to be serious in the same way as it would be, for example, for an informer who was prepared to give evidence against violent and dangerous drug dealers. However, the appellant has indicated a willingness to give evidence against a group of people who have already demonstrated a propensity to behave in a concerted and violent way, and some of whom have already demonstrated, in their treatment of the victim on the day following the offences, a disposition to punish those who inform against them. We understand that the appellant's family is currently living some distance away from the area where the offenders reside, but that was not the case at the time at which he first made admissions. Unless he remains a very considerable distance away, there is a distinct likelihood, as he grows older, that he will encounter his co‑offenders at venues such as concerts and nightclubs and other places in which young people congregate with a relative lack of supervision.

Detention - adverse effects upon future character

Finally, we should draw attention to one further matter which the learned President did not expressly mention in his sentencing remarks. We do not suggest that he overlooked it, since it is one of the reasons why a sentence of detention is a last resort, particularly in the case of a youthful offender. However, it is of particular significance in the present case, and should, in our view therefore, be specifically mentioned.
One of the reasons why it is desirable to avoid, wherever possible, the detention of a youthful first offender of otherwise good character, is that adverse effect which detention may potentially have on the character of that offender, to the future detriment of the community as a whole. More bluntly, it is accepted that young people are impressionable. A young person sentenced to detention is necessarily going to be mixing with numerous other young people who have committed offences, many of whom may have committed a whole string of offences, and/or very serious offences, and may be of thoroughly bad character. At a time in their lives when they are particularly vulnerable to peer influences, one can readily see the need to ensure that, so far as possible, those who are not set on a criminal course of conduct are not exposed to such influences.
In the case of the present appellant, while he was an active participant and himself initiated a number of the wrongful acts against the victim, he was not the original initiator of the course of persecution. It does appear that peer pressure, or at the least a desire for the approval of his peers, played a significant role in his behaviour; so much is apparent from the court reports, in particular. However, with the support of his parents and appropriate juvenile authorities, he appears to have quickly and firmly dissociated himself from that very unfortunate peer influence. Detention potentially has the adverse effect of bringing him into contact with those who may not disapprove of his offending. As the court reports suggested, it may be "counter‑therapeutic".

Conclusion

Taking all of the matters to which we have referred together, we would summarise the position in this way. The learned President was right, in our view, to form the view that the seriousness of the conduct engaged in by these offenders was such that a sentence of detention was the only appropriate disposition, if the only significant matters of mitigation had been the extreme youth of the offender and his lack of previous convictions. However, when there is added into that mix a very prompt plea of guilty, genuine remorse, and the provision of potentially significant practical assistance to the authorities at some possible cost to himself, it seems to us that the balance is shifted sufficiently for the view to be reached that a sentence of detention is not inevitable. If that is so, then, having regard to the fact that such a sentence is one of last resort, it was an error to impose such a sentence.
For those reasons, we would allow the appeal, set aside the sentence imposed by the learned President and in lieu thereof we would impose an intensive youth supervision order, with a sentence of detention, pursuant to s 101 of the Young Offenders Act 1994 (WA). The sentence of detention which we would have imposed would have been that initially indicated by the learned President in his sentencing remarks; that is, in respect of the deprivation of liberty one of 11 months' detention, in respect of the threats to harm, 4 months, and in respect of the unlawful assault causing bodily harm, 6 months, with each of those imposed concurrently, so that the total effective sentence would have been 11 months. We would not reduce the 11‑month term to recognise the appellant's co‑operation with the authorities, since that co‑operation is sufficiently marked by the imposition of the intensive youth supervision order in lieu of immediate detention. However, because of the time the appellant has already spent in detention, we would reduce the period of detention to 9 months.
So far as the intensive youth supervision order is concerned, we would have imposed a requirement to perform unpaid community work. As the appellant has already served a period of approximately 2 months in detention, we omit that condition. Instead, we would impose, as conditions of the intensive youth supervision order, a requirement that the

appellant attend a series of up to 12 psychological or other counselling sessions as directed by a juvenile justice officer. We would also impose a supervision condition requiring the appellant to report to a juvenile justice officer and to submit to such supervision and contact as he or she may direct.

MILLER JA: The appellant pleaded guilty in the Children's Court at Perth to three offences. They were deprivation of liberty (Criminal Code s 333), threatening to harm a person (Criminal Code s 338(a)) and assault occasioning bodily harm (Criminal Code s 317(1). The charge of threatening to harm a person was substituted for an original complaint of threatening to unlawfully kill.
The appellant's pleas of guilty were dealt with in the Children's Court by the president, who heard detailed submissions on 24 September and 22 October 2007. He sentenced the appellant on 24 October to terms of detention of 8 months, 4 months and 6 months respectively (Young Offenders Act 1994 (WA), (the Act) s 118(1)(b)). Each of the terms of detention was ordered to be served concurrently, so that the effective term of detention was one of 8 months. The detention was immediate detention, taking effect from 24 October 2007. The president made the appellant eligible for supervised release after serving one‑half of the term (the Act s 121(1)).

Appeal

Leave to appeal the sentences imposed by the president was granted by Wheeler JA on 30 November 2007 on two grounds. The second of these grounds was abandoned at the hearing of the appeal, leaving the single ground as follows:
Ground 1
1.The sentence imposed was manifestly excessive for the reason that it had been appropriate for the sentencing judge to impose a sentence other than one of immediate detention, with the consequence that he was required to impose a sentence of such kind; s 120 of the Young Offenders Act 1994 (WA).

The facts

The facts were related to the president by the prosecutor on 24 September 2007. Those facts were accepted in full by counsel for the appellant. They were summarised by the president in his sentencing comments and no issue has been drawn in the grounds of appeal with that summary. What follows is an analysis of the relevant facts from the

prosecutor's statement of facts, the statements of the complainant and the appellant and the president's summation of the facts.

The events in question occurred on 27 June 2007. The complainant arrived at Eastern Hills High School that day to attend school. He was almost 13 years of age and of small stature. He was a student in year eight.
When the complainant arrived at school, he was wearing a school uniform and carrying a grey backpack. It was his intention to go to the school library. As he got near the library, he was approached by CD, who grabbed him by the jumper on the right shoulder and dragged him into the boys' toilet. This was about 40 metres away from the library and next to the school gym. Inside the toilet block, CD let go of the complainant, but stood blocking the toilet door. He told the complainant that he was going to take him to the bush and if he did not obey orders, 'they' would hit him. He was then grabbed by the jumper again and dragged out of the toilets. Outside, CD told some other students he was going to 'wag' school that day. CB arrived and said that he would be wagging school. BP, JG and the appellant then arrived on the school bus. They came up to the complainant and CD. The appellant said to CD: 'Is this the person we are going to hurt today?'
CD had let go of the complainant's jumper, so the complainant began to run towards the tennis courts. He was caught up to by the five offenders, and BP grabbed him by the shoulder, holding onto his jumper. They ran across the tennis courts, taking him with them. They went through a gate into bushland. There, they remained until about halfway through the first tutorial period. This tutorial had started, because the complainant had heard the siren sound for its commencement.
CD and JG then began to run through the bush, forcing the complainant to run with them. They ran towards Elliott Road and hid in the bush at the roadside. The appellant, CB and BP caught up with them. A student walked past and was spoken to. They then ran across Elliott Road, waited for some cars to pass and then crossed back over Elliott Road, onto a bridle trail. They went down this trail towards Lion Street. They crossed that street and into the bridle trail on the opposite side, where they continued walking for about 100 metres, before turning towards a ditch. This had a makeshift hut in it. It was built from branches and trees. The complainant described its location as being on Keane Street 'on the opposite side to the Deli and a bit further towards Mount Helena'.
At the hut, four of the offenders, including the appellant, went in and put on other clothes over their school uniforms. Eventually, they all changed. They then walked the complainant to a pipe about 40 metres away. He was told to wait there. The offenders variously went to a nearby store and bought food and drink. They then returned to the hut, where an axe was used to chop down some trees to extend the hut. A ditch was dug. The complainant was threatened that if he ran away, they would get him and hit him. He said in a statement that he was really scared.
When the complainant returned to the hut, he grabbed his school bag and started to walk back to school. However, as he got near the school, BP and the appellant caught up with him, grabbed him by both arms and took him back to the hut. When he was taken back, he was subjected to considerable violence, humiliation and degradation. He was first given 'wedgies'. He was grabbed by his jocks from behind and they were pulled up so that it hurt. Three of the offenders, including the appellant, took it in turns to give the complainant wedgies. The appellant did it twice. The complainant was visibly scared. He said in his statement that the wedgies hurt him a lot. He had pain around his behind and around the testicles. He was then taken out by three of the offenders, including the appellant, and hung on a log by his jocks. This caused him more pain. He was lifted off the log by the offenders (including the appellant) and he went back into the hut. He did not try to run away again, because he was scared and confused.
One of the offenders (not the appellant) told the others to leave the appellant alone because he had had enough. However, he was not left alone. Two of the offenders (not including the appellant) put a Y‑shaped branch against his neck and held him against the wall. Whilst this was taking place, the appellant urinated in the complainant's lunch box. The appellant then whipped the complainant across the legs with a thorny branch, causing his legs to bleed. The complainant was told to kiss one of the offenders, which he did. He was then slapped across the face. One of the offenders told the appellant to go and dig a grave for the complainant and the appellant left to do so.
The complainant was then taken out by force. When he went outside, he saw the appellant digging a grave‑like hole about five to seven metres from the hut. CB told the complainant to get into the grave and BP pushed him into it. The complainant sat in the grave. He was visibly distressed. He tried to get out, but BP pushed him in again, and the appellant began shovelling sand over the complainant's legs. The complainant was able to get out and he tried to run away, but BP grabbed him. BP went into the hut and came out with an axe. He told the complainant to look at the road and he would be hit on the head with the axe. The complainant refused to do so. He was very scared. He was scared that he would be hit with the axe. The complainant ran back into the hut and grabbed his bag. He ran out of the hut and began running towards the school. As he ran, he was hit with rocks and honky nuts all over his body, but mainly to his head. He eventually slowed to a walk and then heard others running behind him. He looked around and saw the offenders. They all grabbed him and told him that if he 'flinched', they would punch him. He did flinch twice and he was punched five or six times on the right arm. He was then made to crawl on all fours like a dog on the bridle path. He was told to jump into thorn bushes. He was made to wave his arms around like a chicken. He was told at the bus stop to pull his trousers down and 'poo on the road', but he refused. He was then told to sprint, so he sprinted down the bridle trail toward Chidlow. He was chased and rocks were thrown at him, a couple of which hit him on the head and the back. He was caught again and told to go, but if he tried to get on the school bus, he would have rocks thrown at him.
The complainant eventually made his way home. He began walking home at about 2.45 pm and got home at around 4 pm, where he sat and waited for his mother. When his mother arrived, he told her what had happened.
The president reviewed these facts and identified what acts had been perpetrated by the appellant. He found that the appellant was not the prime mover of the group, but that he was a very active participant. He described the appellant's participation as:
[W]hat you did in the course of this prolonged event included helping to suspend [the complainant] by his jocks from the stump, hitting him with the branch a couple of times, urinating in his lunch box and throwing it at him, [the complainant] has run off and you have caught him and taken him back so he couldn't make good his attempt to escape, you have dug the grave, as I have said, on being told to do so and I bear that in mind and then when [the complainant] was in the grave, you have shovelled sand onto his legs. You also punched him in the arm. You have thrown rocks and honky nuts at him and you threatened him not to tell anyone or you would smash him.
So all of those things have happened at various points in time during the course of the incident and at various times you have known that [the complainant] was in pain. You have observed him crying. You have noted that he was frightened and obviously very upset. You have noted that he has wet his own pants. So all of those things were at various points in time and some of them in combination at various points in time all known to you, but regrettably you persisted with others in the group over a prolonged period of time. However long it was, it was clearly a prolonged period of time doing all of those things that I have spoken about to [the complainant].

The president's sentencing comments

The president began by explaining to the appellant the basic principles of sentencing young persons in the Children's Court. He pointed out that those principles included, in particular, rehabilitation, especially rehabilitation of a person as young as the appellant, who was 13 years of age at the time of sentencing (born 20 July 1994) and who had been just short of 13 years of age at the time of the offences.
The president pointed out that there was a range of sentences that could be imposed in the Children's Court and that a sentence of immediate detention was one of last resort, and would not be reached unless he had determined that each and every other option available was inappropriate and immediate detention was the only appropriate sentence.
The president took particular note of the appellant's age and gave consideration to his capacity to know that what he was doing at the time of the commission of the offences was wrong. In this respect, he concluded that the appellant did know that what he was doing was wrong, that what he did was deliberate and that he knew the effects of what he was doing to the complainant. He said:
It was there to be seen and you observed it all and yet you continued on and at the very end telling [the complainant] not to tell anybody because if he did, you would smash him is a clear indication that you knew that what you did was plainly wrong and that you would get into serious trouble if he told anybody.
The president concluded that the behaviour of the appellant, along with the other offenders, was such as to frighten, humiliate and degrade the complainant. It was bullying and totally unacceptable conduct.
The president made reference to a victim impact statement of the complainant which revealed that he had been seriously affected by what had happened to him. It was, however, to the complainant's credit that he seemed 'to be bravely trying to put the incident behind him and move on'.
The president stated that whilst the appellant's behaviour fell into what might be generally described as bullying behaviour, it could more properly be described as 'prolonged torture of the victim'. He added:
Your behaviour was extremely callous and sadistic. Your actions over a considerable period of time showed total disregard to the physical and emotional well-being of the victim, that is, [the complainant].
[The appellant], I think that all fair and reasonably‑minded members of our community when even taking into account your extreme youth would be shocked and appalled at your behaviour. It is essential for the good order of our community and for the well‑being of everyone in our community, everyone of all ages, that we have proper standards of behaviour towards each other based on caring and mutual respect. It is essential that those proper standards are made clear and maintained.
The president then proceeded to apply the sentencing principles applicable to young offenders pursuant to the provisions of the Act. He gave substantial weight to the youth of the appellant and to the need for his rehabilitation. He took into account deterrence, concluding that personal deterrence did not need to be given a great deal of weight, but that general deterrence needed to be given 'a great amount of weight in the overall consideration'.
The president appreciated, however, that the need for deterrence had to be carefully weighed with other factors. They included the appellant's plea of guilty and all of the matters personal to him, including his rehabilitation. It was stressed that a sentence of immediate detention would be a sentence of last resort. The appellant's remorse was taken into account, as was his co‑operation with police and his preparedness to give evidence if called upon. Youth was described as 'extreme youth' because the appellant was 'just shy of [his] 13th birthday' at the time of the offences. This being so, the principles contained within the Act had to be taken into account, including, in particular, that of rehabilitation. In this respect, the president thought that there was good reason to think that there were positive prospects for the appellant's rehabilitation within the community. He had supportive parents and it was planned that he would, in the following year, go to a different school.
The president noted that the appellant had no prior convictions and stated that this was a very favourable factor. He accepted that the behaviour of the appellant in the commission of the offences was out of character. He noted the contents of a psychological report, including reference to the problem which the appellant had experienced in mixing with negative peers. He then summarised the position by saying:
Can I summarise it all by saying this: putting everything together and carefully considering it all, in my view the combined weight of the extreme seriousness of the factual circumstances and the need for deterrence and, in particular, general deterrence outweighs the combined weight of everything else that I have mentioned, including in particular your extreme youth and the need for great weight to be given to rehabilitation such that the only sentence appropriate is the sentence of last resort, namely, immediate detention.
The president then turned to the length of the period of detention. He appreciated that time for a young person passes much slower than it does for an older person and factored this into the sentencing process.
Sentences of 8 months for deprivation of liberty, 4 months for threatening to harm and 6 months for assault occasioning bodily harm were then imposed. They were ordered to be served concurrently for the following reasons:
... bearing in mind those other things that I have spoken about, in particular that immediate detention should be for the shortest necessary time and have regard to your sense of time and also bearing in mind that each and every one of these three offences arise out of the one incident, all of those terms should be ordered to be served concurrently.
As I have pointed out, the appellant was made eligible for supervised release after serving one‑half of the period.

Ground of appeal

The ground of appeal contends that the sentence imposed was manifestly excessive because a sentence other than one of immediate detention would have been appropriate. Reference to 'the sentence' means the effective sentence of 8 months' detention. The submission in support of this ground is that it is an important principle of juvenile justice that detaining a young person in custody for an offence should only be used as a last resort. This is, of course, clearly established. It is enunciated in s 7(h) of the Act, which is in the following terms:
(h)detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary.
It is reinforced in s 120(1) of the Act, which is as follows:
120.Custodial sentence is sentence of last resort
(1)The court cannot impose any custodial sentence unless it is satisfied that there is no other appropriate way for it to dispose of the matter.
See also WO (a child) v The State of Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352, [6].
In B (a child) v The Queen (1995) 82 A Crim R 234, the court (Rowland, Walsh and Owen JJ) made reference at 243 et seq to the general principles of juvenile justice and to a number of decided cases which stressed the importance of rehabilitation of young offenders, particularly those who were youthful first offenders. The court said:
The main objective of the criminal justice system is to achieve crime prevention for the protection of the public. That, too, is the main objective of the Act. It seems to us that the sentencing principles reflected in the Act are based on the same underlying values and objective as the judicial pronouncements that we have set out above. We can see no reason to doubt the continued relevance and application of the general statements reflected in the dicta. The relevance and importance of rehabilitation as one of the criteria can easily be misunderstood. It is fallacious to regard the rehabilitation of an individual offender as a consideration separate and apart from, and somehow inimical to, the protection of the public. The two things are intrinsically connected. The criminal justice system aims to rehabilitate offenders (particular young offenders) because rehabilitation removes the danger to the public from one of its (previously) errant members. (244)
The question in this appeal is whether the sentence of immediate detention was manifestly excessive in the circumstances of the case. It is not suggested that the president failed to take into account any relevant factor, or took into account extraneous factors. It is simply argued that the appellant's extreme youth, his lack of any prior convictions, his early plea of guilty and remorse, his offer to assist the prosecution and his family support all pointed to a disposition other than a sentence of immediate detention.
The principles and considerations to be applied to the sentencing of young offenders are set out in s 46 of the Act. The relevant portion of that section is in the following terms:
46.Principles and considerations to be applied to young offenders
(1)When dealing with a young person who has been found guilty of an offence, the court, in disposing of the matter, is to apply -
(a)the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b)the general principles of juvenile justice.
(2)The court is to consider any information about the offender or the offence that may assist the court to decide how to dispose of the matter, and in particular -
(a)the nature and seriousness of the offence;
(b)any history of offences previously committed by the offender;
(c)the cultural background of the offender;
(d)any order previously made by a court when disposing of a charge of an offence that still applies to the offender, and any further order that is liable to be imposed if the offender does not comply with the terms of any such order; and
(e)the extent, if any, to which any person was affected as a victim of the offence.
(3)The court is to dispose of the matter in a way that is in proportion to the seriousness of the offence and is consistent with the treatment of other young persons who commit offences.
(4)In deciding how to dispose of the matter, which includes deciding the appropriate degree of severity to be used, the court is to consider how young the offender is as a mitigating factor.
(5)The court is to have regard to the fact that the rehabilitation of an offender is facilitated by -
(a)the participation of the offender's family; and
(b)giving the offender opportunities to engage in educational programmes and in employment,
but the absence of such participation or opportunities is not to result in the offender being dealt with more severely for the offence.
(5a)…
(6)…
There can be no doubt that the offences committed by the appellant were extremely serious. They were not simply offences of bullying, but they can properly be described as events of torture for the complainant. They proceeded over the best part of the school day and involved a multiplicity of different attacks upon the complainant.

On the appellant's own statement to police, the appellant participated in giving the complainant a wedgie on two occasions. He seized the complainant's lunch box out of his bag and grabbed his sandwich. He wiped half of the sandwich across the complainant's cheek. He then took the complainant's lunch box and told everybody that he was going to pee in it. They laughed. He took the lunch box outside and urinated in it. He then walked back inside and threw the box at the complainant, hitting him in the chest and causing urine to splash over him. When the complainant tried to run away, the appellant was one of the offenders who grabbed him and held him down. The appellant then went back to the location of the hut and took a shovel, with which he dug a small grave, about a metre long and one and a half metres wide. It was only a shallow grave, estimated by the appellant to be about eight centimetres deep, but the complainant was pushed into it and when he was, the appellant shovelled dirt onto his legs. The appellant participated in the flinching game in which the complainant was punched several times. The appellant was responsible for punching him at least once. When the complainant eventually ran off, the appellant was one of the offenders who threw honky nuts at him. A couple of the nuts hit the complainant on the head.
This account of the role played by the appellant makes it clear that he was very much involved in humiliating, degrading and terrorising the complainant. His conduct was completely inexcusable, and it was initiated by him. It could not be suggested that he was compelled to do what he did simply because there were others who were attacking the complainant.
The effect on the complainant was substantial. His victim impact statement of 19 September 2007 indicates that, after the events, he had problems sleeping at night and found that it took a long time for him to get to sleep. He did not want to leave his bedroom because he was scared of people asking him questions. He did not want to engage in activities, such as football. He wanted to stay at home and 'just lay down and hide and not think about it'. He felt unsafe in public, and thought that people would look at him.
Fortunately, the complainant seems to be a fairly resilient boy, and there is no evidence of any long‑term damage to him as a consequence of the events in question. Nevertheless, the seriousness of what happened to him cannot be understated. It was not a case of bullying, but (as the president described it) a case of torture. It was a day of torture. The complainant was terrorised throughout a period of several hours and treated in an appalling manner.
The conduct in which the appellant and others participated required proper punishment. Deterrence was of the utmost importance. Other young people need to be deterred from behaving towards their contemporaries in the way the appellant and his friends did to the complainant. General deterrence is an essential feature of punishment in this case, because the complainant, the appellant and the other offenders all came from the same school and the conduct engaged in by the appellant and others is public knowledge. It is conduct that cannot be tolerated and it calls for a sentence which incorporates a substantial element of deterrence.
I have mentioned that the appellant has no prior record of offences. He is very young, and his extreme youth is clearly a mitigating factor. He does have the support of his family, but, disturbingly, he appears to lack proper insight into what he did to the complainant. Although he pleaded guilty to the offences and took responsibility for what he did to the complainant, he lacks proper insight into his behaviour. Ms Tina Marley, principal clinical psychologist with the Juvenile Psychological Services at Midland Community Justice Services made the following observations in a report to the president, dated 18 October 2007:
[The appellant] admitted to the current offences and took full responsibility for engaging in humiliating and aggressive behaviours against his 13 year old male victim, who was in some of his classes at school. He did not appear to either minimise his role or externalise responsibility. This, in part, seemed related to the fact that he does not appear to have processed the events of the day, nor has he appeared to have attempted to conceptualise why it had happened. He further still does not appear to understand the seriousness of his offending behaviour. Whilst struggling to provide some insights into the events on the day, it appears that the aggressive behaviours escalated and were all designed to frighten, humiliate and degrade the victim. [The appellant] has some understanding that the victim was scared (for example, when the victim urinated himself a second time) and admitted that it was no longer fun around the point when he punched the boy and he was digging the grave. But this did not result in him attempting to cease the alleged collective aggression towards the victim or refuse to continue to be involved. It appears that [the appellants] engagement in these offences was maintained by peer influence, emotional detachment and objectification of the victim (this objectification appears to have commenced even before the day in question) and some malleability or passivity on [the appellant's] part.
At the hearing of the appeal, the court was referred to a number of decided cases which involved juvenile offenders. Some of these were from other Australian States, where there is comparable legislation. In O,C v Police [2007] SASC 346, a sentence of 4 months' detention suspended upon the appellant entering into an obligation to be of good behaviour for 18 months was substituted for a sentence of 6 months' detention. In R v F; R v P [1997] QCA 098, one of the appellants had sentences of detention set aside and an order for probation substituted. In R v SG [2007] NSWSC 511, the offender was put on a good behaviour bond for a period of 3 years.
The facts in each case were different from those which are here before the court. O,C involved offences of aggravated robbery and aggravated common assault in circumstances where the offender was one of a group which attacked a 15‑year‑old who was walking along a suburban street. The appellant admitted to participation in the attack and to having struck the victim with his studded belt. In R v SC, the offender was the driver of a vehicle, the occupants of which attacked a man in a suburban street. One of them punched the man and caused him to fall to the ground, where he struck his head, fractured his skull and died. Only in R v F; R v P was there some similarity to the present case. There, two young female offenders attacked two 15‑year‑old complainants. They variously struck them in the face, kicked them, pulled one complainant's hair and generally terrorised them over a period of approximately 30 minutes.
These cases depend very much upon their own facts and no general principle can be drawn from them, other than the principle which is expressed in s 7(h) and s 120(1) of the Act; namely, that the court cannot impose a custodial sentence unless it is satisfied that there is no other appropriate way for it to dispose of the matter. A sentence of immediate detention is truly a sentence of last resort. That much is clear from the statute and from the decided cases. The principle has been repeatedly stated in a number of cases in this court. In The State of Western Australia v A child [2007] WASCA 115; (2007) 172 A Crim R 15, the court (Steytler P, McLure JA and Miller AJA) summarised it in this way:
In this State the special rules relating to the sentencing of children are contained in the Young Offenders Act 1994 (WA) ('the Act'). The principles and considerations to be applied to the sentencing of young offenders are contained in s 7, s 47 and s 120 of the Act. It is unnecessary to detail them here save to note that detaining a young person in custody for an offence must only be used as a last resort and, if required, is only to be for as short a time as is necessary (s 7(h)). The Act places significant emphasis on the sentencing objective of rehabilitation: WO (a child) v Western Australia (2005) 153 A Crim R 352 at 362. As stated in that case, underlying the emphasis on rehabilitation is the long established understanding that the community is best protected by determined efforts to effect the rehabilitation of young offenders. Although retribution, punishment and general deterrence are also relevant sentencing objectives under the Act, they are ordinarily given significantly reduced weight particularly when the offender is still a child. [16]
Although the appellant in this case was very young at the time of the offences, and although he has a number of mitigating factors in his favour (particularly his plea of guilty and offer to co‑operate by giving evidence), it is not the case that juvenile offenders in the position of the appellant can never receive sentences of detention. This was made clear in F (a child) v The State of Western Australia [2004] WASCA 193 where Wheeler J said (Templeman and Miller JJ concurring):
Accepting that the appropriate sentencing principles are those referred to by the applicant's counsel, nevertheless, the result does not follow that juvenile offenders - even those with no previous record and good personal circumstances - should never receive custodial sentences. Plainly, as with adult offenders, there is a need to have regard to the circumstances of the offence as well as the circumstances of the offender. These considerations are weighed differently in respect of juvenile offenders, but regard must be had to each. [14]
In my opinion, the seriousness of the offences committed by the appellant, coupled with the effect upon the complainant, were such as to necessitate that a sentence of immediate detention should be imposed. There was, in my opinion, no other disposition which was reasonably open. That being so, I do not consider that the sentence of 8 months' immediate detention was manifestly excessive in the circumstances of the case and I would dismiss the appeal.