B (a child) v Hepple
[2013] WASC 303
•15 AUGUST 2013
B (a child) -v- HEPPLE [2013] WASC 303
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 303 | |
| Case No: | SJA:1063/2013 | 31 JULY 2013 | |
| Coram: | McKECHNIE J | 15/08/13 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence varied with CRO | ||
| B | |||
| PDF Version |
| Parties: | B (a child) CHRISTOPHER JOHN HEPPLE |
Catchwords: | Criminal law and procedure Juvenile justice Principles to be applied Appellant detained in harsh conditions Whether special circumstances Whether taken into account |
Legislation: | Young Offenders Act 1994 (WA), s 189 |
Case References: | R v Simpson (2001) 53 NSWLR 704 The State of Western Australia v JAB [2013] WACC 3 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CHRISTOPHER JOHN HEPPLE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G D LAWRENCE
File No : CCGN 82 of 2013
Catchwords:
Criminal law and procedure - Juvenile justice - Principles to be applied - Appellant detained in harsh conditions - Whether special circumstances - Whether taken into account
Legislation:
Young Offenders Act 1994 (WA), s 189
Result:
Appeal allowed
Sentence varied with CRO
Category: B
Representation:
Counsel:
Appellant : Mr D D Brunello
Respondent : Mr J A Scholz
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
R v Simpson (2001) 53 NSWLR 704
The State of Western Australia v JAB [2013] WACC 3
- McKECHNIE J:
What this appeal is about
1 B is a young man nearly 17, poorly educated, from a dystopian environment.
2 On 9 February 2013 he burgled a house with a friend. This was not his first burglary. He has a long record for one so young. He is not just a repeat offender, but a second time repeat offender. He had been released on supervision only two months before the burglary.
3 The mandatory sentence in these circumstances is one of imprisonment or detention for 12 months although a conditional release order may be made.
4 In the way in which the matter was argued in the primary court, this sentence could only be avoided if the magistrate was persuaded that special circumstances existed so that a previous conviction could be disregarded. Then B would not be a repeat offender.
5 On 14 May 2013, counsel tried hard to persuade the magistrate that there were special circumstances. Following a riot, Banksia Detention Centre became uninhabitable. Inmates were housed in harsh conditions in Hakea Prison. The principles of juvenile justice could not be applied.
6 The magistrate was unmoved and imposed 12 months' detention from 26 April 2013. He declined to make another intensive youth supervision order. This appeal is from that decision and has been heard as quickly as possible. Although special circumstances are not present, the harsh nature of the detention requires that a CRO be made and the appeal succeeds to that extent.
The charge
7 B was charged that on 9 February 2013 at Rangeway he without consent was in the dwelling place of a person and committed the offence of stealing in circumstances of aggravation, namely, he was in company with another offender. On 1 May he pleaded guilty to this charge and the matter was adjourned until 14 May 2013 for sentence.
The material facts
8 Between 4.30 pm and 4.55 pm, on 9 February 2013, B and another co-offender attended the residence in Rangeway with the intention of breaking in and stealing property. B placed socks on his hands and removed a flyscreen from an unlocked window and entered the premises. Rummaging through rooms, he located an Xbox 360 with three games, two Xbox controllers, a Sony PSP, a large amount of gold jewellery and a Kodak digital camera. B placed these items in the backpack located in the residence, and left with his co-offender.
9 Police located B and the co-offender a short time later, hiding the stolen property in the grounds of a local church. The co-offender fled on foot and evaded police. Police recovered a large amount of the property stolen.
The appellant's criminal history
10 B was born on 15 August 1996. There is a discrepancy between the list of the appellant's convictions in the appellant's submissions (with which the respondent agreed) and the Court History attached to the Community and Youth Justice Court Report. The history detail is taken from that Court History. His first conviction was on 17 December 2008 when he was 12. He has offended continuously since that time, committing property offences of various types, particularly aggravated burglaries. He has breached youth supervision orders.
11 The 'first strikes' were convictions recorded on 29 November 2010 (CGN 775, 777 and 779/10), three counts of burglary and commit offence in dwelling; offence date 23 October 2010.
12 On 6 July 2011, B was convicted of two counts of aggravated burglary and commit offence in dwelling (CGN 358 and 362/11); offences date 23 May 2011. These were the 'second strikes'.
13 On 25 June 2012, B was convicted of two counts of aggravated burglary and commit offence in dwelling and one count of aggravated burglary and commit offence in place (CGN 748, 750 and 701/12); offence dates 6 June and 27 April 2012. These were the 'third strikes'.
The decision in the primary court
14 The submissions in summary relied on The State of Western Australia v JAB [2013] WACC 3. In that decision the President of the Children's Court conducted a comprehensive review of sentencing when conditions of detention are different and more onerous from those that would fall within the contemplation of the statutory framework of the Young Offenders Act 1994 (WA).
15 Counsel submitted that the harshness of the detention, plus the age of the accused, and the fact that there was only one new offence, meant that an appropriate term would be detention for 12 months with a conditional release order.
16 In the alternative, counsel submitted there were special circumstances so that a declaration under the Young Offenders Act s 189(3) should apply. If it applied, then B would not be regarded as a repeat offender.
17 The magistrate described this submission as novel. After discussing the matter the magistrate said:
Let's - you've put it on the table there. At the moment, you say that - and I think you're right, that I can place him on a youth intensive supervision order with detention, ie, a conditional release order. But he really has had his chances. So, really, what we're talking about here is a - the same sentence an adult would get, that is, 12 months. The amendments way back there in the '90s didn't make any allowance for children, even, say, well, there will be six months for a child who's a third-striker. It just simply said 12 months. So that's what we're about today, whether he spends another 10 months, or depending on other issues about (indistinct) release (ts 5 - 6).
18 After referring to the conditions at Hakea Prison in which B was then confined, due to a riot at Banksia Hill facility, he said:
So I can't assume, for instance, that the whole of any sentence of imprisonment I - the - of detention I place on (indistinct) will be in the Hakea arrangement, if I might call it. The submission by Ms Swanberg is certainly well constructed and (indistinct) but I do find that it's simply not possible to extend special circumstances in terms of taking a circuitous route around the 12 months detention for a first strike. It's simply too remote, too collateral. It's not a special circumstance in itself that can overcome the mandatory nature of that 12 months detention.
Of course, it was never envisaged when the third strike legislation was brought in that there [would] be a situation like this where a child has (indistinct) spent some of their time put in the (indistinct) of Hakea, but then again, that's the danger with mandatory sentencing (ts 12).
19 After working through the triggering offences he said:
So I find that against that background, well, I hope that [B] will be back in Banksia soon, but also against the background of record, of significant offending (indistinct) strikes and now the third strike, depending on - in terms of the third strike where he showed some criminal presence of mind to cover his hands with socks and so on, I find that I'm left with no other option but to impose a (indistinct) that I've considered (indistinct) conditional release, that - that simply would not - even taking into account the provision in section 7 (indistinct) It must be deterred. (indistinct) to be held in Hakea hopefully released after 30 June some time. Well, he won't get out before, but he - he will certainly have some chance of rehabilitation.
So it's 12 months detention (indistinct). [B], you've heard everything I've said. It has been a bit long and difficult for you to sit there and I appreciate that, but today, in effect, your (indistinct) caught up with you. I'm going to place you on a 12 month period of detention, backdated to commence on 26 April 2013 (ts 13).
Evidence on appeal
20 Without objection B adduced evidence by way of affidavit detailing the conditions at Banksia Hill where he had previously spent time on detention.
21 B detailed that in his previous periods of detention at Banksia Hill Juvenile Detention Centre (BHJDC), he was always in one of the normal wings which involved:
16. During my previous periods of detention at BHJDC a normal day involved getting up at about 7.30am, having a group breakfast, making phone calls, playing sports and socializing around the units, including free, group access to outside basketball courts and fields. Also, between Monday to Friday we all went to school and did programs.
17. School started at about 9am each day and continued until lunch time, with a 30 minute recess. The boys then had lunch together in the units. After lunch school recommenced and continued until about 3.15pm.
18. School at BHJDC included lessons in maths and English and a half-day art class in drawing, painting and sketching. We had the same teachers most of the time - Patricia and Phil and Suzi. I felt the teachers cared about teaching us. I liked school and was ok at the work. I really liked the art class a lot.
19. Once a week we were taught by recreation officers who would organize and supervise team sports on the oval or the outside courts, such as football, volley-ball, gym and basketball. The boys were also permitted to mix inside the units and play sport together informally outdoors in any spare time.
20. From the end of school until about 4pm we would be locked-down in our cells. We were then let out until dinner at 5pm. After dinner we were allowed to stay out until 6.30pm - 7pm. We would then be locked down to sleep.
21. There were phones in the common area of each wing at BHJDC. Boys could request from Inga at case planning a $15 phone card each week and use the phones whenever to call family, friends or a lawyer.
22 He also detailed that he was able to attend counselling, especially with a psychologist. Courses were offered to teach skills to help get a job when released.
23 Since 15 May 2013 he has been continuously held in Unit 12 at Hakea Prison. Unit 12 has two levels with four wings. Each wing contains 16 double cells and the unit has been full of boys at all times:
35. There is one downstairs common area shared by each half (ie two wings) of unit 12. Each common area contains a ping-pong table, which must be shared between all the boys in both of the two wings.
36. There are four telephones in each common area of unit 12. One of the phones on my side is broken. The other phones do not operate between 3-4pm each day. Boys have to be let out of their cells one at a time to use the phone or use it when everyone is let out. At those times there is normally up to 20 boys waiting to use each available phone. We have no access to a video-link machine. My phone contact with my family in the community and in other jails has been very limited since I have been in HJDC.
37. There are a lot of boys crammed into unit 12. There are boys around everywhere all the time. A lot of the boys who were involved in the riot are in unit 12. This is much different to the previous situation at BHJDC, where each unit was much smaller with less boys. I do not like crowds. I constantly feel nervous and stressed as a result of being locked inside for long periods so close to so many boys. The amount of boys jammed into unit 12 means I am stressed out all the time.
38. There are not enough class rooms at [Hakea] to accommodate all of the boys at once. I think there is only one or two class rooms inside units 11 & 12. This means the four wings in each unit must attend school on a rotational basis. Recently, a couple of dongas have been build outside for extra rooms, but we still go to school much less than we did at BHJDC. Whilst on remand at BHJDC and since sentence I have been attending school for 2 hours, 2-3 times a week, at the most. School lasts only 2 hours at a time. At least one day each week is 'staff training day'. There is half school on that day.
...
40. We spend long periods each day locked-down in our cells in unit 12. On a normal day, we wake up and are let out of our cells for about 30 minutes for a group breakfast in the downstairs common area. After breakfast we are locked-down in our cells. Next, either downstairs or upstairs attend school for 2 hours each. Normally (but not always), the remaining boys are allowed some outside recreation, but the time is limited as there is only one oval and only one wing from units 11 and 12 can go outside at a time. This means the outdoor recreation time for an individual boy is usually limited to one hour per day. After outdoor recreation we are locked-down in our cells again until lunch, which represents a period of about 2 hours. We have lunch in our cells. After lunch we might have some free indoor time in the downstairs common area or be locked down. At about 5pm we are let out for dinner for 30-45 minutes.
24 B has been strip searched and handcuffed. Apart from a HIV course, and a hepatitis C awareness course, he has done no employment training, drug or alcohol training, or other programmes while at Hakea Prison. Work available is limited to dishing out food at meal times and some limited weeding in the courtyard. There is no set arrangement to see a psychologist. Case planning staff are not on site.
The State of Western Australia v JAB
25 The decision of the President of the Children's Court, insofar as it contains expressions of principle, should be applied by magistrates. The findings of fact are not binding. However, the evidence adduced on appeal is similar to that adduced before the President so that similar conclusions are available.
1. As at 20 January 2013 the only detention centre in Western Australia for children was the Banksia Hill Detention Centre (BHDC) located in Canning Vale, Perth. Previously there were two detention centres. Rangeview Remand Centre (RRC) was essentially used to detain children on remand and sentenced female children. BHDC was essentially used to detain sentenced male children. Sometimes remand and sentenced detainees were moved from one to the other for good reasons including security and capacity.
2. In the second half of 2012, RRC was closed and all of the detainees being held there were transferred to BHDC. As a result, all detainees, both those on remand and those sentenced, and both male and female, were detailed at BHDC. The site and buildings of what was RCC, became the Wandoo Prison Facility for 18-24 year olds.
3. On 20 January 2013 an incident occurred at BHDC during which parts of the facility, including 90-100 cells, were extensively damaged by some detainees. It was a very significant incident and the extent of the damage caused to the facility is unprecedented in this State.
...
12. By at least early February 2013 a decision was made by the Department of Corrective Services (DCS) that the balance of the male detainees who remained at BHDC would be transferred to the detention centre in Hakea Prison. All of them, or at least all of them other than those less than 14 years of age, were transferred to the detention centre in Hakea Prison on 7 and 8 February 2013. Whether it was all or all other than those less than 14 years of age does not matter for the purposes of this decision. That left at least all of the female detainees and perhaps a relatively small number of other detainees at BHDC.
13. Further to the orders gazetted on 5 February 2013 to which I have referred, the male detainees already in Unit 5 at the detention centre in Hakea Prison were shifted from Unit 5 and together with the balance of the males shifted to BHDC then occupied Units 11 and 12 in the detention centre in Hakea Prison from 8 February 2013.
14. In addition to the gazettal of units at Hakea Prison being declared a detention centre and the transfer of male detainees from BHDC to the detention centre in Hakea Prison as just mentioned, there were obviously other consequences as a result of the incident on 20 January 2013. Those consequences include lock-downs, the use of restraints, restrictions on visits, the use of strip searches, and a cessation or reduction of programs for some time at least at both the detention centres at Hakea Prison and BHDC. While it is clear and no issue is taken by any of the parties and DCS that those consequences have resulted, without evidence I cannot make any specific findings of fact on the existence and extent of any of them in any particular case.
26 The issue was whether the court could take the conditions of detention into account in setting a proper sentence. His Honour concluded:
On my reading of the cases I conclude that harshness of conditions in prison may be taken into account when sentencing an offender. I also conclude that harshness may fall within one or other or both of the two categories just mentioned.
I now return to consider the point concerning what level of harshness needs to exist before it may be taken into account as a relevant factor when considering sentence. I have deliberately stated the question in those terms and not in terms of what harshness needs to exist before it may be given any weight in the sentence because in some cases harshness may exist and be a relevant factor but for some good reason(s) not warrant any or much weight in the overall consideration [88] - [89].
27 His Honour then examined the provisions of the Young Offenders Act:
In my view the general principles in s 7 apply to all of the persons occupying all of those positions and also to all of the functions carried out by all of those persons under the YO Act. Accordingly, all of the general principles in s 7 apply to all decisions made in relation to the creation and maintenance of a detention centre and to the management of children in a detention centre. Further to all of that, all such decisions should be made for the purpose of satisfying the objectives provided in s 6 of the YO Act [114].
28 As a factual matter his Honour determined that Hakea Prison Units 11 and 12 could not properly be said to be a facility suitable for young persons as required by the Young Offenders Act s 7:
124. For all of those reasons, in my view the fact that young detainees are being held in units constructed for adults and located in an adult prison, Hakea Prison, is enough by itself to constitute harshness which can be taken into account. In the case of both the detention centre in Hakea Prison and BHDC, harshness can also result from the conditions of regimes which, consistent with what I have just mentioned, are affected by physical infrastructure, staff numbers and the interaction between staff and detainees.
...
127. For young aboriginal detainees, lock-downs would be particularly harsh given their cultural connection to country. The principle in s 7(1) requires culture to be factored into management decisions in detention centres. If young aboriginal children are being frequently locked down and for long hours, then unless there was some acceptable explanation, it would be in breach of s 7(1).
...
146. In my view detention is a more severe form of punishment if programs are not made available to children because it does not serve that further purpose of rehabilitation as provided in the statutory framework of the YO Act.
...
151. For all these reasons I find that:
1. Where harshness is a characteristic of the conditions of detention which impact on an individual, then it may be taken into account when sentencing that individual. It does not matter whether the conditions apply to all or any particular number of individuals in the detention centre, and
2. Harshness can arise from the characteristics of the detention centre itself and also from the conditions of the detention regime including but not limited to lock-downs, use of restraints, limits on visits, strip searches, and the unavailability of programs, and
3. In cases concerning children the consideration of whether or not the harshness of detention conditions should be taken into account must be made by applying all of the objectives and general principles in the YO Act to the evidence in the particular case. Harshness should be taken into account if the conditions of detention are different from and more onerous than those in regimes which would fall within the contemplation of the statutory framework of the YO Act.
4. When a Court takes harshness of conditions of detention into account on sentence it is not encroaching on the role of the executive to manage the detention centre.
Ground 2
29 It is convenient to deal with this ground first:
(2) The Magistrate erred in deciding to dismiss the appellant's application for a declaration under s 189(3) of the Young Offender's Act 1994 (WA) that two prior convictions for home burglary be regarded as not convictions for any purpose.
Particulars
(a) The known harshness of the conditions of the appellant's past and likely future detention at Hakea Juvenile Detention Centre constituted 'special circumstances'.
(b) The 'special circumstances' justified the making of the declarations in order that the mitigating factor of hardship in custody properly resulted in an appropriate reduction in the term of detention.
Certain offenders to be regarded as not convicted
(1) This section does not apply to, or in relation to, a person convicted of murder, attempt to murder or manslaughter.
(2) If a young person is convicted of an offence and a period of 2 years has expired since -
(a) the discharge of any sentence imposed as a result of the conviction, or every sentence if more than one sentence was imposed; or
(b) the date of conviction, if no sentence that required to be discharged was imposed as a result of the conviction,
the conviction is not to be regarded as a conviction for any purpose, except as provided in this section.
(3) On the application of the person concerned the court, if it thinks that special circumstances exist, may declare that subsection (2) applies in relation to a conviction of a young person even though the period of 2 years mentioned in that subsection has not expired.
(4) In subsection (2), the reference to a sentence imposed as a result of a conviction includes a reference to an order made as a result of the conviction, and when the order has been fully complied with the sentence is to be regarded as having been discharged.
(5) If a young person is convicted of an offence and a youth community based order is made as a result of the conviction, unless the person has been subsequently dealt with for that offence the conviction is not to be regarded as a conviction for any purpose, except as provided in this section.
(6) The reference in subsection (5) to a youth community based order includes a reference to a probation order or community service order made under the Child Welfare Act 1947 before the commencement of section 198.
...
(9) Part 3 of the Spent Convictions Act 1988 has effect in relation to a conviction that, under this section, is not to be regarded as a conviction as if it were a spent conviction under that Act.
31 What constitutes 'special circumstances' was considered in R v Simpson (2001) 53 NSWLR 704. In Simpson a bench of five judges convened to deal with a difference of opinion in earlier judgments between what was called the 'strict approach' and the 'liberal view' of the Crimes Sentencing Procedure Act 1999 (NSW) which provided relevantly s 44(2):
The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.
32 B submitted that the subjective circumstances, including personal matters, meant that the primary judge should have made a finding of special circumstances.
33 Spigelman CJ held:
It is unnecessary to review the numerous authorities in which this Court has made reference to 'special circumstances'. The primary authorities said to reflect a 'strict approach' do not, in my opinion, reflect a difference as to the matters which may be taken into consideration in determining whether the 'circumstances' are sufficiently 'special' to warrant a variation in the statutory proportion. Rather, the differences reflect the wide variation in the range of legitimate opinion in the formulation of a discretionary judgment [53].
34 In general observations which are helpful, Spigelman CJ said:
The words 'special circumstances' appear in numerous statutory provisions. They are words of indeterminate reference and will always take their colour from their surroundings. The sentencing context in which they appear in the present legislation must be understood against the background of a long-standing line of decisions in the High Court, commencing with Power v The Queen (1974) 131 CLR 623, which emphasises that the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought be the minimum period of actual incarceration. The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected.
Statutory words of such generality usually lead courts to refuse to identify in advance a list of matters capable of satisfying the statutory formulation. While certain considerations might not often be sufficiently 'special', so that an exceptional justification is required for them to attain the requisite statutory quality, nevertheless there may always be circumstances in which such a factor is of sufficient strength, either alone or in combination with other factors, to justify a conclusion that 'special circumstances' are made out on the facts of a particular case. It will be comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a 'special circumstance'.
The statutory proportion constitutes a 'fetter' or 'constraint' (to use the words of the Court in R v GDR (1994) 35 NSWLR 376) on the exercise of what would otherwise be an unfettered and unconstrained discretion. It does not, however, alter the discretionary nature of the judgment for which the statute provides in s 44(1)(b) of the 1999 Act, requiring the Court to fix a non-parole period, subject to s 45 of the Act [59] - [61].
35 The other judges agreed with the Chief Justice as did Sully J who added his own comments:
As to the matter of 'special circumstances', as contemplated by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I would make the following observations:
1. Before any question of special circumstances arises at all, there must first be determined a proper head sentence, and a proper accompanying non-parole period. By 'proper' I mean proper having regard to a correct definition of the relevant objective facts and the relevant subjective factors; and to a correct striking of a balance between those two categories of matters.
2. The striking of that correct balance is not to be conceptualised, or to be approached practically, in some hyper-refined or hair-splitting kind of way. Sentencing is neither a science nor a mere exercise in creative mathematics. Sentencing is an art, the proper manifestation of which brings judgment based upon learning and experience to bear upon given facts and circumstances so as to achieve a result that expresses in the particular case a just resolution of the competing interests, public and private, that are described by Sir John Barry in the passages which are quoted from his paper 'The Courts and Criminal Punishment' by McHugh, Hayne and Callinan JJ in their joint judgment in Pearce v The Queen [1998] 194 CLR 610 at 623, 624.
…
5. I have no quarrel with the proposition that it is difficult, if not impossible, in practice, and as well undesirable in principle, to attempt some all-embracing definition of what can, and what cannot, satisfy the notion of 'special circumstances'. But it does not follow, in my opinion, that it is correct in principle to say that in any and every particular case, the subjective matters that have been factored correctly into the definition of a head sentence and a non-parole period, can simply be regurgitated as 'special circumstances', so as to require a reduction in what would be, otherwise, a proper non-parole period. Relevant subjective factors and 'special circumstances' are not simple synonyms. They are discrete considerations. Each has its own proper place in the framing of a proper sentence; but neither is ever to be allowed to produce a result that does not adequately, (and to quote from Sir John Barry's paper earlier herein mentioned): ' … reflect and correspond with the sensible ideas about right and wrong of the society … ' for the protection of which the particular sentence is being passed at all. It is worth reiterating the following additional observations of Sir John Barry, which he applies to the criminal law generally, but which have a special relevance in connection with the art of sentencing:
[It] must be operated within society as a going concern. To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements. It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just [101].
36 The Young Offenders Act pt 10 is entitled 'Miscellaneous". Section 189 is within it. It is not possible to construe s 189 or s 190 from the context of the part. The context of 'special circumstances' is determined by the words of the section.
37 Section 189 has a rehabilitative purpose similar to, though more broad than, the Spent Convictions Act 1988 (WA) or the Sentencing Act 1995 (WA) s 45.
38 Except in the most serious of cases under s 189(1), it relieves young offenders of the long term consequences of a criminal record.
39 'Special circumstances' must be seen in that context. There must exist circumstances, which for reasons analogous to the making of a spent conviction order, allow a court to shorten the statutory 2 year record of conviction.
40 A liberal definition of 'special circumstances' may be applied but within that statutory context. Not all circumstances can be considered under s 189. Only those circumstances which have an effect on the rehabilitation of the offender by foreshortening the period before which the conviction is expunged can be considered, whether or not they can only be categorised as 'special'.
41 In the present case, the asserted 'special circumstances' are the harsh conditions. A declaration would directly undermine the plain Parliamentary intention expressed in the Criminal Code (WA) s 401(4)(b).
42 The circumstances are distinguished from the facts in Simpson, where the 'special circumstances' provision affected the regime of parole within the wider context of the section. Parliament gave a court express discretion to alter the statutory parole formula if the pre-condition of special circumstances was met. Even then Sully J cautioned that a proper sentence had first to be determined.
43 Within the context of the Young Offenders Act s 189, it is not a proper purpose to defeat the operation of a clearly expressed Parliamentary intention to mitigate a sentence.
44 I hold that within the Young Offenders Act s 189, a declaration of 'special circumstances' cannot be made in order to defeat specific statutory provisions relating to a mandatory sentence.
45 I dismiss ground 2.
Grounds 1 and 3
(1) The Magistrate erred in failing to release the appellant from detention by imposing detention and an intensive supervision order (ie a conditional release order)
Particulars
(a) The sentence of detention failed to take into account in mitigation a penalty the known harshness of the conditions of the appellant's past and likely future detention at Hakea Juvenile Detention Centre.
(b) Given the special deprivations and hardship associated with the conditions of the appellant's past and likely future detention at Hakea Juvenile Detention Centre, a sentence of detention failed to give effect to the emphasis on rehabilitation in the Young Offender's Act 1994 (WA).
(c) The sentence of 12 months detention as manifestly excessive, in all the circumstances.
(3) The Magistrate imposed a sentence that is manifestly excessive.
46 The grounds are effectively one of error implied in the result.
47 Counsel filed written submissions in the primary court as to the conditions under which B was detained. The magistrate appeared to accept the description of the conditions.
48 The magistrate was bound by law to impose a sentence of at least 12 months, B being a repeat offender.
49 The only issue is whether the magistrate ought to have made a conditional release order. B had been in Hakea Prison under the harsh conditions described in the submissions. B was still under 17 and would necessarily serve at least some further period in detention at Hakea Prison.
50 Although the transcript is not completely clear, I accept that the magistrate expressly gave consideration to a conditional release order and rejected that option. B was a second time repeat offender who had taken steps to prevent apprehension.
51 These are powerful considerations to upholding the sentencing determination as Mr Scholz capably submitted.
52 However, as Mr Brunello contended, correctly, the unusual harshness of detention was part of the personal circumstances of the offender. By declining to make a CRO, the mitigatory effect of the conditions under which B was in fact being held was accorded no weight. It necessarily played no part in the sentencing disposition.
53 The Young Offenders Act s 7(i):
[d]etention of a young person in custody, if required, is to be in a facility that is suitable for a young person and at which the young person is not exposed to contact with any adult detained in the facility, although a young person who has reached the age of 16 years may be held in a prison for adults but is not to share living quarters with an adult prisoner;
54 Detention within an adult prison, and in particular detention in the circumstances in material before the primary court, and in evidence in the appeal, does not conform to the Young Offenders Act s 7(i).
55 I infer error in the result because if the harshness of the conditions been taken into account, and given appropriate weight, a conditional release order would have been made.
56 If I am wrong about that (it sometimes happens) I would in any event allow the appeal because I have regard to the contents of B's affidavit: Criminal Appeals Act 2004 (WA): s 14(5). As a result the appeal should also be allowed on the grounds of the further description of the conditions of detention. A court requires a report before making a CRO.
57 A report prepared by Community and Youth Justice dated 14 May 2013 was before the primary court. It notes that despite his current offending B appears to have matured more recently. His mother is seeking help in managing his behaviours more appropriately. B has demonstrated ability in education. These positive factors would not normally lead to a CRO when the nature and extent of the previous offending is considered. However, when coupled with the evidence of the conditions under which detention is being served, they tip the balance towards a CRO.
58 A conditional release order must have an agenda attached. The agenda will include the matters outlined in the plan set out in the report.
4
3
1