DBW (a child) v The State of Western Australia
[2011] WASCA 206
•30 SEPTEMBER 2011
DBW (a child) -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 206
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 206 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:11/2011 | 24 AUGUST 2011 | |
| Coram: | PULLIN JA BUSS JA HALL J | 30/09/11 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Ground 1 dismissed Leave in respect of grounds 2 to 5 refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DBW (a child) THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal Sentence Young offender Unlawful wounding Whether sentence manifestly excessive Emphasis on rehabilitation Weight accorded to general deterrence Whether failure to take into account relevant factors Whether exposure to violence mitigatory |
Legislation: | Young Offenders Act 1994 (WA), s 7, s 46, s 120 |
Case References: | Ainsworth v D (a child) (1992) 7 WAR 102 Black v The State of Western Australia (No 2) [2010] WASCA 145 C (a child) (1995) 83 A Crim R 561 Chan (1989) 38 A Crim R 337 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 F (a child) v The State of Western Australia [2004] WASCA 193 Harvey v The State of Western Australia [2005] WASCA 117 JA (a child) v The State of Western Australia [2008] WASCA 70 Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 MC (a child) v The Queen [2003] WASCA 205 Messaoui v The Queen (Unreported, WASCCA, Library No 9210.1, 4 December 1991) Moran v The State of Western Australia [2011] WASCA 137 Pedersen v The State of Western Australia [2010] WASCA 175 Powell v Tickner [2010] WASCA 224 R v AWF (a child) (2000) 2 VR 1; [2000] VSCA 172 R v DP (a child) [2003] WASCA 92 Scolaro v Shephard (No 2) [2010] WASC 271 Tema v The State of Western Australia [2011] WASCA 41 The State of Western Australia v 'A Child' [2007] WASCA 115; (2007) 172 A Crim R 51 Vagh v The State of Western Australia [2007] WASCA 17 Wilson v The State of Western Australia [2010] WASCA 82 WO (a child) v Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DBW (a child) -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 206 CORAM : PULLIN JA
- BUSS JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : REYNOLDS J
File No : CC 593 of 2010, CC 594 of 2010
Catchwords:
Criminal law - Appeal - Sentence - Young offender - Unlawful wounding - Whether sentence manifestly excessive - Emphasis on rehabilitation - Weight accorded to general deterrence - Whether failure to take into account relevant factors - Whether exposure to violence mitigatory
(Page 2)
Legislation:
Young Offenders Act 1994 (WA), s 7, s 46, s 120
Result:
Ground 1 dismissed
Leave in respect of grounds 2 to 5 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms H E Prince
Respondent : Ms M Ridley
Solicitors:
Appellant : Kim Farmer
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ainsworth v D (a child) (1992) 7 WAR 102
Black v The State of Western Australia (No 2) [2010] WASCA 145
C (a child) (1995) 83 A Crim R 561
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
F (a child) v The State of Western Australia [2004] WASCA 193
Harvey v The State of Western Australia [2005] WASCA 117
JA (a child) v The State of Western Australia [2008] WASCA 70
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
MC (a child) v The Queen [2003] WASCA 205
Messaoui v The Queen (Unreported, WASCCA, Library No 9210.1, 4 December 1991)
Moran v The State of Western Australia [2011] WASCA 137
Pedersen v The State of Western Australia [2010] WASCA 175
(Page 3)
Powell v Tickner [2010] WASCA 224
R v AWF (a child) (2000) 2 VR 1; [2000] VSCA 172
R v DP (a child) [2003] WASCA 92
Scolaro v Shephard (No 2) [2010] WASC 271
Tema v The State of Western Australia [2011] WASCA 41
The State of Western Australia v 'A Child' [2007] WASCA 115; (2007) 172 A Crim R 51
Vagh v The State of Western Australia [2007] WASCA 17
Wilson v The State of Western Australia [2010] WASCA 82
WO (a child) v Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352
(Page 4)
1 PULLIN JA: I agree with Hall J.
2 BUSS JA: I agree with Hall J.
3 HALL J: On 18 January 2011 the appellant was sentenced in the Children's Court to 18 months' detention for an unlawful wounding offence and 2 months' detention concurrent for the unlawful possession of a weapon. The total effective sentence was therefore 18 months' immediate detention. The appellant now appeals against that sentence.
Factual background
4 On 26 January 2010 the appellant and some of his friends came into Perth to take part in the Australia Day celebrations. Before leaving, the appellant had armed himself with a meat cleaver which he kept down the back of his trousers.
5 During the early part of the day he met up with several of his friends and they consumed a large amount of alcohol. At about 9.30 pm the complainant, a 21-year-old male, was walking with a male friend on the footpath at the Narrows Bridge in Perth. The complainant and his friend each had Australian flags draped over them. At this time the appellant and his friends were standing nearby against the guardrails. As the complainant walked past the appellant said, 'What are you looking at?' and the complainant replied, 'Not you mate' and continued to walk by.
6 The appellant and one of his friends then followed the complainant and the appellant took the meat cleaver from his trousers. The appellant then confronted the complainant, demanding that he remove his flag. The complainant hesitated and then, without warning, the appellant slashed the complainant's arm in a horizontal motion with the meat cleaver. This caused a wound approximately 10 centimetres in length and 2 centimetres deep to the tricep area. The cut severed muscle tissue and exposed the bone.
7 The complainant was conveyed to Sir Charles Gairdner Hospital where he was treated. Thirteen sutures were needed to close the wound. At the time of the attack there were many members of the public in the area and the incident was witnessed by a number of people.
8 The appellant was arrested soon after the incident and was interviewed by police in the early hours of the morning on 27 January 2010. In that interview the appellant claimed to have no memory of the
(Page 5)
- relevant time. He attributed this to the amount of alcohol he had drunk. He accepted that he had been found in possession of the meat cleaver but said that he had obtained this from another person. He did not, at that stage, accept any responsibility for the unlawful wounding.
9 On 28 January 2010 the appellant appeared in court and pleaded guilty to the offences. However, on 9 March that plea was withdrawn. On 24 May 2010 the appellant again pleaded guilty but on the basis that he was not the principal offender. This was clearly a significant issue in regard to sentence and the matter was set down for a trial of issues commencing on 16 November 2010. That trial did not proceed as the appellant ultimately accepted that he was the principal offender.
10 The appellant also indicated that he wished to engage in victim mediation. When interviewed by a victim mediation officer on 22 November 2010 the appellant gave an account that was inconsistent with his plea of guilty. He told the victim mediation officer that he had been involved in an incident which got out of hand and that a machete was produced by a co-offender who slashed the complainant's arm. The appellant also said to the officer that he was participating in mediation because it would 'look better in court'.
11 The officer subsequently spoke to the complainant and became aware that it was the appellant who was the principal offender. The officer then spoke to the appellant again on 30 November and the appellant confirmed that it was in fact him who was the assailant. His explanation for not being truthful about his involvement was that he did not like talking about the offence.
12 Ultimately, the appellant was sentenced on 18 January 2011. On that occasion a report was provided that the complainant continued to have pins and needles in the affected arm. Following the offence the complainant had been reluctant to return to the area where the offence occurred and had feelings of inadequacy as regards his ability to defend himself and others who are with him. Despite the serious nature of the injury there was no tendon or significant nerve damage. This was fortunate for the complainant as he was a musician and any such damage would have hampered his ability to continue with this activity.
13 The appellant was 16 years and 2 months old at the time of the offending. He was 17 years and 2 months old when he came to be sentenced.
(Page 6)
Grounds of appeal
14 There are five grounds of appeal. They are as follows:
1. The sentence imposed was manifestly excessive in all the circumstances of the offence and matters personal to the appellant.
2. The learned sentencing judge erred in law in placing the need for general deterrence and retribution above all other sentencing principles including the sentencing principles and objectives applying to juvenile justice in determining the length of the term of detention to be imposed.
3. The learned sentencing judge erred in law and in fact in failing to take into account the SAVRY assessment when determining the appropriate length of the period of detention.
4. The learned sentencing judge erred in law and in fact in failing to take into account the matters raised in the report of the Court appointed psychologist including the SAVRY assessment assessing the applicant's risk of reoffending violently when determining the appropriate length of the period of detention.
5. The Learned Sentencing Judge erred in law in finding that the applicant's exposure to violence from his family and the connection between the applicant's visit to New Zealand in a failed attempt to reconnect with his violent father and the applicant's offending violently within days of his return to Australia was explanatory but not mitigatory.
15 In each case the grounds are supported by particulars which it is unnecessary to repeat here. The reference in ground 3 to a 'SAVRY assessment' is to a risk assessment tool termed 'Structured Assessment of Violence Risk in Youth'. The tool was used by the psychologist who prepared the report in respect of the appellant dated 5 January [2011].
16 On 9 May 2011 Mazza J ordered that leave be granted on ground 1 and leave on grounds 2 to 5 be referred to the hearing of the appeal. The grounds were subsequently amended to include a further ground which was numbered 6. However, this ground was not pressed at the hearing of the appeal.
Ground 1 - Manifest excess
17 The legal principles relevant to an appeal against sentence are well-known and are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2] (McLure JA). Essentially this court cannot intervene merely because it would have exercised a sentencing discretion
(Page 7)
- differently. It is only entitled to intervene if it is established that the sentencing judge has made a material error of fact or law, whether implied or express, resulting in a sentence that is unreasonable or unjust.
18 In alleging manifest excess, the appellant relies upon the implication of an error on the sentencing judge's part. To determine whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the offence, the types of sentences customarily imposed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.
19 Special considerations apply in sentencing young offenders. Detaining a young person in custody must only be used as a last resort and, if required, is only to be for as short a time as is necessary: s 7(h) and s 120 of the Young Offenders Act 1994 (WA); The State of Western Australia v 'A Child' [2007] WASCA 115; (2007) 172 A Crim R 51 [16]. In sentencing children significant emphasis must be placed upon the objective of rehabilitation: WO (a child) v Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352, 362. The emphasis on rehabilitation is based on the long established understanding that the community is best protected by determined efforts to effect the rehabilitation of young offenders. Although retribution, punishment and general deterrence are relevant sentencing objectives in respect of children they are ordinarily given significantly reduced weight: The State of Western Australia v A Child [16]. However, it is not the case that young offenders, including those with no previous record and good personal circumstances, can never receive a sentence of detention. Regard must be had to the circumstances of the offence and the offender's personal circumstances: F (a child) v The State of Western Australia [2004] WASCA 193 [14].
20 Ground 1 does not specifically refer to either one of the sentences imposed for the two offences. However, it is reasonable to assume that the ground relates to the sentence of 18 months' imprisonment imposed for the unlawful wounding offence.
21 The maximum penalty for the offence of unlawful wounding is 5 years' imprisonment. The seriousness of the offence of unlawful wounding was referred to in Messaoui v The Queen (Unreported, WASCCA, Library No 9210.1, 4 December 1991):
(Page 8)
- A conviction for unlawful wounding need not necessarily attract a sentence of imprisonment. This is not to say that unlawful wounding is anything less than a serious offence. It is a serious offence: see Robinson v The Queen, unreported; CCA Sup Ct of WA; Library No. 7867; 27 September 1989 per Pidgeon J at 5. It is an offence which may be committed in circumstances which stop only barely short of more serious consequences. The threat to life and health posed by the offender's action and the possibility of more serious harm is a relevant sentencing consideration: Campbell v The Queen, unreported; CCA Sup Ct of WA; Library No. 7828; 6 September 1989 per Malcolm CJ at 3 – 4 (12).
22 The sentences imposed for offences of this type vary significantly given the wide variety of circumstances in which the offence can be committed and the differing personal circumstances of those who commit such offences. Accordingly, when considering other cases of unlawful wounding, care must be taken to identify all of the relevant circumstances of those cases before drawing any conclusion as to whether the sentence at issue is manifestly excessive: Scolaro v Shephard (No 2) [2010] WASC 271 [163].
23 In Moran v The State of Western Australia [2011] WASCA 137 I reviewed a number of previous cases involving sentences for unlawful wounding. It is unnecessary to repeat that review here. To those cases the following could be added; Black v The State of Western Australia (No 2) [2010] WASCA 145, Harvey v The State of Western Australia [2005] WASCA 117 and MC (a child) v The Queen [2003] WASCA 205.
24 Most of those cases relate to adult offenders and are therefore of limited assistance in determining whether the sentence in this case was consistent with those imposed in other cases. This is because the principles relevant to sentencing of juveniles are different and, even where a range can be determined for adult offenders, it is not appropriate to use that range as a starting point from which a deduction for youth can be made to reach a range applicable for children: C (a child) (1995) 83 A Crim R 561, 564 (Pidgeon J), 570 (Wallwork J).
25 The cases referred to do not, in any event, establish a sentencing range for the offence of unlawful wounding. However, some key factors are clearly emphasised. They include the seriousness of the injury inflicted, whether a weapon was used and if so, whether such use was intentional and whether the wounding was unprovoked or occurred in the course of a physical altercation in which both parties were involved. Other factors which are also clearly relevant are whether the offence was committed in a public place and whether the offence is of a nature as to require the incorporation of personal and general deterrence.
(Page 9)
26 The appellant did not provide any cases that were suggested as being comparable. Indeed, it was submitted that the argument here was not that the sentence imposed was outside the range appropriate for offending of this nature by a juvenile. Rather, the argument was that the sentence imposed was excessive having regard to the particular personal factors applicable to the appellant.
27 In the present case, the sentencing judge said that the offending was towards the upper end of the range of seriousness. He said that this was because it involved the use of a meat cleaver in an unprovoked way to inflict serious injury on a member of the public at a well attended community event. His Honour described the offence as an unprovoked, cowardly and senseless act of extreme violence. He noted that the nature of the weapon was such that serious harm was probable, if not inevitable, when used as it was here.
28 His Honour noted that the offence occurred following the annual Sky Show fireworks performance, a community event attended by families. He said that members of the community should not be deterred from attending such celebrations as a result of violent, anti-social behaviour like that of the appellant. His Honour thought that the circumstances in which the offence had occurred justified more weight being given to general deterrence.
29 It is impossible to disagree with the sentencing judge's assessment of the seriousness of the offending. It must also be noted that the appellant made a deliberate decision earlier in the day to bring a clearly dangerous weapon to a community event. He told the police that he carried the weapon for protection but the need for protection at the Australia Day celebrations is not readily apparent and, in any event, carrying a dangerous weapon for this purpose was unjustifiable and inexcusable. Furthermore, it is clear that the appellant used the weapon without any provocation and in a way that was likely to cause serious harm, as it in fact did.
30 The appellant was intoxicated at the time of the offence. It was suggested that he had also been drunk when he made the decision to take the meat cleaver to Perth. In his police interview he said he had drunk 'probably half a bottle' of Jim Beam before taking the bus to the city, but that the bottle was 'not a huge one'. Whether this was prior to putting the meat cleaver down his trousers is unclear. He said later that night he drank 'a box' of beer over two and a half hours. The veracity of these
(Page 10)
- claims may be doubted. In any event, self-induced intoxication does not reduce his culpability.
31 As regards the personal circumstances of the appellant, the factors in his favour were his relative youth, lack of prior record, prospects of rehabilitation and plea of guilty. As to the plea of guilty, it could not be described as an early one. The full acceptance of guilt did not occur until almost 10 months after the offence. The changes in position by the appellant indicate that the ultimate acceptance of responsibility was a pragmatic one and not motivated by real remorse. That was the conclusion reached by the sentencing judge and it would be difficult to disagree with that conclusion. However, the plea was worthy of some discount because it facilitated the course of justice and spared the complainant the trauma of giving evidence at a trial although any such discount, in my view, could only be minimal. I note that an assertion that the sentencing judge had failed to give a discount for the plea of guilty was the subject of ground 6, which was not pressed at the hearing of the appeal.
32 As to the appellant's lack of prior record, that was offset by the seriousness of the circumstances and the indications that the appellant had a significant anger control problem. The psychologist's report of Dr Cooney dated 5 January [2011] did state that the appellant displayed limited risk factors associated with re-offending violently, had strong social support from his family and girlfriend and had shown a positive attitude towards intervention and authority by consenting to attend counselling. This last factor might be doubted given the appellant's lack of honesty in dealing with the Victim Mediation Service. Dr Cooney also found that there were unresolved issues related to the appellant's anger. Specifically, she stated that the appellant 'acknowledged that many of the issues underlying his offending behaviour remain unresolved' and that 'his efforts to avoid further use of aggression appear to be based predominantly on a desire to avoid further consequences rather than a change in the cognitions which he holds endorsing such behaviour in some social situations'.
33 As to the appellant's youth, the fact that he was treated as a child at sentencing meant that there needed to be particular emphasis on rehabilitation. However, this does not mean that deterrence is not an important consideration where the offending is serious and the character and the antecedents of the offender justify it: R v DP (a child) [2003] WASCA 92 [57]; Ainsworth v D (a child) (1992) 7 WAR 102, 117; MC
(Page 11)
- (a child) v The Queen [2003] WASCA 205 [20]; JA (a child) v The State of Western Australia [2008] WASCA 70 [31].
34 Furthermore, youth is a relative factor. Not all children will be the same in terms of their chronological age or their level of intellectual and emotional maturity when an offence is committed. The importance of youth can diminish as an offender gets older. The appellant was 16 when this offence was committed and 17 when he came to be sentenced. His youth was an important factor, but less significant than if he had been younger.
35 As to prospects of rehabilitation, these appeared to be positive. By the date of sentence the appellant had obtained employment, disassociated from his former friends and expressed willingness to undertake counselling. He also had the support of his family and the report from the psychologist was largely favourable. Nevertheless, as important as rehabilitation is in dealing with juveniles, it does not follow that good prospects in that regard must necessarily result in a non-custodial sentence.
36 In the circumstances of this case I am unable to conclude that a sentence of 18 months' detention was manifestly excessive. The attribution of weight to the various factors that arise for consideration in sentencing is at the heart of discretionary judgment: Vagh v The State of Western Australia [2007] WASCA 17 [47]. In this case, the sentencing judge placed particular emphasis on the seriousness of the offending and the importance of general deterrence. In my view, it could not be said that he was in error to do so.
37 The sentence of 18 months' detention was, without doubt, a high sentence for an offence of this type committed by a juvenile with the appellant's personal antecedents. However, the circumstances of the offending were serious and justified such a sentence notwithstanding the favourable personal factors. Differing views could be taken as to the significance of those factors, but even taking the most favourable view of them I am not convinced that the sentence imposed was not properly open in the exercise of sentencing discretion.
Ground 2 - Emphasis on general deterrence
38 Ground 2 contends that the sentencing judge erred by placing greater emphasis on general deterrence and retribution than other factors relevant to the sentencing of juvenile offenders.
(Page 12)
39 An alleged failure by a sentencing judge to give any or adequate weight to a relevant sentencing consideration will only constitute an express appellable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 330; Pedersen v The State of Western Australia [2010] WASCA 175 [37]. A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens the appellate court's jurisdiction to intervene: Powell v Tickner [2010] WASCA 224 [49]; Tema v The State of Western Australia [2011] WASCA 41 [6] (Buss JA).
40 Section 46 of the Young Offenders Act relevantly provides that:
Principles and considerations to be applied to young offenders
(1) When dealing with a young person who has been found guilty of an offence, the court, in disposing of the matter, is to apply -
(a) the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b) the general principles of juvenile justice.
(2) The court is to consider any information about the offender or the offence that may assist the court to decide how to dispose of the matter, and in particular -
(a) the nature and seriousness of the offence;
(b) any history of offences previously committed by the offender;
(c) the cultural background of the offender;
(d) any order previously made by a court when disposing of a charge of an offence that still applies to the offender, and any further order that is liable to be imposed if the offender does not comply with the terms of any such order; and
(e) the extent, if any, to which any person was affected as a victim of the offence.
(3) The court is to dispose of the matter in a way that is in proportion to the seriousness of the offence and is consistent with the treatment of other young persons who commit offences.
(Page 13)
- (4) In deciding how to dispose of the matter, which includes deciding the appropriate degree of severity to be used, the court is to consider how young the offender is as a mitigating factor.
(5) The court is to have regard to the fact that the rehabilitation of an offender is facilitated by -
(a) the participation of the offender’s family; and
(b) giving the offender opportunities to engage in educational programmes and in employment,
but the absence of such participation or opportunities is not to result in the offender being dealt with more severely for the offence.
41 Section 7 sets out the general principles of juvenile justice. Materially, s 7(d) provides that the community's protection from illegal behaviour is one of the general principles to be observed when a court is performing its functions under the Act. With regard to juvenile offenders, it is accepted that general deterrence is a relevant factor in considering the protection of the community: MC (a child) v The Queen [2003] WASCA 205 [14] (McLure J); JA (a child) v The State of Western Australia [2008] WASCA 70 [34] (Wheeler JA).
42 Clearly the weight to be attributed to general deterrence can vary according to the circumstances. In MC it was said at [20] that where the nature and circumstances of an offence are very serious, considerations of punishment and general deterrence will be accorded greater weight than in other circumstances.
43 In the present case, the sentencing judge did not have regard to general deterrence and retribution to the exclusion of all other sentencing principles, as implied in this ground. His Honour gave express consideration to factors personal to the appellant, including rehabilitation.
44 It is true that the sentencing judge did consider that general deterrence was a significant factor in this case because of the circumstances of the offending and the place in which it had occurred. As I have said earlier, it is impossible to argue with that conclusion.
45 But his Honour also referred to the sentencing principles contained in the Young Offenders Act. He said in this regard:
A key principle is rehabilitation and another key principle is enhancing the role of the family in relation to rehabilitation. Can I mention another principle, and that is the protection of the community. One part of that
(Page 14)
- concerns punishment and deterrence, and of course another part needs to be understood as not being inconsistent with the protection of the community and that brings me back to rehabilitation because rehabilitation and the protection of the community aren't mutually exclusive because, as has been commented upon in an authority often applied in this court, the long-term protection of the community is best achieved by your rehabilitation, so I bear all of those things in mind.
In your particular case, [DBW], I think that your rehabilitation does have good prospects. You have got a very supportive mum, having shifted from New Zealand to Perth back in 2005. You have got a good relationship with your mum. You have got a good relationship with your siblings. You are in stable accommodation. You are in full-time employment with your apprenticeship.
You have disassociated yourself from the negative things in that group. You're not drinking and using cannabis. You have not reoffended since the commission of these offences in January of last year. Then in combination with all of those things, moving forward you can receive psychological supports that address underlying issues of anger and aggression.
Putting all of those things together, there is a good prospect for rehabilitation and, perhaps it can be properly said, continued rehabilitation because you have taken good steps since the commission of the offences so far as rehabilitation is concerned. You have no prior convictions at all. That in itself is a very (indistinct) (ts 8 - 9).
46 His Honour then referred to a number of other personal factors including the appellant's dysfunctional relationship with his father and exposure to violent behaviour when in his father's company. His Honour also noted that the appellant was currently in a relationship and that his girlfriend was pregnant. His Honour considered that it was important that the appellant have the opportunity to meet his responsibilities as a father. His Honour then said:
Having said all of those things, [DBW], can I move on to make some remarks by way of conclusion. As weighty as the combination of all of those personal factors to which I have just referred are in your case, and on an application of the principles including rehabilitation and enhancing the role of family, I think that in your case everything is overwhelmed by the seriousness of the factual circumstances of the unlawful wounding offence and a need for general deterrence for it is such that only a sentence of last resort, immediate detention, is appropriate in your case.
It does happen in this court, [DBW], that for a first offender having committed an offence of personal violence, which would include an offence of unlawful wounding, that a conditional release order or sometimes an even lesser sentence is imposed, but each case must be
(Page 15)
- determined on the basis of its own facts and the offender's own personal circumstances. A conditional release order - that is, a combination of a community order and detention but the detention is not served immediately - that sort of order may be imposed if the circumstances warrant it.
From time to time there are some cases where even though the young offender is a first offender, nevertheless, because of all the circumstances of the case, only a sentence of last resort, immediate detention, is appropriate. For all of the reasons that I have mentioned this afternoon, [DBW], this is one of those cases (ts 12).
47 At the hearing of the appeal it was submitted that the sentencing judge erred by not considering factors other than general deterrence when it came to determining the length of detention. It was suggested that there was a two-stage process and that having concluded that detention was required, his Honour should then have gone back to consider all of the relevant factors in order to ensure that the term imposed was the shortest one necessary.
48 It is true that s 7(h) provides that detention is a sentence of last resort and, when required, should be for as short a time as is necessary. See also s 120. I do not accept, however, that this implies that the sentencing judge had to expressly adopt a two-stage process in his reasons. There is nothing in those reasons that suggests that his Honour failed to apply the relevant principles in this case to both the type of sentence and its length.
49 There is no merit in this ground of appeal and leave in respect of it should be refused.
Ground 3 - Failure to take into account the SAVRY assessment
50 The SAVRY assessment is referred to on page 4 of a report of Dr Cooney of 5 January [2011]. The relevant paragraph reads as follows:
Given the nature of [DBW's] offences, the factors underlying [his] use of violence were considered against the Structured Assessment of Violence Risk in Youth (SAVRY), which is designed to assist in risk assessment and risk management. The SAVRY is a risk assessment tool composed of 24 items in three risk domains (Historical Risk Factors, Social/Contextual Risk Factors, and Individual/Clinical Factors), drawn from existing research and the professional literature on adolescent development as well as on violence and aggression in youth. In addition to the 24 risk factors, the SAVRY also includes six Protective Factor items.
[DBW] rated highly on a discrete number of historical risk factors, including exposure to violence in the home, parental criminality and a history of violence (albeit only in social contexts). He was rated low on
(Page 16)
- the remainder seven historical risk factors. [DBW] was not rated highly on any social and contextual risk factor, rating only moderately on one factor (i.e., peer rejection), and low on the remainder factors. In regards to individual/clinical risk factors, [DBW] was rated moderately on only one factor (i.e., negative attitudes) at the time of the assessment. [DBW] may have been rated more highly immediately subsequent to the offence, based on his substance misuse issues and anger management problems, however, he appears to have made substantial changes in these areas over the last 12 months, warranting a decrease in their ratings. In addition to displaying limited risk factors associated with re-offending violently, a number of protective factors were identified through the current assessment. This included the strong social support provided to him by his family and girlfriend (who is reportedly pregnant), his strong attachments and bonds to his family, his positive attitude towards intervention and authority (with him consenting to attend counselling and agreeing with the rationalisation for this), and his prosocial involvement (with his apprenticeship).
51 The SAVRY assessment was one of the tools which the psychologist used in drawing her conclusions in regard to the appellant's prospects for rehabilitation. There was no necessity for the sentencing judge to expressly refer to it. What was relevant was the psychologist's opinion not the methodologies that she had used.
52 The sentencing judge did refer to Dr Cooney's report specifically in his sentencing remarks (AB 42). In doing so his Honour contrasted the expressions of remorse and empathy conveyed by the appellant to the psychologist with his conversations with the victim mediation officer. This caused his Honour to doubt the appellant's sincerity and to take the view that he had made 'educated responses' in order to place himself in a more favourable light before the court. That was a finding open on the available evidence. It does not follow that because his Honour came to that conclusion he must have failed to take into account the SAVRY assessment.
53 This ground is without merit and leave in respect of it should be refused.
Ground 4 - Psychologist's report
54 This ground asserts that the sentencing judge erred by failing to take into account the matters raised in the psychologist's report when determining the appropriate length of the period of detention. As I have noted, his Honour did refer to the report. He did not refer to it specifically in regards to how he determined the length of the detention. He was not obliged to do so. This ground is without merit and leave in respect of it should be refused.
(Page 17)
Ground 5 - Exposure to violence
55 This ground asserts that the sentencing judge erred by finding that the appellant's exposure to violence from his family was explanatory but not mitigatory. What his Honour said was:
While you have a very supportive mother and a good relationship with your siblings and stable accommodation, you had a very difficult childhood from time to time and particularly in the early part of your childhood. As I have said, you came to Australia back in 2005 with your mother to get away from your violent father. There was violence to your mother and the atmosphere in the household when he was around would have been tense and intimidating and at times violent. That is not a healthy environment to grow up in.
For the most of your childhood your father was in prison, as I understand it. As a result of that, you haven't enjoyed the advantages of having a positive male role model in your life and you have developed underlying anger and aggression problems.
Your relocation to Perth meant that you were in a different culture and that would have had its difficulties as well as its advantages. Regrettably, to gain a sense of belonging and self-worth you associated with the group (indistinct). As I understand it from what has been mentioned to me and what is contained in the video record of interview and psychological report, you attained a senior position in that group.
Regrettably, along with that came a misplaced sense of having to behave in ways that by normal standards could be properly - or should be properly described as negative or antisocial. You did that to maintain your position of authority in the group.
Your action in committing this unlawful wounding is likely an instance of that sort of thing. It had been committed by you when other members of your group were present and whether it was conscious or subconscious, it was done so you could enhance or assert your position within the group (ts 9 - 10).
56 A little later his Honour said:
I understand that it was only a few days before you committed these offences that you returned home from New Zealand, as I understand it, and I accept that when you did return you were frustrated and angry that things didn't turn out right with your father. You still, regrettably, were exposed to violent behaviour by him when you were over in New Zealand and it seems that he may well have been continuing to mix with antisocial people.
Putting it all together, you returned perhaps with an even greater sense of abandonment by him when the purpose for going there was to try and
(Page 18)
- connect or reconnect with him and to establish some sort of relationship. Regrettably, that didn't come about.
This may well have contributed to your offending by increasing your underlying sense of anger and aggression. That would have been compounded by negative and antisocial values within the group - that's the group that you returned to - and also excessive consumption of alcohol. Can I just pause here, [DBW], and say that binge drinking by young people in our community has become a very serious problem and it is resulting in serious instances of violence.
The point to be made from all of that is that while your mental state on your return from New Zealand just before your offending has played some part in your offending, it can only provide some explanation and in no way excuses such unprovoked and violent behaviour with a weapon at a community event (ts 10 - 11).
57 It is not particularly useful to describe the appellant's past history of exposure to violence as being mitigatory. It provided some context for the appellant's behaviour, and may (as his Honour said) have contributed to it, but it is not readily apparent that it reduces his level of culpability.
58 At the hearing of the appeal it was submitted that early exposure to violence is a mitigatory factor. In this regard, the appellant relied on R v AWF (a child) (2000) 2 VR 1; [2000] VSCA 172. That was a case involving sexual offending against children where there was unchallenged expert evidence that there was a connection between the offences and the offender's own childhood abuse. The sentencing judge in that regard said that the offender's childhood experiences were not relevant. Ormiston JA said:
The second factor about which complaint was made was that the learned judge on at least two occasions said that the appellant's childhood experiences, 'whatever they may have been' were not relevant to the appropriate sentencing disposition on this occasion. It is hard to conceive that evidence of the present kind which might go to explain his behaviour, though in those circumstances not to excuse him, should be here excluded as irrelevant. The appellant's criminality, his capacity for rehabilitation, the extent to which he is a proper subject for specific deterrence may each be affected by an understanding of what led to the character defect exhibited in this unforgivable extended episode of sexual misbehaviour. Necessarily in each case the importance of an offender's background will vary according to its connection with the offences charged and the extent to which the court may properly take that factor into account. Almost without exception it cannot be seen as excusing the relevant behaviour, but, if it leads to a psychiatric or psychological condition which takes away from the criminality of that behaviour, then it may have some greater significance [3].
(Page 19)
59 Nothing said by the sentencing judge in the present case is inconsistent with AWF. He did not find the history of exposure to violence to be irrelevant, nor did he fail to take it into account.
60 The suggestion that the history was in some way mitigatory assumes that exposure to past violence somehow impaired the appellant's ability to make rational decisions. However, there was no evidence to support a conclusion that the appellant's exposure to violence had been causative of the offending conduct. The offence had occurred shortly after the appellant had returned from overseas to visit his father. That visit was apparently a negative experience and the appellant had feelings of abandonment and was resentful towards his father. However, by the time of the offence he had returned to his mother and family in Perth, which by all accounts was a stable and supportive environment.
61 It is not possible to draw a conclusion that the offence was precipitated by either past exposure to violence or recent exposure of the appellant to his father. The sentencing judge, in any event, took the personal history into account and no error in that regard has been demonstrated.
62 Leave in respect of this ground should be refused.
Conclusion
63 In my view, ground 1 should be dismissed and leave in respect of grounds 2 to 5 should be refused. In those circumstances the appeal should be dismissed.
3
21
1