Arx v The State of Western Australia
[2023] WASCA 169
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ARX -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 169
CORAM: MITCHELL JA
HALL JA
VANDONGEN JA
HEARD: 21 NOVEMBER 2023
DELIVERED : 21 NOVEMBER 2023
PUBLISHED : 28 NOVEMBER 2023
FILE NO/S: CACR 106 of 2023
BETWEEN: ARX
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: PRESIDENT QUAIL
File Number : XX 310-313 of 2023
Catchwords:
Criminal law - Sentencing - Child - Aggravated threat to kill - Being armed so as to cause fear - Wilful criminal damage - Where appellant charged with making threats to kill in circumstances of aggravation, namely children were present when the offence was committed - Where this was not a circumstance of aggravation when the offender is a child - Whether sentencing judge erred by sentencing the appellant for the threats offences on the basis that the maximum penalty was that specified for threatening to kill another person in circumstances of aggravation - Manner in which the appellate court's discretion to resentence the appellant should be exercised
Legislation:
Criminal Code (WA), s 68, s 221(1)(b), s 221(1A), s 338B(1)(a)(ii), s 444(1)(b)
Result:
Leave to appeal granted
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | K J Farley SC and F E Sellers |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Cooper v The State of Western Australia [2020] WASCA 199; (2020) 286 A Crim R 28
DC v The State of Western Australia [2014] WASCA 121; (2014) 242 A Crim R 147
DTN v The State of Western Australia [2021] WASCA 68
Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Wellstead v The State of Western Australia [2019] WASCA 130
REASONS OF THE COURT:
At the conclusion of the hearing of this appeal against sentence we made orders allowing the appeal, setting aside the sentences of detention and substituting an intensive youth supervision order (without detention). We said that we would publish reasons for making those orders later. These are our reasons for making the orders.
Summary
The appellant was convicted, on her pleas of guilty, of two counts of making a threat to kill, one count of being armed in a way that may cause fear, and one count of criminal damage. The appellant was 14 years old at the time of the offending. She was a student at a high school (School) in a regional town in the north of the State (Town). In broad terms, the offending involved the appellant threatening staff and students, and damaging property, at the School with scissors as she searched for another student. It is convenient to refer to that student as L.
On 11 September 2023, the President of the Children's Court of Western Australia sentenced the appellant to a total effective sentence of 10 months' detention in respect of the above four offences. The sentence was backdated two days to take account of time spent in custody on remand. The sentences imposed are set out in the following table:
Count
Offence
(Criminal Code (WA) section)Sentence
Accumulation
1
Threat to kill (s 338B(1))
5 months
Head Sentence
2
Threat to kill (s 338B(1))
5 months
Concurrent
3
Being armed in a way that may cause fear (s 68)
5 months
Cumulative
4
Criminal damage (s 444(1)(b))
1 month
Concurrent
Total effective sentence
10 months
The appellant appeals against her sentence. Ground 5 contends that the sentencing judge erred in law by sentencing the appellant on the incorrect maximum penalty for the threats offences against s 338B of the Code. The State concedes that ground 5 is established. We accept that concession. The error arose in the following circumstances.
Under s 338B of the Code, the maximum penalty for the offence of making a threat to kill is relevantly 10 years' imprisonment if the offence is committed in circumstances of aggravation and 7 years' imprisonment if there are no circumstances of aggravation. In the case of an adult offender, the presence of a child at the time of the commission of the offence is a circumstance of aggravation provided for by s 221(1)(b) of the Code. However, under s 221(1A) of the Code, the presence of a child is not a circumstance of aggravation where the offender was a child at the time of committing the offence and the only circumstance of aggravation is, relevantly, the presence of a child at that time.
The prosecution notice charged the appellant with making threats to kill 'in circumstances of aggravation, namely children were present when the offence was committed'. This was not a circumstance of aggravation in the present case by reason of s 221(1A) of the Code. As a matter of law, the maximum penalty for each of the threats counts is therefore 7 years' imprisonment.
However, the appellant pleaded guilty to the threats counts expressed in the above terms. It is to be inferred from all the circumstances that the sentencing judge proceeded on the basis that the threats offences were committed in circumstances of aggravation, so that the applicable maximum penalty for those offences was 10 years' imprisonment. That was an error of law which was material to the exercise of his Honour's sentencing discretion in the circumstances of this case.
Material error of law having been established, it is necessary for this court to exercise the sentencing discretion for all of the offences afresh to determine whether a different sentence should have been imposed.[1]
[1] Criminal Appeals Act 2004 (WA) s 31(4)(a) and s 31(5)(a), applied by s 42A of the Children's Court of Western Australia Act 1988 (WA).
The appellant should be resentenced to an intensive youth supervision order (without detention) with a condition that she submit to supervision for a period of 8 months.
Our reasons for these conclusions follow.
Circumstances of offending
The circumstances of the offending are reflected in the facts stated by the prosecutor[2] and accepted by the appellant,[3] and the findings made by the sentencing judge.[4]
[2] Sentencing ts 3 - 6.
[3] Sentencing ts 6.
[4] Sentencing ts 23 - 25.
On 9 May 2023, the appellant was enrolled at the School. She was 14 years old and enrolled in year 9 after transferring from another regional high school. Between 9 May 2023 and 14 June 2023, the appellant had only attended school on six days, receiving a suspension on one of those days. The appellant had difficulty fitting in, particularly due to ongoing disputes between two groups of girls.
On 14 June 2023, the appellant was at the School after spending some time in another regional town. The appellant approached L and another student during morning recess. The appellant told them that another girl wanted to fight after school at the nearby shopping centre. The appellant walked away. L and the other student were concerned and informed the teachers. The teachers placed L and the other student in a safe place before looking for the appellant.
After recess, the appellant went into a classroom where about 15 students aged between 13 and 14 years were taking a home economics class taught by the complainant referred to in count 1. The appellant was not enrolled in that class. The appellant grabbed a pair of sharp metal scissors being used for a sewing lesson. She demanded to know where L was. The appellant threatened to stab and kill the complainant and her students whilst waving the scissors at them. The teacher managed to evacuate the students and placed the school into lockdown. A fellow student in this classroom attempted to calm the appellant down. The appellant screamed at this student and chased her with the scissors, making a stabbing motion which came very close to stabbing her. The threats in the home economics classroom were the subject of count 1 noted above.
Another teacher became involved and managed to usher the appellant out of the main doors of the building and lock them. The appellant moved around to a window of a different classroom in which the home economics students had sought shelter and began banging the scissors on the window in a threatening manner.
The appellant proceeded to another classroom where a chemistry class was being undertaken by four teachers, including the complainant in respect of the offence charged in count 2, and 16 students aged between 13 and 14 years. One of the students was L's boyfriend. The appellant demanded to know where L was. A teacher approached the appellant asking her what was wrong and trying to calm her down. The appellant backed out of the door and told the teacher not to follow her. The appellant said that she was going to burn the school down. The teacher did not call in the incident as appellant did not produce the scissors at this time, and other teachers outside appeared to be dealing with the appellant.
The appellant returned to the chemistry classroom brandishing two pairs of scissors. She demanded that the teachers and students tell her where L was, or she would 'stab [them] all'.
The teacher again tried to calm the appellant down and get her outside. The appellant held the scissors up to shoulder height and screamed, 'I've got fucking scissors. I will stab everyone.' She stood about 1.5 metres away from the teacher and pointed the scissors directly at her. The students had moved to the back of the class in fear.
The appellant then walked towards the students while pointing the scissors at them and screamed, 'I have got scissors. I will stab you mob. You better tell me where [L] is'. The appellant smashed some calculators and safety glasses on the floor in her rage.
At this stage, there was more than one teacher in the room. They attempted to evacuate the students out of an opposite door, but the appellant saw this happening and ran over to the door blocking the way. She held up the scissors and yelled, 'You mob, you don't go out this door. I will stab you all up'. About three students managed to escape. The others ran across the room to another door to escape, but again the appellant ran to that door and blocked their way. She shut the door and was screaming that she would stab and kill the students if they tried to leave. She threatened to kill people, including the complainant in respect of count 2, by stabbing them and slitting their throats.
The appellant then collected some pieces of paper from a table and produced a cigarette lighter. She stood in front of the students and lit the papers on fire, while yelling, 'I'll burn this place down. I'll burn all of you down. Tell me where she is'. She threw the lit papers to the floor and the fire went out. The appellant tipped tables over and threw chairs at some of the students, while threatening to stab them. Several teachers rushed to the scene to let the students in the chemistry classroom out.
The threats to kill in the chemistry classroom are the subject of count 2 noted above. The conduct the subject of count 3, being armed in a way that may cause fear, was encapsulated by the facts of counts 1 and 2.
After leaving the chemistry class, the appellant took a teacher's car keys and walked to the carpark. She appeared to be looking for a car but soon threw the keys away and then held a pair of scissors in each hand. Some teachers and school staff followed the appellant at a distance, trying to calm her down. The appellant was in a rage shouting that she wanted to find L. She was threatening the school staff that she would stab them and slit their throats if they came close to her.
The appellant then walked to the student services building and smashed the metal scissors against various glass doors and windows, causing cracks, breaks and scratches. The cost of repairing the doors and windows was $2420. This conduct was the subject of the criminal damage count.
Shortly after, the appellant was picked up by a relative who dropped her home. Later that day, the appellant was arrested and placed into custody.
Appellant's personal circumstances
The sentencing judge made the following findings as to the appellant's personal circumstances.
The appellant was 14 years old at the time of offending. The appellant faced many issues within the community growing up. She was exposed to high levels of trauma, domestic violence and poor attachment when she was young. At the age of about 4 years, the appellant was placed into the care of her aunt.[5]
[5] Sentencing ts 27.
The appellant's living circumstances have 'always been pretty crowded', as her aunt was also looking after the appellant's siblings and many other children, some of whom are subject to care and protection orders. The appellant's aunt had tried to get the appellant away from the Town by moving to another regional town to get some stable accommodation and keep the children safe. However, the sentencing judge accepted that the appellant's aunt did a good job of looking after her and provided her a safe home, and that the appellant had stayed out of trouble.[6]
[6] Sentencing ts 23, 27 ‑ 28.
The appellant performed well in primary school. She fitted in, complied with school rules and was described as a quiet girl with a lot of potential. She was not enrolled at all in school between 2016 and 2018 when she was living with her aunt. In 2022, the appellant had a 35% attendance rate at school.[7]
[7] Sentencing ts 24.
At the end of 2021 and into 2022, the appellant's circumstances changed 'quite dramatically', as she returned to her mother's care. The sentencing judge said that this 'was the trigger for where things started to go badly wrong for [the appellant]' as the appellant was exposed to her mother's violence and feuding and had a lack of supervision.[8]
[8] Sentencing ts 23, 28.
The appellant started 'getting into trouble' in 2022 but had previously not been in trouble at all. Her behaviour escalated quickly, and she was subject to three juvenile justice orders, for offences including driving and stealing offences, attempted aggravated robbery, assault and burglary offences. The appellant breached those orders, including a four‑month youth community based order to which the appellant was subject at the time of the present offending. As at 14 June 2023, the appellant only had a 'couple of days to go' on that order. She also spent some time in Banksia Hill Detention Centre in 2022 at a time when 'things were pretty tough in Banksia'.[9]
[9] Sentencing ts 22 ‑ 23.
In about May 2023, the appellant returned to live with her aunt in the Town in 'dire' living circumstances. The appellant's aunt did not have her own permanent accommodation, and lived with her daughter in a house with 16 ‑ 17 other people.[10]
[10] Sentencing ts 28.
The appellant was using cannabis every day, which affected her badly by making her angry when she was not using it. Her relations with her sister and her outbursts as a result were to such a degree that might necessitate sending her sister to another regional town to 'get away from that'.[11]
[11] Sentencing ts 29.
Sentencing judge's approach
The appellant received a 25% discount on her sentence for entering a guilty plea at the first reasonable opportunity.[12]
[12] Sentencing ts 6 - 7, 29.
The sentencing judge had regard to the special principles governing sentencing of children, including the overriding principles of juvenile justice,[13] and the significant mitigation to be found in the appellant's difficult background.[14]
[13] Young Offenders Act 1994 (WA) s 7.
[14] Sentencing ts 27 - 29, 30.
The sentencing judge identified the following aggravating features of the appellant's offending:[15]
1.In a 'spur of the moment' decision, the appellant grabbed scissors, which were the property of the school, and used them as a weapon. The judge, in effect, explained that there must be serious consequences for being armed with an improvised weapon because it would be impossible for a school to remove all dangerous items that could be used as potential weapons while still being able to teach children.
2.The offending was not momentary, as the appellant used the scissors as a weapon over a long time across multiple classrooms.
3.Multiple teachers and students were exposed to, and would have been terrified by, the appellant being armed with the scissors and the threats.
4.The appellant was still subject to a youth community based order at the time she committed the present offences, although his Honour noted that there were only a couple of days left on the order and the appellant had 'done pretty well'.
[15] Sentencing ts 22 ‑ 23, 25 ‑ 26.
His Honour took into account the impact of the appellant's offending on the immediate victims as well as the impact on the broader school community in the Town. The judge observed that some of the children would have been scared to go to school and some of the teachers may have been doubting their career choices as a result of the appellant's offending.[16]
[16] Sentencing ts 26.
The sentencing judge considered the importance of safety within the school community and that the law must recognise this need for protection. In this regard, his Honour found that general deterrence was a relevant consideration (albeit a lesser consideration in the circumstances of this case), as there was a need to send a message to the community that there are serious consequences for behaving as the appellant did in a school. With regard to personal deterrence, the sentencing judge found that 'there is an element of [the appellant] needing to know' that such behaviour will not be tolerated, given that a similar incident had happened in the past, where the appellant had 'lost it' and attacked a youth worker at a regional community centre.[17]
[17] Sentencing ts 27.
The sentencing judge was satisfied that the appellant was remorseful, but not specifically in relation to the girls targeted. With regard to rehabilitation, the judge said:[18]
Your rehabilitation is most important, but we're at a very early point in relation to that, and as I've already said, I'm not confident at the moment that it is well and truly underway.
His Honour found that there was very little immediate support for the appellant in place in the Town but that there was some promise going forward in relation to an education plan and potential further accommodation down the line. Since the conduct the subject of the offending, the appellant had stayed out of trouble, engaged with a youth engagement program and had undergone some counselling.[19]
[18] Sentencing ts 29 ‑ 30.
[19] Sentencing ts 28 ‑ 29.
After referring to the general sentencing considerations in relation to the four offences and concluding that a sentence of detention was the only appropriate sentencing disposition, the sentencing judge sentenced the appellant to a total effective sentence of 10 months' detention. His Honour backdated the sentence to 9 September 2023 to take into account two days spent in custody. The appellant was eligible for supervised release after serving 5 months of this term.
Grounds of appeal
The appellant appeals against her sentence on four grounds. Grounds 1 and 2 assert express errors made by the judge in his sentencing remarks. Ground 3 was abandoned prior to the hearing of the appeal. Ground 4 contends that the total effective sentence was manifestly excessive as to the type and length of sentence imposed. Ground 5 contends that the sentencing judge erred by sentencing the appellant on the basis that the maximum sentence for the threats offences was 10 years' imprisonment when the applicable maximum penalty was only 7 years' imprisonment.
As noted above, the State concedes that ground 5 is established.[20] For the reasons explained below, we accept that concession. It is therefore unnecessary for this court to resolve the other grounds of appeal.
[20] Respondent's submissions par 5 (White AB 52).
Why ground 5 is established
For the following reasons, which generally reflect the particulars to ground 5, the sentencing judge made a material error in the exercise of his sentencing discretion by misapprehending the available maximum penalty.
Under s 338B(1)(a) of the Code, the maximum penalty for an offence of threatening to kill another person is:
(i)if the offence is committed in circumstances of racial aggravation, 14 years' imprisonment;
(ii)if the offence is committed in circumstances of aggravation, 10 years' imprisonment; and
(iii)in any other case, 7 years' imprisonment.
The prosecution notice in this case pleaded that the charged offences against s 338B were committed in circumstances of aggravation, namely that children were present when the offences were committed.
The magistrate who referred the matter to the President for sentencing accepted the appellant's plea of guilty to the offences against s 338B of the Code charged in those terms.[21]
[21] Transcript 26/7/23 at 2 - 3.
Under s 221(1)(b) and s 221(1A) of the Code, the commission of an offence in the presence of a child is not a circumstance of aggravation if the offender was a child at the time of committing the offence and the only circumstance of aggravation is that a child was present at the time of the commission of the offence.
In the circumstances, the maximum penalty for the charged offences against s 338B of the Code was 7 years' imprisonment under s 338B(1)(a)(iii) of the Code.
At the sentencing hearing, the prosecutor informed the sentencing judge that the maximum penalty for a threat to kill in circumstances of aggravation is 10 years' imprisonment.[22]
[22] Sentencing ts 19.
The sentencing judge did not state the maximum penalty for the charged offences against s 338B of the Code in his sentencing remarks.
The detention warrant signed by the sentencing judge on 11 September 2023 refers to the offences against s 338B of the Code as 'Threatened to kill, in circumstances of aggravation - CRC 338B(i)(a)(ii)'.
In the circumstances, it is to be inferred that the sentencing judge sentenced the appellant on the basis that the maximum penalty for the charged offences against s 338B of the Code was 10 years' imprisonment.
The sentencing judge's error as to the applicable maximum penalty for the charged offences against s 338B of the Code was material to the exercise of his Honour's sentencing discretion. The maximum penalty fixes one end of the yardstick which, with all other relevant sentencing factors, guides the exercise of the sentencing discretion.[23] A significant error as to the maximum penalty will usually, although not inevitably, be material to the exercise of the sentencing discretion.[24]
[23] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31]; Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 [48].
[24] Cooper v The State of Western Australia [2020] WASCA 199; (2020) 286 A Crim R 28 [151].
In this case, the error was not merely a misapprehension as to a number. Section 338B of the Code classifies the offence it creates, where the threat is to kill a person, into three categories of seriousness, marked by significantly different maximum penalties, according to whether certain circumstances of aggravation are present. The error in this case wrongly placed the appellant's offending into a more serious category than was warranted. In this case, where the sentencing judge's assessment of the seriousness of the offending was critical to his Honour's determination of the appropriate kind of penalty, the error was material.
It is unnecessary to consider the appellant's other grounds of appeal against sentence. Material error having been established, it falls to this court to re‑exercise the whole of the sentencing discretion afresh and for itself to determine whether a different sentence should have been imposed.[25]
[25] Criminal Appeals Act s 31(4)(a), s 31(5)(a).
Resentencing
This court has the necessary material to resentence the appellant. The material before the Children's Court has been supplemented by material which is the subject of an application to adduce additional evidence in the appeal and additional reports from the Department of Justice (Department). This material is relevant to the assessment of the appellant's current progress towards and prospects for rehabilitation and is admissible for the purposes of resentencing once material error is established.[26] The appellant's application to adduce additional evidence in the appeal for this purpose should be allowed.
Additional evidence
[26] See Wellstead v The State of Western Australia [2019] WASCA 130 [94].
The additional evidence comprises an affidavit of Ms Morato sworn 16 October 2023. Ms Morato is a youth diversion officer with the Youth Engagement Program (YEP), which appears to be a commendable service operated by the Aboriginal Legal Service in the Town. Ms Morato is an Indigenous Australian woman who has been able to form a trusting relationship with both the appellant and the appellant's aunt.
Ms Morato describes steps she has taken to secure mental health treatment for the appellant, the enrolment of the appellant in a TAFE course in term 4 of this year and a pending application for the appellant to attend an alternative learning school in the Town. The appellant has also been placed on the 'Target 120 Plus' program, operated by the Department of Communities, which seeks to support at risk children and their families. Ms Morato has referred the appellant to a psychological service in the Town, with a view to her having regular appointments for her mental health challenges with regard to previous trauma and current stressors.
Ms Morato also deposes as to the living arrangements at the house where the appellant's aunt resides, where the appellant will also reside on release. The accommodation is severely overcrowded, with 12 people (including the appellant) living in a small house in September 2023. Not including the appellant, the residents include the appellant's aunt, the aunt's daughter and partner, and 6 children between the ages of 6 and 13 years, four of whom are under the aunt's care from the Department of Communities. While there have been past incidents involving the aunt's partner, he is subject to a family violence restraining order dated 21 July 2023, which prevents him from attending the aunt's residence. Ms Morato has visited the property on many occasions and, despite the severe overcrowding issues, has no concerns for the appellant at the property. When the appellant is released, the aunt's residence will be visited daily by Ms Morato and other YEP people and regularly visited by Department of Communities staff.
Updated Department reports
A court report dated 14 November 2023 by the Department's youth justice team confirms that the appellant has been accepted into the 'Young and Deadly Futures' program at TAFE and is able to commence in the program immediately upon her return to the Town. The report indicates that the program provides students with holistic support, including transport to and from the facility, as well as lunch. For the remainder of the year, the focus will primarily be based around student's emotional wellbeing and their motivation to engage. Various services from within the community will visit the program to provide education around several topics and students will participate in On Country activities.
The report also indicates that the appellant has identified an interest in playing football with a local team in 2024 and engaging in On Country activities, including fishing and swimming. The appellant will be supported by the Target 120 Plus team to engage in pre‑season football training and to register with a local football club for the 2024 season.
The report notes past cannabis use by the appellant, who indicated that she does not consume alcohol or other illicit substances. The appellant has discussed feeling noticeably healthier due to abstaining from cannabis use while in Banksia Hill Detention Centre. The appellant stated that, upon her return to community, she intends to remain abstinent in order to do well with football next year.
The report also indicates that the appellant has built up a rapport with the Departmental psychologist at Banksia Hill and has indicated that she will participate in an assessment and counselling upon her return to community. However, the opportunities which have been available for the appellant to engage in psychological counselling at Banksia Hill appear to have been limited.
The Department has formulated the following plan which will be implemented if this court imposes a community‑based disposition:
Accommodation: The appellant will travel from Perth to the Town by plane on 22 November 2023 and reside with her aunt.
Education: The appellant will immediately begin the TAFE program and attend Monday to Friday from 8.00 am ‑ 2.00 pm.
Recreation:Target 120 Plus will support the appellant to engage in pre‑season football training and register for a team for the local 2024 season. YEP will support the appellant to engage in On Country activities and other opportunities as they arise.
Substance use: The appellant's substance use will be monitored during supervision sessions and interventions provided as required.
Health:The appellant's aunt will meet her health and medical needs.
Psychological: The appellant will be encouraged to participate in further appointments with a Departmental psychologist to undergo an assessment to determine her suitability for counselling intervention.
Supervision: The appellant will be required to participate in structured supervision sessions commencing on 22 November 2023 and then as directed. These sessions will focus on criminogenic and non‑criminogenic needs and will occur in consultation with her family/caregivers.
Support:The appellant's aunt will support the appellant to comply with any court‑imposed obligations and attendance at scheduled appointments.
A detention management report dated 15 November 2023 indicates that the appellant, who has very significant educational gaps, has been participating and making progress in an introductory literacy course at Banksia Hill. She is reported to be participating well in all lessons and activities in school and is enjoying creative outlets. The report indicates that the appellant is trying her best and is showing emerging leadership skills.
The report also indicates that the appellant's aunt has expressed a desire for the appellant to attend a residential college to assist with the issue of overcrowding at home. An application has been submitted to a residential college and a referral has been submitted to an alternative learning program. That program provides alternative learning facilities and targeted support programs for students who are at risk of exclusion from a public school due to violent and/or aggressive behaviour. The intensive program is run over a ten‑week period and aims to equip students with the social and emotional skills they need to re‑engage with education. If the appellant is accepted into this program, it is anticipated that, on completion, the appellant will be supported to successfully transition to a residential college.
The detention management report notes that the appellant has been involved in six incidents at Banksia Hill, all of which were 'non‑critical' in nature and were generally resolved by counselling. The appellant has been participating in structured programs and has achieved a self‑care accommodation placement at Banksia Hill. The appellant has willingly engaged in an assessment for suitability for offence‑specific psychological counselling.
Disposition
The appellant's offending was very serious and would almost inevitably result in a term of immediate imprisonment for an adult offender. However, in resentencing the appellant, it is necessary to apply the principles which Parliament has enacted in the Young Offenders Act 1994 (WA) (YOA) for the sentencing of children. The general principles of juvenile justice are set out in s 7 of the YOA, and significantly for this case include that:
(d)the community must be protected from illegal behaviour; and
…
(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; and
…
(j)punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways; and
…
(l)in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered[.]
In DC v The State of Western Australia,[27] Mazza JA (Buss & Newnes JJA agreeing) identified the following non‑exhaustive list of propositions relating to the sentencing of young offenders:
[27] DC v The State of Western Australia [2014] WASCA 121; (2014) 242 A Crim R 147 [50], applied in DTN v The State of Western Australia [2021] WASCA 68 [134].
1.The ultimate aim in sentencing a young offender is the protection of the community by the imposition of a sentence proportionate to the gravity of the offence, having regard to the circumstances of its commission and the circumstances personal to the offender.
2.Youth is normally a powerful mitigating factor and the rehabilitation of the young offender is generally a dominant sentencing consideration.
3.A young offender must not be treated more severely than an adult for the same offence.
4.Deterrence, both personal and general, punishment, retribution and public protection are accommodated in the YOA and are relevant to the sentencing of young offenders, although their role will generally be tempered. However, when in a particular case the rehabilitation of an offender appears unlikely, the offending is serious and the character and personal circumstances of the offender justify it, these factors may become significant.
5.Young offenders, even those with good antecedents, may, having regard to the circumstances of the case, be sentenced to detention or imprisonment.
6.The age and maturity of a young offender are relevant factors. Thus, a very young offender who is immature may be dealt with differently to an older child who, while still young, has a greater awareness and responsibility.
(citations omitted)
In sentencing the appellant, it is necessary to take account of the appellant's very young age and psychological immaturity at the time of the offending, as well as her severely deprived childhood to date, which has been characterised by parental neglect, parental substance abuse and exposure to family violence. It is also necessary to take account of the fact that the appellant shows potential to rise above her disadvantage. A concrete plan has been formulated to seek to assist her to develop as an adult who does not regularly commit serious offences.
In our view, at this time, the medium and long‑term protection of the community and the rehabilitation of the appellant is most likely to be achieved by a sentencing disposition which involves supervision of the appellant in the community. At a time when she is prepared to engage in rehabilitation, that rehabilitation is most likely to be achieved through allowing her to undertake the TAFE course and then hopefully alternative education leading to study at a residential college, with the other community support described above. The opportunity for the appellant to engage in psychological counselling appears to be greater while she is under supervision in the community than that available at Banksia Hill. The prospect of her return to detention if she does not comply with the conditions of supervised release will provide an incentive for the appellant to actively pursue that rehabilitation. To any extent that the seriousness of the offending calls for punishment by way detention, that sentencing purpose has largely been achieved by the 73 days the appellant has spent in custody up to the hearing of this appeal. That period of detention represents about half of the minimum term of the sentence imposed by the Children's Court.
We note the overcrowded house to which the appellant will return to live in on release. The pressures inherent in that severe overcrowding may present the greatest risk to the appellant's rehabilitation. We were informed that the aunt has requested her own accommodation from the Department of Communities.[28] The greatest possible priority should be given to this request. The appellant's aunt provides shelter to many children in the care of the State, when the State is responsible for providing adequate accommodation to children in its care. It is imperative that the Department of Communities attend urgently to rectifying the current unacceptable situation. In the meantime, the house at which the aunt is currently residing apparently provides the best accommodation option available to the appellant. The constrained accommodation options available to the appellant is not a reason for keeping her in custody.
[28] Appeal ts 34.
We agree with the submission of counsel for the appellant that, at its heart, this sentencing exercise involves a 'vulnerable [15]‑year‑old Aboriginal girl from regional Western Australia whose prospects and need for rehabilitation' must be balanced against the seriousness of her offending as a 14‑year‑old. The resentencing by this court occurs in a context where the appellant has already served about half of the minimum term of the sentence of detention imposed by the sentencing judge. The appellant's age and prospects for rehabilitation lead us to the conclusion that supervised release is most likely to offer the best protection for the community as it has the greatest prospect of achieving rehabilitation at this time.
In all the circumstances, the appropriate disposition on resentencing is an intensive youth supervision order (without detention) with a supervision condition. The appropriate period of that supervision is 8 months. If the appellant reoffends during that period or does not comply with the supervision conditions, then she will be subject to being sentenced again for the current offences, including to potential terms of detention, under s 83 read with s 100 of the YOA. It is appropriate that the agenda attached to the order specify conditions requiring the appellant to comply with reasonable directions of her supervising officer and notify the supervising officer of any change of address within 48 hours. It is also appropriate for the agenda to direct the appellant to report to a youth justice officer and attend psychological counselling as directed by the supervising officer.
Orders
For the above reasons, at the conclusion of the appeal hearing we made the following orders:
1.Leave to appeal is granted on ground 5
2.The appellant's application in an appeal filed on 17 October 2023, for leave to adduce additional evidence in the appeal, is granted.
3.The appeal is allowed.
4.The sentences imposed by the Children's Court of Western Australia on charges XX 310/2023 to 313/2023 are set aside and there is substituted an intensive youth supervision order (without detention) with a condition that the appellant, during the period of 8 months, submit to supervision and other contact as specified in the attached agenda.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
28 NOVEMBER 2023
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