D v Edgar
[2019] WASC 183
•24 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: D -v- EDGAR [2019] WASC 183
CORAM: ACTING JUSTICE STRK
HEARD: 8 MARCH 2019
DELIVERED : 8 MARCH 2019
PUBLISHED : 24 MAY 2019
FILE NO/S: SJA 1101 of 2018
BETWEEN: D
Appellant
AND
MARY EDGAR
First Respondent
CLARE KELLY
Second Respondent
CHRISTINE FLEAY
Third Respondent
ON APPEAL FROM:
For File No: SJA 1101 of 2018
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B COLEMAN
File Number : CC BUN 1151 - 1154 of 2017; CC BUN 569 of 2017; CC BUN 571 of 2017; CC BUN 887 of 2017
Catchwords:
Criminal law - Appeal against sentence - Mandatory minimum sentence - Repeat offender after October 2015 - Aggravated home burglary - Young offender - Application made pursuant to the Young Offenders Act 1994 (WA) s 189(3) - Relationship between the Young Offenders Act 1994 (WA) s 189(2) and (3) and the mandatory minimum sentencing provisions of the Criminal Code for home burglary repeat offenders, as amended by proclamation of the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA)
Legislation:
Children's Court Act of Western Australia 1988 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Criminal Code Amendment Act (No 2) 1996 (WA)
Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA)
Young Offenders Act 1994 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | G M G McIntyre SC |
| First Respondent | : | K I Goddard-Borger |
| Second Respondent | : | K I Goddard-Borger |
| Third Respondent | : | K I Goddard-Borger |
Solicitors:
| Appellant | : | Aboriginal Legal Service |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
| Third Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AD v Western Australia [No 2] [2007] WASCA 207
B (a child) v Hepple [2013] WASC 303; (2013) A Crim R 436
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Briggs v Houlihan [2018] WASC 301
Colbung v Western Australia [2010] WASCA 217
Director General of Department of Transport v McKenzie [2016] WASCA 147
DLD (a child) v The State of Western Australia [2018] WACC 4
Harris v The State of Western Australia [2005] WASCA 147
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Lancaster v The Queen [1989] WAR 83
P (a child) v The Queen (1997) 94 A Crim R 593
R v GRC [2002] WACC 11; (2002) 31 SR (WA) 23
R v Mackay (Unreported, CCA SCt of WA, Library No 970689, 18 November and 10 December 1997)
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Storey [1988] 1 VR 359
Robertson v The State of Western Australia [2009] WASCA 83
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stark v Plant [2010] WASCA 74
The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51
The State of Western Australia v Egeland [2018] WASCA 228
Wimbridge v The State of Western Australia [2009] WASCA 196
WO (a child) v Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352
ACTING JUSTICE STRK:
(These reasons were delivered extemporaneously at the conclusion of the hearing. They have been edited from transcript to correct matters of grammar and so as to include complete references in the form of footnotes.)
By reason of the appellant's age, on 26 September 2018 it was ordered that the name of the appellant be suppressed and substituted with the letter 'D'. The suppression order extends to these reasons.
This is an appeal against sentence. The appeal concerns the relationship between the Young Offenders Act 1994 (WA) s 189(2) and s 189(3), and the home burglary repeat offender provisions of the Criminal Code (WA) introduced in 1996, and amended by proclamation of the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA).
While the appellant presses four separate grounds of appeal, it is common ground as between the parties that the question to be answered by the court is whether the learned magistrate erred in law in finding that she did not have the power to make a declaration pursuant to the Young Offenders Act s 189(3), in relation to the appellant's previous convictions for home burglary.
For the reasons set out below, I find that the home burglary repeat offender provisions of the Criminal Code, as amended in 2015, do not exclude the operation of the Young Offenders Act s 189(3).
Background
At the Children's Court in Bunbury on 13 April 2018, the appellant was convicted by his own pleas of guilty to seven offences, and sentenced in the following manner:
| Charge number | Offence | Date of commission | Sentence |
| CC BUN 1151 of 2017 | Aggravated home burglary (Criminal Code s 401(2)(a)) | 26 December 2017 | Juvenile Conditional Release Order for 12 months concurrent, from 13 April 2018 |
| CC BUN 1152 of 2017 | Aggravated home burglary (Criminal Code s 401(2)(a)) | 26 December 2017 | Juvenile Conditional Release Order for 12 months concurrent, from 13 April 2018 |
| CC BUN 1153 of 2017 | Stealing | 26 December 2017 | No punishment, |
| CC BUN 1154 of 2017 | Stealing | 26 December 2017 | No punishment, |
| CC BUN 569 of 2017 | Breach of a Juvenile Conditional Release Order (order of 14 August 2017 for aggravated home burglary, | 11 - 12 May 2017 | Juvenile Conditional Release Order for 12 months concurrent, from 13 April 2018 |
| CC BUN 571 of 2017 | Breach of a Juvenile Conditional Release Order | 8 July 2017 | Juvenile Conditional Release Order for 12 months concurrent, from 13 April 2018 |
| CC BUN 887 of 2017 | Assault Public Officer (Criminal Code s 318) | 20 October 2017 | Juvenile Conditional Release Order for 12 months concurrent, from 13 April 2018 |
Previous convictions
The appellant had previously recorded convictions for aggravated home burglary offences as described below:
| Charge number | Offence | Date of commission |
| CC BUN 582 of 2016 | Aggravated home burglary (Criminal Code s 401(2)(a)) | 6 November 2016 |
| CC BUN 180 and 184 of 2017 | Aggravated home burglary (Criminal Code s 401(2)(a)) | 10 and 12 February 2017 |
| CC BUN 569 of 2017 | Aggravated home burglary (Criminal Code s 401(2)(a)) | 11 - 12 May 2017 |
The facts of the seven offences
The facts alleged and admitted in respect of the offences that were before the magistrate on 13 April 2018 for sentencing are as follows.
CC BUN 1151 – 1154 of 2017
Between 4.30 pm and 4.45 pm on 26 December 2017, the appellant, in the company of others, entered a house at 24 Hamersley Drive in Carey Park.
Using a sling‑shot, the co‑offenders smashed a front window and when no one came out of the house, they jumped the side fence and entered the rear yard. The appellant followed. A co‑offender removed a fly screen and forced open a sliding glass window. The room was attached to the main house, a brick and window construction. The house was searched and a front door key located.
All offenders left the house and remained in the area for about an hour. They later returned and entered through the front door using the stolen key.
Several rooms were entered and drawers searched, from where various items were stolen. Most of the stolen items (including jewellery, a mobile phone and iPod) were placed into the appellant's backpack. A witness called the police, resulting in the apprehension of the appellant after a short foot chase. The appellant still had the backpack with several stolen items on him at the time of apprehension. He was taken to a police station where he participated in an interview, made admissions and was arrested.[1]
CC BUN 569 of 2017
[1] ts 10 ‑ 11 (29 March 2018).
Between 2.30 pm on 11 May 2017 and 3.00 pm on 12 May 2017, the appellant in the company of two others went to a house in Carey Park. After establishing that no one was home, they jumped a fence and entered the rear yard. A co‑offender kicked the back door open and all three entered. A locked internal door to the master bedroom was kicked open and several items were stolen. The appellant and the co‑offenders then left the premises with the stolen items, being a laptop computer, a Playstation 4 console, and several items of clothing.[2]
CC BUN 571 of 2017
[2] ts 7 (29 March 2018).
On 8 July 2017, the appellant, in company with three others, was at the McDonalds restaurant located within Parks Shopping Centre in Carey Park. While ordering food, the appellant stole a set of vehicle keys from near the rear of the cash register. The vehicle, parked in the McDonalds car park, was a yellow XR6 Ford Falcon Sedan. The vehicle had manual gears.
The appellant left the McDonalds store with the keys in his pocket. The appellant claims that he threw the keys away in a nearby park as he could not drive a manual car. Later that day, the vehicle was stolen from another location (the carpark of Bunbury Regional Hospital) where the owner had driven, after retrieving a spare set of keys from her home.[3]
CC BUN 887 of 2017
[3] ts 8 (29 March 2018).
At approximately 12.25 pm on 20 October 2017, while attending school, the appellant and another student were involved in a fight in the corridor. Two teachers verbally intervened and separated the appellant and the other student. The other student was secured in a classroom separated from the appellant by a sliding door. While the teacher was holding the sliding door closed, the appellant ran at her from behind and struck her in the back with his right shoulder causing her to lose balance and fall forwards, causing the door she was holding to slide open. The teacher felt instant pain to her back. The appellant was moved away by another student and later removed from the school and suspended for 10 days.[4]
The magistrate's reasons for refusing an application made pursuant to the Young Offenders Act s 189(3)
[4] ts 9 (29 March 2018).
Before counsel for the appellant addressed the court in mitigation of sentence on 13 April 2018, an application was made on behalf of the appellant pursuant to the Young Offenders Act s 189(3), that the appellant's previous convictions for home burglary not be regarded as convictions for the purpose of sentencing. Section 189 is reproduced at sch A to these reasons.
The effect of such a declaration, had it been made, would have been that the appellant would not have met the criteria for a 'repeat offender' pursuant to the Criminal Code s 401A and s 401B.
The relief afforded by s 189(2) and s 189(3) is afforded to a 'young person'. A 'young person' is defined in the Young Offenders Act s 8 to mean a person who has not reached the age of 18 years; or a person to whom the Young Offenders Act applies because of s 4. Section 4 provides that if a person commits or allegedly commits an offence before reaching the age of 18 years, the Young Offenders Act applies to the person as a young person for purposes connected with that offence or any order that was made in dealing with the person for that offence.
The appellant was aged 12 years and 5 months on 26 December 2017 when he committed the offence the subject of charges CC BUN 1151 and 1152 of 2017, and was a 'young person' for the purposes of each of his previous convictions of home burglary.
The learned magistrate declined to make a declaration pursuant to s 189(3), as her Honour was not satisfied that she had the power to use s 189(3) to abrogate the mandatory minimum sentencing provisions of the Criminal Code for home burglary repeat offenders.[5] The Criminal Code s 400, s 401A, s 401B, and s 401(4) are reproduced at sch B to these reasons.
[5] ts 23 (13 April 2018).
The Criminal Law (Home Burglary and Other Offences) Act came into operation on 31 October 2015.[6] Her Honour noted that she did not have the benefit of authority dealing with s 189 and a young offender, determined after the 2015 amendments to the Criminal Code had come into operation.[7]
The sentence imposed by the magistrate
[6] Western Australia, Government Gazette No 165 (30 October 2015) 4493.
[7] ts 23 (13 April 2018).
For the purpose of the Criminal Code s 401A, charges CC BUN 1151 and 1152 of 2017 were treated by the magistrate as a single conviction,[8] and for sentencing purposes, the magistrate proceeded on the basis that the appellant was a 'repeat offender' as defined by s 401B.
[8] Criminal Code s 401A(3).
The magistrate determined that she was bound to impose a term of detention of at least 12 months, either by way of immediate detention or by way of an Intensive Youth Supervision Order with Detention (known as Juvenile Conditional Release Order).
Her Honour cancelled an existing Juvenile Conditional Release Order in respect of CC BUN 569 and 571 of 2017. For all but the stealing offences, the appellant was sentenced to a Juvenile Conditional Release Order for a period of 12 months commencing 13 April 2018, to run concurrently.
Pursuant to the Young Offenders Act s 66, no punishment was imposed for the charges of stealing (CC BUN 1153 and 1154 of 2017), which charges were related to the aggravated burglary offences.[9]
Application for a review of sentence made to the Children's Court
[9] ts 24 (13 April 2018).
Before commencing this appeal, an application was made on behalf of the appellant pursuant to the Children's Court Act of Western Australia 1988 (WA) s 40, for a review by the President of the sentence imposed by the learned magistrate on 13 April 2018.
The application was dismissed by Wager DCJ in July 2018 on the basis that the two requirements in s 40(1), empowering the President to conduct a review of the magistrate's decision, had not been met.[10] While Wager DCJ did not have the power to review the decision of the learned magistrate in respect of the Young Offenders Act s 189(3), I have had the benefit of her Honour's analysis of the issues, which are consistent with these reasons.
[10] DLD (a child) v The State of Western Australia [2018] WACC 4 [33].
The appeal
The appeal was commenced on 8 August 2018, and the following grounds of appeal are pressed:
1.The learned sentencing magistrate erred in law in finding she did not have the power to make a standing order under s 189(3) of the Young Offenders Act in relation to the appellant's previous convictions for home burglary.
2.The learned sentencing magistrate erred in law by dismissing the appellant's application for an order under s 189(3) of the Young Offenders Act without considering the merits of that application.
3.There was a miscarriage of justice in that the learned sentencing magistrate was unable to impose a lesser sentence than the sentence imposed as a result of her failure to consider the merits of the appellant's application under s 189(3) of the Young Offenders Act.
4.There was a miscarriage of justice in that the sentence imposed was manifestly excessive in all the circumstances.
The appellant relies on the outline of submissions lodged on his behalf on 21 January 2019; and the supplementary submissions lodged on 20 February 2019. Also before me is a copy of the appellant's record (annexed to the affidavit of Alexandra Jay Lachal, solicitor, sworn on 15 February 2019); together with the transcript of hearing before the magistrate on 29 March 2018 and 13 April 2018; a copy of the review application made on behalf of the appellant pursuant to the Children's Court Act s 40; and the published reasons for decision of Wager DCJ delivered on 27 July 2018 (which documents were annexed to the affidavit of Michelle Huber, a legal practitioner with the care and conduct of this matter on behalf of the appellant, sworn on 3 August 2018).
The respondents rely on the outline of submissions lodged on 29 January 2019; and the supplementary submissions lodged on 27 February 2019.
Also before me is the FASD C.A.R.E report of Clinical Associate Professor Dr Raewyn Mutch dated 22 March 2018, and two additional reports provided by Bunbury Children's Court.[11]
[11] Update report dated 28 March 2018; Breach by non-compliance report dated 4 January 2019.
It was accepted by the parties and is well established that an appellate court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.[12] An appellate court may intervene where the appellant can establish that the primary judge made an express or implied material error of law or fact.[13]
[12] Appellant's submissions [8]; Respondents' submissions [5]; and The State of Western Australia v Egeland [2018] WASCA 228 [56] (Buss P, Mazza & Mitchell JJA).
[13] Stark v Plant [2010] WASCA 74; Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42] cited in The State of Western Australia v Egeland [46] (Buss P, Mazza & Mitchell JJA).
The appellant's primary concern is the alleged failure by the magistrate to make a declaration under the Young Offenders Act s 189(3), in circumstances where her Honour determined that she did not have the power to do so. The appellant contends that the magistrate erred in law in deciding that she did not have the power to make an order under the Young Offenders Act s 189(3) in relation to the appellant's previous convictions for home burglary offences, which error led her Honour to decline to consider the merits of the s 189(3) application; and consequently, due to the operation of the mandatory minimum sentencing provisions, to impose the global Juvenile Conditional Release Order.[14]
[14] Respondents' submissions par 7.
The respondents agree that the appeal should be allowed and the appellant resentenced.[15] The respondents concede that the magistrate erred in law in deciding that she did not have the power to make an order under the Young Offenders Act s 189(3) in relation to the appellant's previous convictions for home burglary offences. Further, the respondents accept the matters outlined by the appellant regarding the particular circumstances of the appellant, and agrees that these could have amounted to a finding of 'special circumstances' within the meaning of that term in s 189(3). The respondents acknowledge that this would have enlivened the discretion of the magistrate to make a declaration under s 189(3) with respect to the otherwise prior relevant convictions.
[15] Respondents' submissions pars 5 ‑ 11.
The respondents accept that appeal grounds 1 and 3 have been made out and that this court's jurisdiction to resentence has been enlivened. In this context, the respondents do not address more substantively grounds 2 and 4.
The position adopted and the concessions made by the respondents are not determinative of the matter. However, for the reasons set out below, the concessions were properly made.
Extension of time
An appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the court orders otherwise. If a person is sentenced on a later date than the date on which the person is convicted of the offence, the time for appeal runs from the date of sentencing.[16]
[16] Criminal Appeals Act 2004 (WA) s 10(3) and s 10(4).
The appellant was sentenced by the learned Magistrate on 13 April 2018, and the appeal was commenced out of time on 8 August 2018.
The test for the grant of an extension of time to appeal is whether it is in the interests of justice to grant an extension.[17] Where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[18]
[17] Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [108] (Wheeler J), applied in Briggs v Houlihan [2018] WASC 301 [47].
[18] Robertson v The State of Western Australia [2009] WASCA 83 [9] (Buss JA); Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); AD v Western Australia [No 2] [2007] WASCA 207 [15] (Buss JA, Pullin JA & Miller AJA agreeing).
Merely showing that there are reasonable prospects of demonstrating that there was a miscarriage of justice is not sufficient. Something more has to be shown, otherwise there would be no practical consequence ever flowing from the failure to appeal within time.[19]
[19] Wimbridge v The State of Western Australia [2009] WASCA 196 [21], citing Bardsley [113] ‑ [114].
Exceptional circumstances are not closed. A compelling explanation for the delay would generally constitute exceptional circumstances.[20]
[20] Wimbridge [20] (Wheeler JA).
In support of the application for the extension of time, the appellant relies on the affidavit of Michelle Huber, a legal practitioner with the care and conduct of this matter on behalf of the appellant. Ms Huber deposes to the steps and time taken to secure the sentencing transcript, and then to pursue a review application in the Children's Court.
The review application was filed on or around 8 May 2018 and was dismissed on 27 July 2018. This appeal was commenced shortly thereafter.
While the review application was misconceived, the explanation for delay provided by Ms Huber is sufficiently compelling. Further, the respondents do not oppose the application for an extension of time,[21] and there would be no prejudice to the respondents if an extension of time were granted.
[21] Respondents' submissions par 5.
Before determining whether an extension of time should be granted, the merits of the appeal should be considered.
Leave to appeal
This is an appeal made under and subject to the Criminal Appeals Act 2004 (WA) pt 2, and the appellant requires leave to appeal.[22]
[22] Children's Court of Western Australia Act s 41, and the Criminal Appeals Act s 9(1).
The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.[23] That means that the ground must be judged to have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[24]
[23] Criminal Appeals Act s 9(2).
[24] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
If leave to appeal is refused, the appeal is taken to be dismissed.[25] If leave to appeal is granted, the court may dismiss or allow the appeal, and may set aside the sentence imposed and substitute a sentence that should have been imposed.[26]
[25] Criminal Appeals Act s 9(3).
[26] Criminal Appeals Act s 14.
It is appropriate that the question of extension of time to appeal and the application for leave to appeal be heard together with the appeal.[27]
[27] Samuels v The State of Western Australia [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
Ground 1
I begin my examination of the merits of ground 1 of the appeal by setting out the statutory framework.
Young Offenders Act s 189
The Young Offenders Act is an act which provides for the administration of juvenile justice. The objectives of the Act include prescribing provisions which embody 'the general principles of juvenile justice, for dealing with young persons who have, or are alleged to have, committed offences'.[28]
[28] Young Offenders Act s 6(b).
The general principles that are to be observed in performing functions under the Young Offenders Act are set out in s 7, and the principles and considerations to be applied in sentencing young offenders are contained in s 7, s 46, and s 120.
The general principles to be observed in performing functions under the Young Offenders Act include only detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, as a last resort, and if required, for as short a time as is necessary.[29]
[29] Young Offenders Act s 7(h). See also Young Offenders Act s 120.
The Young Offenders Act places significant emphasis on the sentencing objective of rehabilitation.[30] Further, the Act provides that a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct.[31]
[30] The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51 [16] (Steytler P, McLure JA & Miller AJA), citing WO (a child) v Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352, 362.
[31] Young Offenders Act s 7(b).
The Young Offenders Act s 189 is found in pt 10 of the Act, which part contains miscellaneous provisions. Section 189 was not amended in 2015 as part of the suite of amendments effected by the Criminal Law (Home Burglary and Other Offences) Act.[32]
[32] Section 189 has been amended on three occasions: by No 29 of 2008 s 41(3); No 8 of 2012 s 203; and No 17 of 2016 s 57.
If either of the conditions set out in s 189(2)(a) or (b) are satisfied, the Young Offenders Act s 189(2) allows for certain offenders (those not convicted of murder, attempt to murder or manslaughter), to be regarded as not convicted for any purpose, except as provided in s 189.
Pursuant to s 189(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 the conviction of a young person even though the temporal conditions are not met. That is, the period of 2 years mentioned in subsection (2) has not expired.
The home burglary repeat offender provisions of the Criminal Code
Before the 2015 amendments, repeat offender provisions introduced in 1996 by the Criminal Code Amendment Act (No 2) 1996 (WA), were contained in the Criminal Code s 400 and s 401.
The Criminal Code Amendment Act (No 2) amended the Criminal Code so as to introduce s 401(4)(b) in the following terms:
(4)If a person convicted of an offence against subsection (1) or (2) committed in respect of a place ordinarily used for human habitation was a repeat offender at the time of committing that offence, the court sentencing the person shall sentence the offender –
…
(b)if the offender is a young person (as defined in the Young Offenders Act 1994) either to at least 12 months imprisonment or a term of at least 12 months detention (as defined in that Act), as the court thinks fit, notwithstanding section 46 (5a) of that Act.
The term 'repeat offender' was defined in s 400(3) as follows:
For the purposes of this chapter a person is a repeat offender if it is proved to the satisfaction of the court that the offender –
(a)committed and was convicted of a relevant offence committed in respect of a place ordinarily used for human habitation; and
(b)subsequent to that conviction again committed and was convicted of a relevant offence committed in respect of such a place,
and it does not matter that the sequence described in paragraphs (a) and (b) has occurred more than once.
Section 400(4) was enacted in the following terms:
For the purposes of subsection (3) –
(a)a relevant offence is an offence against this chapter (as enacted at any time) other than an offence against section 407;
(b)a conviction includes a finding or admission of guilt that led to a punishment being imposed on the offender, or an order being made in respect of the offender, whether or not a conviction was recorded; and
(c)a conviction that has been set aside or quashed is to be disregarded.
In 2015, the Criminal Law (Home Burglary and Other Offences) Act inserted into the Criminal Code s 1 definitions of 'adult offender', 'aggravated home burglary', 'home burglary', and 'juvenile offender'.
The Criminal Law (Home Burglary and Other Offences) Act introduced mandatory minimum sentences for certain offences committed in the course of an 'aggravated home burglary'. It also increased the minimum term of imprisonment for adult repeat offenders, and changed the approach to the calculation of relevant convictions made when determining whether someone is a 'repeat offender'. When sentencing for offences committed after 31 October 2015, any conviction for a home burglary committed after 31 October 2015 was to be regarded as a relevant conviction irrespective of its timing in relation to any other home burglary offence.[33]
[33] See the discussion of the departure from Lord Coke's rule in Lexis Nexis, Criminal Law: Western Australia Vol 1 (at Service 191) [s 401A.5].
The Criminal Law (Home Burglary and Other Offences) Act repealed and replaced the text of s 401. However, the substituted text of s 401(4)(b) continued to prescribe a mandatory term of imprisonment or detention of at least 12 months for a repeat offender who was a person who had not reached 18 years of age when the current offence was committed.
I accept the submission made on behalf of the appellant, which submission was adopted by the respondents, that the 2015 amendments did not substantively change how s 401(4) applies to juvenile offenders.
Ground 1: A review of the case law - the 1996 home burglary repeat offender provisions and the Young Offenders Act s 189
P (a child) v The Queen
In P (a child) v The Queen,[34] the Court of Appeal considered the application of the Young Offenders Act s 189 in circumstances where the home burglary repeat offender sentencing provisions of the Criminal Code applied, in the form enacted in 1996.
[34] P (a child) v The Queen (1997) 94 A Crim R 593 (Malcolm CJ, Ipp & Steytler JJ).
In P (a child) v The Queen, the appellant had pleaded guilty in respect of an offence of burglary, committed when he was 16 years of age. By the time of his conviction, the appellant had committed and had been convicted of three previous home burglaries, which had taken place in August 1993, January 1994 and July 1994, respectively. Each burglary was a 'relevant offence', and if taken into account in considering what sentence should be imposed upon the appellant in respect of the latest conviction, the appellant would have been sentenced to the minimum term of imprisonment or detention by operation of s 401(4)(b).
The appellant argued that the prior convictions in respect of the offences committed in August 1993 and January 1994 should not be taken into account, as the Young Offenders Act s 189(2) applied. It was common ground that the offences committed in August 1993 and January 1994 fell within the terms of s 189(2)(a). That is, the sentences imposed had been discharged more than two years prior to the commission of the latest burglary.
The respondent contended that by virtue of either the Young Offenders Act s 189(7), or the Criminal Code Amendment Act (No 2) 1996 (WA) s 4(3), these convictions were required to be taken into account for the purposes of the Criminal Code s 400(3), and that the appellant was, consequently, a 'repeat offender' at the time of committing the latest burglary.
At that time, the Young Offenders Act s 189(7) provided as follows:
This section does not prevent -
(a)a person in respect of whom a youth community based order has been made upon the person's conviction of an offence from being subsequently dealt with for the offence as a person so convicted if a condition of the order is not observed;
(b)any subsequent proceedings that may be taken against the offender under this Act or on indictment in relation to the offence to which this section applies or for a subsequent offence; or
(c)the making of a record of anything that paragraph (a) or (b) allows.
The Criminal Code Amendment Act (No 2) s 4(3) provided:
To avoid doubt it is declared that section 400(3) of The Criminal Code as enacted by this Act applies in respect of offences committed at any time and to convictions recorded at any time.
At first instance, the President of the Children's Court construed the various provisions and determined as follows:[35]
Section 400(3) defines the term 'repeat offender'. This Act specifically amended the Criminal Code so as to change the penalties for home burglary when committed by persons with prior home burglary convictions.
I observe that my interpretation of ss 189 and 190 is consistent with the sentiments expressed in s 400(3) of the Amendment Act. In my view, therefore, s 189 is not to be construed so as to prevent the prosecution from relying upon a prior conviction for home burglary, the punishment for which expires more than two years prior to the offence, the subject of these proceedings.
In my view, the defendant is a repeat offender as set out in s 400(3) of the Criminal Code.
[35] P (a child) v The Queen, 596.
However, on appeal, Malcolm CJ, Ipp and Steytler JJ concluded that a declaration under s 189(2) could effectively displace the effect of the repeat offender provisions.
As to the proper construction of s 189(7), the Court of Appeal found as follows:[36]
[36] P (a child) v The Queen, 596 – 598.
Section 189(7) of the Young Offenders Act is expressed not to prevent proceedings of the kind there referred to being, as we read the section, subsequent proceedings that may be taken against the offender under the Act or on indictment:
(a)in relation to the offence to which s 189 applies, or
(b)for a subsequent offence.
That the section is intended to read in this way is, we think, made clear by the terms of s 190(1) which, as appears from what we have said above, provides that, if s 189 provides that a conviction of an offence is not to be regarded as a conviction, evidence of that conviction is not admissible in any proceedings 'other than proceedings under this Act or on indictment for the offence or for a subsequent offence'.
The proceedings in respect of the offence of burglary committed by the applicant on 1 January 1997 were not taken under the Young Offenders Act.
…
… these proceedings were taken under the different regime provided for by s 401 of the Criminal Code.
Nor were these proceedings on indictment. … It follows that [s 189(7)] has no application in the circumstances of this case.
For similar reasons the evidentiary exceptions provided for by s 190(1) are not applicable.
It seems to us, also, that s 189(7)(c), which provides only that s 189 does not prevent the making of a record of anything that subparas (a) or (b) allow, does not advance the position. (Citations omitted.)
As to the effect of the Criminal Code Amendment Act (No 2) s 4(3), the Court of Appeal concluded that the section did not curtail the operation of s 189(2):[37]
There remains only s 4(3) of the Amendment Act which, as we have said, declares, for the avoidance of doubt, that s 400(3) of the Code 'applies in respect of offences committed at any time and to convictions recorded at any time'.
The terms of s 400(3) provide, as we have said, that a person is a repeat offender for the purposes of Ch XXXIX only if it is proved that the offender 'committed and was convicted' of the relevant offences there referred to. Section 4(3) of the Amendment Act, in referring to 'convictions recorded at any time' cannot, in the absence of clear words, be taken to override the clear command of s 189 of the Young Offenders Act that a conviction falling within its provisions 'is not to be regarded as a conviction for any purpose'. Rather, as it seems to us, s 4(3) of the Amendment Act can and should be read together with s 189(2) of the Young Offenders Act with the effect that the 'convictions recorded at any time' referred to in the former Act do not encompass those excluded by the operation of s 189 of the latter Act. Reading the more general provision (s 4(3), which applies to all offenders) together with the more specific provision (s 189(2), which applies only to young offenders) in that way does no violence to the language of either section. Moreover, it cannot be said that this construction leaves s 4(3) with little effective operation. That section makes it plain that convictions recorded prior to the coming into operation of the Amendment Act might be taken into account for the purposes of s 400. (Citations omitted.)
R v Mackay
[37] P (a child) v The Queen, 598.
In R v Mackay,[38] was also an appeal against sentence which concerned the interaction between the Young Offenders Act s 189 and the home burglary repeat offender provisions contained within the Criminal Code, in the form enacted in 1996.
[38] R v Mackay (Unreported, CCA SCt of WA, Library No 970689, 18 November and 10 December 1997) (Kennedy, Franklyn & Steytler JJ).
The respondent had pleaded guilty in the District Court to one count of aggravated home burglary. He had on four prior occasions been convicted of home burglaries. Each of the prior convictions had taken place in the Children's Court.
Upon the respondent's conviction in the District Court, the question arose whether he was a repeat offender for the purposes of the Criminal Code s 401(4)(a).
As the proceeding taken out against the respondent in respect of the latest offence was on indictment, the Crown contended that s 189(2) had no operation in the circumstances because of the operation of one or both of the Young Offenders Act s 189(7)(b) and s 190(1).
The Court of Appeal noted that since the date of the decision of the learned sentencing judge and prior to the hearing of this appeal, the Court had in the matter of P (a child) v The Queen published reasons in the course of which it had considered the interaction between s 189 and the repeat offender provisions of the Criminal Code.
In light of those reasons, the Court of Appeal considered that the only question left for their consideration was that of whether, because the proceeding in respect of the latest offence was on indictment, either or both of the Young Offenders Act s 189(7)(b) and s 190(1) should have the consequence that s 189(2) of that Act does not apply.
The Court of Appeal concluded that nothing said in either of those sections should have that consequence.[39]
R v GRC
[39] R v Mackay, 7.
The reasoning of the Court of Appeal in P (a child) v The Queen was discussed by O'Brien J in R v GRC.[40]
[40] R v GRC [2002] WACC 11; (2002) 31 SR (WA) 23.
The issues arising for determination in R v GRC required the court to consider the relationship between the Young Offenders Act s 189(5) and the Criminal Code s 400(3) and (4), again in the form enacted in 1996.
O'Brien J observed that the Court of Appeal in P (a child) v The Queen had '…held that s 189(2) constituted a "clear command" that a conviction falling within its provisions is not to be regarded as a conviction for any purpose, including the purpose of establishing that an offender is a "repeat offender" under s 400(3) of the Code.'[41]
[41] R v GRC, 27.
In her reasons, her Honour noted as follows:[42]
Prosecuting police officers have argued that P (a child) is of little precedent value when construing s 189(5) as the Court of Criminal Appeal did not consider the effect of s 400(4)(b) of the Code in its judgment. Section 400(4)(b) provides a definition of "conviction" for the purposes of s 400(3). That definition expands the ordinary meaning of the word “conviction”.
[42] R v GRC, 27.
As to this argument, her Honour observed that:[43]
It is noteworthy that the cases of P (a child) and G (a child) v The Queen (1997) 94 A Crim R 586, were heard together on 3 October 1997, by the same bench, with the same prosecuting and defence counsel and were delivered on 4 November 1997. G (a child) specifically refers to s 400(4)(b) of the Code. The only reasonable inference to draw is that the Court of Criminal Appeal was aware of the provisions of s 400(4)(b) of the Code when making its decision in P (a child).
[43] R v GRC, 28.
While her Honour noted that she need not determine the issue, her Honour stated that 'it is open to draw the … inference that the Court of Appeal was aware of the provisions of s 400(4)(b) of the Code and concluded that it had no application in relation to the issue determined in P (a child).'[44]
[44] R v GRC, 28.
As to the relationship between s 189(5) and s 400(3), in summary, her Honour found that:
•if a young person is convicted of a relevant offence; and
•an Intensive Youth Supervision Order without detention is made as a result of that conviction; then
•unless the person has been subsequently dealt with for that offence,
•the conviction is not to be regarded as a conviction for any purpose,
•including the purpose of establishing that the offender is a repeat offender under s 400(3) of the Criminal Code;
•this is subject to any exception provided for in s 189, none of which applied in the case before her Honour.
Her Honour concluded as follows:
I agree with the submission of counsel for the prosecution that it is wrong to term this provision a "loop hole". When the repeat offender provisions in the Code were enacted the Parliament must be taken to have been aware of the provision in s 189(2) and (5). Similarly, it is the intention of Parliament, unequivocally expressed in s 100, that the provisions of the Act relating to a [Youth Community Based Order] apply to a [Intensive Youth Supervision Order] "unless it is otherwise provided". The Court of Criminal Appeal did not "interpret" the intention of Parliament in the case of P (a child). The court simply followed Parliament's "clear command".
Harris v State of Western Australia
In Harris v The State of Western Australia,[45] concerned the question of whether the District Court had jurisdiction to hear an application made pursuant to s 189(3) on behalf of an applicant who was no longer a young person as defined (he was then 19 years old and had been so at the time of the offence for which he was to be sentenced, but was a young person for the purposes of each of his previous convictions for home burglary).
The Court of Appeal again accepted, and the appeal was determined on the basis that a declaration under s 189(2) could effectively displace the effect of the repeat offender provisions. As to the relationship between s 189 and the Criminal Code s 400, at [5] the Court of Appeal referred to and applied P (a child) v The Queen, and R v Mackay.
B (a child) v Hepple
[45] Harris v The State of Western Australia [2005] WASCA 147 (Steytler, Wheeler & Pullin JJA).
Counsel for the appellant in this appeal also referred to and addressed the decision of McKechnie J in B (a child) v Hepple.[46]
[46] B (a child) v Hepple [2013] WASC 303; (2013) A Crim R 436.
In B (a child) v Hepple, McKechnie J considered the application of the Young Offenders Act s 189(3) and the home burglary repeat offender provisions of the Criminal Code in the form enacted in 1996, but concluded that s 189 could not displace the effect of the repeat offender provisions.
B (a child) v Hepple concerned an appeal from sentence imposed by a magistrate. The second ground of appeal concerned whether the magistrate had erred in deciding to dismiss the appellant's application for a declaration under the Young Offenders Act s 189(3), that two prior convictions for home burglary be regarded as not convictions for any purpose. The appellant contended that the known harshness of the conditions of the appellant's past and likely future detention at Hakea Juvenile Detention Centre constituted 'special circumstances'; and the 'special circumstances' justified the making of declarations in order that the mitigating factor of hardship in custody properly resulted in an appropriate reduction in the term of detention.
McKechnie J dismissed the second appeal ground, having concluded that a declaration would directly undermine the plain parliamentary intention expressed in the Criminal Code s 401(4)(b).[47] His Honour found that the circumstances before him were:[48]
…distinguished from the facts in [R v Simpson (2001) 53 NSWLR 704], 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. …
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.
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 mandatory sentence.
[47] B (a child) v Hepple [41].
[48] B (a child) v Hepple [42] – [44].
The reasons published by McKechnie J made no reference to the decision of the Court of Appeal in P (a child) v The Queen. It is not apparent whether his Honour was made aware of the earlier decision of the Court of Appeal, nor whether any submission was made as to whether his Honour was bound by the decision.
Ground 1: the appellant's submissions concerning the 2015 amendments
On behalf of the appellant, it is submitted that the 2015 amendments to the Criminal Code did not substantively change the text of s 401(4) as it applies to juvenile offenders, and it thus follows that case law prior to the 2015 amendments in which the court considered the operation of s 189 in relation to s 401(4) remains relevant.[49]
[49] Appellant's submissions par 54.
The appellant summarises the changes to s 401(4) as a result of 2015 amendments as follows.
Change 1: 'subject to section 401A(4)'
The appellant observes that s 401(4) was amended so that it became subject to a new provision, s 401A(4). Section 401A(4) allows the sentencing court a discretion to impose a lesser sentence than would be required by s 401(4) where the new conviction was committed before the date the prior relevant convictions were committed; and the court considers that exceptional circumstances exist which justify imposing a lesser sentence than would be required by s 401(4).
Changes 2 and 3: adult offender mandatory sentence increased and consequential amendments
The appellant observes that by the substituted text of s 401(4), the mandatory minimum sentence for an adult offender was increased from a term of imprisonment of 'at least 12 months' to 'at least 2 years'. There was no change to the mandatory minimum sentence applicable if the person had not reached 18 years of age when the current offence was committed.
Having increased the mandatory minimum sentence for an adult offender, the substituted text of s 401(4) provided that the original (lesser) sentence would apply when the current offence was committed before 31 October 2015, and a higher sentence would apply when the current offence was committed on or after 31 October 2015.
Change 4: 'whether or not the conviction of the current offence is a relevant conviction'
The appellant observes that by the 2015 amendments, the words 'whether or not the conviction of the current offence is a relevant conviction' were introduced to the text of s 401(4). That is, the language extended the reach of the section such that the sentencing regime was to apply to a repeat offender (a person with at least 3 relevant convictions), whether or not the conviction of the current offence is a relevant conviction.
Ground 1: relationship as between the Young Offenders Act s 189 and the home burglary repeat offender provisions of the Criminal Code, as amended in 2015
I now turn to consider the Young Offenders Act s 189 and the home burglary repeat offender provisions of the Criminal Code, as now amended.
The general principles of statutory construction were summarised by the Court of Appeal in Director General of Department of Transport v McKenzie,[50] as follows.
[50] Director General of Department of Transport v McKenzie [2016] WASCA 147 [45] ‑ [48] (Buss P, Murphy JA & Beech J).
45In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
46The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
47The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
48The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
For the reasons which follow, having regard to the statutory text, I find that a declaration can effectively displace the effect of the repeat offender provisions of the Criminal Code, as amended in 2015.
Young Offenders Act s 189
Turning to the text of the Young Offenders Act s 189, I note that there are express limits as to the operation of s 189.
First, s 189 does not apply to, or in relation to, a person convicted of murder, attempt to murder or manslaughter.[51] Subsection (1) has no application to the circumstances of this appeal.
[51] Young Offenders Act s 189(1).
Secondly, subsection (2) may apply in relation to a conviction of a young person, if the conditions in (a) and (b) are satisfied, and 'except as provided in this section.'
Thirdly, subsection (7)(a) provides that s 189 does not prevent a person in respect of whom a youth community based order has been made upon the person's conviction of an offence from being subsequently dealt with for the offence as a person so convicted if a condition of the order is not observed.
Subsection 7(a) has no application to the circumstances of this appeal, nor can it be said that its terms inform the relationship between s 189 and the home burglary repeat offender provisions of the Criminal Code.
Fourthly, subsection 7(b) provides that s 189 does not prevent any subsequent proceeding that may be taken against the offender under the Young Offenders Act or on indictment:
(a)in relation to the offence to which s 189 applies; or
(b)for a subsequent offence.
I accept and adopt the reasoning of the Court of Appeal in P (A Child) v the Queen that subsection (7) is intended to be read as expressed above, and such conclusion is made clear by the terms of the Young Offenders Act s 190(1).[52]
[52] P (a child) v The Queen, 596.
Subsection 7(b) has no application to the circumstances of this appeal.
Fifthly, subsection 7(c) provides that s 189 does not prevent a court having regard to a conviction for the purposes of the Dangerous Sexual Offenders Act 2006 (WA) s 7(3). Section 7(d) provides that s 189 does not prevent the making of a record of anything that s 189(7)(a), (b), or (c) allows.
Again, neither subsection 7(c) nor (d) have any application to the circumstances of this appeal, nor can it be said that their terms inform the relationship as between s 189 and the home burglary repeat offender provisions of the Criminal Code.
Subsections (3) - (6) and (9) do not limit the operation of s 189(2).
No language within s 189 excludes a home burglary repeat offender from securing the relief afforded by s 189(2) or s 189(3), if the offender otherwise meets the criteria prescribed.
This interpretation of the Young Offenders Act s 189 gives purpose and effect to the words 'is not to be regarded as a conviction for any purpose.' (Emphasis added.)
The language of s 401A(2)(a)
The language of the Criminal Code does not alter the position. The text of the relevant sections of the Criminal Code does not curtail the application, in appropriate circumstances, of the Young Offenders Act s 189(2) or s 189(3).
The language of s 401A(2)(a) was previously included in s 400(4)(b) of the Criminal Code. The subsection expands the ordinary meaning of the word 'conviction' for the purposes of s 401A (formerly s 400(3)), as follows:
A conviction includes a finding of admission of guilt that leads to a punishment being imposed on, or an order being made in respect of, the person, whether or not a conviction was recorded.
In considering the relationship of the Young Offenders Act s 189(2) and the Criminal Code s 401A(2)(a), I adopt the same approach as was taken by the Court of Appeal in P (a child) v The Queen to the relationship of s 189(2) and s 4(3) of the Criminal Code Amendment Act (No 2).[53]
[53] P (a child) v The Queen, 596 - 598.
In the absence of clear words, I find that s 401A(2)(a) cannot be read so as to include a conviction which, by operation of the Young Offenders Act s 189(2), 'is not to be regarded as a conviction for any purpose, except as provided in s 189.' Reading the more general provision (s 401A(2)(a), which applies to all offenders) together with the more specific provision (s 189(2), which applies only to young offenders) in that way does no violence to the language of either section. Moreover, it cannot be said that this construction leaves s 401A(2)(a) with little effective operation. That section makes it plain that a conviction, whether or not recorded, might be taken into account for the purposes of s 401A.
The express exclusion contained in s 401(4)
Section 401(4) of the Criminal Code expressly excludes the operation of the Young Offenders Act s 46(5a). Section 46(5a) provides as follows.
(5a)Subject to the Road Traffic (Administration) Act 2008 section 121 and sections 5 and 10 of the Graffiti Vandalism Act 2016 but despite any other enactment, where a written law provides that a mandatory penalty or that a minimum penalty shall be imposed in relation to an offence, the court dealing with a young person for the offence is not obliged to impose such a penalty.
The exclusion of s 46(5a) to the operation of the home burglary repeat offender provisions has been expressly provided for since 1996.
As Parliament had excluded the operation of the Young Offenders Act s 46(5a), Parliament could also have expressly excluded the operation of the Young Offenders Act s 189. Such exclusion might have been enacted in 1996, or when the provisions of the Criminal Code were amended in 2015.
The Young Offenders Act was clearly in mind when Parliament introduced the home burglary repeat offender provisions in 1996, and when Parliament amended the Criminal Code in 2015. In my view, the absence of express exclusion of the Young Offenders Act s 189 to the operation of the Criminal Code s 401(4) ought to be taken to be deliberate. In 2015, the legislature chose not to make a change to s 189, or the home burglary repeat offender provisions of the Criminal Code so as to exclude the operation of s 189, following the interpretation in 1997 by the Court of Appeal in P (a child) v The Queen.
In the second reading speech for the Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014, the then Attorney‑General informed the Parliament that: [54]
In 1996, the Criminal Code was amended to introduce what is commonly referred to as a 'three strikes' rule. Reflecting community dismay that burglars were receiving non-custodial sentences from the courts notwithstanding that they continued to offend, section 400 was amended to introduce the concept of a "repeat offender". A repeat offender was, in essence, a person who committed and was convicted of the burglary of a home and, subsequent to that conviction, again committed and was convicted of a home burglary. The effect of this is that pursuant to section 401(4) of the Criminal Code, upon a third conviction for such an offence, the court must sentence the offender to at least 12 months imprisonment if an adult or, if the offender is a young person within the meaning of the Young Offenders Act 1994, to at least 12 months imprisonment or detention.
…
The government notes there are issues with elements of the Young Offenders Act 1994 with respect to provisions dealing with repeat juvenile burglars. However, the Government is presently undertaking a comprehensive review of the juvenile justice regime and has chosen to defer any legislative action in respect of juveniles under the age of 16 years until that review has been completed. The Minister of Corrective Services will seek public comment on proposals to that Act in the second half of this year.
Ground 1: conclusion
[54] Western Australia, Parliamentary Debates, Legislative Council, 24 March 2015, 1917 - 1919 (Mr M Mischin, Attorney General). See also Western Australia, Parliamentary Debates, Legislative Assembly, 12 March 2014, 1055 - 1057 (Ms L Harvey, Minister for Police).
I have considered the Young Offenders Act s 189 and the home burglary repeat offender provisions of the Criminal Code, and I find that a declaration made pursuant to s 189(2) can effectively displace the effect of the repeat offender provisions of the Criminal Code, as amended in 2015.
Further, I have considered the scope and effect of the 2015 amendments, including the four changes to s 401(4) identified by the appellant, summarised above. I find the decision of the Court of Appeal in P (a child) v The Queen to be, if not binding by reason of the 2015 amendments, strong persuasive authority as the provisions of the Criminal Code (as amended) are not so markedly different.
Grounds 1 and 3 of the appeal have been made out. There was no reason why the magistrate could not exercise discretion to make an order pursuant to the Young Offenders Act s 189(3) in respect of a prior recorded conviction, if her Honour had found 'special circumstances' to exist. There should be leave to appeal on grounds 1 and 3, and the appeal should succeed on those grounds.
Application pursuant to the Young Offenders Act s 189(3)
The error of law enlivens the court's discretion to intervene and resentence the appellant.[55] An application pursuant to s 189(3) is pressed on behalf of the appellant and I now turn to consider the same.
'Special circumstances' – general principles
[55] Criminal Appeals Act s 14(1)(d).
The appellant bears the onus of establishing 'special circumstances', on the balance of probabilities.[56]
[56] R v Storey [1988] 1 VR 359, 369 applied in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ); Colbung v Western Australia [2010] WASCA 217, [25], [30].
The term 'special circumstances' in s 189(3) is not defined, and those words do not appear elsewhere in the Young Offenders Act.[57]
[57] As noted in Harris v The State of Western Australia [2005] WASCA 147 [4] (Steytler P, Wheeler & Pullin JJA).
On behalf of the appellant, the discretionary nature of the term 'special circumstances' is stressed.[58] As noted by Spigelman CJ in R v Simpson:[59]
[59]The words 'special circumstances' appear in numerous statutory provisions. They are words of indeterminate reference and will always take their colour from their surroundings. …
[60]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. …
[58] Appellant's submissions pars 77 – 79.
[59] R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 [59] – [60].
The Court of Appeal in Harris v Western Australia, observed that the mere fact that, absent a declaration, an offender would be subject to the repeat offender provisions of the Criminal Code, could not, of itself, amount to special circumstances as the plain intention of the legislature would otherwise be subverted.[60] The Court of Appeal also observed that the question whether or not special circumstances exist is one which the legislature has reserved to the sentencing court.[61]
[60] Harris v The State of Western Australia [20].
[61] Harris v The State of Western Australia [20].
In B (A child) v Hepple, McKechnie J considered the meaning of special circumstances in s 189(3), and observed that:[62]
[36]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'.
[62] B (a child) v Hepple [36] ‑ [40].
The appellant says that s 189(3) has been given very little previous consideration in any published judgment of the President of the Children's Court or the Supreme Court. There is no analogous case applying s 189(3) to which they may refer.[63]
[63] Appellant's submissions par 80.
I note that the Young Offenders Act s 7 forms part of the statutory context. The general principles that are to be observed in performing functions under the Young Offenders Act, include that:
(l)in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered.
When considering whether 'special circumstances' exist, age, maturity and cultural background ought to be considered. Depending on the circumstances, these factors alone, or in combination with other factors, may be sufficiently 'special' to justify a conclusion that 'special circumstances' are made out on the facts of a particular case.
This interpretation is consistent with the remarks made by the President of the Children's Court in relation to the appellant:[64]
[The appellant's] time in [Banksia Hill Detention Centre], his personal antecedence, his very young age and prospects of rehabilitation are matters that, consistent with the general principles of juvenile justice that are identified in s 7 of the [Young Offenders Act], could have been taken into account when considering whether special circumstances existed in [the appellant's] case in relation to the s 189(3) [Young Offenders Act] application.
Has the appellant established 'special circumstances'?
[64] DLD (a child) v The State of Western Australia [28].
The learned magistrate determined that she was not able to apply s 189(3), and so gave no consideration to whether 'special circumstances' existed.
In the appeal, the respondents concede that the particular circumstances of the appellant could have amounted to a finding of 'special circumstances' within the meaning of that term in s 189(3).[65]
[65] Respondents' submission par 9.
In all of the circumstances, I find that the appellant has established 'special circumstances' on the balance of probabilities. I have weighed the following in the balance.
Age and maturity
All of the appellant's offending was committed while he was either 11 or 12 years of age. The appellant is presently 13 years of age. He is a young person for sentencing purposes.
All of the appellant's offending history has been committed while he was in the company of older, anti-social family members or peers.
I accept the observation made by Wager DCJ, that given the appellant's level of impairment (discussed further below), it is relevant that he has always offended with older co-offenders.[66]
Cultural background
[66] DLD (a child) v The State of Western Australia [27].
The appellant comes from a severely disadvantaged background. His father is in custody as a result of serious violence related offences. The appellant's contact with his mother has been sporadic. His mother has ongoing and entrenched substance abuse issues that make her unsupportive in terms of being a pro‑social support to the appellant. Her substance abuse issues have become more serious in recent times and she has been absent. The appellant's older siblings have also spent time in detention.
The appellant was referred to FASD C.A.R.E for a FASD (Foetal Alcohol Spectrum Disorder) assessment. He was assessed at the Youth Justice Banksia Hill Detention Centre on several occasions by medical and allied health professionals experienced in assessing youth involved in the youth justice system. An assessment was completed by a multidisciplinary team on behalf of FASD C.A.R.E.
As noted in the FASD report, the appellant witnessed extreme violence, including high levels of domestic violence, during his formative years. As observed by Wager DCJ, consistent with the FASD report, exposure to violence has severely affected the appellant.[67]
[67] DLD v The State of Western Australia [21].
The FASD reports that from information made available from interviewing the appellant, he has experienced four adverse childhood experiences (ACE): incarceration of parents and siblings; parents no longer together; substance use in the house; and interpersonal violence to him and between family members.
Further, he had multiple admissions to juvenile detention and multiple episodes of interrupted schooling.
Examination of the eyes prompted the appellant to talk about an injury to his right eye which required stitches. The appellant cannot see normally from that eye now. He does not have nor wear glasses. An abnormal hearing assessment was also recorded. A formal follow‑up and testing by an audiologist were recommended.
The mental and cognitive condition of the appellant
Mental impairment and / or cognitive difficulties are not included in the Young Offenders Act s 7, and there are no cases that consider Foetal Alcohol Spectrum Disorder (FASD) in the context of s 189(3) of the Young Offenders Act. That is not to say however that such factors are not capable of giving rise to special circumstances.
The appellant's exposure to alcohol in the prenatal period was reported as positive.
The FASD report indicates that the appellant does not yet meet the criteria to be diagnosed with FASD.[68] However, it does reveal that the appellant has proven significant impairments in academic achievements.
[68] ts 12 (29 March 2018).
The appellant's word reading and numerical skills were well below his same aged peers, testing in the extremely low range with a grade 1 level and a grade 2 level respectively. His extremely low performance on reading and numeracy tasks and his history of educational issues warranted a provisional diagnosis of 'specific learning disorder (in reading)'. A full diagnosis could not be given until the appellant has received a minimum 6 months one on one targeted intensive intervention.[69]
[69] DLD v The State of Western Australia [22].
The appellant's difficulties in areas of verbal reasoning, memory retrieval, behaviour regulation and language disorder will present as vulnerabilities for the rest of his life. As noted in the FASD report, additional testing or investigation may reveal further diagnoses. Further, the appellant requires an individualised education plan, education support and teaching assistance, and a speech pathologist working in collaboration with school educators. Educational psychologists and mentors were recommended as being interventions required as soon as possible.[70]
Positive steps towards rehabilitation
[70] DLD v The State of Western Australia [23].
In relation to each offence, the appellant voluntarily participated in a record of interview with police and made full admissions regarding his involvement. His matters proceeded by way of early pleas of guilty, without a hearing or contest on the charges or facts. This tends to suggest that the appellant sought to take responsibility for his actions.
During the FASD C.A.R.E assessments, the appellant expressed a desire to return to school. When asked further about this and how he feels about learning and being in the classroom, he expressed that he finds it difficult to learn from the teachers, but that he really wants to go to school, as it gives him something to do. The appellant engaged well with the majority of tasks presented to him during his psychological assessment, and was often observed to persist with difficult tasks well beyond the allotted completion times.
The appellant has resided with various family members during his short life.
His paternal grandfather reported that since coming to live with him, the appellant attended primary school full time, but that prior to the move, he missed a 'couple' of years of school.
The appellant is currently residing in Harvey with his maternal grandmother who is a pro‑social support for the appellant. She is caring for the appellant and one other grandson who is 16 years of age.
The appellant is currently enrolled in High School in Year 9. His first day at school was 14 February 2019.
The appellant is still in close contact with his paternal grandfather, who continues to offer him support and visits him when possible.
The offending was non-violent
When considering whether special circumstances exist, I have weighed in the balance that despite the seriousness of the offences, they are not of such a nature to put them in the most serious category for offences of their kind.
In relation to each of the home burglary offences in the present instance, I accept that:
(a)the appellant was not a primary offender;
(b)the appellant participated in company with older peers;
(c)the appellant did not participate in any damage to property;
(d)the appellant did not conceal his identify and was easily detected;
(e)the offending all occurred during the day time and when no one was present in the dwellings; and
(f)the offences were not obviously planned and were rudimentary in execution.
Time spent in detention
Prior to being sentenced on 13 April 2018, the appellant spent time in detention for a period of 108 days (being 3 months and 18 days).
The reports available to the Children's Court at sentencing demonstrate that the appellant experienced particularly harsh conditions at Banksia Hill Detention Centre during his detention.
The appellant received a burn injury to his foot that was not treated properly, and, as a result, he developed a fungal infection in the wound.
Further, after having been at Banksia Hill Detention Centre for a period of months, the FASD report recorded that the appellant had head lice, active scabies on his hands and some infected sores associated with the same. It was also recorded that he needed to see a dentist urgently.
I am satisfied that 'special circumstances' are established, on the balance of probabilities. Further, in all of the circumstances, I am prepared to make a declaration pursuant to the Young Offenders Act s 189(3).
Appropriate sentence
The Juvenile Conditional Release Order was imposed on 13 April 2018 and is due to expire on 12 April 2019.
On 3 December 2018, Youth Justice Services initiated breach action due to non‑compliance because the appellant's whereabouts were unknown to them.[71] I accept the reasons provided on the appellant's behalf explaining the appellant's difficulty in complying with the order.[72] In particular, I note that upon being placed on the current order on 13 April 2018, the appellant was to reside at an address in Bunbury with his paternal grandfather and mother, along with other family members. The appellant's compliance while he was residing in Bunbury declined due to deteriorating conditions in the home. Allegations were made that the appellant was a witness to illicit substance abuse, domestic violence and inappropriate sexual intercourse as between the appellant's mother and her new partner. It is alleged that this was confirmed by the appellant.
[71] Breach by non‑compliance report 4 January 2019.
[72] Appellant's submissions [124]; appellant's supplementary submissions [20] ‑ [27].
I accept that the appellant's difficulties in complying with the Juvenile Conditional Release Order were as a result of an unstable home at that time, a lack of support from family members on whom the appellant relied, and transient accommodation.
The court was invited by counsel for the appellant, to resentence the appellant by imposing no further penalty in relation to the offences the subject of the appeal pursuant to the Youth Offenders Act s 67.[73]
[73] Appellant's supplementary submissions [31].
There is no dispute that the number and type of offences committed by the appellant are serious. The protection of the community is an important consideration in sentencing. Notwithstanding this, the principles of juvenile justice require that the court have regard to the rehabilitation of young people.
I accept that the charges now before me for sentencing are serious, but not so serious as to outweigh the importance of the principles of rehabilitation in a young person, especially one as young as the appellant.
I have had regard to the period of time that the appellant spent in custody, his young age, his early pleas of guilty to the offences, the harsh conditions he endured in detention, and the fact that he has been subject to a Juvenile Conditional Release Order for nearly 11 months.[74]
[74] Appellant's supplementary submissions [31].
The respondents agree that the appellant's proposed disposition is an appropriate one in the present case.[75]
[75] Respondents' supplementary submissions [3].
In all of the circumstances, I find that it is appropriate that no further penalty be imposed.
Orders
For these reasons, I will make orders in the following terms.
1.The time to lodge the appeal is extended to 8 August 2018.
2.Leave to appeal on grounds 1 and 3 is granted.
3.The appeal is allowed.
4.The decision of the magistrate to dismiss the application made on behalf of the appellant pursuant to the Young Offenders Act 1994 (WA) s 189(3) is set aside.
5.The sentence imposed by the learned magistrate is set aside.
6.The application made pursuant to the Young Offenders Act 1994 (WA) s 189(3) is granted.
7.Pursuant to the Young Offenders Act 1994 (WA) s 189(3), it is declared that the pleas of guilty on behalf of the appellant to the following charges are not convictions for any purpose:
(a)CC BUN 582 of 2016; and
(b)CC BUN 180 and 184 of 2017.
8.No further penalty is imposed.
9.No order as to costs.
Schedule A – Young Offenders Act 1994 (WA) s 189
189. 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.
(7)This section does not prevent –
(a)a person in respect of whom a youth community based order has been made upon the person's conviction of an offence from being subsequently dealt with for the offence as a person so convicted if a condition of the order is not observed; or
(b)any subsequent proceedings that may be taken against the offender under this Act or on indictment in relation to the offence to which this section applies or for a subsequent offence; or
(c)a court having regard to a conviction for the purposes of the Dangerous Sexual Offenders Act 2006 section 7(3); or
(d)the making of a record of anything that paragraph (a), (b) or (c) allows.
(8)This section does not affect –
(a)the right of a person to appeal against a conviction or to rely on a conviction in bar of any subsequent proceedings for the same offence; or
(b)the revesting or restoration of any property in consequence of the conviction; or
(c)the right of a court to disqualify a person from holding or obtaining a driver's licence as that term is defined in the Road Traffic (Administration) Act 2008 section 4; or
(d)any cancellation or disqualification that occurs by operation of any written law.
(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.
Schedule B – Criminal Code s 400, s 401A, s 401B and s 401(4)
400.Terms used
(1)In this Chapter –
circumstances of aggravation means circumstances in which –
(a)immediately before or during or immediately after the commission of the offence the offender –
…
(iii)is in company with another person or other persons; or
…
commencement day means the day on which the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 section 19 comes into operation;
…
401A.Term used: relevant conviction
(1)For the purposes of this Chapter, subject to subsections (2), (3) and (4), a person's conviction for a home burglary is a relevant conviction for that person if -
(a)the home burglary was committed before the commencement day and either -
(i)it is the person's first conviction for a home burglary (the person's first relevant conviction); or
(ii)it is the person's first conviction for a home burglary committed after the date on which the person's first relevant conviction was recorded (the person's second relevant conviction); or
(iii)it is a conviction for a home burglary committed after the date on which the person's second relevant conviction was recorded;
or
(b)the home burglary was committed on or after the commencement day and -
(i)the person is an adult offender with respect to the home burglary; or
(ii)the person is a juvenile offender with respect to the home burglary and either -
(I)it is the person's first conviction for a home burglary; or
(II)at the time of the home burglary, the person already had a conviction for a previous home burglary;
or
(iii)at the time of the home burglary the person had not reached 16 years of age, and either -
(I)it is the person's first conviction for a home burglary (the person's first relevant conviction); or
(II)it is the person's first conviction for a home burglary committed after the date on which the person's first relevant conviction was recorded (the person's second relevant conviction); or
(III)it is a conviction for a home burglary committed after the date on which the person's second relevant conviction was recorded.
(2)In this section -
(a)a conviction includes a finding or admission of guilt that leads to a punishment being imposed on, or an order being made in respect of, the person, whether or not a conviction was recorded; and
(b)a conviction does not include a conviction that has been set aside or quashed.
(3)For the purposes of this section, convictions for 2 or more home burglaries committed on the same day on or after the commencement day are to be treated as a single conviction.
(4)Where -
(a)a person has 2 or more relevant convictions (the prior relevant convictions); and
(b)after the sentence completion date for the latest of the prior relevant convictions, the person is convicted for another home burglary (the new conviction); and
(c)the new conviction relates to a home burglary which was committed before the date on which the home burglary to which the latest of the prior relevant convictions relates was committed; and
(d)the court sentencing the offender for the home burglary to which the new conviction relates (the sentencing court) considers that exceptional circumstances exist which justify imposing a lesser sentence than would be required by section 401(4),
the sentencing court may decide to impose a lesser sentence than would be required by section 401(4).
(5)In subsection (4) -
sentence completion date for a conviction means -
(a)where no sentence or other punishment is imposed in respect of the conviction, the date of the conviction; and
(b)where a conditional release order is imposed under the Sentencing Act 1995 Part 7 in respect of the conviction, the date on which the conditional release order ceases to be in force under section 48(2) of that Act; and
(c)where a fine is imposed under the Sentencing Act 1995 Part 8 in respect of the conviction, the earlier of -
(i)the date on which the fine is paid; or
(ii)the date on which the offender's liability to pay the fine is discharged under section 58(6) or 59(1) of that Act;
and
(d)where a community based order is imposed under the Sentencing Act 1995 Part 9 in respect of the conviction, the date on which the community based order ceases to be in force under section 62(4) of that Act; and
(e)where an intensive supervision order is imposed under the Sentencing Act 1995 Part 10 in respect of the conviction, the date on which the intensive supervision order ceases to be in force under section 69(5) of that Act; and
(f)where suspended imprisonment is imposed under the Sentencing Act 1995 Part 11 in respect of the conviction, the date on which the offender is taken to be discharged under section 77(4) of that Act; and
(g)where conditional suspended imprisonment is imposed under the Sentencing Act 1995 Part 12 in respect of the conviction, the date on which the offender is taken to be discharged under section 82(4) of that Act; and
(h)where a term of imprisonment is imposed under the Sentencing Act 1995 Part 13 in respect of the conviction, the date on which the offender is discharged under section 93(3) or 95 of that Act or the Sentence Administration Act 2003 section 66(2); and
(i)where a youth community based order is imposed under the Young Offenders Act 1994 Part 7 Division 6 in respect of the conviction, the date on which the order ceases to be in force under section 76(2) of that Act; and
(j)where an intensive youth supervision order is imposed under the Young Offenders Act 1994 Part 7 Division 7 in respect of the conviction without a sentence of detention, the date on which the order ceases to be in force under section 76(2) of that Act; and
(k)where a term of detention is imposed under the Young Offenders Act 1994 section 118(1)(b) in respect of the conviction, whether or not an intensive youth supervision order is also imposed under Part 7 Division 7 of that Act, the last day of that term.
(6)A court making the decision referred to in subsection (4) must give written reasons why the decision was made.
401B.Term used: repeat offender
(1)For the purposes of this Chapter, a person who is being sentenced for a home burglary (the current offence) is a repeat offender if the person has at least 3 relevant convictions.
(2)For the purposes of subsection (1) -
(a)the person's conviction for the current offence, if it is a relevant conviction, is to be counted; and
(b)each of the person's relevant convictions is to be counted, regardless of whether the home burglary to which it relates was committed before or after the date of any previous relevant conviction; and
(c)each of the person's relevant convictions is to be counted, regardless of whether it has been counted on the occasion of sentencing for a previous home burglary to determine whether the person was, on that occasion, a repeat offender.
401. Burglary
…
(4)Subject to section 401A(4), where a person convicted under this section of a home burglary (the current offence) is a repeat offender, whether or not the conviction for the current offence is a relevant conviction the court sentencing the person for the current offence -
(a)if the current offence was committed before the commencement day -
(i)if the person is an adult offender, notwithstanding any other written law, must impose a term of imprisonment of at least 12 months; or
(ii)if the person had not reached 18 years of age when the current offence was committed, notwithstanding the Young Offenders Act 1994 section 46(5a), must impose either -
(I)a term of imprisonment of at least 12 months; or
(II)a term of detention under the Young Offenders Act 1994 of at least 12 months,
as the court thinks fit;
or
(b)if the current offence was committed on or after the commencement day -
(i)if the person is an adult offender, notwithstanding any other written law, must impose a term of imprisonment of at least 2 years; or
(ii)if the person had not reached 18 years of age when the current offence was committed, notwithstanding the Young Offenders Act 1994 section 46(5a), must impose either -
(I)a term of imprisonment of at least 12 months; or
(II)a term of detention under the Young Offenders Act 1994 of at least 12 months,
as the court thinks fit.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Associate to the Honourable Acting Justice Strk
24 MAY 2019
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