AJ v The Queen - [2011] WASCA 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AJ -v- THE QUEEN [2011] WASCA 166

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 17 JUNE 2011

DELIVERED : 29 JULY 2011

FILE NO/S: CACR 22 of 2011

BETWEEN: AJ
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
File No  :IND 1039 of 2010

Catchwords:

Criminal law - Appeal against sentence - Construction of s 233C of the Migration Act 1958 (Cth) - Standard and burden of proof under that section - Whether trial judge applied correct test - Turns on own facts

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 3, s 19(1)
Criminal Procedure Act 2004 (WA), s 126(1)(a), s 127
Migration Act 1958 (Cth), s 232A, s 233C

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: No appearance

Solicitors:

Appellant: David McKenzie Legal
Respondent: Director of Public Prosecutions (Cth)

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

Law v The State of Western Australia [2009] WASCA 193

McLURE P: This is an application for leave to appeal against sentence. It raises for consideration the proper construction of s 233C of the Migration Act 1958 (Cth) (the Act) as it was in December 2009.
On 22 December 2010, the appellant was convicted on his own plea of guilty on one count of facilitating the bringing or coming to Australia of a group of non‑citizens contrary to s 232A of the Migration Act. Keen DCJ, applying s 233C of the Act as it was in December 2009, imposed a mandatory minimum sentence of 5 years' imprisonment with a non‑parole period of 3 years.
Section 233C of the Act relevantly provided:
(1)This section applies if a person is convicted of an offence under section 232A … , unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.
Under subs 233C(2) and (3), the mandatory minimum sentence for a first offence is 5 years' imprisonment with a non‑parole period of 3 years.
On 1 October 2010, the appellant pleaded under s 126(1)(a) of the Criminal Procedure Act 2004 (WA) that the District Court did not have jurisdiction because he was under the age of 18 years. By s 19(1) of the Children's Court of Western Australia Act 1988 (WA), the Children's Court has exclusive jurisdiction, subject to s 19(1a), to hear and determine a charge of an offence alleged to have been committed by a child. A child is defined in s 3 of that Act to mean, inter alia, any boy or girl under the age of 18 years.
Under s 127 of the Criminal Procedure Act, if an accused enters a plea under s 126(1)(a) to a charge, the court must try any issue raised by the plea. A trial of the issue of whether the appellant was under the age of 18 years at the time he committed the offence was held before Keen DCJ on 8 December 2010. The age of the appellant was relevant to both the jurisdiction of the District Court and the sentence to be imposed on the appellant in the event he pleaded guilty to the charge in the District Court. The Crown adduced expert evidence from Dr Vincent Hok Sang Low, a consultant radiologist on the issue. The primary judge reserved his decision.
On 22 December 2010, the primary judge informed the parties that he had found that the appellant was of the age of 18 years when the offence was committed (ts 93). With that advice, the appellant pleaded guilty to the charge and a judgment of conviction was recorded. After the parties made their sentencing submissions, the primary (now sentencing) judge gave oral sentencing reasons which included a statement that he had determined that the appellant was over the age of 18 years (ts 105).
Later on the same day, the primary judge published his written reasons for decision on the trial of the issue. It is apparent from the written reasons that the primary judge understood that the issue for determination on both the question of jurisdiction and the application of s 233C was whether the appellant was under the age of 18 years (see [2], [22] and [23]).
The appellant (correctly) conceded at the hearing of the application for leave that it was open on the evidence for the primary judge to find, on the balance of probabilities, that the appellant was not under the age of 18 years when he committed the offence. Indeed, in response to a non‑leading question in cross‑examination, the appellant said he was born on 12 October 1990, later resiling from that position and giving evidence that he was aged 14. Relying on the evidence of Dr Low supported by his own observations, the primary judge made the following findings:
1.on average, bone maturity occurs by age 19;
2.the x-ray of the accused shows bone maturity;
3.that at the date of the x-ray, the accused was over the age of 18 and probably of the age opined by Dr Low (19); and
4.that at the date of the offence on the balance of probability the accused was of or over the age of 18.
It is difficult to grasp the gravamen of the grounds of appeal. Instead of paraphrasing, it is appropriate to set them out. They are:
1.His Honour erred in law when, in reaching his decision as to the Appellant's age, he misconstrued the relevant evidential burden contained within Section 233C of the Migration Act 1958 (Cth) ('the Section');
Particulars:
1.1The Section requires proof on the balance of probability that a person was under 18 years of age when the offence was committed … ;
1.2The Section does not stand as authority for the proposition that proof a person was over 18 years of age when the offence was committed need merely be on the balance of probability … ;
1.3Proof the Appellant was over 18 years of age when the offence was committed should have been established beyond reasonable doubt as was likely to impact adversely upon his sentence.
2.His Honour erred both in fact and law, and there was a miscarriage of justice, when he decided, on the balance of probabilities, that the Appellant was over 18 years of age at the time of the offence ('the decision');
Particulars:
2.1As the decision was likely to impact adversely upon the sentence the Appellant received, the issue of his age should have been established beyond reasonable doubt.
Section 233C applies 'unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed'. According to the appellant's counsel, the appellant and the Crown accepted for the purpose of the trial of the issue that the Crown bore the burden of establishing that the person was aged under 18 years when the offence was committed. The correctness of that proposition may be doubted. The language of s 233C(1) suggests that its application is not conditioned on a positive finding that the offender was aged under 18 when he committed the offence; rather, the language is in terms that the section ceases to apply if it is positively established that the offender was aged under 18 years. That structure is consistent with an intention that the burden of proof of age is on the offender. However, it is unnecessary to determine that issue. It is sufficient for present purposes to note that the section does not cease to apply unless it is positively proven on the balance of probabilities that the offender was aged under 18 years when the offence was committed. The absence of such a finding or a positive inconsistent finding will have the consequence that s 233C applies.
The appellant accepts that proof of whether the offender is under 18 for the purpose of s 233C(1) is on the balance of probabilities. However, the appellant's proposition was that the court made a different finding, namely that the appellant was over the age of 18 years. The appellant submits that such a finding required the imposition of a mandatory minimum term under s 233C; that s 233C is silent as to the standard of

proof applicable to a finding that a person is over the age of 18 years; and that fact had to be proved beyond reasonable doubt, consistently with the principle in Law v The State of Western Australia [2009] WASCA 193 that a fact or circumstance likely to result in a more severe sentence must be proved beyond reasonable doubt. The submission has no merit.

The primary judge clearly and correctly identified the issue he was required to determine for the purposes of s 233C(1) of the Act, namely whether the appellant was under the age of 18 years at the time he committed the offence. Implicit in the primary judge's express positive finding that the appellant was of or over the age of 18 at the time he committed the offence is its necessary corollary, namely a positive finding that the appellant was not aged under 18 years. The primary judge's positive finding on the balance of probabilities as to the age of the appellant is positively inconsistent with a finding to the same standard that the appellant was aged under 18 years when the offence was committed. Thus s 233C must apply.
As there is no merit in either ground of appeal, leave must be refused and the appeal dismissed.
BUSS JA: I agree with McLure P.
MAZZA J: I agree with McLure P.