Abdul v The Queen
[2020] WASCA 34
•24 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ABDUL -v- THE QUEEN [2020] WASCA 34
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 16 MARCH 2020
DELIVERED : 16 MARCH 2020
PUBLISHED : 24 MARCH 2020
FILE NO/S: CACR 84 of 2019
BETWEEN: RAYAN ABDUL
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 404 of 2011
Catchwords:
Criminal law - Jurisdiction - Whether the appellant was aged under 18 years at the time of allegedly committing an offence - Whether the District Court or the Children's Court had jurisdiction to hear and determine the charge of the offence - Where appellant was convicted in the District Court on his plea of guilty of an offence against s 232A of the Migration Act 1958 (Cth) - Appellant sentenced to the mandatory minimum penalty, for an adult, of 5 years' imprisonment with a minimum non-parole period of 3 years - Referral of matter by Attorney General on appellant's petition - Whether conviction and sentence of appellant occasioned a miscarriage of justice in that the District Court did not have jurisdiction because the appellant was under 18 years of age at the time of the offending - Whether this court should set aside the judgment of conviction and enter a judgment of acquittal without a trial
Legislation:
Criminal Procedure Act 2004 (WA), s 126
Judiciary Act 1903 (Cth), s 68(2)
Migration Act 1958 (Cth), s 232A, s 233C
Sentencing Act 1995 (WA), s 140(1)(a)
Result:
Appeal allowed
Judgment of conviction set aside and judgment of acquittal substituted
Category: B
Representation:
Counsel:
| Appellant | : | L G De Ferrari SC |
| Respondent | : | D W L Renton |
Solicitors:
| Appellant | : | Ken Cush & Associates |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505
REASONS OF THE COURT:
We made the following orders at the hearing of this appeal, with reasons to be published at a later date:
(1)Leave to appeal is granted, if leave is required.
(2)The application in an appeal filed on 29 October 2019 is granted.
(3)The appeal is allowed.
(4)The judgment of conviction entered against the appellant in respect of the charge in indictment IND 404 of 2011 is set aside.
(5)A judgment of acquittal is entered in respect of the charge.
These are our reasons for making those orders.
Factual and procedural background
Circumstances of offending
On 29 December 2009, near Ashmore Reef, an Australian customs vessel intercepted a wooden-hulled fishing vessel which they designated SIEV 90. On board the vessel were 48 passengers of Afghan origin who were not Australian citizens and who did not hold visas for entry into Australia. The appellant was an Indonesian crew member of the vessel. He was one of the crew members responsible for maintaining and refuelling the engine, pumping out water, and cooking for the passengers.
The appellant was born in the village of Oelua on the Indonesian island of Rote, which is located to the south-west of Timor. He had worked as a fisherman in that village, before travelling to Makassar, in South Sulawesi, in search of work. There he had been engaged to crew the vessel and take passengers to Ashmore Reef. The Afghan passengers had boarded the vessel at night from a beach surrounded by jungle at a location near Makassar.
Initial evidence of the appellant's age
At first, the appellant claimed that he was born on 17 April 1997, which would have made him 12 years old at the time of the offence. On 21 January 2010, an X-ray was taken of the appellant's wrist, which showed bone development which was incongruous with his stated age. On 22 January 2010, a report of Dr Glenn Drogemuller, a radiologist at Royal Darwin Hospital, indicated that the appellant's skeleton was mature and:[1]
According to the male standards of Greulich and Pyle the skeletal age is 19 years or greater.
[1] AB 330.
When interviewed by agents of the Australian Federal Police on 17 March 2010, the appellant said that he was born on 7 April 1997 (as opposed to 17 April 1997). He told officers, through an interpreter, that:[2]
I know that that is my age because that was read when my father died.
The appellant is charged under s 232A of the Migration Act
[2] EROI ts 21 (AB 148).
Also on 17 March 2010, the appellant was charged by prosecution notice in the Magistrates Court of Western Australia with an offence against s 232A of the Migration Act 1958 (Cth).
Subject to presently immaterial exceptions, s 42(1) of that Act provided that 'a non‑citizen must not travel to Australia without a visa that is in effect'. Section 232A relevantly created an offence where a person facilitated the bringing or coming to Australia of a group of 5 or more people to whom s 42(1) applied, and did so reckless as to whether the people had a lawful right to come to Australia. The maximum penalty for that offence was imprisonment for 20 years or 2000 penalty units or both.
Section 233C of the Migration Act relevantly provided for a mandatory minimum sentence of 5 years' imprisonment with a non‑parole period of 3 years for an offence against s 232A:
unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.
Proceedings in the Magistrates Court
It appears that, on 29 July 2010, the appellant entered a plea of no jurisdiction in the Magistrates Court.[3] The basis of the plea was that, as the appellant was under 18 years of age at the date of the alleged offence, the Children's Court of Western Australia had exclusive jurisdiction to deal with the charge. The question of the Magistrates Court's jurisdiction was tried before Magistrate Calder on 16 November 2010. At that time, Mr SF Rafferty appeared for the appellant.
[3] Magistrates Court ts 3 (AB 39).
At that hearing, the prosecution called Dr Vincent Hock Seng Low, a consultant radiologist at Sir Charles Gairdner Hospital in Nedlands, who had reviewed the X-ray of the appellant's left wrist. Dr Low's opinion was summarised in a report of 19 October 2010:[4]
As background information, the bones of the human skeletal develop by a process of fusion of a number of smaller components known as growth centres. Where they fuse as the bones mature are known as growth plates. Changes are most pronounced across the years of puberty and this has been well studied and documented into reference books. The standard reference for the purpose of examination of bones to determine the age of a subject is 'Radiographic Atlas of Skeletal Development of the Hand and Wrist' by WW Greulich and SI Pyle. Across the pubescent years, as the subject matures, the various growth centres fuse at their growth plates in quite well defined timelines. In males, skeletal maturity at the hand is reached at approximately 19 years of age. This means that at this point in time, all the growth plates have fused.
Examination of the bones of the hand of [the appellant] as derived from the radiograph taken reveals this appearance of skeletal maturity. On average this is reached at 19 years. Therefore it is a reasonable interpretation that [the appellant] is 19 years of age or older.
[4] Magistrates Court exhibit 1 (AB 332).
The effect of Dr Low's evidence before the magistrate was that the probability of the appellant being over the age of 18 in December 2009 was 24 - 25%.[5] While his evidence was challenged in various respects by Mr Rafferty in cross-examination, Dr Low maintained this view. Dr Low was the only witness called by either party in relation to the jurisdictional issue in the Magistrates Court.
[5] Magistrates Court ts 26, 38 (AB 62, 74).
On 3 December 2010, Magistrate Calder delivered reasons in which he concluded, based on Dr Low's evidence, that he was satisfied on the balance of probabilities that the appellant was over the age of 18 years on the date of the alleged offence. His Honour was therefore satisfied that the Magistrates Court had jurisdiction in the matter.
Subsequently, the appellant pleaded guilty to the offence in the Magistrates Court and was committed to the District Court of Western Australia for sentence.
Pre-sentencing proceedings in the District Court
An indictment charging the appellant with an offence against s 232A of the Migration Act was filed in the District Court on 8 March 2011.
On 25 March 2011, the appellant appeared before Martino CJDC. Mr Rafferty indicated that, as a matter of mitigation, he would raise that the appellant was under 18 years of age at the time of the offence. Following discussion, the Chief Judge listed the matter to determine whether the appellant was prevented from claiming that he was under the age of 18 at the time of the relevant offence.
That issue was determined by Wisbey DCJ in a written decision delivered on 21 June 2011.[6] His Honour ruled that the appellant could not plead guilty to the offence (which would involve accepting that the District Court had jurisdiction) but contend that he was under 18 so as to avoid the application of the mandatory minimum penalty. In doing so, his Honour said:
If the [appellant] pleads guilty when arraigned, it will amount to an acknowledgement of the jurisdiction of the court, and it will not be open to him then to assert that he was under the age of 18 years at the time of the commission of the offence. If he was, this court would not have the authority to enter a judgment of conviction because s 19 of the Children's Court of Western Australia Act 1988 provides that the Children's Court has exclusive jurisdiction to hear and determine a complaint of an offence alleged to have been committed by a child. The capacity to seek to establish on the balance of probabilities pursuant to s 233C that the accused was aged under 18 years when the offence was committed, is conditional on him being convicted. A conviction can only be entered if there is jurisdiction. [12]
[6] R v Abdul [2011] WADC 95.
Wisbey DCJ also held that the finding of Magistrate Calder that the Magistrates Court had jurisdiction did not foreclose the appellant from raising the question of whether the District Court had jurisdiction. Wisbey DCJ observed:
It is open to the [appellant], when arraigned, to plead that he was at the relevant time under the age of 18 years. If he so pleads and establishes that fact on the balance of probabilities, the burden in all the circumstances now being upon him, the court will be obliged to remit this matter to the Children's Court of Western Australia to be dealt with according to law. [19]
Sentencing proceedings in the District Court
The appellant's matter came before Staude DCJ on 10 November 2011. At that time, Mr Rafferty indicated that the appellant could be arraigned and a plea of guilty would be entered. Mr Rafferty said that the previous objection as to jurisdiction had to be withdrawn as he was not in a position to adduce positive evidence to establish, on the balance of probabilities, that the appellant was under 18 years old at the date of the alleged offence.[7] Mr Rafferty indicated:[8]
I'm not in a position to advance positive evidence. … We could have dealt with the testing issues in relation to what the Crown had undertaken … but I'm not in a position now where I can adduce any positive evidence as to his age. A number of steps have been taken to do that but unfortunately the result was that I couldn't reach a position where we would be able to satisfy the court on the balance of probabilities.
[7] District Court ts 40 - 41 (AB 295 - 296).
[8] District Court ts 40 (AB 295).
In indicating this position, Mr Rafferty noted Dr Low's evidence in the Magistrates Court. Mr Rafferty said that he thought that evidence fell away given recent decisions of the District Court in other matters as to the appropriateness of adopting the 'Greulich and Pyle method'. Mr Rafferty said:[9]
It was never designed to do that and we were going to adduce evidence from both Professor Cole and Dr Christie in relation to the appropriateness of that particular testing, but that's now all fallen by the way …
[9] District Court ts 42 (AB 297).
The appellant was then arraigned on the charge and pleaded guilty. A judgment of conviction was entered.[10]
[10] District Court ts 42 - 43 (AB 297 - 298).
In the course of his plea in mitigation, Mr Rafferty made the following submissions about a reference in the statement of material facts that the appellant's age had been ascertained by X-ray:[11]
Well, unfortunately, even the federal Attorney General has recognised that he's got a problem as far as the use of wrist X-rays to determine age as an issue and that there has been steps taken to use dental X-rays now and also for AFP officers to conduct inquiries in Indonesia itself - which, obviously, would be difficult because it's another country but on my understanding of a media release issued a couple of months ago that is - it has been recognised there's problems with the Greulich and Pyle standard and other steps are now taken …
[11] District Court ts 46 (AB 301).
When Staude DCJ expressed puzzlement as to why there was not some means to objectively verify dates of birth, Mr Rafferty said:[12]
I was provided with an inadmissible document signed by a village elder - that was never going to hold any weight in this court - signed by his mother, who I could never get hold of. I'm not criticising this, it's just the situation that I was in.
[12] District Court ts 47 (AB 302).
After hearing submissions, Staude DCJ sentenced the appellant to the minimum mandatory term of 5 years' imprisonment with a non‑parole period of 3 years. The sentence was backdated to 30 December 2009 to take account of time the appellant spent in custody.[13]
Post-conviction events
[13] District Court ts 56 (AB 311).
On 10 May 2012, the Attorney General of the Commonwealth directed that the appellant be released from prison on licence on 18 May 2012, pursuant to s 19AP(1) of the Crimes Act 1914 (Cth).[14]
[14] AB 462.
On 1 February 2019, the Acting Attorney General of the Commonwealth referred the whole case to this court as if it were an appeal against the appellant's conviction, pursuant to s 68(2) of the Judiciary Act 1903 (Cth) and s 140(1)(a) of the Sentencing Act 1995 (WA). The referral document was filed in this court on 7 June 2019.
On 29 October 2019, the appellant filed an application in an appeal seeking to adduce additional evidence in the appeal. Two principal classes of document are sought to be adduced as additional evidence. First, there are reports of Dr James Christie and Dr Timothy Cole, which dispute the accuracy of Dr Low's evidence. Secondly, there are documents which are relied on to establish the appellant's actual date of birth.
On 1 November 2019, the appellant filed his appellant's case on the referral. On 1 December 2019, Mazza JA referred both the application for leave to appeal on the grounds set out in the appellant's case, and the application in an appeal, to the hearing of the appeal.
On 21 November 2019, the Crown filed its respondent's answer, which conceded that the District Court 'erred in law' by entering a conviction when it lacked jurisdiction to do so, thereby giving rise to a miscarriage of justice. The Crown does not oppose the application to adduce additional evidence in an appeal. It concedes that the views of Dr Christie and Dr Cole are to be preferred to those of Dr Low. The Crown also concedes that it is open to this court to find, on the balance of probabilities, that the appellant was not 18 years or older at the time of the offence. The Crown accepts that the appeal should be allowed, the judgment of conviction set aside and a judgment of acquittal be entered.
Additional evidence
The additional evidence is relevant to the exercise of this court's function on the Attorney General's referral, and the Crown does not oppose its admission as additional evidence. It is appropriate that the documents identified in the application in an appeal be admitted as additional evidence on the referral.
Medical evidence
In a report addressed to Mr Rafferty dated 14 March 2011,[15] Dr Christie, a diagnostic radiologist, agreed with Dr Drogemuller that the stated chronological age of 7 April 1997 and the skeletal age disclosed by the wrist X-ray were incongruous. However, in his opinion, it was not possible from that examination to draw a conclusion as to whether the appellant was above or below 18 years of age at the time of X‑ray. He summarised his views in the following terms:
[15] AB 346 - 351.
1. Bone age is not used in clinical medicine as a sole [determinant] of maturity, but as one of a battery of tests and assessments which are combined to form an overall impression.
2. There is no data that allows conversion of skeletal age into chronological age, particularly in children of unknown health status. Any estimate based on this is a broad guess. The Greulich and Pyle data was not designed for, and has not been tested for, reverse use.
3. It has been shown that Asian late adolescent males may have advanced bone age compared with their chronological age. There is no data on many populations.
4. Use of bone age estimation is likely to be of some value in placing children or adolescents into broad age groups but cannot supply a precise value.
5. Use of this test in this manner to supply a precise value or precise range of values has no scientific validation.
6. There is significant external opinion that it is inappropriate to make decisions about chronological age solely on the basis of skeletal age.
7. [The appellant] has a mature skeletal age i.e. Greulich and Pyle standard 19 years. This is incongruous with a stated age of 13 years and [it] is unlikely, although not impossible, that he is 13.
8. It is not possible to distinguish on the basis of this test whether he is above 18 years or below 18 years in age. Use of this test in this manner has no scientific validation.
9. Dr Low's use of apparently precise percentage estimates of skeletal age, is not supported by scientific use of the data.
A short report of 2 July 2019 indicates that Dr Christie remained of that view.[16]
[16] AB 374.
A report of Dr Cole, Professor of Medical Statistics at University College, London, dated 14 October 2011,[17] also addressed Dr Low's report. Dr Cole expressed his conclusion in the following terms:[18]
[The appellant] has a mature x-ray. The chance of [him] having become skeletally mature before age 18 is 61%. The conclusion by Dr Low that he is probably over 18 is statistically unsound, and [arises] from a fundamental misunderstanding of the GP Atlas and the nature of skeletal maturity. A mature x-ray provides only weak evidence of a subject's likely age.
[17] AB 355 - 362.
[18] AB 360.
A short report of 9 July 2019 confirms that his opinion had not changed.[19]
[19] AB 376.
The above reports were not verified by affidavit. However, the Crown accepts that they should be received as evidence of the truth of their contents.[20] They should be received on the basis that the Crown consents to their reception, and does not seek to cross-examine the doctors.
Evidence of the appellant's age
[20] Appeal ts 26.
The appellant seeks to rely on three pieces of evidence in support of the proposition that he was born on 20 June 1992, and was therefore 17 years old at the date of the offence.
First, there is a 'certifying letter' signed by the principal of the Public Elementary School of Oeula, and dated 12 July 2018.[21] This letter certifies that the appellant, whose place and date of birth is 'Rote, Oelaba, 20 June 1992', was a student at the school 'yet he did not finish his education at (dropped out of) the said elementary school'.
[21] AB 445 - 446.
Secondly, there is a handwritten affidavit of Sitti Rudy affirmed at Oeula on 29 June 2018.[22] She deposes that the appellant is her youngest son, and was born in Oelua village on 20 June 1992. She says that the contents of a document she and her brother signed on 23 June 2011, relevantly indicating that the appellant was born on 20 June 1992, was correct so far as it related to the appellant. The latter document appears to be that to which Mr Rafferty referred in the transcript quoted at [23] above.
[22] AB 448 - 453.
Thirdly, there is an affidavit of Anwar Idris affirmed at Oelua on 30 June 2018.[23] He deposes that he is Sitti Rudy's brother and the appellant's uncle. He says that he is the 'Kepala Desa' of Oeula, whose role is to look after the administrative and cultural affairs of Oelua. He says that he believes the information in the document he and the appellant's mother signed on 23 June 2011 is correct. He says the document was compiled from his own knowledge and information provided by the appellant's mother. Mr Idris deposes:[24]
I live next door to my sister. I also lived next door to her when [the appellant] was born.
I was in Oelua when [the appellant] was born.
I have an independent memory of [the appellant's] birth. My first born son … was born on [a date in January 1993]. [The appellant] was born in the previous year, in the middle of that year.
[23] AB 455 - 460.
[24] AB 458.
While the affidavits of Ms Rudy and Mr Idris are in irregular form, the Crown does not oppose their admission as evidence of the truth of their contents or seek to challenge what is said in the affidavits by cross‑examination or otherwise.[25]
[25] Appeal ts 26.
General principles
The general principles governing the determination of this reference were considered by this court in Jasmin v The Queen.[26] Jasmin was a similar case to the present. Jasmin was also an Indonesian crew member of a fishing vessel, who was charged with an offence against s 232A of the Migration Act. He indicated a plea challenging the jurisdiction of the District Court to deal with the matter, and the issue was tried before a judge of the District Court. The judge found that the evidence of Dr Low, together with Jasmin's statements about his age and appearance, supported a finding, on the balance of probabilities, that Jasmin was over 18 years of age. The whole case was referred to this court to be dealt with as an appeal.
[26] Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505.
The court in Jasmin accepted the following propositions:
(1)The federal jurisdiction of the District Court depended upon the accused being at least 18 years of age on the dates on which the indictment alleged the offence to have been committed.[27]
(2)On a plea of no jurisdiction, the Crown bore the onus of proving facts establishing the District Court's jurisdiction on the balance of probabilities.[28]
(3)The conviction of the offender by a court without jurisdiction to do so could give rise to a substantial miscarriage of justice even where there was no contest as to the offender's guilt where, because the District Court assumed a jurisdiction it did not have, the offender was subject to mandatory penalties and received a sentence which would not otherwise have been imposed.[29]
(4)The Commonwealth Attorney General has authority to refer a case under s 68(2) of the Judiciary Act and s 140 of the Sentencing Act, and this court has federal jurisdiction to determine the reference, even where there has been no appeal against the conviction.[30]
[27] Jasmin [196], [198], [226].
[28] Jasmin [17], [202], [235].
[29] Jasmin [203] - [204], [246] - [247].
[30] Jasmin [69] - [101], [228] - [233].
In Jasmin, the court held, based on reports of Dr Christie, that Dr Low's assessment of X-rays of Jasmin's hand did not provide any reliable indication of whether he was over or under 18 years of age at the time of the offence.[31] Buss P was of the view that the evidence did not establish whether or not Jasmin was over or under 18 years of age.[32] However, a miscarriage of justice arose in circumstances where, as the onus to establish jurisdiction was on the Crown, Jasmin should not have been required to enter a plea other than that the court lacked jurisdiction.[33] Mazza and Mitchell JJA held that other evidence established, on the balance of probabilities, that Jasmin was under the age of 18 at the date of the offence. They also observed that:[34]
Even if that conclusion cannot be positively reached, the evidence does not establish on the balance of probabilities that the District Court had jurisdiction. Given the onus of establishing jurisdiction rests with the Crown, the proper conclusion is that the District Court did not have jurisdiction to deal with [Jasmin] on indictment.
[31] Jasmin [149], [239].
[32] Jasmin [201].
[33] Jasmin [202] - [203].
[34] Jasmin [245].
Ground of appeal
The appellant's sole ground of appeal is that:[35]
The primary judge's entry of a judgment of conviction and his Honour's sentencing of the appellant occasioned a miscarriage of justice in that the District Court did not have jurisdiction to convict and sentence the appellant because he was under the age of 18 years at the time of the offending.
[35] A number of other grounds were abandoned at the hearing of the appeal.
Disposition
A difference between the present case and Jasmin is that in the present case there was no hearing as to jurisdiction in the District Court. To the extent that the appellant ever entered a plea that the District Court did not have jurisdiction under s 126(1)(a) of the Criminal Procedure Act 2004 (WA), he withdrew the plea at the sentencing hearing.
It may also be noted that the medical evidence of Dr Christie and Dr Cole was actually known to the appellant's counsel at the time of his conviction and sentence. It is apparent that Mr Rafferty was aware that Dr Low's evidence was open to challenge, and Mr Rafferty had the medical evidence to refute Dr Low's view. On the face of the record, it appears that the objection to jurisdiction was withdrawn because counsel was under the mistaken understanding that the appellant would bear the onus of establishing that he was under 18 years of age. Of course, the Crown's onus to prove jurisdiction fell away once the appellant's objection to jurisdiction was withdrawn and he entered a plea of guilty.
Out of fairness to counsel, it should also be noted that Wisbey DCJ had also expressed the view that the burden was on the appellant to establish he was under the age of 18 years, in the passage quoted at [18] above.
Further, although it was in inadmissible form, the appellant's counsel had a document indicating that his mother and uncle would say that he was born in June 1992 (making him 17 years old at the date of offending). That document was not tendered.
Another different feature of this case is that it would appear that the appellant lied to customs officers and police about his age. We allow for the appellant's limited education and the potential, particularly given his cultural background, that he may have genuinely been uncertain as to the precise date of his birthday. However, if he was actually 17 years old it is difficult to see how the appellant could have honestly believed that he was only 12 years of age.
The position therefore is that the appellant lied about his age to officials. When he was actually in possession of material identifying the deficiencies in Dr Low's evidence, and while knowing there were witnesses who could confirm his age, the appellant withdrew his objection to jurisdiction and pleaded guilty. Once this plea was entered, the District Court and the Crown proceeded on the basis that there was no contest as to jurisdiction, so that the prosecution was no longer required to adduce evidence establishing jurisdiction in the primary proceedings. In these circumstances, it is doubtful that evidence, known to the appellant when he pleaded guilty, which merely cast doubt on his age would establish a miscarriage of justice. It is at least arguable that, in order to establish a miscarriage of justice in these circumstances, the appellant must, in this court, establish on the balance of probabilities that he was under the age of 18 years at the time of the offending.
It is unnecessary to finally resolve the above questions, as the additional evidence in this appeal does satisfy us, on the balance of probabilities, that the appellant was under 18 years of age at the date of the offending. We do not place any significant weight on the certificate of the school principal. That certificate was not made on oath, and does not indicate the source of the author's knowledge of the appellant's date of birth. The certificate does not indicate when the appellant attended elementary school. However, the evidence of the appellant's mother and uncle, derived from their personal knowledge, is that the appellant was born in the middle of 1992. That evidence is by way of affidavits on which the Crown does not seek to cross-examine the deponents. In our view, that evidence should be accepted, and establishes that the appellant was under the age of 18 years when he committed the charged offence.
The appellant was therefore dealt with by the District Court when it had no jurisdiction to do so, because the appellant was under 18 at the time of the offending. As a result, the appellant was wrongly sentenced under the principles applicable to adults, and subjected to a mandatory minimum sentence which should not have been imposed. He received a sentence, and served a period of 2 years' 5 months imprisonment before being released on licence, which was longer than any sentence which could appropriately have been imposed by the Children's Court. A substantial miscarriage of justice has been established.
The reasons given in Jasmin,[36] for setting aside the judgment of conviction and substituting a judgment of acquittal, apply with equal force in the present case. The appellant played a limited role in the offending, and has served a longer period of imprisonment than he could have received if dealt with as a child. It is now over 10 years since the offence was committed, and close to 8 years since the appellant was released on licence. After that time, it would be oppressive to seek to compel the appellant to return to Australia, with the prospect of a period in remand or immigration detention, to again face the charge. The appellant has served a more severe sentence than could properly have been imposed if, as should have been the case, he were dealt with as a child. That oppression would be reduced by the fact that there is unlikely to be a lengthy trial, and the absence of demonstrated prejudice to the appellant from the passage of time. However, the oppressive nature of the exercise would remain. It is also relevant to note, as in Jasmin, that the Crown would not seek to retry the appellant even if a new trial was ordered by this court.[37]
[36] Jasmin [207] - [212], [248] - [254].
[37] Appeal ts 25.
For the above reasons, we made the orders set out at [1] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell24 MARCH 2020
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